Gerald Torres, a professor at Cornell Law School, spoke at a panel discussion on climate litigation at the Columbia Law School Monday night. Photo credit: Karen Savage

By Karen Savage

The recent study linking the largest 90 carbon producers with specific percentages of the rise carbon dioxide, global temperature and sea level rise is more than just an advance in climate science. According to some experts, it is potentially strong evidence in a Racketeer Influenced and Corrupt Organizations (RICO) case against the fossil fuel industry.

Attorney Sharon Eubanks, who led the RICO case against the tobacco industry for the Department of Justice, said the study is good, solid science and believes a RICO suit could succeed in holding the fossil fuel industry responsible for climate change.

“We’ve already been there, there’s a blueprint for a RICO lawsuit,” said Eubanks. “This is something I think should be considered to make the companies provide equitable relief.”

Eubanks spoke at a panel discussion on climate liability Monday at the Columbia Law School, an event organized by the Sabin Center for Climate Change Law, Earth Institute, the Union of Concerned Scientists and the New York City Bar Association’s International Environmental Law Committee.  

While not all panelists agreed that the issue of climate change can and should be tackled through the courts in the United States, Eubanks said behavior by Exxon and other fossil fuels appears to fulfill the legal requirements for a RICO suit.

“Exxon funded climate denial long after its own scientists knew and determined that climate change was real. They knew it and they hid it,” said Eubanks, adding that the company’s misinformation campaign was not conducted alone, was associated with other groups and associations and it was done for profit.

“Exxon misled investors and the public about the risks of climate change and this was all about the bottom line, it was all about money,” Eubanks said.

“They lobbied to prevent new regulations that might be costly to the petroleum industry,” she said, adding that that pattern of behavior appears to be continuing to this day.

The potential legal remedies extend beyond RICO suits, several panelists said, and include suing for damages to natural resources and public trust cases like the ongoing Our Children’s Trust lawsuit against the federal government.

Defense attorney Thomas A. Lorenzen, a partner in the firm Crowell and Moring, said the legal issues were not so clear-cut.

To make a point, he asked who in the audience avoids using electricity, and when no one said yes, he said it was impossible to single out the producers.

“If we impose liability on BP or on Exxon Mobil or on Arch Coal, what is to stop them from including every one of you as a defendant who is also responsible for the damage from having used the product,” he said, adding that we are all in some sense responsible for damages to the planet.

Peter Frumhoff, director of science and policy for the Union of Concerned Scientists said certain institutions and companies are more responsible because they had choices unavailable to private citizens.

“We use energy in our daily lives, but we don’t chose to use fossil fuels, we have a limited palate of options by which we can make energy choices precisely because of the decisions made by companies to avoid regulation of their products, knowing full well of the risks,” Frumhoff said. He added that fossil fuel companies understand the damage their products do to the climate, information most people do not have.

Unlike other panelists, Lorenzen said the judicial branch may not be the proper place to resolve the issue and said he favors a legislative solution such as carbon pricing.

“Allowing a court to try to resolve it would really show insufficient respect for another branch of government,” he said, adding that Congress has had many opportunities to address climate change, including the unsuccessful Waxman-Markey Bill, which would have established a carbon tax.

Cornell law professor Gerald Torres said he would like to see society moving away from fossil fuels, a transition that has already started, even in heavy fossil fuel-producing states.

“Texas, which likes to present itself as an oil and gas state on windy days produces almost 28 percent of its electricity from wind,” he said.

“They can still swagger and pretend they’re oilmen, but in fact, they’re wind men.”  

Eubanks said fossil fuel companies may already have solutions to some climate change issues, but they have not shared them with the public.

“We don’t know because we haven’t had disclosure of all these documents, what they were doing and what they know,” she said. “It may help us in resolving some of these issues and may expedite some type of resolution to help the planet.”

Frumoff said companies should pay their fair share relative to the amount of damages they caused, as outlined in the recent study, and should be prevented from causing future damages.

“A just result is that the ability of these companies to thwart sensible restrictions on their dangerous products would be reduced so that they’re no longer able to be effective at constricting the U.S. political system, for example, from taking sensible actions to restrict the harms of their products,” said Frumhoff.

Lorenzen said solutions are already happening without any government influence.

“People are moving toward better sources of generation and that is happening because of market forces, it’s happening because of state renewable portfolio standards, it’s happening because companies do business globally and they need to meet global challenges and market their products everywhere,” he said. “They answer to more than just the United States these days.”  Lorenzen drew groans from the audience when he called the rise in natural gas use a “step on the way” to the future even though gas is also a fossil fuel that contributes significantly to global warming, even it if is less polluting than coal.

Eubanks questioned the effectiveness of legislation and said companies like the tobacco industry and the fossil fuel industry are resistant to change without being compelled because it endangers their profits.

“Bringing parties to the table to discuss these matters and to figure out some resolution to save the planet is not a bad idea,” said Eubanks. “And if you have to litigate to do it, more power!”