Some advocacy groups see a wrinkle in using the Racketeer Influenced and Corrupt Organizations (RICO) Act to prosecute corporations that have allegedly misrepresented climate science in the past, according to private emails of climate scientists.
The emails were released Friday by the Energy & Environment Legal Institute (E&E Legal), a Washington, D.C.-based advocacy group that is opposed to climate change regulation and frequently files lawsuits to seek the emails of climate scientists.
In a batch released Friday, some questioned the tactic advocated by Sen. Sheldon Whitehouse (D-R.I.) and others to sue fossil fuel companies for fraud.
"Deception/disinformation isn’t itself a basis for criminal prosecution under RICO," wrote Peter Frumhoff, director of science and policy at the Union of Concerned Scientists (UCS), in an email. "We don’t think that Sen. Whitehouse’s call gives enough of a basis for scientists to sign on to this as a solid approach at this point."
But UCS strongly supports investigations by state attorneys general into the climate accountability of leading fossil fuel companies, Frumhoff said in an interview. As to specific tools such as RICO, he remains agnostic and leaves the issue to legal experts, he said.
"We have vast evidence of deception and disinformation on the part of companies, and personally it strikes that it had tremendous impacts on public policy and public understanding to the detriment of the public good," he said.
The email release is part of a broader fight between two opposing camps: political conservatives who support free markets and environmental groups that are launching a new era of novel litigation against energy companies.
Scientists targets of hate mail
Following revelations last year by InsideClimate News, Columbia University’s journalism school and the Los Angeles Times that Exxon Mobil Corp. misrepresented climate science to the public for decades despite having a long history of in-house climate research, some Democrats and lawyers have called on the Obama administration to investigate Exxon under RICO. Big Tobacco, which misrepresented health research about the health damages of its products, was held previously liable under RICO (Greenwire, May 6).
"The parallels between what the tobacco industry did and what the fossil fuel industry is doing now are striking," Whitehouse wrote in a commentary in The Washington Post last year.
In September, some in the science community joined in the political fray. Spearheaded by Jagadish Shukla, a climate scientist at George Mason University, and Edward Maibach, a communications scientist also at GMU, 20 scientists published a public letter suggesting the use of RICO to prosecute corporations.
The blowback was immediate and damaging, emails show. The scientists received voluminous hate mail and phone calls. Conservative bloggers decried the letter and accused the scientists at GMU, a publicly funded university, of using taxpayer money for lobbying purposes.
Within weeks, E&E Legal used Virginia’s open records law to request that GMU release the scientists’ emails.
Following legal challenges, the emails were released Friday. They show the fierce professional attacks against climate scientists who get involved in policy continues. Shukla and Maibach, it appears, were unprepared.
Shukla did not respond to requests for comment by deadline. Maibach said that he stood by his letter.
"I believed at the time — and continue to believe — that a federal RICO investigator deserves consideration," Maibach said in an email.
"I’m not a lawyer, but prominent lawyers like Senator Sheldon Whitehouse and Sharon Eubanks — who successfully prosecuted the tobacco companies in the federal RICO case — have endorsed the possibility of using RICO against fossil fuel companies," he said.
‘Slim to none’ chance of a DOJ case
It was Shukla’s idea to release an open letter on misinformation by fossil fuel companies. Shukla, a co-author of the Intergovernmental Panel on Climate Change
assessment reports, had never before engaged in any political debate and requested his colleague Maibach’s help.
"I am a novice on such matters," Shukla wrote in one email to Maibach. "In the past I had taken the view that perhaps I can be more effective as an educator if I were not engaged in political debates/actions.
"I have changed my mind (with regrets as to why I waited so long!)," he continued, "and I have decided to get fully engaged in this process, not just the climate change issues but even the larger issues of inequality and social justice."
Maibach consulted with his former colleague — David Michaels, assistant secretary of labor for Occupational Safety and Health Administration — who has written a book on the tobacco industry’s attack on science. Michaels said the RICO case would be weak, Maibach wrote.
"[Michaels] feels the odds of the DOJ pursuing this case against industry are slim to none, because there are no easily quantifiable (health care) costs that the government can seek reimbursement for," he wrote.
Still, he would support Whitehouse’s call for a RICO investigation, Maibach wrote. He also asked UCS if it would be willing to sign on.
It declined. UCS later signed a letter calling on the Department of Justice to more broadly investigate Exxon, said Frumhoff of UCS in an interview.
"As scientists at the time, we didn’t feel like we had an understanding of the legal issues surrounding RICO to make that consideration," he said. "I’m personally agnostic about what legal tools they decide make sense, if any."
Unprepared for the blowback
Once the letter went public, the scientists soon realized they had stepped into hot water. In an email to Maibach on Sept. 21, 2015, Alex Bozmoski, director of strategy at RepublicEn, a conservative advocacy group that supports a carbon tax, explained why the calls for RICO politicize climate policy.
"The RICO stuff touches a sore spot with conservatives," he wrote. "Andrew Moylan, the executive director of R Street stood up at Whitehouse’s [American Enterprise Institute] event and said something like, ‘how do you ever expect us to trust you when you’re out there threatening RICO…’ And he’s for a carbon tax."
Some scientists also took offense, according to an email sent by Maibach. Peter Webster, a climatologist at the Georgia Institute of Technology and the husband of Judith Curry, also a climate scientist at the same university, wrote to Shukla asking him to retract the letter.
Curry and some other scientists thought the letter made them targets, as well, according to the email.
Shukla considered retracting the letter to make the pain go away, the email states. He had not realized how bad the blowback would be.
"I am really sorry I had no idea where will it go," Shukla wrote in an email to Maibach on Sept. 25, 2015.
On Sept. 29, the Competitive Enterprise Institute and E&E Legal filed an open records request to GMU for the scientists’ communications. The scientists argued in court that the letter was created during personal time and was not a university work product.
On Oct. 1, House Science, Space and Technology Chairman Lamar Smith (R-Texas) launched an ongoing investigation into a defunct nonprofit that Shukla once helmed for allegedly misusing federal funding to do lobbying (E&ENews PM, Oct. 1, 2015).
Advocates defend scientists
Advocates for climate scientists criticized the Virginia trial court judge’s decision in April to make the emails public.
Lauren Kurtz, executive director of the Climate Science Legal Defense Fund (CSLDF), accused E&E Legal of a history of indiscriminately filed "massive and harassing" open records requests for climate scientist emails.
"I think the record clearly shows that Dr. Maibach’s involvement in the letter had nothing to do with his research or teaching work," Kurtz said. "It appears that, to this judge, all public university professors, should they have personal interests with topical similarities to their public work, will therefore have their personal materials effectively become public materials. This has some pretty alarming repercussions."
David Schnare, director of the Free Market Environmental Law Clinic, which represented E&E Legal in the lawsuit, said that while information related to research should be legitimately protected from open records requests, emails related to advocacy should not.
"When professors voluntarily enter the policy arena, particularly in this case when they use their positions specifically to advance a political agenda, they are no different than any other government employee and the law treats them accordingly," he said.
The decision also contradicts an earlier decision by the Virginia Supreme Court in the case of Michael Mann, a former climate scientist at the University of Virginia, Kurtz said (ClimateWire, April 21, 2014).
In that case, the court ruled that correspondence about scientists work is proprietary because disclosure would do "harm to university-wide research efforts, damage to faculty recruitment and retention, undermining of faculty expectations of privacy and confidentiality, and impairment of free thought and expression."
"The trial court’s decision here gives no explanation for this complete departure," Kurtz said.