Beyond a common interest

Attorney General Ken Cuccinelli has insisted that his office has played a limited and necessary role by intervening in a federal lawsuit over natural gas royalties in Southwest Virginia.

But the Bristol Herald-Courier reported Wednesday that Cuccinelli’s office opposed a property owners’ motion to obtain the emails between an assistant attorney general and lawyers from EQT Production Co. and CNX. Many were sent months after a senior judge ruled on the constitutional challenge that was the basis of the state’s interest.

The office’s desire to keep the content of the communications private casts further doubt on Cuccinelli’s assertion the state’s only interest was to protect the constitutionality of the Virginia Gas and Oil Act. The newspaper reported a federal magistrate judge determined last year that more than two dozen emails between Assistant Attorney General Sharon Pigeon and company lawyers do not address that issue.

Cuccinelli’s office fought the release of the emails, arguing that a privilege known as the “common-interest doctrine” allows lawyers representing separate clients to trade information as long as they have similar interests.

A memo his office filed in 2010 stated explicitly its sole interest was the constitutionality of the act: “The Commonwealth has no interest in the purely private aspects of this case, such as who ultimately owns the rights to the coalbed methane gas.”

U.S. Magistrate Judge Pamela Meade Sargent allowed the office to intervene on that basis.

But earlier this year, Sargent expressed shock over emails showing that Pigeon, who advises the Virginia Gas and Oil Board, “has been actively involved in assisting EQT and CNX with the defense of these cases, including offering advice on and providing information for use on the Motions before the court.”

The new information lends more credibility to Sargent’s conclusion.

Cuccinelli, who has accepted $100,000 from Consol (CNX) for his gubernatorial campaign, said his office acted only to protect the law and the interests of property owners who are entitled to share in gas production royalties.

He argued that communications between Pigeon and energy company lawyers were appropriate because the state and the defendants have a common interest in upholding the law.

Cuccinelli contends a class action lawsuit won’t resolve ownership disputes that have royalties locked up in escrow. But that is outside the constitutional question.

The state inspector general is investigating Pigeon’s actions. That may take months. Meanwhile, the issue is part of a bitter gubernatorial race between Republican Cuccinelli and Democrat Terry McAuliffe.

The attorney general needs to explain more clearly whose interest his office was trying to protect.

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