Strong Optics at Attorney General's Climate Conclave but Weak on Details, Litigators

The announcement Tuesday that two more attorneys general are investigating whether ExxonMobil and other fossil fuel companies misled the public about the reality of global warming raised more questions than it answered - particularly as to whether this round of attorney general activism really has goals - or resources - like those of the state tobacco lawsuits of twenty years ago.

Some seventeen attorneys general attended or sent representatives to the all-day meeting hosted by New York Attorney General Eric Schneiderman, which was not in fact about litigation specifically, but about how to fight the the climate obstructionism of fossil fuel companies and their allies.

With this new round of announcements, four AGs - from New York, California, Massachusetts and the U.S. Virgin Islands -  are now running active investigations.  

Only four months after New York started its first-in-the-nation investigation into ExxonMobil, the sight of a small stage crowded with seven attorneys general pledging to hold fossil fuel companies accountable was an extraordinary one.

However, specifics about what a legal case against the fossil fuel companies would look like, or what the AGs hope to achieve, were notably absent from the press conference.  

In brief speeches, the AGs called attention to abnormal flooding, storms and other climate-related events that make climate a critical priority for state law enforcement along with the opioid epidemic, fraudulent investments and other business more usually associated with the office.

"We try as attorneys general to build a community, a safe community for all. But what good is that if annually everything is destroyed? And people begin to say, 'Why am I living here?' " said Attorney General Claude Walker of the Virgin Islands, noting the ever-worsening battering the islands receive as hurricanes become more destructive.

Tobacco Theory and Practice

Several other speakers compared the AGs' current mission on climate to the succesful campaign of tobacco lawsuits by attorneys general twenty years ago. However, missing from the press conference stage was one irreplaceable part of the AGs' tobacco effort of the 1990s: private lawyers.

With only a few exceptions, the AGs launched and won their fusillade of tobacco lawsuits with the help of private plaintiff's lawyers. 

These lawyers ran the cases both day-to-day and strategically. They came up with the Medicaid-recovery legal theory relied on by all 50 states, a theory that charged Big Tobacco with costing the states billions in health care costs over the years and one that forced the industry to agree to a settlement worth almost $300 billion, along with changes in marketing and advertising.

Law firms like Ness, Motley - now Motley Rice - and Hagens Berman each represented multiple states, allowing evidence and resources to be coordinated. These firms prepared the complaints, argued the motions, took the depositions, hired private investigators, and used all the tools available to deep-pocketed private lawyers.

Having a couple dozen of the largest and most experienced plaintiff's firms aggressively prosecuting the lawsuits on a contingent fee basis turbo-charged the effort, and saved state governments millions in upfront costs. In an era of shrinking state budgets, underfunded, understaffed attorneys general may have difficulty finding sufficient resources to devote to what could be a protracted and expensive legal battle. 

And in fact, Tuesday's all-day meeting of top state law enforcers was not even explicitly about taking legal action, but was announced as a "historic state-based effort to combat climate change" that would try to defend and expand upon the Obama administration's global warming program.

New Targets

Aside from the announcement of new players joining the investigation, there were other firsts. In his remarks, Maryland Attorney General Brian Frosh made a point of adding Peabody Energy and the ultra-right American Legislative Exchange Council as potential targets.

Vice President Al Gore, a last-minute addition to the proceedings, also expanded the list of potential wrongdoers from ExxonMobil alone, noting that the AGs have a role in "protecting the American people from what the evidence suggest is the kind of fraud that is being committed by several of the fossil fuel companies, electrical utilities burning coal, and the like."

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