EarthRights International (ERI), the Washington, D.C.-based non-profit spearheading climate litigation in Colorado, recently made its pitch to city leaders in Ft. Lauderdale, Fla., attempting to garner interest for the municipality to initiate its own climate lawsuit. But the group actually has its sights set on many more cities across the Sunshine State.
Video of the city’s most recent commission meeting shows Marco Simons, general counsel at ERI, presenting with a full slide deck. This is the first time we’ve seen the actual pitch from any of the three plaintiffs’ attorneys leading these cases across the country.
EID has provided the full story on EarthRights before, but it is worth noting again that the group receives hundreds of thousands – if not millions – of dollars in funding by many of the wealthy foundations bankrolling the #ExxonKnew campaign, including the Rockefeller Family Fund, Oak Foundation, Open Society Foundations and the William and Flora Hewlett Foundation.
So, what did we learn from ERI’s presentation to the Ft. Lauderdale City Commission? A few key takeaways:
1) ERI is Pitching the Municipalities
ERI pitched Ft. Lauderdale in almost identical fashion to how it approached Boulder’s elected officials. In both instances, ERI promised to team up with other non-profits and private law firms to support the litigation efforts. In the question-and-answer session, one of the commissioners asked how it came to be that ERI was pitching the city in the first place:
Commissioner 1: “Where did this come from?”
Commissioner 2: “Well, they came to us. They started talking with Lee and with Alan. They initiated it, but it became interesting because it’s an opportunity for the city to get reimbursed for out of pocket costs that have been related to the impacts of pollution in our city and health-related costs. So, it was a way for the city to get any money, obviously, we’re all interested. The risk is also being discussed. That is something we still have to flesh out.” (emphasis added)
2) ERI is Recruiting More Florida Plaintiffs
Simons indicated that ERI had spoken with at least five additional “major South Florida municipalities” in the southern part of the Sunshine State by the time he presented to Ft. Lauderdale:
Simons: “We have spoken directly with two other municipalities and other attorneys that we’re working with. Well, actually that’s not true. We’ve had initial conversations with at least three others in addition to that. And, similar numbers for private counsel that we’ve been collaborating with.” (emphasis added)
As ERI is still in the preliminary stages of the legal work – with Simons telling the city commissioners, “we’re not at this state of necessarily moving forward with filing litigation yet” – it’s not clear which communities exactly the nonprofit has reached out to and how far the planning has gone. That being said, Simons did tell the Ft. Lauderdale officials that “other communities that have expressed interest in this strategy over the past year.” If Ft. Lauderdale is any indication, it’s likely more information will be made public as this process continues. (emphasis added)
3) ERI Will Work Pro-Bono…Courtesy of Wealthy, Anti-Fossil Fuel Foundations
ERI pledged to the city commission that it will work pro-bono on a lawsuit, meaning the municipalities it represents will incur no expense for the time the group spends working on their case. This is what ERI promised to the Colorado municipalities and now the nonprofit is giving the same pledge to Ft. Lauderdale too:
Simons: “At the litigation stage it would be necessary to join together with co-counsel from private firms. They would be interested in pursuing this on a contingency fee-basis… And it would be a combination of our pro-bono representation and a private firm, contingent fee representation, again with no up-front cost to the city and that’s the model that’s been done in all of these cases so far.” (emphasis added)
But, as mentioned above, ERI receives money from many of the major foundations running the national climate litigation campaign, meaning the group’s legal efforts are, at least in part, supported by anti-fossil fuel interests.
For example, ERI receives donations from the Oak Foundation, a Geneva, Switzerland-based philanthropy which investigative reports found has “committed $100 million to its ‘climate justice’ initiative, with grants ranging from $600,000 to $75 million” between 2015-2020. It is unclear how much money Oak has given ERI.
ERI also lists the Rockefeller Family Foundation as a major donor. This is notable as the Rockefellers have been the leaders in bringing forward an orchestrated and integrated campaign against energy companies that stems all the way back to a planning workshop in 2012. They have also admitted to conspiring with elected officials to compel investigations of companies, and have funded activist groups to demonize the industry and “creat[e] scandal.”
Additionally, an online database search of donations distributed by the William and Flora Hewlett Foundation shows that the organization has given almost $1 million to ERI since March 2016. The organization also gave the Niskanen Center, the other non-profit supporting the Boulder litigation, a $300,000 grant last year for its “climate policy and litigation program.”
ERI also receives funding from other environmentalist organizations that antagonize the fossil fuel industry like the Tides Foundation, Wallace Global Fund and The MacArthur Foundation.
That ERI has funding flooding in from these organizations may be why Marco Simons chose his words carefully during his presentation to the Ft. Lauderdale City Commissioners when he told them, “I will say, from my part, my organization isn’t getting a dime from our clients.” (emphasis added)
Meanwhile, the local counsel partnering with ERI on this litigation stands to make millions if the cases succeed. For example, the Colorado-based attorneys ERI is working with on the Boulder lawsuit stand to make 20 percent “of the gross amount of the recovery collected.”
What this means is that a large chunk of the municipalities’ award for so-called “climate damages” will go into the pockets of trial attorneys rather than mitigation projects. The projects and efforts that presumably were the reason these cities and counties brought the litigation will have to wait.
4) ERI Admits Litigation Poses Financial Risk for Taxpayers.
Simons disclosed that if the municipalities lose their initial climate case and the defendants choose to countersue, the cities will be on the hook for the costs, i.e. any and all of the costs associated with litigating that suit. If the court finds that the suit is frivolous or detects any malpractice or malfeasance, that could put the city in a financial bind, and possibly on the hook for defendants’ attorneys’ fees or subject to other fines. Simons did not present this information unprompted, but only upon being asked the question upfront by one of the Ft. Lauderdale commissioners:
Commissioner: “…obviously when we hear [the litigation is] done on a pro bono basis or on a contingency fee-basis and there’s no expectation from you to expect us to pay any costs or attorneys, what about the possibility of us having to pay the cost of the opposing party should we lose in court?”
Simons: “The average costs are always a possibility, that’s a possibility in the opioid litigation, that’s a possibility with any litigation. We are exploring ways to minimize the cities’ exposure there.” (emphasis added)
This is the first time we have received confirmation from one of the plaintiffs’ attorneys that taxpayers will be footing the bill if the climate litigation goes south for the cities.
With this context, it is important to remember that three of these climate suits have already been dismissed at the federal level; one has been stayed indeterminately; and the rest are awaiting decisions of whether they will be dismissed. Simons acknowledged in his presentation that the municipalities should be ready to face opposition if they choose to move forward with the litigation.
Simons said that criticism would be par for the course when one of the Ft. Lauderdale commissioners asked him about the possibility.
Simons: “One thing that I will say is that at every stage of this, however far it goes, in fact probably starting today, you should expect some pushback from industry, which we have seen everywhere these cases have been filed…” (emphasis added)
ERI is using municipalities to advance a broader goal at the behest of its wealthy funders. The municipalities may face millions of dollars in legal fees if their case does not succeed. And to top it all off, all of the big rulings that have been made in these cases thus far have been against the municipalities.
There’s a real question as to whether groups like ERI are selling pro-bono legal services for climate litigation, or simply a 21st century formula of snake oil.