Environmental organized crime: Liability of oil giants under the RICO Act

History of Climate Knowledge

In 1959, the president of the American Petroleum Institute (API) Frank Izard acknowledged that excess carbon dioxide in the Earth’s atmosphere would cause an adverse heat imbalance and marked climactic changes. This revelation came after a presentation for API executives conducted by scientist Edward Teller, which conveyed that the combustion of their oil and gas products caused carbon dioxide emissions, resulting in melting polar ice caps and sea level rise. These findings, commissioned by President Lyndon B. Johnson, pointed to fossil fuels as the most evident source of pollution. Findings such as these were revealed in the 2024 White House Joint Staff Report on oil and gas companies’ efforts to avoid accountability for global climate change. 

Mobilization of Industry Efforts

Before the public’s general awareness of the climate crisis, oil giants mobilized to contend with these potential consequences. Members of API such as ExxonMobil, Shell, and Chevron developed climate modeling systems to understand the threat of fossil fuels and commissioned offshore oil drilling platforms capable of withstanding larger sea ice impacts, thus factoring rising sea levels into their operations.

Despite extensive preparation, oil companies began to realize that shifting operations would curtail profits, and began to forward deceitful campaigns. In 1988, ExxonMobil adopted a representative stance for the oil and gas industry to forward uncertainty in climate science and the Greenhouse Effect, downplaying the destructive potential of greenhouse gases. Soon after, the Global Climate Coalition was enacted, which sought to reduce government policies curbing fossil fuel emissions and fight development of renewable energy. API later dispersed a memorandum to their Global Climate Science Communications Team dubbed the “Victory Memo,” in 1998, stating: “Victory will be achieved when average citizens ‘understand’ (recognize) uncertainties in climate science. Unless ‘climate change’ becomes a non-issue ... there may be no moment when we can declare victory.” Through API, fossil fuel companies attested to the veracity of climate change, yet worked in concert under organizational representation to dispute the reality of its dangers.

The RICO Act

The Racketeer Influenced and Corrupt Organization (RICO) Act was enacted in 1970 to eliminate organized crime in the United States. RICO may provide a plausible basis to prosecute multitudes of oil and gas executives collectively responsible for the climate crisis under one cause of action. The operational avenue for prosecution lies in the finding of a conspiracy. Liability requires racketeering activity that follows a pattern, conspiracy to engage in racketeering acts, and satisfying the elements of the underlying act(s).

The essential element of a RICO conspiracy claim is the existence of an enterprise, which ties together multiple defendants and their violations as a pattern of racketeering activity. An enterprise may be any individual or organization, be they a legal entity or otherwise. A pattern of racketeering activity is established when predicate acts are continuous or amount to a continuing harm. These acts must be related in their purpose, results, participants, victims, or methods. Even without the commission of a related act, a defendant may still be liable through association with the overall enterprise.

Environmental crimes as predicate acts

There are currently no predicate acts listed in the RICO statute concerning environmental contamination. However, environmental violations may be remedied through existing predicate acts, the most common being mail and wire fraud. Even if the acts are not precursory to environmental violations, they can be validated if the enterprise is accused of environmental violations. The elements of both types of fraud require a general defrauding scheme and use of the mail system or interstate electronic communications (the former for mail fraud; the latter for wire fraud).

API was founded in 1919 to represent oil and gas industry interests in the United States. API and their associates lobby for government policies benefiting fossil fuel companies, functioning as a cohesive organization to forward such policies. API therefore fits within the definition of “enterprise” in the RICO Act. Numerous companies under API collaborated to spread climate research and later to dismantle it. Together, they circumvented responsibility for their contribution to the climate crisis through the creation and execution of a campaign to mislead the public from the realities of the climate crisis. In aggregation, their actions contribute to a threat of continuing harm, as global climate change is a burden which all individuals bear. Given the nature of the modern age, and that API formulated these campaigns both before and during the age of the Internet, courts would find the task of proving API did not use electronic communications or mail systems more difficult, thus establishing mail and wire fraud as easily achievable predicate acts. In all, fossil fuel companies worked to craft false promises in light of the climate crisis to encourage the sale of their products while investing precious little into solutions. As such, they have intentionally defrauded the American public and deprived them of monetary gains. Fossil fuel conglomerates can indeed therefore be found liable under the RICO Act.