Greens’ Attempt to Tie Big Tobacco with American Oil: An Absurd Apples-and-Snickers Bars Comparison

For years, activists pushing the climate racketeering campaign have been trying to convince the public that oil and gas companies have “taken a page out of the tobacco industry’s playbook” and committed “fraud” regarding climate change. The latest effort to do so comes as Reps. Raul Grijalva, Keith Ellison, Ted Lieu are set to hold a forum called “Oil Is The New Tobacco” this afternoon on Capitol Hill, which will include usual suspects such as Kathy Mulvey of the Union of Concerned Scientists and activist Naomi Oreskes. Rep. Grijalva is the same guy who launched his own investigation into individual climate scientists last year, which flopped spectacularly.

Trying to wrap their heads around how they could prosecute oil companies under federal RICO laws was the sole purpose of a conference held back in 2012 by the Union of Concerned Scientists and the Climate Accountability Institute (funded by the Rockefellers) in La Jolla, Calif. Activists put all their ideas on paper in a report entitled, “Establishing Accountability for Climate Change Damages: Lessons from Tobacco Control,” which lays out the plan they were to execute over the next few years. As Politico recently reported, they got to work immediately following the conference to build a catalogue of “research” to try and bolster their legal case, and an echo chamber to promote it.

But these activists haven’t exactly gotten the support they were hoping for from the legal community. In fact, everywhere they turn, legal experts have said their racketeering angle – and comparing Exxon to tobacco companies – doesn’t quite hold up.

As the Washington Times reports today, capturing an interview with Walter K. Olson, senior fellow at the Cato institute,

But critics say the campaign to probe Exxon for consumer and securities fraud makes as much sense as pursuing fraud charges against candy makers for being insufficiently forthcoming about their product’s contribution to tooth decay.

“Every ice cream maker is disliked by some obesity expert, but it doesn’t mean that every time an ice cream maker tells its stockholders, ‘Everything is great, we’re selling more ice cream this year,’ they’re committing consumer fraud,” said Cato Institute senior fellow Walter K. Olson. “It doesn’t matter even if the critique of ice cream is correct. You still don’t have fraud.”

The Washington Examiner also interviewed Brendan Collins, a partner with the law firm Ballard Spahr and an expert on environmental regulations, who put it this way:

“The people following Exxon are trying to follow the precedent of tobacco litigation,” said Brendan Collins, partner with the law firm Ballard Spahr and an expert on environmental regulations. He said “the reality is a very different situation” when comparing what Exxon is accused of doing and the arguments laid out in the tobacco suits. The evidence brought against the tobacco industry two decades ago is “pretty substantially different from the idea that Exxon may have duped me from getting a low-mileage [car] and now the island of Tuvalu is going to get covered by water,” Collins said. It’s a “very big leap” to link what Exxon “did or didn’t do” to the harm posed by climate change. (emphasis added)

And as Kevin Ewing, an attorney with the Houston law firm Bracewell, explained to the Daily Caller,

“Tobacco was shown to cause specific harm to specific individuals,” he added. “Not so with climate change, where we cannot yet discern the factual connection between a company’s conduct and individual harm, even though we can observe the global effects of climate change at large.”

Lincoln Caplan, a senior research scholar at Yale Law School and the author of five books, wrote in a column:

“Is the ‘tobacco strategy’ the way to try to document that ExxonMobil fraudulently deceived the public about climate change and hold the giant energy company accountable? It is a promising but hugely expensive and gruelling model. Even if such a measure succeeds against ExxonMobil and perhaps against other big oil companies, it is likely to be one victory in a very long war. Read two pieces of writing, one voluminous, the other breezy, and you can grasp what the litigation strategy against the tobacco companies was, how it succeeded, and why, despite its success, the war against Big Tobacco carries on, into its seventh decade—almost a century after scientists began to focus on the link between cigarette smoking and lung cancer, and a half-century after the Surgeon General issued the historic report “that cigarette smoking contributes substantially to mortality from certain specific diseases and to the overall death rate.”

Columbia law professor Philip Hamburger explained in a Wall Street Journal column,

“But with the usurped subpoena power, he can engage in a roving investigation, unlimited by any formal accusation, and then can use the results to bring criminal charges. This is a dangerous amalgam of grand-jury and prosecutorial power in one person. Mr. Schneiderman’s subpoena to Exxon Mobil thus stands apart. His ability to demand information in this way is a quintessential case of the fox guarding the henhouse.

The threats to privacy in our society are not merely technological; they also are legal. In addition to electronic surveillance, nonjudicial subpoenas allow government to examine private documents as if they were an open book. And as shown by Mr. Schneiderman, when attorneys general can issue such subpoenas, a valuable judicial power becomes a prosecutorial threat to liberty and due process.”

Wall Street Journal columnist Kim Strassel published a piece last week, which quotes two legal experts – Harvey Silverglate of the ACLU and Columbia Law professor Merritt B. Fox – who note that the state attorneys general investigations are on extremely shaky ground:

The Exxon investigation is “pure harassment,” civil-liberties attorney Harvey Silverglate told the Boston Herald this week. “It is outrageous for any law enforcement official,” he continued, “to be seeking to win this battle for minds by flexing law enforcement muscle and trying to shut up the other side.”

That goal is all the more clear given the dishonesty of the legal claim. New York Attorney General Eric Schneiderman is pursuing Exxon under his state’s sweeping Martin Act, which covers securities fraud. Yet at a recent panel discussion in New York, Columbia Law Professor Merritt B. Fox noted that Exxon’s actions were irrelevant in a market already “well supplied with information about climate change.” He skewered Mr. Schneiderman for pursuing a case “so unlikely” to “be a winner.” This was even as he expressed solidarity with concerns about global warming. (emphasis added)

Finally Bloomberg News interviewed Brooklyn Law School professor James Fanto. Here’s the relevant quote from that piece:

While environmental advocates have cheered Schneiderman’s effort to take energy firms to task over a global crisis, some legal scholars question whether he is the right man for the job. “You wonder why this is the sort of thing that a New York attorney general should be doing,” said James Fanto, a professor at Brooklyn Law School. “It seems like it’s just completely politically motivated.” (emphasis added)

Even activists’ own environmental allies have said that racketeering suits don’t really work. Remember the RICO20 professors who wrote a letter to the Department of Justice to ask Attorney General Loretta Lynch to open a federal RICO case against Exxon? In one batch of newly released emails, George Mason Univ. professor Ed Maibach reached out to Peter Frumhoff of the Union of Concerned Scientists (UCS) to enlist his help in getting activists from every congressional district to sign on to their letter. Frumhoff replied,

“In reaching out to climate scientists to sign on, we feel that we’d need to give them some firmer grounding for believing that a federal investigation under the RICO statute is warranted – enough so that they’d be able to explain their rationale for signing to reporters and others. As you know, deception/disinformation isn’t itself a basis for criminal prosecution under RICO. We don’t think that Sen Whitehouse’s call gives enough of a basis for scientists to sign on to this as a solid approach at this point.” (emphasis added)

Seeking legal counsel, Maibach contacted a friend at Occupational Health and Safety Administration (OSHA), who told him that the odds of getting the Department of Justice (DOJ) to investigate under RICO were “slim to none.” In another email, Mark Cane from Columbia Earth Institute writes to a group of scientists as well as a staffer for U.S. Sen. Sheldon Whitehouse (D-R.I.), explaining, “I do have misgivings about invoking RICO, which may too easily lead to civil liberties abuses.” Maibach also contacted Alex Bozmoski of RepublicEN, which describes itself as a group of conservatives concerned about climate change, about his letter as well. Bozmoski tells Maibach his draft “screams hard-core left” and warned him that he’s “talking about prosecuting conservatives.”

Not surprisingly, the only lawyers speaking in favor of investigating oil companies under RICO laws just happen to be the ones who attended that La Jolla conference. For instance, Matt Pawa, an attorney at the Center for International Environmental Law (CIEL) and a board member of the Climate Accountability Institute, not only attended the La Jolla conference but also briefed the attorneys general ahead of their March 29th press conference with Al Gore.  InsideClimate published a 2010 article on Pawa in which he made his intentions towards oil companies pretty clear:

We’ve only just begun to fight. Think where tobacco litigation was in the 1950s and 1960s – there were cases tried to defense verdict after defense verdict. The lawyers doing that? Many of them went bankrupt or came close. You learn by doing, and you learn which cases to try and which theories work. Maybe someone will come by ten years from now and think of something new, but we’re setting the table for what comes after.”

Sharon Eubanks, one of the few other lawyers who has spoken in favor of RICO laws, was also the director of the Department of Justice’s tobacco litigation effort in the 1990s and has been active in the anti-Exxon campaign. She attended La Jolla conference as well as a closed-door meeting at the Rockefeller Family Fund in January of this year, which was held in order to brainstorm how activists could establish “in the public’s mind that Exxon is a corrupt institution.”

As for argument that the oil industry and tobacco industry are the same thing, in a Forbes piece published last year, Chris Helman eloquently pointed out why making this comparison is abundantly absurd:

Exxon Mobil sells oil and natural gas. And stuff it makes out of oil and gas, like gasoline and diesel and plastics and lubricants. These products are far different from cigarettes. Cigarettes, like all non-medicinal drugs, have no overriding utility, no redeeming value. They exist only to satisfy an addiction. Cigarettes are not a means to an end, they are an end in and of themselves. In the massive multi-state litigation against Big Tobacco 20 years ago, the companies couldn’t defend themselves by pointing out the redeeming value of cigarettes. There are none.

But there are myriad redeeming qualities to petroleum and other fossil fuels. They are a means to an end. They make cars and trucks and planes and boats go. They fuel power plants that generate electricity. Electricity has helped bring billions of people out of poverty. It enables light and heat and refrigeration and computers. Thanks to fossil fuels we haven’t had to chop down all the world’s forests for firewood or kill all the world’s whales for lamp oil. Thanks to fossil fuels you don’t have to rely on a horse to get you where you need to go.

In other words, this is a ridiculous apples-and-snickers bars comparison – and as we’ve seen, an overwhelming majority of neutral and even left leaning legal experts agree.

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