The RICO Epidemic and the Attack on Exxon Mobil

Share

Environmental activists have found a new weapon to use in their battle with global warming realists: the Racketeer Influenced and Corrupt Organizations Act (RICO), a law enacted by Congress in 1978 to battle the mafia. Environmentalists hope to use RICO to criminalize any exercise of free speech that is critical of their extreme views on climate change.

U.S. Senator Sheldon Whitehouse, Rep. Ted Lieu, Rep. Mark DeSaulnier, a coalition of environmental advocacy groups, and even a group of climate scientists have petitioned the U.S. Department of Justice to use RCIO to launch an investigation of Exxon-Mobil. These groups and individuals – all of them residing on the far left of the political spectrum — claim Exxon-Mobil knew fossil fuels could cause catastrophic climate change but paid think tanks and advocacy groups to “deny” the truth in order to protect the company’s profits.

Given the Obama administration’s history of “weaponizing” federal government agencies, such as EPA and the IRS, to attack critics and advance its goal of “transforming America,” it is entirely possible it will do what the petitioners have asked. Exxon-Mobil at one time provided modest funding to nearly every conservative think tank and advocacy group active in the global warming debate. A RICO investigation of Exxon-Mobil could be a way to force conservative groups to disclose correspondence, planning documents and activity reports meant to be confidential. This may, in fact, be the real purpose of the left’s campaign, since Exxon-Mobil stopped funding conservative groups in 2006 but those groups have continued to challenge the alarmist global warming propaganda of environmental groups.

What is RICO?

RICO is the 1978 Racketeer Influenced and Corrupt Organizations Act (Title 18 U.S. Code Chapter 96) which was enacted by Congress to control mob crimes. RICO is a useful law for handling organized crime on a national level, but it has, in the past, been used as a weapon to strangle public debate, bankrupt or eradicate companies whose products or ideology run counter to the particular group intent on using the law. It can be used, also, as a framework for civil lawsuits to obtain large amounts of money through massive settlements.

The Attorney General of New York is investigating ExxonModel using the antiquated 1921 Martin Act state law, similar in tone to the RICO statutes. As the Martin Act is rarely used, Constitutional scholars have questioned both its validity and its Constitutionality.

Who is Behind This RICO Strategy?

Behind this RICO campaign of climate desperation lies a feeding machine of “Big Green” money: wealthy foundations with climate agendas (Energy Foundation, Soros Foundations, etc), well-funded media operations (InsideClimate News, Media Matters for America, etc), older environmental organizations anxious for a new strategy (Natural Resources Defense Council, Audubon, etc), billionaire newbies (Tom Steyer, Nathaniel Simons, etc), and clean-energy companies looking for long-term government subsidies that could only become available if larger, older organizations can no longer rececive them (Tesla, Solyndra, etc), and academics.

 

Growth of the “RICO Strategy”

On May 29, 2015, Senator Sheldon Whitehouse, Democrat of Rhode Island, attended a Big Green-funded League of Conservation Voters event where he called for using RICO against climate skeptics and fossil fuel companies (see the YouTube here), then in a Washington Post op-ed, “The fossil-fuel industry’s campaign to mislead the American people,” prompting a backlash asserting that the charge was false, and defending the right to dissent.

On September 1, 2015, Jagadish Shukla, president of the tax-exempt Institute of Global Environment and Society (IGES), who is also a climate professor at George Mason University, led a group of 20 academics calling for RICO action against all climate skeptics, their organizations and fossil fuel companies. Shukla and IGES fell under congressional investigation as a government-funded tax-exempt organization for violating non-profit law with “partisan political activity” by requesting the use of RICO against companies and organizations “that disagree with the Obama administration on climate change,” according to the House Science, Space and Technology committee.

On October 14, 2015, two California congressmen, Democrats Rep. Ted Lieu and Rep. Mark DeSaulnier, wrote a letter to U.S. Attorney General Loretta Lynch asking the Department of Justice whether Exxon Mobil violated the RICO law by “failing to disclose truthful information” regarding climate change, as reported in the Los Angeles Times. In November, Lieu and Democrat Peter Welch of Vermont sent an email asking other lawmakers to sign a letter demanding records from oil companies they said were “hiding and spreading disinformation to both the public and lawmakers alike concerning the science of climate change.” The story was reported in The Daily Caller.

On November 5, 2015, New York Attorney General Eric T. Schneiderman used the state’s powerful Martin Act, similar in nature to national RICO laaws, to issue a subpoena to ExxonMobil, demanding extensive financial records, emails and other documents, as reported by the New York Times, Exxon Mobil Investigated for Possible Climate Change Lies by New York Attorney General. Proof of intent to deceive or mislead is not required in a Martin Act proceeding and the investigative powers it confers on the Attorney General are exceptionally broad.

Meteorologist Anthony Watts in his WattsUpWithThat blog expanded on the Exxon attack with a quote from the November 6 “Climate NEXUS” (a Madison Avenue PR firm):

“New York Attorney General Eric Schneiderman announced that he is launching a legal probe into Exxon’s climate denial. The inquiry will look into both consumer and investor protection laws, covering the oil giant’s activity dating back to the 1970s. Schneiderman’s investigation could open “a sweeping new legal front in the battle over climate change,” says the New York Times, which broke the story. Two separate reports by InsideClimate News and the Los Angeles Times uncovered that Exxon has known about the dangers of climate change since the 1970s but sowed doubt by funding climate change skeptics to preserve its business. Exxon has been compared extensively to the tobacco industry, which was convicted of racketeering in 2000 for deliberately deceiving the public about the dangers of its products.”

About this time, the RICO epidemic positively appeared to be an orchestrated “Search and Destroy Strategy”: the investigation is the “Search” and the “Destroy” is the manipulation of anything the investigation finds (or does not find) into a negative campaign against climate crisis opponents.

Why Pursue Such Extreme Measures?

Climate change adherents have much to fear from the rise of climate change skepticism. At stake for climate crisis believers:

Economic Revolution: The Investors Business Daily website published in its February 10, 2015 edition a feature headlined, U.N. Official Reveals Real Reason Behind Warming Scare. The text read:

“At a news conference last week in Brussels, Christiana Figueres, executive secretary of U.N.’s Framework Convention on Climate Change, admitted that the goal of environmental activists is not to save the world from ecological calamity but to destroy capitalism.

“’This is the first time in the history of mankind that we are setting ourselves the task of intentionally, within a defined period of time, to change the economic development model that has been reigning for at least 150 years, since the Industrial Revolution,’” she said.”

Scientific Credibility: For other climate skeptics, the pivotal problem is distrust of the scientists who adhere to the claims of the U.N.’s Intergovernmental Panel on Climate Change (IPCC). Numerous true believer scientists were exposed in three massive caches of “Climategate” emails (note: this is the entire 180-page PDF, 2.17MB) revealing various scientists in misbehaviors, and appeared to have been stolen from the Climatic Research Unit (CRU) at the United Kingdom’s University of East Anglia (UEA). Thousands of CRU emails and reports were published in segments: Climategate 1.0 in November 2008, Climategate 2.0 in November 2011, and Climategate 3.0 in March 2013.

The perpetrator spoke for the first time in 2013 as “Mr. FOIA” (Freedom of Information Act) and sent his last gigantic batch to numerous anonymous recipients for sorting and later publication. It was then evident but unstated that UEA had not been hacked by an outsider through the Internet, but that an insider had copied the materials directly from the CRU’s servers and sent them to a sequence of unlikely Internet recipients to baffle analysts. True believers frantically “debunked” Climategate with imaginative explanations and “investigators” repeatedly found the implicated scientists to have done no wrong, but all the investigators were employers or grantmakers of the implicated and had motive to do no damage to their best cash cows.

Government Power Over Climate Science: On November 15, 1995, the U.S. State Department sent a 30 page document to Sir John Houghton, leader of the IPCC Second Assessment’s Chapter 8 (Science), stating “the executive summary and concluding sections of the chapter may need to be revised,” and pointed out a passage noting, “A major issue is whether or not we can state with confidence that we are able to attribute all or part of any observed climate change to human activities. Even after the chapters have been revised, there still appear to be major inconsistencies within the lPCC documents as to whether scientists can, with confidence, attribute climate change to human influence.”

The State Department’s “suggestion” was to change the science so that it could conclude, “Taken together, these results point towards a detectable human influence on global climate.” The State Department’s cover letter closed with, “it is essential that the chapters not be finalized prior to the completion of discussions at the IPCC WG I plenary in Madrid, and that chapter authors be prevailed upon to modify their text in an appropriate manner following discussion in Madrid.” The word “discernible” was substituted for “detectable” after long debate in Madrid, but the uncertain and possibly false claim of “detectable” human influence on global climate remained.

The pivotal “suggestion” came from President Clinton’s Secretary of State, Warren Christopher, through an official named Day Mount, Deputy Assistant Secretary, Acting, Environment and Development. This long-forgotten document was leaked and created a stir for years. A 2000 Hoover Institution report about this State Department document’s illegitimate changes noted that “According to Nature (“Climate Debate Must Not Overheat,” Nature 381 (13 June 1996), p. 539), rarely critical of the IPCC, the emendations affected the sense of Chapter 8 and were designed to ‘ensure that it conformed’ to the politically arrived-at Summary for Policymakers.”

The question has not been asked whether all the subsequent IPCC Assessment Reports have been similarly tampered with by the U.S. State Department. Administration agencies in 2015 refuse to answer that question and will not make their climate science public, plausibly because unethical government bureaucrats and scientists have corrupted the science to protect a power agenda as they did in 1995.

RICO Strategy Organization

The suspicion of an orchestrated campaign to pursue RICO as a strategy was confirmed three days before The New York Times broke the story of Schneiderman’s attack on ExxonMobil. A little-known blog, Shub Niggurath Climate – Shub Niggurath is a fictional deity in a 1928 fantasy novel by H.P. Lovecraft – posted RICO-teering: How climate activists ‘knew’ they were going to pin the blame on Exxon, which exposed where the Strategy originated and who originated it. The post included a link to a document that explained everything.

Origin of the RICO “Search and Destroy Strategy”

The Document: The anonymously-authored Shub Niggurath Climate blog published and analyzed a 36-page climate alarmist document titled, Establishing Accountability for Climate Change Damages: Lessons from Tobacco Control: Summary of the Workshop on Climate Accountability, Public Opinion, and Legal Strategies.” It was the official account of a two-day conference of climate change elites held three years earlier, in 2012, where leaders explored potential stratagems for the destruction of fossil fuel companies. The RICO law was one of them.

The document stunned climate skeptics for the undisguised malice that scorched the pages of the newly revealed Workshop report, which had evidently circulated in the environmental movement for almost three years, but quickly went viral through climate skeptic social media and became colloquially known as The RICO Search and Destroy Strategy Guide from the Search and Destroy Workshop.

The Search and Destroy Workshop and Its Key Players

Statements in quotation marks are verbatim from the Summary document. Ellipsis points are shown…. Added emphasis is shown in bold. Insertions shown in [brackets].

“The workshop was conceived by Naomi Oreskes of the University of California−San Diego [since removed to Harvard University], Peter C. Frumhoff and Angela Ledford Anderson of the Union of Concerned Scientists, Richard Heede of the Climate Accountability Institute, and Lewis M. Branscomb of the John F. Kennedy School of Government at Harvard University and the Scripps Institution of Oceanography.” (p. 2)

The Union of Concerned Scientists (2014 Assets: $46,515,215): a 501(c)(3) tax-exempt advocacy organization incorporated in Washington, D.C. September 19, 1973 and reincorporated in Cambridge, Massachusetts June 6, 1994. It was informally founded but not incorporated in 1969 as an anti-Vietnam War protest group by students and faculty members at the Massachusetts Institute of Technology. A long 1968 “Founding Document” centered on the complaint, “Through its actions in Vietnam, our government has shaken our confidence in its ability to make wise and humane decisions.” UCS continues to condemn the American military on all points. It supports numerous far-left causes such as unilateral reduction in U.S. nuclear weapons stockpiles, opposes the vast majority of American foreign policy decisions, opposes pesticides and genetically engineered foods, opposes capitalism and actively promotes opposition to fossil fuel producers.

The Climate Accountability Institute (2014 Assets: $31,579): a 501(c)(3) tax-exempt strategy organization incorporated September 1, 2011 in Snowmass, Colorado and domiciled in a residence near the town. The three original directors were Snowmass-based climate mitigation consultant Richard Heede, Harvard history Professor Naomi Oreskes, and self-described “environmental visionary” Sally Ranney of Colorado. In 2015, Oreskes left the board of directors and became an advisor, along with a newly added advisor, climate professor Michael Mann, inventor of the “hockey stick” climate graph. Oreskes had published a book a year earlier, in 2010, titled, Merchants of Doubt; How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming, which appears to have provided the template for the Search and Destroy Workshop. Stanton Glantz, a scientist who had obtained a huge settlement from a tobacco lawsuit in earlier years was a key source for the book and a key participant of the Workshop.

Richard Ayres: The RICO tactic was first mentioned as an anti-fossil fuel weapon early in the two-day Workshop by participating attorney Richard Ayres, a co-founder and current trustee of the wealthy Natural Resources Defense Council.

The Search and Destroy Workshop’s Key Funders

Donors were acknowledged on Page 2 of the Summary Document: “This workshop was made possible by the V. Kann Rasmussen Foundation, the Mertz Gilmore Foundation, the Grantham Foundation for the Protection of the Environment, and the Martin Johnson House at the Scripps Institution of Oceanography.”

All grants were made in 2012 and paid to the Union of Concerned Scientists. None were paid to the Climate Accountability Institute:

  • Kann Rasmussen Foundation, $75,000
  • Mertz Gilmore Foundation, $25,000
  • Grantham Foundation for the Protection of the Environment $500,000
  • In-kind donation of conference space: Martin Johnson House at the Scripps Institution of Oceanography. (p. 2)

Dollar amounts: Foundation Search databank and IRS Forms 990

The assets behind the Search and Destroy Workshop’s three sponsors is more than half a billion dollars, $601,443,379, according to 2013 Forms 990.

  • Kann Rasmussen Foundation $89,261,719;
  • Mertz Gilmore Foundation $125,045,056;
  • Grantham Foundation for the Protection of the Environment $394,136,609.

Combined with the assets behind the many funders of all the Workshop’s participants, the financial clout represented here is many billions of dollars.

The Search and Destroy Workshop Basics

Who? “The Union of Concerned Scientists and the Climate Accountability Institute brought together about two dozen leading scientists, lawyers and legal scholars, historians, social scientists, and public opinion experts for a June 14−15, 2012, workshop at the Scripps Institution of Oceanography in La Jolla, CA.” (p. 3)

What? “Specifically, the workshop sought to compare the evolution of public attitudes and legal strategies related to tobacco control with those related to anthropogenic climate change, fostering an exploratory, open-ended dialogue about whether we might use the lessons from tobacco-related education, laws, and litiga­tion to address climate change.” (p. 3)

Why? “While we currently lack a compelling pub­lic narrative about climate change in the United States, we may be close to coalesc­ing around one. Such a nar­rative must be both scientifically robust and emotionally resonant to cut through the fossil fuel industry’s successful efforts to sow uncertainty and confusion.” (p. 4)

How? “[M]any par­ticipants suggested that incriminating docu­ments may exist that demonstrate collusion among the major fossil fuel companies, trade associations, and other industry-sponsored groups. Such documents could demonstrate companies’ knowledge, for instance, that the use of their products damages human health and well-being by contributing to “dangerous anthropogenic interference with the climate system.” (p. 9)

Workshop Chapter Titles and Subtitles

  1. Introduction: Tobacco companies realized they did not need to prove their products were safe. Rather, they had only to implement a calculated strategy to foster doubt about the science. (p. 5)
  1. Lessons from Tobacco Control: Legal and Public Strategies: Both the tobacco industry and the fossil fuel industry have adopted a strategy of disseminating disinformation to manufacture uncertainty and forestall government action, and in so doing, have placed corporate interests above the public interest. (p. 7)
  1. Climate Legal Strategies: Options and Prospects: Tobacco started with a small box of documents. We used that to wedge open a large pattern of discovery. . . . It looks like where you are with climate is as good as it was with tobacco—probably even better. I think this is a very exciting possibility. —Stanton Glantz (p. 11)
  1. Attribution of Impacts and Damages: Scientific and Legal Aspects. Why should taxpayers pay for adaptation to climate change? That is a sound bite that I don’t hear used. Why should taxpayers bear the risk? Perhaps that question alone can help shift public perception. —Myles Allen (p. 15)
  1. Public Opinion and Climate Accountability: The watershed moment was the congressional hearing when the tobacco companies lied and the public knew it. If that had occurred earlier, the public might not have so clearly recognized that the executives were lying. My question is: What do we know about how public opinion changed over time? —Peter Frumhoff (p. 21)
  1. Conclusion: There was widespread agreement among workshop participants that multiple, complementary strategies will be needed moving forward. (p. 27)

The chapter heads indicate that the fixed and unarguable premise of this Workshop is that climate skeptics are evil and must be destroyed or forced into submission. Most Workshop judgments were regarded as unassailable.

Recognizing the necessity of fossil fuels

Added emphasis is shown in bold. Insertion shown in [brackets] “[Workshop participant Stanton] Glantz did note a fundamental difference between tobacco and climate change, however: while tobacco com­panies offer no useful product, he explained, ‘The fact is we do need some form of energy. Unless other alternative energy firms replace the current carbon producers, which seems unlikely, at some point there will likely have to be some kind of positive engagement. Less clear, however, is how best to create a political environment for that engagement to work.’” (p. 20)

This Workshop alarmist placed ideological interests above the public interest in having energy available, calculating how to force “carbon producers” into some kind of submission before allowing “positive engagement.”

Addressing Reasonable Network Concerns Over the Strategy

“Even if your ultimate goal might be to shut down a company, you still might be wise to start out by asking for compensation for injured parties.” (p. 13)

False Pretenses: Even a bad RICO suit is good for the cause

Frivolous action: Groundless lawsuit with little prospect of success, often brought to embarrass or annoy the defendant. – Black’s Law Dictionary

“Richard Ayres, an experi­enced environmental attorney, suggested that the RICO Act, which had been used effectively against the tobacco industry, could similarly be used to bring a lawsuit against carbon produc­ers. As Ayres noted, the RICO statute requires that a claimant establish the existence of a “criminal enterprise,” and at least two acts of racketeering (with at least one having occurred within the past four years). It is not even clear, he added, whether plaintiffs need to show they were actually harmed by the defendant’s actions. As Ayres put it, ‘RICO is not easy. It is certainly not a sure win. But such an action would effectively change the subject to the campaign of deception practiced by the coal, gas, and oil companies.’” (p. 13)

“We had the case where people said, ‘What if you screw up RICO?’ But no matter what the outcome, litigation can offer an opportunity to inform the public.” (p. 14)

A 1994 tobacco case State of Minnesota and Blue Cross and Blue Shield of Minnesota v. Philip Morris et al proved the RICO law to be valuable not for racketeering convictions, but for its subpoena power to find and weaponize internal documents, which, in the case of the tobacco industry found documents that led to the fourth largest lawsuit money settlement in all of history, anywhere.

Going from Speculation to Real Life

“If numbers could be generated for how many deaths per year were caused by each degree rise in global tem­perature, for instance, a similar case could be made against a particular company that pro­duced or emitted a known percentage of the carbon load contributing to global warming.” (p. 19)

Emphasis on Exxon in 2012

“Picking up on this notion, Naomi Oreskes suggested that some portion of sea level rise could be attributed to the emissions caused by a single carbon-producing company. In essence, she suggested, ‘You might be able to say, ‘Here’s Exxon’s contribution to what’s hap­pening to Key West or Venice.’” (p. 19)

“Matt Pawa, a leading litigator on climate related issues, discussed his current case, Kivalina v. ExxonMobil Corporation, et al., now pending on appeal. The lawsuit, brought under public nuisance law, seeks monetary damages from the energy industry for the destruction of the native village of Kivalina, AK, by coastal flooding due to anthropogenic climate change….

The suit was dismissed by a U.S. district court in 2009 on the grounds that regulating global warming emissions is a political rather than a legal issue that needs to be resolved by Congress and the executive branch rather than the courts. An appeal was filed with the Ninth Circuit Court of Appeals in November 2009, but was rejected in September 2012…. Pawa noted that in representing Kivalina, he chose a plaintiff whose stake in the case is patently evident, as is the harm that has come to the village. Because those facts remain largely beyond dispute, it puts the focus of the case squarely on attributing the damage to the defendants.” (p. 12)

Whether or not the attribution would hold up in court, Stanton Glantz expressed some enthusiasm about such a strategy, based on his experience with tobacco litigation. As he put it, ‘I would be surprised if the industry chose to attack the calculation that one foot of flooding in Key West could be attributed to ExxonMobil. They will not want to argue that you are wrong and they are really only respon­sible for one half-foot. That is not an argument they want to have.’” (p. 19)

Identification of Wrongdoers, Benefits of a Public Relations Strategy

“Participants at the workshop also discussed the benefits and risks associated with identify­ing wrongdoers as part of a public narrative. Some participants, such as Paul Slovic, argued that this could prove an effective strategy. Slovic cited research by Roy Baumeister and Brad Bushman suggesting that, when it comes to messages, ‘bad is stronger than good’—a finding that helps explain the tendency toward negative advertising in political campaigning…. Claudia Tebaldi said she believed ‘there is a big difference between convincing people there is a problem and mobilizing them. To mobilize, people often need to be outraged.’” (p. 23)

Crafting the Public Narrative

“Jim Hoggan, a public relations expert and co-founder of DeSmogBlog.com, explained the problem this way: ‘The public debate about climate change is choked with a smog of misinformation. Denial and bitter adversarial rhetoric are turning the public away from the issue. Communicating into such high levels of public mistrust and disinterest is tricky. We need to do some research into a new narra­tive.’ Hoggan emphasized the importance of linking the industry’s ‘unjust misinformation’ back to an overall narrative about sustain­ability, rather than getting mired in issues of whose fault climate change is and who should do what to ameliorate the situation. Noting the fact that there is broad and deep support for clean energy, Hoggan suggested the following narrative: ‘Coal, oil, and gas companies are engaging in a fraudulent attempt to stop the development of clean energy.’” (p. 21)

Hoggan’s public relations firm, incidentally, is partly financed by client Shell Oil.

Coordinating the Campaign

Attributing Environmental Damage to Carbon Producers: Richard Heede, co-founder and director of the Climate Accountability Institute, presented a preview of a research project several years in the making, in which he has been quantifying the annual and cumulative global warming emissions attributable to each of the world’s major carbon producers…. Angela Anderson, director of the climate and energy program at the Union of Concerned Scientists, noted for instance that it could potentially be useful as part of a coordinated campaign to identify key climate ‘wrongdoers.’” (p. 18)

Coordination: On November 20, 2015, DeSmogBlog, the website of Workshop participant Hoggan, owner of a Canadian public relations firm that has done work for Shell Oil, posted, “[A} slew of advocacy groups have delivered 360,000 petition signatures to the U.S. Department of Justice, calling for a probe of petrochemical industry giant ExxonMobil’s history of funding climate change denial despite what the company knew about climate science. The groups, ranging from the [Rockefeller Brothers Fund-supported] 350.org, Food and Water Watch, Climate Parents, Moms Clean Air Force, The Nation, Sierra Club and others, have asked DOJ to investigate what ExxonMobil knew about climate change and when the company knew it, juxtaposing that insider knowledge, exposed by both InsideClimate News and the Los Angeles Times, with the climate change denial campaign it funded both in the past and through to the present.”

Groups in bold are not registered in IRS Publication 78, Organizations eligible to receive tax-deductible charitable contributions. The other named groups are heavily funded by Big Green foundations.

Crowd Brokers: The sponsors of this petition campaign have access to crowd-maker experts such as Avaaz and its Start Your Own Petition service. Anyone with the money, such as the funders of InsideClimate News, could have done the same.

Fear of Failure

“Dan Yankelovich, co-founder of Public Agenda, a nonpartisan group devoted to public opinion research and citizen education…explained, ‘I am concerned about so much emphasis on legal strategies. The point of departure is a confused, conflicted, inattentive public. Are legal strategies the most effec­tive strategies? I believe they are important after the public agrees how to feel about an issue. Then you can sew it up legally.’ In the face of a confused, conflicted, and inattentive public, legal strategies can be a double-edged sword, he continued: ‘The more adversarial the discourse, the more minds are going to be closed.’” (p. 24)

Jim Hoggan advised, “It’s like that old adage that says, ‘Never get into a fight with a pig in public. The pig likes it. You both get dirty. And, after a while, people can’t tell the difference.’” (p. 24)

Research and Reporting: Ron Arnold   

Verification and Executive Editor: Emily Zanotti, JD