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Time for State Attorneys General – Including Virginia’s – to Look Into Using RICO Laws to Prosecute Fossil Fuel Companies Just like Tobacco Industry?


by Lowell

In recent days, there has been a barrage of stories, statements, videos, etc. about the increasingly loud clamor to investigate, and potentially prosecute, ExxonMobil under racketeering (“RICO”) statutes (UPDATE: or Sarbanes-O or other securities laws). Why? As today’s New York Times explains:

More than 40 of the nation’s leading environmental and social justice groups demanded a federal investigation of Exxon Mobil on Friday, accusing the huge oil and gas company of deceiving the American public about the risks of climate change to protect its profits.

In a letter to Attorney General Loretta Lynch, the groups, citing recent news reports, suggested that Exxon Mobil might be guilty of the same kind of fraud that the tobacco companies were found to have perpetrated when they hid the risks of smoking. Those violations ultimately cost the companies tens of billions of dollars in penalties. 

The call for an investigation echoes demands made in recent days by three Democratic presidential candidates, including Hillary Rodham Clinton and Bernie Sanders, and by several Democrats in Congress.

For a lot more on Exxon’s decades-long campaign, despite the company’s knowledge as far back, see Exxon: The Road Not Taken, by InsideClimate News. That news organization, by the way, richly deserves any and all relevant awards for its groundbreaking, in-depth, detailed, carefully-researched series on ExxonMobil’s corporate strategy of funding climate science denial, just as the tobacco industry spent millions of dollars (and decades) funding efforts to deny the link between smoking and cancer. Except what Exxon did (and continues to do) was arguably worse than the tobacco industry: while cigarettes kill millions, global warming threatens to trash the entire planet, leading to untold death and misery for humanity and nature. In short, what Exxon’s been doing arguably constitutes crimes against humanity and nature. More actionable, however, is that what Exxon has done may very well be subject to prosecution under the “Racketeer Influenced and Corrupt Organizations (RICO) Act – just as the DOJ did to the tobacco industry for knowingly lying about the dangers of cigarette smoking.”

I fully support these efforts to have Exxon criminally prosecuted for the aforementioned reasons. I also strongly encourage action NOT just at the federal level, but also at the STATE level, including right here in Virginia. Along those lines, see the “flip” for a press release by Climate Hawks Vote, “calling upon state attorneys general to open probes whether ExxonMobil (NYSE: XOM) committed any wrongdoing in their states through its decades-long campaign of climate-change denial.” Those attorneys general were all from “blue” or “purple” states – CA, CT, DE, HI, IL, IA, ME, MD, MA, NH, NM, NY, OR, RI, VT, WA.

Note that one state not included on that list is our own Commonwealth of Virginia. I’m not sure I “get” that, given Mark Herring’s endorsement in 2013 by renowned climate scientist Michael Mann, but we’ll just assume it was an oversight. It’s also interesting to note that Virginia has its own RICO statute on the booksThis statute certainly should be looked at as a basis for state-level investigation and/or prosecution of fossil fuel companies based in, or with offices in, Virginia, who engaged in climate science denial. Note that ExxonMobil has had a major presence in Virginia for years, including its Fairfax “campus” acquired in 1999.

Also note that Virginia-based coal giant Alpha Natural Resources — a huge donor to Virginia Republicans, by the way — among other activities provided financial backing to one of the most despicable, notorious climate science denial groups in the world, the “Heartland Institute,” which “gained notoriety in 2012 for sponsoring billboards comparing those who believe in climate change to the Unabomber Ted Kaczynski and cult leader Charles Manson.”

Finally, I’d point out that that Dominion “Global Warming Starts Here” Power has been a funder of the American Legislative Exchange Council (ALEC), a group that works to protect fossil fuel interests, attack clean energy, and “thwart efforts to address climate change.”

This is just a short list, of course; I’m sure there are other fossil fuel companies either based in or with strong ties to Virginia who have funded and/or otherwise engaged in covering up the indisputable link between their products and global warming. As such, this should at the minimum expose these companies to investigation, and possible prosecution, under RICO statutes. I join the growing call for federal and state authorities – including our Virginia’s Attorney General – to aggressively pursue such actions. I also continue to urge Virginia to divest from all holdings in these companies – for strong moral, environmental, and now potentially legal reasons. With that, here’s the statement from Climate Hawks Vote.

Climate Hawks Vote (CHV) is calling upon state attorneys general to open probes whether ExxonMobil (NYSE: XOM) committed any wrongdoing in their states through its decades-long campaign of climate-change denial. CHV members have already called for a Department of Justice investigation to be launched.

RL Miller, cofounder of Climate Hawks Vote, states: “State attorneys general need to look at what laws Exxon and its ilk have violated with their ongoing campaign of climate deception. All fifty states are now suffering damages from greenhouse pollution, from sea level rise to wildfire and drought intensification. State RICO laws, laws such as California’s Unfair Business Practices statute (Bus. & Prof. Code sec. 17200 et seq.) and New York’s Martin Act (Gen. Bus. Law sec. 352 et seq.), or consumer fraud laws may well be involved. There are big discrepancies between what Exxon knew, and what Exxon told the public and its shareholders. And Congress won’t act – Rep. Lamar Smith is too busy harassing NOAA with subpoenas – so states need to investigate.”

Many states have attorneys general who have acted before to address climate pollution:
  • Kamala Harris of California
  • George Jepsen of Connecticut
  • Matthew Denn of Delaware
  • Doug Chin of Hawaii
  • Lisa Madigan of Illinois
  • Tom Miller of Iowa
  • Janet Mills of Maine
  • Brian Frosh of Maryland
  • Maura Healey of Massachusetts
  • Joseph Foster of New Hampshire
  • Hector Balderas of New Mexico
  • Eric Schneiderman of New York
  • Ellen Rosenblum of Oregon
  • Peter Kilmartin of Rhode Island
  • William Sorrell of Vermont
  • Bob Ferguson of Washington

We call on these 16 to act. All of these attorneys general are known climate hawks, and most have recently vowed to defend the Clean Power Plan in court, fighting the state attorneys general who are in the pocket of climate polluters like Exxon.

The first major tobacco litigation was filed by the state attorney general of Mississippi—litigation that ultimately included 46 states and the Department of Justice. Commentators have remarked on the striking parallels between cigarette companies and Exxon—in both cases, what they knew privately about the risks of their products versus what they told the public.

About Climate Hawks Vote: We’re a grassroots-funded organization building political power for the climate movement. Hatched in 2014, we endorsed 17 candidates and won 11 of those races. We hold politicians accountable through a sophisticated scorecard tracking not only votes, but also leadership and public engagement on climate. Our advisory board includes Bill McKibben and Van Jones.

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