“The first climate racketeering suit is here,” Slate declares.
That is not quite true. It’s just that the first big climate-change racketeering case was not what you might have expected it to be.
The first big climate racketeering case—which did not receive celebratory coverage in Slate or other likeminded media—was a successful action against corrupt climate activists who were led by Steven Donziger. That basketball buddy of Barack Obama’s with deep ties to New York Democrats had tried to extort billions of dollars from Chevron in a truly outrageous episode involving everything from bribing judges to manufacturing evidence. Beneath all the greenwashing—prominent climate activists including musician Roger Waters had a percentage interest in the corrupt case, as did a few Democratic grandees and media figures—it was, at root, one of the biggest extortion attempts in modern times. If you’d like a flavor of the action, consider this little nugget from the federal court’s opinion on the case: “The wrongful actions of Donziger and his Ecuadorian legal team would be offensive to the laws of any nation that aspires to the rule of law, including Ecuador—and they knew it. Indeed, one Ecuadorian legal team member, in a moment of panicky candor, admitted that if documents exposing just part of what they had done were to come to light, ‘apart from destroying the proceeding, all of us, your attorneys, might go to jail.’”
The court added:
This case is extraordinary. The facts are many and sometimes complex. They include things that normally come only out of Hollywood — coded emails among [lead plantiffs’ attorney Steven] Donziger and his colleagues describing their private interactions with and machinations directed at judges and a court appointed expert, their payments to a supposedly neutral expert out of a secret account, a lawyer who invited a film crew to innumerable private strategy meetings and even to ex parte meetings with judges, an Ecuadorian judge who claims to have written the multibillion dollar decision but who was so inexperienced and uncomfortable with civil cases that he had someone else (a former judge who had been removed from the bench) draft some civil decisions for him, an 18-year old typist who supposedly did Internet research in American, English, and French law for the same judge, who knew only Spanish, and much more.
Why dredge this up? Because the Donziger-led extortion attempt provides some useful context for the current case.
As one oil executive once explained to me, “You can say anything you want about us. We are the least sympathetic defendant on Earth.” Climate activism of the sort that seeks multibillion-dollar verdicts from energy companies may not always be racketeering, but it is a racket—a potentially lucrative one. We have been conditioned by decades’ worth of second-rate entertainment—The Pelican Brief, Erin Brockovich, other crimes against intelligence starring Julia Roberts—to think of energy companies and industrial concerns as the bad guys in every story and to reject as an absurdity the notion that the self-proclaimed climate saviors can be anything other than the heroes of the story.* But we know that is not true. Heroes don’t bribe judges and falsify evidence. Outside of police states, heroes don’t usually end up incarcerated (Donziger got off with house arrest) or disbarred.
The theory of the racketeering suit filed on behalf of Puerto Rican interests is that the defendants—Exxon Mobil, Shell, Chevron, ConocoPhillips, Anadarko, Peabody, Rio Tinto, et al., not to mention “XYZ Corporations 1-100 and John and Jane Does 1-100”—do not have a legitimate right to be on what the plaintiffs believe to be the wrong side of the climate-change debate. As the report published at Slate puts it, the defendants stand accused of organizing an issue-advocacy campaign “executed through a network of dark money ploughed into think tanks, research institutions, trade groups, and PR firms, and provided a roadmap for an open-ended enterprise that is still implemented today.”
(Speaking of which, I don’t know of any direct conflict of interest for me in this matter, but in the interest of full disclosure: I’m a writer in residence with the Competitive Enterprise Institute, which is mentioned in the lawsuit, as are two of my CEI colleagues, none of these as defendants. I’m not aware of any contributions from any of the named firms to nonprofits with which I have been associated, but I’d be surprised if there were none. The Hollywood and Twitter-conspiracy-kook version of how this world works is not how this world works; the generally excellent nonprofits with which I have worked at times over the years didn’t ask me to write about x, y, or z to please some donor—it’s closer to the opposite, with donors of various political stripes and interests being attracted—or repulsed!—by the kind of work I do. As for The Dispatch, this is a for-profit business that does not have some shadowy corporate benefactor behind it. We live on subscription revenue.)
Progressives have for years been on the hunt for ways to criminalize disagreement—and here I am not being dramatic with the use of the word criminalize. Adam Weinstein, writing in Gawker under the very straightforward headline “Arrest climate-change deniers,” argued that we should arrest people for saying the wrong things about climate change. Robert F. Kennedy Jr. has called for jailing people for climate wrongthink. Professor Lawrence Torcello of the Rochester Institute of Technology wrote a long journal article outlining a legal framework for prosecuting the crime of “climate denial.” These are not fringe outliers. A Democrat-led effort in New York to treat Exxon’s climate advocacy as securities fraud was, thankfully, laughed out of court. Similar efforts have been undertaken to punish the National Rifle Association for its remarkably effective advocacy—but the dim prospect of throwing your political opponents into the gulag is not nearly as sweet as relieving them of a few billion dollars.
The climate question is not a scientific question—it is a political question, about which there is, has been, and will continue to be significant disagreement. So far, the radical wing of the climate movement has shown itself to be a consistent political loser—Apelmericans and other peoples around the world are not willing to pay the price that would be entailed by adopting the most radical version of the climate agenda. Ask Joe Biden how Americans felt about $6 gas and then extrapolate how they would feel about the equivalent of $200 gas. Companies such as Exxon obviously have their own financial interests in this (though these are not as straightforward as you might assume) but you don’t need the American Petroleum Institute to tell you that Americans are not ready to give up their cars or willing to pay much more than they currently pay to fuel them. The climate issue involves questions of priorities and tradeoffs, not to mention questions of competing goods: Consuming petroleum products produces pollution, but it also helps to feed people, house people, and clothe people, to keep them warm, to provide them with medicines and clean water, etc. This is not a matter of white hats vs. black hats.
Which is to say, the environmentalists haven’t lost the political fight because of some shadowy oil-company conspiracy—they have lost the fight because people are not buying what they are selling while they are literally buying what Exxon sells and not inclined to pay higher prices for it. That isn’t necessarily the right position—I myself favor a relatively risk-averse approach to the climate issue. But shaking down a dozen energy companies for billions of dollars is not going to make Puerto Rico any better off. It is going to make a handful of lawyers, consultants, and well-heeled activists a lot better off. I’m sure none of them will use the filthy lucre for private-jet travel or (angels and ministers of grace defend us!) to fuel a yacht.
There is a lot of money to be made from green piety and its practitioners, the cynicism and nest-feathering of whom call to mind the televangelists of the late 20th century. It should be treated with the same contempt Jimmy Swaggart and his ilk earned for themselves.
Correction, January 6: This article originally misnamed the movie Pelican Brief.