05.06.15

Whitehouse Compares Climate Denial to Civil Racketeering Perpetrated by Tobacco Industry

Washington, DC – Today, in his 98th weekly “Time to Wake Up” speech on climate change, U.S. Senator Sheldon Whitehouse (D-RI) highlighted the similarities between the tobacco industry’s efforts to mislead the American public about the dangers of its product and the ongoing effort by fossil-fuel interests to cast doubt on climate science.

“Big coal, oil, and natural gas, and related industries like the Koch Brothers’ companies, profit by offloading the costs of their carbon pollution onto the rest of us.  They traffic in products that put health and safety at risk, and they don’t tell the truth about their product,” Whitehouse said.  “Sound familiar?  It should, because the fossil fuel industry is using a familiar playbook, one perfected by the tobacco industry.”

Whitehouse noted that ultimately a U.S. District Court Judge found the tobacco companies’ fraudulent campaign amounted to a racketeering enterprise.

“The parallels between what the tobacco industry did and what the fossil fuel industry is doing now are striking,” Whitehouse continued.  “In fact, we can go back and re-read those judicial findings about tobacco, substitute the word ‘fossil fuel,’ and exactly describe what the fossil fuel industry is up to.”

The full text of Whitehouse’s speech, as prepared for delivery, is below.  Video is available here.

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Mr./Madam President, I rise today for the 98th time to urge this body to stop sleepwalking through history.  Climate change is real and it is already harming the United States.  It’s time for the U.S. Senate to wake up and address this threat.

The science linking carbon pollution to global warming dates back to President Lincoln.  In the century and a half since, we’ve measured changes in the climate that scientists virtually unanimously say are caused by our burning of fossil fuels. 

Atmospheric carbon is now measured at 400 parts per million, higher than any point in our species’ history.  Our oceans are warming and acidifying, measurements again; we’re experiencing the warmest years ever recorded, measurements; and rising seas are lapping at our shores.  In Rhode Island we measure nearly 10 inches of sea level rise since the 1930s. These are all measurements, not projections.  These are facts, not theories.

If we do not act soon to cut carbon pollution, we can expect the consequences to be dire. 

Yet the fossil fuel industry continues its crafty, cynical campaign of denial and delay.  Big coal, oil, and natural gas, and related industries like the Koch Brothers’ companies, profit by offloading the costs of their carbon pollution onto the rest of us.  They traffic in products that put health and safety at risk, and they don’t tell the truth about their product.

Sound familiar?  It should, because the fossil fuel industry is using a familiar playbook, one perfected by the tobacco industry.  Big tobacco fought for more than four decades to bury the truth about the health effects of its product. 

But the government has a playbook too.  It’s called RICO, the Racketeer Influenced and Corrupt Organizations Act.  The elements of a civil racketeering case are simple.  The government must allege four things: defendants (1) conducted (2) an enterprise (3) through a pattern (4) of racketeering activity.  ”Conducting” means everything from directing to aiding and abetting the activity.  An “enterprise” can be any form of association or a common scheme.  “Pattern” means continuity of the scheme, and for civil RICO particularly the prospect of ongoing conduct.  “Racketeering activity” simply means the violation of designated federal laws, including the federal mail fraud and wire fraud statutes.

In 1999, the Department of Justice filed a civil RICO lawsuit against the major tobacco companies and their associated industry groups.  The government’s complaint was clear:  the tobacco companies “have 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 discovery, government lawyers were able to peel back the layers of deceit and see what the big 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 the case.  In a nearly 1,700 page opinion, she found 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.

The parallels between what the tobacco industry did and what the fossil fuel industry is doing now are striking.   In fact, we can go back and re-read those judicial findings about tobacco, substitute the word ”fossil fuel,” and exactly describe what the fossil fuel industry is up to.   

And that’s without the benefit of discovery, where litigants get to demand the production of documents, and take the depositions of potential witnesses, and require answers under oath.   What a treasure trove that would be! 

But even without discovery, we know enough to make an educated guess what discovery would reveal.

We know that the prospect of action on climate change is a business risk for fossil fuel companies.  Serious action on climate—a transition to clean, low-carbon energy—threatens to cut into polluters’ market and profits.  The match between the fossil fuel industry and big tobacco is pretty good in terms of the business risk presented if the public were really aware of the harm.  They have a motive to deceive.

We know that in the case both of tobacco and fossil fuels, the industry joined together in a common enterprise and coordinated strategy.  Remember the finding in the tobacco case that “Defendants coordinated significant aspects of their public relations, scientific, legal, and marketing activity in furtherance of the shared objective.” 

How about the fossil fuel industry?

In 1998, as the Clinton Administration was building support for international climate action under the Kyoto Protocol, another group was up to something else.  This group was the fossil fuel industry, its trade associations, and the conservative policy institutes that often do the industry’s dirty work with a clean face. They met at the Washington office of the American Petroleum Institute.  Their plan?  To organize a scheme to create doubt about climate change and to undermine public support for American participation in the Kyoto agreement. 

A memo from that meeting leaked to the New York Times.  The memo documented the polluters’ plans for a multi-million-dollar public relations campaign to undermine climate science.  What was the project’s goal?  To ensure that “a majority of the American Public, including industry leadership, recognizes that significant uncertainties exist in climate science, and therefore raises questions among those (e.g. Congress) who chart the future U.S. course on global climate change.”

If anything, the fossil fuel industry’s climate denial scheme has grown even bigger and more complex than big tobacco’s.  The shape of the fossil fuel industry’s denial operation has been documented by, among others, Drexel University’s Professor Robert Brulle.  Brulle’s follow-the-money analysis shows how the fossil fuel industry perpetuates climate denial through a complex network of organizations and funding that is designed to obscure the fossil fuel industry’s fingerprints.  It’s quite a beast.

[Brulle Climate Denial Beast Chart]

This is the climate denial beast.  Polluter money and dark money are its lifeblood.  PR front groups are its organs.  And lies and obfuscation are its work.

Look at the complex interconnection of the beast’s major players.  The green diamonds are the big funders:  the Koch-affiliated foundations, the Scaife-affiliated foundations, the American Petroleum Institute. 

And the blue circles are the who’s-who of Tea Party, libertarian and front groups that have wittingly or not become the flacks for the fossil fuel industry:  the Heartland Institute, the Hoover Institution, the Heritage Foundation, the Cato Institute, the Mercatus Center, to name just a few.

Think how much trouble someone must have gone to, to set all this in play.  Think how important the purpose would have to be to them, to take all that trouble.

What was the purpose of this network?  To quote directly from Dr. Brulle’s report, it was “a deliberate and organized effort to misdirect the public discussion and distort the public’s understanding of climate.”  Sounds a lot like the judge’s findings in the tobacco racketeering case:  “Defendants have intentionally maintained and coordinated their fraudulent position on addiction and nicotine as an important part of their overall efforts to influence public opinion and persuade people that smoking is not dangerous.”

The coordinated tactics of this network, Dr. Brulle’s report states, “span a wide range of activities, including political lobbying, contributions to political candidates, and a large number of communication and media efforts that aim at undermining climate science.”  Compare that to the tobacco case:  “Defendants coordinated significant aspects of their public relations, scientific, legal, and marketing activity in furtherance of the shared objective.”

That’s the beast.

And big money flows through it.  Brulle’s report chronicles that from 2003 to 2010, 140 foundations made 5,299 grants totaling $558 million to 91 organizations that actively oppose climate action.

For decades, the tobacco industry did the same thing. 

In the tobacco case, Judge Kessler found that the “Defendants took steps to fund research designed and controlled to generate industry favorable results, and to suppress adverse research results.”

Look at the recent affair with Dr. Willie Soon, a scientist who consistently publishes papers downplaying the role of carbon dioxide emissions in causing climate change.  Through the Freedom of Information Act, we know that Dr. Soon has received more than half of his funding from oil and electric utility coal interests.  His fossil-fuel backers include: the American Petroleum Institute, ExxonMobil, the Charles G. Koch Foundation, and the Southern Company.  Most recently, he’s been getting his funding through Donor’s Trust, the dark money identity-laundering operation that anonymizes corporate and polluter money. 

The manipulation of science is pretty egregious.  Some of Dr. Soon’s research contracts gave his industry backers a chance to see what he was doing before he published it.  Some of these contracts even had clauses that promised Dr. Soon’s fossil-fuel backers would receive “an advance written copy of proposed publications … for comment and input.”  The New York Times reported that, in correspondence with his fossil-fuel funders, Dr. Soon referred to the scientific papers he produced as “deliverables.”  Deliverable, indeed.

The fossil fuel industry has had to work against mounting evidence, to cover up the risks for as long as possible.  Same with big tobacco.  Again, to quote Judge Kessler’s decision in the tobacco case, “despite overwhelming evidence from a wide range of disciplines including statistics and epidemiology, pathology and chemistry, clinical observation and animal experimentation, as well as their own internal research, Defendants continued to claim ‘no proof’ and continued to attempt to create doubt about the scientific findings.”

The federal racketeering complaint opened up discovery into the files of the tobacco companies, and showed, finally and unequivocally, that for decades the tobacco industry knew about smoking’s harm while it continued public relations campaigns to deny that smoking was harmful.  As a 1978 memo from Brown & Williamson Tobacco Company said, “very few consumers are aware. . . that nicotine is a poison.”  Big tobacco did all it could to keep it that way. 

Discovery is a powerful tool.  Sanctions for hiding evidence from a court are steep.  So time and again, it’s discovery that finds the real smoking guns in corporate records. 

Remember when New York’s Attorney General discovered internal e-mails from analysts at Merrill Lynch that showed the company promoting stocks to its customers that they internally described as “junk.”

The fossil fuel industry is engaged in a massive effort to deny climate science and deceive the American public. They’ve been at it for years, and the clearer the science becomes, the harder the polluters fight.

Imagine what a little discovery into the beast would reveal about the schemes and mischief of the climate denial apparatus—about what they’re telling each other in private while they scheme to deceive the public.  The truth will eventually come to light.  It always does. 

But here in the U.S. Senate, we shouldn’t wait for a court case before taking action.  The evidence is clear. We have a legislative responsibility to address climate change now.  The facts are clear as day, right before our faces; despite the fossil fuel industry efforts to deceive and deny; despite their big political spending and bullying. 

We just have to wake up—to the facts, and to our duty.

I yield the floor.

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