This week, Sen. Joe Manchin (D-WV) joined Senate Republicans in voting to strip the salary of embattled National Highway Transportation Safety Administration (NHTSA) Acting Administrator Ann Carlson.

On Tuesday, the Senate voted on an amendment to a spending bill that would defund Carlson’s position as Acting Administrator, a role that Republicans in the Senate claim is illegitimate. According to reporting from Fox News, the amendment was voted down by a small margin; but notably, Sen. Manchin joined Republicans in voting to strip Carlson’s salary from the funding package:

“The GOP bill — which was introduced on Sept. 29 as an amendment to a fiscal year 2024 appropriations package — failed in a 49-47 floor vote Tuesday in which Sen. Joe Manchin, D-W.Va., joined Cruz, Lummis and 44 other Republicans who voted in favor.”

Three Republicans were not present for the vote; otherwise, Sen. Manchin’s support would have likely put the amendment over the finish line.

In his role as Ranking Member of the Senate Commerce Committee, Sen. Ted Cruz (R-TX) led the initial inquiry into Carlson’s academic and activist background. While her nomination was officially pulled by the White House due to mounting criticism over her climate policies and support for climate litigation, she has continued on as “Acting” administrator, potentially in violation of the Vacancies Act.

Sen. Cruz has continued to lead the effort to remove Carlson from her position since there is no path forward for her to be confirmed by the Senate. Following Tuesday’s vote, Cruz told Fox News:

“It’s disappointing but unsurprising Senate Democrats were keener on keeping in place an ethically-challenged, environmental zealot who wants to ban gas cars than protecting the Senate’s constitutional authority on presidential nominations.”

Sen. Brian Schatz: A Likely Defender

During Tuesday’s floor vote, Senator Brian Schatz (D-HI), a member of the Committee that oversaw Carlson’s failed nomination bid, emerged as Carlson’s most vocal supporter. This impassioned support should come as no surprise – Sen. Schatz and Carlson go way back.

In May 2019, the plaintiff-recruiting nonprofit Center for Climate Integrity (CCI) and the Union of Concerned Scientists (UCS) co-sponsored an event at the University of Hawaii Law School with a goal of pushing plaintiffs in Hawaii to file a climate lawsuit.

The presenters included lead plaintiffs’ lawyer Vic Sher; CCI legal director Alyssa Johl; Ann Carlson, then an environmental law professor at UCLA Law; and the U.S. Senator from Hawaii, Brian Schatz.

The event focused on how bringing litigation could serve as a mechanism to force action on climate change. During his presentation, Sen. Schatz stated that litigation could “terrif[y]” American energy companies into meeting in the middle and supporting climate policies:

“[The industry is] terrified of discovery. … And now because business is terrified and they actually can imagine a scenario where they can navigate a carbon fee, this becomes like the moderate, not enough solution.”

Continuing, Sen. Schatz said the plaintiffs and their proponents are “suddenly very interested in cutting [out] the legislature,” but an end-run around Congress is justified in order to force companies to the table:

“My own view is that what we’re doing is dislodging people enough from their positions where we can probably get a vote [on a carbon fee]. All of this is a result of electoral pressure, grassroots activism, and litigation.”

Interestingly, the event coordinators were not confident from the start that Sen. Schatz would take such an activist-friendly line. Emails obtained through public records requests show that when a University of Hawaii law professor emailed event sponsors with an update that Sen. Schatz was “interested in speaking” at the panel, CCI president Richard Wiles responded minutes later, concerned that Schatz was “soft on litigation” and thus wouldn’t be “helpful” for purposes of the event:

“[Schatz] will probably be good on the urgency message, but he is soft on litigation. If he can’t say something in support (sic) state and municipal tort actions against big oil and other climate polluters, I’m not sure it will be helpful. Indeed, if he is waffly or nowhere on that issue it could take the wind out of the sails of some of the key players in the room.” (Emphasis added)

Schatz ultimately went on to participate in the event and give a full-throated endorsement of the activist-driven climate litigation campaign. The pitch appears to have been convincing enough – the City and County of Honolulu filed a climate lawsuit against oil and gas companies in March 2020 and the County of Maui filed shortly after.

Quid Pro Quo?

Even though Ann Carlson was already earning $350,000 a year at UCLA, UCS and CCI split the cost for Carlson’s airfare, hotel stay, and travel to and from the airport for the Hawaii Law event. After returning to California, Carlson emailed Dan Emmett, founder of the Emmett Center at UCLA and donor to Sher Edling, to advertise CCI’s “impressive” work and offer an introduction to the group.

Writing to Emmett in support of CCI the month after the event, Carlson wrote:

“I’ve been working with [CCI] a bit – we participated in a conference in Hawaii to try to encourage Hawaii to consider a nuisance lawsuit. I’ve also discussed them with Vic Sher and he thinks they’re an important part of the broader effort on the lawsuits to engage the public.”

Within just a few months after the meeting brokered by Carlson, Dan Emmett donated $25,000 to CCI, and copied Ann Carlson and Rockefeller consultant Rick Reed on the memo.

Recall that this was hardly Carlson and Emmett’s first-time fundraising for climate litigation efforts. In 2017 and 2018, Carlson and Emmett worked directly with Sher Edling to raise money from the Leonardo DiCaprio Foundation and other wealthy donors to directly finance the plaintiffs’ lawyers – activities that may have ultimately cost her a Senate-confirmed position.

Bottom Line: NHTSA Acting Administrator Ann Carlson continues to take fire from Congress over her support for lawsuits and policies that threaten to drive up Americans’ energy costs. It turns out that Carlson’s biggest supporter in Congress, Hawaii Senator Brian Schatz, has known about her activism all along and even joined Carlson years ago in a pitch to his home state’s taxpayers on filing a climate lawsuit.

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