Sen. Sheldon Whitehouse (D-R.I.) has a new plan to combat climate change: sue fossil fuel companies for fraud.
In a May 29 op-ed in The Washington Post, Whitehouse argued that the fossil fuel industry’s efforts to discredit climate science and attack environmentalists may constitute deliberate deception of the kind the tobacco industry perpetrated in previous decades. In 2006, a federal judge found the tobacco industry guilty of fraud in a civil lawsuit brought under the Racketeer Influenced and Corrupt Organizations Act (RICO). Cigarette companies' efforts to hide the health effects of tobacco consumption included lying about the findings of their own studies on smoking.
Fossil fuel companies may be a ripe target for a civil lawsuit under RICO as well, Whitehouse wrote. The industry coordinates with conservative think tanks to disseminate industry-funded research contradicting the scientific consensus on man-made climate change. The use of think tanks may be “designed to obscure” the industry's own role and to lend intellectual credibility to otherwise unfounded scientific claims, Whitehouse wrote. And the industry’s direct funding of climate-denying scientists like Harvard’s Willie Soon could be evidence that it may be trying to buy favorable climate science.
Although Whitehouse conceded that the information currently available does not definitively prove that the fossil fuel industry is “engaged in the same kind of racketeering activity as the tobacco industry,” litigation would shed more light on the matter -- as it did in the case against tobacco. “Civil discovery would reveal whether and to what extent the fossil fuel industry has crossed [the] same line” as the tobacco industry, he wrote.
But a RICO case against the fossil fuel industries would face an uphill climb, Jeffrey Grell, an expert in RICO law and former assistant attorney general of Minnesota, told The Huffington Post.
First, the case would have to prove “intent to defraud” by showing that climate-denying scientists were lying about what they actually believed.
"It is hard to prosecute people for having an erroneous or stupid opinion," Grell said. “You could say that X percentage of the scientists disagree with them and there is empirical data they are lying about."
Demonstrating a financial conflict of interest among climate-change researchers who take industry funding could contribute to a case showing fraud was committed, but is not in itself evidence of fraud, he said.
Grell also raised the question of whether the government would have standing to sue the fossil fuel industry. In the case of tobacco, the government was able to argue that the tobacco companies’ deception had harmed its administration of Medicare and Medicaid. Such standing might be harder to claim against energy companies, Grell said.
Mark Hemingway, a writer for the conservative Weekly Standard, criticized Whitehouse’s analogy between the fossil fuels and tobacco industries, claiming that the scientific community is not as unanimous about the effects of climate change as it is about tobacco.
“Even among those who do agree that global warming is a problem, there's a tremendously wide variety of opinions about the practical effects,” Hemingway wrote.
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