Amicus Curiae Brief — Shell Oil Products Co., L.L.C., et al., Petitioners v. Rhode Island
Supreme Court briefJan 5, 2023
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No. 22-524
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------SHELL OIL PRODUCTS COMPANY LLC, ET AL.,
Petitioners,
v.
STATE OF RHODE ISLAND,
Respondent.
---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The First Circuit
---------------------------------♦--------------------------------BRIEF OF AMICUS CURIAE
ENERGY POLICY ADVOCATES
IN SUPPORT OF THE PETITIONERS
---------------------------------♦--------------------------------MATTHEW D. HARDIN
Counsel of Record
1725 I Street NW, Suite 300
Washington, DC 20006
(202) 802-1948
HardinLawPLLC@icloud.com
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
STATEMENT OF INTEREST OF THE AMICUS
CURIAE ............................................................
1
SUMMARY OF ARGUMENT ..............................
2
ARGUMENT ........................................................
3
I.
RECORDS DEMONSTRATE THIS CASE
IS AN ATTEMPT TO USE THE STATE
COURTS FOR FEDERAL POLICYMAKING ....................................................
7
II.
NEW INFORMATION FURTHER SUPPORTS THE LAWSUIT’S COORDINATED
NATIONAL CAMPAIGN BELONGS IN
FEDERAL COURT .................................... 16
III.
THERE IS MASSIVE RESISTANCE IN
LOWER COURTS TO THIS COURT’S
DECISIONS ................................................. 25
CONCLUSION .......................................................
28
ii
TABLE OF AUTHORITIES
Page
CASES
American Electric Power v. Connecticut, 131
S. Ct. 2527, 564 U.S. 410 (2011) ........................ 11, 15
Bd. of Cnty. Comm’rs of Boulder Cnty. v. Suncor
Energy (U.S.A.) Inc., 25 F.4th 1238 (10th Cir.
2022) ........................................................................27
BP P.L.C. v. Mayor of Balt., 141 S. Ct. 1532
(2021) ............................................................. 25, 27
City of New York v. Chevron Corp., 993 F.3d 81
(2d Cir. 2021) ...........................................................11
City of Oakland v. BP P.L.C., 325 F. Supp. 3d
1017 (N.D. Cal. 2018) ..............................................11
Kinney v. HSBC Bank USA, N.A. (In re Kinney),
5 F.4th 1136 (10th Cir. 2021) ..................................26
Mayor & City Council of Balt. v. BP P.L.C., 31
F.4th 178 (4th Cir. 2022) ................................... 25, 27
Mayor & City Council of Baltimore v. BP P.L.C.,
952 F.3d 452 (4th Cir. 2020) .......................... 2, 26, 27
Moore v. Elec. Boat Corp., 25 F.4th 30 (1st Cir.
2022) .................................................................... 2, 26
Rhode Island v. Chevron Corp., et al., No. 18-cv00395 (July 22, 2019) ................................................1
Rhode Island v. Chevron Corp. (R.I. Super. Ct.
PC-2018-4716, and D. R.I. 18-00395) .......................4
Rhode Island v. Shell Oil Prods. Co., L.L.C., 35
F.4th 44 (1st Cir. 2022) ............................................27
iii
TABLE OF AUTHORITIES—Continued
Page
Rhode Island v. Shell Oil Products Co. L.L.C., et
al., No. 19-1818 (May 23, 2022) ................................1
Rhode Island v. Shell Oil Prods. Co., L.L.C., 979
F.3d 50 (1st Cir. 2020) ...............................................2
Sant v. Liberty Mut. Ins. Co., No. 2:21-CV-00251WJ-SMV, 2021 U.S. Dist. LEXIS 133130
(D.N.M. July 16, 2021) ............................................26
Shell Oil Prods. Co., L.L.C. v. Rhode Island, 141
S. Ct. 2666 (2021) ....................................................25
State of Rhode Island v. Shell Oil Products Co.,
L.L.C., et al., Case No. 19-1818 .................................3
Suncor Energy (U.S.A.) Inc. v. Bd. of Cnty. Comm’rs
of Boulder Cnty., 141 S. Ct. 2667 (2021) ........... 25, 26
W. Va. State Univ. Bd. of Governors v. Dow Chem.
Co., 23 F.4th 288 (4th Cir. 2022) ......................... 2, 26
STATUTES
Access to Public Records Act, dated April 25,
2018, https://climatelitigationwatch.org/wpcontent/uploads/2021/01/Climate-Change-PublicNuisance-Litigation-CIA-Amendment.pdf .......... 3, 20
California Public Records Act ....................................20
Clean Air Act...............................................................12
Colorado Open Records Act ..........................................8
iv
TABLE OF AUTHORITIES—Continued
Page
OTHER AUTHORITIES
ABA Model Rule 1.8(f ) ....................................... 17, 18
Editorial, “The New Climate Litigation,” Wall
Street Journal, December 28, 2009, https://www.
wsj.com/articles/SB1000142405274870347870
4574612150621257422 ...........................................15
Geoff Dembicki, “Meet the Lawyer Trying to
Make Big Oil Pay for Climate Change,” Vice.com,
December 22, 2017, https://www.vice.com/en/
article/43qw3j/meet-the-lawyer-trying-to-makebig-oil-pay-for-climate-change) ...............................16
“Leonardo DiCaprio Foundation awards $20
million in environmental grants,” September
17, 2017 https://web.archive.org/web/2017100219
2851/https:/www.leonardodicaprio.org/leonardodicaprio-foundation-awards-20-million-inenvironmental-grants/ ............................................22
Manufacturers’ Accountability Project, “Beyond
the Courtroom: Climate Liability Litigation in
the United States,” https://mfgaccountability
project.org/wp-content/uploads/2019/06/MAPBeyond-the-Courtroom-Chapter-One.pdf...............14
Mitigating Municipality Litigation: Scope and
Solutions, U.S. Chamber Institute for Legal
Reform, March 2019, http://www.institutefor
legalreform.com/uploads/sites/1/MitigatingMunicipality-Litigation-2019-Research.pdf ...........13
v
TABLE OF AUTHORITIES—Continued
Page
Prof. Michael I. Krauss “Using Charitable Funds
to Subsidize “Legislation Through Litigation,”
Forbes, July 28, 2022, https://www.forbes.com/
sites/michaelkrauss/2020/07/28/using-charitablefunds-to-subsidize-legislation-through-litigation/
?sh=1f7098ff334 ......................................................23
Telluride Joins Lawsuit Seeking to Force Energy
Companies to Offset Climate Change, KSUT.org,
December 18, 2020, https://www.ksut.org/news/
2020-12-18/telluride-joins-lawsuit-seeking-toforce-energy-companies-to-offset-climate-change
#stream/0 .................................................................15
William Allison, “Boulder Officials: Actually,
Our Climate Lawsuit Is About Driving ‘Systems-Level Change,’ ” RealClear Energy, July
16, 2021, https://www.realclearenergy.org/2021/
07/16/boulder_officials_actually_our_climate_
lawsuit_is_about_driving_systems-level_change_
785683.html) ...........................................................15
Zoe Carpenter, “The Government May Already
Have the Law It Needs to Beat Big Oil,” The
Nation, July 15, 2015, https://www.thenation.
com/article/the-government-may-already-havethe-law-it-needs-to-beat-big-oil/ .............................12
1
STATEMENT OF INTEREST
OF THE AMICUS CURIAE1
Energy Policy Advocates (“EPA”) previously filed
an amicus brief in this matter when it was pending before the First Circuit as Rhode Island v. Chevron Corp.,
et al., No. 18-cv-00395 (July 22, 2019), and subsequently filed an amicus brief at both the petition stage
and the merits stage before this Court in Rhode Island
v. Shell Oil Products Co. L.L.C., et al., No. 19-1818 (May
23, 2022).
In those briefs, EPA highlighted records that EPA
obtained through state open records laws which illustrate the Plaintiff seeks state court jurisdiction in
pursuit of improper purposes and as the venue most
likely to support its drive to obtain what it privately
calls a “sustainable funding stream” for the state—and
thereby “transform state courts into global climatechange regulators” (Appellants’-Petitioners’ Petition
for Certiorari, ECF No. 1, at 2)—because its legislature
is not sufficiently persuaded to enact desired policies.
Since those briefs, EPA and others have obtained
additional public records highly relevant to this proceeding, shining much more light on the “coordinated
campaign” (Id.) of which this matter is a part, which
has repeatedly come before this Court and likely will
1
No counsel for a party authored this brief in whole or in
part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than Amicus Curiae EPA, its members, or its counsel
made a monetary contribution to its preparation or submission.
2
continue to do so unless and until the key questions
these suits raise are resolved.
---------------------------------♦---------------------------------
SUMMARY OF ARGUMENT
EPA wishes to support the Petition for Certiorari
because EPA hopes that this Court will ensure the
lower courts give serious consideration to the importance of federal jurisdiction, to this coordination,
and to “climate” Plaintiffs’ actual, confessed use of the
courts. Further, a campaign of “massive resistance” is
apparent in the lower federal courts to this Court’s rulings on these cases, which EPA wishes to address. Although this Court has repeatedly vacated judgments
analogous to the one at issue here, the lower courts
continue to cite their old, vacated judgments as precedent. See, e.g., W. Va. State Univ. Bd. of Governors v.
Dow Chem. Co., 23 F.4th 288, 301 (4th Cir. 2022) (citing
to the vacated opinion in Mayor & City Council of Baltimore v. BP P.L.C., 952 F.3d 452, 464 (4th Cir. 2020)
for the proposition that “even when a contract specifies
the details of the sales and authorizes the government
to supervise the sale and delivery, the simple sale of
contracted goods and services is insufficient to satisfy
the federal officer removal statute”), Moore v. Elec.
Boat Corp., 25 F.4th 30, 34 n.2 (1st Cir. 2022) (citing to
the reversed opinion in Rhode Island v. Shell Oil Prods.
Co., L.L.C., 979 F.3d 50, 59 (1st Cir. 2020) for the proposition that there must be a “nexus” between allegations in the Complaint and actions undertaken at the
behest of a federal officer).
3
As a nonprofit, EPA has no direct interest, financial or otherwise, in the outcome of the case, aside from
its interest in good governance and advocating for the
proper role of the federal judiciary. Because of its lack
of a direct interest combined with its intimate and
firsthand knowledge of the records illustrating the
above-described concerns, EPA can provide the Court
with a perspective that is distinct and independent
from that of the parties.
---------------------------------♦---------------------------------
ARGUMENT
The initial District Court discussion of the factual
background in this matter began with the blunt assessment, “Climate change is expensive, and the State
wants help paying for it.” State of Rhode Island v. Shell
Oil Products Co., L.L.C., et al., Case No. 19-1818, App.
27a. Public records now reveal more plainly than ever
that this suit is an attempt to obtain policies through
the judiciary, including the imposition of taxes which
the state legislature is not interested in enacting.
This lawsuit was listed in an “Amendment to
Confidentiality Agreement Regarding Participation in
Climate Change Public Nuisance Litigation” among
ideologically aligned state attorneys general, signed
by Rhode Island on November 26, 2019.2 That pact,
2
EPA obtained the original Agreement and Amendment
from, inter alia, Rhode Island’s Office of the Attorney General
under that state’s Access to Public Records Act. The original
Agreement was dated April 25, 2018. It may be found at
4
claiming a common interest “in one or more cases
brought, or that will be brought, in state court or U.S.
District Court, or appealed to state or federal courts of
appeal, including the highest state appellate court or
the U.S. Supreme Court” cited seven cases “referred to
herein as the ‘Litigation.’ ” That list of cases included
“Rhode Island v. Chevron Corp. (R.I. Super. Ct. PC2018-4716, and D. R.I. 18-00395).”
This pact that Rhode Island’s Attorney General
joined sets forth its objective: “The Parties to this
Agreement have a common interest in ensuring the
proper application of the federal and/or state common
law of public nuisance arising from the effects of climate change, including sea level rise.”3 This theory
kept losing in federal court, so “climate” Plaintiffs
simply rebranded and relocated their claims, first as
state nuisance claims and then into purportedly local,
consumer protection claims (still seeking nuisance
remedies). As an email sent by the Plaintiff ’s law firm
to a prospective funder of this “contingency fee” campaign acknowledged, “[o]ur co-counsel—the lawyers
for these public entities—are exceptionally creative
and dedicated.”4
https://climatelitigationwatch.org/wp-content/uploads/2021/01/
Climate-Change-Public-Nuisance-Litigation-CIA-Amendment.pdf.
3
Available at https://climatelitigationwatch.org/wp-content/
uploads/2021/01/Climate-Change-Public-Nuisance-Litigation-CIA.pdf.
4
July 22, 2017 email from Dan Emmett to UCLA Law faculty and administrators, released April 21, 2022, available at
https://climatelitigationwatch.org/wp-content/uploads/2022/12/
SherEdling-recruting-Emett-then-Carlson-recruting-Sabin.pdf.
5
Public records obtained by Energy Policy Advocates
and its counsel document members of the Plaintiff ’s
legal team, in its efforts to recruit other governmental
entities to their campaign, acknowledged their view
that state courts are the “more advantageous venue for
these cases.”5 Another member of the team echoed this
after U.S. District Judge William Alsup dismissed the
City of Oakland’s “climate nuisance” suit against many
of the same defendants in June 2018, immediately
prior to the State of Rhode Island filing its suit in
Rhode Island Superior Court, when UCLA law professor and also consultant to Plaintiff ’s counsel Sher
Edling, Ann Carlson,6 signaled the change of course,
opining that the Plaintiff ’s chances for recovery are
much better in state fora.7
Now, other public records further reveal the coordinated national campaign, showing that these suits
which claim to be a series of unrelated state actions
have in fact, throughout, been quietly underwritten as
5
See, e.g., email from a recruiter for Rhode Island counsel
Sher Edling, LLP named Seth Platt to the Mayor of Fort Lauderdale, Florida, at https://climatelitigationwatch.org/wp-content/
uploads/2019/09/GsPlatt-responds-to-Ft-Lauderdale-signalingJudge-Alsup-opinion-is-too-much-for-them.pdf.
6
Ms. Carlson’s disclosures to the University of California at
Los Angeles regarding her outside employment with Plaintiff ’s
counsel Sher Edling can be found at https://climatelitigationwatch.
org/wp-content/uploads/2021/01/Responsive-Documents-20-8525.
pdf. These records were released under California’s Public Records Act.
7
Mark Kaufman, “Judge tosses out climate suit against big
oil, but it’s not the end for these kinds of cases,” mashable.com,
June 26, 2018, https://mashable.com/article/climate-changelawsuit-big-oil-tossedout/.
6
a single body of work by private funders, to the tune of
millions of dollars to Plaintiff ’s counsel through “charitable grants” to Plaintiff ’s counsel.8
As detailed, infra, this is revealed by tax filings
juxtaposed with a candid email from the Plaintiffs’ law
firm to a potential underwriter of the litigation. That
email was then forwarded by the targeted donor to a
public law school the faculty of which were serving as
consultants to Plaintiff ’s counsel.
Public records leave little doubt that the instant
litigation seeks at least two impermissible objectives.
First, the state Plaintiff in this matter seeks to use
state courts to create or modify federal energy and environmental policy as stand-ins for the political process that has denied Plaintiff its desired policies.
Second, the state seeks to raise revenues through the
courts rather than through the proper legislative
means which, Plaintiff confesses, is not of interest to
its legislature.
Public records provide strong impetus to acknowledge, now more than ever, that this suit is but one
small part of a coordinated and improper litigation
campaign seeking to use the courts to attain political
goals denied the Plaintiffs through the political process. That this suit has returned to this Court and
other similar suits are en route are symptoms of improper “massive resistance” to this Court’s rulings by
8
This is despite being the subject of generous “contingency
fee” agreements.
7
the lower courts which also must be terminated by this
Court firmly resolving the issues at hand.
I.
RECORDS DEMONSTRATE THIS CASE
IS AN ATTEMPT TO USE THE STATE
COURTS FOR FEDERAL POLICYMAKING
As EPA previously informed this Court in earlier
amicus briefing, emails and two sets of meeting notes,
one handwritten and another typewritten, released
under public records laws, shed light on what this proceeding truly represents. These documents independently record a Rhode Island cabinet-level official
expressly acknowledging the state’s motives for pursuing this litigation, specifically its General “Assembly
[led by] very conservative leadership—doesn’t care
about env’t,” leaving the state’s executive branch
“looking for sustainable funding stream” for its spending ambitions. Both sets of notes reflect that this lawsuit was filed in “State court against oil and gas”
companies because of the executive’s “Priority—sustainable funding stream,” to fulfill certain spending
ambitions which the executive failed to convince the
voters’ elected representatives to provide through the
ordinary process of taxation.9
9
These notes are available, respectively, at https://climate
litigationwatch.org/wp-content/uploads/2020/03/Carla-Frischhandwritten-notes-EPA_CORA1505.pdf and https://climatelitigation
watch.org/wp-content/uploads/2020/03/EF-Katie-McCormack-typednotes-EPA_CORA1542.pdf. These documents are identified in an
August 20, 2019 email from Center for a New Energy Economy’s
Patrick Cummins to RBF’s Michael Northrop.
8
EPA obtained these public records from Colorado
State University under the Colorado Open Records
Act (“CORA”). The records pertain to a two-day meeting in July 2019 hosted by the Rockefeller Brothers
Fund (“RBF”) at the Rockefeller family mansion at
Pocantico, New York, styled “Accelerating State Action on Climate Change.” They include numerous
emails, agendas and attachments including a set
of handwritten notes prepared by attendee Carla
Frisch of the Rocky Mountain Institute (“RMI”), and
a second, corroborating set of typewritten notes taken
by attendee Katie McCormack of the Energy Foundation.
The 2019 RBF meeting was a forum for policy activists and a major funder to coordinate with senior
public employees.10 These included a governor’s chief of
staff, and department secretaries and their cabinet
Available at https://climatelitigationwatch.org/wp-content/
uploads/2020/03/Edited-notes-transmittal-email-CSU-suggestsSnail-mail-probably-covered-EPA_CORA1481_Redacted.pdf.
“RBF CNEE climate policy notes Jul 17 18.docx” are Katie
McCormack’s notes; these appear to be produced as document
EPA_CORA1542.pdf, derived from Ms. McCormick’s transmittal
email, in which she describes her notes as long, and 1542 consists
of 18 pages of notes; “Xerox Scan_07222019155622.pdf ’’ are Carla
Frisch’s handwritten notes (this was produced to EPA as document EPA_CORA1505.pdf ).
10
The agenda for the meeting is available at https://govover
sight.org/wp-content/uploads/2020/01/Draft-Agenda-EPA_CORA
0008-copy.pdf.
9
equivalents from fifteen states,11 including Plaintiff
Rhode Island, represented by its Department of Environmental Management Director, Janet Coit.
These meeting notes obtained by EPA contemporaneously record the comments of Director Coit discussing the instant matter among peers. One passage
in each set of notes, attributed to Coit and replicated
almost verbatim in both, illustrates that the State was
seeking to use litigation to force a change in climate
policy.
Rocky Mountain Institute’s Frisch recorded Director Coit speaking to this litigation as shown in the below excerpted image:12
11
The participant list is available at https://climatelitigation
watch.org/wp-content/uploads/2020/03/List-of-Attendees-EPA_
CORA1037.pdf.
12
This image shows the native appearance of the record
and therefore is significant independent of the text. Ms. Frisch’s
notes are available in full at https://climatelitigationwatch.org/
wp-content/uploads/2020/03/Carla-Frisch-handwritten-notes-EPA_
CORA1505.pdf.
10
The first line attributes to Director Coit the position that Rhode Island’s legislature is not persuaded of
the claims set forth by the State in this matter. It appears to also reflect Coit’s view of why the legislature
has declined to directly obtain from the taxpayer the
“sustainable funding stream” that Plaintiff desires.
These notes reflect a senior official confessing that
Rhode Island’s climate litigation is apparently a product of Rhode Island’s elected representatives lacking
enthusiasm for certain policies, including concomitant
revenue measures. Thus, rather than work with the
Rhode Island legislature to obtain such policies
through the give and take of the legislative process, the
State’s executive branch elected to “look for [a] sustainable funding stream” by “suing big oil.”
The Energy Foundation’s McCormack provided
RBF with a typewritten set of her own notes
11
transcribing the proceedings which reads on this point
almost verbatim to the recollection of Ms. Frisch.13
These notes illustrate two troubling, related aspects of the recent epidemic of “climate” litigation,
which has been channeled into state courts after the
first generation of suits were terminated by this Court
in American Electric Power v. Connecticut, 131 S. Ct.
2527, 2539, 564 U.S. 410, 426 (2011) and a second generation of suits similarly failed. City of Oakland v. BP
P.L.C., 325 F. Supp. 3d 1017 (N.D. Cal. 2018), see also
City of New York v. Chevron Corp., 993 F.3d 81 (2d Cir.
2021). Specifically, these suits seek to use the (state)
courts to stand in for (state and federal) policymakers
first by asking the state courts to substitute their authority for that of the political branches of government
at both the state and federal level on matters of climate
policy. Second, these suits seek billions of dollars in
revenues, which would ordinarily be obtained through
13
This image shows the native appearance of the record and
therefore is significant independent of the text. Ms. McCormack’s
notes are available in their entirety at https://climatelitigation
watch.org/wp-content/uploads/2020/03/EF-Katie-McCormack-typednotes-EPA_CORA1542.pdf.
12
taxation enacted by legislators, for distribution toward
political uses and constituencies.
First, the RBF meeting notes echo a comment
made to The Nation magazine by a Plaintiffs’ lawyer
credited with inventing this litigation, Matt Pawa.
“[I]t’s clear that too many lawmakers have abdicated,
thus the pressure to tackle the climate issue through
existing regulations like the Clean Air Act, and through
the courts. ‘I’ve been hearing for twelve years or more
that legislation is right around the corner that’s going
to solve the global-warming problem, and that litigation is too long, difficult, and arduous a path,’ said Matthew Pawa, a climate attorney. ‘Legislation is going
nowhere, so litigation could potentially play an important role.’ ”14
Second, this Court must confront assertions by
Rhode Island’s Coit that this new wave of state court
“climate” litigation is a grab for revenues, something
that is more properly be attained through the political
process. This litigation promises to erode the separation of powers as courts, rather than legislators, are used
to raise revenues for the executive branch to spend.
The U.S. Chamber of Commerce addressed the apparent drive, through these suits, for more governmental revenue without adopting the necessary direct
taxes for which there can be a political price to pay, in
14
Zoe Carpenter, “The Government May Already Have the
Law It Needs to Beat Big Oil,” The Nation, July 15, 2015,
https://www.thenation.com/article/the-government-may-alreadyhave-the-law-it-needs-to-beat-big-oil/.
13
a 2019 report entitled “Mitigating Municipality Litigation: Scope and Solutions.” That report highlighted:
* “For instance, local government leaders may
eye the prospect of significant recoveries as a means of
making up for budget shortfalls.”
* “Large settlements like those produced in the
tobacco litigation are alluring to municipalities facing
budget constraints.”
* “Severe, persistent municipal budget constraints
have coincided with the rise of municipal litigation
against opioid manufacturers as local governments are
promised large recoveries with no risk to municipal
budgets by contingency fee trial lawyers.”
* “Conclusion A convergence of factors is propelling municipalities to file affirmative lawsuits against
corporate entities. There is the ‘push’ factor: municipalities face historic budgetary constraints and a public inundated with news reports on the opioid crisis,
rising sea levels, and data breaches. And there is the
‘pull’ of potential multimillion dollar settlements and
low-cost, contingency fee trial lawyers. As a consequence, municipalities are pivoting to the courts by the
thousands.”15
The National Association of Manufacturers has
similarly argued that, “The towns and lawyers have
15
Mitigating Municipality Litigation: Scope and Solutions, U.S. Chamber Institute for Legal Reform, March 2019,
http://www.instituteforlegalreform.com/uploads/sites/1/MitigatingMunicipality-Litigation-2019-Research.pdf, at p. 1, 6, 7 and 18.
14
said that this litigation is solely about money. The
towns want funding for local projects, and their lawyers are working on a contingency fee basis, which
means they aren’t paid if they don’t win.”16
Rhode Island’s attempted use of the courts to attain revenue and other policy ends that have eluded it
through legislation or regulation is improper, but the
attempt also informs a conclusion that these cases
belong in federal court. Such suits should also be dismissed for reasons including the confessed policymaking purpose of the litigation.
If the Plaintiff ’s motivation to obtain and influence policy were not itself an improper use of the
courts, the proponents of this climate litigation are also
increasingly candid about the litigants’ motive to use
the pressure of this vexatious multi-front litigation to
coerce opponents to capitulate to legislative change
that they would otherwise oppose.
This is clear in yet another exemplar from public
records obtained by EPA, an email in which an official
with one municipal nuisance Plaintiff, the City of Boulder, Colorado admits that “the pressure of litigation
could also lead companies . . . to work with lawmakers
on a deal” about climate policies.17 Former Connecticut
16
Manufacturers’ Accountability Project, “Beyond the Courtroom: Climate Liability Litigation in the United States,” p. 2,
https://mfgaccountabilityproject.org/wp-content/uploads/2019/06/
MAP-Beyond-the-Courtroom-Chapter-One.pdf
17
January 5, 2018 email from Boulder Chief Sustainability
& Resilience Officer Jonathan Koehn to Alex Burness of the Boulder
Daily Camera. Available at https://climatelitigationwatch.org/
15
Attorney General Richard Blumenthal is quoted similarly describing American Electric Power v. Connecticut, 564 U.S. 410, 426 (2011), which suit he brought
before being elected to the United States Senate. “My
hope is that the court case will provide a powerful incentive for polluters to be reasonable and come to the
table . . . We’re trying to compel measures that will
stem global warming regardless of what happens in
the legislature.”18 This Court cannot sanction the use
of the courts to force legislative change, and it should
be especially zealous in protecting federal policies and
legislation from being forced by actions taken in various state court systems.19
boulder-official-climate-litigation-is-tool-to-make-industry-benda-knee/.
18
Editorial, “The New Climate Litigation,” Wall Street Journal,
December 28, 2009, https://www.wsj.com/articles/SB100014240
52748703478704574612150621257422.
19
Another Boulder official is on record describing its companion suit to the instant matter as one way to “drive more
fundamental systems change” (William Allison, “Boulder Officials: Actually, Our Climate Lawsuit Is About Driving ‘SystemsLevel Change,’ ” RealClear Energy, July 16, 2021, https://www.
realclearenergy.org/2021/07/16/boulder_officials_actually_our_
climate_lawsuit_is_about_driving_systems-level_change_785683.
html). One of its attorneys acknowledges the lawsuit seeks what
an interviewer summarized as a “secondary aim,” to “also shift
behavior” “Whether that’s cutting back on the harmful activities,
and/or to raise the price of the products.” Telluride Joins Lawsuit
Seeking to Force Energy Companies to Offset Climate Change,
KSUT.org, December 18, 2020, https://www.ksut.org/news/202012-18/telluride-joins-lawsuit-seeking-to-force-energy-companiesto-offset-climate-change#stream/0 quoting Boulder attorney
Marco Simons. Another lawyer behind some of the earlier suits
boasted that suits have “the potential really to bring down the
16
The records EPA has obtained support its concern
that the courts are being exploited to balance municipal/state budgets, to erode the separation of power between branches of state governments, and to make
policy decisions that both state and federal legislators
have declined to make. Further, new information from
public records shows that the “contingency fee” arrangements at issue in this litigation are a mirage and
obfuscate the true policymaking purpose and funding
of these suits, adding a further troubling element to
this coordinated national litigation campaign.
This Court should grant certiorari and reverse the
judgment below to guard against this improper use of
the judiciary.
II.
NEW INFORMATION FURTHER SUPPORTS
THE LAWSUIT’S COORDINATED NATIONAL
CAMPAIGN BELONGS IN FEDERAL COURT
EPA and other parties have obtained further information supporting the position that the Plaintiff ’sAppellee’s cause of action seeks to influence policy
as “part of a coordinated campaign” (Defendants’Appellants’ Notice of Removal, ECF No. 1, at 2), which
is thereby properly before the federal courts and not a
local matter of state statutory or common law. This
fossil fuel companies” while dreaming of a “massive settlement”
(Geoff Dembicki, “Meet the Lawyer Trying to Make Big Oil
Pay for Climate Change,” Vice.com, December 22, 2017,
https://www.vice.com/en/article/43qw3j/meet-the-lawyer-tryingto-make-big-oil-pay-for-climate-change).
17
includes records showing common financing of the lawyers filing these suits to the tune of millions of dollars,
despite the lawsuits all being nominally the subject of
generous “contingency fee” agreements which by their
terms strongly suggest they are the compensation for
the work.20 EPA wishes to make the Court aware of
this background.
Public record productions reveal at least two charitable foundations are financing this class of governmental “climate” litigation, of which the instant matter
is part, with charitable contributions to achieve policy
aims. Public records show one of these groups is Resources Legacy Fund (“RLF”), a non-profit dedicated to
achieving policy outcomes. “We are a 501(c)(3) nonprofit
organization that partners with leaders in philanthropy, communities, government, science, and business to promote smart policies and secure equitable
public funding for the environment, climate change resilience, and healthy communities.”21 Coincident with
20
In pursuit of this coordinated national campaign, counsel
for governmental Plaintiffs gain admission to the local courts Pro
Hac Vice, in all of which jurisdictions the local rules apply including, where applicable, the local equivalent of ABA Model Rule
1.8(f ) “A lawyer shall not accept compensation for representing
a client from one other than the client unless: (1) the client gives
informed consent.”
21
https://resourceslegacyfund.org/our-cause-values/. See also
“A fiscally sponsored project of New Venture Fund, the Collective
Action Fund for Accountability, Resilience, and Adaptation
[which] makes charitable grants that enable cities, counties, and
states hard hit by climate change to file high-impact climate damage and deception lawsuits represented by expert counsel.”
https://hewlett.org/grants/new-venture-fund-for-the-collective-
18
the advent of these climate lawsuits, RLF began reporting in its annual Internal Revenue Service (“IRS”)
filings “charitable grants” of millions of dollars to
Plaintiff ’s law firm. Each year RLF declared an environmental purpose for these gifts. Other records released in public records litigation confirm that these
contributions finance the states’ and municipalities’
climate litigation in various iterations.22 The expenditures are apparently managed by the grantor.23
action-fund-for-accountability-resilience-and-adaptation/. See also
https://www.macfound.org/grantee/new-venture-fund-43535/,
“This award supports NVF’s Collaborative Action Fund for Accountability, Resilience, and Adaptation (CAF), which supports
precedent-setting lawsuits to hold major corporations accountable for costs associated with the effects on climate of their pollutants. The award renews support for legal processes associated
with a variety of lawsuits filed in support of states, counties and
cities affected by climate change.”
22
Regardless of whether this reflects any intention to obscure the group’s financing of these suits out of concern over particular rules of professional conduct such as the ABA Model Rule
of Professional Conduct 1.8(f ) (supra), public records now confirm
that these monies paid by RLF of between $5.25 million and $7.65
million to Rhode Island’s counsel over the first four years of filing
these suits, from the year litigation first commenced through
2020, are to bring this and those other lawsuits.
23
In Form I (Part IV, Supplemental Information) for additional explanation RLF reports (CAPS in original), “RLF
GRANTS INCLUDE REQUIREMENTS FOR PERIODIC REPORTS RECONCILING GRANT ACTIVITIES, PROGRESS,
AND OUTCOMES WITH GRANT OBJECTIVES, AS WELL AS
A RECONCILIATION OF GRANT EXPENDITURES WITH THE
PROPOSAL BUDGET. IN ADDITION, STAFF MAINTAINS
CONTACT WITH GRANTEES AND PERIODICALLY CONDUCTS FIELD VISITS FOR SIGNIFICANT PROJECTS.”
19
Sher Edling, LLP, is the law firm that has filed the
overwhelming majority of these “climate” lawsuits
against the same and similarly situated defendants
since 2017, including Rhode Island’s July 2018 lawsuit
that is again before this Court. In its IRS Form 990 for
the year 2017, RLF listed a charitable grant to Sher
Edling, LLP in the amount of $432,129 for “Land or
Marine Conservation.”24 RLF’s 2018 990 reports a
$1,319,625 charitable grant to Sher Edling, LLP, this
time claiming a different purpose, of “Advancing
Healthy Communities.”25 RLF’s 2019 990 reports a
$1,110,000 in a charitable grant to Sher Edling, LLP,
this time for another stated environmental purpose,
“Land or Marine Conservation Promotion of Education
and/or Healthy Communities.”26 RLF’s 2020 990, released in 2022, reported a $2,394,000 charitable grant
to Sher Edling, LLP, this time for the same stated environmental purpose as a previous year, “Land or Marine Conservation Promotion of Education and/or
Healthy Communities.”27
Further details have recently emerged. In late
April 2022, the public interest group Government
Accountability & Oversight obtained records in
24
https://resourceslegacyfund.org/wp-content/uploads/2018/
11/RLF_990_2017.pdf, Schedule I, Part II.
25
https://resourceslegacyfund.org/wp-content/uploads/2020/
03/RLF-IRS-Final-990-12.31.18-Public-Copy-4829-6612-8044.pdf.
26
https://resourceslegacyfund.org/wp-content/uploads/2021/
02/RLF-Public-Copy-IRS-Form-990-12.31.19-4824-7483-1056.pdf.
27
https://resourceslegacyfund.org/wp-content/uploads/2022/
03/RLF-2020-IRS-Form-990-Public-Copy-Amended.pdf.
20
California Public Records Act litigation against the
University of California. Among these were correspondence from Sher Edling, LLP, to a prospective donor asking if that individual could support the firm’s
climate nuisance lawsuits. The email confirmed that
the contingent fee litigation was actually being privately underwritten through something the firm’s representative called the “Collective Action Fund.”
Specifically, Sher Edling’s Chuck Savitt wrote on July
19, 2017, in pertinent part:
“Dear Dan, Wanted to let you know that we
filed the first three law suits supported by the
Collective Action Fund on Monday. These
precedent setting cases call on 37 of the
world’s leading fossil fuel companies to take
responsibility for the devastating damage sea
level rise—caused by their greenhouse gas
emissions—is having on coastal communities.
The suits were filed in California Superior
Court on behalf of the City of Imperial Beach
and the Counties of Marin and San Mateo. . . .
We will keep you up to date as the cases move
forward and as we file additional cases. Dam
[sic], can we find a time to continue our conversation about your possible support for the
project? And it would be great to have you
meet Vic Sher.”28
28
See fn. 4.
21
The recipient, Dan Emmett, forwarded this email
to the University of California at Los Angeles
(“UCLA”) School of Law.29 Mr. Emmett wrote, inter
alia, “Chuck Savitt who is heading this new organization behind the lawsuits has been seeking our support.
Terry Tamminen in his new role with the DiCaprio
Foundation has been a key supporter. I don’t know how
realistic this approach is from a practical and legal
point of view though I respect the good intentions and
the message. I am wondering what you or any of your
group thinks about the viability of this approach and
these suits? Or if you know Vic Sher.”30 Prof. Ann Carlson wrote back, inter alia, “I am serving—along with
Terry—on a committee advising the Plaintiffs’ lawyers
so I definitely have thoughts about this. Generally I
think it’s high-quality litigation but with a very uncertain outcome given its novelty.”
In February 2018, Carlson wrote again to Emmett
asking, “Do you think Andy [Sabin] would have any interest in helping to finance the nuisance litigation? I
was on a call with the lawyers today (Vic Sher and
team) and continue to be very impressed with them.
Would you be willing to reach out to him or do you
think it would be OK if I did? Or we could jointly?” Id.
Emmett replied to Carlson in pertinent part, “You can
29
https://climatelitigationwatch.org/wp-content/uploads/2021/
03/Carlson-reporting-forms-Responsive-Documents-20-8525.pdf.
30
See correspondence at https://climatelitigationwatch.org/
wp-content/uploads/2022/12/SherEdling-recruting-Emett-thenCarlson-recruting-Sabin.pdf.
22
tell [Sabin] Terry’s organization and I are both serious
supporters.” Id.
A search of the Wayback Machine (Archive.org) reveals that, months before, “Terry”—Tamminen, the
then-chief executive officer of one organization channeling money to the lawsuits—acknowledged that his
group’s “grant” to “The Collective Action Fund (Resources Legacy Fund) [was] to support precedent-setting legal actions to hold major corporations in the
fossil fuel industry liable for the effects of climate
change pollution”31 (emphasis and RLF parenthetical
in original). This was deemed necessary because of “a
lack of political leadership” to enact the desired policies. Id. That Fund then made those “charitable
grants” to Plaintiff ’s counsel totaling millions of dollars, which increased in amount as the number of suits
filed also increased.
In July 2020, in the face of some of the above-cited
990 information suggesting that this might be occurring, a law professor at George Mason University
School of Law took notice of these payments in the context of another “consumer protection” climate lawsuit
against oil companies by Sher Edling, LLP, on behalf
31
“Leonardo DiCaprio Foundation awards $20 million in environmental grants,” September 17, 2017 https://web.archive.org/
web/20171002192851/https:/www.leonardodicaprio.org/leonardodicaprio-foundation-awards-20-million-in-environmental-grants/.
See also “Highlighted grantees include: . . . The Collective
Action Fund (Resources Legacy Fund): to support precedentsetting legal actions to hold major corporations in the fossil fuel
industry liable for the effects of climate change pollution.” Id.
23
of the District of Columbia. Professor Michael Krauss’s
commentary raised serious tax and public policy consequences should this suspicion bear out (as it now has
with the release of additional public records).32 Subsequently, RLF’s 2020 990 added an entry for the first
time listing Sher Edling, LLP as an independent contractor, indeed now its “highest compensated independent contractor,” with fees paid in an amount
identical to the “charitable grant for Land or Marine
Conservation Promotion of Education and/or Healthy
Communities” for that year, $2,394,000. Remarkably,
this entry was for “Consulting.” This brought the total
sent to the law firm for just that most recent year released to $4,788,000.
EPA previously sought any public records submitted to these governmental Plaintiffs by their law firm
reflecting any such disclosures about this extant financing, for which the Plaintiffs nonetheless promised
extremely generous “contingency fees” to file these
lawsuits. For example, EPA obtained the package filed
by Minnesota Attorney General Keith Ellison in an
application seeking approval for the contract engaging Sher Edling, LLP from the Minnesota Legislative
Advisory Commission. These records, available at
https://govoversight.org/wp-content/uploads/2021/01/
AGO-LAC.pdf, contain no disclosure that the firm is
32
Prof. Michael I. Krauss “Using Charitable Funds to Subsidize “Legislation Through Litigation,” Forbes, July 28, 2022,
https://www.forbes.com/sites/michaelkrauss/2020/07/28/usingcharitable-funds-to-subsidize-legislation-through-litigation/?sh=
1f7098ff3342.
24
being compensated for the litigation by a party other
than the client, which promised the firm “16.67% of the
first $150 million recovered, and 7.5% for any portion
greater than $150 million.”33 In fact, the records suggest that this contingency fee to be paid out of alleged
taxpayer damages is the compensation for the representation. The public record reveals no reason to believe that that Office of the Attorney General informed
the Legislative Advisory Commission that it had any
knowledge prior to signing that agreement that the
law firm was already being paid substantial sums by a
private foundation to file these lawsuits, raising the
question whether it knew and failed to report this disclosure, or the disclosure was not made. To date, records indicate that only one governmental Plaintiff,
Anne Arundel County, Maryland, has any records reflecting knowledge of this arrangement. Although the
County will not release the email in question which
references RLF, it describes the email in an affidavit
as being dated eight weeks before the County filed
its version of the instant suit.34 Other governmental
33
Id., reflecting $25 million of the first $100 million, 15% of
the next $50 million, “plus seven and one-half percent (7.5%) of
the amount of the Net Monetary Recovery greater than one hundred fifty million dollars ($150,000,000) (San Francisco City and
County), https://climatelitigationwatch.org/wp-content/uploads/
2018/12/SF-CC-2018-11-20-Legal-Services-Agreement-SF-SE-ABFINAL-EXECUTED.pdf.
34
Letter from Anne Arundel County available here,
https://climatelitigationwatch.org/wp-content/uploads/2022/12/
Letter-to-R.-Schilling-MPIA-Response-00367084xA76A4.pdf. Affidavit available here http://epadvocates.org/wp-content/uploads/
2022/08/Exhibit-B-Affidavit-of-Custodian-00374196xA76A4.pdf.
25
climate Plaintiffs have all indicated they have no records mentioning Resources Legacy Fund.
This information further affirms that a vexatious
multi-front litigation campaign of which the instant
suit is a part is in fact a national, coordinated campaign that belongs in federal court.
III. THERE IS MASSIVE RESISTANCE IN
LOWER COURTS TO THIS COURT’S DECISIONS
This Court previously vacated and reversed a slew
of lower Court decisions for reconsideration in light of
its prior rulings in BP P.L.C. v. Mayor of Balt., 141 S. Ct.
1532 (2021). Specifically, this Court remanded for further consideration in Suncor Energy (U.S.A.) Inc. v. Bd.
of Cnty. Comm’rs of Boulder Cnty., 141 S. Ct. 2667
(2021) (vacating and remanding a 10th Circuit Opinion), Shell Oil Prods. Co., L.L.C. v. Rhode Island, 141
S. Ct. 2666 (2021) (vacating and remanding a 1st Circuit opinion), and of course in BP P.L.C. v. Mayor of
Balt., 141 S. Ct. 1532, 1543 (2021) (“The judgment of
the Fourth Circuit is vacated, and the case is remanded
for further proceedings consistent with this opinion.”).
The Fourth Circuit even acknowledged that when
the Supreme Court vacates a prior Circuit Court opinion, “because the Supreme Court vacated the entirety
of our prior opinion, it has no precedential effect.”
Mayor & City Council of Balt. v. BP P.L.C., 31 F.4th
178, 228 (4th Cir. 2022). Nevertheless, and despite this
open acknowledgment that vacated opinions cannot
26
be used as precedent, Circuit Courts across the country
continue to cite pre-Baltimore precedent to come to
pre-Baltimore outcomes. This Court must step in to
once again make clear that its decisions are binding,
and that when lower Court decisions are vacated, they
cannot be used as precedent for future litigants.
Despite its admissions that the Supreme Court
“vacated the entirety” of its opinion, the Fourth Circuit
recently cited that opinion as binding precedent in W.
Va. State Univ. Bd. of Governors, 23 F.4th at 301. In
that opinion, the Fourth Circuit held that it had “clarified [in its prior, vacated opinion] that even when a
contract specifies the details of the sales and authorizes the government to supervise the sale and delivery,
the simple sale of contracted goods and services is insufficient to satisfy the federal officer removal statute.”
Id. The First and Tenth Circuits are similarly citing to
prior, vacated opinions in order to reach desired results. For example, the First Circuit cited its vacated
opinion in Shell Oil Products Co. in Moore v. Elec. Boat
Corp., 25 F.4th 30, 34 n.2 (1st Cir. 2022). And Tenth
Circuit cited its vacated opinion in Kinney v. HSBC
Bank USA, N.A. (In re Kinney), 5 F.4th 1136, 1141
(10th Cir. 2021). District Courts have gone even further to cite vacated decisions as precedent in order to
obtain desired outcomes. Perhaps most emblematic of
the District Court decisions is Sant v. Liberty Mut.
Ins. Co., No. 2:21-CV-00251-WJ-SMV, 2021 U.S. Dist.
LEXIS 133130, at *8 (D.N.M. July 16, 2021), in which
the District of New Mexico cited Suncor for the
27
proposition that “There is a presumption against the
exercise of removal jurisdiction . . . ”
This Court has expressly left open the questions
that the lower courts attempt to foreclose. Indeed, in
BP P.L.C. v. Mayor of Balt., 141 S. Ct. 1532, 1541
(2021), this Court even noted that confusion appeared
to arise in the lower courts because “a number of courts
of appeals had already interpreted the prior version” of
the relevant statute, rather than interpreting and applying the extant version of that statute. Unfortunately, history is now repeating itself: On remand,
rather than applying the precedents of this Court and
allowing the parties to litigate federal claims in federal
court, the lower courts are applying their own strained,
pre-Baltimore reasoning to come to their desired preBaltimore result. It is hardly a coincidence that in Bd.
of Cnty. Comm’rs of Boulder Cnty. v. Suncor Energy
(U.S.A.) Inc., 25 F.4th 1238 (10th Cir. 2022), Mayor &
City Council of Balt. v. BP P.L.C., 31 F.4th 178 (4th Cir.
2022), and Rhode Island v. Shell Oil Prods. Co., L.L.C.,
35 F.4th 44 (1st Cir. 2022), the respective circuit courts
all came to an identical conclusion to the conclusion
that was vacated (albeit with slightly different reasoning).
This Court should grant certiorari and reverse to
enforce its own precedents.
---------------------------------♦---------------------------------
28
CONCLUSION
Public records and subsequent litigation activity
demonstrate the need for this Court to confront the expanding tsunami of “climate nuisance” litigation. Such
suits are not only a grab for revenue and other desired
policies that have eluded parties through the political
process, but demean the federal judiciary by attempting to seek such federal policies in state court. This
Court should grant certiorari to make clear that federal courts are the proper forum to obtain a ruling relating to federal energy and environmental policy
matters, and to ensure that courts at both the state
and federal level are perceived to rule on such issues
in accordance with the law rather than based on apparent or anticipated biases.
Respectfully submitted,
MATTHEW D. HARDIN
Counsel of Record
1725 I Street NW, Suite 300
Washington, DC 20006
(202) 802-1948
HardinLawPLLC@icloud.com
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.