State AGs for Rent

Privately funded litigators wield state police power.

 

Eric Schneiderman in New York City, Feb. 11, 2016.
Eric Schneiderman in New York City, Feb. 11, 2016. PHOTO: MARY ALTAFFER/ASSOCIATED PRESS

With the courts and Trump Administration rolling back federal climate regulation, green activists have turned to the states. But there’s a troubling ethical twist: Instead of merely lobbying, activists are placing employees in Attorneys General offices in dubious private-public condominiums.

Consider a remarkable arrangement brokered by the NYU Law School’s State Energy and Environmental Impact Center to fund legal services for state AGs. The group was launched in August 2017 to advance a liberal climate and energy agenda, courtesy of a $6 million grant from Bloomberg Philanthropies, which also financed the Sierra Club’s Beyond Coal campaign.

In August 2017 the NYU outfit emailed then-New York Attorney General Eric Schneiderman’s office, offering to cover the salary and benefits of “special assistant attorneys general,” pending an application from the office that demonstrated how the new attorneys would be used. These privately funded staffers would work out of an AG’s office for two years and deliver quarterly progress reports to the State Energy and Environmental Impact Center.

Those progress reports would explain “the contribution that the legal fellow has made to the clean energy, climate change, and environmental initiatives” within the attorney general’s office, according to a December 2017 draft of an agreement between the Center and the New York AG obtained by Chris Horner of the Competitive Enterprise Institute.

Attorneys General do sometimes bring on legal fellows or outside help to handle unique cases. But subject-matter experts aren’t in-house or chosen with specific intent to promote specific policies, according to Randy Pepple, who was chief of staff for former Washington Republican AG Rob McKenna. In the New York case, a special interest is funding staffers who could wield state law-enforcement power to punish opponents.

The State Energy and Environmental Impact Center made clear that state AG offices would only qualify for special assistant AGs if they “demonstrate a need and commitment to defending environmental values and advancing progressive clean energy, climate change, and environmental legal positions,” according to the August 2017 email to numerous AGs. Mr. Schneiderman’s office suggested in its application for the fellows that it “needs additional attorney resources to assist” in extracting compensation from fossil-fuel emitters.

That’s exactly what’s happening. The New York AG currently has two NYU fellows on staff, according to the State Energy and Environmental Impact Center. One of the fellows, Gavin McCabe, signed off as “special assistant attorney general” on an amicus brief in June in support of New York City’s suit for damages against BP, Chevron , ConocoPhillips , Exxon Mobil , and Royal Dutch Shell for alleged climate sins. That case was thrown out in July by federal Judge John Kennan on grounds that problems arising from climate change “are not for the judiciary to ameliorate.”

The other, Matthew Eisenson, signed New York state’s suit filed last month against Exxon for allegedly misleading investors about the risks that climate-change regulations pose to its business. The free help will also make for welcome reinforcements in New York-led litigation against the Trump Administration, including a suit against the EPA for its methane regulation.

A lack of government transparency makes this arrangement especially troubling. The New York AG’s office, now run by Acting AG Barbara Underwood, declined to comment. Mr. McCabe and Mr. Eisenson could not be reached for comment by our deadline.

The State Energy and Environmental Impact Center said in a statement that the state offices it works with “has the authority consistent with applicable law and regulations to accept a Legal Fellow whose salary and benefits are provided by an outside funding source.” It added that it places workers with AGs who already have a long history of advancing the center’s energy priorities. “The work that NYU law fellows perform is directed by those AGs and not by the Center,” the Center said.

At least six state AG offices have already brought on board a special assistant attorney general, according to an August report by Mr. Horner. Besides New York, the jurisdictions include Maryland, Massachusetts, Oregon, Washington and the District of Columbia. In September, Mr. Horner learned that Illinois and New Mexico have brought on special assistant AGs as well, which was confirmed by the NYU outfit.

The ethical problems here should be obvious. Private interests are leveraging the police powers of the state to pursue their political agenda, while a government official is letting private interests appear to influence enforcement decisions. None of this is reassuring about the fair administration of justice.

Appeared in the November 7, 2018, print edition.

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