Will Senator Whitehouse Renew His Call for RICO Prosecution of Climate-Denying Companies like Exxon?

One of several Frontline videos discussing the blockbuster release of internal Exxon documents showing that global warming could well be real and that Exxon was worried about the effect of this knowledge on their business

by Gaius Publius

I've been writing recently about the blockbuster report by Inside Climate News that Exxon knew, as early as 1977, that climate change was very likely real and that continuing to burn fossil fuels would disrupt the livability of the planet. The main page of the ICN report is here. My initial discussion is here.

Prior to those revelations, Sen. Sheldon Whitehouse (see below) and others were calling for RICO civil suits against companies financing climate deniers to determine if these companies are guilty of defrauding the public in the same way the tobacco companies were guilty of defrauding the public. This piece is about those calls for RICO lawsuits, in particular, Sheldon Whitehouse's.

Bottom line first, to keep the timeline clear:

• Before it was known that Exxon knew (before the full release of their internal documents), Senator Whitehouse and others thought companies funding deniers may be defrauding the country in the same way tobacco companies defrauded the country and their customers.
   
• Whitehouse and others have already called for a federal RICO (racketeering) lawsuit to investigate the allegation and, if proved, to stop the lying and the fraud and seek damages.
   
• One of the hurdles for a RICO conviction (as opposed to a lawsuit or investigation) involves proving that the companies knew they were lying. In the case of tobacco companies, pre-trial discovery overcame that problem. Subpoenaed internal company documents showed they knew.
   
• Now Inside Climate News has released a treasure trove of internal Exxon documents going back to 1977, documents that appear to show the company knew, internally, that global warming was real and that the likely cause was carbon (CO2) emissions. ICN has also, with Frontline, interviewed many of the participants in Exxon's then study of global warming. This evidence is strongly against Exxon's claim that global warming is "uncertain" or unrelated to burning fossil fuel, its main product.
   
• In light of this new information, will Sen. Whitehouse renew his call for a federal RICO investigation? Will others?
   
• Will climate-aware voters call for Democratic political candidates to go on the record about RICO investigations?

The last two bullets above represent next steps. Care to help?

Now the details.

Sheldon Whitehouse Wants to Sue Fossil Fuel Companies For Climate Fraud

Back in late May, Sen. Sheldon Whitehouse (D-RI), a former prosecutor, wrote an op-ed calling for RICO investigations into companies engaged in and financing climate denial, likening these practices to the fraudulent practices of tobacco companies, who were similarly sued. (Hat tip to Daniel Marans at the Huffington Post, who wrote about the op-ed and from whom I borrowed this section's heading.)

Whitehouse starts by discussing the case of the tobacco companies (my emphasis throughout):

The fossil-fuel industry’s campaign to mislead the American people

by Sheldon Whitehouse

Fossil fuel companies and their allies are funding a massive and sophisticated campaign to mislead the American people about the environmental harm caused by carbon pollution. Their activities are often compared to those of Big Tobacco denying the health dangers of smoking. Big Tobacco’s denial scheme was ultimately found by a federal judge to have amounted to a racketeering enterprise.

The Big Tobacco playbook looked something like this: (1) pay scientists to produce studies defending your product; (2) develop an intricate web of PR experts and front groups to spread doubt about the real science; (3) relentlessly attack your opponents.

Thankfully, the government had a playbook, too: the Racketeer Influenced and Corrupt Organizations Act, or RICO. In 1999, the Justice Department filed a civil RICO lawsuit against the major tobacco companies and their associated industry groups, alleging that the companies “engaged in and executed — and continue to engage in and execute — a massive 50-year scheme to defraud the public, including consumers of cigarettes, in violation of RICO.”

Tobacco spent millions of dollars and years of litigation fighting the government. But finally, through the discovery process, government lawyers were able to peel back the layers of deceit and denial and see what the tobacco companies really knew all along about cigarettes.

In 2006, Judge Gladys Kessler of the U.S. District Court for the District of Columbia decided that the tobacco companies’ fraudulent campaign amounted to a racketeering enterprise. According to the court: “Defendants coordinated significant aspects of their public relations, scientific, legal, and marketing activity in furtherance of a shared objective — to . . . maximize industry profits by preserving and expanding the market for cigarettes through a scheme to deceive the public.”

Notice that Whitehouse is not accusing the carbon (fossil fuel) companies of having different ideas than most climate scientists. He's accusing them of fraud. You'll hear cries of "criminalizing ideas" from professional climate deniers if this lawsuit moves seriously forward. Far from having differing ideas, however, a successful suit will prove that the carbon companies, like the tobacco companies, have the same ideas the public and most scientists have ... and that they lied about what they knew. That's not prosecuting ideas; it's prosecuting ... well, fraud, something the government frequently does (except in the case of Wall Street investment banks) and should do as part of its job. 

Whitehouse: Fossil Fuel Companies Are Acting Like Tobacco Companies

Whitehouse documents considerable similarity between the tobacco industry's funding of claims it knew to be wrong — that smoking was safe, or at best, its harm was "unproven" — and the funding of similar claims by the carbon companies. For example:

The shape of the fossil fuel industry’s denial operation has been documented by, among others, Drexel University professor Robert Brulle. In a 2013 paper published in the journal Climatic Change, Brulle described a complex network of organizations and funding that appears designed to obscure the fossil fuel industry’s fingerprints. To quote directly from Brulle’s report, it was “a deliberate and organized effort to misdirect the public discussion and distort the public’s understanding of climate.” That sounds a lot like Kessler’s findings in the tobacco racketeering case.

There's more to back up his assertions in the op-ed. This is just part of the evidence he cites.

Whitehouse Wants to Use Discovery to See if Carbon Companies Are Guilty of Lying

At the time he wrote the op-ed, May 2015, Whitehouse wasn't sure — he didn't have the evidence — that the carbon companies were guilty in the same way the tobacco companies were. He didn't know, in other words, whether they knew they were lying. In the case of the tobacco companies, it took the "discovery" phase of the lawsuit to uncover the proof:

The tobacco industry was proved to have conducted research that showed the direct opposite of what the industry stated publicly — namely, that tobacco use had serious health effects. Civil discovery would reveal whether and to what extent the fossil fuel industry has crossed this same line. We do know that it has funded research that — to its benefit — directly contradicts the vast majority of peer-reviewed climate science. One scientist who consistently published papers downplaying the role of carbon emissions in climate change, Willie Soon, reportedly received more than half of his funding from oil and electric utility interests: more than $1.2 million.

To be clear: I don’t know whether the fossil fuel industry and its allies engaged in the same kind of racketeering activity as the tobacco industry. We don’t have enough information to make that conclusion. Perhaps it’s all smoke and no fire. But there’s an awful lot of smoke.

Thanks to the ICN report, we now appear to have that information.

Will Sheldon Whitehouse Renew His Call for RICO Lawsuit in Light of the Exxon Documents?

Above, Whitehouse wrote (and I bolded): "I don’t know whether the fossil fuel industry and its allies engaged in the same kind of racketeering activity as the tobacco industry. We don’t have enough information to make that conclusion." I think any interpretation of Exxon's own internal documents is a strong indicator of real concern and guilty knowledge on their part.

For example, from the initial ICN report:

At a meeting in Exxon Corporation's headquarters, a senior company scientist named James F. Black addressed an audience of powerful oilmen. Speaking without a text as he flipped through detailed slides, Black delivered a sobering message: carbon dioxide from the world's use of fossil fuels would warm the planet and could eventually endanger humanity.

"In the first place, there is general scientific agreement that the most likely manner in which mankind is influencing the global climate is through carbon dioxide release from the burning of fossil fuels," Black told Exxon's Management Committee, according to a written version he recorded later.

It was July 1977 when Exxon's leaders received this blunt assessment, well before most of the world had heard of the looming climate crisis.

A year later, Black, a top technical expert in Exxon's Research & Engineering division, took an updated version of his presentation to a broader audience. He warned Exxon scientists and managers that independent researchers estimated a doubling of the carbon dioxide (CO₂) concentration in the atmosphere would increase average global temperatures by 2 to 3 degrees Celsius (4 to 5 degrees Fahrenheit), and as much as 10 degrees Celsius (18 degrees Fahrenheit) at the poles. Rainfall might get heavier in some regions, and other places might turn to desert.

"Some countries would benefit but others would have their agricultural output reduced or destroyed," Black said, in the written summary of his 1978 talk.

Other documents and company actions show Exxon took Black's warning very seriously. ICN is writing analyses of the documents it has released (document repository here, if you want to lookat them for yourself). For example, read "Exxon Confirmed Global Warming Consensus in 1982 with In-House Climate Models". In it you'll learn that in 1979 a researcher told company executives that "unless fossil fuel use was constrained, there would be 'noticeable temperature changes' and 400 parts per million [ppm] of carbon dioxide (CO₂) in the air by 2010, up from about 280 ppm before the Industrial Revolution." We're at 400 ppm today. The company spent millions studying global warming, including funding a then-state-of-the-art supertanker to take sea and air temperature readings.

This is explosive information. Will Sheldon Whitehouse renew his call for the government to file a RICO lawsuit against Exxon and others like them who finance climate denial in order to continue their profits? He should, in my view. Who knows what other documents will be uncovered by aggressive "discovery" and subpoenas?

If you recall, the tobacco companies lost their case, lost it big, and paid a heavy price. Isn't it time the carbon companies — Exxon, the Koch companies, BP and Shell — paid a price for their misdeeds as well? Just because we may have crossed some lines, reached some tipping points (peak water in California) doesn't mean we can't act now to prevent even worse consequences (multi-meter sea level rise in this century, as much as 240 feet when all ice melts).

James Hansen would call this a moral obligation. So would I.

It's Going to Take Force

I'd like to close with something I wrote earlier: Don't be confused. It's going to take force to defeat the fossil fuel companies. We're not in a debate with them, we're in a battle. It will take an exercise of power to make the Kochs and the Exxons stand down. Battle means weapons — the weapon of public opinion, yes, but stronger ones too, the strongest we can find.

A multi-billion-dollar federal lawsuit, one with every chance of succeeding, would count as force in my book. Would Senator Whitehouse, Senator Sanders or candidate Clinton be willing to call for one? Perhaps it's time to ask them.

(Updated to reflect the fact that the government's RICO tobacco suit was a civil suit, not a criminal prosecution.)

GP