The Virginia Attorney General Joins in Scam Threatening Free Speech

by David SchnareJefferson Policy Journal 

The Racketeer Influenced and Corrupt Organizations (RICO) Act is a federal law enacted in the early 1970’s that provides for extended criminal penalties and a civil cause of action for acts performed as part of an ongoing freedom of speechcriminal organization. The law was targeted at “Racketeering” activity, which includes things like murder, extortion, robbery, drug dealing or trafficking, money laundering, embezzlement, and bribery. Its purpose is to ensure that both the murderer and the boss that ordered the murder are both punished. All that is required is a “predicate crime” such as murder, and a conspiracy to conduct the crime.

The Climate Change debate has entered a new battlefield, the world of criminal RICO investigations. On March 29th, 20 state Attorneys General (19 democrats and one independent, including the Virginia AG) held a press conference announcing that they were opening RICO investigations on a petroleum company, Exxon/Mobil, and its “conspirators.” These conspirators included the Competitiveness Enterprise Institute, a Washington D.C., libertarian think tank. The AG’s have designated their efforts as the “Exxon/Fossil Fuel Company Investigations.” This effort is legally ugly, its politically stupid and its purpose has nothing to do with punishing criminal acts.

What in the world does RICO have to do with climate change? Well, one “predicate crime” is fraud. If a company, say Exxon/Mobil, fails to inform its shareholders that its products are one of the causes of climate change and thus the company is potentially liable for harm to people as a result of climate change, then Exxon/Mobil will have defrauded its stockholders who have been uninformed as to the true financial risks facing the company.

The chances of success in such a RICO suit are infinitesimally small. But this is not about a law suit. It’s about something else altogether – greed. Here’s the inside story.

Attorneys are looking for a big score – a law suit that will enrich them beyond their wildest dreams. Attorneys General are looking to make a big political splash. States are looking for a new pot of money. And, there are businessmen and women who are looking to harm their economic competitors. These are the players in the new RICO drama. Here’s how the scam plays out.

Foundations, including the Rockefeller Brothers Fund (RBF), have trustees or directors who directly benefit from the activities the foundations fund. For example, Wendy Gordon, an RBF trustee is a consultant for the Natural Resources Defense Council. RBF gave her organization $1.5 million over the past five years. Jennifer Nolan, another RBF trustee, is a “passionate environmentalist” who earns a living as an environmental activist. Justin Rockefeller, a third RBF trustee, is a venture partner at Richmond Global, LLC, a company making investments in alternative energy compatible technologies. The RBF funded the effort to bring together the lawyers and states that oppose traditional energy and are the critical partners in a RICO action.

One lawyer, Matt Pawa, is an environmental attorney who works with the Climate Accountability Institute and the Global Warming Legal Action Project of the Civil Society Institute. He has failed repeatedly in his civil climate change tort claims against hydrocarbon companies and is still looking for a way to hit it big in a legal settlement. He is a pay-for-play lawyer who wants to replicate the Tobacco Settlement litigation. He participated in a panel discussion hosted by the extreme liberal American Constitution Society at which Sharon Eubanks spoke.

Ms. Eubanks headed up the Tobacco litigation and has profited significantly therefrom. Eubanks claimed that RICO could be applied to hydrocarbon companies and anyone who received grant support from them and anyone who agreed with them on the issues and anyone who denied anthropogenic climate change or anthropogenic global warming (“ACC” or “AGW”). She also admitted the facts necessary to bring a claim were not in hand and that the Department of Justice was unlikely to undertake a RICO investigation, something RICO authorizes DOJ to do before filing a complaint. This is why the State AGs were necessary. They could undertake the investigations. Pawa gets no traction for his legal efforts unless he can get a government to conduct an investigation that would hopefully find the facts needed to litigate.

Another law firm, working for the Virgin Island AG, is Cohen Milstein, a group Exxon claims is probably working on a contingency fee that only pays off if there is a big settlement. Exxon has pointed out that Cohen Milstein’s contingency fee contracts in other related cases include a startling pattern of alleged misconduct and misrepresentation by the firm and its co-counsel in fabricating plaintiffs and claims, bribing witnesses, and making false statements to the court and others. This suggests that Cohen Milstein cannot be the neutral, disinterested prosecutor required by due process under both state and federal constitutions. They are the tool the AGs have decided to use.

But, there is no plan to seriously litigate. As Professor G. Robert Blakey, a RICO consultant to the U.S. Department of Justice on the tobacco lawsuit, explained, these extortionate law suits are “made to settle,” they are not made to win.

This political and financial greed of the “green 20” and their investigations have ramifications. As Peggy Little with the Federalist Society explains, this is an attack on “core constitutional commands of free speech, limited and constitutional government and the rule of law. This latest incarnation of regulation by litigation which seeks to punish climate change wrong think has crossed a line that lies at the core of the First Amendment—a government imposing its orthodoxy upon its citizens.  Some 29 state Attorneys General agree with her and have castigated their 20 brethren for the RICO investigative effort.

Ms. Little also reminds us of the U.S. Supreme Court’s position on such action: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” 

The self-serving nature of this RICO nonsense is also another attempt to shift attention away from the need for open scientific discussions on climate science. Alarmists refuse to participate in these necessary discussions. Some alarmist scientists even refuse to appear on the same stage with their peers for such a discussion and others are demanding that the news media refuse to report on scientific work that documents the scientific weakness of climate alarmism.

The Virginia legislature has a role in this latest RICO scam. They need to hold hearings and have the Virginia Attorney General justify his participation in a group that is attacking the foundations of free speech and sound science.

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