Additional information has surfaced regarding the collaboration between a libertarian-leaning think tank and an environmental non-profit to provide legal support for a climate lawsuit led by Boulder, Colorado.
David Bookbinder, chief legal counsel for the Niskanen Center and co-counsel for the Boulder lawsuit, emphasizes property rights claims rather than climate policy issues. He explains that the Niskanen Center initially became involved in the lawsuit through a connection with EarthRights International.
“It was EarthRights who had the relationship with the plaintiff entities,” Bookbinder told Western Wire. “And I can’t remember how EarthRights contacted me or I contacted EarthRights somehow, I heard they were interested in doing this kind of litigation, or they heard that I was interested, lost in the mists of time months ago as to who reached out to whom.”
The Niskanen Center, in partnership with Washington, D.C.-based non-profit EarthRights International (ERI), has collaborated to provide legal representation for Boulder and San Miguel Counties, as well as the City of Boulder, in their lawsuit against Suncor and ExxonMobil for damages stemming from climate change effects. Additionally, the Denver-based Hannon Law Firm will join as legal representatives for the plaintiffs, operating on a contingency fee basis of 20 percent.
According to The New York Times, the leader of the organization was advocating for the litigation from a conservative standpoint, suggesting that framing climate change as a property rights issue in court is preferable to advocating for regulatory measures.
Bookbinder stated that he couldn’t remember the exact time when the Niskanen Center officially became involved in the Boulder lawsuit. However, during the final vote, Boulder County Commissioner Elise Jones remarked that the preparation for the litigation had spanned approximately one year.
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“We gave direction to staff over a year ago to explore such a lawsuit with ERI,” Jones said ahead of the vote.
“I came in, where are we in April? I’d have to check but much later than that,” Bookbinder told Western Wire. “EarthRights already had a relationship with the plaintiffs by the time I got involved.”
As Western Wire recently highlighted, the timing of the Niskanen Center’s participation could be noteworthy in light of recent donations from environmentalist foundations. The Rockefeller Brothers Fund provided $200,000 to the Niskanen Center in late February 2018, while the William and Flora Hewlett Foundation contributed $300,000 in late 2017 to bolster the Center’s “climate policy and litigation program.”
Bookbinder was surprised to hear about the donation dedicated to the “climate policy and litigation program.”
“Did they give money for climate litigation? That’s good to know… I leave that stuff up to the development people, but that’s not for this. This is property rights work, this is not climate work,” he told Western Wire. “And if there’s climate litigation no doubt I’ll be involved in it. But this is property rights. Our climate work is primarily carbon tax issues in Washington. There may be litigation attached to climate work but we don’t think of these… as climate litigation.”
Although the defendants in the Boulder lawsuit are energy companies, Bookbinder, who previously served as the chief climate counsel for the Sierra Club, distinguishes between Niskanen’s efforts on climate issues and its focus on property rights.
“The local governments, their property and the property of their constituents is being damaged by climate change. And they’re seeking compensation from the defendants,” Bookbinder told Western Wire.
While the Niskanen Center features a “climate” policy section on its website, it does not have a specific section dedicated to property rights.
When questioned about the comparison between the Boulder case and other litigation initiated in Coastal California municipalities and New York City, Bookbinder highlighted the varying geographical and terrain factors.
“The big difference that I’m aware of is that we are not dealing with sea level rise, we’re dealing with all the other impacts of climate change. I don’t really know that much more about the other cases,” he told Western Wire.
The Boulder County climate lawsuit website states that Suncor and ExxonMobil were selected as defendants primarily because of their involvement in oil sands development and their operations within Colorado.
“They were chosen because they are number one in tar sands. And one of the issues that we find most troubling is that when members of the oil industry have finally at least publicly accepted that climate change is real and that it’s caused by their products, their response is to say, ‘and in the future we intend to sell even more of these products,’ making the problem worse, ‘and we’re going to sell even more carbon intensive products,’ making the problem far worse,” Bookbinder said.
Bookbinder indicated that he may have been involved in choosing the defendants. “There might have been discussions before I got there but certainly there was discussions as to who the main defendants would be later on,” he told Western Wire.
Bookbinder indicated that there is a possibility of new defendants being added in the future, leaving the possibility open.
Bookbinder indicated that there is a possibility of new defendants being added in the future, leaving the possibility open.
“It’s certainly possible.”
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