On a Wednesday in early May, Senator Sheldon Whitehouse went to the floor of the Senate to deliver his 98th weekly speech on climate change. As he usually does, Whitehouse spoke to a largely empty chamber, and the media ignored him. Afterwards, few people knew that he’d just laid out what could be a groundbreaking legal strategy to hold fossil-fuel companies accountable not only for the damages of climate change but also for their efforts to mislead the public about climate science.
Whitehouse’s speech (and a subsequent op-ed in The Washington Post) focused on the parallels between the fossil-fuel industry and tobacco companies. They share a “playbook,” he argued, profiting from products that put health and safety at risk while working to disseminate deceptive information to downplay those risks and evade regulation. “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,” Whitehouse said. “If anything, the fossil fuel industry’s climate denial scheme has grown even bigger and more complex than Big Tobacco’s.”
But the government has its own playbook, Whitehouse noted: the Racketeer Influenced and Corrupt Organizations Act. Congress passed RICO in 1970 for the purposes of prosecuting mobsters, but the statute’s contours are broad enough that it’s been used against anti-abortion activists, the police, and, most recently, FIFA officials. In 1999 the government filed a civil suit alleging tobacco companies had violated RICO by executing “a massive 50-year scheme to defraud the public, including consumers of cigarettes.” A federal judge agreed, ruling in 2006 that the corporations had “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.”
Could fossil-fuel companies be liable under RICO? The idea hasn’t yet been tested in court, but lawyers have been considering it at least since 2013, when climate scientist Richard Heede published a stunning paper concluding that just 90 corporations—including ExxonMobile, BP, Chevron, Conoco-Phillips, and Shell—are responsible for nearly two-thirds of all carbon dioxide and methane emissions since the beginning of industrial era. There is mounting evidence that many of these companies have been aware of the link between carbon emissions and climate change for decades, yet employed a variety of tactics to undercut publicly the science they acknowledged in private. The fundamental basis of a RICO case “is that there is a group of people acting together to disseminate false information,” explained Richard Ayres, an environmental lawyer and co-founder of the Natural Resources Defense Council. “In terms of litigation strategies,” Ayres continued, “RICO is as good as anything I’ve seen.”