On Wednesday, Charleston, S.C. became the latest city to sue major energy producers over climate change impacts, seeking an unspecified amount of damages to pay for local abatement projects. The lawsuit is the first to be filed by a southern municipality and at its center are two of the biggest players driving the climate litigation campaign: the nonprofit Center for Climate Integrity and plaintiffs’ law firm Sher Edling, LLP.

Despite the growing involvement and influence of the seasoned actors pulling the strings of this effort, a public nuisance climate change lawsuit has yet to see any substantive success in court. With its lawsuit closely resembling others previously filed by municipalities, Charleston joins the underwhelming climate litigation campaign that’s already seen major defeats in California and New York.

Here are the three things to know about Charleston’s climate lawsuit:

Charleston Joining the Climate Litigation Brigade Is No Surprise

The fact that Charleston filed a climate lawsuit isn’t a shock. It’s one of the cities listed in Pay Up Climate Polluters’ 2019 study, “Climate Costs in 2040.” Similar to Hoboken, N.J. – which filed its own lawsuit last week – the Pay Up Climate Polluters report is looking more and more likely to be an indicator for municipalities that the climate litigation echo-chamber is courting to be potential plaintiffs in future lawsuits.

To publish that report, Pay Up Climate Polluters partnered with Resilient Analytics – the firm used by the City and County of Boulder and San Miguel County to support its climate lawsuit.

Pay Up Climate Polluters has also benefitted financially from the network of Rockefeller organizations – the primary driving force behind the climate litigation campaign. The Rockefeller Family Fund gave a $1 million grant in 2017 to the Institute for Governance & Sustainable Development. IGSD sponsors the Center for Climate Integrity, which in turn, runs the Pay Up Climate Polluters campaign.

This plays into the fact that despite the narrative ceaselessly pushed by its advocates, the climate litigation campaign isn’t a grassroots movement. In reality, it’s a massive, highly orchestrated campaign largely directed by environmental activists and funded by wealthy donors.

This effort all started at the infamous La Jolla conference in 2012 that was organized by activist groups the Climate Accountability Institute and the Union of Concerned Scientists, along with plaintiffs’ lawyers like Matt Pawa. Since then, supporters of the campaign aimed to recruit state attorneys general and other public officials to file lawsuits and they set out to “delegitimize [ExxonMobil] as a political actor” by “creating scandal” through “rapid response … joint social media and coordinated organizing and media pushes.” And it’s all been funded by wealthy foundations, primarily a network of Rockefeller organizations that manufactured the entire campaign.

After Strangely Being Nowhere To Be Found With Hoboken, A Familiar Face Is Leading This Lawsuit

After being left out of the Hoboken lawsuit, Sher Edling is back in the game after Charleston hired the firm, a familiar face in the climate litigation campaign. The firm has been the lead outside counsel in numerous public nuisance and consumer protection climate change lawsuits, including those filed by San Francisco, Baltimore and Honolulu. Additionally, the firm’s managing partner and counsel on all of its climate change lawsuits, Vic Sher, has worked with Richard Heede who has develop the so-called “attribution science” that seeks to assign a certain amount of emissions to specific energy companies for the explicit reason of aiding his lawsuits, and he has coordinated with the Center for Climate Integrity by speaking at a panel discussion on climate litigation.

During a press conference announcing the lawsuit, Charleston Mayor John Tecklenburg noted that Sher Edling is working on a contingency fee basis, meaning that if the lawsuit is successful or a settlement is reached, Vic Sher and his firm stand to take home millions in fees. It’s the same financial model that the firm is using while representing other cities and states around the country that have filed similar climate lawsuits while partnering with activists.

For example, the firm’s agreement with San Francisco in the climate change case its litigating for the city entitles the law firm to 25% of the first $100 million, 15% the amount between $100-$150 million, and 7.5% of any remaining amount over $150 million.

The mayor also claimed that because of this contingency fee agreement, taxpayers wouldn’t be on the hook for the cost of the lawsuit. But as seen before, this isn’t always true. The New York Attorney General’s office spent more than $800,000 in taxpayer money on just two expert witnesses, and Boulder County’s arrangement with its law firm indicates that “the contract states that there are circumstances under which the county and city might have financial obligations to the group.”

With Charleston a targeted city by Pay Up Climate polluters, it prompts questions for the municipality’s leaders and Sher Edling about who may be funding this lawsuit on the back end. As we learned with Hoboken last week, IGSD (the group sponsoring Pay Up Climate Polluters) is bankrolling the outside counsel in that case to litigate its initial stages.

Further, Sher Edling has been known to take outside funding for its own litigation as well. For example, the law firm received over $1.7 million from Resources Legacy Fund – yet another grantee of the Rockefellers. This type of arrangement has attracted scrutiny for mixing public and private sector resources. As Michael Krauss, an Emeritus Professor at the Antonin Scalia Law School of George Mason University, said:

“Can a non-profit funnel donations to a for-profit law firm that has already determined a different form of compensation? May a law firm, which could be fabulously enriched on a contingent basis, ethically accept funding that is paid whether or not the client prevails? If legislation through litigation is bad, what to make of legislation through litigation subsidized by taxpayers through charitable donations? We don’t have all the answers to these questions yet. I think we deserve them.”

So, this information begs the question of, “Are Charleston and Sher Edling receiving funding from outside activist groups to support this lawsuit?”

Let’s Remember: The Climate Litigation Campaign Has Been A Failure

If Charleston was hoping to jump on a winning bandwagon, it’s sadly mistaken. Thus far, the climate litigation campaign has not racked up a single substantive win.

Public nuisance lawsuits, like the one filed by Charleston, were also filed by San Francisco and Oakland and New York City. Both were soundly rejected on the merits of the case by federal judges who ruled that climate change should be an issue left to executive and legislative branches, not the courts. Ruling in the San Francisco and Oakland case, federal judge William Alsup said:

“The problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case.”

In 2015, the New York Attorney General launched an investigation in ExxonMobil using the “Exxon Knew” strategy – the debunked theory that the company knew about climate change and hid it from the public. But during years of a fruitless investigation, the attorney general’s office was forced to revise its lawsuit downwards multiple times to just accounting fraud charges, which were then defeated in court in 2019. Ruling on the case, New York State Supreme Court Justice Barry Ostrager called the attorney general’s allegations “hyperbolic” and “without merit.”

While there have been plenty of hearings over jurisdiction in the other cases around the county, every lawsuit that’s been judged on the merits of its argument have been rejected, and there’s no indication these other cases will be any more successful, if they even make it to trial.

Conclusion

While it’s not a shock that Charleston filed a climate lawsuit considering the city is mentioned in the Pay Up Climate Polluters’ report, the case still faces an uphill battle after previous efforts have failed.

So, it was ironic when Susan Herdina, the city’s Corporation Counsel, acknowledged at Wednesday’s press conference that this lawsuit could take years to reach a verdict and even remarked that Charleston “can wait” for that outcome. Supporters of these lawsuits have called climate change an “urgent” threat, with one activist group saying we only have 12 years to address the issue, yet Charleston is downplaying the timeliness and urgency of it all?

In American Electric Power Company v. Connecticut, the U.S. Supreme Court ruled that corporations can’t be sued under federal common law for public nuisance for producing greenhouse gases seven years after the lawsuit was first introduced.

If these lawsuits really are going to take years and end in defeat, then perhaps our collective efforts should turn to more meaningful solutions to lower emissions and deploy innovative ways to deal with climate change.

Because even if these lawsuits somehow do succeed, they won’t do anything to address climate change. It’s all just frivolous litigation that only stands to make plaintiffs’ attorneys richer for blaming a global problem on a single industry that provides the energy the world depends on.