Attorney who fought Big Tobacco says Big Oil should be next
Sharon Eubanks, who led the DOJ’s corruption and racketeering lawsuit against Big Tobacco, shares her thoughts on the battle for climate accountability
Emily Sanders is the Center for Climate Integrity’s editorial lead. Catch up with her on Twitter here.
On August 17, 2006, U.S. District Judge Gladys Kessler delivered a historic verdict against Phillip Morris and other major tobacco companies, finding them guilty of a decades-long conspiracy to convince the public that cigarettes were not harmful to public health. The ruling was the result of a Racketeer Influenced and Corrupt Organizations (RICO) case filed by the U.S. Department of Justice in 1999. The year prior, the four largest tobacco companies had agreed to settle lawsuits with 46 U.S. attorneys general for more than $200 billion — compensation for the massive healthcare costs incurred as a result of the industry’s deception.
Judge Kessler ruled that the tobacco companies had “marketed and sold their lethal products with zeal, with deception, with a single-minded focus on their financial success, and without regard for the human tragedy or social costs that success exacted.” Her ruling ordered the companies to publish “corrective statements” about the harms their products would cause, among other remedies.
Now, one of the attorneys who led that historic fight for accountability believes that Big Oil — whose trajectory of lies, damages, and public reckoning has mirrored that of Big Tobacco — is heading toward a similar fate in the courts.
Sharon Eubanks was lead counsel for the U.S. Department of Justice in U.S. v. Phillip Morris, et al. In a recent op-ed for The Guardian, Eubanks wrote that “a legal tipping point may be soon approaching for fossil fuel companies and the spin masters that work for them …Accountability is coming soon, and the implications will be vast.”
I spoke with Eubanks about the connections she sees between the two industries’ treacherous legacies, and what she believes is coming down the pike for Big Oil, whose products have wrought irreversible harms not just to their consumers but to the entire planet. Our interview, edited for length and clarity, is below.
EK: You were lead counsel for the United States in the major federal lawsuit against Big Tobacco. Are there connections between the tobacco industry and oil industry that you think people should know, anything you didn’t get to cover in your recent Guardian op-ed?
SE: The thing that pops up for me that wasn't discussed in the article, but is a huge similarity, is something called the Frank Statement to Cigarette Smokers, and the advertorials that Exxon put out over the years saying “wow, we don’t know about this global warming thing, but we’re sure looking to see what we can do to help.”
Back in 1952 there was an article in the Reader's Digest that tied cigarette smoking to lung cancer. It set off alarms for the tobacco industry, and so the major tobacco company manufacturers and distributors in the U.S. got together and created what was called a Frank Statement to Cigarette Smokers. They put it out in a number of periodicals to try to calm everybody's craze over “is this stuff killing me? Is it harmful?” And it says, basically, we believe that the products we make aren't injurious to public health. We think it's all fine. And in fact, we are pledging aid and assistance for the research effort into all phases of tobacco use and health. Then they say “For this purpose we are establishing a joint industry group consisting initially of the undersigned,” which was all of the tobacco companies. “This group will be known as the Tobacco Industry Research Committee.” They were purchasing science.
Through the years, it became clear in all the cases that were litigated that the whole thing was a fraud. And one of the things finally that the companies agreed to do when they settled with the states was to stop the operations of that organization. Now switch over to what the petroleum companies are doing. Their ads focus on renewable energy, but the fact is that while they put those ads out there, [less than 5%] of their financial investments are spent on [renewables]. Meanwhile, they're telling the public that they’re trying to find solutions, “we care about you” kind of thing — which is total BS. It's a page out of what the cigarette industry was doing back in the mid-fifties to make people aware that some science was out there, that they were working on it, and they would get back to you and let you know, cause we care about you people and we would never do anything horrible or bad. They wanted to make sure that nothing would ever come forward that suggested or definitively concluded in any scientific way that there was a causal link between disease and their product.
At the same time that Exxon and the fossil fuel industry were putting out this stuff saying the science is unsettled, their internal documents show that the causal link between their product and what's happening to the climate is well settled. That's exactly what the tobacco industry did. In these ads that Exxon put out, they say that global climate change is everybody's debate. Again, at the same time while they're calling it a debate, their internal documents show that going back at least to the early eighties, they knew what was happening and were not interested in resolving it by truthfully giving people that information.
And that set us back time wise. That's the whole point here. There was so much that we could [have done] in the time that we had. One of the Exxon memos said basically that climate change is a daunting task, but we can do this. This is something that we can fix, but we need to devote resources to it. Well, they took those documents and made them all secret internal documents. It took a while for us to get to see them. Now I think we're gonna see even more with some of the lawsuits which have survived motions to dismiss and will move forward with discovery. [Note: To date, Massachusetts’ consumer fraud lawsuit against ExxonMobil and Honolulu’s cost recovery suit against Exxon and other oil majors have both prevailed against the industry’s motions to dismiss.]
In your op-ed for The Guardian, you say lawsuits against Big Oil for greenwashing and deceptive marketing are the “most significant legal cases facing fossil fuel companies today.” Can you talk about why?
Those cases deal with state or municipal law, and the local governments — whether it's the state attorney general or even mayors — can bring those actions. We are talking about an interpretation of a consumer protection statute that a state may have. That consumer protection statute, historically, is something that is determined by state court.
To me, those cases have been successful because they're in state court, and we are talking about an interpretation of state law. What we're looking at, what the companies are doing, is false and misleading or deceptive advertising — whether the science was settled, whether they lied about it, all of those things are something that could be part of, depending on how it's drafted, a state consumer protection statute. Thinking about all the coastal communities in the country that really have direct evidence of the effects of climate change and the relationship between climate change and the petroleum industry's actions, there's a lot that you could do.
In our latest issue of EXXONKNEWS, we looked at how corporations and their dark money front groups helped put industry-friendly justices on the U.S. Supreme Court to carry out their deregulatory agenda, beginning with the ruling in West Virginia v. EPA. Can you speak to the importance of accountability litigation in such a hostile landscape where industry giants control so many levers of political power and influence?
Well, that's very simple. You can't stop and give up. They can squelch your voice only so much, and we're not gonna stop pushing because it's hard. We can't be discouraged by the fact that Big Oil’s dark money pushes forward in our politics. What we can do is continue to point that out, continue to try to educate people on what's happening and why it makes a difference.
It will take some time. I know it's very hard and people are tired. But there's a lot of creativity that we see out there. Clean Creatives has done some pretty impressive stuff. They push this idea that you shouldn't do PR for [Big Oil] at all. When you hit business in its own pocket book, then I think you will see some changes. There's a lot of different angles of advocacy that will, I hope, influence lawmakers and the public. Any candidate who's out there needs to be required to take a position on particular aspects of climate change and what ought to be done. I think we're gaining more people — every year, I think there are more people who have an understanding of what's at stake.
All is not lost because the Supreme Court refused to recognize the value of its own precedence. What is left is what we learn from that decision and how we mobilize and get it done. Litigation plays an important part in moving forward, and we should press forward, full steam ahead. The bottom line for these companies is not the health of our people, it's money. And that's what they will understand when they're pushed to the wall in court case after court case, where they are being defeated. We need to keep the pressure on.
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