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Dark Money and the Climate CrisisThe US Legal Charity Setting Back Environment Protections
The Federalist Society claims credit for creating a US judicial system sceptical of climate change – with ‘dark money’ backers linked to the fossil fuel industry and Donald Trump
A decades-long fight between human rights lawyer Steven Donziger, the citizens of the Lago Agrio region of Ecuador, and Chevron appeared to come to an end last October, when Donziger was sentenced to six months in prison for contempt of court.
His sentencing tells a chilling tale about a judicial system which is increasingly hostile to environmental protections, with dark money interests and libertarian, radical-right organisations intent on pushing forward a deregulatory agenda which entrenches the power of the fossil fuel industry.
Back in 2011, Donziger won a $9.5 billion settlement, having represented the citizens from the Lago Agrio region of Ecuador after they sued Chevron for environmental damages in 1993. Shortly after, Donziger was placed under house arrest and issued with a heavy fine following dubious allegations that he had bribed the Ecuadorian judge in the case, Alberto Guerra.
It was later revealed that Guerra had significant links with the fossil fuel industry and had been abetted by a corrupt justice system. Chevron was accused of having helped Guerra to prepare for the testimony on more than 50 occasions, even relocating his family to the US and paying him a handsome stipend.
When Donziger came up in front of Judge Loretta Preska on contempt of court charges last autumn, he was convicted by Seward and Kessel – a private law firm with proven links to Chevron. During the trial, Preska denied Donziger’s request for a jury trial, barred online access to the public, and refused to allow Donziger’s lawyers to justify their decision to protect attorney-client privilege by not granting the court access to his electronic devices.
Preska is a member of the Federalist Society – a conservative legal organisation which advocates for a textualist interpretation of the US Constitution, and which frequently align itself with rulings that seek to curtail progressive policies such as environmental protections. It is funded by radical-right, climate crisis-denying backers that want a US legal system that will promote oil and gas interests.
Influencing the Supreme Court
Founded in 1982 by students from Yale, Harvard and Chicago Law Schools, the Federalist Society was established to counteract what it perceived as a dominant left-wing consensus at elite American educational institutions.
It has a history of promoting climate denial and disinformation – which it seeks to bring to the US Supreme Court by supporting conservative nominees who promote a laissez faire, free market approach to the US Constitution and environmental protections.
In 2018, the Society’s executive vice president, Leonard Leo, took a leave of absence to personally advise then US President Donald Trump on his Supreme Court picks. Under Trump’s leadership, the US Supreme Court swung to the right with the appointments of conservative judges Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. The Supreme Court now has a conservative majority.
Gorsuch has frequently advocated a legal approach which weakens the ability of federal agencies, such as the Environmental Protection Agency (EPA) to regulate industries in line with decarbonisation targets. Coney Barrett, meanwhile, signalled her climate-sceptic credentials when she refused to give a clear answer when questioned about the threat posed by the climate crisis during her nomination hearing. When asked: “Is climate change happening?” Barrett responded: “I will not answer that because it is contentious.”
Leo and the Federalist Society also previously supported George W. Bush’s appointment of two conservative judges, Samuel Alito and John Roberts.
David Armiak, research director at investigative watchdog the Centre for Media and Democracy, believes that the Federalist Society’s influence over the US Supreme Court will make it difficult for President Joe Biden to enact the sweeping regulatory reforms necessary to address the climate crisis.
He told Byline Times: “With the Federalist Society, and its leader Leonard Leo’s help, the right-wing has packed the federal judiciary with corporate-friendly judges. Given the large number of Federalist Society ties to these Trump appointees, it is safe to conclude that the Federalist Society will remain influential for decades to come.”
Funded by Dark Money
The Federalist Society is funded by a trail of ‘dark money’ – including substantial donations from fossil fuel-backed billionaires and lobbyists – which it then uses to fund its campaigning work and to support radical-right lawyers and judges.
That money includes funding from the Koch brothers – oil and gas billionaires who use their vast wealth to fund right-wing, libertarian political causes.
Charles Koch is the only surviving brother, David Koch having died in 2019. The family and its business interests have long supported prolonging the use of fossil fuels, having spent more than $115 million on lobbying activities between 1998 and 2017, with approximately 97% of the total subsidising oil and gas producers.
According to analysis of data from 990 public tax returns, the organisation Polluter Watch calculated that the Federalist Society received an amount exceeding $7,962,499 from various Koch industries between 1997 and 2019.
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Further data compiled by the Conservative Transparency Project, a database which tracks the flow of money among conservative donors, found that the Federalist Society received $22,499,100 from non-profit fund Donors’ Trust – an organisation founded to “ensure the intent of donors who are dedicated to the ideals of limited government, personal responsibility, and free enterprise” between 2002 and 2017.
While there are no legal requirements for the Donors’ Trust to disclose its sources of funding, it is well documented that Koch money is funnelled through it to support radical-right causes. It is also linked to hedge fund manager and prominent Trump backer Robert Mercer, whose family foundation invested nearly $20 million into the organisation in 2020.
In 2020, the Donors Trust gave $20 million to the 85 Fund – a funding organisation set-up and managed by Leonard Leo. The 85 Fund proceeded to bankroll several conservative organisations which were pushing for Coney Barrett’s Supreme Court nomination. These included Turning Point USA, which received $2.7 million, and the Job Creators Network, which received $500,000.
As such, a line can be drawn connecting fossil fuel money, the Federalist Society, and a Supreme Court judge that has failed to acknowledge the science of the climate crisis.
An Agenda of Deregulation
The Federalist Society has enjoyed a close relationship with figures who have sought to weaken the EPA, including its former head Scott Pruitt.
Appointed by Trump in 2018, Pruitt, who has spoken at Federalist Society events disputing the efficacy of the Clean Power Plan and is listed as a contributor on its website, has argued that, when it comes to environmental protections, “regulatory power should not be used by any regulatory body to pick winners and losers”.
In 2017, Pruitt was introduced at an event by lobbyist and Federalist Society trustee C Boyden Gray in 2017. Gray has a history of downplaying the urgency of tackling climate change. Writing for Forbes in 2016, Gray called efforts by attorneys to litigate against oil giant ExxonMobil for funding climate disinformation a “new climatology inquisition”. He also argued that “when it comes to actual proposals for real legislative action on climate change, Exxon’s advocacy has been indistinguishable from some of the leading environmental organisations”.
In 1995, Gray was hired by the Koch brothers to write the Comprehensive Regulatory Reform Act, written in response to a lawsuit filed against Koch Industries by the EPA following major oil spills from pipelines and facilities in several states. The Act demanded that corporations being sued by the US Government not be given heavy fines.
A year after the event he attended with Gray, Pruitt repealed the Obama-era EPA regulations by rewriting greenhouse gas emissions standards for light-duty trucks and cars.
“Special interest groups like the Federalist Society have way too much influence over our the democratic process,” David Armiak added. He believes that more needs to be done with policies such as “recusal law/rules and transparency which may help to limit that influence, or at least, bring greater light to its role in politics”.