Do Big Firms’ Environmentalist Ties Collide with Their Energy Clients’ Interests?

O ver the past decade, progressive states and municipalities across the nation have filed more than 40 climate change lawsuits against the American energy industry. The legal theory behind these claims, first pioneered by the climate plaintiffs’ firm Sher Edling, attempts to trace alleged damages from local weather events back to our nation’s largest energy producers.

For years, the Environmental Law Institute (ELI) has worked to sell the bench on these contested theories through its Climate Judiciary Project, laundering them into the courts under the banner of neutral judicial education. Most concerning is who else sits at ELI’s table: many of the same law firms representing the energy defendants against the plaintiff-side legal theories that ELI promotes. The institutional ties between these firms and ELI raise serious questions about potential conflicts of interest. At minimum, energy companies should ask whether their lawyers’ ELI affiliation undermines their defense.

Consider WilmerHale, Arnold & Porter, and Latham & Watkins — three of the most prestigious law firms in the country. All three are representing major energy companies in climate lawsuits, and all three are closely connected to ELI.

All three firms are institutional members of ELI, but their affiliations run far deeper than charitable giving. Current and former lawyers from these firms have held key leadership roles at ELI.

ELI’s board chairman, Rob Kirsch, is a retired WilmerHale partner who led the firm’s environmental practice group. WilmerHale partner Peggy Otum and Arnold & Porter partners Ethan Shenkman and Stacey Halliday also serve on the board. Arnold & Porter’s former New York partner in charge, Michael Gerrard, previously served as an ELI director and now directs the Sabin Center for Climate Change Law at Columbia Law School, the key academic clearinghouse for the “attribution science” theories that ELI promotes and climate plaintiffs rely on. Several Latham partners have served stints on ELI’s board or leadership council, and the firm was central to the formation of ELI’s China working group.

The firms and their lawyers have also sponsored, hosted, and participated in ELI programming. WilmerHale has hosted multiple ELI seminars in its offices in California and Washington, D.C. Arnold & Porter hosts ongoing ELI “boot camp” events for attorneys and previously partnered with ELI on a webinar series on “Extended Producer Responsibility.” From 2021 to 2022, Latham partnered with ELI on a webinar series devoted to “environmental justice litigation.”

None of that is inherently improper; lawyers often participate in professional organizations whose positions may differ from those of their clients. But those outside relationships become concerning when they overlap with groups driving litigation that these firms were hired to defend against.

ELI routinely partners with lawyers leading and shaping climate litigation against energy companies. Ann Carlson, a UCLA law professor who served on ELI’s board, has also consulted for Sher Edling, which now claims more than two dozen climate-nuisance lawsuits. Michael Burger, executive director of the Sabin Center, has appeared in ELI programming while serving as counsel to Sher Edling and filing amicus briefs in support of climate plaintiffs, including the City of Honolulu.

Meanwhile, all three firms have represented defendants in climate suits around the country, including the suit brought by the City of Honolulu. Latham has represented Phillips 66 in several high-profile climate lawsuits brought by municipalities and states. Arnold & Porter states it has served as counsel for BP “in over 30 novel climate change lawsuits filed by state and local governments.” WilmerHale has represented ConocoPhillips in similar suits.

The stakes in these cases are enormous. Honolulu, for example, seeks more than a billion dollars from energy companies, alleging that they have misled the public about the dangers of their products and contributed to harms stemming from global climate change. Honolulu’s suit is headed for trial in state court after the U.S. Supreme Court denied review of the Hawaii Supreme Court’s ruling rejecting defendants’ federal preemption arguments. Similar cases are pending around the country, with even greater potential liability. In Oregon, Multnomah County’s lawsuit against energy companies for their alleged role in causing extreme weather events in 2021 seeks a staggering $50 billion abatement fund in addition to more than $1.5 billion in past and future damages.

The professional rules that govern matters of legal ethics recognize that conflicts can arise without direct adversity between two clients. Model Rule of Professional Conduct 1.7(a)(2) contemplates situations in which there is a significant risk that a representation will be materially limited by the lawyer’s responsibilities to another person or by the lawyer’s own interests. The rule’s commentary makes clear that this personal-interest prong does not depend on an attorney-client relationship with the outside organization.

Whether any lawyer or firm has crossed that line here would require more investigation. The relevant questions might include a lawyer’s role within ELI, the firm’s financial or institutional relationship with it, the subject matter of the representation, the lawyer’s participation in the client matter, and the degree to which any outside commitment could materially limit advocacy for the client.

But even relationships that fall short of a Rule 1.7 violation merit careful review. Firms routinely make judgments about reputational risk, client confidence, and institutional alignment that extend beyond the floor set by the ethics rules. The pertinent question is not just whether firms’ relationships with ELI are technically permissible, but whether those commitments could create divided loyalties or constrain their professional judgment.

Perhaps these firms have examined their ELI ties and concluded that they pose no such risk. But clients can and should make that judgment for themselves. Energy companies choosing counsel for multibillion-dollar litigation cannot afford to overlook a firm’s institutional links to a cornerstone of the plaintiff-side climate litigation ecosystem. Given the stakes, they have every reason to ask how those relationships might affect the advocacy they are paying for, and they may conclude that their interests are better served by firms with no professional ties to the groups incubating the climate theories being wielded against them.