Climate, Oil and RICO: Some Questions and Answers

Here are some questions and answers about a letter to the US President, Attorney General, and science advisor with a proposal to investigate fraud related to climate science. This page represents my own thoughts, and does not necessarily represent the opinions of the other signers.

-Barry A. Klinger

What are we asking the government to do?

I recently signed a letter by J. Shukla et al. which urged the US Attorney General to use RICO (Racketeer Influenced and Corrupt Organizations Act) to investigate "corporations and other organizations that have knowingly deceived the American people about the risks of climate change, as a means to forestall America's response to climate change." The letter referred to an Op-Ed by Senator Sheldon Whitehouse making the case that since the climate campaigns of the fossil fuel industry "are often compared to those of Big Tobacco denying the health dangers of smoking," and "since Big Tobacco's denial scheme was ultimately found by a federal judge to have amounted to a racketeering enterprise," there is a good possibility that the fossil fuel industry is guilty of similar practices.

The Union of Concerned Scientists summarizes some ways in which companies in the fossil fuel business have been funding scientists and think tanks working to convince the public that humans aren't changing the climate, even though a key player -- Exxon -- has internal documents admitting the likelihood of human-caused global warming. Meanwhile, when Exxon planned future operations in the Arctic, they took into account the very global warming their company-funded organizations were publically saying wasn't going to happen.

Do we think that climate change is settled science? Should climate contrarians have free speech?

First question: no. Second question: yes.

I think there are many open questions regarding global warming. See A Skeptics Guide to Global Warming for a discussion of "settled science." In general, scientists, policy experts, and interested citizens should be free to say whatever they want, even if they disagree with me and even if they disagree with most scientists in their field.

A RICO suit like the one we propose would be very narrowly focussed on whether companies were engaged in fraud in order to continue selling a product which threatens to do harm. I'm not a legal expert, but I think that anyone not selling a product or service can not be punished for fraud, so the vast majority of people opining on climate are not even theoretically threatened by such a case. Even for an oil company, the standard for finding fraud is quite high. According to the RICO judgement against the tobacco companies:

Generally, a plaintiff must prove five elements by "clear and convincing evidence" to prevail on a fraud claim. See e.g., Armstrong v Accrediting Council Continuing Educ. & Training, Inc., 961 F. Supp. 305, 309 (D.D.C. 1997). They are: (1) a false representation, (2) in reference to a material fact, (3) made with the knowledge of its falsity, (4) with the intent to deceive, and (5) on which action is taken in reliance upon the representation. ( p. 1564)

What do we want to do to climate contrarians?

No one is trying to throw anyone in jail. Our model is the civil (not criminal) tobacco suit which previously used RICO. If I understand the case correctly, the final outcome of the judgement against tobacco companies was to order them to stop denying known harms of smoking and to publicize the falsity of their fraudulent statements. I expect that a case against fossil fuel companies, if it ever did prove fraud, would result in a similar judgement.

Should free speech apply to all sides of a debate?

I sympathize with the fear that the legal system could be inappropriately applied to squelching the free speech of scientists. I would strongly oppose a widening of the scope to anyone unrelated to the efforts of a company selling a product (for which there is a lot of case law about commercial exceptions to free speech).

However, some of the blogs lambasting a distorted version of the RICO letter seemed perfectly satisfied with having Michael Mann be subject to ideologically-based legal harrassment from then-Virginia Attorney General Ken Cuccinelli as well as from Republicans in Congress. Apparently there are some who believe it is the return of the Inquisition to investigate a giant corporation but a good deed to investigate an individual scientist. [Note correction from earlier version.]

9/22/15 Update: Do We Work at "Alarmist" Institutions?

(Based on a reply to a press inquiry)

Dr. Shukla is a founder of Institute of Global Environmental and Society (IGES). IGES was set up as a private, non-profit, government-funded research laboratory hosting a research team known as Center for Ocean-Land-Atmosphere Studies (COLA). A number of scientists hold positions in both COLA and in the Atmospheric, Oceanic, and Earth Sciences Department (AOES) at George Mason University. Recently COLA has become part of the University as well.

The main focus of research at IGES and for many faculty at AOES has been natural variability such as El Nino and monsoon rainfall, and not global warming (though individual faculty members have also worked on global warming). Dr. Shukla and the rest of us are studying just the kind of phenomena that critics of anthropogenic global warming say scientists should be studying: natural cycles. I think it is telling that in informal discussions within our department, people whose reputation and funding is not primarily staked on global warming still think it's reasonable for IPCC to conclude that it is extremely likely that much of 20th century warming is anthropogenic.

9/22/15: Does Government Funding Compromise Research Results?

If someone is trying to make a parallel between oil company funding and government funding of climate change research, they are overlooking the obvious difference, which is that some results may threaten the entire purpose of oil companies but not of NOAA and NSF. The government has been paying scientists to study climate long before Al Gore came along, and climate funding would continue even if we reported that global warming was less of a problem than we thought.

I signed the letter under the assumption (which I still think is valid) that any RICO investigation into climate funding would be a relatively limited affair, like the tobacco one was (as far as I know). It would be wrong if, contrary to my expectation, this became environmentalist harassment of scientists like past conservative investigations of some scientists. And it would be a shame if people on both sides of these issues dive into personal attacks which will further polarize debates that are already too polarized.

9/22/15: Who is a Skeptic?

I have a question for those who believe there is a conspiracy to promote global warming in the scientific literature. What do you suppose would happen to a paper entitled:

A Significant Component of Unforced Multidecadal Variability in the Recent Acceleration of Warming

(Humans only contribute to the "forced" variability, so the "Unforced Multidecadal" part is natural). Furthermore, how about if the Abstract of that paper said the following:

...internal multidecadal pattern (IMP) is stochastic... and is of sufficient amplitude to explain the acceleration in warming during 1977-2008 as compared to 1946-77.

In other words, a random, natural process made a big increase in the warming seen in the late 20th century. What would be the fate of this paper? Rejected? Suppressed? Actually it was published in a leading AMS journal. The authors of this paper: Timothy DelSole, Michael K. Tippett, and Jagadish Shukla.

The paper does not challenge the existence of anthropogenic global warming, but it does demonstrate that Shukla and his colleagues can and do publish work that goes against the idea that global warming is completely due to humans. Contrary to perceptions in some circles, there is a large middle ground between "warmists" and "deniers", because skepticism is a central feature of the culture of science and scientific understanding is usually more complicated than the political debate makes it out to be.

9/29/15: Correction and Update

Modifications: 29 September, 2015; 9 May, 2016.