Property Rights Cited In Niskanen’s Lawsuit Participation, Not Climate Policy

Property Rights Cited In Niskanen’s Lawsuit Participation, Not Climate Policy
Policy Change

More details have emerged about how a libertarian-leaning think tank joined an environmental non-profit to offer their legal services to a climate lawsuit spearheaded by Boulder, Colo.

Pointing to property rights claims instead of climate policy concerns, the lead counsel for the Niskanen Center, David Bookbinder, chief legal counsel for the think tank and co-counsel for the Boulder lawsuit says the organization initially got involved thanks to 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, along with the Washington, D.C.-based non-profit EarthRights International (ERI) have teamed up to represent Colorado’s Boulder and San Miguel Counties and the City of Boulder in their lawsuit against Suncor and ExxonMobil for damages resulting from climate change impacts.

The Denver-based Hannon Law Firm will also represent the plaintiffs on a 20 percent contingency fee.

The New York Times reported that the head of the group was making the “conservative case” for the litigation, arguing that addressing climate change in the courts as a property rights issue is better than pushing for regulations.

Bookbinder says he can’t recall when the Niskanen Center officially joined the Boulder suit.

During the final vote in which the Boulder County Commissioners unanimously endorsed the lawsuit, Commissioner Elise Jones noted that the litigation had been a year in the making.

“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.”

But, as Western Wire recently reported, the timing of the Niskanen Center’s involvement may be significant given recent donations by environmentalist foundations directed to the organization.

The Rockefeller Brothers Fund gave the Niskanen Center $200,000 in late February 2018, while the William and Flora Hewlett Foundation donated $300,000 in late 2017 to support 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.”

While the defendants in the Boulder suit are energy companies, Bookbinder, formerly the chief climate counsel for the Sierra Club, draws a line between Niskanen’s climate work and property rights work.

“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.

The Niskanen Center has a “climate” policy section on its website, but does not have a section dedicated to property rights.

When asked about how the Boulder case compares with some of the other litigation filed in Coastal California municipalities and New York City, Bookbinder pointed to the different geographies and terrain.

“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 two named defendants—Suncor and ExxonMobil—were chosen in large part due to their development of oil sands and operations in Colorado, according to the Boulder County climate lawsuit website.

“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.

When it comes to the likelihood of new defendants being added, Bookbinder left the door open.

“It’s certainly possible.”

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