Why Are ‘Charities’ Funneling Millions Into Climate Change Lawfare?

Over the last several years, dozens of dubious climate change lawsuits have been brought by state and local governments against the oil and gas industry. They are bringing these cases with help from white-shoe law firms, funded by non-profit money from Big Philanthropy.

Such attempts at “legislation through litigation” represent yet another example of the deeply regrettable tendency toward the ends-justify-the-means rationalizations common in contemporary political activism. The millions in tax-exempt philanthropic dollars apparently underwriting this lawsuit campaign also raise serious questions about the proper relationship between charity, politics and the judicial system.

Citing recently released tax filings, Fox News reported that the New Venture Fund, a registered 501(c)(3) charity and the largest constituent member of the giant left-of-center political nonprofit network managed by Arabella Advisors, had granted $2.5 million to the for-profit law firm Sher Edling in 2022. This was after it had funneled $3 million to the firm last year.

Sher Edling is best known for representing state and local governments in a slew of lawsuits against oil and gas companies, accusing them of downplaying or otherwise misrepresenting the impact that their products have on the global climate. The governmental plaintiffs (which include the states of Rhode Island and Delaware, the cities of Charleston, South Carolina and Baltimore, the county of Anne Arundel, Maryland, and others) are suing to force “Big Oil” to pay them compensation for the vast costs that these governments claim they are incurring due to climate change.

None of the plaintiffs have yet prevailed on the merits, but the catch is they don’t necessarily need to. Activists hope that if just one case lands before “one judge in one state in one courtroom that sees a path to allowing these cases to go to trial,” discovery and the prospect of a jury trial could give them major leverage over the industry. The activists don’t necessarily need to win a verdict to achieve their ultimate objectives pertaining to future climate policy or legislation.

The money Sher Edling received from the New Venture Fund was apparently routed through one of the nonprofit’s countless fiscally-sponsored projects: the Collective Action Fund for Accountability, Resilience, and Adaptation. It has no website or other public profile, but grant descriptions explain that the fund’s purpose is to funnel charitable dollars to “enable cities, counties, and states hard hit by climate change to file high-impact climate damage and deception lawsuits represented by expert counsel.” This was formerly a project of a different 501(c)(3) called the Resources Legacy Fund, before switching its sponsorship to the New Venture Fund.

Notably, the Collective Action Fund has received significant support from Big Philanthropy. Major known funders include the MacArthur Foundation ($9 million since 2017) and the JPB Foundation ($3.3 million from 2020 to 2022, plus another $1.15 million approved for future payment), in addition to six-figure totals from the Hewlett Foundation, the Rockefeller Brothers Fund, and the Gordon and Betty Moore Foundation.

In an October 2023 letter responding to congressional inquiries, Sher Edling claimed that this philanthropic money does not underwrite specific lawsuits, but is instead used to support “the firm’s general operations in this area” — that is, climate litigation.

Because it would bypass the legislative process on a major issue of public policy, commentators have aptly labeled this whole phenomenon “legislation through litigation,” or even “lawfare.” They have raised important questions that more people should be asking. At least two overarching issues deserve particular mention.

The first concerns the nature of the lawsuits themselves. Climate change (and what should be done about it) is among the most contentious and consequential public policy issues of our time. The debate surrounding it involves major uncertainties and tradeoffs that carry with them direct personal ramifications for virtually every American. It is exactly the sort of issue that should be resolved though the political process, by voters and their elected representatives in Congress, not through a judicial process, by private lawyers and their ideologically motivated funders.

Moreover, it defies any notion of justice to hold the oil and gas industry civilly liable for producing and selling a product that is utterly essential to humanity’s survival — including these governmental plaintiffs’ own constituents. That is essentially what these lawsuits boil down to.

The second concern relates to the manner in which this litigation is evidently being at least partially financed. Big Philanthropy is routing millions of charitable dollars through a tax-exempt 501(c)(3) nonprofit to a for-profit law firm, for the purpose of supporting a nationwide litigation campaign. Is there a point at which such an arrangement ceases to be “charitable,” in the sense that we collectively understand that term? If so, what should we do about that?

Government lawsuits against the oil and gas industry over the alleged impacts of climate change rest upon an entirely unjust theory of liability. They are an affront to both the civil justice system and the democratic legislative process.

That they are apparently being underwritten by giant private foundations is further evidence of just how far Big Philanthropy has moved away from what most Americans would consider “charity.”

This article first appeared in The Hill on January 24, 2024