Public Interest

Should The Government Sue Big Oil?

When you think about it, Big Oil and Big Tobacco made a lot of similarly troubling management decisions.

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A must-read LA Times article recently shined a light on how Exxon may well have intentionally misled the world on climate science in order to avoid greenhouse gas regulation for a few decades. Naturally, this raises a question: can the government bring a winning RICO (“Racketeer Influenced and Corrupt Organizations”) claim against Exxon and its fellow oil companies?

The LA Times article starts in 1989, when Exxon gave its board of directors a primer “noting that scientists generally agreed gases released by burning fossil fuels could raise global temperatures significantly by the middle of the 21st century.” The primer said that, among other things, this rise in temperatures could cause the very harms we now see occurring — melting glaciers and rising sea levels — “with generally negative consequences.”

At the same time, according to the LA Times, Exxon told its board that “arguments that we can’t tolerate delay and must act now can lead to irreversible and costly Draconian steps.” Another internal memo called the potential impact of climate regulation on the industry “profound” and warned that, the way things were going, the impacts of regulatory change would “come sooner than… from climate change itself.”

So, says the LA Times, “In 1992, Exxon joined the Global Climate Coalition, an association of companies from industries linked to fossil fuels.” This coalition — or “enterprise,” if you will — “vigorously fought potential climate change regulations by emphasizing scientific uncertainty and underscoring the negative economic impact of such laws on consumers,” reports the Times.

That’s not Exxon’s position today (and Exxon has issued a carefully worded statement suggesting that’s never actually been its position). Indeed, the LA Times reports that “In 2007, the company, for the first time since the early 1980s, publicly conceded that climate change was occurring and that it was in large part the result of the burning of fossil fuels.” (Again — if you’re someone who doesn’t believe in anthropogenic climate change, let it be noted that you actually disagree with Exxon on climate science. Think about that.) And Exxon’s “Perspectives” blog likewise relates that Exxon has “long — and publicly — supported a revenue-neutral carbon tax” as a means of addressing climate change.

With all that said, however, that same Exxon blog still focuses on areas where there remains scientific uncertainty — “As you can see, the scientific community… is, even today, still projecting a broad range of potential outcomes.” In other words, there may be no question whether climate change is occurring or whether we’re causing it — but there is still a question as to just how bad it’ll be.

In any event, all this recent focus on what Exxon knew and what it did in the 1990s has led to an interesting result — a call for the United States Department of Justice to initiate a RICO investigation.

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This has happened before, with noted doubt-peddlers Philip Morris and its fellow tobacco companies first being investigated for RICO violations, then being sued for them, and finally losing both at trial and on appeal. The basic theory? The tobacco companies knew scientifically that cigarettes and other tobacco products were addicting and caused cancer. They used the mail to intentionally mislead consumers about these scientific truths, e.g. by taking out newspaper ads casting doubt on the science. Of course the whole thing is much more complicated than that, but when you boil the case down it certainly looks plausible that similar claims could exist against Exxon and its fellow oil companies.

And that’s just what Sharon Eubanks, who represented the United States against Philip Morris, says. The website thinkprogress.org quotes Eubanks, who is quite direct: “I think a RICO action is plausible and should be considered.” And the quotes continue: “It appears to me, based on what we know so far, that there was a concerted effort by Exxon and others to confuse the public on climate change…. They were actively denying the impact of human-caused carbon emissions, even when their own research showed otherwise.”

Members of Congress are pushing Attorney General Loretta Lynch to launch an investigation, and there are a couple public petitions (e.g., here and here) calling for not just a civil RICO suit but full-on prosecution.

Neither a civil suit nor a prosecution seems likely at this point, but then again legal action might be just the ticket for the federal government to finally take the kind of sweeping action that appears increasingly necessary for us to even begin to address the world-altering problem of climate change.

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Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at [email protected].

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