Climate counsel aims for tobacco-level attorney fees

Sher Edling is at the forefront of these firms.

Going as far back as 2018, the San Francisco firm has recruited a number of states and localities to sue the oil and gas industry over global warming under theories that include public nuisance and violations of consumer-protection laws. Sher Edling and other firms portray this as a no-risk proposition for local taxpayers because they only get paid a contingency fee if they win. In the meantime, charities associated with the Rockefeller Foundation have provided more than $5 million in assistance to Sher Edling.

The firm also has been at the center of controversy surrounding attempts to influence the science presented to courts without disclosing its involvement climate litigation.

The most recent example is a July 2026 report from the National Academies of Science, which purports to link climate change directly to specific weather events, prepared in association with Michael Burger, who is Of Counsel to Sher Edling. Burger also was involved in the creation of a climate chapter for the Federal Judicial Center science manual. That chapter was later pulled from the manual.

According to a Manufacturers’ Accountability Project report from 2019 titled Beyond the Courtroom, the theory of bringing tobacco-style litigation against the energy industry started with the Global Warming Legal Action Project, formed in 2001 by environmental attorney Matt Pawa. The group’s four main goals, stated in a 2018 publication, were to “apply a tort law approach to global warming,” serve as a forum for sharing litigation strategy, “educate members of the bar and the general public” regarding “potential liability for global warming” and using the courts to combat global warming and promote clean energy.

Pawa likely made millions of dollars earlier in his career representing New Hampshire and Vermont in lawsuits over MTBE, an additive the federal government required oil companies to put in gasoline to reduce air pollution but which contaminated water supplies when it leaked out of underground tanks. The New Hampshire suit yielded $272 million in verdicts and $35 million in contingency fees for Pawa and lawyers at Sher Leff, a predecessor to Sher Edling. Vermont’s suit, crippled by statute of limitations problems, settled for $3.8 million.

The nonprofit group Protect the Public’s Trust, through public records requests, obtained contracts between Sher Edling and the states of Maine, Massachusetts and Minnesota and local governments such as Anne Arundel County, Maryland; Charleston, South Carolina; Washington, D.C.; and New York City.

The fee arrangements in some of the agreements produced suggest potential compensation amounting to tens of millions of dollars.

Minnesota’s 2020 engagement of Sher Edling, for instance, provides for contingency fees of 16.67% on the first $150 million recovered and 7.5% for amounts after that.

The City of Charleston agreed to a contingency fee schedule of 25% on recoveries up to $100 million, plus 15% on amounts between $100 million and $150 million, plus 7.5% on amounts greater than $150 million.

Maine’s agreement with the firms Sher Edling LLP, Hausfeld LLP, and DiCello Levitt LLP provides for different fee schedules depending on whether the state collects before or after discovery – 10% on the first $150 million in damages and 2.5% thereafter if the damages are collected before discovery and 16.67% on the first $150 million and 7.5% thereafter on damages collected after discovery.

The District of Columbia – which engaged both Sher Edling and Tycko & Zavareei – provides a 12% contingency fee, though it places caps of $25 million, $45 million, and $65 million depending on whether recovery is made before discovery, after discovery starts but before trial, or after trial starts.

New York City redacted details about its fee arrangement with Sher Edling other than to disclose that the firm will be paid on a contingency basis and that, if a settlement is reached with any of the defendants that includes equitable relief, Sher Edling will be awarded fees based on both the monetary award plus “the Then-Present Value of any In-Kind Recovery to be made to City pursuant to a Settlement.” The City and Sher Edling agreed to “use their best efforts to agree on the value of equitable relief obtained.”

Massachusetts has a more traditional approach in paying their outside counsel, who are dubbed “Special Assistant Attorneys General.” If the Commonwealth’s recovery is at least four times the value of total attorneys’ fees accrued, Sher Edling will receive their full fees and costs. If the recovery is less than that amount, the firm will be paid 25% of the amount received.

Anne Arundel County refused to disclose its fee arrangement with Sher Edling.

Boulder’s case is being prosecuted by a team of environmental public interest and private law firms. Earthrights International, a tax-exempt charitable organization that bills itself as “a team of community leaders, campaigners and legal strategists who challenge powerful corporations, governments and financial institutions that violate people’s rights and destroy our planet for profit” is lead counsel working pro bono on the case.

Earthrights’ most recent tax return shows 2024 revenues of over $10.5 million – the most recent data available – up significantly from the $3.9 million reported in 2020.

Earthrights may be working for free, but the Boulder team includes other counsel, at least some of whom are not. Singleton Schreiber LLP, Russell & Woofter LLC, David Bookbinder and Marco Simons also represent Boulder.

According to Boulder County’s webpage describing their lawsuit, the private firms are entitled to up to 20% of any award in the case.

The county boasts that this fee arrangement “prioritize[s] spending taxpayer dollars in a cost-conscious manner.” But Boulder County has a narrow definition of taxes not shared by one of its lawyers. A goal of these climate cases is not only to put the alleged costs of climate change on the oil and gas industry but to raise the cost of their products for consumers, which Bookbinder acknowledged publicly at a Federalist Society program last year.

“Essentially, the tort liability is an indirect carbon tax,” Bookbinder said. “You sue an oil company, an oil company is liable, the oil company then passes that liability on to the people who are buying its products. In some sense, it is the most efficient way — the people who buy those products are now going to be paying for the cost imposed by those products.”