Over the last several years, states, cities, and counties have filed lawsuits against energy companies seeking billions of dollars to reimburse costs that they attribute to global climate change in order to fund local infrastructure projects, such as sea walls.
These lawsuits are examples of what the American Tort Reform Association calls “regulation through litigation” — the use of courts to achieve sweeping public policy objectives. It is a practice first used a generation ago with the tobacco industry.
To date, climate change litigation has been consistently rejected by courts at every level, including the U.S. Supreme Court. Last year, two federal courts dismissed these types of lawsuits, recognizing that global warming is an “immense and complicated problem that requires a comprehensive solution” developed by policymakers. It is not an issue for a single judge or jury to solve.
Nevertheless, this type of litigation continues, and more lawsuits are expected.
This week, the American Tort Reform Association released a report highlighting how environmental advocacy groups are ramping up their litigation efforts by directly funding attorneys and policy staff within state governments. For example, the Michael Bloomberg-funded State Energy & Environmental Impact Center, which was initially funded with a $6 million grant from Bloomberg Philanthropies, is placing lawyers (referred to as “fellows”) within state attorney general offices. The fellowship program is designed to support government lawsuits against energy companies by placing lawyers funded by the center in the offices of state attorneys general across the country.
As of 2018, the center had 14 fellows embedded within the offices of attorneys general in at least eight jurisdictions: Illinois, Maryland, Massachusetts, New Mexico, New York, Oregon, Washington, and the District of Columbia.
Meanwhile, organizations under the aegis of the U.S. Climate Alliance are placing staff in executive branch roles in states around the country. The individuals in these positions, who also are paid by outside organizations that “sponsor” them, work as de facto environmental and climate experts and have full latitude to work on litigation and policy matters. The Alliance works with governments to combat climate change by ensuring member states voluntarily abide by the Paris Climate Accords. Pennsylvania, Nevada, and Maine are the most recent to join, bringing the total jurisdictions committing to advance this goal to 24.
These new developments appear to grant governmental responsibility and authority to individuals paid by private advocacy organizations. Since these individuals are compensated by the advocacy groups that placed them in their roles, it would seem that there is an inherent conflict as to whether the staff member is working to advance the interests of the state or pushing an outside group’s agenda. Those two roles may not necessarily be aligned.
This practice of embedding lawyers and policy staff funded by advocacy groups within state government offices, unless addressed by policymakers, is not likely to stop at climate change litigation. It also suggests a model for outside organizations to create government positions, and compensate public employees to advance their agenda “from the inside” of state government.
Allowing wealthy individuals or privately supported advocacy groups to fund government officials to push their agenda forward does not serve the broader public interest. Public officials must serve the interests of the citizens of a state, not a well-funded advocacy group, regardless of where that organization falls on the political spectrum.
State officials should reject these types of arrangements. When they fail to do so, state auditors, inspectors general, ethics commissions, and others with oversight authority should apply existing ethics laws to stop them. If these laws are disregarded, misinterpreted, or prove inadequate to prevent outside groups from sponsoring government positions, then state legislators should step in.
Sherman “Tiger” Joyce is the president of the American Tort Reform Association.
