Suing to Achieve Public Policy Goals

By August 20, 2007Briefly Legal, Global Warming

One good thing about the state tobacco litigation of the 1990s is that it pulled the cloak off the activist attorneys general, revealing their disregard for the legislative branch as the proper venue for setting public policy and taxing the public. (More sharply put: Revealing their contempt for the American republic.) If the AGs and their trial-attorney allies try the same thing with, say, global warming, we can’t say we weren’t warned.

Of course, the same thing IS in the works with global warming, last year’s lawsuit by California Attorney General Bill Lockyer against the automotive companies as the most obvious example.

Which leads us to Chris Horner of the Competitive Enterprise Institute, who reports rumors that AGs are preparing a litigation strategy with environmental groups to attack any industry that emits. The environmentalists gin up public opinion, provide PR support to the attorneys general, and then the litigation starts, with the ultimate goal being a shakedown of private industry and the attainment of policy goals that cannot be achieved through the political/legislative process.

So, ahead of the game, freedom of information requests are going to states suspected of planning to abuse the legal system as described, California prominent among them. Horner writes,

We’ll see how what we know squares with what is produced, and go from there, though I have little doubt that some stonewalling will make this a more energy-intensive effort than it should be; but as the tobacco AGs learned, there’s usually one party who coughs up the documents at which point the games must come to an end.

A copy of the request is in the extended entry below. Good luck, and keep us informed.

August 15, 2007

Department of Justice, State of California

Public Records Ombudsman

P.O. Box 944255-2550

Sacramento, CA 95814



By Electronic and Certified Mail

Dear CADOJ Public Records Ombudsman,

Pursuant to The California Public Records Act, Title 1, Division 7 Chapter 3.5 of the Government Code Sections 6250-6270, please provide us within 10 (ten) days all public records as defined therein, which upon information and belief we understand were produced in whole or in part by or are otherwise in the possession of the office(s) of the California Department of Justice, Office of the State Attorney General (herein, “CA AG”) and/or an office(s) falling under its supervision, responsibility and/or control for purposes of state law:

1) All records which, during the period covered by this Request, CA AG provided to and/or received from an outside individual(s) and/or non-governmental or third-party group(s) including but not limited to an “environmental” activist group(s) and/or another state attorney(s) general; and which satisfy either or both of the following two criteria:

a) either generally or specifically, reference both past litigation involving various state attorneys general against tobacco and/or cigarette producers and/or marketers and/or the related settlement(s), and the concept of or hypothetical or possible litigation arising out of or grounded in the issue(s) of carbon dioxide, greenhouse gases, “global warming” and/or “climate change”;


b) purport to assesses the prospects or desirability of and/or possible approach to the concept of or hypothetical litigation relating to “climate change” and/or “global warming” by CA AG and/or the office of any other state’s attorney general and/or outside, third-party activist groups either individually or in conjunction with your offices or those of any state’s attorney general.


2) All related record(s), correspondence, memoranda, analysis, email or other communications citing or otherwise relating to such record(s), which were sent to, within and/or from CA AG or any office(s) falling under your supervision, responsibility and/or control.

This request contemplates documents in electronic format if you possess them as such, otherwise photocopies are acceptable.

For purposes of clarity and to avoid unnecessary delay and/or unwarranted claims of exemption, note that the records described and sought above are not records reasonably classified as “pre-decisional” or otherwise confidential, by virtue of their being the version(s) of such documents provided to and/or received from a non-governmental group(s) or otherwise from offices outside CA AG’s confidential domain, which are by definition completed products about non-confidential matters by virtue of their distribution and/or origination.

As such and in order to be further clear and avoid unnecessary delay and/or unwarranted claims of exemption, note that responsive records or files are do not under any reasonable interpretation of the term relate to any “pending litigation”; nor do we seek record(s) principally relating to or arising directly from specific past litigation with which CA AG may have been involved, for example Massachusetts v. EPA (although responsive records might cite or reference such litigation). Instead, the record(s) we seek are principally drafted to address the theory, approach or prospects of some civil litigation that has not in fact come about.

Finally, clearly under no interpretation does this request seek “Records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice.”

Please identify responsive or potentially responsive documents within the statutorily prescribed time, and inform us of the basis of any claimed exemptions and to which specific responsive or potentially responsive documents such objection applies. Further, please inform us of the basis of any partial denials or redactions.

Join the discussion One Comment

  • TokyoTom says:

    Carter, your complaints here are a bit rich, don’t you think? I mean, if NAM really prefers that there be no federal or state regulatory action on climate change, doesn’t that mean you’d be happy to accept what’s left, namely tort litigation?

    Do you want to adopt any kind of principled, or at least internally consistent position?

    Or are you going to turn around and run to Congress for legislation that provides your members from immunity from lawsuits, in exchange for some type of legislation that will no doubt favor your members, at the expense of smaller competitors?


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