by David McLaughlin
E&E Legal Strategic Research Supervisor

Last March, through numerous state open records requests, E&E Legal uncovered emails showing that New York Attorney General Eric Schneiderman formed a secret coalition of several other states’ attorneys general (AGs) and prominent green activists to use the criminal justice system to target organizations that question the climate change agenda under fraud and racketeering laws.

As reported in E&E Legal’s Spring Letters, the plan to investigate ExxonMobil and other fossil fuel companies for not publicly acknowledging climate change, an attack on the First Amendment by the very people who are supposed to uphold the Constitution, was devised at secret Rockefeller funded meetings stretching back to 2012.  The First Amendment of the Constitution guarantees individuals and organizations the right to free speech, regardless of how unpopular that speech may be.  This egregious abuse of prosecutorial power to trample the individual liberty of political opponents is not only unprecedented, but unconstitutional.

The Schneiderman-led group of state attorneys general are now attempting to hide behind a contract with one another in an effort to avoid releasing proof of their scheme, according to responses from state open records requests to E&E Legal and the Free Market Environmental Law Clinic (FME Law).  After intense litigation with the District of Columbia, E&E Legal obtained a copy of a Common Interest Agreement (CIA) signed by seventeen activist AGs and several climate alarmist groups to keep public records that reveal their targeting of political opponents out of the public eye.  Signers of the CIA include attorneys general from the states of: California, Connecticut, District of Columbia, Washington State, Massachusetts, Illinois, Maryland, Maine, Minnesota, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Virginia, US Virgin Islands, and Vermont.

All parties to the Eric Schneiderman-drafted agreement promised to alert each other of all public requests for information regarding their ‘climate denier’ witch hunt, forcing requesting parties to jump through the extra hurdle of filing law suits when attempting to obtain public records of their plot.

Chris Horner, E&E Legal’s Senior Legal Fellow noted, “In short, these activist AGs are trying to write themselves out from freedom of information laws their legislatures have written them into.” Horner continued, “they are hiding behavior that seems to be precisely the sort of abuse lawmakers sought to expose to sunlight when deciding to cover their states’ chief law enforcement officers under FOIA laws, particularly their use of nearly limitless powers to chill opposition and damage political opponents.”

Clearly drafted to obstruct public records requests while simultaneously trampling their respective states’ open records laws, the AGs did everything in their power to keep the Common Interest Agreement a secret.  A CIA is legitimate when: 1) litigation, or the reasonable anticipation of litigation; 2) that the parties share a similar interest; and that 3) there be a clearly defined scope to the agreement.  The Common Interest Agreement signed by the attorneys general does not meet this criteria.

Instead of claiming privilege for documents with the shared reasonable anticipation of litigation, the AGs claimed it in anticipation of open records requests.  Also, since it is not tailored to cover specific legal actions, the agreement is overly broad, covering numerous topics, from defending federal programs that limit greenhouse gases to actions to preventing delays in implementing renewable energy technologies. Therefore, this pact runs contrary to common interest doctrine, as well as open records laws, which state legislators passed to keep AGs accountable.  Since this Common Interest Agreement would be deemed illegitimate by your average first year law student, it is obvious that this pact was created for the sole purpose of avoiding public scrutiny.

Why, exactly, are these attorneys general so afraid of the public learning about their investigations?  The simple answer: the fear of embarrassment if the citizenry discovers what they are up to, and, more importantly, potential civil rights lawsuits by those they have targeted.  Their trepidation is already proving true.  After E&E Legal began publicizing their scheme, it appears most of the AGs are getting cold feet, as they are now denying any interest in using the criminal justice system against opponents of the climate agenda.  In response to their rapid about-face, E&E Legal is seeking all withdrawals from the Common Interest Agreement, as provided for in the document. If an AG’s office has not withdrawn, the American people should demand an explanation.