August 29, 2022
As we have documented in many posts on this site, denial of clear scientific results affects a broad range of issues and is often triggered by a desire to protect political, religious, or economic interests. When the denial is associated with information revealing deleterious effects of commercial products, it is usually the producers themselves who conspire to fund diverse public relations and lobbying efforts intended to cast doubt upon scientific findings which the companies know internally to be true. As documented in detail by Naomi Oreskes and Erik Conway in Merchants of Doubt, and as described briefly by us in several blog posts (here, for example), the template for these orchestrated denial campaigns was established by Big Tobacco, particularly in the early 1990s, when they were trying to dismiss concerns about health effects of second-hand smoke and nicotine addiction. Other industries, including pharmaceutical, chemical and fossil fuel giants, have since adopted and occasionally embellished that template.
But state, U.S. federal, and foreign lawsuits against Big Tobacco also provide a template for how to hold industries accountable when they systematically deceive consumers and government representatives about crucial impacts of products on public health and well-being, denying them information essential for informed choice. Why is such accountability important? It can certainly force corporations to pay at least part of the costs for future efforts to mitigate and adapt to the negative consequences of their denial. If the penalties are sufficiently severe, they can force corporations to be proactive in addressing deleterious effects of their products. The threat of legal accountability can lead companies to withdraw from conspiracies and mend their ways publicly. Suitably severe accountability can hopefully provide deterrence against similar future deceits by other industries.
The issue of accountability has been frequently raised in recent years via calls to prosecute fossil fuel companies who, for decades, funded widespread efforts to undermine the science of climate change caused by fossil fuel burning. The costs for mitigating the already serious climate impacts have risen steadily during four decades of denial that became a hallmark of tribal political identification and successfully prevented federal legislation (until August 2022) to support transitions to carbon-free electricity production and transportation. A number of political conservatives view such calls for accountability as “another step toward criminalizing advocacy,” in violation of corporations’ First Amendment rights to free speech and association. Walter Olson has written that it is “particularly absurd to propose defining it as unlawful racketeering to (quoting one paraphrase) ‘use dubious information to advance a cause,’” because everyone does this in arguing their side of a dispute.
But Olson and other conservatives mischaracterize industry collusion for the deliberate suppression and misrepresentation of evidence extremely relevant to public health and welfare, and to consumer choices, when that evidence is available to the industry but would potentially damage their bottom line. This is not constitutionally protected faulty argument, fair-game advocacy, or acceptable “spin.” Willful deception to enhance profits at the expense of public health and welfare is illegal fraud, not to mention a violation of corporations’ social responsibility. Even such an eminent free-market thinker as Nobel Prize winning economist Milton Friedman has written that: “There is one and only one social responsibility of business, to use its resources and engage in activities designed to increase its profits so long as it stays within the rules of the game, which is to say, engages in open and free competition without deception or fraud” (I have added the emphasis to the latter clause).
And what about the claim that plaintiffs suing corporations are often merely “using litigation as a way to circumvent the legislative process”? In the U.S. at least, the problem is that the legislative process is strongly skewed by a structural asymmetry in the lobbying of politicians. In an article proposing lawsuits against the firearm industry, Timothy Lytton explains this asymmetry. “Allegations of pro-gun industry bias in the legislative process are strengthened by the structure of gun control politics. On one hand, it is relatively easy to organize pro-industry lobbying efforts since additional regulation would mean very high costs to the small number of firms in the industry. The benefits to members of this group from lobbying efforts opposing gun industry regulation are high and concentrated within a small group. On the other hand, it is relatively hard to organize gun-control lobbying efforts since, while the overall costs of suffering gun violence are high, the risk to any one individual is quite low. The benefits to members of the public of lobbying efforts in favor of gun industry regulation are low and dispersed among a very large group…The tort system also provides a decision-making process that is largely insulated from the influence of powerful lobbies. In the tort system, parties, despite differences in the amount of resources that they can invest in litigation, are granted equal access to decision makers. Judges, especially those who do not stand for election, and jurors are less likely than legislators to be influenced by the political power of litigants.”
Lytton’s point is equally true in the case of the fossil fuel giants, although there the average benefits to members of the public from regulation or settlements are growing larger by the day, even though dispersed among an enormous group, comprising most of the global population. Certainly, lobbying by the fossil fuel industry remains very strong, as indicated in Fig. I.1, which shows that the five largest publicly owned oil and gas companies have recently been spending a cumulative $200 million per year on lobbying to delay, control or block legislation to tackle climate change. In the absence of relevant legislation, regulation of greenhouse gas emissions by federal agencies such as the Environmental Protection Agency (EPA) has proved unreliable, with even well-intentioned efforts often held up indefinitely, or outright rejected, by the courts. Direct litigation against offending industries often provides the most effective avenue for demanding accountability of willfully deceptive corporations.
In this post I explain how the fossil fuel industry has adopted the science denial template provided by Big Tobacco, but also how successful government lawsuits and prosecution against Big Tobacco companies provide their own template for holding fossil fuel giants accountable for decades of deception regarding climate science. For help with legal aspects of the arguments, I rely heavily on an article by William C. Tucker in the Ecology Law Quarterly, entitled Deceitful Tongues: Is Climate Change Denial a Crime? I also discuss how litigation has succeeded against other industries and the relative merits of civil versus criminal prosecution.
II. adapting the big tobacco denial template
The industry playbook for climate change denial has followed the Big Tobacco template very closely and with quite similar timing. The template was established, to a large extent, by The Advancement of Sound Science Coalition (TASSC), a non-profit lobbying group established in 1993 by the tobacco company Phillip Morris, with advice and organization from the crisis management consultancy APCO Worldwide. The immediate objectives of TASSC were to discredit a 1992 EPA report that identified second-hand smoke as a confirmed human carcinogen, to fight against anti-smoking legislation, and to proactively pass legislation favorable to the tobacco industry.
APCO’s strategy for TASSC was to co-opt the term “sound science” in the group’s name, to minimize links to the group’s funding from the tobacco industry, and to “create the impression of a ‘grassroots’ movement – one that had been formed spontaneously by concerned citizens to fight ‘overregulation’.” In order to create that impression, TASSC/APCO and its associates seeded a number of regional, and allegedly independent, “think tanks” dedicated “to make the case that efforts to regulate tobacco were based on the same ‘junk science’ as efforts to regulate food additives, automobile emissions and other industrial products that had not yet achieved tobacco’s pariah status.” The fake groundswell of “grassroots” regional organizations parroting the same talking points is often referred to as “astroturfing.” APCO later suggested broadening the scope of these astroturf think tanks even further, to include questioning government research and regulations on issues such as global warming, nuclear waste disposal and biotechnology. Thus, TASSC and the array of astroturf organizations it set up were also among the first groups that engaged in sowing doubt about the science of climate change.
The urgency felt by the fossil fuel industry giants was triggered by a growing perception by 1990 among politicians of the importance of addressing climate change. For example, David Suzuki, Professor Emeritus in genetics at the University of British Columbia, points out in his foreword to Tim Flannery’s book Now or Never that: “In 1988, Brian Mulroney was reelected prime minister in Canada and, to show he cared about the environment, he appointed his brightest star, Lucien Bouchard, as minister of the environment. I interviewed Bouchard three months later and asked what he felt was the most urgent environmental issue for Canadians. His instant response was, “Global warming.” When I asked how serious it was, he replied, ‘It threatens the survival of our species. We have to act now.’” The countries of the world were advancing toward the Kyoto Protocol, adopted in December 1997, committing industrialized countries and economies in transition to limit and reduce greenhouse gas emissions.
In response to these perceived threats, a coalition of oil companies, electric utilities, automobile manufacturers and others founded the Global Climate Coalition (GCC) in 1989, a lobbying group that funded a multimillion dollar advertising campaign to ensure the U.S. would not agree to binding emissions cuts under the Kyoto Protocol without meaningful participation of key developing countries, such as China and India. “Policy positions advocated by the coalition included denial of anthropogenic climate change, emphasizing the uncertainty in climatology, advocating for additional research, highlighting the benefits and downplaying the risks of climate change, stressing the priority of economic development, defending national sovereignty, and opposition to the regulation of greenhouse gas emissions.”
In 1991, the National Coal Association, the Western Fuels Association, and Edison Electrical Institute combined forces to form the Information Council for the Environment (with the ironic acronym ICE), which developed advertising campaigns intended to “reposition global warming as a theory (not fact)” and “supply alternative facts to support the suggestion that global warming will be good.” In documents obtained by the Union of Concerned Scientists, ICE adviser Patrick Michaels emphasizes the following points: “We believe it is wrong to predict that higher levels of carbon dioxide will bring a catastrophic global warming…We also believe we must conduct more scientific research before we can accurately understand the complex forces of global climate change.”
However, the advertising campaigns funded by ICE were considerably more alarmist. For example: “One print advertisement prepared for the ICE campaign showed a sailing ship about to drop off the edge of a flat world into the jaws of a waiting dragon. The headline read: ‘Some say the earth is warming. Some also said the earth was flat.’ Another featured a cowering chicken under the headline ‘Who Told You the Earth Was Warming . . . Chicken Little?’“
According to William Tucker: “At about the same time, these coal and electric utility interests also engaged in ‘greenwashing,’ creating an ‘educational’ entity misleadingly called the Greening Earth Society which, among other things, produced a video distributed nationally to public and university libraries called The Greening of Planet Earth. The video’s argument was that, since plants need CO2, an increase in atmospheric CO2 will contribute to a more fertile world, with the implication that climate change, if it exists, will be entirely benign.”
The most direct analog of TASSC was a task force established in 1998 by energy industry representatives, including several prominent members of the GCC. The task force was called the Global Climate Science Communications Team (GCSCT), and they drafted an Action Plan shortly after the Kyoto Protocol was signed (though not yet ratified by the U.S. Congress). intended specifically to counteract scientific information GCC members themselves had been exposed to during the 1990s and even earlier. The Plan was modeled on Big Tobacco’s “sound science” disinformation campaign. “The Action Plan was developed by representatives from Exxon (specifically Randy Randol), Chevron, Southern Company and representatives from conservative and libertarian organizations. The plan includes a multimillion dollar, multi-year budget and detailed strategies to install ‘uncertainty’ in the public policy arena. Target audiences are detailed including media, policy makers and teachers.”
In the words of the GCSCT Action Plan: “Victory will be achieved when
—Average Citizens ‘understand’ (recognize) uncertainties in climate science; recognition of uncertainties becomes part of the ‘conventional wisdom’
—Media ‘understands’ (recognizes) uncertainties in climate science
—Media coverage reflects balance on climate science and recognition of the validity of viewpoints that challenge the current ‘conventional wisdom’
—Industry senior leadership understands uncertainties in climate science, making them stronger ambassadors to those who shape climate policy
—Those promoting the Kyoto treaty on the basis of extant science appear to be out of touch with reality.”
The Action Plan’s focus on “uncertainties” sought to exploit the different connotations of the term in public versus scientific discourse. In everyday usage, people often loosely interpret an uncertain assertion as one that is unsupported by facts. For scientists, however, uncertainty is simply a measure of how precisely a result is established by observations and models. For example, when meteorologists project the future path of an oncoming hurricane (see Fig. II.1), they display an uncertainty band reflecting the range of possible impact locations. The uncertainty (width of the band) grows in size the further out one extrapolates from current knowledge. But the fact that there is quantitative uncertainty in the projected trajectory is not meant to tell people within that band that they need not take the hurricane warnings seriously. In the same sense, there is quantitative uncertainty in the amount of global warming that would be caused by doubling atmospheric carbon dioxide concentrations, but the likely outcomes range from serious to severe, and they demand attention and mitigating actions that the fossil fuel industry has done its best to delay for decades.
These fossil fuel industry public relations efforts also adopted another important lesson from TASSC and Big Tobacco. APCO had told Phillip Morris executives that: “No matter how strong the arguments, industry spokespeople are, in and of themselves, not always credible or appropriate messengers.” They proposed instead to engage in “intensive recruitment of high-profile representatives from business and industry, scientists, public officials, and other individuals interested in promoting the use of sound science.” Among the TASSC recruits, over the years, were some of the old cold-warriors and anti-regulatory stalwarts that appear in several of our blog series: Frederick Seitz, the former President of Rockefeller University and of the U.S. National Academy of Sciences; S. Fred Singer, the former chief scientist for the U.S. Department of Transportation; and the above-mentioned Patrick Michaels, a past president of the American Association of State Climatologists. Among the three of these scientists, they argued persistently against the peer-reviewed scientific research backing up the health hazards of tobacco smoke, acid rain, ozone layer depletion, pesticides and climate change. They were repeatedly wrong, but never in doubt. They were also members and founders of numerous other industry-funded anti-regulatory think tanks: the George C. Marshall Institute, the Science and Environmental Policy Project, the Heartland Institute, the Cato Institute.
The appearance of many think tanks, all opposing what they term the “junk science” or overemphasizing the “uncertainties” behind diverse regulatory proposals, thus hides the fact that it is actually a very small group of politically motivated, or possibly just contrarian, scientists who generate all of this noise and considerable political pressure. This point has been made compellingly in Merchants of Doubt by Naomi Oreskes and Erik Conway. In the case of climate science denial, this diffusion of funding through a large number of astroturf organizations, all contributing to and benefiting from the work of a small cadre of helpful scientists – a tiny group in comparison to the number of serious worldwide climate scientists – is illustrated in Fig. II.2, using data exposed by Greenpeace. The astroturfing serves both to obscure the centrality of industry funding and to manufacture a fake “groundswell.” The “research” that underpinned the claims of strong uncertainties in climate science relied on standard elements of the science denier’s toolbox: cherry-picked and misrepresented data, reliance on carefully selected anomalous outlier results, apples-to-oranges comparisons of models to measurements, impugning the motives of the majority of climate researchers projecting serious consequences of global warming, etc.
Did the large fossil fuel companies and their associated trade organizations actually have scientific reasons to doubt the growing consensus about human-caused global warming from fossil fuel burning? Absolutely not! A large suite of internal industry memos and documents were exposed in 2015 through investigative efforts of the Los Angeles Times, Inside Climate News, and the Columbia Journalism School, using a combination of lawsuits and Freedom of Information Act requests. The documents – comprising what the Union of Concerned Scientists has labeled the Climate Deception Dossiers – has revealed that industry leaders were clearly exposed during the final decades of the 20th century to strong predictions of serious, and possibly catastrophic, results of continued fossil fuel burning.
The Deception Dossiers reveal that “In July 1977, a senior scientist of Exxon, James Black reported to the company’s executives that there was a general scientific agreement at that time that the burning of fossil fuels was the most likely manner in which mankind was influencing global climate change. In 1979–1982, Exxon conducted a research program of climate change and climate modeling…In 1982, Exxon’s environmental affairs office circulated an internal report to Exxon’s management which said that the consequences of climate change could be catastrophic, and that a significant reduction in fossil fuel consumption would be necessary to curtail future climate change. It also said that ‘there is concern among some scientific groups that once the effects are measurable, they might not be reversible.’” However, “In 1989, shortly after the presentation by the Exxon’s manager of science and strategy development Duane LeVine to the board of directors which reiterated that introducing public policy to combat climate change ‘can lead to irreversible and costly Draconian steps,’ the company shifted its position on the climate change to publicly questioning it. This shift was caused by concerns about the potential impact of the climate policy measures to the oil industry.”
ExxonMobil was hardly alone in its duplicity. The Climate Deception Dossiers reveal that other members of the fossil fuel industry, including Chevron, ConocoPhillips, BP, Shell and Peabody Energy, willingly colluded to contradict their own internal knowledge of greenhouse gas [GHG] impacts in funding the coordinated campaign of deception. A report prepared by the Science and Technology Advisory Committee of the GCC in 1994 stated that “[t]he scientific basis for the Greenhouse Effect and the potential impact of human emissions of greenhouse gases such as CO2 on climate is well established and cannot be denied.” These advisers furthermore told the GCC that “contrarian” theories “do not offer convincing arguments against the conventional model of [GHG] emission-induced climate change” and that “substantially higher atmospheric concentrations of greenhouse gases” constituted a “potential threat.” An electric utility trade association presentation to the GCC in 1996 “predicted a doubling of CO2 levels over pre-industrial concentrations by 2050, creating ‘an average rate of warming [that] would probably be greater than any seen in the past 10,000 years.’ The presentation further warned, ominously, that some impacts would be ‘potentially irreversible’ and include ‘significant loss of life’.”
And it is not only exposed internal documents that reveal what the fossil fuel industry actually knew about human-caused climate change. In response to inquiries following the 2015 release of the Climate Deception Dossiers, an ExxonMobil spokesperson touted the fact that “Our scientists have contributed climate research and related policy analysis to more than 50 papers in peer-reviewed publications – all out in the open. They’ve participated in the United Nations Intergovernmental Panel on Climate Change since its inception – in 1988 – and were involved in the National Academy of Sciences review of the third U.S. National Climate Assessment Report.” Indeed, all 53 peer-reviewed scientific papers published by Exxon-employed climate scientists between 1983 and 2014 are completely consistent with the broad consensus behind serious global warming resulting from fossil fuel burning.
And yet, between 1998 and 2005 the company contributed at least $31 million to fund organizations that manufactured doubt about human-caused climate change (see Fig. II.3). That total, gleaned from company tax records, is most likely a serious underestimate, according to the Union of Concerned Scientists (UCS): “A former highly placed ExxonMobil executive who requested anonymity told UCS that the company paid out as much as $10 million annually on what insiders called “black ops” from 1998 through 2005, significantly more than what UCS was able to pin down in its 2007 report from company tax records.” Even after committing in 2007 to stop funding these astroturf organizations, Exxon continued to devote millions of dollars to some of the scientists in Fig. II.2, to the American Legislative Exchange Council (ALEC) and to members of Congress acting to obstruct legislation aimed at mitigating human-caused climate change. Any attempt to hold ExxonMobil and other fossil fuel companies accountable for their coordinated funding of denial efforts will have to be based on “following the money trail” carefully.
Despite their internal knowledge, the fossil fuel industry vigorously pursued the GCSCT Action Plan. Their efforts did, indeed, sway public opinion in the 1990s and early 2000s, and led to a failure of Congressional ratification of the Kyoto Protocol. Fossil fuel industry funding of the astroturf denial “think tanks” continued until the last few years. They succeeded in making doubt about the reality of climate change a fundamental element of Republican politics, which generally opposes government regulation of industry. They were critically influential in delaying any serious Congressional action to combat GHG emissions until the 2022 Inflation Reduction Act very recently passed both houses of Congress with only Democratic votes. The industry has thus purposely exposed American citizens to the effects of more severe storms, droughts, forest fires, floods, and severe heat patterns than timely efforts to combat global warming would have allowed, with the resulting loss of many lives and much property, as well as significant public and insurance funds used for recovery. They have made future efforts to address climate change all the more expensive as the rate of reduction needed for GHG emissions grows steeper with each passing year.
In recent years the executives of major oil and gas companies have become explicitly two-faced on the subject of climate change. Their attitudes are exemplified by the testimony of chief executives of ExxonMobil, Chevron, BP and Shell in a November 2021 Congressional hearing. All four executives now agreed about the reality of climate change driven by the burning of their products. But all four also insisted that “they had never engaged in campaigns to mislead the public on the role of fossil fuel emissions in global warming.” They touted their own companies’ investments in renewable sources of energy, failing to note that those investments only account for about 1% of their total capital expenditures. They each refused to cease direct or indirect (through intermediaries such as the American Petroleum Institute) funding to oppose legislation to reduce GHG emissions and mitigate climate change. Indeed, their climate lobbying expenditures and projected oil and gas production continue unabated, as shown in Figs. I.1 and II.4, respectively.
III. how big tobacco was held accountable
The primary existence proof for legal recourse against coordinated industry deception was established in U.S. state and federal civil lawsuits filed in the 1990s against cigarette manufacturers and two tobacco industry trade associations. The leaders of the major Big Tobacco companies had for decades sought to undermine the reliability of epidemiological research that had clearly tied smoking to lung cancer and other serious diseases, even as their companies were forced to include health warnings on their packaging. They also denied the addictiveness of nicotine and engaged in false advertising promoting “light” cigarettes as healthier alternatives and targeting young people in the hopes of establishing a smoking habit early in their customers’ lives. They were finally held accountable as newer research established the health hazards of even second-hand smoke.
As Congress was considering anti-smoking legislation, CEOs of the seven largest tobacco companies in the U.S. were called to testify at a televised Congressional hearing (see Fig. III.1) on April 14, 1994, chaired by Rep. Henry Waxman. There, under oath, each of the CEOs testified that they did not believe that nicotine was addictive and that their companies did not manipulate nicotine content in their products to enhance addiction. At the same hearing, the Philip Morris CEO admitted that he had stopped publication in the 1980s of internal research that showed addictive effects of nicotine on animals and had forced the lead researcher on that work to sign a secrecy agreement. The Lorillard executive claimed not to know how data he had shown previously to a subcommittee somehow showed a significant decrease, rather than the independently measured significant increase over time, in nicotine content in cigarettes. Two years later, those seven CEOs were under federal investigation for perjury and no longer leading their companies. In January 1998 the new chief executives of the same companies admitted in a Congressional hearing that smoking is hazardous and addictive. But those admissions came too late to protect Big Tobacco from the ongoing legal proceedings.
In the mid-1990s, 46 states, the District of Columbia, and 5 U.S. territories combined to sue Philip Morris, R.J. Reynolds, Brown & Williamson, Lorillard, plus tobacco industry trade associations – bypassing more conventional product liability claims made in myriad individual consumer suits – to seek recovery of billions of dollars in Medicare and Medicaid costs associated with treating smoking-related illnesses. This suit resulted in the 1998 Master Settlement Agreement (MSA), which: (a) requires the tobacco industry to pay the settling states billions of dollars annually forever, amounting to a minimum of $206 billion over the first 25 years of the agreement; (b) forbids participating cigarette manufacturers from targeting youth; (c) imposes restrictions on advertising and promotional activities; (d) bans or restricts transit advertising, outdoor advertising, product placement in media, branded merchandise, free product samples, and sponsorships; (e) uses a portion of the tobacco company payments to establish a new anti-smoking advocacy group, called the Truth Initiative, charged with carrying out advocacy and information campaigns, and maintaining a public archive of all the industry documents exposed in the lawsuits; and (f) dissolved the tobacco industry groups Tobacco Institute, the Center for Indoor Air Research, and the Council for Tobacco Research.
The MSA did succeed in leading to a substantial decrease in use of tobacco products, especially among high school students. Unfortunately, that decrease has now been counterbalanced by rapid growth among teens in the use of e-cigarettes (see Fig. III.2), which still contain nicotine. State attorneys general are now pursuing a new MSA with the e-cigarette manufacturer Juul.
After the tobacco MSA was put in place, the federal government got into the act in the 1999 United States v. Philip Morris civil suit. The suit was filed in the U.S. District Court for the District of Columbia against nine cigarette manufacturers and two tobacco industry front groups for alleged violations of RICO, the Racketeer Influenced and Corrupt Organization Act. As summarized in a Wikipedia article: “The complaint alleged that the tobacco companies had engaged in an approximately fifty-year conspiracy to fraudulently deceive the American public about the health effects of smoking and environmental tobacco smoke, the addictiveness of nicotine, the health benefits from low tar, ‘light’ cigarettes, and their manipulation of the design and composition of cigarettes in order to sustain nicotine addiction. According to the complaint, the tobacco companies deliberately sought to deny that smoking caused disease and to maintain that there was no scientific consensus on the subject. In furtherance of this strategy, Defendants allegedly issued deceptive press releases, published false and misleading articles, destroyed and concealed documents which indicated that there was in fact a correlation between smoking and disease, and aggressively targeted children as potential new smokers.”
The basic elements of the federal RICO Act are summarized in Fig. III.3. The central crime of which the tobacco companies and trade organizations were accused under RICO was mail or wire fraud. The elements that must be proven in a court of law to win a fraud prosecution are summarized in Fig. III.4.
The United States v. Philip Morris suit originally sought “to recover health care expenditures the federal government had paid and would have to pay to treat tobacco-related illnesses as a result of the tobacco companies’ unlawful action under three federal statutes: the Medical Care Recovery Act (MCRA), the Medicare Secondary Payer (MSP) provisions, and the Racketeer Influenced and Corrupt Organizations Act (RICO). Additionally, the government requested injunctive relief under the RICO Act to prevent the tobacco companies from engaging in further fraud and to disgorge the companies’ ill-gotten proceeds from their illegal activity.” The District Court dismissed the MCRA and MSP claims, preventing the government from recovering past tobacco-related health care expenditures. But it allowed the case to continue based on the RICO claims.
In her lengthy ruling in August 2006, Judge Gladys Kessler held the tobacco companies and trade associations liable for conspiracy and violations of RICO, characterizing the case as being about “an industry, and in particular these Defendants, that survives, and profits, from selling a highly addictive product which causes diseases that lead to a staggering number of deaths per year, an immeasurable amount of human suffering and economic loss, and a profound burden on our national health care system. Defendants have known many of these facts for at least 50 years or more. Despite that knowledge, they have consistently, repeatedly, and with enormous skill and sophistication, denied these facts to the public, to the Government, and to the public health community… In short, Defendants have marketed and sold their lethal product with zeal, with deception, with a single-minded focus on their financial success, and without regard for the human tragedy or social costs that success exacted.”
However, under a civil RICO suit permissible remedies are limited to forward-looking remedies to prevent and restrain future violations. Hence, the government’s initial request for $289 billion in “disgorgement of Defendants’ ill-gotten gains” was denied, as was their reduced request for $14 billion to fund smoking cessation and awareness programs. But the ruling allowed several forms of injunctive relief: “Judge Kessler enjoined defendants from using any descriptors indicating lower tar delivery—including, but not limited to, “low tar,” “light,” “mild,” “medium” and “ultra-light”—which create the false impression that such cigarettes are less harmful to smokers…Judge Kessler ordered defendants to make corrective statements about: (1) addiction, (2) the adverse health effects of smoking, (3) the adverse health effects of exposure to second-hand smoke, (4) the manipulation of the cigarettes to enhance nicotine delivery, and (5) the health benefits of “light” and “low tar” cigarettes. Defendants were required to publish these statements in newspapers and disseminate them through television, advertisements, onsets, in retail displays, and on their corporate websites…Judge Kessler ordered that the tobacco companies must create and maintain document depositories and websites which provide the government and the public with access to all industry documents disclosed in the litigation. Additionally, defendants must provide their disaggregated marketing data to the government to ensure transparency of their marketing efforts, particularly those directed towards youth.”
The tobacco companies, of course, appealed Kessler’s ruling. In May 2009 the U.S. Court of Appeals for the D.C. Circuit upheld Judge Kessler’s finding and nearly all of her suggested remedies. In June 2010 the U.S. Supreme Court declined to hear further appeals, allowing Kessler’s ruling to stand. (Of course, the composition of the Supreme Court has changed markedly since 2010, and it is fair to wonder whether the current Court would be similarly inclined to view industry advertising and public relations as prosecutable fraud.) The tobacco companies then spent most of the ensuing decade filing further unsuccessful appeals to vacate Kessler’s remedies and to alter the language of corrective statements Kessler drafted for them to publish on their websites and their packaging. Only in 2018 did those corrective statements begin to appear.
While a civil suit under the RICO statute provided the federal government with perhaps its best shot to hold Big Tobacco legally accountable, the results of this procedure, which wound its way through several layers of courts over two decades, are hardly fully satisfying. While they did somewhat diminish future tobacco profits, no tobacco executives went to jail for their heartless fraud, no ill-gotten profits were recovered, and no other industries seem to have been deterred from pursuing their own deceptive practices. I will return to these observations in Section V of this post.
Judge Kessler expressed her own misgivings in a footnote in her 2006 ruling: “One cannot help wondering whether this litigation was the best vehicle for attempting to hold Defendants accountable for their indifference to the health of American citizens. In a democracy, it is the body elected by the people, namely Congress, that should step up to the plate and address national issues with such enormous economic, public health, commercial, and social ramifications, rather than the courts which are limited to deciding only the particular case presented to them in litigation. However, this will certainly not be the first, nor the last, time that litigants seek to use the courts and existing legislation to address broad-scale economic and social problems which might be far better and more appropriately grappled with by our elected representatives.” If only the U.S. Congress were not dysfunctional…
IV. how might big fossil fuel be held accountable?
William C. Tucker, in an article in the Ecology Law Quarterly, argues that the evidence available in the Climate Deception Dossiers presents a plausible case for holding the fossil fuel industry criminally liable for federal wire/mail fraud (perhaps under a RICO indictment like that in United States v. Philip Morris) and perhaps for conspiracy to defraud the United States (in the sense that industry actions have dangerously delayed any government action to mitigate impacts of greenhouse gas emissions).
Despite their clear coordination in funding a decades-long public relations campaign to undermine the relative maturity of global warming science, it may be more challenging to prosecute the fossil fuel giants for fraud than it was for Big Tobacco, because the fossil fuel industry learned from some of Big Tobacco’s mistakes. For one thing, the vast majority of the public questioning of climate science was carried out by astroturf “front” organizations, rather than by the companies themselves. For another, ExxonMobil will claim, as they did in their 2015 comments noted above, that they also funded extensive research over decades by Exxon employees that tended to validate global warming caused by fossil fuel burning. In the same spirit that companies often make political contributions to candidates of both parties, Exxon contributed to both sides of the debate. Of course, fossil fuel company lobbying has always been to delay or scuttle potential legislation to regulate fossil fuels or otherwise combat greenhouse gas emissions. But U.S. courts have long interpreted the First Amendment to grant corporations the “right to petition the government, the right to speak out on matters of public concern, and the right to associate with others.” Thus, corporations cannot be held liable for lobbying activities, even if they are coordinated across an industry, if that would impede “the free flow of information to government decision-makers.”
On the other hand, it is important to note that neither corporations nor individual citizens have an absolute right to free speech in all forms. Figure IV.1 lists types of speech which federal legislation and court decisions have ruled unprotected by the First Amendment to the U.S. Constitution. The extension of the First and Fourteenth Amendments to protect some forms of commercial speech was affirmed by the Supreme Court in the 1976 case Virginia State Pharmacy Board v. Virginia Citizens Consumer Council (over the dissent, it should be mentioned, of conservative Justice William Rehnquist, who argued that the First Amendment protections should be limited to political and social issues). But, with respect to item 7 in Fig. IV.1, the Virginia Pharmacy decision also noted that “the protections afforded by the First Amendment to commercial or any corporate speech do not extend to deceptive or misleading speech, holding that ‘[u]ntruthful speech, commercial or otherwise, has never been protected for its own sake.’ Even if the speech is not ‘provably false,’ but only ‘deceptive or misleading,’ the Court held it can still be prohibited without running afoul of the First Amendment.”
Fossil fuel executives cannot defend themselves solely on the basis of blanket reliance on constitutionally protected speech or right of association with think tanks that were merely expressing their opinions. As Tucker points out: “The district court in Philip Morris held that a supposed good faith ‘opinion,’ even if genuinely held, is actionable as fraud if either: (a) there is no objectively reasonable basis for it, or (b) the speaker is aware of facts ‘tending to seriously undermine’ the statement which are not disclosed.” And the fossil fuel companies were certainly aware of facts they chose to conceal from the public, as discussed in Section II. Industry executive claims that they, themselves, were unaware of their company’s internal climate research results would be dismissed under the legal doctrine of “willful blindness.”
As for the right of association with the astroturf organizations in Fig. II.2, which universally cast doubt on the science, the Supreme Court has concluded that “[f]or liability to be imposed by reason of association alone, it is necessary to establish that the group [here, the fossil fuel industry and the astroturf organizations] itself possessed unlawful goals and that the individual [here a fossil fuel company or executive] held a specific intent to further those illegal aims.” Thus, for example, Justice Alito writing for the Third Circuit Court of Appeals failed to hold Pfizer liable for asbestos damages in schools, despite the company’s participation with trade lobbying associations. But, Alito noted that the Court’s decision might have been different “if there were evidence that Pfizer had ‘tacitly or overtly agreed’ with the other defendants to continue selling its product without warnings or had been a party to ‘written agreements, meetings, and other communications among asbestos defendants to conceal their knowledge of the dangers of asbestos from the public.’” In the case of the fossil fuel companies, as revealed in the Climate Deception Dossiers, they were clearly parties to overt agreements and communications to conceal what they knew about the dangers of fossil fuel burning from the public.
Of the various elements in Fig. II.4 that must be proven to prosecute a fraud case, one central question in a fossil fuel case would be establishing the “intend to defraud.” In United States v. Philip Morris, the D.C. District Court relied for this purpose “on indirect and circumstantial evidence indicating that the senior corporate officials knew that their public statements, and those that they approved for their corporations, were false or misleading, in part because those statements ‘were inconsistent with the internal knowledge and practice of the corporation itself.’” Another relevant precedent comes from the 1967 mail fraud case Lustiger v. United States, in which the Ninth Circuit Court ruled that “If a scheme is devised with the intent to defraud, and the mails are used in executing the scheme, the fact that there is no misrepresentation of a single existing fact is immaterial. It is only necessary to prove that it is a scheme reasonably calculated to deceive, and that the mail service of the United States was used and intended to be used in the execution of the scheme. Moreover, deceitful statements of half-truths or the concealment of material facts is actual fraud violative of the mail fraud statute.” Many claims made by astroturf organizations funded by the fossil fuel giants, attempting to undermine the credibility of climate change science in mailed documents, were nothing if not “half-truths, concealing material facts,” and “inconsistent with the internal knowledge” of the fossil fuel corporations themselves.
Perhaps even more challenging aspects of a mail/wire fraud charge against fossil fuel companies would be demonstrating that the plaintiffs in a civil suit, or the U.S. government in a criminal prosecution, justifiably relied on industry disinformation in choosing energy sources and is consequently losing “something of value.” The industry could credibly argue that consumer and government choices among energy sources have generally been based on cost, not on information about climate impacts. Furthermore, tangible losses of value in the present arise mostly from increasingly frequent severe storms, floods, droughts, forest fires, and heat waves, but any single one of these occurrences cannot be reliably connected causally to fossil fuel burning.
As Tucker points out: “A more comprehensive and accurate analysis would be to regard the ‘victim’ as society at large, since those who stand to profit from the continued emission of greenhouse gases enabled by the deception described above do so at the expense of the consuming public.” Defensible estimates exist of the likely future costs to the public at large from the continuing growth in greenhouse gas emissions. For example: “Rising costs due to escalating GHG emissions under a ‘business as usual’ scenario (that is, no meaningful reductions in rising GHG emissions due to regulation), combined with ‘mounting climate change impacts,’ are projected by the United Nations Environment Programme study to result in annual global externality costs of $21 trillion by 2050, 13 percent of global GDP… Those tangible property interests include real estate and improvements endangered by coastal flooding, loss of income associated with diminished tourism in areas negatively affected, crop failures due to drought, damage to infrastructure and private property from inland flooding and increasingly severe storms, as well as the considerable costs of avoidance or adaptation that places such as Tuvalu and the Cataret Islands in the South Pacific will incur to relocate their populations as sea levels rise, or that London may incur to build a new Thames Barrier.” But as this analysis suggests, both the GHG emissions that will cause these effects and the effects themselves are global in nature, not just affecting U.S. fossil fuel companies or U.S. consumers.
The more direct impact in the U.S. of the fossil fuel industry’s decades-long campaign to discredit the scientific consensus around climate change has been to scuttle and delay any legislation to regulate GHG or otherwise mitigate climate change. Tucker has thus been led to consider also a prosecution for “conspiracy to defraud the United States,” under a different statute than that covering mail and wire fraud. The relevant law “encompasses any conduct which would ‘interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest.’… Under the ‘defraud’ clause, the government must prove the victim of the fraud was the United States or an agency of the United States. Corporations as well as individuals may be held criminally liable under” this law.
The U.S. Supreme Court has heard various cases testing the breadth of interpretation of this law. One of the most relevant rulings comes from a 1910 case, Haas v. Henkel, where the Court ruled “that any conspiracy which is calculated to obstruct or impair [a government agency’s] efficiency and destroy the value of its operations and reports as fair, impartial and reasonably accurate, would be to defraud the United States.” And in this context, it is important to keep in mind that in the GCSCT Action Plan discussed in Section II, the express purpose “of direct outreach to teachers/students is to embed contrarian uncertainty in the collective mind of the general public in order to ‘erect a barrier’ against all future governmental efforts to address climate change.”
As evidence of the fossil fuel industry’s success in obstructing governmental functions on climate, Tucker offers this: “In Congressional hearings held in 1996, ‘contrarian’ witnesses were instrumental in convincing House Science Committee members to cut funding for NASA’s ‘Mission to Planet Earth’ by $400 million and the National Oceanic and Atmospheric Administration’s program researching the effects of warming on ocean ecosystems by one-third, and to entirely defund EPA’s global monitoring program to assess the impact of climate change on vulnerable ecosystems.” However, these unhelpful funding decisions were made by Congress under its Constitutionally mandated role to formulate the budget. Congress members partially funded by, and extensively lobbied by, the fossil fuel industry put up no resistance to denialist arguments, but they did not obstruct Congress from doing its job, they only contributed to its doing that job poorly. So, it would be a stretch to prosecute the industry’s lobbying efforts regarding agency budgets as evidence of “defrauding the United States.”
Perhaps a better case could be made on the basis of industry attempts to “destroy the value” of the periodic National Climate Assessment reports produced by the U.S. Global Change Research Program, under the auspices of thirteen federal agencies. These reports have been produced every several years and have highlighted with increasing urgency the likely severe outcomes within the U.S. from greenhouse-gas-driven climate change. The most recent report came out in 2018 during the Trump Administration, which completely disregarded its findings and recommendations. The Assessments themselves do not seem to have been swayed at all by the fossil fuel industry’s Action Plan. Many members of Congress and some U.S. administrations have, of course, been so swayed and have prevented meaningful bills to mitigate climate change or support adaptation efforts. But the Action Plan did not obstruct Congressional proceedings; the fossil fuel industry simply lobbied massively, and committed substantial resources to political donations (see Fig. IV.2), to convince the sympathetic Congress members that the uncertainties in climate science were so large that government action was, at best, premature. Prosecuting these efforts as a conspiracy to defraud the United States will be challenging. The massive lobbying, by the way, goes on in the European Union (Fig. IV.3), as well as in the U.S.
Although William Tucker makes his best case for criminal fraud prosecutions against the fossil fuel industry, he, too, seems unconvinced in the end that such prosecutions will succeed: “One may well wonder why this essential weapon of the prosecutor’s arsenal, thought to be vitally necessary to protect all our financial, cultural and governmental institutions from deceit in both small and large matters, is ineffective to prevent a massive deception pressed upon the general public of such scope and effect as to endanger the future of humankind itself.” Indeed, what may be necessary in the end to hold the fossil fuel giants accountable are more innovative state civil, rather than criminal, suits, akin to their suits against Big Tobacco to recoup Medicare and Medicaid costs related to smoking-induced illnesses.
V. civil vs. criminal prosecution
The majority of successful legal actions to hold corporations accountable for deceptive marketing and practices, and/or for toxic products, have been civil suits. For example, individual and class action liability suits, and in some cases state and federal civil suits for violation of laws, have succeeded in attracting billion-dollar settlements from a number of Big Pharma companies for drugs they marketed misleadingly, while hiding information about the drugs’ adverse health effects. Here are five prominent examples:
- In 2012, GlaxoSmithKline paid $1 billion as a criminal penalty and an additional $2 billion for civil liabilities under the federal False Claims Act, for unlawfully promoting and hiding safety data revealing serious adverse health impacts of three prescription drugs: Paxil, Wellbutrin, and Avandia.
- The Japanese pharmaceutical company Takeda (with a U.S. subsidiary) paid $2.37 billion to settle 8000 lawsuits filed by plaintiffs who got bladder cancer from their oral diabetes drug Actos.
- In 2009, Pfizer paid $2.3 billion to settle suits for illegally promoting several of their drugs.
- In 2013, Johnson & Johnson paid a $485 million criminal fine and $1.72 billion in civil settlements for illegal marketing of three of their drugs.
- In 2011, Merck pleaded guilty for its unlawful promotion of Vioxx and paid a $950 million settlement, in addition to being found guilty of making false claims about the cardiovascular risks of Vioxx (which had been withdrawn from market in 2004).
In our post on Toxic Product Defenders we have also chronicled the decades-long class action suits that finally led to multi-hundred-million-dollar settlements for DuPont Chemical and 3M for hiding the companies’ internal knowledge of serious deleterious health effects of PFAS “forever” chemicals, and to a $10.9 billion settlement by Bayer (which had absorbed Monsanto) for hiding information about the carcinogenic impacts of the chemical glyphosate in its weed-killer product Roundup.
In the case of gun violence, the firearm industry, particularly through its trade organization the National Rifle Association, has been such a powerful lobby that it has succeeded over the years to (a) effectively ban federal funding for gun violence research for two decades, (b) suppress public information regarding tracing of firearms used in crimes to the original seller and manufacturer, (c) see the passage in 2005 of a federal law (the Protection for Lawful Commerce in Arms Act, PLCAA) which provides broad immunity to gun manufacturers and dealers against possible civil liability in federal and state courts for crimes committed with their products. Thus, under normal circumstances, even civil suits against gun manufacturers are strongly suppressed.
Recently, however, families of children slaughtered in the Sandy Hook mass shooting have succeeded in getting courts to hear a civil lawsuit against the already bankrupt Remington Arms, the manufacturer of the Remington Bushmaster rifle used in the massacre of 26 children and teachers at the Sandy Hook elementary school. The suit is based on wrongful marketing that violated the state of Connecticut’s Unfair Trade Practices Act, whose penalties for “truly unethical and irresponsible marketing practices promoting criminal conduct” were not preempted by the federal PLCAA. The lawsuit resulted in a $73 million settlement reached with Remington’s insurers. California and New York, and perhaps other states as well, are currently attempting to pass state laws that allow civil suits against firearm manufacturers “for an act or omission in violation of the firearm industry standard of conduct.” Time will tell whether such state laws will be upheld by the Supreme Court in the face of the federal PLCAA.
Two important features are common to most of these large civil suit settlements: the lawsuits took decades to lead to the final settlements, during which the accused companies continued to rack up large profits from the products they marketed deceptively; and the companies generally admitted to no wrongdoing in reaching the settlements. Furthermore, as noted in a recent article on Corporate Crime and Non-Punishment, “when you impose a criminal [or civil] fine on a publicly traded company or large corporation, it’s paid by the shareholders. The shareholders, though, aren’t directing the corporation…so the deterrent mechanism doesn’t work.” Thus, industry executives continue to view these civil settlements as simply part of the cost of doing business, just as are the large legal and public relations expenses they incur for casting doubt on the science backing up claims of their deception and the substantial political contributions and lobbying expenditures they make to garner legislative resistance to regulation of their industry. So, civil suits get some recompense for customers who suffer from their products or for states that foot a significant portion of the unnecessary medical bills. But they have limited effect on changing industry behavior regarding transparency about the impacts of their products.
Criminal prosecutions could potentially provide a stronger deterrent to other corporations against deceptive marketing and concealment of internal research results that indicate safety problems for their products. But criminal prosecutions also face a higher burden of proof “beyond a reasonable doubt,” compared to the “preponderance of the evidence” standard for civil litigation. In actual practice, as shown in Fig. V.1, it is only a tiny fraction of reports of corporate ethical misconduct that are ever prosecuted in the U.S., and an even smaller fraction that lead to convictions. A significant fraction of attempts to prosecute simply end in negotiated deferred prosecution agreements, with which further prosecution is avoided in exchange for a financial settlement and perhaps implementation of internal corporate reforms, such as replacement of corporate leaders.
A recent paper describing some European attempts to hold tobacco corporations and executives criminally liable notes that: “criminal liability for corporations and their officers is a concept that is gaining momentum around the world, in many varied disciplines. This includes criminal liability for products that, like tobacco, are not in themselves illegal or banned, as illustrated by several examples below…Recently, housing authorities around the world have been criminally charged when [due to their negligence or failure to meet building codes] buildings have proven to be unsafe…criminal courts in both the USA and Italy are being used to stop the opioid epidemic… [a] CEO was found guilty of knowingly selling tainted peanut butter and sentenced to 28 years in prison” in association with a 2008-9 U.S. Salmonella outbreak traced to peanut butter contaminated by rodent droppings, dead insects, and a leaking roof.
In the case of the opioid epidemic, our previous posts on Purdue Pharma have noted how arduous it has been over a decade to hold opioid manufacturers liable for their years of hiding from the public their scientific evidence that opioids, including the Purdue Pharma product OxyContin, were potentially dangerously addictive. The opioid case is the one most similar to Big Tobacco suits. After years of legal attempts, here’s the totality of what Purdue Pharma and the controlling Sackler family, in particular, have been found liable for:
- In 2006, Purdue Frederick, but not Purdue Pharma, pleaded guilty to a single felony charge of misbranding, for which they had to pay a fine of $600 million. Had a guilty verdict for the same charge been delivered against Purdue Pharma itself, the company would have subsequently been barred from doing business with government organizations such as Medicare, OxyContin would most likely have been pulled from the market, and the worst of the opioid crisis might have been avoided;
- three Purdue Pharma executives (but no Sacklers!) each pleaded guilty to one misdemeanor count of misbranding, and were barred from doing business with any taxpayer-funded health care program for 20 years;
- in a 2020 agreement resulting from lawsuits pursued by many U.S. states, Purdue Pharma pleaded guilty in federal court to one felony count of conspiracy to violate the Food, Drug and Cosmetic Act, and two felony counts of conspiracy to violate the Federal Anti-Kickback Statute;
- Purdue Pharma was levied a criminal fine of $3.544 billion and additional $2 billion in criminal forfeiture, and was converted to a “public benefit company;” by that point the company’s net worth was under $1 billion, since the Sacklers had spent the preceding decade systematically siphoning funds from the company and moving them to private overseas accounts;
- some (but not all) of the states involved in the suits have agreed to release the Sackler family from further lawsuits, in return for their “contribution” of $4.5 billion to opioid abatement;
- the Sacklers have admitted to no wrongdoing themselves;
- the consulting firm McKinsey & Company has agreed to a $573 million settlement for their advice to Purdue Pharma about OxyContin marketing, but also will not admit to any wrongdoing;
- Johnson & Johnson, which also marketed opioids, has agreed to pay $230 million to settle New York lawsuits against it and to permanently stay out of the opioid business in the U.S.
And what of those European attempts to prosecute tobacco executives criminally? European governments have certainly demonstrated greater zeal, and less susceptibility to industry lobbying, than the U.S. in holding Big Tech companies liable for violations of European privacy laws. In two recent examples, the “Privacy Shield” protocol used to transport data from the EU to the U.S. was ruled illegal and Google Analytics was found to have violated the EU General Data Protection Regulation. These results might suggest that there would be a better chance of prosecuting Big Tobacco in Europe, but the results to date are not so encouraging.
In the Netherlands, criminal prosecution against tobacco companies was urged by an advocacy group called Sick of Smoking, including many hospitals, professional organizations, the Dutch Cancer Society, Lung Foundation Netherlands, and the city of Amsterdam, together representing more than a million people. “The proposed charges were attempted murder, manslaughter, aggravated assault and forgery by an industry that knowingly makes its cancer-causing tobacco products extremely addictive…After careful consideration, the Public Prosecutor decided not to proceed. The plaintiffs…appealed to ask the judge to order the Public Prosecution Service to prosecute…The judge agreed that the arguments of the plaintiffs were correct, but that the solution should be sought through the legislature, given that tobacco is [for now] a legal product.”
In France, the Comité National Contre le Tabagisme (CNCT) has proposed criminal charges against Philip Morris and its CEO, for “being deceptive by introducing micro-perforations in cigarette filters, which falsified the measurements conducted by the National Testing Laboratory, which intends to control the content of tar, carbon monoxide and nicotine in cigarettes.” The original complaint was judged inadmissible, because the CNCT could not claim that its own physical integrity was at risk from the cigarettes. But it has been resubmitted with an individual now as the plaintiff.
The lesson from all these cases is that it has been enormously challenging to convict large corporations and industry groups of fraud or other felonies, despite their clearly intentional disinformation campaigns, often hiding from the public scientific information critical to adverse effects on public health that were available within the companies’ internal documents, as revealed under legal discovery. Only in the RICO civil suit United States v Philip Morris has fraud been alleged for concealment of scientific results and successfully prosecuted. But even then, while the industry was severely constrained in its future marketing efforts, no executives went to jail. And the Master Settlement Agreement established a large monetary penalty in perpetuity, which still is dwarfed by profits the industry ran up during decades of intentional disinformation campaigns to defraud the public about the deleterious health impacts of their products, and to get them hooked on nicotine.
Large industries have enormous resources at their disposal to commit to those disinformation public relations campaigns, to widespread advertising, to lobbying and political contributions to members of Congress and state legislators, to large legal teams adroit in dragging out litigation and usually defeating individual consumer lawsuits, and to dangling lucrative industry positions to members of the regulatory teams supposedly providing oversight of their operations. All of these advantages lead offending industries to make the bet that their profits will far exceed any eventual legal liabilities and penalties. In opposition to those resources, litigation currently offers the best chance to achieve some measure of accountability. But the achievable penalties are seldom enough to deter corporations from following Big Tobacco’s template for sowing doubt about science that threatens their bottom lines.
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