Amicus Curiae Brief — Suncor Energy (U.S.A.) Inc., et al., Petitioners v. County Commissioners of Boulder County, et al.

No. 25-170

In the

Supreme Court of the United States

SUNCOR ENERGY (U.S.A.) INC., et al.,

Petitioners,

v.

COUNTY COMMISSIONERS OF

BOULDER COUNTY, et al.,

Respondents.

On Writ of Certiorari to the

Supreme Court of Colorado

BRIEF OF AMICUS CURIAE

GOVERNMENT ACCOUNTABILITY &

OVERSIGHT IN SUPPORT OF PETITIONERS

Christopher C. Horner

1725 I Street NW

Suite 300, PMB 2094

Washington, DC 20006

Matthew D. Hardin

Counsel of Record

Hardin Law

101 Rainbow Drive, PMB 11506

Livingston, TX 77399

(202) 802-1948

matt@matthewhardin.com

Counsel for Amicus Curiae

392837

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

STAT EM EN T OF IN T EREST OF T H E

AMICUS CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I.

THE CONSTITUTIONAL STRUCTURE

DEMANDS FEDERAL JURISDICTION

OVER CLAIMS OF NATIONAL SCOPE . . . . .8

II. RECORDS AND PUBLIC STATEMENTS

DEMONSTRATE THIS CASE IS AN

AT T EM P T T O USE T H E S TAT E

COURTS TO IM POSE NATIONA L

POLICY OUTCOMES . . . . . . . . . . . . . . . . . . . . 12

III. N EW IN FOR M AT ION FU RT H ER

S U P P O R T S T H E L AW S U I T ’ S

COORDINATED NATIONA L

CAMPAIGN BELONGS IN FEDERAL

COURT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

ii

TABLE OF CITED AUTHORITIES

Page

Cases

American Electric Power v. Connecticut,

564 U.S. 410 (2011) . . . . . . . . . . . . . . . . . . . 9, 12, 17, 24

Boyle v. United Technologies Corp.,

487 U.S. 500 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

City of New York v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021) . . . . . . . . . . . . . . . . . . . 10, 17

City of Oakland v. BP P.L.C.,

325 F. Supp. 3d 1017 (N.D. Cal. 2018) . . . . . . . . 5, 7, 17

Connecticut v. Am. Elec. Power Co.,

582 F.3d 309 (2d Cir. 2009), rev’d on other grounds,

564 U.S. 410 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Cnty. Comm’rs of Boulder Cnty. v.

Suncor Energy (U.S.A.), Inc.,

2025 CO 21, 586 P.3d 161 . . . . . . . . . . . . . . . . . . . . . 2, 4

Cnty. of San Mateo v. Chevron Corp.,

294 F. Supp. 3d 934 (N.D. Cal. 2018) . . . . . . . . . . . . . . 5

District of Columbia v. ExxonMobil Corp.,

No. 2020 CA 002892 B (D.C. Super. Ct. filed

Jun. 25, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

iii

Cited Authorities

Page

Erie R.R. Co. v. Tompkins,

304 U.S. 64 (1938) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) . . . . . . . . . . . . . . . . . . . . 10

Minnesota v. Am. Petroleum Inst.,

No. 20-cv-1636 (D. Minn. filed Jun. 24, 2020) . . . . . . 5

Texas Industries, Inc. v. Radcliff Materials, Inc.,

451 U.S. 630 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Statutes

Clean Air Act, 42 U.S.C. § 7401 et seq. . . . . . . . . . . . . . . .9

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12

28 U.S.C. § 1441 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12

Model Rules of Prof’l Conduct r. 1.8(f) . . . . . . . . . . 25, 27

Other Authorities

William Allison, “Boulder Officials: Actually, Our

Climate Lawsuit Is About Driving ‘SystemsLevel Change,’” RealClear Energy, Jul. 16, 2021 . . . . 22

iv

Cited Authorities

Page

“Can State Courts Set Global Climate Policy?,”

Federalist Society, Oct. 8, 2025 . . . . . . . . . . . . . . . . . 13

Zoe Carpenter, “The Government May Already

Have the Law It Needs to Beat Big Oil,” The

Nation, Jul. 15, 2015 . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Geoff Dembicki, “Meet the Lawyer Trying to Make

Big Oil Pay for Climate Change,” Vice.com, Dec.

22, 2017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Editorial, “The New Climate Litigation,” Wall

Street Journal, Dec. 28, 2009 . . . . . . . . . . . . . . . . . . . 24

Lea Giotto, “Contradictions Mount as Lawyer for

Colorado Climate Lawsuits Struggles to Defend

His Role,” Energy in Depth, Aug. 15, 2018 . . . . . . . . 14

Mark Kaufman, “Judge tosses out climate suit

against big oil,” Mashable, Jun. 26, 2018 . . . . . . . . . . 7

Michael I. Krauss, “Using Charitable Funds to

Subsidize ‘Legislation Through Litigation,’”

Forbes, Jul. 28, 2020 . . . . . . . . . . . . . . . . . . . . . . . 25, 31

Letter from Rep. Jim Jordan, Chairman, House

Comm. on the Judiciary, to Vic Sher, Partner,

Sher Edling LLP (Apr. 28, 2026) . . . . . . . . . . . . . . 7, 25

Heather Mac Donald, “The Climate Litigation

Swindle,” City Journal, Spring 2026 . . . . . . . . . . . . . . 6

v

Cited Authorities

Page

Francis Menton, “‘Stupidest Litigation’ Update,”

Manhattan Contrarian, Sept. 2, 2025 . . . . . . . . . . . . 10

Mitigating Municipality Litigation: Scope and

Solutions, U.S. Chamber Institute for Legal

Reform, Mar. 2019 . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

Kamden Mulder, “Lawyer Behind Colorado Climate

Suit Says the Quiet Part Out Loud: Litigation Is

a Tax on Oil Companies and Consumers, “Nat’l

Rev. (Oct. 20, 2025). . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Press release, “Leonardo DiCaprio Foundation

awards $20 million in environmental grants” . . . . . 31

Mandi Risko, “Recently Obtained Contracts Show

NJ, Chicago Plan to Pay Millions to DarkMoney Backed Law Firm,” Energy in Depth,

July 23, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Joe Schoffstall & Thomas Catenacci, “Group Leo

DiCaprio funneled grants through to fund climate

lawsuits,” FoxNews.com, Oct. 21, 2022 . . . . . . . . 25, 32

Robert Stilson, “The Activist Side Third-Party

Litigation Support,” Capital Research Center,

Nov. 1, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 29

Telluride Joins Lawsuit Seeking to Force Energy

Companies to Offset Climate Change, KSUT.org,

Dec. 18, 2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

1

STATEMENT OF INTEREST OF THE

AMICUS CURIAE

Government Accountability & Oversight (“GAO”) is

a nonprofit organization incorporated under the laws of

Wyoming, dedicated to transparency in government and

the proper role of the federal judiciary. GAO files this

brief in support of the Petitioners because it possesses

unique information that this Court should consider,

demonstrating the necessity of federal jurisdiction over a

nationwide campaign of ostensibly local “climate” nuisance

and/or consumer protection claims.1

As a nonprofit, GAO 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 and how they inform the import of other

information in the public domain, GAO is ideally situated

to provide the Court with a perspective that is distinct

and independent from that of the parties.

SUMMARY OF ARGUMENT

Government Accountability & Oversight (“GAO”)

files this brief because it possesses unique information

demonstrating the necessity of federal jurisdiction over

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, its members, or its counsel made

a monetary contribution to its preparation or submission.

2

the claims at issue. Despite creative pleading, these claims

were not born of any local grievance. Instead, they were

advanced as part of a coordinated, vexatious nationwide

litigation campaign in which states and municipalities sued

over lawful commerce (commerce inevitably occurring

outside the plaintiffs’ own borders) seeking to extract what

one state official euphemistically called a “sustainable

funding stream.” 2 That stunning admission is among the

information GAO has obtained in which the campaign’s

principals confessed to using the courts for improper

purposes. In short, this litigation and its companion suits

represent nothing less than a campaign to impose the

equivalent of taxation and dictate energy policy through

the courts. They seek to impose tax-equivalents and attain

policy impacts of nationwide scope through litigation

precisely because their desired policies have been rejected

through the proper political process. The time has come

to settle the jurisdictional question once and for all.

ARGUMENT

The Colorado Supreme Court opinion in this matter

readily acknowledges in its first sentence that “this

case presents substantial issues of global import.” Cnty.

Comm’rs of Boulder Cnty v. Suncor Energy USA, Inc. (In

re Cnty. Comm’rs of Boulder Cnty), 2025 CO 21, ¶ 1, 586

P.3d 161. The dissenting justices more properly phrase the

point in noting that the issues at hand implicate “uniquely

federal interests.” Id. at ¶ 73, 586 P.3d 161 (dissent)

(citations omitted).

GAO and other nonprofits have obtained information

confirming that this suit, which is one component part of

2. See infra at nn. 20–24.

3

a national, coordinated campaign asserting state-court

causes of action seeking to effectively steer domestic

energy and environmental policy and/or raise revenues

outside the appropriate, political process, is properly sited

before the federal courts. These public records reveal

more plainly than ever that this suit and others like it

represent an attempt to obtain through the judiciary

what the political branches have declined to provide.

These political goals include energy regulation and the

imposition of taxes that plaintiffs have despaired of

obtaining through the democratic process.

GAO notes that this lawsuit was listed in a document

styled as an “Amendment to Confidentiality Agreement

Regarding Participation in Climate Change Public

Nuisance Litigation” among at least fourteen (14)

ideologically aligned state attorneys general, which

originated in November 2019. 3

That secrecy pact claims that

“[t]he parties . . . have an interest in or are

counsel for entities that have an interest in

one or more cases brought, or that will be

brought, in state court or U.S. District Court,

3. Another group, for which amicus GAO provided legal

representation on open records requests (including through

undersigned counsel during a prior GAO organization as a

professional corporation) obtained the original Agreement and

Amendment from, inter alia, under several states’ public records

laws. The original Agreement was dated Apr. 25, 2018. The 2019

amended version including the instant matter, below, may be found

at https://climatelitigationwatch.org/wp-content/uploads/2021/01/

Climate-Change-Public-Nuisance-Litigation-CIA-Amendment.pdf.

4

or appealed to state or federal courts of appeal,

including the highest state appellate court

or the U.S. Supreme Court, in which various

entities have filed or will file actions against

fossil fuel producers for remedies, including

abatement of a public nuisance, due to present

and future harm related to climate change.

Together, these cases are referred to herein

as the “Litigation.” The Litigation includes,

but may not be limited to . . . Board of County

Commissioners of Boulder County, et al., v.

Suncor Energy, et al., No. 19-1330 (10th Cir.).”

Those plaintiffs’ secrecy pact 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.”4 To

quote the dissent below, “‘There is no federal general

common law.’” Id. at ¶ 82, 586 P.3d at 161, citing Erie

R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). However,

federal courts have developed common law in limited,

specialized areas involving “uniquely federal interests”

that “are so committed by the Constitution and laws of

the United States to federal control that state law is preempted and replaced, where necessary, by federal law of

a content prescribed (absent explicit statutory directive)

by the courts.” Boyle v. United Techs. Corp., 487 U.S. 500,

504 (1988), citing Tex. Indus., Inc. v. Radcliff Materials,

Inc., 451 U.S. 630, 640 (1981) (internal citations omitted).

4. Available at https://climatelitigationwatch.org/wp-content/

uploads/2021/01/Climate-Change-Public-Nuisance-LitigationCIA.pdf.

5

Those “climate” plaintiffs’ first generation of suits

brought under a common law theory kept losing in federal

court. Rather than giving up or changing tack, the

“climate” plaintiffs simply rebranded and relocated their

claims (while operating under the same purported common

interest agreement, and still seeking nuisance-style

damages). The campaign freely converted from raising

federal common law nuisance claims5 to state nuisance

claims6 and later purportedly local, consumer protection

claims7 (still seeking nuisance remedies). As an email sent

by the law firm representing most of these plaintiffs 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.”8

Other public records obtained by GAO document

efforts by members of the plaintiffs’ legal team to recruit

other governmental entities to join their campaign,

acknowledging the view that state courts simply are the

5. See, e.g., Connecticut v. Am. Elec. Power Co., 582 F.3d 309

(2d Cir. 2009), rev’d on other grounds, 564 U.S. 410 (2011).

6. See, e.g., Cnty. of San Mateo v. Chevron Corp., 294 F. Supp.

3d 934 (N.D. Cal. 2018); City of Oakland v. BP P.L.C., 325 F. Supp.

3d 1017 (N.D. Cal. 2018).

7. See, e.g., Minnesota v. Am. Petroleum Inst., No. 20-cv-1636

(D. Minn. filed Jun. 24, 2020); District of Columbia v. ExxonMobil

Corp., No. 2020 CA 002892 B (D.C. Super. Ct. filed Jun. 25, 2020).

8. Jul. 19, 2017 email from Sher Edling LLP’s Chuck Savitt

to Dan Emmett, forwarded by Emmett on Jul. 22, 2017 to UCLA

Law faculty and administrators, released Apr. 21, 2022, available

at https://climatelitigationwatch.org/wp-content/uploads/2022/12/

SherEdling-recruting-Emett-then-Carlson-recruting-Sabin.pdf.

6

“more advantageous venue for these cases.” 9 Notably,

the same release of public records that produced that

particular email also shows that Boulder counsel Marco

Simons first approached the Fort Lauderdale, Florida

Mayor’s office in July 2018 with the express goal of

bringing lawsuits against fossil fuel companies to pay

for alleged climate change damages. Mr. Simons was

accompanied by attorneys Victor Sher and Matthew

Edling,10 who are “responsible for most climate litigation

in the United States.”11 Emails show that their firm

receives charitable foundation financing for its work in

sums so large, according to Internal Revenue Service

filings, that it is implausible it is not for the entirety of the

united litigation campaign. In short, each constituent case

within this campaign is part of a whole (infra).

9. See, e.g., email from a recruiter for plaintiffs’ counsel in most

of these matters, 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-Lauderdalesignaling-Judge-Alsup-opinion-is-too-much-for-them.pdf.

10. See emails at https://climatelitigationwatch.org/wpcontent/uploads/2026/05/July-27-2018-thread-re-SherEdlingpresentation-and-CA-dismissal.pdf. See also schedule showing

Simons presentation, available at https://climatelitigationwatch.

org/wp-content/uploads/2026/05/LSN-ERI-IGSD-meetings-FtLauderdale.pdf. Simons approached that prospective plaintiff

as General Counsel for a group recruiting “climate” plaintiffs

called EarthRights International on behalf of the group that was

an early organizer of this litigation campaign, The Institute for

Governance & Sustainable Development (IGSD).

11. Heather Mac Donald, “The Climate Litigation Swindle,”

City Journal, Spring 2026, https://www.city-journal.org/article/

climate-fossil-fuel-energy-lawsuits.

7

A member of the “climate” plaintiffs’ team admitted

their desire to pursue claims of state jurisdiction after

U.S. District Judge William Alsup dismissed the City

of Oakland’s “climate nuisance” suit against many of

the same defendants in June 2018.12 Then, UCLA law

professor and also consultant to Sher Edling, LLP (lead

counsel in most of these cases) Ann Carlson13 also signaled

the change of course. Her opinion was that the plaintiffs’

chances for recovery are much better in state fora.14

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

a single body of work by private funders, to the tune of

so far approximately $20 million dollars of “charitable

grants” to (at minimum) the Sher Edling firm driving

this campaign.15 This is despite the execution of generous

12. City of Oakland v. BP P.L.C., 325 F. Supp. 3d 1017 (N.D.

Cal. 2018).

13. 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/2021/03/Carlson-reporting-formsResponsive-Documents-20-8525.pdf. These records were released

under California’s Public Records Act.

14. Mark Kaufman, “Judge tosses out climate suit against big

oil, but it’s not the end for these kinds of cases,” mashable.com, Jun.

26, 2018, https://web.archive.org/web/20180906191240/https://

mashable.com/article/climate-change-lawsuit-big-oil-tossed-out/.

15. See, e.g., Letter from Rep. Jim Jordan, Chairman, House

Comm. on the Judiciary, to Vic Sher, Partner, Sher Edling LLP

(Apr. 28, 2026) (citations omitted), https://judiciary.house.gov/sites/

8

“contingency fee” agreements the promised remuneration,

and terms of which suggest to the reader that they

represent the compensation for the cases, even though

plaintiffs’ counsel apparently are not taking the risk that

a contingency agreement assumes or implies (see infra).

Public records leave little doubt that this campaign

seeks two impermissible objectives.

First, the municipal plaintiffs seek to use state courts

to impose federal energy, environmental, and tax policy

as a substitute for the political process that has denied

them their desired policies.

Second, all such plaintiffs pretextually seek revenueraising through the courts rather than through the proper

legislative means which, as one other plaintiff in this

coordinated campaign, and counsel for the very plaintiffs

in this case below, have both admitted is politically

unattainable.

These facts demand that this Court resolve the

jurisdictional question once and for all.

I.

T H E CONSTI T U TIONA L ST RUCT U RE

DEMANDS FEDERAL JURISDICTION OVER

CLAIMS OF NATIONAL SCOPE

After losing in federal court, the plaintiffs in this

coordinated litigation campaign have labored mightily to

keep their cases in state court. The reason is not hard to

evo-subsites/republicans-judiciary.house.gov/files/evo-mediadocument/2026-04-28-jdj-dei-to-sher-edling-sher-re-eli.pdf.

9

discern. State courts offer what plaintiffs evidently regard

as a friendlier forum for claims that also face immediate

and fatal obstacles in federal court. But the Constitution

does not permit litigants to circumvent federal jurisdiction

merely by dressing up inherently national claims in statelaw clothing.

Under 28 U.S.C. § 1331, federal district courts possess

“original jurisdiction of all civil actions arising under the

Constitution, laws, or treaties of the United States.” The

removal statute, 28 U.S.C. § 1441(a), permits defendants

to remove to federal court any civil action “of which

the district courts of the United States have original

jurisdiction.” These statutory provisions exist precisely

for cases like this one, where claims necessarily implicate

federal law, federal policy, and the federal regulatory

structure. Leaving such claims to state courts would

produce the kind of jurisdictional chaos that Congress

sought to prevent.

Consider what these claims actually seek. The

plaintiffs ask state courts to impose tort (or now, failure-towarn) liability for the production and sale of fossil fuels—

products whose extraction, transportation, refinement,

and sale are comprehensively regulated under federal law,

including their combustion under Clean Air Act, 42 U.S.C.

§ 7401 et seq. This Court has already held that the Clean

Air Act displaces federal common law claims seeking to

limit greenhouse gas emissions. American Electric Power

v. Connecticut, 564 U.S. 410, 424 (2011). The notion that

state common law can accomplish what federal common

law cannot (imposing nationwide regulation of the same

emissions through a patchwork of state court judgments)

defies both logic and the constitutional structure.

10

The Second Circuit Court of Appeals put the point

with admirable clarity in City of New York v. Chevron

Corp., 993 F.3d 81, 85–86 (2d Cir. 2021), when it explained

that “[s]uch a sprawling case is simply beyond the limits of

state law” because any damages award “would effectively

regulate the Producers’ behavior far beyond New York’s

borders.” That observation applies with equal force here.

As one veteran legal commentator has aptly observed,

these cases represent what may be the “stupidest

litigations in the country,”16 precisely because they attempt

to use state tort law to regulate a global atmospheric

phenomenon with zero chance of any measurable impact

on the climate.

The principle announced in Marbury v. Madison, 5

U.S. (1 Cranch) 137, 177 (1803), that “[i]t is emphatically

the province and duty of the judicial department to say

what the law is,” necessarily implies that federal courts

must exercise jurisdiction over claims that implicate

federal law. Where, as here, the claims seek to regulate

conduct that is the subject of comprehensive federal

legislation, the federal judiciary has not merely the power

but the obligation to adjudicate those claims. To allow fifty

different state courts to impose conflicting obligations

on energy producers operating under federal regulatory

frameworks would make a mockery of the Supremacy

Clause.

The separation of powers concerns are equally

compelling. In Youngstown Sheet & Tube Co. v. Sawyer,

16. Francis Menton, “‘Stupidest Litigation’ Update,” Manhattan

Contrarian, Sept. 2, 2025, https://www.manhattancontrarian.com/

blog/2025-9-2-stupidest-litigation-update.

11

343 U.S. 579 (1952), this Court held that the President

could not seize the nation’s steel mills even in the midst of

a wartime emergency, because any authority for such an

action belonged to Congress. Justice Jackson’s celebrated

concurrence made clear that the separation of powers

exists to protect liberty itself, and that no branch of

government may arrogate to itself the powers committed

to another. Id. at 635 (Jackson, J., concurring).

The climate litigation campaign at issue here

represents a comparable assault on the separation of

powers, but from an even more unlikely direction. Here,

state and municipal executives are attempting to use the

judiciary to impose what amounts to a carbon (dioxide) tax

and to dictate national energy policy. As Boulder’s own

counsel has candidly admitted, this litigation is designed

to function as “an indirect carbon tax”17 because Congress

is unlikely to enact one. The plaintiffs have despaired of

obtaining their preferred policies through the legislative

process at both the state and federal level, and have turned

instead to the state courts to make federal policy.

This is precisely the kind of end-run around the

democratic process that the separation of powers was

designed to prevent. If Congress has declined to impose

a carbon tax or otherwise the policies that “climate”

plaintiffs seek to attain, state court judges in Boulder,

Colorado cannot impose them through the pretext of a

nuisance, consumer-protection, or any other claim or

name. If state legislatures have declined to fund their

executives’ spending ambitions through new energy taxes,

those executives cannot achieve the same result through

17. See infra. at p. 13.

12

tort or “failure to warn” litigation. The judiciary is not a

substitute legislature, and litigation is not a substitute for

the democratic process.

Federal jurisdiction under §§ 1331 and 1441 exists to

ensure that claims of inherently national scope (claims

that, as this Court recognized in AEP, necessarily

implicate “uniquely federal interests”) are adjudicated

by courts with the authority and competence to address

them. This Court should hold that these claims raise

federal questions and belong in federal court.

II. R EC OR D S A N D PU BL IC STAT EM EN T S

DEMONSTRATE THIS CASE IS AN ATTEMPT

TO USE THE STATE COURTS TO IMPOSE

NATIONAL POLICY OUTCOMES.

The municipal plaintiffs seek to use state courts to

dictate federal energy and tax policy. One of the most

brazen admissions comes from Boulder’s own counsel,

David Bookbinder:

“Essentially, the tort liability is an indirect

carbon tax. You sue an oil company, an oil

company is liable, the oil company then passes

that liability on to the people who are buying

its products . . . I’d prefer an actual carbon

tax, but if we can’t get one of those, and I don’t

think anyone on this panel would agree [sic]

Congress is likely to take on climate change

anytime soon—so this is a rather convoluted

way to achieve the goals of a carbon tax. The

13

people who use the products pay for the damage

that they cause.”18

Similarly, two sets of meeting notes from two

independent notetakers, both later released under public

records laws, further emphasize that that is what this

proceeding truly represents. These documents each

purport to record a Rhode Island cabinet-level official

expressly acknowledging among peers (representatives of

fifteen state governments) and also funders and activistfoundation representatives that that state’s participation

in this litigation campaign is formed by its belief that the

state’s General “Assembly [is 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

these lawsuits are filed in “State court against oil and

gas” companies because of elected officials’ “Priority—

sustainable funding stream,” to under w rite more

government spending with revenue that the executive

failed to convince the voters’ elected representatives to

provide through the ordinary process of taxation because,

apparently, they are too conservative.

18. Video available at “Can State Courts Set Global Climate

Policy?,” Federalist Society, Oct. 8, 2025, https://fedsoc.org/

events/can-state-courts-set-global-climate-policy. See also, e.g.,

Mulder, Lawyer Behind Colorado Climate Suit Says the Quiet

Part Out Loud: Litigation Is a Tax on Oil Companies and

Consumers, National Review (October 20, 2025), https://www.

nationalreview.com/news/lawyer-behind-colorado-climate-suitsays-the-quiet-part-out-loud-litigation-is-a-tax-on-oil-companiesand-consumers/.

14

These confessions appear in public records obtained

from Colorado State University by GAO then-client Energy

Policy Advocates, pertaining to a two-day meeting in July

2019 hosted by the Rockefeller Brothers Fund (“RBF”).19

This meeting was held at the Rockefeller family mansion

at Pocantico, New York, and was titled “Accelerating State

Action on Climate Change.” Records 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. 20

19. RBF grants to Boulder counsel who filed the suit below

also appeared to be tied to its litigation. See, e.g., Lea Giotto,

“Contradictions Mount as Lawyer for Colorado Climate Lawsuits

Struggles to Defend His Role,” Energy in Depth, Aug. 15, 2018,

https://eidclimate.org/contradictions-mount-as-lawyer-forcolorado-climate-lawsuits-struggles-to-defend-his-role/.

20. These notes are available, respectively, at https://

climatelitigationwatch.org/wp-content/uploads/2020/03/CarlaFrisch-handwritten-notes-EPA_CORA1505.pdf and https://

climatelitigationwatch.org/wp-content/uploads/2020/03/EFKatie-McCormack-typed-notes-EPA_CORA1542.pdf. These

documents are identified in an Aug. 20, 2019 email from Center

for a New Energy Economy’s Patrick Cummins to RBF’s Michael

Northrop. “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. McCormack’s

transmittal email, in which she describes her notes as long

(https://climatelitigationwatch.org/wp-content/uploads/2020/03/

Katie-McCormack-notes-transmittal-email-EPA_CORA1516_

Redacted.pdf), and 1542 consists of 18 pages of notes; “Xerox

Scan_07222019155622.pdf” are Carla Frisch’s handwritten notes

(this was produced to Energy Policy Advocates as document

EPA_CORA1505.pdf).

15

The 2019 RBF meeting was a forum for climate (not

consumer protection) policy activists and a major funder

to coordinate with senior public employees holding

positions addressing climate, energy and environment (not

consumer protection) policy. 21 These included department

secretaries and their cabinet equivalents from fifteen

states, 22 including Rhode Island, represented by its

Department of Environmental Management Director,

Janet Coit.

These meeting notes obtained by Energy Policy

Advocates contemporaneously record the comments of

Director Coit discussing among peers that state’s own

version of the lawsuit at issue here. One passage in each

set of notes, both attributed to Coit and replicated almost

verbatim in both, illustrates the use of these suits to force

a policy change reserved to the legislature.

21. The agenda for the meeting is available at https://

govoversight.org/wp-content/uploads/2020/01/Draft-AgendaEPA_CORA0008-copy.pdf.

2 2 . T h e p a r t i c i p a n t l i s t i s a v a i l a b l e a t ht t p s : //

climatelitigationwatch.org/wp-content/uploads/2020/03/List-ofAttendees-EPA_CORA1037.pdf.

16

23

The first line of this public record attributes to

Director Coit the position that Rhode Island’s legislature

is not persuaded of the claims set forth by the state which

serve as the basis for its, and Boulder’s, climate litigation.

It appears to also reflect her administration’s view of why

the legislature has declined to directly obtain from the

taxpayer the “sustainable funding stream” that plaintiffs

in this class of “climate” litigation desire. These notes

reflect the same sentiment confessed to by the City of

Boulder counsel Mr. Bookbinder: that the government’s

entry in this climate litigation sweepstakes is apparently

a product of the failure by advocates to obtain, or elected

representatives to impose, certain policies including

concomitant revenue measures. Thus, rather than work

with the 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.” Boulder’s Bookbinder states precisely

the same position, if couched in the slightly more direct

23. This image shows the native appearance of the record

and therefore is significant independent of the text. See supra at

n. 20, Ms. Frisch’s notes.

17

language about the futility of obtaining the desired tax

policy, itself a further confession to the improper use of

the courts in this case (and its ilk).

The Energy Foundation’s McCormack provided

RBF with a typewritten set of her notes transcribing the

proceedings which reads on this point almost verbatim to

the recollection of Ms. Frisch. 24

These notes illustrate two troubling and related

aspects of the recent epidemic of “climate” litigation, now

channeled into state courts after the first generation of

suits were displaced by this Court in American Electric

Power v. Connecticut, 564 U.S. at 426 and a second

generation of suits similarly failed. See 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

24. This image shows the native appearance of the record

and therefore is significantly independent of the text. See n. 20,

Ms. McCormack’s notes.

18

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 taxation enacted

by legislators for distribution toward political uses and

constituencies except, as Boulder’s counsel admits, the

political prospects for obtaining this taxation have dimmed

to almost nonexistence.

These RBF meeting notes echo a comment made to

The Nation magazine by a plaintiffs’ lawyer credited with

inventing this class of 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.’” 25

This Court must confront these affirmations by

Boulder’s Bookbinder and Rhode Island’s Coit that this

wave of state court “climate” litigation is a grab for policy

change and very specifically for revenues, things that are

25. Zoe Carpenter, “The Government May Already Have the

Law It Needs to Beat Big Oil,” The Nation, Jul. 15, 2015, https://

www.thenation.com/article/archive/the-government-may-alreadyhave-the-law-it-needs-to-beat-big-oil/.

19

properly attained through the political process. 26 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.

But documentation about the genesis of state-level

climate suits continues to emerge. Examples in subsequent

years include the Event Proposal from when recruiters

hosted a 2021 event with Oregon Attorney General Ellen

Rosenblum, obtained under the state’s open records

law, which began, “Context: Given increasing pressure

on local and state budgets in the face of a global health

pandemic, it is increasingly important to identify new

streams of revenue.” 27 In 2023, an “unlisted” YouTube

video recording of a session to recruit the New Jersey

municipality of Maplewood 28 to the campaign revealed

26. Another lawyer behind some of the earlier suits boasted

that suits have “the potential really to bring down the 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, Dec. 22, 2017, https://www.vice.

com/en/article/meet-the-lawyer-trying-to-make-big-oil-pay-forclimate-change/.

27. Records available at https://climatelitigationwatch.org/

climate-litigation-confessional-yes-it-really-is-about-finding-newstreams-of-revenue/.

28. This same video reveals not only the relevant caution that

“It’s important that these cases stay in state court,” but also the

odd sales pitch of “The lawyers only get paid if and when there

is a successful settlement of judgement at the end.” Paid out of

the municipality’s sum, sure, but the more accurate assertion

would be paid again. https://climatelitigationwatch.org/cunningor-clueless-climate-recruiter-pitch-the-plaintiffs-lawyers-onlyget-paid-when-there-is-a-successful-settlement/. The National

20

a jovial discussion of how much money the lawsuit could

bring in which could be then spent on projects that

lawmakers had been unable to fund, citing specifically to

electric vehicle charging stations. 29

The U.S. Chamber of Commerce addressed the drive,

through these suits, for more governmental revenue

without adopting the necessary direct taxes which carry

with them political accountability, in 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

Association of Manufacturers has similarly argued that, “The

towns and lawyers have 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.” Manufacturers’ Accountability

Project, “Beyond the Courtroom: Climate Liability Litigation in

the United States,” p. 2, https://mfgaccountabilityproject.org/wpcontent/uploads/2019/06/MAP-Beyond-the-Courtroom-ChapterOne.pdf. We know this recruiting pitch is not the case, see, infra.

29. Video and records available at https://climatelitigationwatch.

org/another-window-into-the-climate-litigation-world/.

21

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.” 30

Records have since proved these theses correct.

Boulder’s attempted use of the courts to attain revenue and

other policy ends that have eluded it through legislation or

regulation, like Rhode Island’s, et al., is improper, but the

attempt also informs a conclusion that these cases belong

in federal court.

Even if the plaintiffs’ motivation to obtain and influence

policy were not itself an improper use of the courts, the

proponents of this climate litigation have also been

consistent about the litigants’ motive to use the pressure

of vexatious multi-jurisdictional (indeed, nationwide)

lawfare to coerce opponents to capitulate and support

legislative change that they would otherwise oppose. An

email from a Boulder official obtained by Energy Policy

30. Mitigating Municipality Litigation: Scope and Solutions,

U.S. Chamber Institute for Legal Reform, Mar. 2019, https://

instituteforlegalreform.com/research/mitigating-municipalitylitigation-scope-and-solutions/ at p. 1, 6, 7 and 18.

22

Advocates stated that “the pressure of litigation could also

lead companies . . . to work with lawmakers on a deal.”31

That further suggests that this matter, like other suits,

was launched to try and satisfy elected officials’ desire

to succeed in revenue-raising and other failed policy

changes.32 Another Boulder official is on record describing

its companion suit to the instant matter as one way to

“drive more fundamental systems change,” and “the use

of the legal system in pushing for larger systems-level

change.” 33 One of Boulder’s attorneys, Marco Simons,

acknowledges these lawsuits seek 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.” 34

31. Jan. 5, 2018 email from Boulder Chief Sustainability &

Resilience officer Jonathan Koehn to Alex Burness of the Boulder

Daily Camera, Subject: RE: Follow-up to council discussion.

Available at https://climatelitigationwatch.org/boulder-officialclimate-litigation-is-tool-to-make-industry-bend-a-knee/.

32. Jan. 5, 2018 email from Boulder Chief Sustainability &

Resilience Officer Jonathan Koehn to Alex Burness of the Boulder

Daily Camera. Available at https://climatelitigationwatch.org/boulderofficial-climate-litigation-is-tool-to-make-industry-bend-a-knee/,

https://climatelitigationwatch.org/wp-content/uploads/2022/12/

Boulder-corresp-w-Daily-Camera-and-confession.pdf.

33. William Allison, “Boulder Officials: Actually, Our Climate

Lawsuit Is About Driving ‘Systems-Level Change,’” RealClear

Energy, Jul. 16, 2021, https://www.realclearenergy.org/2021/07/16/

boulder_officials_actually _our_climate_lawsuit_is_about_

driving_systems-level_change_785683.html.

34. Telluride Joins Lawsuit Seeking to Force Energy

Companies to Offset Climate Change, KSUT.org, Dec. 18, 2020,

https://www.ksut.org/news/2020-12-18/telluride-joins-lawsuitseeking-to-force-energy-companies-to-offset-climate-change.

23

GAO also draws this Court’s attention to the telling

slide in a presentation at a 2012 organizational meeting

for this litigation campaign attended by activists and,

e.g., the aforementioned attorney Pawa. Released by the

University of Oregon under that state’s open records law,

an advisor to the litigation campaign named Rick Heede

counseled participants of the objective: “Bring selected

carbon majors to the table, then what?” 35

The summary of the event featured other tells, such

as “Our focus ought to be to bring as many of these people

back to the table and motivate them to act. We need to

somehow promote a debate among different parts of

legislature to get this happening.” Id.

35. Records available at https://climatelitigationwatch.org/

wp-content/uploads/2019/03/Oregon-Wood-Combined-FilesRedacted.pdf.

24

These records are but a small sample of the growing

body of evidence that the courts are being exploited to

balance municipal/state budgets, to erode the separation

of power between branches of state governments, and

to force policy outcomes that both state and federal

legislators have declined to make. This has been the goal

from the start. Former Connecticut Attorney General

Richard Blumenthal said as much about American

Electric Power v. Connecticut, 564 U.S. at 410. “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.” 36

This Court cannot sanction the use of state courts to

force policy change that is the province of legislatures.

The problem is particularly acute when state courts are

being asked to create what is effectively federal energy

and environment policy. This Court should be especially

zealous in protecting federal policies and legislation

from being forced by actions taken in various state court

systems.

This Court should reverse the judgment below and

declare that federal jurisdiction attaches to these suits.

36. Editorial, “The New Climate Litigation,” Wall Street

Journal, Dec. 28, 2009, https://www.wsj.com/articles/SB1000142

4052748703478704574612150621257422.

25

III. NEW INFORMATION FURTHER SUPPORTS

THE LAWSUIT’S COORDINATED NATIONAL

CAMPAIGN BELONGS IN FEDERAL COURT.

There is more. Public records show that the “contingency

fee” arrangements in this litigation are a mirage—obscuring

both the true purpose and the true funding of these suits.

This includes documentation that the common financing

of the lawyers filing these suits has been obscured. This

funding includes over $16 million dollars to just one firm

from just one source, New Venture Fund37 (which is at

least the second such funding source to the firm38), 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.39 This Court

should not blind itself to this unsavory reality.

37. See n. 15, supra.

38. See, e.g., Joe Schoffstall, Thomas Catenacci, “Group Leo

DiCaprio funneled grants through to fund climate lawsuits moved to

largest US dark money network,” FoxNews.com, October 21, 2022,

https://www.foxnews.com/politics/group-leo-dicaprio-funneledgrants-fund-climate-lawsuits-moved-largest-us-dark-moneynetwork. See also, e.g., Michael I. Krauss “Using Charitable Funds

to Subsidize ‘Legislation Through Litigation,’” Forbes, July 28, 2020,

https://www.forbes.com/sites/michaelkrauss/2020/07/28/usingcharitable-funds-to-subsidize-legislation-through-litigation/; Mandi

Risko, “Recently Obtained Contracts Show NJ, Chicago Plan to Pay

Millions to Dark-Money Backed Law Firm,” Energy in Depth, July

23, 2024, https://eidclimate.org/recently-obtained-contracts-shownj-chicago-plan-to-pay-millions-to-dark-money-backed-law-firm/.

39. 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

Model Rules of Prof’l Conduct r. 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.”

26

The charitable foundations underwriting a nationwide

campaign of governmental “climate” litigation give away

their true goals because they fundraise with charitable

contributions dedicated to achieving policy aims. One of

these, Resources Legacy Fund (“RLF”) plainly stated,

“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.”40

Coincident with the advent of these climate lawsuits,

RLF began reporting in its annual Internal Revenue

Service (“IRS”) filings “charitable grants” of millions of

dollars to the Sher Edling firm. Each year RLF declared

an environmental purpose for these gifts. Other records

40. https://web.archive.org/web/20220122220408/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.” Available at https://web.

archive.org/web/20230610145924/https://hewlett.org/grants/newventure-fund-for-the-collective-action-fund-for-accountabilityresilience-and-adaptation/. See also, Robert Stilson, “The Activist

Side Third-Party Litigation Support,” Capital Research Center,

Nov. 1, 2023, https://www.influencewatch.org/app/uploads/2021/02/

MacArthur-Foundation-Grants-to-New-Venture-Fund.-02.25.21.

pdf. “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.”

27

released in public records litigation confirm that these

contributions finance the states’ and municipalities’

climate litigation in various iterations.41

The expenditures are apparently managed by the

grantor.42 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 and, as shown above, has a relationship of some sort

with Boulder’s counsel Simons. 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.”43 RLF’s 2018 990 reported a $1,319,625

charitable grant to Sher Edling, LLP, this time claiming a

41. 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 Model Rules of

Prof’l Conduct r. 1.8(f) (supra), public records confirm that these

monies paid by RLF of between $5.25 million and $7.65 million

to Sher Edling over the first four years of filing these suits, from

the year litigation first commenced through 2020, were to bring

this and those other lawsuits.

42. 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

W I T H T H E PR OP O S A L BU D GE T. I N A DDI T ION,

S TA F F M A I N TA I NS C ON TAC T W I T H GR A N T EE S

AND PERIODICALLY CONDUCTS FIELD VISITS FOR

SIGNIFICANT PROJECTS.”

43. https://web.archive.org/web/20200714055358/https://

r e s ou r c e s le g a c y f u nd .or g / w p - c ont ent / uploa d s / 2 018 / 11 /

RLF_990_2017.pdf, Schedule I, Part II.

28

different purpose, of “Advancing Healthy Communities.”44

RLF’s 2019 990 reported $1,110,000 in a charitable

grant to Sher Edling, LLP, that time for another stated

environmental purpose, “Land or Marine Conservation

Promotion of Education and/or Healthy Communities.”45

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.”46

Further details subsequently emerged. In late April

2022, Government Accountability & Oversight obtained

records in 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 first entries in this

sweepstakes which at the time of this correspondence had

just been filed. The email confirmed that the contingent

fee litigation was actually being privately underwritten

through something the firm’s representative called the

44. https://web.archive.org/web/20200714060106/https://

resourceslegacyfund.org/wp-content/uploads/2020/03/RLF-IRSFinal-990-12.31.18-Public-Copy-4829-6612-8044.pdf.

45. https://web.archive.org/web/20210516221411/https://

resourceslegacyfund.org/wp-content/uploads/2021/02/RLFPublic-Copy-IRS-Form-990-12.31.19-4824-7483-1056.pdf.

4 6 . ht t p s: // pr oje c t s .pr opubl ic a .or g /nonpr of it s /

organizations/954703838/202220459349302702/full.

29

“Collective Action Fund.”47 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. Da[n],

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.”48

The recipient, Dan Emmett, forwarded this email to

the University of California at Los Angeles (“UCLA”)

School of Law. Mr. Emmett wrote, inter alia, “Chuck

Savitt who is heading this new organization behind the

lawsuits has been seeking our support. Terry Tamminen

47. Collective Action Fund for Accountability, Resilience and

Adaptation, a fund that at the time of DiCaprio’s 2017 donation was

managed by the Resources Legacy Fund (RLF). See, e.g., Stilson,

n. 39, supra, “The Collective Action Fund was originally a project

of the 501(c)(3) Resources Legacy Fund, but sometime around

2020 it shifted to the New Venture Fund—the largest constituent

member of the massive left-of-center political nonprofit network

managed by Arabella Advisors.”

48. See n. 8.

30

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.”49 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.”50

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 tell [Sabin] Terry’s

organization and I are both serious supporters.”51

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, the Leonardo DiCaprio

Foundation—acknowledged that his group’s “grant” to

49. See correspondence at https://climatelitigationwatch.org/

wp-content/uploads/2022/12/SherEdling-recruting-Emett-thenCarlson-recruting-Sabin.pdf.

50. Id.

51. Id.

31

“The Collective Action Fund [was] to support precedentsetting legal actions to hold major corporations in the

fossil fuel industry liable for the effects of climate

change pollution,” due to “a lack of political leadership”

to enact the desired policies. 52 That Fund then made

those “charitable grants” to plaintiffs’ counsel totaling

millions of dollars, which increased in amount as the

number of suits filed also increased (and were modified

to be consumer protection suits to improve the chances

of attaining state-court jurisdiction).

In July 2020, a law professor at George Mason

University School of Law took notice of these payments in

the context of another (by this time) “consumer protection”

climate lawsuit against oil companies by Sher Edling, LLP,

on behalf 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). 53

Subsequently, RLF’s 2020 990 added an entry for the

first time listing Sher Edling, LLP as an independent

contractor, indeed by that time its “highest compensated

independent contractor,” with fees paid in an amount

identical to the “charitable grant for Land or Marine

52. Press release, “Leonardo DiCaprio Foundation awards

$20 million in environmental grants,” (bold and RLF parenthetical

in original), https://web.archive.org/web/20171002192851/https://

www.leonardodicaprio.org/leonardo-dicaprio-foundation-awards20-million-in-environmental-grants/.

53. Michael I. Krauss “Using Charitable Funds to Subsidize

‘Legislation Through Litigation,’” Forbes, July 28, 2020,

https://www.forbes.com/sites/michaelkrauss/2020/07/28/usingcharitable-funds-to-subsidize-legislation-through-litigation/.

32

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 to $4,788,000.

After these contributions received widespread media

coverage, RLF’s payments to the climate-plaintiffs’

firm Sher Edling included only another $55,575 in

2021 (for “LAND OR MARINE CONSERVATION,

PROMOTION OF EDUCATION AND/OR HEALTHY

COMMUNITIES”), and the funding mechanism appears

to have shifted to New Venture Fund. 54

GAO and other groups have 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, Energy Policy Advocates

obtained the package filed by Minnesota Attorney

General Keith Ellison in an application seeking approval

54. See, e.g., “The Collective Action Fund, a secretive group

that does not maintain a website, has since shifted its fiscal

sponsorship to the New Venture Fund, a nonprofit incubator

at a billion-dollar dark money network managed by Arabella

Advisors consulting firm, Fox News Digital has discovered.”

Schoffstall, Catenacci, “Group Leo DiCaprio funneled grants

through to fund climate lawsuits moved to largest US dark money

network,” FoxNews.com, October 21, 2022. See also Andrew

Kerr & Chuck Ross, “Same Game, Different Name: ‘Radioactive’

Arabella Advisors Announces Rebrand to ‘Sunflower Services’

as Prominent Donors Flee,” Wash. Free Beacon (Nov. 18, 2025),

https://freebeacon.com/democrats/same-game-different-nameradioactive-arabella-advisors-announces-rebrand-to-sunflowerservices-as-prominent-donors-flee/.

33

from the Minnesota Legislative Advisory Commission

for the contract engaging Sher Edling, LLP. 55 These

records contain no disclosure that the firm is 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.”56 In fact, the agreements generally and

these supporting Minnesota records specifically all on

their face suggest that this contingency fee, to be paid

out of alleged taxpayer damages, is the compensation for

the representation although it plainly is not. 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 possible knowledge of this funding

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

55. Available at https://govoversight.org /w p-content/

uploads/2021/01/AGO-LAC.pdf.

56. 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-AgreementSF-SE-AB-FINAL-EXECUTED.pdf.

34

County filed its version of the instant suit. 57 A redacted

version of the email ordered to be released by a state court

shows only that the plaintiff did discuss RLF in March

2021, contemporaneous with the County’s consideration

of its own April 2021 version of these suits. 58

Other governmental climate plaintiffs asked by GAO

and its then-client Energy Policy Advocates have all

indicated they have no records mentioning Resources

Legacy Fund. This information further demonstrates

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.

57. Letter from Anne Arundel County available here,

https://climatelitigationwatch.org/wp-content/uploads/2022/12/

Letter-to-R.-Schilling-MPIA-Response- 00367084x A76A4.

pdf. Affidavit available here, https://climatelitigationwatch.org/

wp-content/uploads/2026/04/Exhibit-B-Affidavit-of-Custodian00374196xA76A4.pdf.

58. Email available at https://climatelitigationwatch.org/

more-on-the-mysterious-email-about-hollywoods-backdoorfunding-of-government-climate-litigation/.

35

CONCLUSION

For the foregoing reasons, Government Accountability

& Oversight respectfully urges this Court to reverse the

judgment of the Colorado Supreme Court and hold that

federal jurisdiction attaches to these claims.

Respectfully submitted,

Christopher C. Horner

1725 I Street NW

Suite 300, PMB 2094

Washington, DC 20006

Matthew D. Hardin

Counsel of Record

Hardin Law

101 Rainbow Drive, PMB 11506

Livingston, TX 77399

(202) 802-1948

matt@matthewhardin.com

Counsel for Amicus Curiae