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

By Gaius Publius, a professional writer living on the West Coast of the United States and frequent contributor to DownWithTyranny, digby, Truthout, and Naked Capitalism. Follow him on Twitter @Gaius_Publius, Tumblr and Facebook. This piece first appeared at Down With Tyranny. GP article archive here.

One of several Frontline videos discussion 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

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.)

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  1. readerOfTeaLeaves

    The pen that wrote this is mightier than a thousand swords.

    After a scorching summer in the Seattle area, wildfires destroying thousands of acres of habitat in the eastern part of my state, looking at the mountain ranges and seeing zero snowcaps, I’m completely fed up with the climate deniers. I wouldn’t trust the lying fiends at Big Oil to make a tuna sandwich, let alone public policy.

    Add to Exxon’s climate denial, their lobbying to allow single-hulled oil tankers up in the rich arctic fisheries waters of Prince William Sound, Alaska. And we all know how that turned out.

    These people need to be prosecuted, and if RICO is the tool, so be it.

    However, as an economic problem, it seems that we are repeatedly pointing to the problem with externalities. How was it so easy, year in and year out, for the oil companies to continue to externalize the full, true costs of oil: in terms of security, climate, public health? And probably write off their ‘research’ and ‘think tanks’ as tax deductions?
    A big part of the answer is ‘Bought & Paid for Government’: it enables delusion and externalities.

    Big Oil has acted in an amoral fashion, which is exactly what I’d expect given current accounting standards.
    How might Big Oil act better, or differently, if these companies were **required** to be B-Corporations?

    BTW: This is a brilliant synopsis of the drought during the past ten years that appears to have been a direct contributing cause of the Syrian crisis:
    The amorality of externalizing the effects of one’s actions are starting to catch up with all of us.

    After Sen Whitehouse legally eviscerates the oil companies, I hope that he and his colleagues will pay some attention to how we could have accounting regs in the US that require ‘full cost accounting’, so that B-Corps are competitive with the scuzzebags we’re saddled with at present. Because if we don’t, the externalities that are rapidly accumulating will be the death of us.

    1. Vatch

      I didn’t know what a B corporation is, so I looked it up. Wikipedia says:

      In the United States, a benefit corporation or B-corporation is a type of for-profit corporate entity, legislated in 28 U.S. states, that includes positive impact on society and the environment in addition to profit as its legally defined goals. B corps differ from traditional American corporations in purpose, accountability, and transparency, but not in taxation.

      1. diptherio

        Maybe what he’s getting at is that a full-cost accounting requirement for oil companies would make social benefit corps more competitive, since a tax to recover externalities would eat up all of their profit and then some.

        OT, but if anyone is considering incorporating a B corp or converting to one I’ll just note that democratic management/ownership ups your B corp score considerably.

        1. readerOfTeaLeaves

          Yup – full cost accounting alters the incentive structure, and has the best shot at revealing externalities. Full cost accounting would help identify and correctly price in the costs that are currently evaded via tax laws and ‘bought government’. A B-Corporation doesn’t need to buy candidates in order to price things properly.

          Also, democratic ownership structures are a characteristic of B-Corporations, intended to spread the wealth around as a tool toward being socially responsible.

          But here’s hoping that Whitehorse goes after Big Oil via RICO.
          Long overdue.

          1. TheCatSaid

            “Integral Accounting” is a system that also allows one to fully include what are typically “externalities”. It includes a system for an Integral Accounting Audit along these lines. It is useful in both revealing current status, and in pointing the way to appropriate solutions.

  2. Jim Haygood

    Still time to launch RICO suits against the notorious geocentrism deniers Galileo and Copernicus, if their descendents can be located.

    1. different clue

      Why would we want to do that? And how could we anyway? Were Galileo and Copernicus lying about something the way the oil company personnel have been lying about climate d’chaos decay? If Galileo and Copernicus weren’t lying about geocentrism, then what would we sue their descendants for?

  3. susan the other

    RICO is a logical way to go after big oil but it would be long, drawn-out, and maybe it would fail. Global warming is evident to everyone, more so than the toxicity of cigarettes. But it is so essential to modern capitalism that even if we did RICO we might not get off oil any faster than if we used other means. Like nationalizing big oil in cooperation with other countries doing the same and controlling every drop. That is what needs to happen asap, why give big oil a reprieve of 5 or ten years with a RICO case?

    1. Gaius Publius

      Thanks, Susan. The benefit of a RICO prosecution is (a) it has a high llikelihood of succeeding — after all, the evidence is all over the place, especially since the Exxon revelations of this week; (b) the penalty phase would be fascinating in and of itself; and ( c) they’d be back on their heels, in a defensive posture, the whole time.

      RICO is one prong of many, not a whole solution, but it’s a powerful prong. I say, if we can get one started (some states have RICO laws as well), we should.


    2. different clue

      Cigarettes are nationalized in CommunoFascist China. That gives the CommunoFascist government an incentive to sell as many cigarettes as possible. And that is what the CommunoFascist ChinaGov does.

      (The CommunoFascist regime might have another reason to push cigarettes. The more Chinese smoke, and the more heavily they smoke, the fewer will survive to the age of retirement; thereby relieving the ChinaGov of some major pension-payout headaches.)

  4. Eric Patton

    Wait, does this mean “green capitalism” is a contradiction in terms? I get so confused. I just know that if we unleashed the magic of the marketplace, along with lower taxes, less spending, and less government regulation, we could all have a unicorn.

  5. shinola

    I assume that Big Oil would fight any sort of adverse judgement against them all the way to the Supreme Court. As it stands right now, the majority of the Supremes have decided that corporations have 1st amendment rights superior to those of individual citizens.

    However, the court fight would probably take years to get to that level. So I suppose we (actual human citizens) could get lucky and some of the corporate captured judges would be replaced by ones who actually believe in the true intent of the Constitution.

    Wouldn’t bet on it though.

  6. wbgonne

    What about Civil RICO? That sounds lke something the National Lawyers Guild might undertake. Obviously, enormous resources ($) will be required to prosecute the case and that’s a problem but counting on the government to initiate a criminal RICO case against Big Oil might be wishful thinking, at least at this point.

  7. David Henderson

    The climate is changing because we are in an intergalacial regime. 12000 years ago Canada was under 2 miles of ice and its been melting ever since then. We know this from radiocarbon dating of pine trees felled by the ice cap.

    What is really undertermined is the cause of recent climate changes. Is it an intergalacial pattern or is it the result of manmade CO2? Models offer little insight into this question because the results are predetermined by the assumptions.

    Global warming (implicitly manmade warming) has become a religious issue, not a scientific issue. Its the modern equivalent of Salem witch trials. Beware.

    1. Gaius Publius

      Thanks, David. If you’re looking for real information on this, start here:

      and especially here:

      and the section following, on Mechanism.

      This isn’t rocket science, more like Freshman Physics. There’s really no mystery to the process, and except for people who are paid to assert otherwise, no disagreement among people who do this stuff for a living.


    2. theinhibitor


      Its a scientific issue, and well documented. Everyone knows (since the 1600’s, at least classically) that the Earth has undergone warming and cooling periods throughout its history, either caused by volcanic eruptions, meteors, etc.

      However, no previous era has ever witnessed the meteoric rise of carbon emissions and climate change seen today. What happened over the course of thousands of years now happens in months.

      If you read the absolutely fascinating article about water discovered underneath one of the largest deserts in Asia (lamberth posted it about 1-2 weeks ago), you would know that they discovered that the Earth has been essentially ‘dealing with’ the over production of man-made carbon emissions since the Silk Road, some 2000 years ago.

      Its quite clear to me that the Earth is a living organism in a way. It has seas forests and other carbon sinks that are not unlike your liver. When young, you can binge drink without much worry that your liver will overload, but over time your liver’s ability to metabolize alcohol gets exponentially worse. It is much the same way on Earth. Once our carbon sinks are fully compromised, the situation will escalate rapidly. This is a scientific issue that has been carefully documented. Only the government/Big Oil ilk has it been made into anything else.

      How anyone could believe that the world hasn’t noticed and reacted to billions of over-consuming apes that drive ego-vehicles, kill everything in their path for shiny stuff, take nature and concentrate just a handful of various chemicals and let the poisonous byproducts run into the sea, and do all of this on a scale of trillions of tons every year is beyond me.

  8. mark

    Amazing, around fifteen hundred homes burned in Washington forest fires, and this is barely mentioned on the news.

    And it’s just the beginning.

  9. RBHoughton

    We have been here before. Readers may recall the decades long battle between the petroleum industry’s intellectually-corrupt academic and the scientist Patterson over the deleterious health effects of lead in gas, particularly to chidren.

    The energy people know what they are doing, they are part of society, they hear the news and the chat, yet they continued to kill and injure for reward.

    The use of RICO has a history of being effective. I remember when Lloyd’s of London, the insurance market, was caught cheating 20+ years ago and threatened with a RICO prosecution, they were astonished that a body other than the British parliament, where they owned 60 MPs, could have an opinion on their activities.

    Then, as publicity increased, they finally felt the shame before their wives and children, and agreed to end their corrupt ways.

    RICO still works, even now when commercial morality has plummeted so low, and getting caught is a giggle while judicial awards remain gentle.

    And its not just their increasing carbon in the air (now at 400 ppm); the energy industry does not clean-up its nuclear facilities either. Why are the people of every country required to pay for that too?

  10. Paul Tioxon

    Epidemiology of Ambient Air Pollution and Cardiovascular Disease

    An association between high levels of anthropogenic air pollutants and human illnesses has been known for more than half a century. A few episodes of markedly increased mortality rates during extreme elevations in urban pollution, such as in the Meuse Valley, Belgium, in December 193069 and during the London fog incident of 1952,70 sparked the initial epidemiological research. As a result, a several-decades-long effort to reduce air pollution ensued and culminated in the Clean Air Act legislation of 1970. Despite improvements in air quality over the past few decades, associations between current ambient pollution levels and excess morbidity and mortality have been consistently detected.71–76

    There are several hundred published epidemiological studies linking air pollution with human illnesses. A number of extensive reviews on this topic are available.77–79 Although many pollutants may cause disease individually or in combination (eg, O3, SO2, and NO2),80 over the past decade, PM has become a major focus of research. During the past 15 years, the magnitude of evidence and number of studies linking air pollution to cardiovascular diseases has grown substantially.77,78


    The well known death dealing of air pollution, as it is, is enough damage to engender any number of law suits for death and disease by the millions. The well known science, well publicized from Earth Day 1970 by numerous speakers on behalf of unsafe drinking water and unbreathable air that must be cleaned up, along with an outpouring of worldwide research presented by The Club of Rome, was the alarm heard around the world by governments and industrial corporations. We have all known about this for decades and still fight inch by inch to get progress.

  11. Rico......Suave

    pppffft yeah the day exxon gets ricoed is the day i grow wings and fly away to the carribean this is just a stupid waste

  12. blert

    As long as India and China, and the Third World generally, are permitted unrestrained carbon dioxide emissions — and are still riding the exponential to Heaven — no amount of emission restraint in the First World will amount to a hill of beans.

    Before getting excited about Exxon — this situation has to be addressed.

    Also, keep in mind that no small amount of China’s emissions are merely displaced from the First World. They follow the location of manufacture.

    PV // solar cells are a top offender. The manufacture of polysilicon is hugely energy intensive. So China is burning astonishing amounts of coal — to produce an item that purports to reduced emissions.

    Likewise, the Prius and the other hybrids consume astonishing amounts of nickel. Li-ion is only now being introduced. (Tesla and others) But the production of nickel is an energy pig and despoils the landscape in an extraordinary way. It’s the worst environmental offender of all the metals mined. ( ex-mercury, ex-cadnium )

    What stumps me is why hydro-electric dams along the eastern slopes of the Andes are not even proposed. It’s the SINGLE most endowed hydro-potential on this Earth.

    It has enough potential to power the entire Western Hemisphere — as in ALL forms of energy.

    Yet: crickets.

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