The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In December, Greenpeace urged the federal government to investigate oil companies and organizations that dispute the risks of climate change under the federal Racketeer Influenced and Corrupt Organizations (RICO) Act. Specifically, Greenpeace media officer Cassady Sharp called upon the Justice Department to undertake a "broad" investigation to "look into the role of [ExxonMobil and] other fossil fuel companies, trade associations, and think tanks in sowing doubt about the risks of climate change."
Greenpeace was not the first to call for RICO investigations into those who oppose costly climate change policies. Sen. Sheldon Whitehouse (D-R.I.) made a similar call last year (prompting criticism from home-state press), as have others. Greenpeace may soon have second-thoughts about its embrace of RICO, however.
Earlier today, Resolute Forest Products filed a civil RICO suit in a federal district court in Georgia, alleging a pattern of defamatory and fraudulent behavior by Greenpeace and allied organizations. According to the 100-plus-page complaint (and appendix), Greenpeace and its affiliates are a RICO "enterprise" that have waged a deliberately defamatory campaign against Resolute, misrepresenting the company's practices and environmental record in order to raise funds and promote Greenpeace's environmentalist agenda:
The common purpose of the Greenpeace Enterprise was to target Resolute with a disinformation campaign that could be used to fraudulently induce millions of dollars in donations from individual donors and foundations that could be used to fund the salaries of the enterprise members and its leaders, perpetuate more fraudulent fundraising, and expand the campaign to direct attacks on Resolute customers that would provide even more powerful fundraising opportunities. . . .
In perpetuating this fraudulent scheme, Greenpeace has developed a playbook that is readily recognizable. It identifies or manufactures a hot-button environmental issue;disseminates sensational, alarmist, and false claims about impending calamity related to that issue; targets a high-profile company to vilify for the impending calamity, including by staging fake videos, photographs, and other evidence (such as staging animal slaughters by Greenpeace members impersonating others, and misrepresenting ordinary trees that have fallen as "ancient trees" harvested by its targets or photos and videos of one location or event passed off as another); bombards supporters with urgent requests to "DONATE NOW"; and directs extortive demands, tortious interference, and other illegal conduct at its targets and their customers. When Greenpeace's extortion succeeds, it insists that its target publicly endorse its campaign and lies,which it then uses to drive more donations and attacks
The heart of Resolute's complaint is that Greenpeace and its affiliates have repeatedly and systematically misrepresented the company and its forest practices as part of its fundraising efforts. According to Resolute, Greenpeace officials and representatives knowingly and deliberately make false and sensationalist claims about the company when seeking publicity and soliciting donations, including (but not limited to) fabricating evidence of Resolute's alleged environmental malfeasance.
I confess that I'm no big fan of RICO, particularly when used to fight what is ultimately a political battle, but if the statute may be deployed against climate skeptics (as Greenpeace has urged), I see no reason why it can't be used against environmentalist groups as well, particularly if (as Resolute alleges) some groups are deliberately fabricating evidence as part of their media and fundraising campaigns. This last point is important, for Resolute is not merely disputing Greenpeace's rhetorical claims or disputing its conclusions (though it does this). Resolute also maintains that Greenpeace officials and affiliates deliberately falsified evidence (such as by doctoring photographs).
Perhaps now that it is a RICO defendant and faces the prospect of expansive discovery in addition to a substantial financial judgment, Greenpeace might consider that it's better to wage policy fights in the policy arena—with facts and logical arguments—and not the courtroom. One can only hope.
Interestingly enough, today's RICO filing is not Resolute's first legal attack on Greenpeace. The company also filed a defamation claim against Greenpeace in a Canadian court. How this suit proceeds might give Greenpeace and its allies second thoughts about Michael Mann's defamation claims against climate skeptics as well. (The appeal in Mann's suit is still pending in a D.C. court after 18 months.)