Earlier this week, former Mark Johnson Show host Mark Johnson produced his first podcast for his new employer, VTDigger. It was a 50-plus-minute interview with Attorney General Bill Sorrell, headlined by Our Eternal General’s stout denials of any wrongdoing. (It was also an excellent example of Johnson’s interviewing skills. His departure from WDEV was a big loss for our public discourse, and I look forward to his Digger podcasts.) Sorrell is, of course, the subject of an independent investigation for campaign finance-related activities.
The interview reveals Sorrell in all his self-centered, fumblemouthed glory. He is, as always, the innocent target of politically motivated attack and quasi-journalistic hit pieces. But it’s worth taking a close look at how he explains himself, and comparing that to what’s on the record so far. (The independent investigator, Tom Little, is famously tight-lipped about his work, so we have no clue what he may have discovered.)
I’m breaking this up into parts because otherwise, it’d be horrifically long. This installment, Sorrell’s explanation of the MTBE lawsuit, is itself pretty damn long. If you don’t want to read the whole thing, the bottom line is: Sorrell’s interpretations and recollections are self-serving, and often at odds with the facts. In my judgment, it’s unclear whether Sorrell violated the law; but his behavior and his insidery relationships with key players are disturbing at the very least. There is an appearance of wrongdoing, whether there was actual wrongdoing or not.
Background: In June of last year, Sorrell filed suit against a bunch of oil companies over the gasoline additive MTBE, which was originally intended to help gas burn cleaner, but turned out to have significant health effects. The case is actually being pursued, not by AG staff, but by four private law firms operating on a contingency basis: they get 25% of any funds received by the state. We’re talking big money; the state of New Hampshire has already collected $136 million, and a $236 million judgment is on appeal. Twenty-five percent of that is big money, indeed.
Partners or associates in two of the four law firms have contributed thousands to Sorrell’s campaign fund. The accusation is pay-for-play: that Sorrell brought the suit, at least in part, to open the door to a big payday for his donors. Here’s how Sorrell explained things to Johnson. (And if you don’t want to wade through this mess o’verbiage, I’ll summarize on the other side.)
The MTBE case is a case that we’ve been interested in for years. And we talked with the secretary of Natural Resources, or the Agency of Natural Resources during a prior governor’s administration about our interest in the case, with other, ah, New Hampshire had a case, and other nationwide cases, and that Agency of Natural Resources was not interested. But New Hampshire got a huge judgment in its case and some good decisions by the federal judge in the multi-district litigation, and ah we have been continuing to follow it.
And I went and met with the Agency of Natural Resources folks, I said, ahh, the current Agency of Natural Resources folks, “Do you have any interest in considering an MTBE case for groundwater contamination? Ahh, we’ve been following this for a while, there’ve been some good decisions, um, but if you’re not interested in the litigation, we’re not filing anything.” And this, umm, Secretary of Natural Resources, the then-Commissioner uhh environmental protection, very, very interested in the case.
And that’s why we’re in this case right now, because we have support, uhhh, and the ANR folks, the DEC folks have to do all the records analysis and and such, and ah the, uh, so this wasn’t something that came up because I got some campaign contributions to my campaign that “Oh boy, yeah, you gave me a contribution to my campaign, I’m gonna file a lawsuit that you want me to file?” No. That’s not the way this happened.
The fumblemouth reached apogee at this moment, Sorrell’s key denial.
Johnson then asked about the timeline, as it has been reported: Sorrell meets with representatives of the firms, decides to file the case, and receives thousands in contributions.
No. It wasn’t the time and they gave me a campaign contribution before they talked to me about the, about the laws— the possible lawsuit. And the fact that that was one firm of four that are retained under a contingency fee arrangement with the state, ahh, where they don’t get a dime unless there’s a recovery, the, ahhh, other firms, the Boston firm, the Pawa firm, and a New York firm I don’t even know the name of it, gave me no campaign contributions. It was recommended to me that they be retained also to represent the state, and I said fine. And that review was by some of my staff and Agency of Natural Resources staff, who interviewed all the law firms and ahhhh made the recommendation to me, “This is what we go with.” I played no part in that decision other than okaying the recommendation, uhh, to me.
To summarize his story: New Hampshire filed its suit back in 2003. Sorrell wanted to do the same, but got shot down by the Douglas administration. Then, when New Hampshire cashed in, Sorrell went to Shumlin administration officials and got the okay. As for the campaign contribution, that was given before Sorrell decided to file the suit, not after. And besides, only one of the four firms gave him money, so there was no quid pro quo.
There’s a lot of nonsense there, and a lot of assertions that don’t fit the facts.
The Douglas administration bit, I can buy. The long delay hadn’t been explained before, and it’s crucial because it imperils Vermont’s whole case: we banned MTBE in 2005, and the statute of limitations expired four years ago. A judge has already ruled that Vermont will have to document instances of MTBE contamination within six years from the filing date — i.e. no earlier than June 2008.
Sorrell says he didn’t take up the idea again until New Hampshire started to cash in. Fair enough; a nine-figure settlement does catch the eye. But let’s take a closer look at the timeline.
New Hampshire reached settlements with defendants starting in 2011. By the fall of 2012 it had settled with everyone except ExxonMobil, for a total of $136 million*. In April 2013, a jury ruled against ExxonMobil and awarded the state $236 million*. That decision was appealed; earlier this week, the NH Supreme Court rejected the appeal, upholding the judgment.
Back to Vermont. The Shumlin admininstration had been in office for two and a half years by the time of the $236 million judgment. No action by Sorrell. If he had been aware of the statute of limitations problem, I’d think he would have acted as quickly as possible — maybe even bringing it to ANR as soon as Shumlin’s people took over in January 2011. Or at least taking it up when New Hampshire started making lucrative settlements. But no.
In early December 2013, according to Paul Heintz’ excellent reporting in Seven Days, Sorrell met with attorneys Patricia Madrid and Mike Messina during an AGs’ conference in New Orleans. (It’s hard work, but somebody’s got to do it.) The subject, according to Sorrell’s own calendar: MTBE.
(Madrid and Messina act as go-betweens, “connecting AGs with firms looking to sue.” Law firms taking contingency cases for state AGs is a common phenomenon; the firms get subpoena power and the potential for huge paydays, and the states get the lion’s share of proceeds they might not have been able to win with their in-house legal resources. Those law firms are also very generous contributors to AGs’ campaigns, they underwrite many AG conferences and gatherings, and they also arrange “speaking engagements” for AGs, all-expenses-paid trips in exchange for appearing on a panel or some such.)
The following week, Sorrell was at a Democratic Attorneys General Association holiday party, where he accepted $10,000 from the Baron & Budd law firm “and those associated with it,” Heintz reports. Sorrell has said the topic of MTBE was discussed at this party.
It was presumably after these meetings that Sorrell restarted discussions with ANR about filing an MTBE suit, citing the favorable outcome of the New Hampshire case. The suit was filed in June 2014; a total of four law firms were on board, including Baron & Budd and Messina’s own firm. The other two, Pawa Group and Weitz & Luxenberg, did not give money to Sorrell’s campaign.
You may have noticed that Sorrell claimed only one of the firms had given him money. Well, he told Heintz that he “was unaware Mike Messina is mentioned in the contract.” Which seems a bit careless, shall we say.
And he continued to make the same claim in his interview with Johnson: that only one of the four law firms had given him money.
But that’s not the worst part. Sorrell says the campaign donations couldn’t have influenced the decision to file suit because he made that decision after receiving the cash. That’s nonsense. The donation was the quid; the suit was the pro quo. Which came first is immaterial, if there was an understanding among the parties. It’s clear that Sorrell restarted his pursuit of a long-dormant issue after conversations with the lawyer/donors.
Does it prove he acted out of financial self-interest? No, but it sure doesn’t disprove it.
Heintz’ reporting was based on public records, which included Sorrell’s official email account but not any private accounts he may use. In the trail of official emails, there is at least one reference to email communications with these lawyers through unofficial channels. It is to be devoutly hoped that Tom Little has gained access to those communications. Otherwise, he may not be able to prove or disprove, and the result of his efforts will not satisfy anyone. Except maybe Sorrell himself.
Even if there was no actual wrongdoing, Bill Sorrell has happily taken part in a money-engorged mutual backscratching society with these high-level bagmen and ambulance chasers. He has accepted plenty of campaign cash as well as hospitality and generous appearance fees from firms seeking to do business with the state of Vermont. He claims to have remained pure as the driven snow, even after splashing around in that ethical sewer. It might be true, but it’s hard to believe.