US States And Communities Are Suing Big Oil For Its Damaging Climate Lies. Will The US Federal Government Follow Suit?

Lawyer who led the federal case against Big Tobacco tells Congress a Justice Department probe against the petroleum industry is appropriate.

As climate change deception lawsuits filed by US states and municipalities against oil and gas majors continue to wind their way through the courts, pressure is building on the federal government to initiate legal action against the fossil fuel industry. This comes as a congressional investigation has unveiled new evidence of what lawmakers say is an ongoing campaign of corporate fraud to delay effective climate action.

“Our investigation uncovered compelling evidence of aggressive industry deceit which continued long after Big Oil gave up on its outright climate denialism,” Rep. Jamie Raskin, a Democrat from Maryland and Ranking Member of the House Committee on Oversight and Accountability, said during a Senate Budget Committee hearing on Wednesday, May 1. “Fossil fuel companies publicly claim to be partners — if not leaders — in fashioning climate solutions, but our investigation exposed that as a fraud. Big Oil is not addressing the climate crisis, but profiting from it, and using a lot of its mammoth resources on continuing campaigns to insulate its carbon-based business model.”

Raskin and Senate Budget Committee Chairman Sheldon Whitehouse (D-RI) used the hearing to highlight findings based on subpoenaed industry documents obtained during a three-year investigation launched by House Democrats examining Big Oil’s sordid strategies to pollute the public discourse and impede the energy transition. From sponsoring academic research supporting its preferred purported climate solutions to engaging in extensive greenwashing through ad and PR blitzes, the industry continues to mislead the public on climate and is lying about its commitment to addressing it, internal documents indicate.

“Just as it was the case with the tobacco industry, the petroleum companies’ internal documents tell the story,” Sharon Eubanks, an attorney who led the US Justice Department’s successful civil lawsuit against Big Tobacco, said during the hearing. She testified about the striking similarities between Big Tobacco and Big Oil in their deception campaigns and emphasized that oil companies should be held legally liable just as cigarette companies ultimately were.

“At the core of the liability issues for the fossil fuel industry is that no company has acknowledged, just as the tobacco companies refused to acknowledge, that the product is the problem,” Eubanks said. She called for further federal investigation of fossil fuel companies, suggesting the Justice Department – the world’s largest law office – should open a probe and consider prosecuting Big Oil like it did with Big Tobacco.

“The similarities between the conduct of the tobacco industry and the petroleum industry form a solid and appropriate basis for investigating the petroleum industry. Furthermore, we should not waste more time wringing our hands,” she said. “There is certainly an adequate legal foundation for litigation against this industry.”

The federal tobacco litigation was a civil racketeering case, based on a statute called RICO (Racketeer Influenced and Corrupt Organizations Act) that has been used to prosecute mob bosses and organized crime. Several climate liability cases currently pending against Big Oil, including suits brought by Puerto Rican municipalities and the city of Hoboken, New Jersey, feature racketeering claims. Eubanks pointed to RICO law as well as conspiracy claims and consumer protection statutes when asked by Vermont Senator Bernie Sanders about legal grounds for holding oil companies accountable.

“If you were Attorney General of the United States, would you proceed in that direction?” Sanders then asked.

“I would yes, no question,” Eubanks responded.

Last July amidst record-breaking extreme weather, during what has been called the “summer from hell,” Sanders, Whitehouse, and Rep. Alexandria Ocasio-Cortez discussed the pressing need to hold corporate carbon polluters accountable for their deceit and obstruction of climate policies. “I would love to see the Department of Justice bring exactly the kind of litigation that it won against the tobacco industry for lying about the dangers associated with its product,” Whitehouse said. Sanders agreed and said they should pay Attorney General Merrick Garland a visit to request that his Justice Department take action.

Yet so far, the Department has been silent on the matter. When asked by Climate in the Courts if the Department of Justice will consider opening an investigation into the petroleum industry’s deception, as Eubanks recommended in her testimony, a DOJ spokesperson declined to comment.

But youth climate activists are amplifying calls for the Biden administration to get off the sidelines.

“Sunrise is demanding President Biden deliver for young people and the planet by declaring a Climate Emergency and suing Big Oil for their lies and harm they’ve caused our communities,” the Sunrise Movement wrote in a new fundraising email. Sunrise campaigners say Biden should stand up to the industry “the same way the federal government did to Big Tobacco.”

Honolulu Responds to Oil Companies’ US Supreme Court Petition

State lawsuits against the tobacco industry seeking to recover tobacco-related public health costs preceded the federal Big Tobacco litigation and resulted in the landmark $206 billion Master Settlement Agreement in 1998.

Similarly, states and local governments are currently suing fossil fuel companies aiming to recover climate-related costs stemming from a decades-long campaign of deception and to hold the industry liable for alleged consumer fraud. A case brought by the Commonwealth of Massachusetts against ExxonMobil alleging violations of the state’s consumer protection statute is currently in pre-trial discovery and nearing trial. The other case that is furthest along procedurally is one brought by the city and county of Honolulu, Hawaii against nearly a dozen major oil and gas companies. That case is on the verge of entering discovery in earnest, having surmounted defendants’ motions to dismiss. Last fall the Hawaii Supreme Court upheld the decision against the companies denying their motions to dismiss, but the defendants are now mounting a US Supreme Court challenge to the ruling. In their petition to the US Supreme Court, oil company lawyers urged the Court to “put a stop” to climate deception cases that they claim are an attempt to regulate interstate greenhouse gas emissions. Attorneys for Honolulu pushed back against this interpretation of their case in their response to the petition filed on May 1.

“As the Hawai‘i Supreme Court explained, petitioners mischaracterize the complaint as seeking to regulate pollution,” the response argues. Rather, Honolulu says, the case is squarely about the companies’ deceptive practices. As stated in the response’s introduction: “This case seeks to hold petitioners liable under Hawai‘i tort law for deliberately concealing and misrepresenting the climate change impacts of their fossil fuel products.”

It is now up to the US Supreme Court to decide whether to take up the oil companies’ petition.