On Wednesday, Minnesota became the latest state to file a climate lawsuit against the energy industry. This marks the first lawsuit of this kind to be filed after the failure of the New York Attorney General’s case against ExxonMobil last fall.  At a press conferenceMinnesota Attorney General Keith Ellison announced that his office was filing a civil consumer protection lawsuit against ExxonMobil, the American Petroleum Institute (API), and Koch Industries, as well as a local energy company, alleging that the parties defrauded consumers by producing and selling petroleum products while deliberately concealing their link to climate change. 

Ellison framed the lawsuit as a strike against corporate bad actors that would protect consumers and the environment. But the arguments sound very similar to cases that have already fallen short in the courtroom.   

What is this casreally about?  And how is the Minnesota attorney general handling such a large and complex case without any help from outside groups or counsel? 

Here are three key things to know about Minnesota’s new climate lawsuit.  

1. The Minnesota Attorney General’s office employs multiple outside lawyers brought in to focus on environmental litigation whose salaries are likely paid for by Michael Bloomberg’s foundation. 

This is the first climate lawsuit of its kind that does not include legal support in the form of outside groups or law firms.  As we’ve seen in the past, DC-based nonprofits and large plaintiffs law firms have typically aided in the filing of similar lawsuits across the country.   

The reason that they are absent in this case appears to lie in the fact that the Minnesota Attorney General’s office, specifically its Energy & Natural Resources Division, enjoys the benefits of privately-paid outside counsel, courtesy of a legal fellowship program funded by environmentalist billionaire Michael Bloomberg.  

Through the State Energy & Environment Impact Center (SEEIC) at the New York University Law Schoolthe Bloomberg Family Foundation, the legal name for Bloomberg Philanthropies, gave $5.6 million in 2017 to create a legal fellowship which places midcareer environmental attorneys in the offices of state attorneys general across the country. The fellows are given the title “Special Assistant Attorney General” (SAAG) and work under the direction of the state attorneys general to support “defending and promoting clean energy, climate and environmental laws and policies.” While they are considered official staff of the attorney generals’ offices and have official state emails, their salaries are paid for by Bloomberg and whomever, if anyone, else funds the SEEIC. 

The Minnesota attorney general’s office currently has at least two of these fellows – Leigh Currie and Peter Surdo. At the press conference announcing the lawsuit on Wednesday, Ellison thanked both Currie and Surdo for their “excellent, excellent work” putting the case together. Both Currie and Surdo are listed as counsel on the complaint 

The arrangement has raised serious questions of legal ethics and has led to lawsuits in several states. This hasn’t stopped attorneys general, however, from using the fellows to help accomplish legal work that they might not otherwise have the time or staff to complete. 

Already, other SAAGs have worked on climate litigation cases. The New York attorney general’s office employed two fellows through the program, one of whom worked on the attorney general’s failed Martin Act securities fraud lawsuit last year and another tied to New York City’s public nuisance climate lawsuit, as well. After facing significant pressure because of the atypical arrangement, the New York attorney general’s office quietly brought both attorneys on as fulltime staff in 2019.  

Like the New York attorney general, Ellison used the project to support his climate lawsuit. Last fall, Ellison’s office released his application to the NYU program in response to an open records request. The application makes it clear that Ellison sought the extra staff to aid work such as “supporting state-led efforts to investigate ExxonMobil” and boasted that his office had “a long history of participating in federal multistate environmental and energy actions.” 

2. Climate lawsuits against fossil fuel companies have not met much success. 

During his press conference, Ellison said that he was confident in his office’s chances of success because of Minnesota’s “strong” consumer protection laws.  

But that confidence doesn’t match the track record of similar litigation that has been filed across the country. By the Minnesota attorney general’s count, 15 other municipalities, from San Francisco to Baltimore, have filed similar suits.   

New York’s failed case against ExxonMobil that concluded after a nearly three-week long trial last year is the prime example. Armed with an expansive state law that allows for wide latitude in finding wrongdoing, the New York Attorney General failed to convince the court that the company misled investors about climate change. The judge in that case called the lawsuit “without merit.”    

A lawsuit filed by New York City against fossil fuel companies seeking damages for climate change impacts was dismissed in July 2018, with the federal judge noting that “courts have found that these matters are areas of federal concern that have been delegated to the executive branch as they require a uniform, national solution.” 

The Second Circuit Court of Appeals in Fort Worth Texas also took issue with the “lawfare” technique that the plaintiffs in the climate change lawsuits filed by California municipalities have deployed against energy companies. Instead of a good faith effort to seek restitution for damages, Justice Elizabeth Kerr acknowledged that these suits are being used to implement stricter climate change policy: 

Lawfare is an ugly tool by which to seek the environmental policy changes the California Parties desire, enlisting the judiciary to do the work that the other two branches of government cannot or will not dto persuade their constituents that anthropogenic climate change (a) has been conclusively proved and (b) must be remedied by crippling the energy industry. 

The courts have made it clear – these lawsuits are not the proper method by which to try to solve climate change, an issue global in nature that we all contribute to. Yet, public officials keep asking them to do just that.  

3. The Minnesota attorney general’s lawsuit rehashes many of the same Exxon Knew talking points that have been debunked time and time again. 

During the press conference, Ellison stressed that energy companies had hid the truth about the connection between fossil fuel use and climate change for decades. He also asserted that they had a duty to disclose what they knew to the public because it was not otherwise known or available to them. If this argument sounds familiar, it’s because these allegations are recycled talking points activists have intentionally strung together over the past few years.  

This campaign itself was born at a 2012 conference held in La Jolla, California where participants discussed ways in which they could bring cases against fossil fuel companies similar to those brought against tobacco companies in the 1990s and how a “sympathetic” attorney general could use litigation as a tool to stigmatize energy companies by accessing internal documents and making them public. A similar “meeting of the minds” was held at the Rockefeller Brothers Fund and Rockefeller Family Fund headquarters in January 2016 where attendees discussed ways to “establish in the public’s mind that Exxon is a corrupt institution.” Present at this meeting were 350.org co-founders Bill McKibben and Jamie Henn.  

In a moment that shows this campaign has come full circle, MN350, the state’s local chapter of 350.org, was featured in the Minnesota attorney general’s official press release announcing the lawsuit. The organization’s executive director, Sam Grant, was quoted admonishing the defendants’ “bad corporate behavior.”  

Further, the argument that fossil fuel companies were the only parties that knew about the effects of climate change for decades has been proven incorrect several times over. For example, in 2018, E&E News published a story with the headline “Every president since JFK was warned about climate change.” In 1988, James Hansen, then-director of the NASA Goddard Institute for Space Studies, testified before Congress, telling them that he predicted the earth was warming and it was likely caused, at least in part, by greenhouse gas emissions. While conducting research for his New York Times Magazine piece Losing Earth, Nathaniel Rich found that the science of climate change was well known in the 1970s:  

“By 1979, there was a strong consensus within the scientific community about the nature of the problem. The fundamental science hasn’t really evolved since then. It’s only been refined really. 

Despite this ample amount of evidence, public officials and activists continue to assert that fossil fuel companies knew long before anyone else about the effects of climate change. Clearly, this argument is untrue and should not carry any weight in a legal complaint nor in a court of law.  

In an interview with MSNBC yesterday, Ellison said he was prepared to go to trial for this climate lawsuit. Considering how similar his office’s case is to those filed in the past, he should also be prepared for an uphill battle.