Alejandro Granadillo/AP Photo
Playa Salinas is flooded following Hurricane Fiona in Salinas, Puerto Rico, September 19, 2022.
Sixteen Puerto Rican municipalities have filed a first-of-its-kind lawsuit against some of the largest oil companies in the world, including ExxonMobil and Shell. The municipalities suing include Bayamón, the second-largest on the island, and together they have accused more than ten oil companies of a coordinated disinformation campaign that amounts to a violation of the United States’ Racketeer Influenced and Corrupt Organizations (RICO) Act.
Lawsuits are a popular tactic in the battle for the climate. Working the legal system has borne fruit for environmental justice advocates many times over the years. Climate lawsuits aim to use the law to force change, awareness, and retribution in the form of damages.
Such lawsuits have been stalled time and time again, whether through use of legal loopholes or procedural tricks that delay the case for years if not obstruct it entirely, which also costs plaintiffs heavily in legal fees. Oil companies in particular have been the subject of dozens of lawsuits over the years, and they have consistently managed to tie them up in court.
But the suit Municipalities of Puerto Rico v. Exxon Mobil Corp. et al. truly is one of a kind. It builds on the experience of decades of climate litigation in facing the legal trickery that fossil fuel companies have used to delay justice indefinitely. As a result, Municipalities will likely force the companies to actually answer for their actions and defend themselves.
The lawsuit alleges that oil companies have engaged in a coordinated disinformation campaign that violates the RICO Act and should render the municipalities liable for damages due to the destruction caused by climate change. The plaintiffs allege that the companies were not only aware of their products’ potential harm to the environment, but that they coordinated to downplay the effects and sabotage climate legislation. The result, the municipalities allege, is billions of dollars of damage and numerous deaths, specifically those caused by the 2017 hurricane season in which Hurricane Maria laid waste to the island.
The Center for Climate Integrity estimates that more than 40 states and municipalities have filed lawsuits against major oil and gas companies. This previous climate litigation has largely fallen into two categories: consumer protection and cost recovery. Consumer protection lawsuits allege that gas and oil companies have engaged in deceptive and misleading practices to sell their products to the public; these suits have been repeatedly brought by state’s attorneys general. Cost recovery seeks to hold the companies liable for damage that their practices have inflicted on specific communities, such as when Maui County, Hawaii, sued more than a dozen companies for damages in 2020. Some suits allege both claims, as the city of Charleston, South Carolina, did when it sued 24 fossil fuel companies in 2020.
As Karen Sokol, law professor at Loyola University New Orleans, explained to the Prospect, these are state law claims, and they have been appropriately filed in state courts. But fossil fuel companies have managed to tie up these suits with jurisdictional questions, consistently imploring courts to move the cases to federal courts. The companies claim that because the claims are of national interest, the case is for the federal courts and not the jurisdiction of state courts. In August of last year, the U.S. Circuit Court of Appeals in Philadelphia said in no uncertain terms that these issues should be dealt with in state court. As NPR reported, this was the fifth time fossil fuel companies have received this decision.
The lawsuit alleges that oil companies have engaged in a coordinated disinformation campaign that violates the RICO Act.
“Nevertheless, the industry basically plays wars of attrition,” Sokol said. “They’re happy to keep this up in jurisdictional battles.” Sokol also noted that were these companies able to successfully get the cases moved, they would likely argue that climate change is not a question for any court at all, and instead the purview of legislators.
Despite the cost, this tactic is beneficial to the companies because it delays the process and keeps the cases from being put in front of a jury for a longer amount of time. Moreover, oil companies of course have much deeper pockets than municipalities or climate justice groups, so delays benefit the defendants. This legal back-and-forth has kept climate litigation from moving forward for years.
Municipalities, like past climate litigation, seeks damages and claims product deception. But the suit, which was filed by the law firm Milberg Coleman Bryson Phillips Grossman PLLC—a top corporate malfeasance law firm—has taken a slightly different approach that may prove critical.
Municipalities filed directly to federal court, which skirts around the ability of fossil fuel companies to tie up the case in a jurisdictional fight. Key to this is the RICO Act violation that has been alleged in addition to the state claims of consumer law fraud.
The RICO Act was passed in 1970 to combat organized crime. It allows for prosecution and civil penalties for engaging in coordinated illegal activity. An enterprise violates RICO if it has engaged in racketeering activity, particularly through mail and wire fraud. The RICO Act also allows for the linking of seemingly unrelated activity in the interest of an overall crime, known as the conspiracy provision.
RICO was successfully leveraged against Big Tobacco in 2006 in a case brought by the Department of Justice, but a RICO violation has never been alleged in a climate change lawsuit.
In Municipalities, the plaintiffs allege that, despite fossil fuel companies being competitors, the companies have coordinated to knowingly disseminate false information related to their products.
The plaintiffs provide a mountain of evidence in the 200-plus page complaint. Key to the RICO allegation is the existence of the Global Climate Coalition (GCC), an organization put together to oppose climate regulation. The complaint alleges that this hub, as well as other industry associations, “engaged in a long-term course of conduct to misrepresent, omit, and conceal the dangers of Defendants’ fossil fuel-based consumer products.”
The GCC formed a task force in 1998 that eventually produced what is known as the “Victory Memo.” This internal memo listed how, in order to achieve “victory,” the public and the media must “recognize uncertainties of climate science.” In other words, the companies had colluded to convince the general public that scientific facts of climate change were not fact at all.
All the while, the companies were sharing internal information that directly aligned with the predictions made by government and nongovernmental organizations about climate change. The complaint notes that an internal scenario drawn up by Shell noted the possibility of intense storms from the Atlantic Ocean. A recent article in Science details how ExxonMobil scientists “accurately projected and skillfully modeled global warming due to fossil fuel burning.” The article examines internal messaging and science from ExxonMobil and concludes that the internal predictions were matching up with external predictions, but the company continued to deny, obscure, and publicly contradict this information.
The Municipalities complaint pulls these threads together to support the RICO claim, alleging that wire fraud was the medium used to deceive the public. “This notion of a coordinated, corrupt enterprise to deceive the public and the media about the world of products and climate change is one of the key differences between this case and others,” Richard Wiles, president of the Center for Climate Integrity, told the Prospect.
Wiles also explained how previous cases have not been based on a “single, disastrous event,” as the Municipalities complaint is. Together, these elements “signal a new wave of litigation against the industry.”
Since Municipalities was filed in a federal court, the first step will be for the defendants to file a motion to dismiss the case—which is already a step forward. “In the other cases, it’s been a battle to get to that,” Wiles explained.
While the plaintiffs have taken great care in their complaint and learned from the mistakes of previous lawsuits, the battle is still uphill. As Patrick Parenteau, law professor at Vermont Law and Graduate School, explained, once the case is in front of a jury, the municipalities must provide specific reasoning for their claim. First, they must show that the misrepresentations made were specific to them; then they need to support the claim that the misrepresentations directly caused or contributed to the damage. In addition, the plaintiffs will need to show that had they known the truth, they could have taken preventative measures.
Parenteau suggests that the last requirement may be difficult to support, given that climate change could not have been prevented by one entity.
“It’ll be a heavyweight bout,” Parenteau wrote over email. However, “if they can get past a motion to dismiss and get these facts in front of a jury, anything’s possible.”
