Ann Carlson of the UCLA School of Law has been targeted by fossil fuel groups to release her correspondenceUCLA law professor Ann Carlson is one of two professors studying climate liability that has been targeted by a Freedom of Information lawsuit similar to those used against climate scientists. Photo credit: Emmett Institute on Climate Change and the Environment

print
By Marco Poggio

A conservative think tank with deep ties to the fossil fuel industry has sued UCLA to obtain email correspondence between two UCLA climate law professors and pro-environment individuals involved in climate change litigation.

The lawsuit was filed last month in California Superior Court by the Competitive Enterprise Institute (CEI), a libertarian group that lobbies against limits on greenhouse gas emissions and claims that CO2 is good for the environment. CEI argued the university hasn’t complied with two public record requests made in February and May under the California Public Records Act.

According to the lawsuit, Competitive Enterprise Institute v. Regents of the University of California, the emails show environmental law professors Cara Horowitz and Ann E. Carlson discussed future meetings with others, including staffers from several attorney general offices, to discuss new legal actions against major carbon producers.

The lawsuit mimics the ones filed to obtain email correspondence by several climate scientists, including prominent climatologist Michael Mann of Penn State, which was ended by the Virginia Supreme Court in 2012. Another continues to embroil University of Arizona scientists Jonathan Overpeck and Malcolm Hughes, who were recently ordered to release 13 years of emails demanded by another fossil fuel ally.

“This appears to be yet another effort by hired guns funded by polluting interests to badger, intimidate, and silence scientists whose findings prove inconvenient to those who continue to profit from our dependence on fossil fuels,” Mann said of the suit against UCLA.  

Among the emails Horowitz and Carlson have been asked to release are those exchanged with litigators in direct contact with offices of pro-environment attorneys general around the country. That includes former New York Attorney General Eric Schneiderman, who in 2015 began investigating Exxon for possible climate change-related fraud.

Carlson told Climate Liability News that UCLA is working on complying with CEI’s record request, sorting through hundreds of emails.

“I don’t feel intimidated. I don’t have anything to hide,” Carlson said, “I don’t have a problem, so far, with what I’ve been required to turn over.

“I do worry that these tactics, more broadly, are designed to discourage public discourse about important topics, like climate change and who should pay for climate damages.”

Specifically, CEI has asked for correspondence between the two UCLA scholars and Shaun Goho, a Harvard lecturer and environmental lawyer with a record of environmental litigation in state and federal court.

Goho said the lawsuit is just an harassment tactic meant to divert the energy and resources of people fighting climate change away from their work.

“I don’t see how academics speaking with government officials about matters of public concern is a conspiracy. It doesn’t seem to make sense to me,” Goho said.

“This lawsuit doesn’t stand alone. It’s really part of a broader campaign by fossil fuels companies and their allies to harass people who are taking action trying to try to address climate change in various ways, whether it’s climate scientists, lawyers or others who are researching legal issues related to climate change and the relationship between climate change and the fossil fuel industry.”

CEI has deep ties to the fossil fuel industry. Exxon was its biggest funder until 2006, when public criticism pushed the company to distance itself from CEI’s climate denial campaigns.

CEI has also sought emails containing the names of other pro-environment lawyers and climate scientists, including Peter Frumhoff, the director of science and policy at the Union of Concerned Scientists, and Sharon Eubanks, one of the attorneys involved in the federal tobacco litigation against Philip Morris.

Additionally, CEI demanded emails regarding two separate events—one held at Harvard and one at UCLA—attended by Carlson and Horowitz and employees of various state attorney general offices, private lawyers, academics and environmental activists, who were set to discuss causes of action against major carbon producers.

“Public records show that Professors Horowitz and Carlson are using their positions at your public university to coordinate with certain activists groups in organizing and pursuing law enforcement and civil investigations and litigation against private opponents of a particular political agenda. We seek correspondence and other records illuminating this use of a public university faculty position and resources,” the request’s text reads.

Frumhoff declined to comment for this story.

Central to the lawsuit are the UCLA and Harvard meetings, in which Carlson, Horowitz and other parties discussed legal actions against polluters.

The “secret meetings” as they were described in some of the emails, were attended by Frumhoff and Matthew Pawa, a lawyer with Hagens Berman, which is involved in several climate liability suits filed by communities against the fossil fuel industry. Those meetings also included staffers from attorney general offices around the country, including those of New York and California.

A CEI representative declined to comment, citing pending litigation, but referred to the organization’s website for a statement concerning the lawsuit.

This ‘secret meeting’ agenda shows UCLA faculty briefed the attorneys general and prospective donors on potential legal actions they could pursue. Attorneys general are now pursuing the types of investigations urged by UCLA faculty,” Chris Horner, a senior fellow at CEI who signed the petition, wrote in the statement.

“This donor-funded scheme of using law enforcement to pursue a failed political agenda, raises significant constitutional and other legal issues, as well as ethics concerns. With the revelation that this involves the use of public institutions in this mercenary campaign, the public has a right to know what their employees are doing in their name, and on their dime,” Horner’s statement saidthe statement continues.

In its lawsuit, CEI claimed the subject matter contained in the emails is of  “great public interest” and that the university has violated the California Constitution because delays in handing over the records practically meant a refusal to comply with the request.

The lawsuit presents new challenges to law practitioners in the field of environmental litigation, paving the way for an aggressive use of public record access law that some fear would stymie the process of accountability of carbon producers.

“I don’t know exactly where this is all leading. I do think it’s part of a broader campaign to try to divert attention away from oil industry’s own activities and own efforts to try to dissuade the public about the legitimacy and validity of climate science, and I worry about that,” Carlson said.

The use of public record access laws as a tool to hit back critics in the academic world is a fairly recent practice embraced by trade groups of several industries, not just oil and gas, to target opponents.

“Requests can be burdensome on government agencies,” said David Snyder, an expert in California public record access law who directs the First Amendment Coalition, a nonprofit nonpartisan advocacy group that promotes free speech and public access to government information.

The law effectively puts academics in the same position as public officials that might have strong interests in not having their communications disclosed to the public.

“It seems like an odd fit, I acknowledge, for a college professor to sit in the same category as officials at city hall or at the governor’s office,” Snyder said. “Nonetheless, UCLA is a public agency, and employees of that public agency are subject to the public records act.”

A study compiled by the Climate Science Legal Defense Fund, a nonprofit providing legal assistance to researchers, ranked each of the 50 states based on the level of protection from open records laws they grant to scientists working at publicly-funded institutions.

Only three states, Delaware, Maine, and Pennsylvania, exclude some forms of scientific and academic research from their open records laws. Laws in four other states, including Arkansas, Montana, New Mexico and North Carolina, contain no protection for researchers whatsoever. The remaining states guarantee different types of statutory exemption, deliberative process exemption and balancing tests that offer different degrees of protection.

“The breadth and strength of state open records laws and the federal equivalent Freedom of Information Act (FOIA) have made them powerful tools, but have also made them vulnerable to misuse and abuse by groups who try to harass researchers and stifle scientific research they dislike,” the study reads.

The right to exemption from having to turn over documents is often hard to balance with the right to access public records, which is critical to ensure transparency in institutions, Snyder said.

“It’s tricky,” Snyder said. “Under the public records act, by design, government agencies are not allowed to single out the requesters based on the reasons for which they want the records.”

“They can’t say, ‘we’re not gonna give you the records because we know that you espouse these views, because you want to use the records for this purpose,’ that’s expressly forbidden,” Snyder said. “You don’t want the government picking sides.”