Sher Edling’s Climate Lawfare Game
Part 5 of the La Jolla Tobacconization Playbook
Tort lawyers are now in bed with a small group of activists who make up an integral part of their playbook. These NGOs and activist scientists manufacture fear and outrage on consumer products which tort law firms then use to identify a group of potential victims, used to overwhelm companies with hundreds of thousands of lawsuits via multidistrict litigations (MDLs). These law firms pressure companies into settling out of court for billions, not for the victims they claim to represent, but for themselves and an ecosystem of bottom-feeders following their prescribed playbook. This game is not about delivering justice, it is about greed and high extortion.
The tort industry’s capacity for victims and honeypots has evolved from the time of slick strip-mall shysters chasing ambulances to the button-down asbestos and tobacco class action lawyers serving more as lobbyists and liquidators. As that money started to dry up, they needed to work with scientists to identify potential hazards they could use to keep their Gulfstreams gassed up. With poor science amplified by angry NGO activist campaigns, they have kept their revenues flowing in with mass tort cases from implants to painkillers to talc to glyphosate… But enough is just never enough.
As climate change fear is dominating the Western media and as public outrage toward the fossil fuel industry is at its zenith, tort law firms are salivating at the potential of linking massive personal injury suffering to massive oil industry profits. While the La Jolla Tobacconization Playbook aimed to use the effects of climate change as the source of the personal damages, the link is quite tenuous and the risk of outside factors too significant to guarantee a high return on investment for multi-district mass tort litigations. The money just isn’t there … so the lawyers left.
This, of course, is frustrating for the activists behind the La Jolla Tobacconization Playbook, like Naomi Oreskes, who, in order to “get this horse to drink”, needed to sweeten the water. As most tort lawyers express a willingness to being bought, it was just a question of raising the funds to get them to fall in line and file the claims needed to enforce the change. Enter the deep pockets of Big Philanthropy who have started paying for-profit tort law firms to file lawsuits against fossil fuel companies.
Part 5 of the La Jolla Tobacconization Playbook looks at one such case: how Sher Edling managed to get charitable foundations to fund their lawsuits claiming fossil fuel companies are liable for the effects of climate change.
Sher Edling: A New Tort Business Model
Most tort law firms cover a wide range of personal injury fields, Sher Edling only covers climate change and environmental pollution lawsuits. It was founded in 2016 (after the La Jolla tobacconization strategy was beginning to be implemented) by Vic Sher, formerly the president of Earthjustice, the “world’s largest public interest environmental law firm” and Matt Edling, who spent 15 years representing governments in environmental litigations against industries.
Sher Edling has created a climate tort template. Go to state, local or First Nation governments with a proposal to represent them in cases against oil companies for claims of costs arising from climate damage (droughts, storms, fires, floods…). Accuse these companies of using deceptive or misleading information on the effects of their products on the environment and how they then failed to protect citizens from the harm of climate change. As this makes governments look like they are acting and covers up their lack of proper risk management actions, these governments accept Sher Edling’s kind offer and allow such cases to go forward on their behalf. Cases then evolve over decades with hearings and procedural appeals on whether they will ever be heard in court.
What’s wrong with this picture?
Most law firms will proudly state on their websites the billions they have won for their clients in lawsuits. Sher Edling does not. Since their founding in 2016, Sher Edling has had no decisions in any of their climate cases (23 ongoing cases on behalf of local and state governments). They haven’t even gone to court yet (see image below). Which then raises the obvious question: Since 2016, how does Sher Edling, a for-profit law firm, pay their staff and costs?
Given that the two Sher Edling founders rarely had to invoice a client for their services (Sher having worked for an NGO, Edling for government entities), they seem to have created an alternative funding scheme. Sher Edling use their activist network to get foundations and trusts to fund their fees and costs. In other words, they do not have to win their cases against the fossil fuel industry or even go to trial. They are being paid to file public nuisance cases, try to access internal industry documents, be disruptive and keep the public focus on these companies as being culpable for climate change. Their objective is reputational rather than judicial and as long as philanthropic foundations keep funding them, they will keep in the faces of these companies.
And fund them they do.
Money for Nothing
A recent article in The Hill, built on previous research, highlights the millions of dollars climate-driven foundations are paying tort law firms like Sher Edling to pursue the fossil fuel industry in the courts. As much of it is dark funding, and law firms don’t need to disclose any of it, we know very little on how much has been donated and to whom. But what we do know includes:
In 2017 and 2018, the Resources Legacy Fund donated almost two million dollars to Sher Edling. This donor-advised fund is also supported by the Rockefeller Brothers and Rockefeller Philanthropy Advisors.
From 2017 to 2020, Collective Action Fund for Accountability, Resilience, and Adaptation (CAF) paid $5.2 million to Sher Edling.
In 2021, CAF added an extra three million dollars. They have no website so see image below.
CAF is sponsored by the New Venture Fund who, in 2022 paid Sher Edling $2.5 million in 2022.
If you had never heard of these foundations before, you are not alone. Many were created by other groups for single purposes and adds an extra level of fog and deception. These groups received funding from a wide range of philanthropic groups (see image above) that knew full well that their funds would be redirected to a for-profit law firm. See an analysis and emails showing how the Leonardo DiCaprio Foundation was a major initial financial supporter of Sher Elding’s strategy. This then was used to draw in donations from other large foundations in a bandwagon effect: a few influential names twisting those holding the purse-strings to billions. These millions in donations to Sher Elding though are dark.
So what do these foundations hope to gain from donations of millions of dollars to for-profit law firms? They are spending millions to kept fossil fuel companies associated, in the public eye, with the consequences of climate change. Ultimately they would love to have at least one case go to trial, with the opportunity for the plaintiff to acquire internal corporate documents in discovery. This dog and pony show has played out before with the Monsanto Papers and the Paraquat Papers where hundreds of thousands of pages of internal memos were leaked to journalists and filtered through in order to cherry pick a few choice phrases to use against the company. Ultimately they would like to see the fossil fuel companies lose their cases and be slapped with punitive damages, hopefully enough to force the industry to change, ideally to put them out of business.
And what about justice for the victims? Come on now. This is the tort law industry. It was never about the victims.
Lawfare
These cases are not about justice or addressing the costs of personal injury. True to the La Jolla Tobacconization Playbook, this is about forcing industry to change not through the democratic regulatory process but from mass tort litigation. Sue the corporations until they change their ways or go out of business. Robert Stilson, writing in The Hill, refers to this as “lawfare”, Michael I. Krauss, writing in Forbes, refers to this as “legislation by “litigation”. The Firebreak has looked at the role from the regulatory scientist position, calling it “adversarial regulation”.
What role does Naomi Oreskes play in all of this? An earlier Firebreak article showed how she was the founder of the La Jolla Tobacconization Playbook. Despite condemning other academics for consulting for industry, Oreskes had to admit, only under oath, that she has a consulting retainer with Sher Edling. This activist historian refused to disclose the nature of the work she does for the tort law firm but we can only assume that her deep network of climate-driven foundations would provide an enormous value to these tort law bottom feeders.
Excuse my cynicism, but philanthropic foundations should be acting as charities: funding vaccination programs in developing countries, supporting arts programs or helping low income families send their brightest to college. They should not be dropping hundreds of millions on wealthy lawyers so they can keep their private jets in the air, conducting vengeful but useless public nuisance lawsuits. Is this the proper use of charitable, tax-deductible donations? Such dark, donor-advised funds funneled to for-profit law firms and subsidized by taxpayers should be illegal (except that companies like Sher Edling are representing governments in their lawsuits).
While these shysters cannot be stopped, it is definitely a disgraceful misuse of funds that could otherwise be doing so much good in the world.