May 6, 2015

Time to Wake Up: Climate Denial Recalls Tobacco Racketeering

Mr. President, I am here for the 98th time to urge this body to stop sleepwalking through history. Climate change is real, it is already harming the United States, and it is time for the Senate to wake up and address this threat.

The science that links carbon pollution to global warming is nothing new. It dates back to President Lincoln. In the century and a half since, we have 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 ever in our species’ history. Our oceans are warming and acidifying. Those are measurements again. We are experiencing the warmest years ever recorded. More 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 reasonably 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, such as 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 products. Sound familiar? Well, it should because the fossil fuel industry is using a familiar playbook, one perfected by the tobacco industry. Following this same playbook, Big Tobacco fought for more than four decades to bury the truth about the health effects of its product.

Well, the government has a playbook, too. It is called RICO, the Racketeer Influenced and Corrupt Organizations Act. The elements of a civil racketeering case are simple. The government must allege four things: The defendant’s No. 1 conducted No. 2 an enterprise No. 3 through a pattern No. 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 a violation of designated Federal laws, including the Federal mail fraud and wire fraud statutes.

In 1999, the U.S. 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.”

Big 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 the 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 reread those judicial findings about tobacco, substitute the words “fossil fuel,” and exactly describe what the fossil fuel industry is up to.

That is 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 produce.

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 to be really aware of the harm. They have a motive to deceive.

We know that in the case of both 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. That group was the fossil fuel industry, its trade associations, and the conservative policy institutes that often do the industry’s dirty work with clean faces. 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 was leaked to the New York Times. The memo documented the polluters’ plans for a multimillion-dollar public relations campaign to undermine climate science. What was the project’s goal? To ensure that–and I will quote the memo here—“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.”

Mr. President, I ask unanimous consent to have the memo printed in the Record at the conclusion of my remarks.

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 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 is quite a beast.

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.

The blue circles are the who’s who of tea party, libertarian, and front groups who have wittingly or not become the flacks for the fossil fuel industry–the Heartland Institute, the Hoover Institution, the Heritage Foundation, the Cato Institute, and 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.” That 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 findings in the tobacco case: “Defendants coordinated significant aspects of their public relations, scientific, legal, and marketing activity in furtherance of the shared objective.”

So that is 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 has been getting his funding through Donors Trust, the dark money identity-laundering operation that anonymizes corporate and polluter money.

By the way, the biggest mark in the whole beast is right there, and that is Donors Trust. 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; the 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.

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

Remember when New York’s attorney general discovered internal emails 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 have been at it for years, and the clearer the science becomes, the harder the polluters fight.

Gary Wills used to work for William F. Buckley at the National Review and recently described this effort as “their kept scientists, their rigged conferences, their sycophantic beneficiaries [and] and their bought publicists.”

Imagine what a little discovery into the beast would reveal about the schemes and mischief of the climate denial apparatus, about what they are 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 Senate, we should not wait for a court case before taking action. The evidence is clear. We have a legislative responsibility to address climate change and to do that now. The facts are clear as day right before our eyes, despite the fossil fuel industry’s efforts to deceive and deny, despite their persistent big political spending and bullying.

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

I yield the floor.