Above Photo: San Francisco and Oakland, California, sued several fossil fuel companies for contributing to climate change. Both cities face increasing risks as sea level rises. Credit: Justin Sullivan/Getty Images
DOJ attorneys describe working with industry lawyers as a ‘team,’ raising questions about whether government was representing the American people.
In early 2018, a few months after the cities of Oakland and San Francisco sued several major oil companies over climate change, attorneys with the U.S. Department of Justice began a series of email exchanges and meetings with lawyers for the oil companies targeted in the litigation.
At one point, Eric Grant, a deputy assistant attorney general in the Justice Department’s Environment and Natural Resources Division, sent an email to Indiana’s solicitor general saying that his “boss” had asked him to set up a meeting to go over a plan for the government to intercede in the cases on the companies’ behalf.
The cities were arguing that oil companies should be held liable for catastrophic flooding, sea-level rise and other harmful consequences caused by climate change. The DOJ was preparing an amicus brief in support of the industry, and the Indiana solicitor general was leading the charge by Republican attorneys general from 15 states to also file a court brief supporting the industry.
In another email, an assistant U.S. attorney general referred to the DOJ attorneys and industry lawyers—many of them former DOJ environmental lawyers—as a “team.”
The messages were among 178 pages of emails exchanged by government and industry from February through May 2018 as they worked together to oppose the cities’ lawsuits. They were obtained by the Natural Resources Defense Council (NRDC) under a federal Freedom of Information Act request and shared with InsideClimate News.
Although the emails do not reveal the substance of discussions that took place during the meetings, they bespeak the unapologetically close relationship between the Trump administration and the oil industry. They also provide a window into the closely coordinated efforts to block the climate lawsuits between industry and the Justice Department’s environmental division, which touts itself as “the nation’s environmental lawyer, and the largest environmental law firm in the country.”
Legal experts say the conversations raise questions about the federal government’s objectivity and whether the Department of Justice, in these cases, was acting in the best interest of the country’s people.
The “boss” to whom Grant, the deputy assistant attorney general, referred in his email at the time was Jeff Wood, the Trump-appointed acting assistant attorney general leading the Environment and Natural Resources Division. Wood had landed at the DOJ after serving on the Trump-Pence campaign and after an earlier stint as staff environmental counsel to then-Sen. Jeff Sessions, who would become Trump’s attorney general.
Wood declined to comment, though he cited a footnote in the order by U.S. District Court Judge William Alsup dismissing the cases that the federal government’s amicus brief supporting the oil industry had been submitted “at the Court’s invitation.” The dismissal is now being appealed.
Neither Grant nor his colleagues involved in the meetings with the industry responded to a request for comment. The Justice Department and industry lawyers also did not respond.
The climate lawsuits that grabbed Wood’s attention argue that the companies created a public nuisance—climate change—by producing fossil fuels that become the principal cause of global warming when burned.
“The rapidly rising sea level along the Pacific coast and in San Francisco Bay, moreover, poses an imminent threat of catastrophic storm surge flooding because any storm would be superimposed on a higher sea level,” the lawsuit filed by Oakland officials states. “This threat to human safety and to public and private-property is becoming more dire every day as global warming reaches ever more dangerous levels and sea level rise accelerates.”
The emails cover a period beginning in February 2018, six months after climate cases were filed, and ending in May, a few weeks after the Justice Department filed the amicus brief on behalf of the five oil giants named in the lawsuits.
At one time or another, six attorneys—one-quarter of the attorneys assigned to division’s Law and Policy Section—were brought into the loop with industry.
Justice Department attorneys had multiple conference calls with attorneys for BP and Chevron and hosted at least one in-person meeting at DOJ headquarters in Washington, prompting an attorney for BP to write at one point “thanks again for the helpful discussion last week,” according to the emails. The string of electronic notes shows the extensive effort DOJ attorneys made in coordinating various meetings with their oil industry counterparts.
One of the Justice Department lawyers the emails identified as participating in the strategy sessions with the industry has notified the appeals court considering the case that she will be appearing during the time allotted for the industry to present its arguments next month.
Just Raised Eyebrows or Red Flags?
Because the emails do not reflect the substance of the meetings, Justin Levitt , a law professor at Loyola Law School in Los Angeles, said it is difficult to assess whether ethical lines were crossed.
“If these meetings discussed the logistics of a DOJ amicus filing but not the substance of what the DOJ would file, it may be reason to raise an eyebrow but not a red flag,” he said.
It would be unusual and trigger questions if the meetings delved into the issues raised in the lawsuits, said Smith, a former deputy assistant attorney general in DOJ’s Civil Rights Division.
“It wouldn’t pass the sniff test if the DOJ was trying to address substantive issues,” he said. “If the meetings were about the logistics, there’s nothing improper.”
In its amicus brief, signed by Wood, the government argues the lawsuits violate the constitutional principle of separation of powers between the federal and state governments.
“Balancing the nation’s energy needs and economic interests against the risks posed by climate change should be left to the political branches of the federal government in the first instance,” Wood wrote in the brief.
“The United States has strong economic and national security interests in promoting the development of fossil fuels, among other energy resources,” he wrote.
Wood, who has since left the justice department to become a partner in a Washington D.C. law firm representing clients in federal enforcement actions, also cites a 2017 executive order issued by President Donald Trump saying: “It is in the national interest to promote clean and safe development of our Nation’s vast energy resources.”
No Similar Conversations with the Cities
Pete Huffman, a staff attorney for NRDC, acknowledged the emails offer just a glimpse into the behind-the-scenes action, but says they are enough to raise serious questions.
“We would expect them to be working in what they think are the best interests of the United States,” he said. “We don’t think that working with the industry against climate action in most of these places is in the best interests of the United States.”
“We don’t know all the facts from these documents, but it starts to look less like trying to get to the best interests of the United States and more like coordinating in the best interests of the industry,” he said.
The conclusion of favoritism cannot be discounted because the emails do not reflect an attempt by DOJ to contact either the cities of Oakland or San Francisco, Huffman said.
“I can tell you for sure that DOJ never reached out to us,” said Alex Katz, chief of staff for Oakland City Attorney Barbara J. Parker. The same for the San Francisco city attorney’s office, said spokesman John Cote.
A spokesman for the law firm now handling the two cases declined to comment.
Acting in Whose Best Interest?
Pat Parenteau, a professor of environmental law at the Vermont Law School, calls the apparent collaboration “troubling.”
While it’s within the realm of DOJ to express its view on the legal foundation of any case, the department should remain as objective as possible without the appearance of taking sides, he said. The government, he said, should have no contact with either side and simply express an opinion on the legal issues and allow the court to decide.
“From just the appearance standpoint here, it’s troubling to see any coordination,” Parenteau said.
That’s an especially disconcerting line to cross in the climate cases where the public has been put in jeopardy by the industry’s role in climate change, he said.
“The DOJ is supposed to represent the best interest of the people,” he said. “In these cases there is an existential threat to the public. So clearly the government is defending against the best interest of the public by cozying up to the industry.”
In a March 20 email, for example, Assistant U.S. Attorney Christine Ennis wrote to Ethan Shenkman, an attorney representing BP, inviting a conversation regarding the California cases.
“Jim Kilbourne, (an assistant U.S. attorney) who is copied here, told us that you would be interested in discussing the nuisance lawsuits filed against BP,” Ennis wrote. “Justin Smith and I would be happy to speak with you.”
The BP lawyer responds two days later: “Christine – many thanks for reaching out.”
A few weeks earlier, an attorney for one of the oil companies sent a note reminding a Justice Department lawyer that a judge in California had set a filing deadline for DOJ’s brief supporting the industry.
“Thank you for forwarding this,” Assistant U.S. Attorney Justin Heminger responded. “Best regards.”
The Oakland and San Francisco cases—as well as the dozen other climate lawsuits—remain gridlocked in various legal proceedings from California to New York.