Rhode Island senator Sheldon Whitehouse (D.) filed an amicus brief in court cases where cities and counties in California are suing major energy production companies for damages related to climate change, but did not disclose he had taken political donations from the attorneys who are conducting that litigation.
Currently, persons or agencies that file such briefs aren't required to make such disclosures. However, Whitehouse has been one of the leading advocates for exactly that kind of transparency.
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"In a Jan. 4 letter to Chief Justice John Roberts, [Sen. Whitehouse] chided the Court for accepting amicus—friend of the court—briefs from ‘special interest groups that fail to disclose their donors,'" wrote the Wall Street Journal editorial board, which broke the news. "He calls out the U.S. Chamber of Commerce, as well as think tanks and policy shops that receive money from right-of-center foundations. Mr. Whitehouse claims these ‘repeat-player' filers are unduly influencing the Court, even as they hide their ‘deep-pocketed corporate contributors.'"
"This is a familiar stand for Mr. Whitehouse, who has long tried to silence his political opponents," the editorial concluded.
Victor Sher and Matt Edling are the two named partners of the law firm Sher Edling, which is bringing suits on behalf of the cities of San Francisco and Oakland and other governments such as Marin and Santa Cruz counties against oil producers such as Exxon, BP, and Shell.
Whitehouse did not respond to requests for comment to either the Wall Street Journal or the Washington Free Beacon.
Sher Edling is also the firm representing Whitehouse's home of Rhode Island, which became the first state to go after energy producers when the "Ocean State" announced its suit in July of last year at a press event at which Whitehouse was in attendance and contributed remarks.
"The fossil fuel industry is fond of saying, you're in the wrong forum, you shouldn't be going to the courts, you should be going to Congress," he said. "The reason they say that is because they have Congress locked up with their political power and their money and their influence."
The lawsuits, whether municipal or state, all seek to have the courts force the energy companies pay for abatement funds to pay for past and future damages the governments believe they have suffered or will suffer due to climate change.
The government outsources the litigation to Sher Edling on a contingency fee basis, meaning the firm doesn't get paid unless a judgment is awarded or a settlement occurs.
"If the city secures a $100 million settlement, then Sher Edling takes roughly $25 million; if the settlement is over $100 million, then it gets $32.5 million; and the firm receives roughly $36.5 for anything above $150 million," a report from December, 2018 by the Western Journal noted. "These payments are per city, meaning the firm is looking for a big payout."
The Free Beacon reported last October that emails showed the law firm proactively pitching the idea of the suit to the city of San Francisco.
The growing use of contingency suits by district attorneys or attorney general offices has drawn concern from some former officials.
"I want to make it clear, I'm not against contingency fee practice in the private sector," former California attorney general Dan Lungren told the Free Beacon at the time.
"It can be abused, but it has achieved access to the courtroom by those who otherwise wouldn't have it. I don't find that to be the case with municipalities or the State of California. No one needs to tell them where the courtrooms are. They have found them by themselves since the state was created."
Update: Whitehouse sent the following statement to the Journal this afternoon:
If the U.S. Chamber of Commerce and other anonymously funded groups that seek to influence the Supreme Court had to disclose their funders as I do, we could know who the real party in interest is behind these filings. We need more transparency so the public, the parties and the Justices can identify bias and conflicts of interest. These special interests are not required to and will not voluntarily disclose their contributions, because secrecy is one of their weapons. If any of the Justices are struggling to find my campaign contribution records, I would be happy to share the appropriate website. No such website exists for the U.S. Chamber or other dark-money groups.