Mistakes We Should Not Repeat: Part 3

Mistake 3: Ignoring The Tobacco Model

Photo by Mathew MacQuarrie on Unsplash

Another missed climate opportunity in the Obama administration came from DOJ. It is well documented that the fossil fuel climate denial apparatus was developed from the tobacco industry’s scheme to deny its own product’s dangers. The tobacco denial operation’s people, organizations and tactics were taken up by the fossil fuel industry and switched over to climate denial. Consider the likelihood that there is a legitimate field of study comprising expertise in how tobacco is not actually bad for your health and how fossil fuel emissions don’t actually damage the planet’s climate. There is almost no nexus, except the necessary propensity to lie.

The collapse of Big Tobacco’s denial operation was accelerated by a lawsuit brought by the United States Department of Justice alleging that the tobacco denial operation was a massive fraud. Begun under President Clinton, and won under President Bush, the lawsuit was brought under civil provisions of the RICO statute. The tobacco denial operation — the one that the fossil fuel industry took over — was found to have been a fraud. Read the complaint and the court decisions, and it’s obvious how readily DOJ’s civil RICO tobacco model applies to the fossil fuel industry’s climate denial operation.

But the Obama administration would not make any serious effort to pursue the victorious tobacco model. I asked the Attorney General to have a look, and she said she would. But there was no honest look. I’ve never gotten straight answers, but as best I can tell DOJ never assigned a lawyer to the matter; DOJ never contacted any of the experts who study climate denial; DOJ never sought advice from its lawyers who won the tobacco case; and DOJ never asked for a single document in discovery. The explanation given for this failure was the difficulty of meeting the high criminal standard of proof “beyond any reasonable doubt.” But the tobacco case was civil. You just had to read the federal judge’s decision in the tobacco case to see that the standards of proof were civil: “preponderance of the evidence” or “clear and convincing evidence.” The explanation confirms they never took an honest look.

I don’t know what compelled the Obama DOJ to take a dive, with such a powerful precedent from its own previous tobacco victory. But when you don’t even know the proper standard of proof, you really haven’t tried.

In the years since, the fossil fuel industry ran what is likely the largest covert information and political manipulation operation in history, using that covert operation to fend off emissions limits as its pollution filled the skies and poisoned the oceans. We never made the effort the law allowed to look behind the curtains of that covert scheme and investigate whether it too was a fraud.

It would not have been easy, I know. The United States District Judge Kessler’s decision finding that the tobacco industry committed fraud exceeded 1600 pages. The fossil fuel industry’s denial scheme was even more complex. But difficulty is no reason to walk away from an important fight. And there would have been endless howling in the press from fossil fuel mouthpieces, just like tobacco interests had howled. But fear of criticism, particularly when it’s bad faith strategic criticism, is no reason to walk away from an important fight. We will pay a terrible price in planetary consequences for those lost years, lost in part because we walked away from that important fight without taking an honest look.

U.S. Senator from Rhode Island, the Ocean State.