On the same day that a handful of California municipalities seeking to revive their climate litigation crusade presented oral arguments before the Ninth Circuit Court of Appeals, the non-profit public interest law firm Government Accountability and Oversight (GAO) filed a lawsuit on February 5th against the office of Washington State Attorney General Bob Ferguson for obscuring its communications around pursuing climate litigation against America’s energy producers.
The lawsuit claims that the attorney general’s office improperly redacted a series of emails and memos between public officials and plaintiffs’ lawyer Matt Pawa – one of the original masterminds of the climate litigation campaign. In 2012, Pawa worked alongside the Climate Accountability Institute (CAI) and the Union of Concerned Scientists (UCS) at a conference which sought to develop ways to bring litigation and other enforcement action against energy companies. He has continued to work tirelessly to recruit “sympathetic” state attorneys general for his climate litigation campaign ever since.
Washington’s History of Secrecy
Previously, Spokane-based public records group Energy Policy Advocates (EPA) requested a series of documents from the Washington attorney general’s office around its participation in a March 29, 2016 press conference where several state attorneys general announced their intent to join the ranks of former New York Attorney General Eric Schneiderman and investigate ExxonMobil. In addition to attending the conference, Attorney General Ferguson joined several other state attorneys general at a secret briefing by Pawa and UCS’s Peter Frumhoff on climate litigation shortly before the event, according to Reuters.
While officials at the Washington Department of Ecology – which is subject to the same public records law as the attorney general’s office – fully complied with EPA’s request, EPA said the attorney general’s office improperly redacted the very same emails, claiming these documents were privileged. However, the fact that the ecology department turned them over without claiming privilege revealed the attorney general’s office’s intent to cover-up politically sensitive correspondence.
In an attempt to shed light on the attorney general’s office’s improper concealment of documents pertinent to the public interest, GAO’s complaint seeks full, unredacted access to a series of specific communications between the law enforcement officials and Matt Pawa.
Building the Foundation for Climate Litigation
The unredacted materials from 2016 obtained from the Washington Department of Ecology reveal that the attorney general’s office was previously approached about pursuing an investigation against energy producers, but hesitated because they didn’t feel the science tying energy company emissions to climate events was strong enough.
Less than two weeks before the March 2016 press conference, Washington Governor Jay Inslee’s policy director Keith Phillips sent the following email to then-senior assistant attorney general Laura Watson:
“You may recall that we discussed last fall the possibility of a nuisance lawsuit against the six largest investor-owned fossil fuel companies. At that time, one of our concerns was causation and the fact that the Climate Impacts Group can’t link individual events to climate change. Rather, they are only able to say that what we’re seeing today is consistent with what the models predicted. If we were going to pursue some kind of lawsuit, we may need something stronger than that to establish causation. And, lawsuit or no, it would be helpful to identify any credible science out there that is drawing these kinds of links…. Even if it’s not the Union of Concerned Scientists folks, there may be other groups that are worth talking to.” (emphasis added)
One year later, plaintiffs’ attorney Vic Sher – who serves as counsel on a number of public nuisance climate litigation cases across the country – admitted to working with the CAI’s Richard Heede to develop stronger attribution science to address Phillips’ concerns. He proposed using 1965 as a base year to study emissions, with the hope of capturing enough energy-related emissions data to compel a judge to rule in the plaintiffs’ favor.
As if on cue, Heede released an updated climate attribution report in September 2019 that uses Sher’s proposed 1965 base year. The report was conveniently commissioned by the Union of Concerned Scientists.
Conclusion
The climate litigation echo chamber is highly coordinated and well calculated. As its activist members continue to press state attorneys general on filing frivolous climate litigation to assuage their own interests, public scrutiny of these offices is more important than ever. GAO’s latest lawsuit seeks to do just that: uncover efforts by plaintiffs’ attorney Matt Pawa to harness the power of the state’s top law enforcement office to pursue politically-motivated action against energy producers, and to hold this taxpayer-funded public office accountable for its efforts to circumvent transparency.
