Lawyers for a Washington-based nonprofit legal institute are calling their lawsuit against the Vermont Attorney General’s office a win, despite their inability to uncover long-sought-after public records.
In 2016, the Energy and Environment Legal Institute filed two public records lawsuits against former Attorney General William Sorrell after he refused to release information about his involvement with AGs United for Clean Power, a now-defunct group of 17 Democrat attorneys general led by former New York Attorney General Eric Schneiderman. The coalition conspired to investigate Exxon Mobil for its statements regarding climate change.
In July 2017, a Washington Superior Court judge ruled that the attorney general’s office could not deny public access to documents, and ordered officials to release communications to E&E Legal. Attorney General TJ Donovan’s office responded a month later by saying it had no relevant records to deliver.
Despite the anticlimactic outcome, E&E Legal general counsel Chaim Mandelbaum told True North that the group succeeded against AGs United for Clean Power and is now moving on to other battles.
“The Vermont Attorney General’s office indicated that there were no responsive records saved and the court found that that was an acceptable response,” Mandelbaum said in an interview. “The Energy and Environment Legal Institute ultimately decided not to appeal that decision to the Supreme Court.”
But some records were turned over, including “records that show that they were working with these outside [environmental] groups,” said Brady Toensing, vice chair of the Vermont Republican Party and a local lawyer working with E&E on the case.
“That’s a big deal that I had to take a case to the Supreme Court to get them to acknowledge their responsibilities under the Vermont public records law,” he said.
Toensing said there are more documents that the court deemed to be a special privilege for an exemption to the records request. In any case, he agreed the effort was overall a success.
Earlier this month, the New York Supreme Court ruled that Schneiderman must hand over public information about his climate crusade against the Competitive Enterprise Institute, a free-market think tank targeted by the multi-state coalition of attorneys general. The ruling was yet another blow to politically motivated AGs using their combined state powers to intimidate so-called “climate change deniers.”
Mandelbaum said he does “have doubts” about whether the attorney general’s office for Vermont has handed over all relevant documents. However, given the cost of continuing the legal battle, E&E will shift its resources to advocacy for President Donald Trump’s energy policies.
Toensing said there’s not much else that can be done about Donovan’s denial that other records exist.
“We just have to take his word for it,” he said. “He gave a categorical denial that there were any in his possession, and usually cases like this hinge on whether they are a public record and whether there is an exemption appropriately applied by the agency.”
The legal battle between E&E Legal and the AG’s office is not entirely over. The group seeks a determination about whether the office must pay for E&E’s attorney fees, and if so how much. Toensing said the state will have to pay if it can be demonstrated that E&E “substantially prevailed” in its case.
Mandelbaum said efforts among state attorney general offices to harass those who question the global warming narrative may continue despite E&E’s success.
“I think it’s very likely that they [companies like Exxon Mobil] will have to continue to deal with these nuisance lawsuits from attorneys general in certain states, and cities and other municipalities,” he said. “And I think it’s worthwhile for those companies that have the resources to do so to try to look into their underlying motivations. It’s very clear their motivations are political, as opposed to legal or economic.”
Toensing said it’s important to continue to hold AG offices accountable.
“The use of their offices to attempt to punish political opponents is a frightening prospect when you look at the enormous powers of these offices,” he said. “For them to misuse it for purely political reasons is really scary.”
On the New York front, state Supreme Court Justice Henry Zwack ordered Schneiderman in November 2016 to hand over common interest agreements that CEI had requested. Schneiderman claimed a FOIL exemption to deny delivery, but with no success.
“The Appellate Division is the latest court to reject the attorney general’s bogus excuses for hiding information from the public,” CEI attorney Anna St. John said in a press release. “We hope this ruling will encourage the attorney general to be more transparent about his office’s activities.”