Environmental Collusion

By Andy May

Chris Horner of the Competitive Enterprise Institute (CEI) released a report (Law Enforcement for Rent) in August of 2018 detailing an unprecedented level of cooperation between the state governments of Maryland, Massachusetts, New York, Oregon, Washington and the District of Columbia. In these states, environmental groups and major liberal donors directly fund attorney general staff, research, public relations and other services. These non-governmental funds are specifically earmarked to advance progressive legal positions.

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The New York Attorney General, Barbara Underwood.

Dr. Horner is a lawyer and writer, as well as a senior fellow at CEI. He uncovered the plan to place privately funded investigators and lawyers in attorney’s general offices to pursue legal actions against fossil fuel companies. The idea is that the privately paid attorneys and staff are to work “pro bono.” In New York, these privately funded attorneys are called “Special Assistant Attorneys General.” In return for the funding, the state attorneys general agree to promote progressive clean energy and other environmental legal positions. The scheme is led by Michael Bloomberg. All the attorneys general insist they are not violating the law by accepting privately funded prosecutors and bypassing the legislative funding process. Laws vary from state to state, but it is possible that this scheme is illegal in New York, yet the New York OAG (Office of the Attorney General) told a donor the following:

“The New York OAG openly boasted to a donor that its “need” for privately funded prosecutors was driven in part by the “significant strain on staff resources” that had been caused by its “non-litigation advocacy.”

Horner describes this advocacy as the NY OAG’s leadership in the resistance to the Trump administration. Importantly, the NY OAG also cited its campaign as “building models for two different types of common law cases to seek compensation” from industries for supposedly having caused global warming; moreover, it “needs additional attorney resources to assist with this project.” On these bases and with a claim to having statutory authority to enter the unprecedented arrangement—a claim which on its face appears to be an invention—the NYOAG was awarded not one but two privately underwritten prosecutors.

Chris Horner’s comment to this statement is:

“This is the most dangerous example of a modus operandi we have found: it uses nonprofit organizations as pass-through entities by which donors can support elected officials to, in turn, use their offices to advance a specific set of policies favored by said donors. It also uses resources that legislatures will not provide and that donors cannot legally provide directly.”

Pardon my bluntness, but to this non-lawyer, it seems that the process allows private individuals and environmental organizations to buy an attorney general’s office to attack anyone or any company they don’t like. Its nice to know justice is non-partisan and incorruptible in these states.

Dr. Horner and CEI spent two and a half years filing freedom-of-information requests to get the documentation they needed to write this report. All the most critical documents are in the Appendix. In addition, on a separate site you can download all the documents. Many of these documents have never been made public before and many could only be obtained by court order in the face of determined opposition from the attorneys general. Horner concludes his executive summary as follows:

“The public–private partnership of law enforcement for hire revealed in this report, in which the partnership uses public office to expend resources not appropriated or approved by their legislatures, raises significant constitutional and other legal issues—as well as ethics concerns—and should be the subject of prompt and serious legislative oversight.”

I think we can all agree with this. It is heartening that CEI has sued the state of Virginia to block its attempt to bring a Bloomberg-funded “special assistant attorney general” into their staff.