AG Letter Reveals #ExxonKnew AG Campaign about Defending Obama Climate Legacy

Washington, D.C. – On the heels of the Energy & Environment Legal Institute (E&E Legal) releasing the copy of the a secrecy pact between Democratic Attorneys General led by New York Attorney General Eric Schneiderman, obtained after a months-long fight with these AGs to keep it from the public, E&E Legal has posted a March 7th 2016 letter sent by Schneiderman and Vermont AG William Sorrell to other ideologically aligned AGs inviting them to join in using their law enforcement offices in an “informal coalition…to stem climate change and expand the availability and usage of renewable energy”.

The letter, also obtained under state open records laws, targets “Attorneys General who share this mission” of protecting and advancing “climate” policies, through “the formation of an Attorneys General climate change and energy coalition”. This coalition’s members have launched investigations targeting industry and non-profit think tanks toward this end, under the guise of racketeering laws to promote this inherently political agenda.

This makes the AGs’ claims to “privilege” to keep their otherwise public records secret — grounded in that purported “Common Interest Agreement” (CIA) which plainly lacks the hallmarks such an agreement must have to be proper — not just implausible but patently unlawful.

The now infamous March 29 press conference among recipients of this letter and former Vice President and current “green” investor Al Gore immediately prompted questions about the actual intent of the campaign, particularly since the podium placard featured the president’s Clean Power Plan.

Indeed the very first of four sweeping, supposed common legal interests set forth in the purported CIA is “to compel or defend federal measures to limit greenhouse gas emissions.” “This letter makes inescapable the fact that the AGs’ goal was to defend and extend Obama’s environmental agenda,” said Craig Richardson, E&E Legal executive director. “That is a political cause, which the AGs seek to extend by improper means, circumventing the proper, democratic political process.”

“It is unprecedented to have the top state law enforcement officers waging a political war on behalf of the president at the cost of the First Amendment protections they are charged with upholding,” added E&E Legal Senior Legal Fellow Chris Horner, “This letter lays bare that the purpose of their investigations was to launch a political campaign to silence critics of the Administration.”

E&E Legal intends to pursue all public records these AGs are trying to keep secret by this purported CIA, or secrecy pact drafted by New York Attorney General Eric Schneiderman’s office. The group has already filed several lawsuits toward that end.

The AGs’ supporters responded to last week’s revelation of the terms of the purported CIA,insisting that “common interest agreements are common”. This is true: Common interest agreements are common; what the AGs entered into does not qualify as a common interest agreement; what the AGs entered into is not common. It also therefore is not a shield to keep discussions of this abuse of their offices, which are otherwise public records, from the public.

Despite the claims that this agreement is routine, it is anything but. As the New York Attorney General knows, and the highest court in New York just reaffirmed, the sheer breadth of the supposedly privileged areas of discussion, the lack of any litigation, the now-confirmed fact that few if any of the other states who signed this agreement ever intended to undertake so-called ‘investigations’ let alone pursue litigation, and the overtly political vs. legal nature of the campaign the document all reveal this agreement would never be accepted as legitimate by any court to hide the machinations of an overtly political campaign.

It was less than two months ago that New York’s highest court reaffirmed New York’s long-standing rule on common interest agreements in Ambac Assurance Corp.v. Countrywide Home Loans Inc, N.E.3d, 2016 N.Y. Slip Op. 04439 (June 9, 2016), ruling that the doctrine “applies only where pending or reasonably anticipated litigation is involved.” That, alone, informs anyone who reads the AGs’ document that it is inherently far too sweeping in its breadth and vagueness about what the common interests might be; its sweeping terms also betray the reality that there was no litigation they can point to as being reasonably anticipated among the parties.1

Instead, the AGs’ secrecy pact was drafted in anticipation of open records requests, which it aims to frustrate. In fact, the Illinois OAG has already expressly claimed it as a reason the office cannot release public records sought by E&E Legal. These AGs are quite attentive to the document’s emphasis on only sharing discussions of their scheme with approved outside parties, stonewalling E&E Legal every step of the way since the first release, by Vermont’s OAG, led to terrific public blowback against the scheme.

Nonetheless, E&E Legal will continue to fight to make all public records relating to the AGs’ abusive scheme public.

The Energy & Environment Legal Institute (E&E Legal) is a 501(c)(3) organization engaged in strategic litigation, policy research, and public education on important energy and environmental issues. Primarily through its petition litigation and transparency practice areas, E&E Legal seeks to correct onerous federal and state policies that hinder the economy, increase the cost of energy, eliminate jobs, and do little or nothing to improve the environment.

1 Limitation to common legal interests. Courts addressing the common-interest doctrine frequently assess whether the interest being furthered was a “legal” interest (as opposed to, e.g., business or, here, policy/political), and have held that merely furthering other non-legal interests does not invoke the protections of the doctrine. Under Ambac, we see that in New York specifically the doctrine is limited to a common interest in pending or anticipated litigation as the legal interest.

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