Rachel Rothschild, who just graduated from law school in 2022, wrote a memo that builds legal justification for a new strategy to combat climate change. The state could make them pay for damages caused by extreme floods and wildfires that have been exacerbated by the use of the product.
Rothschild's work was basic. It provides the basis for the country's first “climate superfund” law, passed in New York and Vermont last year, and could soon be adopted by six more states this year. If implemented, oil companies could cost billions of dollars.
Her work was targeted at Rothschild. She is one of many lawyers, law professors and judges who were the focus of a campaign to trust them by conservative groups with ties to the fossil fuel industry and the Trump administration.
The group sued the University of Michigan shortly after Vermont law passed last June. There, Rothschild is currently teaching. As a public institution, universities are subject to the state's public records laws. The group, known as government accountability and surveillance, also requires Rothschild to be deposited.
The university filed a motion to dismiss the lawsuit alleges that Ms Rothschild's correspondence is not subject to a request for public records as it is written on her private email account. Still, the university told Rothschild that she must comply with the request for deposit.
Experts said her actions towards Rothschild seem to be designed to discourage her and others from doing similar work.
“Legal measures and requests for public records may be used in ways that can intimidate or silence academics. If that happens, it threatens not only targeted individuals, but also advances in knowledge and informed debate,” said Kyle Log, interim dean of the University of Michigan Law School, in a statement.
The actions regarding Rothschild are part of a campaign by the fossil fuel industry, appearing to negate new legal tools for holding companies responsible for climate pollution. New state-level “polluter payments” laws and lawsuits are considered the next frontier in the fight over global warming as President Trump ends federal efforts to combat climate change.
At a meeting with President Trump last week at the White House, nearly 20 oil and gas company executives raised concerns about the Climate Superfund Act. They said the Department of Justice hopes to file a brief to assist in lawsuits against state law, and that the two people familiar with the matter they spoke on the condition of anonymity are not authorized to publicly discuss the personal meeting.
The campaign is played out by a group that has been funded primarily by the foundation created by Joseph Craft III, the country's third largest coal company and the campaign's donor.
Rothschild's first note – now passing through state houses – has set out a national case for using the model of the 1980 Superfund Act. Lawmakers from California, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island and Connecticut are currently considering the Climate Superfund Act.
Additionally, more than 30 lawsuits have been filed by states and local authorities that aim to force oil and gas companies to pay for repairs or adaptations related to climate change damages. Many of these cases could end up in front of the Supreme Court, but companies have alleged for years that they have known about the risks of climate change linked to their products, but have hidden the information.
This approach is similar to the approach of past litigation that led to a groundbreaking settlement of the tobacco industry and opioid makers.
The fossil fuel industry has argued that climate change is a global issue and that individual state laws are unconstitutional attempts to assert control over the country's energy system.
“These unprecedented laws impose large, retroactive penalties dated decades for legal out-of-state conduct that was regulated by Congress,” said Daryl Josefer, executive vice president and chief advisor to the U.S. Chamber of Commerce's litigation division that has curtailed both New York and Vermont.
22 other states led by the Republican Attorney General are challenging federal courts' New York law.
Ryan Myers, senior vice president and general counsel at the American Petroleum Institute, an industry group fighting to overturn Climate Superfund Acts in New York and Vermont, said it was a “coordinated campaign against the industry that is integral to everyday life and serves as the engine of the American economy.”
A key player in the campaign to stop efforts to hold fossil fuel companies financially liable for damages is Christopher Horner, a lawyer and conservative activist who worked for the Environmental Protection Agency transition team during Trump's first term.
For years, Horner has used public record laws to unearth climate scientists' emails and spread them in ways aimed at undermining their work.
“We're excited to see the world's most important aspects of our efforts,” said Michael Gerrard, a climate law expert at Columbia University.
In 2011, the board of directors of the American Association for Progress in Science complained that Horner “has made unreasonable and excessive freedom of information law requests for personal information and vast amounts of data, which will then be used to plague and intimidate scientists.”
When President Barack Obama tried to pass the Climate Law, Horner's allies worked to spread the emails of climate scientists gathered by Horner to Republicans in Congress.
In a 2017 interview with the New York Times, Horner said it helped kill the bill.
Now, Horner and his allies are focusing on the architects behind the “polluter pays” law.
Horner did not respond to several requests for comment.
From 2018 to 2021, Horner served as a board member of the Government Accountability and Surveillance, the group that filed a lawsuit against Rothschild. In January, Horner recently wrote an article for the Washington Reporter, a conservative media website. He said he represents government accountability and oversight groups on issues of federal and state public records.
According to public records, the main donor to the group is a nonprofit foundation founded by Craft, the chief executive of Alliance Resource Partners, the country's third largest coal company. The Joseph Craft III Foundation has donated $300,000 a year to the Government Accountability and Monitoring Group from 2020 to 2023, according to the official tax return. This appears to have become the main funder of the group's activities. At the time, GAO's total annual revenue averaged $576,172.
Kraft, who served as UN ambassadors in the first Trump administration, and his wife Kelly, have given Trump's presidential election, Republican and Republican super PACs nearly $3 million.
Craft Foundation and Alliance Resource Partners did not respond to requests for comment.
“Like all nonprofits, GAO relies on contributions from donors to fulfill their independent charity envoys to seek transparency in public institutions and educate the public,” wrote Matthew Hardin, who serves on the Government's Accountability and Oversight Committee.
The group's interest in Rothschild appears to focus on communications with Lee Wasserman, director of the Rockefeller Family Fund.
It was Wasserman who wondered whether lawmakers could combine the old Superfund Act with new penalties for climate pollution.
Wasserman brought the idea to the Institute of Policy Integrity, a nonprofit research organization housed at New York University's law school. She investigated whether the idea could legally stand up. The Rockefeller Family Fund has donated $50,000 for policy integrity to fund her research, and lawmakers from New York and Vermont state lawmakers proposed the law.
When it comes to climate and environmental issues, states often rely on for legal advice, as many private law firms represent fossil fuel companies.
After writing her notes, Rothschild joined the University of Michigan faculty where she continued to work on the legislative climate superfund in her free time, explaining lawmakers and testifying before the Legislative Committee.
“I'm particularly proud of the fact that I do a lot of pro bono work in areas where I have expertise. I was happy to help states like Vermont and New York draft these laws,” she said in a statement.
Rothschild's pro bono work was “important” to the passage of New York's law, said Justin Flag, environmental policy director for Liz Kruger, a democratic New York state senator who sponsored the law. “This was something that hadn't been tested in court yet,” he added. “So we really put on a hat for her analysis.”
Environmental law professors at other public universities have been targeted by similar campaigns. During the Biden administration, Horner used the state's public record law to obtain an email from Anne Carlson, a teacher at the University of California in Los Angeles.
Consulting about the climate damage lawsuit, Carlson was appointed by President Joseph R. Biden Jr., to run a federal agency that writes rules aimed at reducing tailpipe pollution that warms the climate. This is a position that requires confirmation from the Senate.
Government Accountability and Surveillance provided Carlson's email to Fox News. Fox News published a story about her on a website entitled “Biden candidate coordinated a dark money climate nuisance lawsuit, including Leonardo DiCaprio.”
Sen. Ted Cruz, a Republican of Texas, used email to fight Carlson's confirmation, calling her “an ethically challenged environment enthusiast.” He introduced amendments on the Senate floor and stripped her of her salary from her position.
While the amendment failed, she ultimately retracted her nomination, but she ended up taking on the role in acting ability.
“It was ruthless, merciless and unfounded,” Carlson said of her experience using her emails. “It's a tactic designed to discourage people from working on important climate policies.”
The campaign was expanded to at least one judge. In 2023, Hawaii Supreme Court Justice Mark Recktenwald wrote a unanimous decision that local governments in Honolulu could advance climate liability litigation against major oil companies.
Judge Recktenwald gave a remote presentation to the Institute of Environmental Law, a Washington, DC-based nonprofit organization that runs seminars on environmental litigation.
Conservative media, including As the Daily Caller and Fox News, pointed out that members of the institute's board worked at a law firm that advocated the climate laws of the Honolulu case. The story did not mention that either oil executives were on the institute's board of directors. Judge Recktenwald also called on the parties to the Honolulu case for concern about their plans to speak at the seminar, but neither side opposed it.
But in almost every story, a group called Energy Policy Advocate named Horner a lawyer, accusing Judge Recktenwald of inappropriate bias.
Judge Recktenwald declined to comment. Efforts to underestimate legal scholars involved in climate cases reflect the potential impact of new laws and litigation, experts said.
“These new state laws and the avalanches of this lawsuit threaten the survival of these fossil fuel companies,” said Patrick Dahleu, professor emeritus at Vermont Law and Graduate School.
Karen Zraick contributed to the report.
