Michigan to wage war on oil and gas companies

Michigan Attorney General Dana Nessel has selected three private law firms that specialize in activist litigation to sue oil and gas companies for allegedly contributing to climate change.

The Department of Attorney General selected the outside legal teams to serve as special assistant attorneys general to sue the fossil fuel industry on behalf of the State of Michigan, Nessel’s Press Secretary Danny Wimmer told Michigan Capitol Confidential in an email.

“The team made up of Sher Edling LLP, DiCello Levitt LLP, and Hausfeld LLP brings an exceptional mix of skilled attorneys who have experience successfully representing public entities in specialized litigation involving environmental issues and industry deception,” Wimmer wrote.

Compensation is contingent upon the successful recovery of funds. Seventeen law firm attorneys signed the contract. Here’s what we know about the firms.

Sher Edling LLP is a San Francisco-based law firm. “We help our clients hold polluters accountable for deceiving consumers about climate change, for contaminating the drinking water people rely on, and for threatening our communities and health with dangerous chemicals in our land, air and water,” the firm says on its website.

The firm has come under scrutiny for its funding by a variety of activist groups and its undisclosed work with former National Transportation and Safety Board official Ann Carlson prior to Carlson’s abortive nomination as NTSB administrator. 

A memo last week from the U.S. Senate Committee on Commerce, Science, and Transportation and U.S. House of Representatives Committee on Oversight and Accountability said Sher Edling is trying to “cripple” the fossil fuel industry through more than 20 lawsuits.

“Sher Edling calls these cases ‘climate deception’ cases, while legal scholars call them ‘climate nuisance suits,’ because the ‘[a]ctivist lawyers and city officials’ bringing them ‘are exploiting a radically misplaced legal theory’ of nuisance—which is traditionally a means to address minor, local complaints like persistent loud noise—’ to make climate change policy in the courts while landing big cash payouts,’” the memo said.

DiCello Levitt LLP is a Chicago-based law firm that claims to have won more than $20 billion for plaintiffs. DiCello Levitt is one of two firms representing the City of Baltimore in its lawsuit against a Singaporean shipping line and others over the Francis Scott Key Bridge collapse. It joined with Sher Edling in February to represent the city of Chicago in a global warming lawsuit against Exxon Mobil, Chevron, Shell, ConocoPhillips, BP, and the American Petroleum Institute. The firm litigates 15 practice areas, including environmental, mass tort, privacy, and class-action, according to its website.

Hausfeld LLP is based in Philadelphia but has branches across the U.S. and Europe, according to its website. The firm litigates environmental liability, data breaches, commercial disputes, human rights, and antitrust. Hausfeld won settlements from 3M and DuPont in 2018 over alleged PFAS contamination. It is also suing American Express and Pilgrim’s Pride for antitrust, among other cases. Hausfeld and DiCello Levitt are co-counsels in a lawsuit against ten companies in the manufactured home community business. 

None of the firms responded to a request for comment. The lawsuit hasn’t been filed yet, so the defendants are unclear. 

Michigan’s contract with the firms runs from Sept. 26, 2024, through Sept. 30, 2027, and it may be extended with 30 days’ notice, according to the 14-page contract obtained through a Freedom of Information Act request.

The law firms will pay for initial costs deducted from the gross or total recovery before distribution.

For amounts up to $150 million, the law firms will receive 10% before discovery and 16.67% after discovery.

The firms will receive 2.5% of amounts exceeding $150 million before discovery and 7.5% after, according to the contract.

The planned lawsuit targets corporations but, if successful, will impact the customers and employees of the plaintiff companies, said Jason Hayes, director of energy and environmental policy at the Mackinac Center for Public Policy. 

"A.G. Nessel and her cadre of high-priced contract law firms assume that the hundreds of millions in judgments they seek will be paid for by corporations,” Hayes told CapCon in an email. “But the reality is that customers and employees of the companies will bear the brunt of the costs. Nessel's irresponsible climate litigation only harms the working people who make up the state's oil and gas industry and the customers who rely on the essential and affordable fuels they provide. This scheme would impose additional costs, put oil and gas industry workers out of a job and decrease the reliability of energy across the state."