By Jason Isaac
September 19, 2024
A leftwing judicial influence group is finding the spotlight unwelcome.
The Environmental Law Institute’s Climate Judiciary Project (CJP) brands itself as an objective source for judges interested in climate change issues and has held “educational” events for over 2,000 judges. My organization, the American Energy Institute, recently unveiled CJP’s many ties to far-left climate plaintiffs pushing Green New Deal-type policies by lawsuit.
After treatment in major news pieces and prominent editorials, Environmental Law Institute president Jordan Diamond recently responded with a non-sequitur in the Wall Street Journal.
These essential facts are unrebutted in Mr. Diamond’s letter: CJP takes millions of dollars from the same entities bankrolling climate change cases against energy providers. Activist academics who shape CJP programming also advise the climate plaintiffs on the side or support them in amicus filings. And the “educational materials” themselves skew heavily toward climate plaintiffs, presenting as fact claims that defendants are vigorously disputing in dozens of cases.
It is no answer – it is completely irrelevant – to note as Mr. Diamond does that CJP does not “participate in litigation” or “advise judges on how they should rule in any case.” CJP is more subtle by design. It is a leftwing group that exists to condition the legal environment such that climate change lawsuits receive a more favorable hearing. CJP achieves its policy objectives without being heavy-handed and obvious.
And CJP’s goal is to produce policy change. They say so themselves. Sandra Nichols Thiem, ELI’s judicial education director, said in 2022 that CJP’s goal is to help create “a body of law that supports climate action.”
Honolulu’s climate change lawsuit against energy providers is a good example of ELI and CJP at work.
ELI personnel apparently helped get that lawsuit going. Emails show that ELI board member Ann Carlson used a discretionary fund to pay for a trip to a 2019 conference meant to “encourage Hawaii to consider a nuisance lawsuit” against energy providers. Carlson spoke at that conference alongside Vic Sher, a trial lawyer who represents two dozen states and municipal entities in climate change lawsuits. Ultimately the city and county of Honolulu responded to this call to action, filing a nuisance suit against providers in 2020. Who did Honolulu enlist to represent them? That would be Vic Sher.
Honolulu had every expectation of success, given that a good friend of ELI holds the state’s highest judicial post. Mark Recktenwald, the chief justice of Hawaii’s state supreme court, is an ELI ally who has presented at least three times for the group about rising sea levels and climate change litigation generally. Honolulu’s lawsuit reached the state supreme court in 2023. And it was Recktenwald who wrote the decision allowing Honolulu’s lawsuit to proceed. Energy providers have appealed Recktenwald’s ruling to the U.S. Supreme Court.
That’s conditioning at work. Would ELI and CJP ever be so bold as to participate in litigation or tell judges how to rule? Of course not. Instead, they quietly manipulate the environment – guiding the right people to the right places or equipping judges with select information – such that their preferred outcomes are assured.
The U.S. Supreme Court may yet derail these well-laid plans. Energy providers turned to the U.S. Supreme Court in February after the Recktenwald ruling, asking the justices to disallow lawsuits of the kind Honolulu is bringing. We are likely to find out if the high court will hear the case early in 2025.
It’s understandable that ELI and CJP want to conceal the nature of their operations while the appeal is pending. But no one should be obtuse about the Climate Judiciary Project. This is an outcome-oriented operation, whatever Mr. Diamond pretends in the unwelcome spotlight.
The Honorable Jason Isaac is CEO of the American Energy Institute and their sister trade association representing American energy producers that unapologetically support free markets and liberating American energy. He previously served four terms in the Texas House of Representatives.
This article was originally published by RealClearEnergy and made available via RealClearWire.
Except for professional legal courtesy, a civil RICO suit against Sher Edling would be in order. As they keep filing nuisance suits that they consistently lose, including their litigation funders would be in order, too.
But courts are very reluctant to hold other lawyers liable for misconduct, no matter how egregious.
Can’t they be countersued?
Lawyers are rarely held responsible. It is like the old joke of why sharks do not attack lawyers—professional courtesy.
It is unethical–and actionable–to bring frivolous lawsuits. If a court agrees a case meets that definition, the lawyer will be disciplined, by the court, not the state bar.
It seems like, if one lawyer, or firm, gets enough court discipline, there would be consequences.
They have no problem going after conservative lawyers and judges, ask Clarence Thomas.
Or any of Trump’s lawyers.
You have the goods against these people make it public in court. The time for being timid and holding back has past. We need to grab them by the ears and kick them into neverland. They are bad let’s treat them like they are bad.
The argument may be made that Honolulu ought to be tossed out of state court into Federal court. But I suggest that since the lawsuit accuses the fossil fuel industry of running disinformation campaigns based on literally worthless ‘leaked industry memos’, it has not made even a prima facie case that any industry disinformation campaigns to deceive the public ever happened, thus it should be dismissed for that reason. For more details, see my March 2020 dissection of it, City and County of Honolulu v. Sunoco LP, et al.
Objectivity is a nice sounding goal, but it is realized only in very special circumstances. People and groups of people never behave objectively except to see their own interests as an “objective” good. It is simply unreasonable to expect objectivity knowing anything about the human mind. The fairest results come out of adversarial proceedings where all evidence is weighted, and those rendering judgment in the end are capable, mentally, of understanding the evidence. This last point is what makes these scientific/engineering disputes so devilish.
City of Honolulu would love to find a new source of revenue for their endlessly growing needs. ELI/CJP are interested in growing their business model, if you will, although many of them may be utopians who see their efforts as “doing good”. The energy providers would like to continue their lawful business, unimpeded by nuisances, and avoid their assets becoming stranded.
Me? I’m not objective because I know that making energy expensive, and maybe even unavailable, is a disaster in the making for all, even if the utopians/judges/juries/do gooders can’t see that themselves.
Maybe the City of Honolulu should focus on finding replacement sources of power, as biting the hand that provides their power needs might be a losing proposition.
“Climate action” what does that mean? Sounds scary! Very vague.
Blow more hot air?
If Justice Recktenwald has heard a plausible accusation, with evidence, that he has been swayed beyond usual limits, surely it is expected as a judicial principle that he will respond.
Personally, I find it either illegal or intolerable that a lobby body like CJP is allowed anywhere near a Judge. Are there no guidelines or laws that should cause Judges to close their doors to them? Geoff S
Our court system has better things to do than deal with frivolous crap like this. If they don’t have better things to do then it is time to whittle down the court system. We don’t need a bloated court system.