For Immediate Release:
September 22, 2016

Contact:
Craig Richardson
Richardson@eelegal.org
703-981-5553

Washington, D.C.  — Newly released emails from two different states and obtained by the Energy & Environment Legal Institute (E&E Legal) offer further insight into the collapsed support for New York Attorney General Eric Schneiderman’s ever-shifting #ExxonKnew investigation.  These records suggesting that the AGs United for Clean Power coalition lost members not only to “Eric

[being] the wild card for all“, but also to fear of scrutiny of the “climate AGs” from the press and the public. They also show AG offices seemingly getting back at each other over self-serving, improperly selective releases.

This comes amid suggestions that Schneiderman is getting a face-saving intervention by the Obama administration, to end the abusive campaign he started, but was left to face the music for all alone. Specifically, new records show the Delaware Attorney General abandoning ship, reversing course two weeks after having submitted his signature bloc to join.  Delaware informed the team that that office would have no part of the coalition, and its willful disregard of the First Amendment in pursuit of their political goals, in direct response to a spate of emailed notices that open records requests were pouring in.

As recently reported, while Schneiderman originally cast nearly twenty other AGs in supporting roles for his investigation, emails revealed that some of his recruits expressed worry and ultimately walked away from joining in the effort.  This backtracking by Delaware’s AG is found in one of two recently obtained documents showing trouble in the erstwhile paradise of politicians abusing law enforcement offices to extract vows of silence, and a big payday, from political opponents of the AGs’ shared political “climate” agenda.

“These emails provide further evidence that Schneiderman’s supposed coalition, doomed from the start and, as February emails show, organized really to provide the appearance of broader support for his own individual overreach, will not be able to hold tougher in their implausible claims that emails about the scheme are legally privileged.  They are the work of a political coalition,” said Chris Horner, Senior Legal Fellow for E&E Legal. “First the Iowa AG’s office picked up on the gross abuse of power Schneiderman displayed in targeting political opponents. Facing the prospect of scrutiny, the Delaware AG reversed course, revoked his signature and excusing himself from Schneiderman’s crusade,” Horner continued.

Now, despite the vow made at the very beginning to slow-walk any open records requests, other cracks are showing under the strain of arguing that an openly political coalition, with expressly political objectives, warrants a shield under legal privileges to keep their scheming secret.

Consider one more new document, released by New York OAG on the Friday evening before the long Labor Day holiday — a notorious burial ground for embarrassing releases, as any administration or FBI official can tell you.  While the NY OAG sought to bury news of its refusal to produce many hundreds of pages of correspondence about this campaign, it did let slip one exchange from its clutches, apparent slap at it’s co-founding AG office, Vermont’s William Sorrell, along with a couple hundred pages of chaff (such as forwarded news clips and on-line constituent correspondence).

Before Vermont, too, initiated a stonewall it first let on to the AGs’ overreach with April release that we now know was improperly selective and self-serving.  Among other bombshells, this first tranche of records revealed not only New York’s effort at obtaining a secrecy pact (and Vermont’s objections to the planned stonewalling it implied, which it apparently has since gotten over).  That production also showed NY OAG requesting that “outside advisor” and green-group activist lawyer Matt Pawa mislead the media about his role in the “Climate Coalition.”

Pawa, of course, was brought in to the process by New York and Vermont along with the Union of Concerned Scientists, Harvard professors, and no doubt other outside activists, thereby waving any privilege they might claim. FN1  The portions of the email thread that Vermont did release showed Pawa’s awareness of the problems that his involvement poses to the AGs’ political campaign, FN2 and New York suggesting he mislead.

What Vermont forgot to release — its own expression of gratitude to Pawa for saying that not admitting to his role made sense — New York did manage to provide, despite insisting on holding on to everything else but press clippings and web-based consumer concerns:

  • “Outside advisor” PAWA (5.30.16 6:31 pm: Lem and Scot – a WSJ reporter wants to talk to me. I may not even talk to her at all but if I do I obviously will have no comment on anything discussed at the meeting. What should I say if she asks if I attended? No comment? Let me know.
  • NY OAG’s SROLOVIC (5.31.16 9:31 pm): My ask is if you speak to the reporter, to not confirm that you attended or otherwise discuss the event.
  • PAWA 5.31.16 6:34 am): That is what I thought and it makes good sense. Thanks.
  • VT OAG’s KLINE (5.31.16 7:39 am): Thanks Matt.

Vermont managed to release the non-bolded portion of the exchange in the production that led to this scheme blowing up on all participants (and likely contributing to Delaware’s second-guessing participation in the coalition); what Vermont OAG failed to locate and release was its long-time friend Pawa’s agreement with NY OAG’s request to mislead, and Vermont OAG’s own gratitude to Pawa.
In fact, the reporter referenced in the exchange, WSJ’s Amy Harder, had no idea about Pawa’s role and was calling about a different but related meeting that Pawa attended.

Background

Less than a month after Delaware Attorney General Matthew Denn (D) agreed to sign the Common Interest Agreement – which a coalition of AGs have been using improperly to hide their efforts while they investigate climate skeptics – Denn reversed course, informing his colleagues that he would no longer be participating in New York Attorney General Eric Schneiderman’s climate crusade.

Emails obtained by E&E Legal through a Freedom of Information Act request to the Virginia AG’s office reveal that the Delaware AG had signed on to a draft Common Interest Agreement as early as April 21, 2016. In an email to staffers of the AGs participating in Schneiderman’s coalition, New York Deputy Attorney General Monica Wagner indicates that “DC, DE, NH, OR, and WA have approved the latest draft and sent signature blocks” for the purported Common Interest Agreement.


However, by May 9 the Delaware AG had apparently thought better of what was transpiring — by now the subject of a series of open records requests, which had begun to expose it — deciding it would be best if he didn’t get involved in the overtly political campaign to prosecute public dissent against the climate agenda. In an email to the coalition points of contact sent on the evening of May 9, Delaware Deputy Attorney General Ralph Durstein III wrote: “Our AG has determined that Delaware will not be involved in this worthy effort, and thus will not be signing the common interest agreement.”

What had changed in those few short weeks? Notably, Dustin wrote specifically in response to another notice of related FOI requests coming in. Media attention to the investigations into Exxon and conservative think tanks by Schneiderman and the US Virgin Islands’ Claude Walker (who has since aborted his mission), overwhelmingly turned against the AGs.  After a short boost in press coverage of their March 29 press conference, the climate AGs suddenly faced a barrage of criticism by their colleagues, legal experts, and editorials boards across the country as the details of the AGs’ collaboration with environmental activists continued to trickle out.

The editorial boards of the Pittsburgh Tribune-Review, Grand Junction Sentinel, and Financial Times called on the AGs to come clean and stop abusing the power of their office. Such condemnation continues to flow at the local level, as exemplified by a recent Bend (OR) Bulletin editorial.
Then news broke on May 3 that U.S. Virgin Islands Attorney General Claude Walker had targeted nearly 100 groups in his subpoena to Exxon, opening the flood gates to a wave of outrage towards the AGs’ investigations and their attempts to stifle free speech.

The last straw seems to be the May 9 notification by the Vermont’s AG office alerting the coalition that they had received another public records request, after E&E Legal’s revelations had convinced even Politico to look into the matter. At 11:10AM on May 9, Vermont Assistant Attorney General Scot Kline informed the group via email: “Pursuant to paragraph 6 of the Common Interest Agreement, below is a public records request our office received and the clarification of it.”

Paragraph six of the supposed  Common Interest Agreement says that the parties agree to immediately notify all other parties in writing of any public requests for information covered by the Common Interest Agreement and “refuse to disclose any Shared Information unless required by law.” Even with that stipulation, for a plainly political coalition — or, possibly due to it and some OAGs feeling emboldened — E&E Legal has been forced to sue several AG offices for information related to their campaign.
Within hours of being notified of that most recent public records request posed to the Vermont AG’s office the Delaware Attorney General’s Office decided that it wanted no part in the investigations and rescinded its agreement to formally sign on.

As noted, the Delaware AG is not alone. The same day that, as E&E Legal has revealed, Iowa Deputy Attorney General Tam Ormiston wrote back to his office that “Eric is himself the wild card for all”, his colleague Eric Tabor suggested that they felt like they were stuck with their agreement to participate in the March 29 press conference: “Tam — Just talked with Tom [Miller, Iowa AG]. He thinks we may be locked in on this and have to ride it through.”  Afterward, Iowa also refused to sign on to the “wild card’s” pact.

Also ahead of the March 29 press conference, the Virginia AG’s Director of Communications wrote: “At this point, we don’t know what we’re going to agree to, or really what Virginia’s laws and our authorities could allow us to do, so it makes me nervous to say we’ve ‘agreed to work together on key investigations.’ Is there any room to dial that back one notch?” The Vermont AG’s office likewise tried to tone down the event during the planning stages pointing out, “Not all of the states have yet opened a formal investigation and there is some sensitivity here (and I suspect in some other states) to saying or indicating that we have.”

As Schneiderman’s crusade to silence dissent against his political agenda collapses around him, these latest emails show that his allies saw the writing on the wall. Iowa and Delaware sought to extract themselves before they got in too deep, while others must be questioning their involvement now that Congress, the media, and public opinion have turned against them.


1 The other email NY would let slip from its clutches in this batch showed Schneiderman’s lieutenant running the RICO “Climate Coalition”, Lem Srolovic, alerting UCS’s representative he had b brief the AGs just before Pawa did on March 29, Peter Frumhoff, to ExxonMobil having issued a statement, and another seeking to talk.

2  Pawa himself admitted the political nature — which, after his involvement was revealed, he then denied — in an interview with The Nation magazine earlier this year. “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.” https://www.thenation.com/article/the-government-may-already-have-the-law-it-needs-to-beat-big-oil/

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.

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