Climate change poses an enormous threat to our economy and quality of life, and readily available solutions are not being implemented fast enough to head off the worst damage. That’s why the National Whistleblower Center (NWC) launched our Climate Corruption Campaign in January 2020.
The Climate Corruption Campaign is centered around one central concept: that a vast percentage of the fossil fuel industry is not willing or able to make a shift toward decarbonization at the pace and scale needed to meet Paris targets or otherwise meaningfully contribute to climate stabilization. The industry’s business model and past practices suggested that the continued profitability of these companies, and ability to attract investment and policy support, would be achieved in significant part through fraud, bribery and other corruption.
We are pleased to share that the campaign’s first year has validated our assumptions and affirmed the importance of the first sustained effort to educate potential whistleblowers in the fossil fuel and industrial logging industries about their rights under whistleblower laws, including to keep their identities confidential.
As part of the campaign, NWC has a particular focus on assisting company insiders with evidence of potential fraudulent concealment of industry pollution risks, including risks to financial assets. Helping whistleblowers navigate is NWC’s Chief Counsel Sharon Eubanks, a corruption expert who served as lead counsel in the largest-ever civil RICO enforcement case, U.S. v. Philip Morris USA. Eubanks recently testified before Congress on the linkages between the organized deception campaigns of the tobacco and fossil fuel industries.
The disruption of the earth’s climate is one of the greatest challenges facing our society. Greenhouse gas emissions are continuing to increase, as evidenced by a recent Global Carbon Project report finding that in 2019, despite impressive progress with clean energy, global fossil fuel emissions had increased for the third straight year. And these emissions are already having dramatic impacts. Sea levels are rising. Animal and plant species are rapidly going extinct. Natural phenomena like hurricanes and forest fires are becoming increasingly more violent.
Those impacts will worsen substantially unless we transition away from fossil fuel use and maintain intact forests for carbon storage. And the impacts of greenhouse gas emissions are not spread evenly. Those who have contributed the least to the problem – the poorest communities around the world and the generations to come – will experience the greatest impacts.
Fossil fuel use and deforestation are the primary drivers of this crisis. Despite recent successes in scaling back investment in oil and coal, natural gas is on the rise. And in developing countries, coal is still on the rise. As for deforestation, while sustainable forestry is on the rise, industrial logging of forests is still the primary source of timber and timber-based products and in the tropical forests with high carbon stocks, much of this logging is unsustainable and illegal.
A significant part of the responsibility for the world’s greenhouse gas emissions rests with a small number of resource extraction companies. For example, a 2017 study by the nonprofit CDP shows that nearly two thirds of greenhouse gases added to the environment since the Industrial Revolution can be traced back to just 90 fossil fuel companies.
Recently, fossil fuel companies have pledged to reduce the pollution driving climate change, but does this mean that a meaningful transition to a carbon-constrained future is truly underway inside the industry? The December announcement by Spanish energy giant Repsol is encouraging. With a remarkable degree of specificity, Repsol committed to achieving net-zero carbon emissions by 2050 – the first major fossil fuel company to align itself with the target in the Paris Agreement of staying within a 2°C global temperature increase above preindustrial levels. This commitment was backed up by a US$5.3B write-down in the value of its oil and gas assets, suggesting that Repsol is truly adjusting to the new reality. With respect to the rest of the major fossil fuel companies, the picture is far murkier.
The urgent need for action is clear. We must not only bear down on proven strategies like rapidly deploying wind and solar energy. We also must finally come to grips with what is happening inside the companies producing fossil fuels. In July 2020, NWC released a report detailing widespread deception by fossil fuel executives regarding the financial risks of climate change. The report describes why deception about companies’ preparedness for climate change risks represents a ticking time bomb that, if not addressed, could contribute to worldwide economic devastation. This is where whistleblowers come in.
The report, entitled Exposing a Ticking Time Bomb: How Fossil Fuel Industry Fraud is Setting Us Up for a Financial Implosion – and What Whistleblowers Can Do About It, calls for collaborative investigations by whistleblowers and law enforcement authorities of likely securities fraud violations.
It found that deception about the financial risks of climate change is pervasive across the fossil fuel industry, with two categories of material information routinely omitted from companies’ statements to shareholders: (1) the immediate risks that climate change poses to companies’ financial condition, and (2) the risk that the company’s asset deflation will contribute to an economy -wide financial implosion.
“In light of the deceptions we found, the handful of pending fraud cases challenging climate risk disclosures by fossil fuel companies are probably just the tip of the iceberg,” said John Kostyack, NWC Executive Director and lead author of the report. “We anticipate that the number of cases and defendants will increase dramatically in the near future once potential whistleblowers learn about the benefits of modern whistleblower laws and begin providing information to regulators and prosecutors about climate risk deceptions along the lines of those outlined in our report.”
How Whistleblowers Can Help
Whistleblowers have a proven track record in battling corruption in other arenas. Many high-impact prosecutions have taken place only because whistleblowers delivered otherwise-unavailable evidence to law enforcement officials and have produced billions and penalties. In FY 2017 alone, the US government recovered over $3.7 billion through its civil fraud program. Whistleblowers were directly responsible for reporting over $3.4 billion of these recoveries, making them the source of 92% of all civil fraud recovered that year.
And whistleblowers can have industry-changing impact. One of the best-known examples is Bradley Birkenfeld, who was the first international banker to blow the whistle on secret Swiss bank accounts. His disclosures resulted in unprecedented recoveries for U.S. taxpayers, with over $780 million dollars in civil fines and penalties paid by UBS and over $5 billion dollars in collections from U.S. taxpayers who had illegally held “undeclared” offshore accounts in Switzerland and other countries. As a result of his whistleblowing, these secret accounts are no longer available for corrupt US taxpayers to hide their earnings, and the Swiss government was ultimately forced to change its treaty with the United States in order to turn over the names of nearly five thousand Americans who held illegal offshore accounts.
He received a reward of $104 million under the IRS Whistleblower Program for his invaluable assistance with the case, the largest whistleblower reward ever given. His reward has helped to drive massive growth in prosecutions of securities, commodities and tax fraud by demonstrating to both whistleblowers and prosecutors the critical role of this economic incentive to motivate high-level executives to take the substantial risk of exposing crime.
There are similar stories across industries and sectors – whistleblowers who gave disclosures that changed corporate behavior for the better. You can learn more about those here. However, as a general matter, whistleblowers have not played a major role in convictions of corrupt fossil fuel or industrial logging companies and, when they have played a role, they have not been rewarded adequately.
Now is the time to harness the powerful whistleblower laws to rein in corruption in the fossil fuel industry. Only company insiders know the extent to which the impact of climate change-related risks on financial assets have been illegally concealed from shareholders, the IRS and the public. The Climate Corruption Campaign helps these insiders secure confidential whistleblower status so that the facts can safely be delivered to law enforcement authorities.
“Whistleblowers have proven time and again that they are the key to exposing and prosecuting law-breaking,” said Stephen M. Kohn, NWC Board Chairman and leading whistleblower attorney. “With the protections and incentives provided by the Dodd-Frank Act and other whistleblower laws, we have the ingredients we need to confront likely fraud in the fossil fuel industry.”
Learn the Laws
Climate change and corruption are global problems, and as such they need global solutions. U.S. laws are uniquely well-suited for enlisting citizens to help fight global environmental crime. There have been a host of laws enacted by the U.S. Congress and the states in the past few decades encourage whistleblowers to report corporate fraud to authorities. The best of these laws, such as state and federal False Claims Acts and the federal laws on tax, securities and commodities fraud, allow whistleblowers to report crimes without revealing their identities.
They also provide financial rewards to whistleblowers for contributing to successful prosecutions, with the size of the reward linked to the size of the monetary sanctions recovered and the importance of the whistleblower’s evidence to the case. These rewards are available to whistleblowers regardless of U.S. citizenship and apply to prosecutions against U.S. companies as well as foreign companies doing business in the U.S. Leveraging this powerful system of laws could provide a revolutionary new approach to combating the climate crisis.
One of the most important whistleblower reward laws is the False Claims Act (FCA), which has collected a staggering $43 billion since 1986 for the benefit of taxpayers with $6 billion going to whistleblowers. There are two key features of the FCA that make it uniquely suitable for pursuing environmental crimes: its qui tam provision and the concept of “reverse false claims.” Qui tam goes a step beyond most reward laws – it gives the whistleblower the opportunity to bring forward a case on behalf of the government if the government declines to intervene for whatever reason.
Meanwhile, reverse false claims hinges on the concept that in providing the government with incorrect information on customs forms, lease applications, and the like, the wrongdoer has prevented the government from collecting what it is owed. Covered customs violations include false statements such as the undervaluation and/or misclassification of goods entering the U.S.
Critically, under the FCA, violators are liable for treble damages – or three times the dollar amount that the government is defrauded – along with civil penalties for each false claim. Whistleblowers are can receive between 15% and 30% of sanctions obtained. The returns for a successful fossil fuel prosecution under the False Claims Act are potentially huge.
History proves this. In 2016, there was a record $20 billion settlement with British Petroleum (BP) following the Deepwater Horizon disaster, which included reverse False Claims Act penalties for falsifying offshore lease applications. NWC was one of the groups who advocated for the Department of Justice to include FCA claims as BP misrepresented its safety and emergency response procedures in order to operate under leases from the U.S.
In addition to the False Claims Act, there is a large framework of U.S. laws that address other common types of fraud including tax fraud (IRS Whistleblower Law), securities and commodities fraud (Dodd-Frank Act), and bribery (Foreign Corrupt Practices Act). Each has powerful whistleblower reward provisions and offers the opportunity to hold fossil fuel companies accountable for their far-ranging illicit activities.
Furthermore, an array of environmental laws, including the Lacey Act, Endangered Species Act and Act to Prevent Pollution from Ships (APPS), authorize rewards to whistleblowers for providing information that leads to prosecutions. While to date, law enforcement officials have not used the whistleblower provisions of these laws to develop major fossil fuel industry cases, their successful use in small cases involving ocean pollution highlights their potential for contributing to significant prosecutions that lead to fossil fuel industry reform.
For example, an engineer whistleblower disclosed that Carnival Cruise Lines was illegally dumping waste oil in the ocean and obstructing justice. The company agreed to pay $60 million in penalties under APPS, $1 million of which went to the whistleblower. According to a recent report on 100 APPS settlement agreements, whistleblower cases have resulted in $177 million in fines, $56 million of which have gone back to environmental programs.
A recent case involving a whistleblower and illegal logging highlights how the Lacey Act can be used to drive reform in the industrial logging industry. In 2015, U.S.-based Lumber Liquidators was fined over $13 million in the largest Lacey Act fine to date for buying wood that had been illegally logged in eastern Russian forests. An NGO whistleblower, the Environmental Investigations Agency (EIA), was key to building the case against the company. The case marked the first time that a U.S. company had been convicted of a felony related to timber under the Lacey Act.
As evidenced here, there are a host of laws that could be employed in the fight against the climate crisis – with corporate whistleblowers at the center. And as an October 2020 poll from the Whistleblower News Network shows, corporate whistleblowers enjoy broad support from the American public. When asked if passing stronger laws that protect employees who report corporate fraud should be a priority for Congress, 82 percent of those surveyed agreed, with 29 percent stating that it should be an immediate priority.
This poll should provide Congress with all the encouragement it needs to act on pending whistleblower bills addressing private sector corruption, such as those dealing with securities and commodities fraud. If passed, these bills could prove a powerful tool for greater accountability in the fossil fuel industry.
Recent climate change cases filed by states like New York and Massachusetts, shareholders, and others only further demonstrate the growing consensus: fighting corporate fraud is especially critical in the midst of climate change crisis.
A Pending SEC Rule Could Severely Impact Climate Whistleblowers
As part of its Climate Corruption Campaign, NWC is educating and assisting whistleblowers with evidence of fraud in the fossil fuel industry, one of the sectors responsible for the vast majority of the world’s carbon pollution. That’s why NWC is closely watching a Securities and Exchange Commission (SEC) vote scheduled for December 16th on a long-contested rule intended to increase transparency in the fossil fuel industry that has serious implications for climate risk disclosure. Unfortunately, industry lobbying has so weakened the rule that in its current form, it will not shed any light on financial activity for investors.
The 2010 Wall Street Reform and Consumer Protection (Dodd-Frank) Act included a provision known as Section 1504, requiring companies to disclose payments given to foreign governments in exchange for developing their oil, gas or minerals. These payments, also known as “signature bonuses,” often function as bribes in the opinion of anti-corruption experts, and have come under scrutiny for slipping through loopholes in laws like the Foreign Corrupt Practices Act.
Section 1504 was added via a bipartisan amendment sponsored by Senators Richard Lugar (R-IN) and Ben Cardin (D-MD), which is why it is often referred to as the Cardin-Lugar amendment. It aimed to neutralize what is known as the “resource curse,” an affliction in which “oil, gas reserves, and minerals…can be a bane, not a blessing, for poor countries, leading to corruption, wasteful spending, military adventurism, and instability,” in Lugar’s words. The amendment directed the SEC to issue a rule requiring companies to detail their payments in annual reports posted on the SEC website along with other public filings.
The U.S. oil and gas industry fought the initiative, claiming disclosures would put them at a competitive disadvantage with oil companies from other nations, particularly China and Russia. It also claimed the rule would jeopardize operations in a handful of countries that prohibit public financial disclosures, while imposing severe compliance costs. These arguments derailed the SEC’s first attempt to implement the amendment with a rule proposed in 2010. The American Petroleum Institute, a powerful industry association, filed suit in federal district court to stop its approval, and the court sent the SEC back to the drawing board.
Another rule proposed in 2016 made changes deferential to industry, but the 115th Congress rolled back the rule under the Congressional Review Act (CRA). Because the CRA requires new rules to be substantially different from the one rejected by Congress, the SEC was charged with crafting a rule that (1) didn’t resemble either of the first two proposed, while (2) preserving the intent of the Cardin-Lugar amendment.
The latest rule, unveiled in December 2019, achieved the first of those aims but utterly fails on the second. It redefines every standard of disclosure, allowing companies to report only the broadest level of engagement with foreign governments, while adding new exemptions and loopholes that will allow some companies to avoid disclosures altogether.
The rule’s long journey through the regulatory system is an object lesson in the industry’s antagonism toward transparency, to the detriment of investors and global health. Neutering Section 1504 has implications that extend beyond the borders of the foreign countries where oil companies operate. Several studies have shown that to meet the target set by the 2015 Paris Agreement, all new extractive exploration and production must stop: in fact, most of the estimated reserves from existing developments will probably have to stay in the ground. Yet an analysis by the oversight group Global Witness found that capital expenditures in oil and gas are expected to rise by $1 trillion over the next decade, with two-thirds of that stemming from investment in new fields. Some of that investment will likely take the form of multi-million-dollar payments to corrupt regimes—the kind the Cardin-Lugar Amendment was introduced to stop.
This refusal to come clean fits a pattern of financial opacity in the fossil fuel industry. The oil and gas industry in particular has gone to great lengths to hide the fact that it enjoys enormous tax breaks and other government subsidies. The entire sector also has shown an unwillingness to reveal internal projections about risks posed by climate change and the world’s transition away from fossil fuels. As the National Whistleblower Center pointed out in its July report, Exposing A Ticking Time Bomb, these deceptions could constitute fraud by withholding material information on climate risks. They also impact the health of the entire financial system and ultimately the planet, as fossil fuel industry consumes financial resources that could go toward low-carbon technologies.
U.S. whistleblower laws can be a powerful tool for stopping such deception. Both whistleblowers and financial regulators have key roles in exposing financial fraud that results from the failure to disclose climate risk. The Dodd-Frank Act legislated some of the most powerful whistleblower protections in the world, establishing an extremely successful whistleblower office at the SEC as well as strengthening protections for commodities and foreign bribery whistleblowers. Weakening Section 1504 of Dodd-Frank deprives investors and oversight bodies of information they need to stop that fraud, and deprives whistleblowers of an avenue to address the wrongdoing they see. That’s why the SEC should scrap the current proposed rule and do whatever necessary to legislate the important aims of the Cardin-Lugar Amendment.