Environmental Groups Perpetuate a "Climate Alarmism Enterprise," RICO Suit Claims
On September 12, 2016, Leonid Goldstein filed a civil lawsuit in the Northern District of Texas alleging a massive criminal scheme by numerous environmental non-governmental organizations (“NGOs”) and unnamed individuals to perpetuate the “false claim” of “dangerous ‘global warming’” through a criminal scheme that the complaint describes as a “Climate Alarmism Enterprise.”1 In what is perhaps a first in the climate change legal battles, Goldstein alleges that in advocating for a solution to climate change, these environmental groups violated the Racketeer Influenced and Corrupt Organizations (“RICO”) Act,2 a federal statute aimed at combatting organized crime.
According to the complaint, nonprofit and grant-making groups including Greenpeace, the World Wildlife Fund (together, the likely “top bosses among the Defendants”),3 Climate Action Network, Environmental Grantmakers Association, the Natural Resources Defense Council, Ceres, the Pew Charitable Trusts, the MacArthur Foundation, and others have, through their “Climate Alarmism Enterprise,” engaged in a range of illegal activity including witness retaliation,4 witness tampering,5 bribery of witnesses,6 bribery of officials,7 embezzlement from pension funds,8 and “other misconduct” in an attempt to profit from the specter of anthropogenic climate change. The complaint, which is poorly pleaded and unlikely to be heard on the merits, reflects the continuing evolution of efforts to expand opposition to climate change advocacy.
The complaint alleges that Plaintiff’s job is being threatened and he has suffered damages exceeding $30,000 from lost wages or other income due to defendants’ climate change advocacy.9
Enacted in 1970, the Racketeer Influenced and Corrupt Organization Act, or RICO, was intended to address organized crime’s infiltration of legitimate businesses by criminalizing membership in organized crime groups. The law punishes individuals who, as part of or in furtherance of a criminal “enterprise,” commit acts of “racketeering activity.”10 RICO does not create an independent crime. Rather, the statute criminalizes repeated predicate acts, which it defines to include nine categories of state offenses and dozens of federal crimes, including bribery, theft or embezzlement from pension and welfare funds, mail and wire fraud, obstruction, and witness tampering and retaliation.11 RICO does not have a separate mens rea requirement prosecutors or a private plaintiff must show; they must prove only the elements of the predicate acts and fit them within the structural requirements of the RICO statute. Those individuals or organizations may be subject to suit or prosecution under RICO in addition to the underlying crimes, or predicate acts.
The main RICO charging provision is 18 U.S.C. § 1962(c), which makes it unlawful for any person (1) associated with or employed by (2) an enterprise affecting interstate commerce to (3) conduct or participate in the conduct of the enterprise’s affairs (4) through a pattern of racketeering activity. The “enterprise” may be a legal entity such as a corporation, or may be an “association-in-fact” enterprise (as alleged in this case), which is merely a group of persons or entities associated together for a common purpose of engaging in a course of conduct.
The remaining subsections of § 1962 each target a different flavor of racketeering activity. Section 1962(a) prohibits taking funds obtained from racketeering and investing them in what is usually a legitimate enterprise. Section 1962(b) is used against those who use racketeering activity to “infiltrate” or take control of a business or other entity, and is the least-used provision. Finally, § 1962(d) prohibits conspiracies to violate the other subsections of § 1962, and contains higher penalties than 18 U.S.C. § 371, the independent federal conspiracy statute.
The RICO statute also permits a private individual (or corporation) “injured in his business or property” by the racketeering activity to file a civil claim, which allows for treble damages.12 To succeed on this claim, the plaintiff must prove each element of the offense discussed above, and must also establish proximate causation between the injury asserted and the injurious conduct alleged.13
Goldstein’s RICO Action
Goldstein brings a civil RICO proceeding, governed by the Federal Rules of Civil Procedure. As such, the Plaintiff must prove his case by a preponderance of the evidence. Even with this lighter burden of proof, the Plaintiff here faces a host of challenges to prevail on his RICO claim.
Defendants will almost certainly file a 12(b)(6) motion to dismiss for failure to state a claim. Under modern federal pleading standards, the complaint must include facts giving rise to a “plausible” (as opposed to merely “conceivable”) entitlement to relief.14 Focusing on the racketeering activity, even assuming the statements in the complaint are true, the complaint does not appear to provide a sufficient connection between the facts alleged and any unlawful conduct. For instance, the allegations of “witness retaliation” fail to cite any actual acts of retaliation, and instead provide brief biographies of various scientists and simply state that defendants “retaliated.”15 Witness retaliation is typically alleged in the context of obstruction of justice charges under 18 U.S.C. § 1503, which commonly involves killing, threatening, or committing physical violence against a witness to prevent him or her from testifying.16
Similarly, the conduct that Goldstein claims is bribery of officials appears to be nothing more than endorsement of political candidates.17 Bribery requires a specific intent to give or receive something of value in exchange for an official act — otherwise known as a quid pro quo. An example would be a corporate lobbyist providing a senator with cash in exchange for the senator influencing a bill that would favorably affect the lobbyist’s interests. In contrast, the allegations in this complaint generally construe ordinary campaign finance as bribery without any reference to specific intent by either party involved or the official acts in which the public officials engaged.
This use of RICO to pursue environmental organizations promoting action on climate change is an extension of the expansive interpretation courts have given RICO. Other uses of RICO in an environmental context include claims against BP in connection with the 2010 Gulf of Mexico oil spill (claims which were ultimately dismissed). On the criminal side, RICO was used to successfully prosecute the tobacco industry in United States v. Philip Morris USA Inc.18. In addition, the complaint reflects the continued evolution and expansion of climate change law and policy into seemingly unrelated disciplines. Although a white collar crime statute may be the farthest reach we have seen to date, environmental groups have brought lawsuits under laws not targeted at greenhouse gas emissions, such as the Clean Water Act, and have attempted to use securities laws to force climate action. Therefore, while it seems unlikely that this case will be heard on the merits, it may be seen as an additional manifestation of the ever-evolving landscape of climate change law.
1 Compl. at ¶¶ 1–2.
2 Codified at 18 U.S.C. §§ 1961–64.
3 Compl. at ¶ 45.
4 Compl. at ¶¶ 91–97.
5 Compl. at ¶¶ 98–115.
6 Compl. at ¶¶ 116–135.
7 Compl. at ¶¶ 136–143.
8 Compl. at ¶¶ 144–155.
9 Compl. at ¶ 175.
10 18 U.S.C. § 1962.
11 18 U.S.C. § 1961.
12 U.S.C. § 1964(c).
13See, e.g., Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 457 (2006).
14Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554 (2007).
15 Compl. at ¶¶ 91–97.
16 Obstruction charges may also be brought under §§ 1505, 1510, and
1512. However, § 1503(3)
is an all-encompassing “omnibus clause” and is therefore the most often used.
The statute cited in the complaint, § 1515(5), is a
definitional statute referring in part to the substantive obstruction law of § 1512, which
covers a broad variety of witness tampering.
17 See, e.g., ¶¶ 137, 140.
18 566 F.3d 1095 (D.C. Cir. 2009).