Supporters of the national climate litigation campaign had high hopes for 2022, but it was another disappointing year for an effort that has yet to win in court and continues to struggle from further revelations of secret coordination and funding. Much of the campaign’s focus over the last year was working with lawmakers in Washington DC, but this beltway strategy faltered in the face of transparency.
Hollywood Funding for Climate Litigation
The biggest bombshell story of 2022 came from Fox News reporting which exposed Hollywood celebrity Leonardo DiCaprio as an integral part of the climate litigation campaign from the very beginning. Working with academics at UCLA, DiCaprio’s non-profit was revealed to be funneling financial resources to Sher Edling, the for-profit plaintiffs’ law firm that is leading the litigation charge in courts across the country. Fox News reported in August:
“Leonardo DiCaprio’s non-profit foundation awarded grants to a dark money group which, in turn, funneled money to a law firm spearheading climate nuisance lawsuits nationwide,” according to emails reviewed by Fox News Digital.
The emails, obtained via open records litigation after a two-year legal battle in California, show that the funding from DiCaprio, the MacArthur Foundation, JPB Foundation, and other major foundations was funneled through the “Collective Action Fund for Accountability, Resilience and Adaptation” – a fiscal sponsorship of the Resources Legacy Fund and later the New Venture Fund.
In addition to raising significant legal and ethical questions around DiCaprio’s supposed non-profit, Fox News’ reporting further demonstrates that the climate litigation campaign is a coordinated, national effort, rather than a loose collection of state and local cases. Learn more about this financial support here.
Oversight Committee: No “Bombshells” in Dud Report
Fourteen months and a million-plus documents later, the outcome of the House Oversight and Reform Committee’s investigation turned out to be a giant nothingburger. The report landed on a Friday afternoon in December, without a press conference and little fanfare, just weeks before Democrats exit the majority.
Rep. Ro Khanna, the top Democrat leading the investigation, told E&E News that the report would not “break through” with the public, and even the Center for Climate Integrity (CCI), an activist group pushing climate litigation, admitted the investigation hadn’t turned up any “bombshells.” Instead, the released internal company documents merely highlighted the obvious fact that oil and natural gas companies want to continue producing oil and natural gas.
Underscoring the fact that there is no “there” there, activists working closely with Capitol Hill staff reported in late December that the Oversight Committee has killed off any future plans for the investigation once the Democrats forfeit control of the House next month. The committee no longer plans to share the companies’ documents with the Senate for purposes of continuing the investigation nor will it “send letters to the U.S. Justice Department or the White House requesting that the investigation continue.”
As Americans faced a historic energy crisis and gasoline prices hit record highs, the committee built its investigation on vilifying the industry for producing oil and natural gas. During the October 2021 hearing with industry executives, Rep. Khanna called on the CEOs to commit to lowering oil production, even asking them if they were “embarrassed” about producing oil. Yet, just months later, Rep. Khanna reversed course and told Bloomberg that energy companies need to increase production to help bring down rising energy costs. When gas prices hit record highs over the summer, he doubled down on the mixed messages, demanding companies produce more oil while threatening tax hikes that would have the opposite effect. Read more about this report here.
Activist Coordination
From the start of its investigation, the Oversight Committee relied heavily on activist groups. Ahead of the October 2021 hearing, Rep. Khanna told The Hill that the committee worked to replicate the 1990s tobacco hearings and partnered with former staffers of Rep. Henry Waxman (D-Calif.), which RealClearPolitics later confirmed to be leaders of an Arabella Advisers-funded group called Co-Equal, who supported the committee’s investigation.
What’s more, additional reporting this year established that the committee also coordinated with well-known academics supporting activist and legal action against energy companies, including Harvard researcher Naomi Oreskes, who organized the infamous La Jolla conference; Geoffrey Supran, Oreskes’ colleague at Harvard; and Robert Brulle, Director of Brown University’s Climate Social Science Network.
Many of Rep. Khanna’s statements leading up to the release of the report seemed to serve as signals to the network of academics, activists, and attorneys promoting climate lawsuits and other anti-energy policies, including telling E&E News that the report could “for the next 10 years pave the way for a lot of activism around the country,” raising questions about the committee’s use of time and resources. As noted above, however, the committee seems to have at least partially reversed course, deciding against extending the investigation’s lifespan. Dive in deeper on the coordination here.
In the States: More Coordination in New Jersey, a Surrender in Baltimore County, and Secrets in Annapolis
This activism and coordination was also evident in litigation campaigns across the states.
New Jersey Attorney General Matthew Platkin filed a climate lawsuit in October, just weeks after being confirmed by the state legislature – revealing the likely close coordination with activists who successfully encouraged Platkin to join the chorus of climate suits across the country. Unsurprisingly, Platkin hired Sher Edling, the San Francisco-based law firm that represents dozens of states and municipalities in their climate suits on a contingency fee basis, to serve as outside counsel.
The state of New Jersey has also been a longtime recruitment target of CCI, and as Platkin was about to kick off his press conference announcing the case, CCI was quick to tout the news, tweeting nearly in sync with the attorney general’s office. Given how quickly the lawsuit progressed once Platkin was confirmed as attorney general, it raises questions about whether third parties helped craft the 200-page complaint. More on these questions here.
Meanwhile, strong bipartisan opposition from the Baltimore County Council quickly sank a proposed contract with Sher Edling to pursue climate litigation backed by the county’s Office of Law after council members characterized such an approach as a play to enrich plaintiffs’ attorneys while providing no meaningful public good.
Below is just some of the bipartisan criticism directed towards a potential suit from council members:
Read more on this rejection here.
And government officials in Annapolis, Maryland are now refusing to disclose how much the city will pay Sher Edling if the court awards the city a favorable verdict, raising two key questions: Why are Annapolis Mayor Gavin Buckley and his top administration officials refusing to disclose this information to the public? And what specific information are they hiding? Read more on these questions here.
SCOTUS Petition Puts Biden Admin in a Difficult Spot
Colorado municipalities’ lawsuit against energy companies reemerged in the national spotlight this year, after the companies appealed a Tenth Circuit decision to the U.S. Supreme Court, asking it to once and for all provide clarity on whether these cases should progress in state or federal court – an issue that has plagued the litigation since the start.
Although the high court was expected to grant or deny review of the petition at the start of the term in September or October, it instead requested (i.e., demanded) the opinion of the U.S. Solicitor General – a potentially positive development for the companies. As explained by law firm Arnold & Porter, such a request “means that at least four justices were interested enough to ask the SG to weigh in—the same number of votes it takes for the Court to grant review.”
Notably, this is not the first time the Supreme Court has considered issues relating to this suite of cases against energy producers. In 2021, the high court reviewed a very narrow question on technical appellate review rules in Baltimore’s case, which resulted in a win for the industry.
While the DOJ’s brief on the Boulder petition doesn’t have a due date, some speculate it could come by January. A decision on the cert petition from SCOTUS would likely come a few months later. Read more on the impending brief from the Solicitor General and SCOTUS decision on the petition here.
Climate Activism’s Illegal Activity
2022 also highlighted the illegal activity of leading anti-oil and natural gas activist groups, as well as the origin of the funds supporting these activities.
A recent TIME article detailed how Extinction Rebellion, a UK-based anti-oil and natural gas group, was planning “to do something illegal” as part of a protest in New York City. Tactics like these are also deployed by another UK-based activist organization, Just Stop Oil, which has made headlines for vandalizing artwork and blocking a major highway in the UK, leading to arrests and prison sentences.
Reporting from The New York Times revealed that Just Stop Oil and Extinction Rebellion both receive major financial support from the U.S.-based Climate Emergency Fund (CEF). These actions do not align with the rhetoric coming from CEF, where leaders have gone to great lengths to publicly claim that, as a 501(c)(3) non-profit charitable organization, they only fund legal activities.
Moreover, a recent poll shows these types of tactics do far more to hurt climate efforts than help. Explore more on this illegal activity here.
Activists Hold Strategy Meeting at Harvard
Ten years after the infamous 2012 La Jolla conference, where the legal and PR strategy for the climate litigation campaign was mapped out, a similar collection of activists convened at Harvard University in September to devise new plans to support and expand climate litigation.
The gathering, led by Harvard staff members Geoffrey Supran and Naomi Oreskes, who helped organize the La Jolla conference, “attempt[ed] to take climate accountability research to the next level,” as reported by the Boston Globe. Supran told the newspaper that the goal of the gathering was to foster “unprecedented levels of research collaboration.”
While the first day of the two day conference was a closed door session, the second included a public conversation, during which supporters of climate litigation discussed ways of “widening the lens of climate accountability.” Jennifer Jacquet, an environmental studies professor at NYU, called out specific academics and made the ironic claim that they are backed by special interests. Jessica Wentz, a senior fellow at Columbia Law’s Sabin Center, encouraged the use of legal tools to seek “accountability” for individuals, such as executives or other representatives of energy companies, despite the group’s stated concern about threats to free speech.
Support for the Harvard conference was obscure as usual – regarding who hosted and funded the event, Oreskes said during the public conversation, “Thanks to Harvard who doesn’t really know it hosted this. No, just kidding.”
Bottom Line: Just twelve months ago, 2022 was billed as a banner year for the climate litigation campaign against American oil and natural gas producers. Instead, it ends with an embarrassing whisper. Despite the massive amount of time, money, and resources being put into the movement from activist groups and their allies on Capitol Hill and in Hollywood, climate litigation largely fails when put to the test, leaving activists with only media-spin and mudslinging.