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56 Case W. Res. J. Int'l L. 409 (2024)
Fossil Fuel Fraud

handle is hein.journals/cwrint56 and id is 417 raw text is: CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW VOL. 56 (2024) FOSSIL FUEL FRAUD Wes Henricksen t ABSTRACT In some recent climate litigation cases, plaintiffs have added a claim for common law fraud, in addition to the more traditionally pursued claims for nuisance, negligence, and trespass. Fraud claims against fossil fuel companies center on the decades-long campaign of climate change doubt that was organized, funded, and carried out by oil, gas, and coal industry leaders, as well as public relations firms and industry advocacy groups working on their behalf. But while the doubt campaign certainly fits the fraud mold -a purposeful effort to mislead for profit because it was aimed at defrauding the public at large, rather than defrauding a particular individual it is not the kind of deceptive scheme that the fraud laws are good at addressing. The fraud laws, by their very nature, apply most naturally to personal frauds. Impersonal frauds aimed at millions, like that carried out by the fossil fuel industry, are mostly ignored (and thereby allowed) by law. Moreover, plaintiffs suing fossil fuel companies face unique challenges. This Article argues that this gap in the law, where the largest and most destructive frauds are generally ignored, should be closed. Until it is, it will continue to unfairly deprive those harmed by climate change of the opportunity to seek redress for injuries caused by the fossil fuel companies' purposeful deceit of the public. I. IN T R O D U CT IO N ........................................................................... 4 10 II. THE FOSSIL FUEL INDUSTRY DEFRAUDED THE PUBLIC................... 413 III. THE LAW'S FAILURE TO ADEQUATELY ADDRESS FRAUD ON THE PUBLIC..................................................................................... 421 A. Fraud Law is Written and Applied in a Manner that Often Ignores Fraud on the Public .......................................................................... 421 1. H ow the Law Is W ritten ............................................................... 421 2. H ow the Law Is A pplied................................................................ 423 B. The Weaponization of Free Speech..................................................... 426 t Associate Professor of Law, Barry University School of Law. Thank you to the participants and panelists at the Climate Change and International Law at a Crossroad symposium hosted by the Cox Center and Case Western Reserve University School of Law. Thanks to Victoria Suri- Beltran and B. Paige Lawson for excellent research assistance. Parts of this article have been adapted from the author's forthcoming book, IN FRAUD WE TRUST: How LEADERS IN POLITICS, BUSINESS, AND MEDIA PROFIT FROM LIES (Univ. Press of Kansas, forthcoming). 409

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