On FOI Requests and Other Benefits of Working at a Public University

In 2025, after twenty-five years at Case Western Reserve University, I moved to William & Mary. Among other things, this meant moving from a private institution to public one.

One consequence of moving to a state school has been greater clarity on what speech and expression is covered on campus. The First Amendment provides a firm constitutional floor on the level of speech protection state universities must provide. That is not so at private universities, and as I discovered at CWRU, even express university policies purporting to offer such protection can be gutted by an administration that does not care about free expression.

A second consequence of moving to a state school is that my school e-mail and files are potentially subject to freedom-of-information (FOI) requests under state open records laws. And I have been the subject of two such requests since my move to Virginia.

Both of the FOI requests submitted to the university had the same focus: communications I may have had with environmental organizations and others involved in climate litigation, presumably in response to the fact that I have have been critical of efforts to derail or preempt lawsuits against fossil fuel companies filed under states law, such asin Suncor Energy v. Boulder County. In neither case, however, are the requesters likely to find anything worthwhile.

The first request asked for correspondence I may have had with the Environmental Law Institute and individuals related to ELI’s Climate Judiciary Project. Presumably this request was prompted by ELI having listed me as a reviewer for the project. Several years ago I was asked if I would review some of the CJP materials, and I reviewed one draft chapter in detail and provided some general feedback on the project. I do not believe many of my recommendations were accepted and, in any event, all of this occurred before I moved to William & Mary, so none of it would be captured by an FOI request. (And, for what it’s worth, my view of the controversy over the CJP is much the same as my view of the controversy some years back when environmental groups complained about “junkets for judges”).

The second request, which came in more recently, is much broader, seeking correspondence with a wide range of folks involved in climate litigation, including the Sabin Center, and various environmental groups and foundations. I suppose the requesters are hoping to find evidence that I coordinated with the plaintiffs’ attorneys or that I received funding for my work in this area. Again, there is really not much to find–and this would be true even if the request covered the years before I arrived at William & Mary.

If the FOI requesters had asked, I would have happily explained the origins of my work in this area, including my decision to file an amicus brief in Suncor. The intersection of federalism and environmental law has been a focus of my work for over twenty years. I have also done significant work on how right-leaning folks should think about climate change, including these articles and my Climate Liberalism book. Indeed, my work is cited in briefs on both sides in Suncor. Of course, most of this work (and the evolution of my thinking about this area) long predates my move to a government institution subject to FOI laws.

My specific work on whether state and local government climate suits are preempted began with my paper, “Displacement and Preemption of Climate Nuisance Claims.”  As it happens, I did receive financial support for this paper, but not from any of the sources flagged in the FOI request. Rather, this paper was prepared for a research roundtable sponsored by the Law & Economics Center at George Mason University’s Antonin Scalia Law School, at which several authors presented papers related to public nuisance litigation of various sorts. Other than that, I have not received meaningful support for my work in this space (but would gladly accept some).

As for my Suncor brief, the FOI requesters may be disappointed to learn that it was not the result of some secret machinations by the plaintiffs’ lawyers or progressive foundations, and it was not funded by any such source. Given my work in this area, I had long planned to submit a brief representing my views should one of these cases reach the Supreme Court. While I have no idea whether my brief will be influential, I would like to think it could help the Court resolve this case in a way that does not disrupt the Court’s existing federalism jurisprudence or needlessly constrain the state role in environmental protection.

I would have readily explained all this had the FOI requesters asked. It would have been a quick call, and cheaper than an FOI request.