The Chief Justice of Hawaii’s Supreme Court who is hearing Honolulu’s lawsuit against oil companies for climate damage has worked with an environmental group based in Washington, D.C. that has close links to plaintiff’s attorneys.
Honolulu’s lawsuit against Sunoco Shell Chevron is just one of the many cities that have sued energy companies to seek damages for their alleged contributions to climate changes. The Supreme Court refused to hear the cases in April and sent them back to the state courts, meaning Honolulu’s case will now be heard by Hawaii Supreme Court Chief Judge Mark Recktenwald. Recktenwald revealed on May 9 that he has been involved in “educational presentation relating to energy, environmental and natural resource issues.” He also worked with the Environmental Law Institute, a group that regularly collaborates with environmental activist.
ELI has co-founded the Climate Judiciary Project which created a climate science curriculum and law curriculum for judges who handle environment litigation. It also worked with people who were employed or consulted by Sher Edling LLP, the environmental activist firm that represented Honolulu’s lawsuit.
The Daily Caller News Foundation reported that “Judges should not only be neutral, but also maintain an appearance of impartiality to ensure that the public has faith in their decisions.” Rob Schilling is the Executive Director of Energy Policy Advocates a nonprofit organization that promotes transparency in energy policy. It appears that the Judge may have attended or even presented at!” The seminar was organized by one side. The other side was not allowed to express their views, and the seminar occurred outside of the courtroom.
Recktenwald also presented at a December 2022 ELI webinar on “Hurricanes in Changing Climate and Related Litigation” and he was also a presenter at s 2020 symposium, “Judiciary And The Environmental Rule of Law: Adjudicating Our Future”, which was held with the Environmental Law Institute. Recktenwald presented at a December 2020 ELI webinar entitled “Hurricanes and a Changing climate and Related Litigation” and a symposium in 2020 on “Judiciary and The Environmental Rule of Law : Adjudicating our Future”, which was also done in collaboration with ELI, but was omitted in his disclosure of May 9.
Sher Edling is also directly involved in the development of the CJP and ELI curriculums.
Fox News reports that Ann Carlson, Joe Biden’s nominee to be the National Highway Traffic Safety Administration administrator, served as a board member of the Environmental Law Institute between 2016 and 2020. Sher Edling was a client of Carlson’s, and Carlson solicited donations for them.
Carlson is a professor of UCLA Law School’s Emmett Institute on Climate Change and the Environment Center. The Emmett Institute has previously hosted events to support the cause for climate lawsuits. Carlson was also an adviser on ELI’s curriculum, instructing judges on the best way to examine climate cases.
According to emails obtained from Climate Litigation Watch, she also used money that she had at UCLA, titled “Ann Carlson Discretionary Fund,” in order to fund a trip to Hawaii in 2019 to “encourage Hawaii consider a nuisance suit.” Honolulu’s lawsuit was filed in March 2020.
Michael Burger, Of Counsel at Sher Edling, spoke at an ELI conference and briefing. Burger, as the executive director of Columbia Law School’s Sabin Center for Climate Change Law, has filed numerous amicus briefs to support cities in their lawsuits against oil and gas companies.
According to LinkedIn, Meredith Wilensky, a former Sher Edling employee was a Public Interest Law Fellow with the Environmental Law Institute prior to joining the firm in 2017.
Schilling said that the link between the law firm and the plaintiffs in climate suits is “clear.”
He said that after the Climate Plaintiffs lost their cases in California and New York with one judge requesting not only to keep the case in federal courts but also a full day of testimony on the science the Environmental Law Institute scrambled in order to set up this ongoing operation in order to present the plaintiffs case to as many judges possible. “Their materials do not even give a nod to [subtlety].”
In June 2018, Northern District of California judge William Alsup dismissed climate cases in San Francisco and Oakland, and Southern District of New York judge John F. Keenan dismissed a case in New York City in the month of July 2018. The Climate Judiciary Project launched in April 2019.
The website of the Environmental Law Institute states that “as climate litigation increases, judges will have to consider complex legal and scientific questions, some of which are evolving rapidly.” The Climate Judiciary Project, a project of the Environmental Law Institute, is working with national judicial training institutions to address these issues.
The Climate Judiciary Project curriculum will include modules such as “Overview on Climate Litigation”, “Judicial Remedies For Climate Disruption – A Preliminary Analyse” and “Procedural techniques Available for Climate Litigation”.
Recktenwald states in his disclosure that he will also be presenting at a virtual event on June 20, titled “Environment, Energy and Natural Resource Disputes – The Use of Special Masters to Resolve Complex Litigation” as cochair of the Energy, Environment and Natural Resources Committee for the Conferences of Chief Judges and Chief Court Administratives. In his notice, he asks that “any party with concerns” regarding his participation object by May 19, 2019.
Schilling stated that “these seminars present a series plaintiffs’ witness and amicus brief filers in support of the plaintiffs before potential judges.” In fact, another activist, Prof. Charles Fletcher just requested leave from the Hawaii Supreme Court to file an amicus Brief in support of plaintiffs on Friday.
Recktenwald’s not the only judge to have attended ELI seminars. The 2020 symposium included two additional judges from the Hawaii Supreme Court: Associate Justice Sabrina McKenna, and Associate Justice Michael Wilson. They were joined by judges from other Hawaii courts, and even judges from other states.
In a separate case, the Hawaii Supreme Court ruled in March that citizens have a constitutional right to “a climate system that supports life.”
Wilson, in a similar opinion, wrote that we face a “climate crisis” that “puts the lives of our children and other future generations at risk”.
Schilling stated that “[t]he history of the seminars, from the timing and origins of the seminars to the widespread participation of judges in these cases – which was of course the entire goal of the seminars – is something it’s difficult to imagine is happening in the U.S.”
Recktenwald and Sher Edling as well as ELI, the companies that Honolulu is suing, did not respond immediately to requests for comments.