Energy Policy Advocates v. Attorney General’s Office

The Vermont Supreme Court affirmed a trial court’s determination that communications between the Vermont Attorney General’s Office and other state attorneys general were shielded from disclosure under Vermont’s Public Records Act (PRA). The plaintiff had filed PRA requests seeking common interest agreements between the Vermont Attorney General’s Office and the other state attorneys general that mentioned carbon dioxide, greenhouse gas emissions, or national ambient air quality standards, as well as related communications. The trial court ordered the Attorney General’s Office to produce the seven common interest agreements but concluded that the work-product doctrine shielded communications and other documents from disclosure. The Supreme Court agreed, rejecting the plaintiff’s contention that ongoing litigation was required for the work-product doctrine to apply. The Supreme Court also concluded that the Attorney General’s Office did not waive the doctrine’s protection by sharing documents and communications with other attorneys general. The Supreme Court found that the documents were shared “in an effort to unify … strategy and conserve resources with regard to environmental litigation that the [Attorney General’s Office] has considered pursuing or predicted defending against.” The Supreme Court also found that the trial court should not have awarded the plaintiff attorney fees because the plaintiff had not substantially prevailed in the proceeding that consolidated four underlying lawsuits.

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In a lawsuit brought by Energy Policy Advocates, a Vermont Superior Court ordered the Vermont Attorney General to produce seven common interest agreements concerning “the general subject of combatting global warming in some fashion,” but concluded that communications related to the common interest agreements were attorney work product that was shielded from disclosure under Vermont’s Public Records Act. The common interest agreements were with other state attorneys general (and, in one case, with auto manufacturers) and related to automobile greenhouse gas standards, California’s cap-and-trade policy, climate change public nuisance litigation, potential litigation to compel action concerning greenhouse gas emissions, NEPA regulations, and oil and gas development in the Arctic. The court concluded that the agreements themselves had to be produced so that the State could use them to document the refusal to produce subsequent communications within the scope of the agreements. The court rejected the argument that the communications were not protected because the lawsuits might have a political component or motivation.

In early June 2020, Energy Policy Advocates filed a lawsuit in state court in Vermont seeking to compel the Attorney General’s Office to produce records under the Vermont Public Records Law in response to four records requests made in April 2020. The requests sought certain correspondence, including certain emails with “GHG Emissions Affirmative Legislation” or “Affirmative Climate” in the subject line or that included the word “complaint” and “criteria pollutant,” “greenhouse gas,” or “GHG.” The complaint alleged that the Attorney General’s Office was improperly using common interest agreements to “shield records from the public eye, while nevertheless sharing such records with actors not employed by the State of Vermont.”

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