In recent years, the legal arena has become a battlefield for climate change activism, with a spate of lawsuits filed by state and local governments against the oil and gas industry. These lawsuits, often facilitated by prestigious law firms and buoyed by substantial funding from philanthropic giants, epitomize a troubling trend towards ‘legislation through litigation.’ This method, whereby litigation is used as a tool to force policy changes, circumvents the democratic process, undermining the foundational principles of our political system.
The involvement of the New Venture Fund, a 501(c)(3) charity and a key player in the left-of-center political nonprofit ecosystem managed by Arabella Advisors, is particularly alarming. This organization directed millions of dollars to Sher Edling, a for-profit law firm known for spearheading these climate lawsuits. The fact that such significant sums were granted to support litigation against the oil and gas sector raises profound questions about the intersection of charity, politics, and the judiciary.
Sher Edling’s representation of various governmental entities in their legal battles against ‘Big Oil’ is predicated on the accusation that these companies have significantly contributed to climate change and should thus compensate for its costs. Despite the absence of a clear legal victory to date, the strategy seems to hinge on the hope that just one case going to trial could give them immense leverage with which to pressure the industry. This approach seeks to achieve through the courts what has not been accomplished legislatively, aiming to influence climate policy and legislation without the consent or involvement of the electorate.
This litigation campaign is underwritten by millions in philanthropic dollars, with significant contributions from the MacArthur Foundation, the JPB Foundation, and others, channeled through the Collective Action Fund for Accountability, Resilience, and Adaptation. The fund’s explicit goal to support climate-related lawsuits reveals a deliberate effort to use charitable resources for highly politicized ends.
This phenomenon of ‘legislation through litigation’ not only bypasses the legislative process but also poses a direct challenge to the principles of justice and democracy. The notion that the oil and gas industry, providers of essential energy resources, could be held liable for climate change-related damages represents a fundamental misunderstanding of both the nature of liability and the role of these industries in society.
Moreover, the utilization of philanthropic funding to fuel these lawsuits calls into question the very definition of charity. When tax-exempt charitable contributions are deployed to advance a specific political agenda through the courts, it undermines the public’s trust in both the philanthropic sector and the judicial system.
These lawsuits and the mechanisms supporting them reflect a broader shift in how environmental policy is contested in the United States. Rather than engaging in open, democratic debate and seeking consensus through elected representatives, certain groups have chosen to litigate their way to their desired outcomes. This not only alienates a significant portion of the populace but also sets a dangerous precedent for future policy disputes.
The confluence of big philanthropy, politicized litigation, and environmental activism demands closer scrutiny. It is imperative for the integrity of both our judicial system and our democratic process that we reconsider the appropriateness of such tactics.
