Sen. Whitehouse Renews His Call for a RICO Investigation of Exxon and the Fossil Fuel Industry

Thom Hartmann on Exxon's Climate Coverup: "After a 7 year federal investigation - the tobacco lobby was found guilty of violating federal racketeering laws. And now the prosecutor who tried that case is calling for a federal investigation into Exxon. Find out why..."

by Gaius Publius

As most readers know, we've been following the "Exxon Knew" story for quite some time, ever since the blockbuster exposé of internal Exxon documents going back to 1977. For an excellent backgrounder on that part of the story, listen to Thom Hartmann in the video above. He's clear and concise.

Or if you prefer words in print, read the following by climate activist Bill McKibben from his recent piece in The Nation:

A few weeks before the last great international climate conference—2009, in Copenhagen—the e-mail accounts of a few climate scientists were hacked and reviewed for incriminating evidence suggesting that global warming was a charade. Eight separate investigations later concluded that there was literally nothing to “Climategate,” save a few sentences taken completely out of context—but by that time, endless, breathless media accounts about the “scandal” had damaged the prospects for any progress at the conference.

Now, on the eve of the next global gathering in Paris this December, there’s a new scandal. But this one doesn’t come from an anonymous hacker taking a few sentences out of context. This one comes from months of careful reporting by two separate teams, one at the Pulitzer Prize–winning website Inside Climate News, and other at the Los Angeles Times (with an assist from the Columbia Journalism School). Following separate lines of evidence and document trails, they’ve reached the same bombshell conclusion: ExxonMobil, the world’s largest and most powerful oil company, knew everything there was to know about climate change by the mid-1980s, and then spent the next few decades systematically funding climate denial and lying about the state of the science....

We also noted that last May Sen. Sheldon Whitehouse, a former prosecutor, called for a tobacco-lawsuit-style RICO investigation into the fossil fuel industry, and we asked aloud if he would renew that call in light of the "Exxon Knew" documents.

Sen. Whitehouse Renews His Call for a RICO Investigation into the Fossil Fuel Industry

Sen. Whitehouse has renewed that call. Below is his speech to the Senate as prepared for delivery. Video is here if you prefer to listen instead.

Sen. Whitehouse uses much of this speech to detail the wailing of the denier industry after his original speech in May, and asks, "Have we perhaps touched a little nerve?" Indeed, and that's a tell. RICO has the force of law, which makes it dangerous to them. That wailing by the denier industry should be a sign to us: proceed at once.

I've highlighted the most pertinent portions of the speech below, but if you want one takeaway, it's this one sentence from near the end:

it is clearly long past time for the climate denial scheme to come in from the talk shows and the blogosphere, and have to face the kind of truth-testing audience that a civil RICO investigation could provide.

Here's the full speech (italics mine):

Time to Wake Up: Touched a Nerve
As Prepared for Delivery
Tuesday, October 20, 2015

Mr. President, last week, former head of the National Oceanic and Atmospheric Administration Robert M. White passed away at the age of 92. Dr. White served this nation under five presidents and pioneered the peaceful use of satellites to understand our weather and climate. “We do have environmental problems and they’re serious ones, the preservation of species among them,” he said, “but the climate is the environmental problem that’s so pervasive in its effects on the society. . . . The climate is really the only environmental characteristic that can utterly change our society and our civilization.”

That was in 1977. That same year, James F. Black, a top scientific researcher at the Exxon Corporation gave that company’s executives a similar warning: “[T]here is general scientific agreement,” he told Exxon’s Management Committee, “that the most likely manner in which mankind is influencing the global climate is through carbon dioxide release from the burning of fossil fuels.” According to emerging reports, Exxon executives kept that warning a closely guarded company secret for years.

I rise today for the 115th time to urge that we wake up to the threat of climate change. I rise in the midst of a decades-long, purposeful corporate campaign of misinformation, which has held this Congress and this nation back from taking meaningful action to prevent that utter change.

Scrutiny of the corporate campaign of misinformation intensifies, and scrutiny of the fossil fuel polluters behind it intensifies, and the regular cast of right-wing, climate-denier attack dogs have got their hackles up.

On May 6, I gave a speech here on the Floor. The speech compared the misinformation campaign by the fossil fuel industry about the dangers of carbon pollution to the tobacco industry’s misinformation campaign about the dangers of its product.

The relevance of that comparison is that the United States Department of Justice, under the civil provisions of the federal Racketeer Influenced and Corrupt Organizations statute—RICO for short, brought an action against the tobacco industry. The United States alleged that the tobacco industry’s misinformation campaign was fraudulent. And the United States won, in a lengthy and thorough decision by United States District Judge Gladys Kessler.

Go ahead and read them. DOJ’s complaint and Judge Kessler’s decision can be found at the websites of the Justice Department and the Public Health Law Center, respectively, and are linked on my website, whitehouse.senate.gov/climatechange. I will warn you: the judge’s decision is a long one—but it makes good reading.

The comparison is strong. There are whole sections of the Department of Justice civil RICO complaint, and whole sections of Judge Kessler’s decision, where you can remove the word “tobacco” and put in the word “carbon,” and remove the word “health” and put in the word “climate,” and the parallel with the fossil fuel industry climate denial campaign is virtually perfect.

This is not an idea I just cooked up. Look at the academic work of Professor Robert Brulle of Drexel University and Professor Riley Dunlap of Oklahoma State University. Look at the investigative work of Naomi Oreskes’s book Merchants of Doubt, David Michaels’s book Doubt is Their Product, and Gerald Markowitz and David Rosner’s book Deceit and Denial, describing the industry-backed machinery of deception.

Look at the journalistic work of Neela Banerjee, Lisa Song, David Hasemyer, and John Cushman Jr. in the recent reporting of InsideClimate News about what ExxonMobil knew about climate change versus the falsehoods it chose to tell the public. Look at a separate probe by journalists Sara Jerving, Katie Jennings, Masako Melissa Hirsch, and Susanne Rust in the Los Angeles Times.

From their work, we now know that Exxon, for instance, knew about the effect of its carbon pollution as far back as the late 1970s, but ultimately chose to fund a massive misinformation campaign rather than tell the truth. “No corporation,” said professor and climate change activist Bill McKibben, “has ever done anything this big and this bad.”

Here’s how Judge Kessler depicts the culpable conduct of the tobacco industry: “Defendants have intentionally maintained and coordinated their fraudulent position on addiction and nicotine as an important part of their overall efforts to influence public opinion and persuade people that smoking is not dangerous.”

Compare that to the findings of Dr. Brulle, whose research shines light on the dark money campaigns that support climate denial. The climate denial operation, to quote Dr. Brulle, is “a deliberate and organized effort to misdirect the public discussion and distort the public’s understanding of climate.”

The parallels between what the tobacco industry did and what the fossil fuel industry is doing now are so striking, I suggested in my speech of May 6, that it was worth a look: that civil discovery could reveal whether the fossil fuel industry’s activities cross the same line into racketeering. I said that again in an op-ed piece I wrote in the Washington Post on May 29 regarding the civil RICO action against tobacco.

Oh, my, what caterwauling has ensued from the fossil fuel industry trolls! Here’s a quick highlight reel of the tempest of right-wing invective.

One climate denier, Christopher Monckton, declared, “Senator Whitehouse is a fascist goon.” Another denier compared me to Torquemada, the infamous torturer of the Inquisition. And the official Exxon responder got so excited about this suggestion he used a word I am not even allowed to say on the Senate Floor! He forgot Rule One in crisis management: don’t lose your cool.

The right-wing website Breitbart.com responded by calling me “the preposterous Democrat senator for Rhode Island,” and saying the notion that there is an industry-funded effort to mislead the American people about the harm caused by carbon pollution is “a joke,” a conspiracy theory on par with Area 51 or the faking of the moon landing. Tell that to tobacco.

Paul Gigot, editorial page editor of the Wall Street Journal, said global warming concerns, “are based on computer models, not by actual evidence, not by actual evidence of what we’ve seen so far.”

The polluter-funded George Marshall Institute, a long-time climate denial outfit, wrote that this was an attack on constitutional rights; a presumptuous argument on their part given that there’s no constitutional right to commit fraud.

Similarly, Calvin Beisner, founder of a phony-baloney industry front called the Cornwall Alliance, said the same: the mere suggestion represents a “direct attack on the rights to freedom of speech and the press guaranteed by the First Amendment” and is “horrifically bad for science.” Coming from a science denial outfit, that concern for science is rich. And again, fraud is not protected by the First Amendment.

In the National Review, I was accused of wanting to launch “organized crime investigations . . . against people and institutions that disagree with [me] about global warming,” in order to “lock people up as Mafiosi.”

“Crime”? “Lock people up”? Let’s remember, Mr./Madam President, that we are talking about civil RICO, not criminal. No one went to jail in the tobacco case. Investigating the organized climate denial scheme under civil RICO is not about putting people in jail. Query why the National Review would mislead people about such an obvious fact.

All a civil RICO case does is get people to have to actually tell the truth, under oath, in front of an actual impartial judge or jury, and under cross-examination—which the Supreme Court has described as “the greatest legal invention ever invented for the discovery of truth.” No more spin and deception.

But that’s exactly the audience polluters and their allies can’t bear, so the flacks set off criminal smokescreens and launch “fascist goon” and “Torquemada” hysterics. A few weeks ago, 20 scientists agreed with me, and wrote a letter to Attorney General Lynch supporting the idea of using civil RICO.

That was too much for the Troll-in-Chief for the fossil fuel industry: the Wall Street Journal editorial page. The Wall Street Journal editorial page has long been an industry science-denial mouthpiece. They use the same playbook every time: one, deny the science; two, question the motives of reformers; and three, exaggerate the costs of reforms.

When scientists warned that chlorofluorocarbons could break down the atmosphere’s ozone layer, the Wall Street Journal ran editorials—for decades—devaluing the science, attacking scientists and reformers, and exaggerating the costs associated with regulating CFCs.

When acid rain was falling in the Northeast, the Wall Street Journal editorial page questioned the science, claimed the sulfur dioxide cleanup effort was driven by politics, and said fixing it carried a huge price tag. Ultimately, the Journal’s editorial page, after years of this, had to recant and admit that the cap-and-trade program for sulfur dioxide “saves about $700 million annually compared with the cost of traditional regulation and has been reducing emissions by four million tons annually.”

Now, on climate change, the Journal is back to the same pattern: deny the science, question the motives of climate scientists, exaggerate the costs of tackling carbon pollution. For decades, the Journal has persistently published editorials against taking action to prevent manmade climate change.

On this the editorial page said, by talking about civil RICO I’m trying to “forcibly silence” the denial apparatus. “Forcibly silence”? First of all, against the billions of the Koch Brothers and ExxonMobil, fat chance that I have much force to use. And “silence”? I don’t want them silent; I want them testifying, in a forum where they have to tell the truth. Is the Journal really saying that in a forum where deniers have to tell the truth their only response would have to be silence? Making them tell the truth forcibly silences them? Because the only thing civil RICO silences is fraud.

By the way, the Journal editorial never mentions that the government won the civil RICO case against tobacco on very similar facts. That would detract from the fable.

Who does the Journal cast as the victim in their fable? None other than Willie Soon, who they said I singled out for—here’s what they said—having “published politically inconvenient research on changes in solar radiation.” Actually, what’s inconvenient for Dr. Soon is that the New York Times reported that he gets more than half of his funding from big fossil fuel interests like ExxonMobil and the Charles G. Koch Foundation, to the tune of $1.2 million, and didn’t disclose it. Dr. Soon’s research contracts even gave his industry backers a chance “for comment and input” before he published, and he referred to the papers he produced as “deliverables.”

In case you don’t know it, that’s not how real science works.

Of course, none of this sordid financial conflict is even mentioned by the Wall Street Journal editorial page. They’d rather pretend Dr. Soon is being singled out for “politically inconvenient” views. Please.

It gets better. In the editorial, the role of neutral expert commenting on this goes to Georgia Tech’s Judith Curry. She offers the opinion that my “demand . . . for legal persecution . . . represents a new low in the politicization of science.” This is a particularly rich and conflict-riddled opinion, as Ms. Curry is herself a repeat anti-climate witness performing regularly in committees for Republicans here in Congress. Again, no mention of this interest of Ms. Curry’s by the Wall Street Journal editorial.

The fossil fuel industry’s climate-denial machine rivals or exceeds that of the tobacco industry in size, scope, and complexity. Its purpose is to cast doubt about the reality of climate change in order to forestall a move toward cleaner fuels and allow the Kochs and Exxons of the world to continue making money at everybody else’s expense. And the Wall Street Journal editorial page plays its part in the machine.

Even though it’s only the editorial page, and not the Journal's well-regarded newsroom, facts and logic are supposed to matter. Ignoring the successful tobacco litigation; omitting the salient fact of Dr. Soon being paid by the industry involved in his research; and bringing in a climate denier as their neutral voice without disclosing that conflict—I’d like to see them get this editorial by the editorial standards of their own newsroom.

So why all the histrionics on the far right, Mr./Madam President? Why the deliberate subterfuge between civil and criminal RICO? Why the name-calling? Have we perhaps touched a little nerve? Have we maybe hit a bit too close to home? Are the cracks in the dark castle of denial as it crumbles maybe beginning to rattle the occupants?

Whatever the motivation of the Wall Street Journal and other right-wing climate denial outfits, it is clearly long past time for the climate denial scheme to come in from the talk shows and the blogosphere, and have to face the kind of truth-testing audience that a civil RICO investigation could provide. It’s time to let the facts take their place, and let climate denial face that “greatest legal engine ever invented for the discovery of truth.”

I yield the floor.

The first attorney general, either Loretta Lynch or a state AG in a state with anti-racketeering laws, who will deliver a decisive blow to the fossil fuel industry and to their credibility by launching a RICO suit, will be a hero and a game-changer.

Listen to the crowd after Sanders speaks. The people get it.

And the first presidential candidate to promise, if elected, that she or he will appoint such an Attorney General, will be as wildly cheered as Bernie Sanders was cheered at this moment in the recent debate.

GP