Big Oil's day in court
THERE'S a potentially game-changing way to make the fossil fuel industry pay for its climate crimes with a pretty good track record. It worked against Big Tobacco. It's been used against organized crime, gangs, corrupt police departments, even FIFA. It's a little legal statute known as RICO, or the Racketeer Influenced and Corrupt Organizations Act of 1970. This statute has been successfully used to prosecute organizations for a wide array of alleged crimes from tax evasion to mail fraud, money laundering to drug trafficking.
Recently, 16 Puerto Rico municipalities filed a class-action lawsuit in federal court against fossil fuel companies - including Exxon Mobil, Royal Dutch Shell, Chevron, BP, ConocoPhillips and Arch Coal alleging they colluded to suppress evidence of climate change whose devastating impacts include 2017's Hurricane Maria.
If the RICO Act was successful against Big Tobacco back in 2006 for "a decades-long conspiracy to deceive the public about the risks of smoking in order to sustain their profits." Could the same logic be used again here? I certainly hope so.
The similarities are eerily familiar. The fossil fuel giants not only deployed the same deception tactics, they even hired the same PR firms as big tobacco in an apparent attempt to deceive the public about the dangers of their products.
Recent headlines read that "Exxon knew" that their products were causing global climate change for nearly the past half a century. This, of course, has been part of the climate discourse since at least Naomi Oreskes and Erik Conway's 2014 book "Merchants of Doubt" exposed it. But what's new is exactly how on-the-nose they were. A new study in the journal Science published by Harvard researchers found that starting in the late 1970s "63 to 83% of the climate projections reported by ExxonMobil scientists were accurate in predicting subsequent global warming." Their climate models were even more accurate than NASA's. Let that sink in.
Armed with information that could save countless lives and our planet from imminent doom, they did exactly what you would expect. No, not spring into action, alert the authorities or attempt to use their significant financial might and technical
prowess to start developing solutions. Instead, Big Oil companies reportedly spent millions of dollars on a global public deception campaign that spanned decades to make the science seem unclear that climate change was real and cast doubt on the role of fossil fuels. Their updated playbook appears to be to accept the reality of fossil fuel caused climate change but insist that fossil fuels are needed to address energy poverty and provide resilience in the face of climate change.
Similarly, Big Tobacco companies knew for decades that cigarettes were addictive as well as the health risk including premature death - yet spent millions to misinform the public. A landmark RICO case in 2006 found them guilty of civil fraud and racketeering, and conspiring to mislead the public, which is why the federal RICO case against fossil fuel companies seems promising.
But the successful legal action against Big Tobacco didn't start at the federal level. It started at the state level.
In 1994, Congress had CEOs of Big Tobacco testify in public, claiming they didn't believe their products were addictive. This led to a massive public outcry for legal action. But since it seemed unlikely that legal action would win at the federal level, attorney generals from 46 states, the district of Columbia and five U.S. territories filed independent lawsuits against Big Tobacco. This approach led to a historic master-settle agreement in 1998 in which Big Tobacco was forced to pay out billions of dollars to states every year.
If the current case ends up in the Supreme Court, it's hard to imagine the court clearly and firmly ruling against Big Oil. (Interestingly, Justice Amy Coney Barrett's father reportedly spent three decades as an attorney at Shell Oil and was a respected member of the American Petroleum Institute.)
That's why the multi-pronged approach that's shaping up - which includes congressional hearings, state lawsuits, and Puerto Rico's federal RICO case - has promise.
In addition to the RICO case, the Center for Climate Integrity that tracks climate cases in the U.S. has found "seven states, 35 municipalities, the District of Columbia, and one industry trade association are suing major oil and gas corporations for deceiving the public about the climate damages they knew their products would cause." These cases fall across different legal categories according to the center: In one highprofile case in Montana, a group of children are suing the state for violating their constitutional rights to a healthy and clean environment by supporting a fossil fuel-focused energy policy.