The attorneys general for Washington State and Oregon will join forces with the Center for Climate Integrity (CCI) tomorrow in what could be a step toward a climate lawsuit in the Pacific Northwest that’s been considered for years before but has ultimately never come to pass.

The event, hosted by the Lewis & Clark College law school’s Green Energy Institute on Thursday, will discuss “the scientific basis for holding the fossil fuel industry accountable, and legal and community perspectives on climate litigation.” This type of event – a panel discussion focused on the merits of municipal and state-driven climate litigation organized by CCI – has been a precursor to lawsuits in multiple instances in the past, including in Hawai’i, Minnesota and New Jersey.

Both Washington Attorney General Bob Ferguson and Oregon Attorney General Ellen Rosenblum have portrayed strong interest for climate litigation over the years and have worked with outside activist groups and legal centers to support this work – relationships that have led to several missteps. Even as the climate litigation campaign has so far been marked by failure, their participation in a CCI-sponsored event – an activist group that’s been a leading outside voice and financier supporting climate lawsuits – shows that they may be trying again, despite previous hesitations.

Before There Was Attribution Science, There Was Washington State

Washington Attorney General Bob Ferguson has hovered in and around the climate litigation campaign for much of the past decade but has never gone through with filing a case. In 2016, Ferguson participated in the “AGs United for Clean Power” press conference that was hosted by former New York Attorney General Eric Schneiderman to help support his investigation of ExxonMobil, a case that struggled for years and was eventually comprehensively defeated in 2019.

The Washington attorney general’s office attempted to hide its communications with the Washington governor’s office and the New York attorney general’s office around that 2016 press conference and a preceding briefing that the conference participants – including Attorney General Ferguson – received from plaintiffs’ attorney Matt Pawa and Peter Frumhoff of the Union of Concerned Scientists – both key  figures behind today’s climate litigation efforts. While the exact reason that Ferguson wanted to keep those communications from the public are not clear, he wasn’t alone in working to shield the details around the planning of the press conference, as an official in the New York Attorney General’s office even told Pawa not to confirm his participation in the briefing when asked by the media.

The Washington attorney general’s office attempted to shield these emails from public records requests in 2019 by claiming privilege, even though the emails were written by political aides whose correspondence was not authorized to be kept private under such a claim. The same batch of emails were later released by a different Washington state agency in on the correspondence, confirming that the attorney general’s office improperly redacted information in those emails. (The rest of those Washington attorney general records, including memos explaining this reticence as well as Matt Pawa’s in recruiting Ferguson’s office to consider climate litigation, are the subject of litigation currently before the Washington State Court of Appeals.)

More importantly, these emails showed that the Washington attorney general was considering joining Schneiderman by introducing a climate lawsuit as early as the fall of 2015 – at which time the latter public official was starting his own climate change investigation and, according to the Washington emails, looking for wing-men. However, Ferguson ultimately declined to move forward with his own case because there was not scientific data to support any allegations in his opinion.

Subsequently, Richard Heede of the Climate Accountability Institute, which co-hosted the infamous La Jolla conference in 2012 where Matt Pawa and Peter Frumhoff were also present, has worked to develop so-called “attribution science,” wanting no future public official to have to abandon the notion of filing a climate change lawsuit for lack of data like Attorney General Ferguson.

In fact, Heede was explicit about CAI’s purpose in 2019 column for The Guardian:

“The Climate Accountability Institute was formed in 2011 to confront fossil fuel companies.”

Since 2019, Heede has published several papers focusing on his attribution science research, possibly providing the support for a climate lawsuit that Attorney General Ferguson previously said he lacked. Interestingly, plaintiffs’ attorney Vic Sher of Sher Edling LLP, the firm serving as outside counsel for many states and municipalities that have filed climate lawsuits, seems to have claimed responsibility for Heede’s responsive contribution. In an October 2017 talk at UCLA’s law school, Sher claimed to have arranged for Heede’s updated work all the way to including the new 1965 baseline year.

Heede, meanwhile, has so far left an acknowledgement to the origins of his work out of his papers, and most of his appreciation is directed to his funder, the Union of Concerned Scientists, and the guidance of Peter Frumhoff.

UCS and Frumhoff co-chaired the 2016 “secret meeting at Harvard” with state attorneys general in attendance, “Potential State Causes of Action Against Major Carbon Producers,” at which ‘attribution’ was one of three agenda items. Frumhoff told George Mason University communications professor Ed Maibach in July 2015, “Just so you know, we’re also in the process of exploring other state-based approaches to holding fossil fuel companies legally accountable – we think there’ll likely be a strong basis for encouraging state action forward.”

Along with this week’s event, Heede’s updated and possibly Vic Sher-requested research raises the possibility that Ferguson could introduce a lawsuit, despite the faulty methodology of that research and the credibility of Heede’s financial backing.

Oregon Benefits from Bloomberg-Funded “Special Assistant Attorneys General” Program

Like Attorney General Ferguson in Washington state, among the steps Oregon Attorney General Ellen Rosenblum has taken to position the office to possibly file a climate lawsuit is bringing in a privately hired Special Assistant Attorney General (SAAG), whose salary is fully paid for by the State Energy & Environmental Impact Center (SEEIC). That is a Michael Bloomberg-funded program at the New York University School of Law that places “law fellows” into state attorney general offices to help with climate litigation and other environmental enforcement actions.

These SAAGs have played a major role in climate litigation. When announcing his lawsuit, Minnesota Attorney General Keith Ellison specifically cited the work done by two SAAGs employed by his office. These law fellows have also worked in several other state attorney general offices that have filed climate litigation, including Washington, D.C., Delaware, Connecticut, Massachusetts, and New York.

In Oregon, however, the use of SAAGs from the State Energy & Environmental Impact Center has been highly controversial. In 2018, the office of legal counsel that serves the Oregon state legislature found that Attorney General Rosenblum’s engagement of a SAAG paid for by the SEEIC runs afoul of state law. As the Washington Free Beacon reported:

“For example, Oregon law gives the attorney general wide latitude in hiring assistant attorneys, but the law also states that, ‘each assistant shall receive the salary fixed by the Attorney General, payable as other state salaries are paid.’

“The legal analysis by the legislature’s office of legal counsel obtained by the Washington Free Beacon determined that the SAAG working in the Oregon Department of Justice ‘is not receiving a salary fixed by the Attorney General, and his salary is not paid as other state salaries are paid. This arrangement does not comply with [Oregon Revised Statute] 180.140 (4).’” (emphasis added)

In fact, Attorney General Rosenblum even questioned the specifics of bringing in the privately hired SAAG before it was official, according to the Washington Free Beacon. “I find it strange to call someone who is working under our supervision with the title of SAAG and who is getting paid (by a third party) the same as he would if he were working for DOJ as a regular AAG—a volunteer,” Rosenblum wrote in an email.

Likewise, the Washington attorney general also brought in a SAAG from the SEEIC, which led the former state attorney general Ken Eikenberry to call the program “an unsettling effort that undermines the integrity of state law enforcement.”

Ties to Climate Litigation Extend Beyond Attorneys General

Other panelists who will be participating in Thursday’s program at Lewis & Clark alongside the attorneys general and CCI also have ties to the climate litigation movement, including one who works at the firm retained by the City of Seattle in 2018 when it was looking into the possibility of filing climate litigation of its own.

One of the other panelists is Deborah Kafoury, a county commissioner from Multnomah County – home to the city of Portland. She has publicly supported youth climate lawsuits in the past, announcing that the county was petitioning the Oregon Supreme Court on behalf of youth petitioners in the Chernaik v. Brown case in 2019. This announcement was the first time any government entity had publicly supported the plaintiffs’ climate litigation.

Kafoury also co-wrote an op-ed for Oregon Live with Lane County Chair Pete Sorenson in support of the youth climate case. Outside of the litigation space, she has been active in the campaign to push Multnomah County and Portland to divest from fossil fuels.

Another of Thursday’s panelists is Daniel Mensher, an attorney at Keller Rohrback – the firm retained by the City of Seattle in 2018 – who, court records show, has worked on several of the climate cases already filed over the past few years. Last spring, for example, he was listed as one of the attorneys “of counsel” in Oakland’s climate case. Prior to that, he was named in Sher Edling records as having worked on amicus briefs for the Baltimore case in September 2019, the San Mateo case in January 2019 and the Rhode Island case in 2020. These court filings show that Mensher is not a mere informed bystander to the cases but is directly involved with them and potentially serves to benefit financially, if a favorable settlement is reached by the plaintiffs in any of those cases.

Similar Events Have Been Precursors To Lawsuits

This week’s event at Lewis & Clark continues a pattern of what are presented as academic discussions, sponsored or hosted by CCI, that have preceded climate lawsuits filed by states or municipalities in the past.

In June 2019, the University of Hawai’i Richardson School of Law held an event that focused on “legal strategies and the rationale for climate impact lawsuits being pursued across the country.” It was sponsored by CCI and the Union of Concerned Scientists – as noted above, another leading force behind the climate litigation campaign. Speaking at the panel was the aforementioned plaintiffs’ attorney Vic Sher, and Ann Carlson, who previously was an environmental law professor at UCLA Law School’s Emmett Institute on Climate Change and consults for Sher Edling.

In 2020, the City and County of Honolulu filed a climate lawsuit against major energy companies while enlisting Sher Edling as outside counsel. Just a few months later, Maui followed with its own lawsuit, again hiring Sher Edling.

In October 2019, the University of Minnesota Law School hosted a similar event discussing “The Legal and Scientific Case for Recovering Climate Change Damages” where Vic Sher spoke alongside Minnesota Attorney General Keith Ellison. Then, in June 2020, Ellison filed a climate lawsuit against energy companies and has enlisted Sher Edling to help his office litigate the case.

In August 2020, Pay Up Climate Polluters, a campaign run by CCI, alongside the Union of Concerned Scientists and Monmouth University, hosted a panel discussion on “the case for climate accountability in New Jersey” where a conversation about a state-driven climate lawsuit took center stage. Just a few weeks later, the city of Hoboken filed such a case, for which the initial legal costs are being financed by the Institute for Governance and Sustainable Development – the parent organization of CCI.

Would A Northwest Climate Lawsuit Join A Losing Campaign?

Both the Washington and Oregon attorneys general have been considering a climate lawsuit for years while CCI has been one of the key activist groups supporting the litigation campaign since 2017. What’s more, this week’s event at Lewis & Clark is a near carbon copy of other discussions held at law schools around the country that have preceded the introduction of several of the active climate lawsuits. Given years of delay, why are these states deciding to resurrect their efforts now, despite a huge loss in New York in 2019 and no significant wins in any other case to date?

Such a lawsuit would join a climate litigation campaign that’s so far been a failure – all three cases decided on their merits have ended in defeat for states and municipalities – and could waste taxpayer resources on legal battles while American energy companies are working hard each day to reduce emissions and address climate change. Washington and Oregon should consider undertaking efforts that would actually help address climate change – rather looking to their past for “solutions” they were smart to leave behind in the first place.