Just Another Frivolous Climate Lawsuit

This story originally was published by Real Clear Wire

By Jason Isaac
Real Clear Wire

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.