Puerto Rico goes RICO on Big Oil
A new lawsuit from Puerto Rico municipalities argues that fossil fuel companies’ climate deception violates racketeering and fraud laws and that their products supercharged fatal hurricanes in 2017.
Emily Sanders is the Center for Climate Integrity’s editorial lead. Catch up with her on Twitter here.
When Hurricane Maria made landfall in 2017, Puerto Rico’s infrastructure was brought to its knees: roads were submerged, houses and city buildings toppled to their foundation, more than a million people were without power for nearly a year, and thousands of Puerto Ricans lost their lives.
Hurricane Maria was one of many storms intensified by climate change to hit Puerto Rico communities during a lethal 2017 hurricane season. Now, five years later, many of those same communities are taking legal action to hold the perpetrators accountable. Sixteen Puerto Rico municipalities last week filed the most recent lawsuit against major fossil fuel companies — this time, for the role the companies’ climate deception played in that single year of harrowing storms.
The class action suit, filed by the Bayamón, Caguas, Loíza, Lares, Barranquitas, Comerío, Cayey, Las Marías, Trujillo Alto, Vega Baja, Añasco, Cidra, Aguadilla, Aibonito, Morovis and Moca municipalities, is a BFD for Puerto Rico and communities suffering from climate-driven disasters everywhere. It’s also the first of its kind, distinguishable in many ways from the more than two dozen climate liability cases filed by states and municipalities in the U.S. thus far.
Here’s how it stands out:
The lawsuit is the first to charge fossil fuel companies with violating the Racketeer Influenced and Corrupt Organizations (RICO) Act.
This lawsuit is the first ever to charge companies like ExxonMobil, Shell, BP, and Chevron with violating RICO, a law most famously used to prosecute organized crime. Maybe Big Oil and the mafia have more in common than we thought.
In this case, the complaint documents the polluters’ “fraudulent marketing scheme to convince consumers that their fossil fuel-based products did not — and would not — alter the climate, knowing full well the consequences of their combined carbon pollution on Puerto Rico.”
The 247-page complaint points to the “Global Climate Coalition” (GCC), a fossil fuel industry group whose purpose was to “fund and coordinate a multi-year, multi-million-dollar, multi-organization propaganda deception campaign designed explicitly to undermine climate science,” according to the suit.
Karen Sokol, a law professor at Loyola University New Orleans College of Law, said there is ample evidence that fossil fuel corporations profited from their longstanding investments in disinformation through the GCC. “This isn’t just about one deceptive marketing campaign,” she told me. “This is about systematic, decades-long efforts to really obscure things in a way to change the market. The RICO claims, the detailing of why that’s a racketeering activity and a conspiracy, allows for them to tell that story.”
Melissa Sims, one of the attorneys at Milberg Coleman Bryson Phillips Grossman LLC, the law firm representing the Puerto Rico communities, said fossil fuel defendants’ actions were not only similar but directly tied to the tobacco companies, who in 2006 were themselves found guilty of racketeering and corruption after facing a lawsuit from the U.S. Department of Justice. “The racketeers solicited the same scientists who denied the link between second hand smoke and lung cancer,” Sims told me.
In an internal industry document known as the 1998 Victory Memo, part of a master strategy of deceit assembled by the American Petroleum Institute and cited throughout the complaint, the defendants’ intent was summarized: “Victory will be achieved when average citizens understand uncertainties in climate science.”
“This memo was a multi-faceted approach intended to dupe consumers into believing there was no such thing as climate change and that their products wouldn’t cause the disastrous effects we’re seeing today,” Sims said.
Unlike other climate liability cases, this lawsuit was filed in federal, not state, court.
Sims said the unique charges brought in this suit — which include violation of federal fraud, racketeering, and antitrust laws, as well as Puerto Rican fraud, public nuisance, and product liability laws — are best suited for federal jurisdiction.
That means that lawyers for Big Oil won’t be able to delay Puerto Rico’s case by arguing that it belongs in a different court, as they have done (unsuccessfully) in the state court lawsuits. While the oil companies have failed — in every case — to stop those suits from moving forward toward trial in state court, their jurisdictional arguments have cost precious time for states and municipalities seeking justice. With the Puerto Rico lawsuit, “we won’t have that fight,” said law professor Sokol, who also predicts that the companies won’t be able to claim that the RICO charges are preempted by federal common law.
Puerto Rico’s case also focuses on specific climate-driven disasters — the 2017 Atlantic hurricane season.
In a 1998 internal document cited in the lawsuit, Shell predicted that a “series of violent storms” would hit the east coast, and that a class action lawsuit against fossil fuel companies for ignoring their own scientists’ warnings would follow.
Almost two decades later, six major hurricanes struck Puerto Rico in a single year, leaving the territory facing a vast crisis of medical disasters, infrastructure damage, and homelessness. In an attribution study following the storms and cited in the complaint, Puerto Rico was named one of the most affected places by climate change in the world.
Sokol says the growing field of attribution science is getting better at connecting specific weather events to climate change, which could lead to more lawsuits centered around particular disasters. “This evidence keeps getting stronger and [scientists] keep being able to do it faster,” she told me.
The municipalities want compensation for the 2017 hurricane season and funds for adapting to future storms.
Elected officials in Puerto Rico said the lawsuit presented an opportunity to finally hold accountable the corporations that have long profited at the expense of their communities. Their lawsuit seeks to make the polluters pay billions to remediate the damage from 2017 and protect Puerto Rico’s infrastructure against future storms.
Bayamón Mayor Ramón Luis Rivera Cruz told El Nuevo Día that it was important to participate in the lawsuit “not only because of what the municipality could receive in economic terms, which could be injected into the renewable and solar energy projects we have, but also because it sends a message that large companies have an ethical and moral obligation to humanity and that they have to be careful with how they do their business.”*
That’s especially crucial in a territory that has endured a complex history of environmental racism, colonial exploitation, and abandonment.
Thanks to these municipalities, Big Oil will join the tobacco and opioid industries in having to confront new legal arguments to hold them accountable.
“What is the law going to do in a climate disrupted world? How is it going to evolve?” asks Sokol. “It’s cases like this that are going to give us some sense of what that intersection is going to look like.”
*Translated from the original Spanish
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