Exxon Mobil

Scientists at the biggest U.S. oil company understood as early as anyone that fossil fuel emissions were heating up the earth’s atmosphere.

http://www.bloomberg.com/news/articles/2016-09-07/will-exxonmobil-have-to-pay-for-misleading-the-public-on-climate-change

Last fall, ExxonMobil executives hurried along the hushed, art-filled halls of the company’s Irving, Texas, headquarters, a 178-acre suburban complex some employees facetiously call “the Death Star,” to a series of emergency strategy meetings. The world’s largest oil explorer by market value had been hit by a pair of multipart investigations by InsideClimate News and the Los Angeles Times. Both reported that as early as the 1970s, the company understood more about climate change than it had let on and had deliberately misled the public about it. One of Exxon’s senior scientists noted in 1977—11 years before a NASA scientist sounded the alarm about global warming during congressional testimony—that “the most likely manner in which mankind is influencing the global climate is through carbon dioxide release from the burning of fossil fuels.”

The two exposés predictably sparked waves of internet outrage, some mainstream media moralizing, and the Twitter hashtag #ExxonKnew. The Washington Post editorial page, for one, chided Exxon for “a discouraging example of corporate irresponsibility.” Bill McKibben, the founder of the environmental group 350.org, which spearheaded protests against the Keystone XL pipeline, wrote an impassioned article in the Guardian accusing Exxon of having “helped organize the most consequential lie in human history.”

Kenneth Cohen, then the company’s vice president for public and government affairs, convened near-daily meetings to form a response. “We all sat around the table and said, ‘This feels very orchestrated,’ ” says Suzanne McCarron, who succeeded Cohen when he retired at the end of last year. McCarron still seems shocked that her company could come under sustained attack. “We wanted to know who’s behind this thing,” she says. While Exxon tried to identify its new nemesis—made difficult, perhaps, by the release of the two reports being coincidental—the executives also decided to nitpick the journalism and sent lobbyists to Capitol Hill to argue their side. That didn’t go so well. “I couldn’t get any journalist to actually evaluate the coverage,” Exxon spokesman Alan Jeffers says, with evident frustration.

The crisis might have died down, a week or two of bad PR and nothing more, but several politicians saw an opening. On Oct. 14, four weeks after the first InsideClimate report, Democratic Representatives Ted Lieu and Mark DeSaulnier, both from California, asked U.S. Attorney General Loretta Lynch to launch a federal racketeering investigation of Exxon. “It occurred to me that this looks like what happened with the tobacco companies a decade ago,” Lieu says. Democratic presidential candidate Hillary Clinton added her support for a Department of Justice inquiry. “There’s a lot of evidence that they [Exxon] misled people,” she said two weeks later.

Stoked by 40 of the nation’s best-known environmental and liberal social-justice groups—including the Environmental Defense Fund, Sierra Club, and Natural Resources Defense Council—the anti-Exxon animus only intensified. And if there wasn’t a coordinated campaign before, now there was: The groups all signed an Oct. 30 letter to Lynch also demanding a racketeering probe. (Lynch has since asked the FBI to examine whether the federal government should undertake such an investigation.) The same day, Lieu and DeSaulnier tried to interest the Securities and Exchange Commission in a fraud probe against Exxon, a request that’s pending. Five days later, on Nov. 4, New York Attorney General Eric Schneiderman opened a formal investigation into whether Exxon had misled investors and regulators about climate change.

“We cannot continue to allow the fossil fuel industry to treat our atmosphere like an open sewer or mislead the public about the impact they have on the health of our people and the health of our planet,” former Vice President Al Gore said at a subsequent news conference organized by Schneiderman. Compelled by the New York AG’s subpoena, Exxon has so far turned over some 1 million pages of internal documents.

Hours after Schneiderman issued his subpoena, Exxon Chief Executive Officer Rex Tillerson went on Fox Business Network. “The charges are pretty unfounded, without any substance at all,” he said. “And they’re dealing with a period of time that happened decades ago, so there’s a lot I could say about it. I’m not sure how helpful it would be for me to talk about it.” These remarks themselves weren’t terribly helpful—certainly not to Tillerson’s company.

McCarron and her colleagues can sound a tad overwrought when discussing all this. “The goal of the coordinated campaign is to delegitimize the company by misrepresenting our history of climate research,” she says. “Tackling the risk of climate change is going to take a lot of smart people, and we’ve got some of the best minds in the business working on this challenge.”

A company that has 73,500 employees and reported $269 billion in 2015 revenue would seem not to have much to fear from a bunch of tree-huggers and a grandstanding state AG. And yet the #ExxonKnew backlash comes at a financially perilous time for Big Oil. A glut-driven collapse in crude prices has rocked the entire industry. On July 29, Exxon announced second-quarter profit of $1.7 billion, its worst result in 17 years. That followed a rocky spring when ferocious wildfires reduced production in the oil-sands region of western Canada. (The frequency and intensity of such fires may be related to climate change, Exxon’s Jeffers acknowledges, adding, “But we just don’t know.”)

Most important, though, #ExxonKnew comes as climate change, after being on a legislative back burner, has gotten hot again. Signs of this include President Obama’s rejection last November of the Keystone pipeline from western Canada, the Paris summit in December that produced an international agreement to lower greenhouse gas emissions, and the U.S.-China plan, finalized on Sept. 3, committing the world’s two largest economies to implement the Paris accords. It’s too soon to say how much of a danger Schneiderman’s investigation poses to Exxon or if the corporation will ever be charged billions of dollars for carbon pollution. But it can’t ignore the risk of the sort of litigation storm that engulfed Big Tobacco in the 1990s. ExxonMobil doesn’t want to become the Philip Morris of climate liability.

#ExxonKnew has taken shape over the past year, but Peter Frumhoff traces its roots to January 2007. That’s when the Union of Concerned Scientists, a Cambridge, Mass.-based nonprofit, published a 64-page report alleging that Exxon used the cigarette industry’s tactics to “manufacture uncertainty on climate change.” Founded in 1969 by physicists worried about nuclear issues, the UCS has branched out over the years. Frumhoff, a 59-year-old Ph.D. ecologist, serves as its director for science and policy. He dresses in grad-school casual and seems highly amused by Exxon’s notion that he’s a central player in a conspiracy against the company. For starters, Frumhoff is a snap to track down and operates quite openly—violations of the conspirator’s imperative to plot in secret.

The 2007 report, which Frumhoff oversaw, compared Exxon to cigarette manufacturers that only five months earlier had been found liable by a U.S. district judge for violating the federal Racketeer Influenced and Corrupt Organizations Act (RICO). “ExxonMobil has underwritten the most sophisticated and successful disinformation campaign since Big Tobacco misled the public about the incontrovertible scientific evidence linking smoking to lung cancer and heart disease,” the report asserted.

With a relatively modest expenditure of $16 million from 1998 to 2005, Exxon helped fund a network of some 40 advocacy organizations that raised doubts about the growing scientific consensus that global warming is caused by carbon dioxide and other heat-trapping emissions, the UCS found. Exxon, Frumhoff says, is “sort of the poster child for combining a very large contribution to the [climate] problem with an arrogant organizational culture and a significant investment in disinformation to avoid regulation.”

The idea of “making oil the next tobacco” percolated quietly for several years and reemerged in June 2012 in sunny La Jolla, Calif., Frumhoff says. It was there that he co-convened a meeting of scientists and lawyers who discussed not only the parallels between fossil fuels and cigarettes, but also the method used to wound tobacco: the amassing via litigation of internal corporate documents showing that cigarette companies concealed the hazards of smoking. “Similar documents may well exist in the vaults of the fossil fuel industry and their trade associations and front groups,” an online report summarizing the La Jolla meeting stated. Even “a single sympathetic state attorney general might have substantial success in bringing key internal documents to light.”

Several more years passed before a passel of climate documents surfaced, not courtesy of a prosecutor’s subpoena, but as a result of journalistic digging: those reports in InsideClimate (21,000 words in length) and the Los Angeles Times. The two organizations reported that after accumulating climate knowledge for a decade or so, Exxon changed course beginning in the late 1980s, just as public debate over greenhouse gas emissions heated up.

By the 1990s, top Exxon executives were publicly raising doubts about the sorts of findings the company’s own scientists had made. In October 1997, Lee Raymond, then Exxon’s CEO, said in a speech in Beijing, “Let’s agree there’s a lot we really don’t know about how climate will change in the 21st century and beyond.” Arguing against the 1997 Kyoto Protocol, an early attempt to forge an international agreement on emission reductions, he added, “It is highly unlikely that the temperature in the middle of the next century will be significantly affected whether policies are enacted now or 20 years from now.”

Working separately from InsideClimate, the Los Angeles Times showed how Exxon incorporated climate change projections into its Arctic exploration plans in the 1990s while publicly undermining such projections.

The overlapping investigative journalism efforts appeared as delegations from countries around the world were getting ready for the December climate talks in Paris. On the sidelines of the Paris summit, McKibben, the author-activist, co-hosted a mock trial of Exxon in which he served as a prosecutor. “This is not just some run-of-the-mill, usual corporate malfeasance,” McKibben said at the trial. “It’s hard to imagine a set of corporate practices that could have done more damage.” Exxon, needless to say, was found guilty.

By its public-relations staff’s own admission, Exxon spent last fall and winter in a largely reactive mode, scrambling to respond to each new revelation or congressional request for an investigation—and never succeeding in offering an alternative narrative. “It was like playing whack-a-mole,” spokesman Jeffers says.

Seeking to illustrate how InsideClimate “cherry-picked” evidence, the company’s communications team pointed Bloomberg Businessweek to a half-dozen alleged examples.

One focused on the site’s account of the late James Black, the Exxon scientist who told management in 1977 of the “general scientific agreement” about man-made global warming. Exxon accused the publication of failing to include qualifications feathered into Black’s work, such as his noting that “a number of assumptions and uncertainties are involved in the predictions of the greenhouse effect.” But InsideClimate did prominently note that Black’s “presentations reflected uncertainty running through scientific circles about the details of climate change.” Exxon also accused the organization of erroneously asserting that the company had “stopped” doing carbon research in the late 1980s. But InsideClimate had written, correctly, that the company “curtailed” its in-house research program during that period. (“Curtail” doesn’t mean “stop.”)

Exxon has also accused InsideClimate and the Los Angeles Times of having financial conflicts of interest. The Times articles were researched and written in collaboration with an environmental-reporting project at Columbia University’s Graduate School of Journalism, and that program has taken substantial grants from environmentally oriented foundations, such as those funded by the Rockefeller family. Despite the source of their original wealth—in 1870, John D. Rockefeller created Standard Oil, the corporate forerunner of Exxon—the Rockefeller charities in recent years have taken strong stands against the fossil fuel industry. The Rockefeller Family Fund gave Columbia Journalism School $550,000 to help pay for its fossil fuel reporting project but exercised no editorial control, says Lee Wasserman, director of the fund. The Los Angeles Times initially failed to disclose the funding of the Columbia reporting project, though the newspaper eventually linked to the financial details online. Since 2013, the separate Rockefeller Brothers Fund has provided InsideClimate with $200,000 a year; that fund had no say over what the website published, according to David Sassoon, InsideClimate’s founder and publisher.

As its attacks on journalists fizzled, Exxon tried sending lobbyists to dozens of congressional offices to counter #ExxonKnew on Capitol Hill. Lieu, the California Democrat seeking federal investigations, is still shaking his head over a November visit from four Exxon emissaries. The lobbyists handed out a 10-page presentation titled Managing Climate Change Risks, which sought to underscore the company’s carbon-reduction bona fides. “It was a really surreal meeting,” Lieu says. The lobbyists “came in and said, ‘We believe in climate change and that it’s being caused by humans, and we support a carbon tax.’ I thought to myself, Where is this coming from? Is this like some white-hat department that no one else at Exxon knows about?”

Lieu hadn’t been keeping up with the evolution of Exxon’s climate-related positions since Tillerson replaced the hard-nosed Raymond as CEO in 2006. In 2007, Exxon began cutting off funding for some nonprofits that deny widely accepted science on global warming. The company in 2009 for the first time endorsed a tax on carbon emissions, a stance vehemently opposed by Republicans in Congress and therefore dead on arrival on Capitol Hill. At the Exxon annual meeting in Dallas in May, the silver-haired Tillerson went out of his way to tell shareholders that “the risks of climate change are serious and they do warrant thoughtful action.”

Strictly speaking, though, #ExxonKnew isn’t a campaign aimed at what the company is saying or doing today. #ExxonKnew focuses on discrepancies between past actions and past statements. That historical inquiry, Lieu says, deserves the authority and force of a government investigation. Exxon’s lobbyists didn’t change his mind.

Exxon executives say their view of #ExxonKnew as a conspiracy was confirmed by the gathering of 15 state attorneys general and Gore in New York on March 29. Schneiderman, the host, says he organized the event simply to educate fellow state officials about his Exxon investigation. At the news conference, he sounded like he’d already decided to take the company to court: With “morally vacant forces” blocking climate action in Washington, he said, states were obliged to devise “creative ways to enforce laws being flouted by the fossil fuel industry.”

Schneiderman also arranged for private briefings for the visiting AGs. These closed-door sessions featured a talk on climate science by Frumhoff and a legal backgrounder by Matt Pawa, a private plaintiffs’ attorney who in 2013 won a $236 million groundwater-pollution verdict against Exxon. The company’s public-affairs representatives see great significance in Pawa’s also having attended Frumhoff’s 2012 gathering in La Jolla. “You see the same people showing up at planning meetings over the years,” Jeffers says. Schneiderman says he doesn’t know anything about the La Jolla session and that his office routinely consults with outside experts.

A more consequential aspect of the prosecutors’ conclave was the announcement by the attorney general of the U.S. Virgin Islands, Claude Walker, that his tiny Caribbean territory had launched a parallel investigation of Exxon. In theory, the Virgin Islands has ample reason to be anxious about climate change: Warming, rising ocean waters could swamp its homes and resorts in coming decades. But in practice, the territory proved itself inadequate to the task of confronting Exxon.

In March the Virgin Islands issued a sprawling, loosely worded subpoena that demanded the company’s correspondence with scores of conservative and free-market organizations, including FreedomWorks, the Heartland Institute, and the Heritage Foundation. In a separate subpoena, it sought documents directly from the Competitive Enterprise Institute, a right-leaning group that’s cast doubt on mainstream climate science and formerly received financial support from Exxon. This focus on communication opened the door for Exxon’s New York law firm, Paul, Weiss, Rifkind, Wharton & Garrison, to seek to kill the islands’ subpoenas on First Amendment grounds. Paul Weiss filed court papers in Texas on April 13 condemning the Virgin Islands’ attempt “to deter ExxonMobil from participating in ongoing public deliberations about climate change.” (The more precisely tailored New York subpoena didn’t explicitly name nonprofits with which Exxon may have communicated.)

Finally, Exxon had its counterpunch: that hostile outsiders had attacked the company’s free-speech rights. There’s a reason Theodore Wells, the Paul Weiss partner who’s led Exxon’s legal defense (and has represented such clients as Philip Morris), is known as one of the craftiest people in his profession. However unlikely the image of Exxon as victim, that’s how Wells decided to characterize his client—and it worked. On April 22, the Washington Post carried two opinion pieces on the topic: a column by George Will headlined “Scientific Silencers on the Left Are Trying to Shut Down Climate Skepticism” and one by Sam Kazman and Kent Lassman, respectively general counsel and president of the Competitive Enterprise Institute, condemning “the environmental campaign that punishes free speech.” In the following days, dozens of similar broadsides were issued from the Wall Street Journal editorial page, Fox News, the Heritage Foundation, and many others.

Once again, politicians followed. In mid-May, the House Committee on Science, Space, & Technology began investigating what it called “a coordinated attempt to deprive companies, nonprofit organizations, and scientists of their First Amendment rights.” The only company the panel mentioned by name was Exxon. Committee staff members and Exxon’s McCarron say that despite the company’s widespread lobbying of Congress, it didn’t ask the panel or its chairman, Lamar Smith (R-Texas), to begin the probe. First elected in 1986, Smith has received almost $685,000 in career campaign contributions from the oil and gas industry, according to the Center for Responsive Politics. By early July, the Virgin Islands had turned tail and withdrawn its subpoenas of Exxon and the Competitive Enterprise Institute. Trying to put the best spin on his humiliating retreat, Virgin Islands AG Walker said via e-mail that extricating itself from the subpoena imbroglio will allow his office to “use our limited resources to address the many other issues that face the Virgin Islands and its residents.” Wells didn’t respond to requests for comment.

Schneiderman now finds himself under investigation, too. When the New York AG’s office refused to cooperate with the science committee, Smith issued subpoenas to Schneiderman; Massachusetts Attorney General Maura Healey, who’d launched her own investigation of Exxon; and eight nongovernmental organizations, including the Rockefeller funds, the Union of Concerned Scientists, and 350.org. “Unfortunately, the attorneys general have refused to give the committee the information to which it is entitled,” Smith told reporters on July 13. “What are they hiding and why?”

Not a thing, according to Schneiderman, who says Smith’s inquiries evoke 1950s-era communist hunting by the House Un-American Activities Committee: “They have no evidence of any cabal, no evidence of any misconduct.” As for the science panel’s concern about Exxon’s First Amendment rights, Schneiderman says the federal government’s successful RICO case against the tobacco companies made “very clear that the First Amendment doesn’t give you the right to commit fraud.”

If Schneiderman continues to resist the House committee’s document demands, the confrontation could end up in court—a fight the New York official sounds eager to have. He’d have an excellent chance of winning, too. It’s unusual for a congressional panel to interfere with a pending state investigation, says Senator Sheldon Whitehouse (D-R.I.), a former federal prosecutor who advocates putting Exxon under a microscope. Smith “is trying to subvert the power of state government [and] do something he is not entitled to do under any kind of discovery rules,” Whitehouse says. More succinctly, Peter Shane, a law professor at Ohio State University, says, “Congress has no authority over the conduct of state law enforcement.”

Exxon, for its part, has been cooperating with Schneiderman’s subpoena because the company’s lawyers at Paul Weiss advised their client that it had no choice, according to a person familiar with the situation. Schneiderman is investigating under the broad provisions of a 1921 state law called the Martin Act, arguably the most potent securities-fraud statute in the country. Named for sponsor Louis Martin, an otherwise-forgotten state assemblyman, the law forbids “any fraud, deception, concealment, suppression, [or] false pretense.” Crucially, it doesn’t require a prosecutor to demonstrate that a defendant consciously intended to defraud investors or regulators. New York’s top court has interpreted it to cover “all deceitful practices contrary to the plain rules of common honesty.”

Schneiderman doesn’t have a slam-dunk case. “The New York attorney general has a plausible theory, but he’ll need more than the results of the journalistic investigations,” says Michael Gerrard, a law professor at Columbia who directs the Sabin Center for Climate Change Law. “It’s not enough to show that Exxon had internal knowledge of climate change when external knowledge was widespread. The government would have to show that there were things that only Exxon knew and that were material to investors and that Exxon kept from investors. Such evidence might be there, but we don’t know yet.”

One potential defense that Exxon is floating: Since the 1970s its scientists have published climate findings in more than 50 peer-reviewed articles. What Exxon knew, the argument would go, the wider scientific world also knew. The company didn’t keep secrets the way the tobacco industry did.

Few complicated securities-fraud cases go to trial; the risk of losing and the costs of extended litigation impel settlement. With those risks in mind, Exxon and New York may eventually look to a separate case resolved by Schneiderman’s office in November. The attorney general found after a two-year investigation that coal producer Peabody Energy provided incomplete information to investors by saying in public reports that it couldn’t “reasonably predict” the risks it faced from climate-related regulations. St. Louis-based Peabody, which in April declared bankruptcy amid a collapsing coal market, neither admitted nor denied wrongdoing and didn’t face pecuniary punishment. The company did agree to provide more forthcoming disclosures to investors.

“It’s really too soon to tell” whether the Peabody settlement provides a model for the Exxon case, Schneiderman says. He expects to amass evidence in the Exxon investigation of “a much more sophisticated ongoing policy of deception” than what his office found inside Peabody—wrongdoing that could warrant seeking substantial money damages. Exxon has kept that alleged policy in place through recent years, Schneiderman says, pointing to a 2014 company report claiming that international efforts to reduce climate change wouldn’t oblige fossil fuel producers to leave enormous amounts of oil in the ground untouched.

Exxon denies any deception took place and isn’t ready to talk settlement, McCarron says. She calls Schneiderman’s comments “an attack on the integrity of the company” and says Exxon “will pursue all available legal options to defend ourselves.”

In a major blow to ExxonMobil, documents reveal that the common tactical playbook is decades older than previously assumed.

http://www.alternet.org/environment/new-evidence-suggests-big-oil-didnt-borrow-big-tobaccos-playbook-lie-public-about

A recent analysis of more than 100 industry documents conducted by the Center for International Environmental Law (CIEL), a Washington, D.C.-based advocacy group, has revealed that the oil industry knew of the risks its business posed to the global climate decades before originally suspected.

It has also long been assumed that, in its efforts to deceive investors and the public about the negative impact its business has on the environment, Big Oil borrowed Big Tobacco’s so-called tactical “playbook.” But these documents indicate that infamous playbook appears to have actually originated within the oil industry itself.

If that is true, it would be highly significant—and damning for Big Oil—because the tactics used by the tobacco industry to downplay the connection between smoking and cancer were eventually deemed to have violated federal racketeering laws by a federal court. The ruling dashed efforts by Big Tobacco to find legal cover under the First Amendment, which just happens to be the same strategy that ExxonMobil and its GOP allies are currently using to defend the company against allegations of fraud. If the playbook was in fact created by the oil and gas industry and then later used by ExxonMobil, it ruins the company’s argument of plausible deniability, making it highly likely that the company violated federal law.

This latest development is a major blow to Big Oil, which has been trying to rebuff comparisons to the tobacco industry. It also comes as a group of state attorneys general are pursuing an investigation into possible fraud committed by ExxonMobil. The probe, which could ultimately extend to include other oil and gas companies, was launched in November by New York State Attorney General Eric Schneiderman, who has since been joined by 16 other state AGs in a historic national coalition seeking to find out if America’s largest oil company intentionally hid critical climate-related information about their future business from investors and the public.

Environmentalists and corporate accountability advocates have cheered the investigation, contending that ExxonMobil has engaged in a decades-long campaign of climate denial and deception, ultimately delaying action on climate change and putting the planet at risk.

“We began with three simple, related questions,” says Carroll Muffett, president of CIEL, about the recently analyzed documents, which are housed at the tobacco industry document archive at the University of California, San Francisco medical center. “What did they know? When did they know it? And what did they do about it? What we found is that they knew a great deal, and they knew it much earlier and with greater certainty than anyone has recognized or that the industry has admitted.”

Sowing seeds of doubt about climate science

“Big Oil created the organized apparatus of doubt,” Muffett said. “It used the same playbook of misinformation, obfuscation and research laundered through front groups to attack science and sow uncertainty on lead, on smog, and in the early debates on climate change. Big Tobacco used and refined that playbook for decades in its fight to keep us smoking—just as Big Oil is using it now, again, to keep us burning fossil fuels.” To wit: Exxon’s own Corporate Citizenship Report from last year revealed that the company is still funding climate denial groups.

The documents suggest that the tactics in question were developed by the Smoke and Fumes Committee, a group launched 70 years ago by the American Petroleum Institute, the national trade association that represents the U.S. fossil fuel industry, to study oil industry pollution and present its own spin to the public. If that is the case, it appears those same tactics were likely co-opted by the tobacco industry, which was later found guilty of committing fraud following a racketeering lawsuit filed in 1999 by the Department of Justice. The documents reveals that the deceptive actions taken by the oil industry so many decades ago prevented the possibility of early action on climate change—action that may have prevented potentially millions of climate-related deaths across the globe.

According to the Centers for Disease Control and Prevention, cigarette smoking is responsible for more than 480,000 deaths per year in the United States alone. The World Health Organization estimates that around 6 million people worldwide die from tobacco-related illnesses. Between 2030 and 2050, WHO estimates that climate change will cause approximately 250,000 deaths per year, from heat stress, malnutrition, malaria and diarrhea. That number does not include the deaths caused by climate-related natural disasters, which have more than tripled since the 1960s, resulting in over 60,000 deaths each year, mainly in developing countries.

Neva Rockefeller Goodwin, co-director of the Global Development and Environment Institute at Tufts University is also the great-granddaughter of John D. Rockefeller Sr., founder of the American oil giant Standard Oil Company, out of which ExxonMobil was born. Earlier this year, Goodwin decided to divest her shares of ExxonMobil stock and use the proceeds to fight climate change and climate denial. In an interview with AlterNet, she contrasted the impact of tobacco and fossil fuel:

In the large picture … tobacco and fossil fuel emissions are quite different. Tobacco kills people one by one. Climate change will increasingly cause events like hurricanes that will destroy large swathes of property, kill numbers of people, make many homeless. While it can be argued that smoking tobacco is a matter of individual choice, the production and use of fossil fuels is more obviously a social issue. In the long run, producers of fossil fuels will have to lose. The only question is how much the people and ecologies of the world will lose before our economies cease to make the situation worse.

U.N.: Climate change is “irreversible”

While the climate situation can certainly become worse, the actions of ExxonMobil and Big Oil have helped to put the planet on what many scientists are now saying is an unstoppable path. In 2014, the United Nations’ Intergovernmental Panel on Climate Change offered a grim assessment: “Continued emission of greenhouse gases will cause further warming and long-lasting changes in all components of the climate system, increasing the likelihood of severe, pervasive and irreversible impacts.” That has left environmentalists not only angry at the oil industry, but also wondering how the narrative might have been different had the industry been honest and open about its early findings.

“It’s increasingly clear that the fossil fuel industry knew a lot more about the causes of climate change—and its effects—much earlier than anyone else,” said Annie Leonard, the executive director of Greenpeace USA, about CIEL’s findings. “It pains me to think how much better shape the planet and vulnerable communities could be in if the fossil fuel industry had taken positive action based on this knowledge instead of trying to profit from it.”

Climate activist Bill McKibben, the founder of 350.org, has been a long-time critic of the oil and gas industry. “The ongoing revelations about the depth of oil industry research into—and obfuscation of—the greatest crisis humans have ever faced are hard to read; thanks to them, we wasted vital time,” he said in a press statement.

In a CIEL video, Muffett explains how “the world’s most powerful industry used science, communications and consumer psychology to shape the public debate over climate change,” noting “it begins earlier, decades earlier than anyone recognized.” He points out that in 1968, API commissioned a report titled “Sources, Abundance, and Fate of Gaseous Atmospheric Pollutants,” which revealed rising levels of carbon dioxide, a greenhouse gas produced by the combustion of fossil fuel, in the atmosphere. The report’s authors, Elmer Robinson and R.C. Robbins of the Stanford Research Institute, warned of significant climate risks posed by the continued use of fossil fuel. “If the earth’s temperature increases significantly, a number of events might be expected to occur including the melting of the Antarctic ice cap, a rise in sea levels, warming of the oceans, and an increase in photosynthesis,” they wrote, adding, “there seems to be no doubt that the potential damage to our environment could be severe.”

Notably, Muffett said, is the fact that the report’s authors “recognized that the most important remaining uncertainties were technological: How would we respond and how would we modify our technology to reduce emissions?” Now, nearly half a century later, the question becomes: Why did the oil industry hide this information from the public? Of course, we know the answer to that question: Profits. Instead of responding responsibly to the dire warnings that came with this information by moving the nation’s energy portfolio and infrastructure to a low-carbon future, the oil industry kept on drilling, kept businesses and consumers burning their primary retail products, which continued to pollute the environment and damage the Earth’s climate.

Seventy years of denial and deception

The question for Schneiderman and his fellow state attorneys general is, did ExxonMobil, and possibly other oil companies, intentionally mislead investors, consumer and the public, hiding the damning scientific evidence that their own industry paid to discover? With CIEL’s analysis of industry documents, it appears that Big Oil may be even guiltier than originally suspected, as the group traced the origins of the 1968 API report to a meeting of oil and gas industry executives in Los Angeles more than two decades earlier, in 1946.

That was the year API established the Smoke and Fumes Committee. “Faced with growing public concern about air pollution,” Muffett said, “the industry embarked on what would become a well-funded, carefully coordinated, multi-decade enterprise of funding scientific research and using that research to promote public skepticism of environmental regulations the industry considered hasty, costly and potentially unnecessary.”

One of the tactics used by the oil industry was to delay any climate action that might harm its business by sowing seeds of doubt. “The worst thing that can happen, in many instances, is the hasty passage of a law or laws for the control of a given air pollution situation,” wrote Vance Jenkins, executive secretary of the Smoke and Fumes Committee, in a 1954 trade journal article about smog pollution.

The ties between the oil and tobacco industries run deep. In the 1950s, Monroe J. Rathbone, the president and director of Standard Oil, sat on American Cancer Society’s committee on smoking and public policy. In 1968, Esso Research and Engineering Co., an affiliate of Standard Oil, filed a patent claim for a new type of cigarette filter, made out of polypropylene, a thermoplastic polymer that was first synthesized by Phillips Petroleum, an American Oil Company. In 1979, R.G Baker, the chair of British American Tobacco, the second largest tobacco company in the world, also sat on the board of Exxon, the world’s biggest publicly traded oil company. In the 1970s, R.J. Reynolds, America’s second-largest tobacco company, diversified into the energy business, acquiring American Independent Oil Company, Burmah Oil and Gas Company and Burmah Oil Development, Inc.

In a CIEL video, Muffett explains the key events that reveal the oil industry didn’t just borrow the tobacco industry’s playbook, but was actually behind behind it all along:

As evidence mounts of the oil industry’s decades-long campaign of climate deception and denial, Exxon and its allies assure us that oil is not the new tobacco. The 14 million documents at the Tobacco Archives prove Exxon right: Oil is not the new tobacco. But six decades ago, tobacco was the new oil. In December 1953, tobacco executives met in a New York hotel room to hatch a plan to confront the rising tide of science linking smoking with cancer. To help craft that plan, tobacco turned to PR firm Hill and Knowlton. Hill and Knowlton, in turn, drew on its long expertise supporting the oil industry. Richard Darrow, the principal architect of tobacco’s strategy, also represented Hill and Knowlton’s biggest oil company clients.

In the years that followed, the tobacco conspirators looked repeatedly to oil industry campaigns on smog, lead and other air pollutants for models, for resources and for people. They turned to Stanford Research Institute, a key player in the oil industry’s “Smoke and Fumes” effort to develop a suitcase-sized testing kit that would sample smoke without attracting attention. They turned to Truesdail Laboratories, which in 1958 was doing the earliest documented climate research for the American Petroleum Institute, and to a former Standard Oil executive who recommended an array of scientists for the tobacco industry’s scientific advisory board, nearly all with proven links to the oil industry and many of whom would go on to work for tobacco.

Suffice it to say, CIEL’s analysis has uncovered the deep and complex relationship between the oil and tobacco industries that goes back many decades, and continues to this day. From advertising campaigns and marketing tactics to PR firms and scientists, the two industries have shared a wealth of information, strategies and human resources. The relationship was formed on mutual dependence, which consistently placed profits above public and environmental health. As Muffett points out, “For Big Tobacco, gas stations were vital retail outlets. For Big Oil, cigarettes were their biggest retail product after gasoline.”

“These documents are the tip of an evidentiary iceberg that demands further investigation,” said Muffett. “Oil companies had an early opportunity to acknowledge climate science and climate risks, and to enable consumers to make informed choices. They chose a different path. The public deserves to know why.”

The investigation continues

ExxonMobil and its allies on Capitol Hill—a coterie of GOP legislators who have received political contributions from the oil industry—have attempted to stop the AGs’ fraud probe by claiming the investigation is a violation of the company’s First Amendment rights.

In June, ExxonMobil filed a complaint in federal district court in Fort Worth, Texas, against Massachusetts Attorney General Maura Healey, who had subpoenaed the company under consumer and securities fraud statutes, in an effort to secure company records going back 40 years. In its lawsuit, which is seeking an injunction to stop Healey’s probe, ExxonMobil said Healey’s investigation is “nothing more than a weak pretext for an unlawful exercise of government power to further political objectives,” adding that the attorney general is “abusing the power of government [and] … has deprived and will continue to deprive ExxonMobil of its rights under the United States Constitution.”

Unfortunately for ExxonMobil, the First Amendment claim has already been discredited. In United States vs Philip Morris Inc., a federal appeals court found that the First Amendment does not protect fraudulent statements. Likewise, Healey’s office has dismissed ExxonMobil’s claims.

“For many months, ExxonMobil has engaged in an unprecedented effort to limit the ability of state attorneys general to investigate fraud and unfair business practices,” said Cyndi Roy Gonzalez, Healey’s communications director.

“Our investigation is based not on speculation but on inconsistencies about climate change in Exxon documents which have been made public,” Gonzalez said, and echoing the tobacco lawsuit, added that “the First Amendment does not protect false and misleading statements in the marketplace. Exxon’s assertion that we cannot investigate it because the company has not engaged in business here in Massachusetts is completely preposterous.”

However, a similar battle between ExxonMobil and U.S. Virgin Islands Attorney General Claude Walker ended in a ceasefire, as Walker agreed to withdraw a similar subpoena in exchange for ExxonMobil’s withdrawal of its lawsuit against him. Walker’s withdrawal hasn’t been viewed as a setback for the ongoing probe, as legal experts contend that the primary battlefields will be Massachusetts and New York. So far, Exxon is cooperating with New York’s investigation and has already relinquished more than 700,000 pages of documents to Schneiderman’s office.

But 100 or so recently analyzed documents may reveal the true origin of Big Tobacco’s infamous playbook.

Watch CIEL’s “Smoke and Fumes” videos to learn more about its analysis of those documents:

As early as the 1950s, the groups shared scientists and publicists to downplay dangers of smoking and climate change

http://www.scientificamerican.com/article/tobacco-and-oil-industries-used-same-researchers-to-sway-public1/

Organizations worried about climate change have long drawn comparisons between the petroleum and tobacco industries, arguing that each has minimized public health damages of its products to operate unchecked.

Some have urged federal regulators to prosecute oil companies under racketeering charges, as the Department of Justice did in 1999 in a case against Philip Morris and other major tobacco brands.

Oil companies bristle at the comparison. But overlap between both industries existed as early as the 1950s, new research details.

Documents housed at the University of California, San Francisco, and analyzed in recent months by the Center for International Environmental Law (CIEL), a Washington, D.C.-based advocacy group, show that the oil and tobacco industries have been linked for decades. The files CIEL drew its research from have been public for years.

The unknown author of one memo, who once worked for Standard Oil Co. Inc. of New Jersey, suggested scientists for an advisory committee study the health effects of smoking.

“I am giving below the names of individuals who you might consider as potential members of the Medical Advisory Committee for the tobacco industry, as related to its current medical problem,” the person wrote to a tobacco research board, alluding to building evidence that smoking caused health problems.

Both industries hired public relations company Hill & Knowlton Inc., an influential New York firm, for outreach as early as 1956.

And Theodor Sterling, a mathematics professor known for research on smoking that was favorable to the tobacco industry—Philip Morris paid more than $200,000 in the 1990s for his work—also studied lead in gasoline for Ethyl Corp. in 1962. Ethyl was a joint venture between General Motors Corp. and Standard Oil.

“From the 1950s onward, the oil and tobacco firms were using not only the same PR firms and same research institutes, but many of the same researchers,” CIEL President Carroll Muffett said in a statement.

“Again and again we found both the PR firms and the researchers worked first for oil, then for tobacco,” he said. “It was a pedigree the tobacco companies recognized and sought out.”

CIEL alerted ClimateWire to the existence of the tobacco documents and has been researching for years what the oil industry knew about climate change and what it did in response.

The examination of the tobacco documents has been more recent for CIEL, which calls its project comparing the tobacco and oil industries “Smoke & Fumes.”

The group’s new research is part of a building debate about oil companies’ knowledge over the decades about climate change. It also is part of a push from environmental groups to make the legal case that fossil energy companies have lied for decades about global warming risks, just as tobacco companies lied about the connection between smoking and cancer.

Last week, House Science, Space and Technology Chairman Lamar Smith (R-Texas) subpoenaed the attorneys general of New York and Massachusetts, who are each investigating if Exxon Mobil Corp. misled investors and the public about climate change threats, and several environmental groups (ClimateWire
, July 14).

Smith and his colleagues maintain that the attorneys general colluded with environmentalists in their investigations. They say such probes violate First Amendment protections of free speech.

The Stanford Research Institute link

Another connection between oil and tobacco companies, according to CIEL, is the Stanford Research Institute, now known as SRI International after splitting with Stanford University in 1970.

Founded in 1946, SRI studied smog and pollution generally and received funding from tobacco and oil companies.

SRI scientists also generated climate change research for the American Petroleum Institute in the 1960s and ‘70s.

Spokespeople for Chevron Corp., Exxon Mobil and Royal Dutch Shell PLC said they hadn’t heard of the Stanford Research Institute before, declining to comment further.

And API spokesmen did not respond to request for comment.

A blog post from the Independent Petroleum Association of America called the document release a “desperate move” and the latest in a coordinated attempt to hurt the fossil fuel industry.

In a 1968 report prepared for API in New York City, SRI scientists Elmer Robinson and R.C. Robbins acknowledged some uncertainty concerning the relation between carbon emissions and rising temperatures, yet said carbon dioxide was the most likely cause of the “greenhouse effect.”

“If the earth’s temperatures increase significantly, a number of events might be expected to occur, including the melting of the Antarctic ice cap, a rise in sea levels, warming of the oceans, and an increase in photosynthesis,” they wrote.

Robinson followed up in an API-commissioned study dated 1971.

“If there were a long term and significant increase in the pollutant content of the atmosphere either of particles or of carbon dioxide, the potential damage to the global environment could be severe,” he said.

“Even the remote possibility of such an occurrence justifies concern,” added Robinson, one of the first scientists to link the burning of fossil fuels with global warming. He died earlier this year at 91.

The documents show oil companies tested toxicity in cigarettes in the 1950s, and some, including Exxon and Shell, patented cigarette filters worldwide for decades. They also indicate that tobacco companies went to SRI for help in creating small testing kits the size of suitcases to assess smoke.

The Smoke and Fumes Committee

In 1946, API established its own body to study pollution from the oil industry. It was called the Smoke and Fumes Committee.

Wary of government regulation to slash pollution from refineries and other operations within their supply chain, as well as public concern about smog in cities such as Los Angeles, petroleum officials at API and member firms offered alternative theories of how smog was created.

“The worst thing that can happen, in many instances, is the hasty passage of a law or laws for the control of a given air pollution situation,” Vance Jenkins, executive secretary of the Smoke and Fumes Committee, said in a 1954 trade journal article about smog pollution.

The corporate predecessors to Chevron Corp., Exxon Corp. and Royal Dutch Shell PLC were each involved in the Smoke and Fumes Committee through former companies and subsidiaries, often broken-off units of the Standard Oil corporate empire.

While the documents show API learned of potential climate change risks as early as 1968 and had formed committees to examine smog pollution in the 1940s, Exxon CEO Lee Raymond said in November 1996 that climate science was unsettled.

“Scientific evidence remains inconclusive as to whether human activities affect the global climate,” Raymond said at a press conference.

The University of California, San Francisco, documents were cached there starting in 2002 after tobacco industry litigation. Hill & Knowlton references are heavily featured.

An internal Hill & Knowlton memo from 1954 describes a booklet that employees circulated to doctors nationwide on the “cigarette-lung cancer theory.” They also show company founder John Hill, as well as colleagues Bert Goss, Richard Darrow and others, sat in on meetings of the Tobacco Industry Research Committee, an industry panel.

Hill also appears in meeting minutes in the 1950s for the Manufacturing Chemists’ Association Inc. And a flyer from 1963 indicates Goss, president of Hill & Knowlton at the time, hosted an event that November about the future of public relations.

An executive of Socony Mobil Oil Co. Inc., a predecessor of Mobil Oil, coordinated that talk, held at the New School in New York City.

http://www.desmogblog.com/2016/07/20/smoke-and-fumes-six-decades-oil-tobacco-nexus-deception-and-attacks-science

The Center for International Environmental Law (CIEL) today expanded its website SmokeandFumes.org, featuring a new video and more internal industry documents dating back to the 1950s that reveal the nexus between the oil and tobacco industries’ shared campaigns to undermine science to delay accountability and political action to curtail their deadly products.

CIEL has uncovered new evidence showing that it was the work performed for the oil industry by PR firms (particularly Hill & Knowlton) that attracted the tobacco industry to follow suit — in contrast to the prevailing narrative that Big Oil deployed the Tobacco Playbook to ward off responsibility for climate change resulting from its fossil fuel pollution.

“Again and again we found both the PR firms and the researchers worked first for oil, then for tobacco,” said CIEL President Carroll Muffett in a statement. “It was a pedigree the tobacco companies recognized and sought out.”

ExxonMobil’s excuse in the face of #ExxonKnew has, in part, relied on the defense that oil is not the new tobacco. At the end of the day, as Muffett points out in the video below, the final result is the same, despite who was first to devise the strategies of deception and attacking inconvenient science.

The infamous “Doubt is our product” tobacco memo articulated the strategy most succinctly, but the whole package of deception, delay, and attacks on science have been shared, refined and endlessly deployed by both industries (and many others) since the 1950s.

It reminds me of that old “I learned it by watching you” anti-drug PSA. You’re both still busted, tobacco and oil industries. It doesn’t matter who came first.

Watch the video for the whole story, and check out SmokeandFumes.org for the incredible cache of internal documents uncovered by the Center for International Environmental Law

The fossil fuel industry copied Big Tobacco’s racketeering playbook. They’re following the same path to court, where tobacco lost

https://www.theguardian.com/environment/climate-consensus-97-per-cent/2016/jul/18/deja-vu-as-with-tobacco-the-climate-wars-are-going-to-court

House Science Committe Chairman Lamar Smith (R-TX) is coming to the defense of fossil fuel companies that are accused of deceiving the public on climate change to maximize their own profits. Photograph: Scott J. Ferrell

Investigative journalism has uncovered a “web of denial” in which polluting industries pay “independent” groups to disseminate misinformation to the public and policymakers. The same groups and tactics were employed first by the tobacco industry, then fossil fuel companies. Big Tobacco has been to court and lost; now it’s Big Oil’s turn. Political leaders are choosing sides in this war.

Research by Inside Climate News revealed that Exxon did top notch climate science research in the late 1970s and early 1980s, which revealed the dangers its products posed via climate change. Soon thereafter, Exxon launched misinformation campaigns by funding “think tanks” and front groups to manufacture doubt about climate science and the expert consensus on human-caused global warming.

What #ExxonKnew vs what #ExxonDid. Illustration: John Cook, SkepticalScience.com

Exxon wasn’t alone. Koch Industries, Peabody Energy, and other fossil companies have similarly funneled vast sums of money to these groups. Last week, Senate Democrats, including presidential candidate Bernie Sanders and vice presidential contenders Elizabeth Warren and Al Franken signed a Resolution expressing congressional disapproval of the fossil fuel industry’s misinformation campaign. 19 Senate Democrats also took to the floor of the Senate to speak out against the web of denial, with repeated references to the tobacco/fossil connections.

The climate battle goes to court

The fossil fuel industry has already put forth its best scientific argument in court, and lost. Now 17 state attorneys general, led by New York Attorney General Eric Schneiderman, have formed a coalition to investigate ExxonMobil’s activities. As Schneiderman put it:

The First Amendment, ladies and gentlemen, does not give you the right to commit fraud

However, Lamar Smith (R-TX), chairman of the House Science Committee, along with his Republican colleagues last week issued subpoenas to Schneiderman and Massachusetts Attorney General Maura Healey, accusing them of violating Exxon’s First Amendment rights. As Smith claimed:

The Committee has a responsibility to protect First Amendment rights of companies, academic institutions, scientists, and nonprofit organizations. That is why the Committee is obligated to ask for information from the attorneys general and others.

In this battle of First Amendment claims, Big Oil & Coal use the same argument as Big Tobacco, who lost.

The fossil fuel industry copied the tobacco playbook

Last century, we saw a similar battle with tobacco. By the 1950s, the tobacco industry knew that its products caused cancer and other diseases. They still marketed their harmful products to children, and soon created pseudo-academic institutes like the Council for Tobacco Research to cast doubt on smoking’s damage. However, the institutes’ connections to the tobacco industry were too obvious; they wanted “independent” voices.

In the 1980s the Koch brothers started creating a vast web of “think tanks” that could simulate credible independence, funded via dark money, often tax-exempt. Big Tobacco eagerly joined, to “quarterback behind the scenes.” They contributed great marketing talent, some later hired by Kochs.

As extensively documented at DeSmogBlog, Big Tobacco has long funded science-denying think tanks, such as the Heartland Institute, Heritage Foundation, Cato Institute, George Marshall Institute, American Legislative Exchange Council (ALEC), and Manhattan Institute, to name a few. ExxonMobil later funded these same groups.

The fossil fuel industry has adopted the tobacco industry’s playbook, and shared the same web of denial. The Senate Resolution made this point, calling out both the tobacco and fossil fuel industries for having:

(A) developed a sophisticated and deceitful campaign that funded think tanks and front groups, and paid public relations firms to deny, counter, and obfuscate peer-reviewed science; and

(B) used that misinformation campaign to mislead the public and cast doubt in order to protect their financial interest

Their tactics have grown more sophisticated, for example using money anonymizers like Donors Trust to ensure their “dark money” becomes even harder to trace.

The tobacco industry lost in court

In 1999, the US Justice Department filed a civil Racketeer Influenced and Corrupt Organizations Act (RICO) lawsuit against the major tobacco companies and their associated industry groups. In 2006, US District Court Judge Gladys Kessler ruled that the tobacco industry’s campaign to “maximize industry profits by preserving and expanding the market for cigarettes through a scheme to deceive the public” about the health hazards of smoking amounted to a racketeering enterprise. She wrote a clear statement, appealed fruitlessly by tobacco companies:

The First Amendment Does Not Protect Defendants’ False and Misleading Public Statements

The attorneys general investigating Exxon have a strong case that the fossil fuel industry is similarly guilty of racketeering by deceiving the public in order to maximize profits. Exxon and other fossil fuel companies knew of the dangers of carbon pollution more than three decades ago, and yet funneled tens of millions of dollars to think tanks that disseminate misinformation to try to convince the public and policymakers otherwise.

Sharon Eubanks led the Justice Department trial team, as documented in the book Bad Acts: The Racketeering Case Against the Tobacco Industry and was a key contributor to the report Establishing Accountability for Climate Change Damages. Of the Exxon case, she said:

I think a RICO action is plausible and should be considered

The First Amendment defense of the fossil fuel industry by House Republicans simply doesn’t hold water. Defending the fossil fuel industry today is no different than defending the tobacco industry in the 1990s, as did Lamar Smith’s colleague “Smokey Joe” Barton (R-TX).

Unsurprisingly, oil & gas is the top industry donor to Lamar Smith. History books will reflect poorly on those who sold out millions of peoples’ health for personal gain or industry profits, and on those who worked to destabilize the climate on which future generations will rely for the sake of their own political power or ExxonMobil’s record profits.

http://www.counterpunch.org/2016/05/13/exxons-lawyer-in-climate-science-probe-has-history-helping-big-tobacco-and-nfl-defend-against-health-claims/

Ted Wells, an attorney hired by ExxonMobil to represent the company against accusations it lied about the climate risks of burning fossil fuels, also represented the tobacco industry in the lawsuit brought by the U.S. Department of Justice in 1999 under the Racketeer Influenced and Corrupt Organizations (RICO) Act, DeSmog has found. Wells also defended the National Football League (NFL) in the infamous “Deflategate” matter as well as in litigation over the far more serious issue of concussions.

Wells has represented ExxonMobil since at least December 2015, following New York Attorney General Eric Schneiderman’s announcement that his office would probe Exxon’s role in funding climate change denial despite its long-held understanding and pioneering research into climate change.

Wells’ name also appears on an April 13 legal filing Exxon submitted in response to a subpoena issued by the Virgin Islands’AG Office, a sign the “private empire” has retained him for the wider probe being carried out by a group pf Attorneys General.

Wells has made a career out of working on behalf of clients with legal claims often flying in the face of well-established science, with legal industry trade publication Inside Counsel referring to him as a top attorney-for-hire for crisis situations in an April 2007 article.

A DeSmog investigation has also found parallels in legal and public relations defense tactics deployed by Wells on behalf of those past clients and the tactics currently being utilized for his current big-ticket client, ExxonMobil.

Naomi Oreskes, a Harvard historian of science who has long studied the denial industry and wrote the indispensable book “Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming,” sees Exxon’s hire of Wells as a positive and as a potential sign the company sees the writing on the wall.

“Call me an optimist, but I think this is good news,” she told DeSmog. “The tobacco industry was successfully prosecuted, and, perhaps with that history in mind, the NFL has recently agreed to a major settlement with its players. So perhaps Mr. Wells will guide Exxon towards a sensible path towards the future, rather than a misguided retreat into the past.”

Dan Zegart, a senior fellow at the Climate Investigations Center and author of the book “Civil Warriors: The Legal Siege on the Tobacco Industry,” told DeSmog: “Bringing in Ted Wells is a sign that ExxonMobil isn’t thinking settlement — they’re going to fight these attorney general actions tooth and nail. This is a guy who will throw up every possible defense for Exxon, like he did for tobacco. Every move in this playbook has been pressure-tested over decades.”

Exxon Representation

This is far from the first prominent lawsuit for which Wells has offered his billable services to Exxon, a company which funded climate denial to the tune of $31 million, by conservative estimates, between 1998 and 2014.

In the early 2000’s, Wells counseled ExxonMobil in a federal corruption case, with an ex-Mobil official named J. Bryan Williams pleading guilty to tax evasion and conspiracy as part of corruption that was at the time endemic in Kazakhstan.

Wells proclaimed Exxon’s innocence in the case outside of the courthouse after Williams’ guilty plea, distancing himself from Williams by stating that “Exxon Mobil had no knowledge of the over $7 million in secret payments that he received and hid in secret bank accounts.”

Wells, too, provided legal representation to Exxon in the lawsuit filed against it by citizens of Indonesia who alleged they had been tortured by private security guards on the company payroll.

That case, which reached the U.S. Court of Appeals, became somewhat moot when the U.S. Supreme Court ruled in the Kiobel v. Royal Dutch Petroleum case that the Alien Tort Statute does not offer non-U.S. citizen victims of human rights abuses committed abroad by U.S.-based corporations a path to legal justice in U.S. courts.

More recently, Wells represented Exxon in New Jersey in a lawsuit filed against the company by the State of New Jersey in 2004, which alleged the corporation’s responsibility for rampant statewide pollution. This culminated in an August 2015 $225 million settlement, far less than the $8.9 billion asked for by the plaintiffs.

NFL Science Denial

Yet for most of the U.S. population, Wells is best known for the “tough guy” role he has played in the “DeflateGate” case on behalf of the National Football League (NFL). It turns out that story, like Exxon and like the tobacco wars, has an anti-science spin too.

In that case, famed New England Patriots quarterback Tom Brady faces a four-game NFL suspension for allegedly deflating footballs in a 2015 playoff game against the Indianapolis Colts in order to gain a competitive edge. Wells has provided theNFL with legal representation for the ongoing saga.

But contrary to the NFL‘s crackdown on cheating narrative, the science points to the fact that Brady and the Patriots actually may not have cheated. It all centers around what is known as the “Wells Report” — an investigation by Ted Wells of the allegedly deflated footballs.

That report’s findings have come under question by numerous scientists, the NFL Players Association (NFLPA) and even the conservative think tank American Enterprise Institute.

The most ardent criticism of the study centers around the scientific report outsourced to a firm called Exponent Inc. that the Wells Report relies upon to make its case. The tobacco industry also used Exponent Inc. research to claim secondhand smoke does not cause cancer.

“The first thing you know is that when Exponent is brought in to help a company, that company is in big trouble,” Cindy Gage, owner of an environmental and agricultural consulting firm in California, told the Los Angeles Times in 2010.

While Wells represented the NFL for “DeflateGate,” he also provided his legal services for the much more scandalous — from a human health and public interest perspective — concussion lawsuit the NFL faced, brought against it by over 4,800 former players. That lawsuit ended with a $1 billion settlement, which some players have appealed, and some have pointed to as being rife with loopholes allowing the NFL to get out of trouble on-the-cheap.

A recent New York Times investigation pointed to myriad links between the tobacco industry and the NFL, including overlap in lobbyists and legal representation, though Wells’ name goes unmentioned in the article. Wells’ law firm, though,responded

to the article in a letter published by Politico.

“Tossing around unsubstantiated allegations of links between an industry and Big Tobacco is reckless and dangerous. Like all broad-brush attacks, it undermines reasoned, fact-based debate,” reads the March 28 letter. “In short, there is nothing in the Times’s story that can fairly, credibly and objectively support the false and defamatory charge that the NFL had ties to the tobacco industry.”

Wells and Big Tobacco

Just over a decade ago, Wells went to bat for Philip Morris in the United States v. Philip Morris lawsuit filed against the company by the DOJ in a case ending with a prosecution, but with actual penalties tantamount to kid glove treatment. The treatment, which came from DOJ political appointees, motivated lead DOJ prosecutor for the case Sharon Eubanks to resign from her post.

In court documents reviewed by DeSmog, Wells’ tobacco arguments parallel, in many ways, those Wells made for Exxon in its April 13 response to the Virgin Islands’ subpoena. Much of that line of argumentation over a decade ago in the tobacco case centered around proving or disproving that Philip Morris would likely commit fraud in the future if left unprosecuted, a key tenet of a successful RICO prosecution.

Throughout the tobacco RICO case, in legal filings and in the courtroom, Wells emphasized how Philip Morris’ behavior had changed and how it had become more a socially responsible corporate entity. In the main, Wells said Philip Morris had done so by withdrawing from the industry-manufactured debate on smoking as it relates to health and addiction, as well as by deferring to the judgment of the public health community on smoking’s human health impacts.

As a document obtained from University of California-San Francisco’s (UCSF) Legacy Tobacco Documents Library details, Wells cross-examined Philip Morris’ “point person“ — General Counsel Denise Keane — about its public relations website. That site attempted to convey that the company no longer participated in the scientific denial of tobacco’s human health impacts.

“The company’s purpose was, number one, to make in a very public way its commitment to no longer being part of what I would call an old world, but to take a step that would codify really for all purposes going forward the fact that it was going to be aligned with the public health community, that it was going to communicate the message of the public health community,” Keane testified under oath at a January 19, 2005 hearing. “And when we talk about what’s on the website, you know, to me, the guiding principle is communicating the message of the public health community.”

But first and foremost, it appears the website existed for Philip Morris’s public relations purposes. A 2008 academic paper published in the journal Public Health Nursing by Ruth Malone and Elizabeth Smith, both professors at UCSF, concluded the website’s existence did not signify any sort of radical shift in company culture on public health.

That paper cites a June 1999 memorandum published in the UCSF tobacco archives, which describes the rationale behind the website.

“The objective of this is to increase the awareness of our social programs and to improve the public perception of our company in the US during these very challenging times resulting from the very negative environment for our tobacco business,” reads the memo. “Hence, we want to capitalize on this advertising campaign by inviting viewers to a Website, where they can learn more about these programs and Philip Morris in general.”

ExxonMobil currently appears to be positioning itself as having moved away from the “old world,” announcing it would be hiring a new climate change researcher in the midst of New York Attorney General Eric Schneiderman announcing his office had opened an investigation on Exxon.

Keane also declared, under cross-examination by Wells, that her company had, under the auspices of an October 2, 1997 Statement of Position, withdrawn from the debate it had manufactured on the human health impacts of tobacco use. As Wells put it in his opening statement for the federal trial, this served as proof Philip Morris had entered into a ”permanent irreversible” dawn of a “new era.”

A similar notion of involvement in public policy “debate” before it had reached an overwhelming scientific consensus arose in Exxon’s response to the Virgin Islands’ subpoena signed off on by Wells on April 13, with the word “debate” used 11 times by the company’s legal team.

Free Speech Attack?

Like with the Philip Morris precursor, Wells and the Exxon legal team attempted to convey the company’s shift from student of climate change science, to funder of climate denial and attacks on science, and then the shift back again to being a responsible corporate citizen concerned about climate change impacts and policy solutions.

“ExxonMobil has publicly and repeatedly acknowledged risks related to climate change” in recent years, Wells and his legal team wrote in response to the Virgin Islands’ AG Office subpoena, citing three example of such acknowledgment in recent years. In so doing, Exxon also claimed the Virgin Islands’ AG Office had launched an attack on its free speech rights and its ability to take part in such debates in earlier years.

“The chilling effect of this inquiry, which discriminates based on viewpoint to target one side of an ongoing policy debate, strikes at protected speech at the core of the First Amendment,” wrote Wells and the Exxon legal team.

The Virgin Islands rebutted Wells and Exxon in an April 25 response.

“Your argument that this investigation targets protected speech mirrors arguments that were decisively rejected in the United States’s case against tobacco, which held tobacco companies financially responsible for and imposed sweeping injunctive relief to address a decades-long scheme by those defendants to misrepresent the scientific facts regarding smoking,” reads the letter signed by Virgin Islands Attorney General Claude Earl Walker. “If ExxonMobil knowingly deceived consumers and investors about climate change, it, too, is not above the law.”

Numerous conservative groups — some with ties to the climate change denial echo chamber such as Koch-funded groups like Competitive Enterprise Institute, Pacific Legal Foundation, and Heritage Foundation — have also called the Virgin Islands subpoena a First Amendment attack.

So too did the editorial boards of the Wall Street Journal and the National Review Magazine. The Free Speech in Science Project, a group whose funding stream has yet to be revealed, has also pushed a First Amendment argument.

“Doubt is Our Product”

The tobacco industry is now infamous for writing in a 1969 memo that “Doubt is our product since it is the best means of competing with the ‘body of fact’ that exists in the mind of the general public.” Yet, Exxon has even said in its own late 1970s studies that “there is no doubt” that pumping carbon dioxide into the atmosphere was harmful.

If doubt is the product, then Wells has produced a legal career representing and defending doubt — from the tobacco wars, through to the NFL‘s concussion crisis and now into today’s “ExxonKnew” saga.

Wells did not respond to multiple requests for comment for this article.

This piece first appeared at DeSmogBlog.