The Chief Justice of Hawaii’s Supreme Court, who is hearing Honolulu’s lawsuit against oil and gas companies for climate damages, has worked with a D.C-based environmental group that that close ties to the plaintiff’s attorneys.
Honolulu’s lawsuit against Sunoco, Shell, Chevron and other companies is one of many lawsuits cities have filed against energy companies in an effort to extract alleged damages for the firms’ contributions to climate change; the Supreme Court declined to hear these lawsuits in April, pushing them back to state courts—meaning Honolulu’s case is now squarely before Hawaii Supreme Court Chief Justice Mark Recktenwald. However, on May 9, Recktenwald disclosed that he engages in “educational presentations relating to environmental, energy, and natural resource issues” and has worked with the Environmental Law Institute (ELI), a group which routinely collaborates with environmental activists.
ELI co-founded the Climate Judiciary Project, which developed a climate science and law curriculum for judges handling environment litigation, and has worked closely with individuals who have consulted for or been employed by the environmental activist legal firm representing Honolulu in its lawsuit, Sher Edling LLP.
“Judges are supposed to not only be impartial, but to maintain the appearance of impartiality so that the public can have faith in their rulings,” Rob Schilling, Executive Director of Energy Policy Advocates, a nonprofit that works for transparency in energy policy, told the Daily Caller News Foundation. “It appears that the judge may have attended (or even presented at!) seminars organized for those on one side of this type of case. Those on the other side were not permitted to present their view, and the seminar took place outside of the courtroom and outside the protections provided by the rules of evidence.”
Recktenwald presented a remote course, “Rising Seas and Litigation: What Judges Need to Know About Warming-Driven Sea Level Rise,” in collaboration with the Environmental Law Institute on April 4, according to his disclosure. Recktenwald also presented at a December 2022 ELI webinar on “Hurricanes in a Changing Climate and Related Litigation and a 2020 symposium on “Judiciary And The Environmental Rule of Law: Adjudicating Our Future,” which was also in collaboration with ELI but was omitted from his May 9 disclosure.
Moreover, those connected to ELI and the CJP curriculum’s development have direct links to Sher Edling.
Ann Carlson, President Joe Biden’s nominee for National Highway Traffic Safety Administration (NHTSA) administrator who served on the board of directors for the Environmental Law Institute from 2016 to 2020, previously consulted for Sher Edling and solicited donations on behalf of the firm, according to Fox News.
Carlson, who is a professor at UCLA Law School’s Emmett Institute on Climate Change and the Environment Center, which previously hosted events supporting the cause of climate lawsuits, was also an advisor for ELI’s curriculum instructing judges on how to examine climate-based cases.
She also used money from funds she had access to at UCLA, titled the “Ann Carlson Discretionary Fund,” to help fund a 2019 trip that allowed her to “encourage Hawaii to consider a nuisance lawsuit,” according to emails obtained by Climate Litigation Watch. Honolulu filed its lawsuit in March 2020.
Michael Burger, who currently works on climate cases at Sher Edling in his capacity as Of Counsel, has spoken at an ELI briefing and conference. Burger has also filed multiple amicus briefs in support of cities suing oil and gas companies as executive director of the Sabin Center for Climate Change Law at Columbia Law School.
Schilling said the connection to the law firm backing plaintiffs in these climate lawsuits is “clear.”
“In short, after the climate plaintiffs lost in California and New York, with one judge not only keeping the case in federal court but requesting a day of evidence on the science, the Environmental Law Institute scrambled to organize what became this running operation to get the plaintiffs’ case in front of as many judges as possible,” he said. “Their materials don’t even bother a nod at [subtlety].”
Northern District of California Judge William Alsup tossed climate cases from San Francisco and Oakland in June 2018, and Southern District of New York Judge John F. Keenan tossed a case from New York City in July 2018. The Climate Judiciary Project was launched in April 2019.
“As the body of climate litigation grows, judges must consider complex scientific and legal questions, many of which are developing rapidly,” its website states. “To address these issues, the Climate Judiciary Project of the Environmental Law Institute is collaborating with leading national judicial education institutions to meet judges’ need for basic familiarity with climate science methods and concepts.”
Modules in the Climate Judiciary Project’s curriculum from January 2023 include “Overview of Climate Litigation,” “Judicial Remedies for Climate Disruption: A Preliminary Analysis,” and “Procedural Techniques Available for Climate Litigation.”
Recktenwald notes in his disclosure that he also intends to present at a June 20 virtual event titled, “Environment, Energy and Natural Resource Disputes: The Use of Special Masters in Resolving Complex Litigation,” as co-chair of the Energy, Environment and Natural Resources Committee of the Conferences of Chief Justices and Chief Court Administrators. His notice asks “any party who has concerns” about his participation to object by May 19, 2023.
“And so, these seminars parade a series of plaintiffs’ witnesses and supportive amicus brief filers before potential judges,” Schilling said. “In fact, another activist seminar presenter, Prof. Charles Fletcher, just sought leave from the Hawai’i Supreme Court on Friday to file an amicus brief in support of the plaintiffs.”
Recktenwald isn’t the only judge who has participated in ELI seminars. Two additional judges on the Hawaii Supreme Court, Associate Justice Sabrina McKenna and Associate Justice Michael Wilson, also participated in the 2020 symposium, along with judges on other Hawaii courts and from different states.
In March, the Hawaii Supreme Court found in a separate case that citizens have a right to a “life-sustaining climate system.”
Wilson wrote in a concurring opinion that we are facing a “climate emergency” that puts the “lives of our children and future generations” at stake.
“[T]he history of these seminars, from their timing and origins to the widespread and extremely active participation by judges hearing these cases — which of course was the seminars’ entire objective — is something that it is difficult to conceive is actually happening in the U.S,” Schilling said.
Recktenwald, Sher Edling, ELI and the companies being sued by Honolulu did not immediately respond to requests for comment.
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