A former U.S. Department of Justice attorney who prosecuted and won the massive racketeering case against Big Tobacco thinks the agency should consider investigating Big Oil for similar claims: engaging in a cover-up to mislead the public about the risks of its product.
Sharon Eubanks, who now works for the firm Bordas & Bordas, told ThinkProgress that ExxonMobil and other members of the fossil fuel industry could be held liable for violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) if it’s discovered that the companies worked together to suppress knowledge about the reality of human-caused climate change. She said that, considering recent revelations regarding ExxonMobil, the DOJ should consider launching an investigation into big fossil fuel companies.
“I think a RICO action is plausible and should be considered,” she said.
Eubanks’ comments come a few days after two House Democrats urged Attorney General Loretta Lynch to launch an investigation into ExxonMobil for hiding the results of its own climate change research. Recent investigations from Inside Climate News and the Los Angeles Times discovered that ExxonMobil conducted research in 1977 affirming that climate change was caused by carbon emissions from fossil fuels, yet continued to fund politicians and organizations that deny climate science and work to prevent regulations limiting carbon emissions.
Many have compared the situation to the actions of the tobacco industry. In 2006, a federal judge found that the big tobacco companies colluded to “deceive the public” about the health hazards of smoking, which amounted to a racketeering enterprise. The reason they did it, Eubanks said, was to avoid health regulations and save money.
“The cigarette companies actively denied the harm of cigarette smoking, and concealed the results of what their own research developed,” she said. “The motivation was money, and to avoid regulation.”
Based on the revelations about ExxonMobil, Eubanks said the Department of Justice should consider investigating whether similar collusion occurred among big fossil fuel companies and other high-carbon-emitting industries that would profit from climate denial.
“It appears to me, based on what we know so far, that there was a concerted effort by Exxon and others to confuse the public on climate change,” Eubanks said. “They were actively denying the impact of human-caused carbon emissions, even when their own research showed otherwise.”
In addition to giving millions of dollars to politicians and groups that deny climate science, ExxonMobil helped found the Global Climate Coalition, “an alliance of some of the world’s largest companies seeking to halt government efforts to curb fossil fuel emissions,” according to Inside Climate. Exxon’s company leaders also argued against the Kyoto Protocol, an international treaty to fight climate change which the U.S. refused to sign. Exxon reportedly advised then-President George W. Bush not to sign it.
Critics say ExxonMobil did this while knowing full well the risks of climate change, which is expected to include the displacement of millions of people and even the erasure of some low-lying island nations.
Because of this, calls for a DOJ investigation into ExxonMobil and other fossil fuel companies are getting louder. Last week, Democratic presidential candidate and former Maryland Governor Martin O’Malley tweeted his support for an investigation, drawing yet another parallel to the tobacco industry.
“We held tobacco companies responsible for lying about cancer,” O’Malley said. “Let’s do the same for oil companies and climate change.”
However, Eubanks warned that if the charge is anything like the tobacco case, a DOJ investigation would need bi-partisan support — or a Democratic-controlled Congress and White House — to be successful. She recalled dealing with a Republican-controlled Congress during the prosecution of the tobacco industry, and then later, a Republican president who did not want to see the industry hurt.
“We filed the case under the Clinton administration, and we struggled with budget issues — many of the Republicans pushed hard to push us down,” Eubanks said.
After Bush was elected, the environment at the DOJ worsened. “They were trying to choke the case off,” she said. “It was a long time ago, but i still get queasy feeling when I think about working seven-day weeks all the time, and a nine-month trial, to see these people trying to kill the case.”
She did eventually win the case, but at a cost, Eubanks said. Instead of the $130 billion her team had sought, Bush administration loyalists pushed her team to seek only $10 billion, she said.
Still, Eubanks stressed than a similar investigation into ExxonMobil could be worthwhile under any political circumstances — even if it’s to find out that there’s not enough evidence to bring a lawsuit at all.
“I can’t tell you that it clears every hurdle,” she said. “I’m not an environmental lawyer. But I know it’s important…This is more important than just running a case. That much I’m sure of.”