DOJ should prosecute Big Oil like it did tobacco industry, former federal litigator tells Senate

The federal government should take legal action against the petroleum industry, as it once did against Big Tobacco, a former federal litigator told the Senate Budget Committee on Wednesday. 

Major oil and gas companies have misled and endangered the public in a manner similar to the tobacco industry, said Sharon Eubanks, a former Justice Department lawyer who led the racketeering lawsuit against the tobacco industry in the mid-2000s, arguing those actions deserve to be sorted out in court.

“If you were the attorney general of the United States, would you prosecute in that direction?” Sen. Bernie Sanders (I-Vt.) asked Eubanks.

“I would, yes,” Eubanks said. “No question.”

Eubanks was one of five witnesses called to testify in regards to a report released Tuesday by the Senate Budget Committee and Democratic members of the House Oversight and Accountability Committee.

As The Hill reported, that investigation cited internal documents from oil and gas companies in its findings that the industry had sought to slow-walk or reverse action to protect the climate even as company leaders publicly announced their support for climate goals.

The report included documents that showed fossil fuel insiders seemingly admitting ways their industry had suppressed research on the dangers of burning oil and gas — even as they publicly insisted they had done no such thing.

Oil companies and other entities named in the report have pushed back against its characterizations, as did GOP senators.

In written and spoken testimony, Eubanks argued that the government's litigation against the tobacco industry offered a road map for addressing the fossil fuel industry’s long history of public advocacy against climate science.

Like cigarette companies, she said, fossil fuel majors have been critical of the science regarding their industry's harms while arguing against efforts to regulate it — even as their own internal documents appear to show that they understood their primary products were heating the planet.

In the civil case against the tobacco industry, federal prosecutors successfully argued that the industry was guilty of racketeering — or an organized, illegal conspiracy. 

That tobacco litigation established that cigarette companies “had defrauded consumers about the health dangers associated with cigarette smoking,” according to the Justice Department.

Federal prosecutors brought these charges under the Racketeer Influenced and Corrupt Organizations Act (RICO), which was established to combat organized crime.

RICO was “a way to bring all of the [tobacco] claims under the same umbrella,” Eubanks said. 

She added that “‘conspiracy’ is a good claim to look at in a lot of the statutes that are involved in consumer protection laws.”

In written testimony, Eubanks pointed to copious lawsuits against the “deceptive advertising and the PR of the fossil fuel industry,” with about 1,800 cases proceeding in the U.S. and nearly 1,000 overseas.

Both tobacco and fossil fuel companies, she wrote, “lied to the public and regulators about what they knew about the harms of their products, and when they knew it.”

In the tobacco case, she wrote, the judge found that companies hid research, “entered into agreements not to conduct research, and used lawyers to control research so that it would serve the purposes of litigation and public relations.”

Similarly, she wrote, “the fossil fuel industry concealed its well-known facts about the cause of climate change and instead deployed significant resources in an effort to sow doubt about the science.”

Other witnesses backed up this line of argument. 

“We have the receipts,” Geoffrey Supran, director of the Climate Accountability Lab at the University of Miami, told the Budget Committee. 

Supran added that “we have overwhelming evidence that this industry has known — since twice my lifetime — about the dangers of their products. And they knowingly and deliberately created a multidecade, multibillion-dollar campaign to ...”

Sanders broke in. “And countries around the world were very slow moving in attempting to deal with climate change?” he asked.

“That’s correct,” Supran said, pointing to evidence from the Intergovernmental Panel on Climate Change (IPCC), the main international body of science tracking climate impacts.

In its landmark 2021 report, the IPCC found that the need to address climate risk had “been made more urgent by delays due to misinformation about climate science,” which it said “has sowed uncertainty” and slowed the public’s “recognition of risk.” 

Republicans pushed back on this framing. Sen. Chuck Grassley (R-Iowa) turned to Ariel Cohen, a senior fellow at The Atlantic Council and a veteran of the conservative Heritage Foundation. 

“Dr. Cohen, if Democrats had their way, they would destroy America's fossil fuel production through excessive regulation and unlimited taxation at a time when Americans can least afford it,” Grassley said.

“In your view, and your point of view, what is the difference between tobacco and fossil fuel commodities?”

“The fundamental difference between tobacco and the fossil fuel industry is that the fossil fuel industry brings a tangible economic good to the economy,” Cohen said. 

“Without it, we cannot have our transportation, our deliveries, our military, machines, planes tanks moving around. So I do not — I hope that nobody in the right mind is advocating immediate cessation of fossil fuel production.”

At least during the hearing, nobody did. In a previous exchange between Rep. Jamie Raskin (D-Md.), the top Democrat on the House Oversight and Accountability Committee, and Sen. John Kennedy (R-La.), Raskin argued for a 4 percent annual reduction in fossil fuel production for the foreseeable future.

Cohen added that “the only thing tobacco does is addiction and health harms. Fossil fuel, on the other hand, as polluting as it may be, produces huge amounts of relatively cheap and concentrated energy. Without it, our economy and our society would collapse.”

Democrats sought to keep the conversation narrowly focused on the question of deceit — by the fossil fuel industry and by the tobacco industry.

For example, Senate Budget Committee Chair Sheldon Whitehouse (D-R.I.) pointed to internal documents in the report in which gas industry executives referred to the fuel as a “destination-fuel,” in contrast with their public statements that it was a “bridge” to an all-renewables economy.

That, he argued, was a deception — and a dangerous one, given that leaks of methane, the prime component in gas, heat the planet dozens of times more powerfully than the carbon dioxide released when fossil fuels are burned.

Pointing to the mid-2000s litigation against the tobacco industry, Whitehouse asked if it was fair to say that the federal victory meant that tobacco companies “were forbidden to lie?”

“In a nutshell, yes,” Eubanks said. "And indeed, that they were under an affirmative obligation to correct some of the lying that they had already done.” 

As a result of that litigation, stores that sell tobacco must prominently post signs reminding customers that cigarettes cause cancer.