The Times Union | December 7, 2018 | Rachel Silberstein
ALBANY — In the latest effort to scuttle the state’s climate change litigation against ExxonMobil, the conservative-leaning Government Justice Center has filed a complaint with the state’s Joint Commission on Public Ethics accusing the attorney general’s office of misconduct.
The complaint criticizes Attorney General Barbara Underwood’s office for using a legal fellowship program financed by former New York City Mayor Michael Bloomberg’s foundation to aid in its “specious and speculative” litigation against fossil-fuel companies.
Underwood’s office is among nine attorneys general in the nation that work with attorneys provided by NYU School of Law’s State Energy and Environmental Impact Center, funded by Bloomberg Philanthropies to supplement states’ efforts to fight federal roll-backs of environmental regulations and renewable energy policies.
“New York public officials are ethically obligated to follow the law and conduct state business without giving the impression of being improperly influenced by others,” said Cameron J. Macdonald, executive director of the Government Justice Center. “And the extraordinary powers of New York’s attorney general, especially under New York’s unique Martin Act, are being rented to a third-party special interest.”
One of the two attorneys named in the complaint have worked on the Exxon case, but only in a junior capacity, according to the attorney general’s office. The fellowship program was launched last year and the battle with Exxon was started years ago by Underwood’s predecessor, Eric T. Schneiderman.
MacDonald, who authored the complaint, argues that if an “outside special interest” is determining a state agency’s policy directives, that would violate New York’s Public Officers Law.
The law states that “an officer or employee of a state agency, member of the legislature or legislative employee should not by his or her conduct give reasonable basis for the impression that any person can improperly influence him or her or unduly enjoy his or her favor in the performance of his or her official duties.”
It is common for government law departments to bring on staff members funded by other entities, such as firms or educational institutions, and the NYU center has no role in supervising the fellows, a spokeswoman for the attorney general’s office said.
“OAG consulted with JCOPE regarding employing fellows from NYU’s State Energy and Environmental Impact Center and we are confident we are in full compliance with State law, JCOPE rules, and past precedent of similar programs,” said Amy Spitalnick, a spokeswoman for the attorney general’s office. “This is just another desperate effort by Exxon’s allies to distract and deflect from the massive securities fraud alleged in our complaint.”
Underwood’s office is suing Exxon, citing The Martin Act, for misleading investors about its knowledge of climate change and the potential effects that climate change could have on Exxon’s business.
New York Republican officials have argued against excessive use of The Martin Act and the wielding of the attorney general’s power for what they see as partisan causes.
Lawsuit Reform Alliance of New York Executive Director Tom Stebbins, who contends that climate change policy should be decided by legislators, not litigators and judges, also criticized the state’s use of attorneys paid by private entities.
“This practice definitely has the appearance of impropriety,” Stebbins said. “We cannot have billionaires paying to use elected officials as their personal mercenaries, especially when it comes to an office as powerful as the New York attorney general’s.”
New York Public Interest Group’s Blair Horner dismissed the ethics complaint as another attempt by oil companies and their allies to “muddy the waters.”
“This is really a sideshow to the main event. The main event is that Exxon, according to the AG, has been misleading its shareholders and potential shareholders,” Horner said. “The courts will ultimately make a decision on this, not JCOPE.”
Federal judges have rejected Exxon’s previous attempts to block the attorney general’s case.