Sharon Eubanks
Counsel with Bordas & Bordas, PLLC

The latest trove of documents released by the Center for International Environmental Law (CIEL) sheds bright light on the long and deep connections between the oil and tobacco industries and on the massive doubt apparatus of research institutes, researchers, and PR firms funded and mobilized by both groups.

This is especially relevant now that political leaders, legal scholars and the media are increasingly highlighting the overlap.

Last week former New York attorney general Dennis Vacco penned an op-ed that claimed ExxonMobil has merely been “causing confusion,” which is “hardly a crime.”

As a former Department of Justice lawyer that helped lead the federal government’s lawsuit against the tobacco industry, I strongly disagree.

The federal government’s investigation and the civil lawsuit against Big Tobacco that followed placed front and center the precise issue presented in the attorneys general investigations involving ExxonMobil:  Did the company, in its public statements suggesting that global warming was debatable, while knowing in fact that it was not, commit actionable fraud?

What we do know is that evidence of global warming has been increasing for years—generations, in fact—and that by at least the 1980s, major fossil fuel companies like ExxonMobil had reached the conclusion that the planet was warming and that burning fossil fuels was responsible.

We also know that instead of acting on this knowledge, ExxonMobil and others embarked on a series of campaigns designed to deceive the public about the reality of climate change and to block any actions that might curb global warming emissions because that would interfere with their financial bottom line. In doing so, they not only slowed action to addressing climate change, which has both economic and health impacts, but they also knowingly misled the public and their investors.

None of us, including Mr. Vacco, has access to the records collected in the ongoing investigations, but what we do know is enough to raise serious concerns about ExxonMobil’s actions.

The tobacco industry’s denial campaign employed those same deceptive tactics, often through the very same paid academics, “think tanks,” and PR firms (which we now know was part of a coordinated plan to share playbooks between the two industries).

Almost 10 years ago, a federal court ruled that those tactics amounted to fraud under a federal racketeering statute; that decision was affirmed on appeal.

Given the parallels between that case and this one, the state attorneys general have more than enough evidence to proceed with investigations into ExxonMobil’s actions. Should the attorneys general find that in fact, ExxonMobil was simply engaging in “honest debate,” they may well close the investigation without any further legal action or findings of fraud.

An investigation is a process to determine whether to prosecute; it is not itself a prosecution. In order to determine whether there is sufficient evidence to proceed with suit, the evidence must be obtained and reviewed. Any suggestion that the First Amendment prohibits the normal process of the government from gathering evidence to determine if fraud has been committed cannot reasonably be taken seriously.

As the court recognized in the tobacco case, “[f]alse, misleading, or deceptive speech in furtherance of a scheme to defraud receives no First Amendment protection.”