19 Marq. Ben. & Soc. Welfare L. Rev. (January 2018, Forthcoming)
40 Pages Posted: 7 Apr 2017 Last revised: 4 May 2017
Date Written: February 25, 2017
A May 2015 op-ed in the Washington Post by Sen. Sheldon Whitehouse (D. RI) accused the fossil fuel industry of “funding a massive and sophisticated campaign to mislead the American people about the environmental harm caused by carbon pollution. Their activities are often compared to those of Big Tobacco denying the health dangers of smoking. Big Tobacco’s denial scheme was ultimately found by a federal judge to have amounted to a racketeering enterprise.” The Attorneys General of New York and Massachusetts began investigating Exxon Mobil because its chairmen expressed opinions such as - “Efforts to address climate change should focus on engineering methods to adapt to shifting weather patterns and rising sea levels rather than trying to eliminate use of fossil fuels.” We look at these two investigations through the lenses of the federal mail and wire fraud statutes (at issue in the racketeering case against big tobacco), and the First Amendment.
We analyze the difficulty of prosecuting someone under the federal mail and wire fraud statutes for expressing an opinion, and discuss why scientific statements are more akin to opinions than statements of fact. We conclude that a case can be made against the Exxon chairmen only if the chairmen did not actually believe the opinions they uttered. Holding the chairmen to the standard of an expert, their opinions entail liability only if the opinions lacked a reasonable basis, or if the chairmen knew material facts, unknown to the public, which conflicted with their opinions.
Even if the case could be made that the Exxon statements were not true, climate change is a matter of public concern and active public debate, so that even if the statements could be categorized as a form of commercial speech, the First Amendment would allow only counter speech as a remedy.
We conclude that Sen. Whitehouse’s analogy to the tobacco case was misconceived, that it is highly unlikely that the Exxon statements can lead to RICO liability, or fraud liability of any kind, that there is no probable cause to believe that an offense has been committed, and that the AGs’ investigations are misconceived.
Being lawyers (and since only one of us is also a meteorologist), we have focused on the law, and express no opinion regarding the existence of global warming or climate change.
Keywords: climate change, fraud, first amendment, denial, free speech
Suggested Citation: Suggested Citation
Mandel, Richard and Ehrlich, Craig, The Prosecution of Climate Change Dissent (February 25, 2017). 19 Marq. Ben. & Soc. Welfare L. Rev. (January 2018, Forthcoming). Available at SSRN: https://ssrn.com/abstract=2947881