State attorneys general (AG) are supposed to enforce the state’s laws on behalf of the state’s citizens, but several AG’s offices are at risk of becoming conduits for advancing a privately-funded political agenda.
Former New York City Mayor Michael Bloomberg has given millions of dollars to a group that funds placing lawyers in state AG offices for the purpose of pursuing politically driven environmental litigation. Such activities raise serious questions about political bias and conflicts of interest within a state’s leading law enforcement agency.
This is an unsettling effort that undermines the integrity of state law enforcement.
Having served as Washington’s attorney general, I readily acknowledge that the priorities of individual state AGs vary and reflect the political perspectives of voters in their states. However, a public policy program funded with more than $6 million from Bloomberg crosses the line between law enforcement and political activism.
Established last summer, the State Energy and Environmental Center, or State Impact Center, at New York University School of Law funds “special assistant attorneys general” offered up “to support state attorneys general in defending and promoting clean energy, climate and environmental laws and policies” and in a “non-partisan” fashion.[i]
However, given Bloomberg’s backing of aggressive moves against climate change and the stridently political statements of its Center’s director,[ii] it is hard not to conclude the program is more partisan, activist and hostile to industry than what is publicly represented.
Only Democrats have applied for these positions.[iii] The Center is financing special assistant attorneys general offices in 10 states and counting. [iv] Among them are liberal strongholds: the District of Columbia, Maryland, Oregon, Washington, Massachusetts, and New York.[v] Former Portland City Commissioner and veteran environmental litigator Steve Novick, who is working in the Oregon AG’s office at a salary of $146,196 funded through the Center, exemplifies the subsidized environmental activism under way across the country.[vi]
The Center’s director, David J. Hayes, a veteran of the Obama and Clinton administrations, told the Washington Post that although “there’s never enough” funding to support this sort of advocacy, the grant from Bloomberg Philanthropies could support not only litigation against the federal government but also enforcement activities on the state level.[vii]
Indeed, the Center’s work must be seen in the context of a coordinated strategy by climate activists to use lawsuits, divestment campaigns and even smear tactics to harass and undermine energy companies. In 2012, a gathering of activists led to what has been called the La Jolla Playbook which would emulate the litigation strategy deployed against tobacco companies in the 1990s in order to now extract billions from oil and gas companies.[viii] Not long after a subsequent meeting at the Rockefeller Family Foundation’s offices in New York in 2016, a spate of lawsuits was underway.[ix]
Massachusetts Attorney General Maura Healy’s office is home to two of the special assistants from the Center at NYU. In late 2016, she and former New York Attorney General Eric Schneiderman spearheaded a multi-state crusade to show Exxon misled shareholders and the public about what it knew about climate change. When Exxon submitted reams of documents showing otherwise, most states withdrew from the suits – but Healy is tenacious.[x]
In another coordinated legal strategy, environmental activists and trial lawyers nudged state and local officials to sue fossil fuel companies to pay for the impact of rising sea levels on coastal communities. Federal judges have dismissed a number of these suits, reasoning that a planetary phenomenon with a myriad of possible causes cannot be attributed to a handful of companies whose “crime” is to supply energy the world needs, including gasoline for cars driven by the people filing suit.[xi]
The fact that the Center’s special assistants are funded through an “501(c)3” nonprofit organization allows a lot of their discussions with the AGs to remain private,[xii] which is a disservice to transparency in government. It is also additional evidence of an effort by deep-pocketed activists to distort policymaking and hijack the functions of state law enforcement.
The Wisconsin AG turned down the grant because they determined it Illegal. Also, the Competitive Enterprise Institute in their 58 page study critical of the State Impact Center observed “Government employees participating in this … are so reluctant to let the public in on the details of their campaign that they routinely force litigation before releasing the relevant public records.” The study went on to conclude that “…enough is known to require immediate legislative oversight—at the state and federal levels—to determine the propriety of this scheme, its legality, its extent, and the fruits it has yielded to date.”
Over the years, activists and partisans on both sides of high-stakes policy battles have engaged in tactics that test the limits of propriety in exercising the Constitutional right “to petition the government for the redress of grievances.” The State Impact Center is going even farther and apparently using the government for the redress of Bloomberg’s grievances.
The office of the state attorney general is a public institution, funded by taxpayers. When it is used for political activism, citizens have the right and the duty to ask why and learn more. The State Impact Center at NYU is a political operation undertaken in a clandestine fashion and under the guise of some kind of benevolent fellowship program for legal scholars and policy experts. This should strike anyone as a glaring act of bad faith.
Ken Eikenberry served as state Attorney General from 1981 to 1993.