Phil Mattera

PG&E’s Ongoing Crime Spree

For all the talk about corporate crime, very few corporations are actually charged with criminal offenses. Of the more than half a million cases in Violation Tracker, all but a couple of thousand involve civil matters, and many of those categorized as criminal are misdemeanor environmental cases. A much smaller set of companies have faced felony charges, and an even smaller group have pled guilty to such offenses more than once.

And then there is PG&E. The giant California utility has faced scores of felony charges and has pled guilty or been convicted in several cases involving accusations of criminal negligence and involuntary manslaughter–the corporate equivalent of murder. All these cases have involved allegations that the company’s widespread failure to properly maintain its equipment played a major role in causing a series of deadly wildfires.

Recently, PG&E completed a five-year period of felony probation, with the presiding judge issuing a scathing report on the company’s failure to change its ways. “Rehabilitation of a criminal offender remains the paramount goal of probation,” wrote U.S. District Judge William Alsup of the Northern District of California. “During these five years of criminal probation, we have tried hard to rehabilitate PG&E. As the supervising district judge, however, I must acknowledge failure.”

That’s Judge Alsup’s way of softening the impact of the following passage, which makes it clear the failure was most definitely that of the company:

While on probation, PG&E has set at least 31 wildfires, burned nearly one and one-half million acres, burned 23,956 structures, and killed 113 Californians. PG&E has pled guilty to 84 manslaughter charges for its ignition of the 2018 Camp Fire in Butte County, is facing five felony and 28 misdemeanor counts arising out of the 2019 Kincade Fire in Sonoma Case County (that county’s largest wildfire ever), is facing pending involuntary manslaughter charges arising out of the 2020 Zogg Fire in Shasta County, and is facing a civil suit by five counties arising out of the 2021 Dixie Fire (and may face criminal charges as well). The Dixie Fire, the second largest in California history, alone required 1,973 personnel to extinguish. So, in these five years, PG&E has gone on a crime spree and will emerge from probation as a continuing menace to California.

This amounts to one of the strongest condemnations of corporate behavior ever to come from a judge in a U.S. court. Judge Alsup puts much of the specific blame on PG&E’s insistence on using independent contractors, many of whom turned out to be unreliable, to carry out its obligation to clear vegetation near power lines—rather than incurring the expense of hiring and properly training employees to do the job. He also cited the company’s “obsession” with keeping power lines operating (and customer meters turning) rather than temporarily de-energizing lines known to be a serious fire hazard because of downed trees and limbs.

Judge Alsup notes that various parties have urged him to extend the company’s probation, but he states that he does not have clear authority to do so. It’s also unclear what would be the point. As the judge wrote, probation is supposed to bring about rehabilitation. Probation violators are sent back to prison.

PG&E clearly has not been rehabilitated, and the prison option is not applicable to a corporation. What would make more sense is a radical restructuring of the company, turning it into something other than a profit-maximizing machine that shows little regard for human life. There has been talk of a state takeover or a conversion into a cooperative, but these proposals appear not to have gone very far.

Our legal system has a hard time dealing with brazen miscreants such as PG&E. It would help if corporate executives could be held more personally accountable for such behavior. Enacting these changes would be easier if the politicians now screaming about the uptick in street crime showed a similar concern about crime in the suites.

Scrutinizing Microsoft

Press accounts of Microsoft’s $70 billion offer for Activision Blizzard make frequent references to the legal problems it would inherit from the gaming company, which is embroiled in lawsuits and regulatory actions relating to sexual harassment and discrimination.

Those problems are real, but it is misleading to suggest that Microsoft is a boy scout of a company with no legal difficulties of its own. While none of the cases involve the same allegations surrounding Activision, Microsoft has, as shown in Violation Tracker, racked up more than $300 million in regulatory fines and class action lawsuit settlements over the past two decades.

The largest cases involve anti-competitive practices—the same issue that made Microsoft notorious in the 1990s. In 2009 the company paid $100 million to resolve a case brought by the Mississippi Attorney General, and in 2012 it paid $70 million to settle a similar suit brought by a group of cities and counties in California.

Microsoft has also faced accusations of foreign bribery. In 2019 one of its subsidiaries paid $8.7 million to resolve criminal charges linked to alleged violations of the Foreign Corrupt Practices Act in Hungary. The parent company paid $16 million in a related civil matter brought by the Securities and Exchange Commission.

LinkedIn, a Microsoft subsidiary, paid $13 million in 2016 to settle a class action lawsuit alleging that it sent unsolicited messages to users.

Microsoft has had its own problems with employment discrimination. In 2020 it agreed to provide $3 million in back pay and interest to employees to resolve federal allegations that hiring patterns at several of its locations showed a statistical bias against Asian applicants.

Finally, Microsoft shares with Activision a track record of wage and hour violations. In 2014 LinkedIn was compelled to pay over $5 million in back pay and liquidated damages to a group of 359 current and former employees who had not received proper overtime pay.

In 2000 Microsoft paid $97 million to settle a lawsuit alleging that it misclassified several thousand people as independent contractors to avoid paying them overtime pay and employee benefits. This was the same issue in a lawsuit brought against Activision in California on behalf of senior artists. In 2017 the gaming company paid $1.5 million to settle the suit.

Despite its transgressions over the past two decades, Microsoft has developed a more benign image than not only Activision but also the other giants of the tech industry, including Amazon, Google and Facebook.

An assessment in the Washington Post attributes this not to changes in Microsoft’s practices but to its public relations and lobbying, especially in relation to Washington lawmakers, many of whom, the Post states, treat the company “like a trusted ally in their efforts to rein in other large tech companies.”

The Activision deal, which raises some significant antitrust issues given Microsoft’s sizeable Xbox business, will be a test of the strength of its good will among policymakers. This will be a good opportunity for those calling for stronger enforcement to show they are serious.

The Corporate Crime Lobby

One big difference between street crime and corporate crime is that drug dealers, burglars and arsonists generally are not able to influence the way their misdeeds are investigated and prosecuted.

Corporate violators, on the other hand, can use lobbying and campaign spending to push for policies that may make it less likely their wrongdoing will be detected or will be treated more leniently if it is discovered.

Much of this business effort is exercised through trade associations, and probably the biggest influencer of them all is the U.S. Chamber of Commerce. As is highlighted in a new report from Public Citizen, the Chamber has been an outspoken opponent of the Biden Administration’s plan to adopt a more aggressive posture toward corporate misconduct.

It has been especially critical of a new approach being taken by the Federal Trade Commission, which voted in November to expand its criminal referral program. While the FTC itself can bring only civil actions, the agency can pass on evidence of corporate criminality to the Justice Department—and now it will be doing more of that. The Chamber accused the FTC of “waging a war against American businesses” and vowed to “use every tool at our disposal, including litigation, to stop its abuse of power.”

The Public Citizen report demonstrates why the Chamber is so agitated: many of its leading members have been involved in significant cases of malfeasance in the past and are likely to be similarly embroiled in the future.

Using extensive data from Violation Tracker, the report shows that the known members of the Chamber have been involved in thousands of civil and criminal matters and have paid more than $150 billion in fines and settlements.

Three major banks—JPMorgan Chase, Citigroup and Wells Fargo—alone account for $81 billion in penalties, and the pharmaceutical industry another $26 billion.

While these numbers represent all forms of misconduct, Public Citizen gives special attention to the 19 Chamber members that have been involved in criminal cases. Among them are Amgen (illegal drug promotion), Bayer (price-fixing) and Zimmer Biomet (Foreign Corrupt Practices Act).

The report notes that at several other Chamber members such as American Express are reported to be targets of current criminal investigations.

Public Citizen looks at overall corporate rap sheets, but given the Chamber’s hyperbolic statements about the FTC, it is worth zeroing in on cases brought by that agency.

As Violation Tracker shows, the FTC has fined companies over $14 billion since 2000. More than one-third of that total comes from a single case brought against a Chamber member. Facebook, whose parent company is now called Meta Platforms, was penalized $5 billion in 2019 for deceiving users about their ability to control the privacy of their personal information.

Other Chamber members involved in significant FTC cases include: Citigroup, which paid $215 million to resolve allegations that two of its subsidiaries engaged in deceptive subprime lending practices; Alphabet, whose Google subsidiary paid $136 million for violating rules regarding the online collection of personal data on children; and AT&T, whose AT&T Mobility subsidiary paid $80 million to the FTC to provide refunds to consumers the company unlawfully billed for unauthorized third-party charges.

These were all civil matters. The Chamber is apparently worried that such cases could now result in referrals to the Justice Department for criminal prosecution, especially since the DOJ is vowing to bring more such actions.

The next few years will be a test of whether more aggressive regulators and prosecutors can overcome the power of the corporate crime lobby.

Holding Corporations Accountable for Defective Products

A federal judge in Michigan just shot down a motion by Fiat Chrysler to derail litigation alleging it sold 800,00 vehicles with faulty gearshifts. The company could end up paying many millions in damages. At about the same time, a federal judge in New York gave final approval to a $5.2 million settlement of class action litigation claiming that DevaCurl products caused hair loss and scalp damage.

These are two recent examples of actions in an arena in which corporations are held accountable for causing harm to their customers: product liability lawsuits. These kinds of court cases are the latest category of class-action and multi-district litigation to be added to Violation Tracker.

The database now contains entries covering 120 of the most significant product lawsuits of the past two decades in which corporations paid substantial damages or a monetary settlement to large groups of plaintiffs. The total paid out by the companies in these cases is more than $54 billion.

Fourteen of the cases involved payouts of $1 billion or more, the largest of which was the $9.6 billion Bayer agreed to pay to resolve tens of thousands of suits alleging that the weedkiller Roundup, produced by its subsidiary Monsanto, causes cancer. Bayer, which produces pharmaceuticals as well as chemicals, was involved in five other cases on the list, bringing its aggregate payout to more than $12 billion, the most for any corporation.

Next in line are Pfizer and Johnson & Johnson, each with payout totals of about $5.5 billion for cases involving harm caused by products ranging from hip implants and diabetes drugs to heartburn medication and talcum powder. These two companies and other pharmaceutical and medical equipment producers account for one-third of the cases on the list and half of the payout total. The giant settlements involving opioid producers and distributors are not included here, since they are treated as matters of illegal marketing rather than defective products—and because those cases are most often brought by state attorneys general rather than as private litigation.

The motor vehicle industry also features prominently, with 32 cases and total payouts of $9 billion. The largest portion of that is linked to Toyota, with $5.3 billion in payouts in cases involving issues such as unintended acceleration, defective airbags and premature corrosion. Volkswagen has actually paid out much more in class action settlements due to its emissions cheating scandal, but Violation Tracker categorizes those as environmental rather than product liability cases.

Among the remaining cases are a $1 billion settlement by the German company Knauf involving drywall that emitted noxious odors and a $500 million settlement by Sears Roebuck of allegations that it sold stoves that had a tendency to tip over.

Yet perhaps the most surprising of the cases were two involving the Brazilian company Taurus, which paid a total of $277 million to resolve allegations that it produced firearms with a defect that caused them to go off when dropped. The irony is that gunmakers are shielded from liability when their weapons are used in criminal activities.

Product liability class action and multi-district cases—like similar litigation involving issues such as toxic chemicals, wage theft and privacy violations—are reminders that the courts are an important complement to the regulatory system in addressing corporate misconduct.

The 2021 Corporate Rap Sheet

After four years of Trump’s regulation bashing, the expectation was that the Biden Administration would adopt a much more aggressive posture toward corporate misconduct.

There have been some encouraging signals, such as those given by Deputy Attorney General Lisa Monaco in an October speech, but few blockbuster federal case resolutions have been announced during the past eleven months.

According to data my colleagues and I have collected for Violation Tracker, no individual company has paid a settlement or fine of $250 million or more to the Biden DOJ. In fact, there have been only two case resolutions of that size announced by any federal agency during this period.

In September, the Securities and Exchange Commission announced a $539 million settlement with entities linked to Chinese businessman Guo Wengui relating to illegal sale of stock and digital assets. That same month, the Office of the Comptroller of the Currency fined Wells Fargo $250 million for ongoing risk management deficiencies.

By contrast, numerous mega-cases have been resolved by state attorneys general. Since last January, they have announced nine settlements of more than $250 million, including five worth $1 billion or more. Those are the giant cases against pharmaceutical manufacturers and distributors for their role in the opioid crisis.

The largest case was the settlement worth an estimated $10 billion with the biggest opiate villain of all, Purdue Pharma, which is now in bankruptcy and will effectively go out of business. Many argue that the Sackler family got off too easy in the case, but the company is paying a substantial price for its misdeeds. The other ten-figure settlements of the year involved McKesson ($8 billion), AmeriSourceBergen ($6.5 billion), Cardinal Health (also $6.5 billion) and Johnson & Johnson ($5 billion). Also substantial was the $573 million settlement McKinsey reached with states over its role in advising opioid producers in improper marketing practices.

There were also significant state settlements on issues other than opioids. Duke Energy signed an $855 settlement with the North Carolina AG relating to coal ash pollution. Boston Scientific Corporation reached a $188 million settlement with a group of states to resolve allegations it engaged in deceptive marketing of a transvaginal surgical mesh device.

While the Biden DOJ has yet to roll out blockbuster cases, it did announce some substanial resolutions during the year. For example, the U.S. Attorney’s Office in Cincinnati announced a $230 million settlement of criminal charges against utility company FirstEnergy for making improper payments to public officials to get them to pursue nuclear power legislation benefiting the company. Taro Pharmaceuticals agreed to pay $213 million to settle price-fixing charges. In a case that also involved UK and Swiss regulators, Credit Suisse paid $175 million to the DOJ to resolve criminal charges relating to a fraudulent project in Mozambique.

The year also saw the resolution of some major class action and multi-district lawsuits against large corporations. After the U.S. Supreme Court declined to hear its appeal of a court verdict, Johnson & Johnson paid more than $2 billion in damages to a group of women who claimed they developed ovarian cancer from using the company’s talcum powder.

Hyundai Motor agreed to pay up to $1.3 billion to settle a consolidated class of claims that it and its subsidiary Kia sold vehicles with defective engines that could catch fire. Facebook paid $650 million to settle a class action over its harvesting of facial data.

Facebook was also at the center of a controversy that not yet been fully resolved by regulatory or court action. A former manager leaked a large collection of internal documents indicating that the company, which now calls itself Meta Platforms, was aware of the harmful effect its services were having on some users, especially younger ones, but did little about it. The revelations prompted widespread criticism among members of Congress but no significant legislation or litigation so far.

Another widely criticized corporation that has yet to face full consequences for its conduct is Amazon.com. The e-commerce behemoth has been reproached for the way it treats employees, the small merchants who make use of its platform, and the communities in which it operates. Yet it continues to expand at a rapid pace and has seen an enormous growth of profits during the pandemic.

During the Facebook disclosures, there was growing speculation as to whether the big tech firms were now facing a situation similar to that of the tobacco companies, which were the subject of their own scandalous revelations and eventually had to pay out many billions of dollars in settlements and sharply curtail their marketing activities.

The key word there is “eventually.” The dangers of smoking were known for decades, yet the big cigarette companies adamantly denied the reality—the same way the fossil fuel companies have denied their role in climate change. We should not expect Meta, Amazon and the other tech giants to give in without a long and bitter fight.

Called to Account for Wage Theft

New data from the Bureau of Labor Statistics on job-hopping and on wage increases continue to illustrate a remarkable rise in worker assertiveness. The pandemic has finally allowed those who have been suffering for years from wage stagnation to turn the tables on employers. What business groups describe as a labor market crisis is in fact the beginning of liberation for the low-wage workforce.

These workers are reacting not only to inadequate compensation and oppressive schedules. They are also fed up with the additional indignity of being cheated out of the pay they are supposed to receive. The Great Resignation can also be seen in part as a response to the epidemic of wage theft that has afflicted the U.S. labor market.

This was brought home to me again in the course of updating the data in Violation Tracker. There continues to be a steady stream of announcements of cases involving the failure to provide proper overtime pay, the failure to provide required paid breaks and the numerous other ways employers take money out of the pockets of workers.

The cases we document come from either private litigation or regulatory actions. The larger settlements involve collective action lawsuits brought by plaintiff law firms on behalf of groups of workers. Here are some examples that were finalized in just the past few months:

Chipotle agreed to pay $15 million to resolve allegations that it denied overtime pay to management trainees.
Humana paid more than $11 million to settle allegations that it denied overtime to nurses by improperly classifying them as exempt employees.
T-Mobile agreed to pay $2 million to resolve a lawsuit alleging that it forced customer service representatives to do off-the-clock work.
The discount grocery chain Aldi paid $2 million to thousands of California employees who said they were cheated out of overtime pay.

Wage theft is, of course, also investigated by the Wage and Hour Division of the U.S. Labor Department. Many of the cases handled by WHD involve small firms, but it also takes on bigger employers and sometimes collects substantial amounts of back pay and penalties. Among the recent examples of these larger actions are the following:

In October, a federal court in Pittsburgh entered a consent judgment in which an oilfield services company admitted liability for more than $40 million in back wages and damages after a WHD investigation found Fair Labor Standards Act violations affecting 700 workers. The company, Holland Services, has filed for bankruptcy.

In November, a federal court in San Francisco ordered telemarketing firm Wellfleet Communications to pay more than $1.4 million in back wages and liquidated damages to more than 1,300 call center workers found by a WHD investigation to have been improperly classified as independent contractors.

There has also been an increasing focus on wage theft by state and local prosecutors. For example, the New York Attorney General, in partnership with the New York City Department of Consumer and Worker Protection, recently announced an agreement with two major home care health agencies to deliver up to $18.8 million in unpaid wages to approximately 12,000 workers who had been denied fair pay for years.

The San Francisco City Attorney announced a $5 million settlement with DoorDash to resolve allegations that it misclassified its delivery drivers as independent contractors to avoid providing required sick leave and that it improperly used tip income to cover their base pay.

Some businesses are paying a price in fines and settlements while others are now having to offer higher wages. One way or another, they are being called to account for years of labor exploitation.

Note: all these cases will be included in the Violation Tracker updated that will be posted later this month.

Populism Real and Ridiculous

Some analyses of Trumpism and Republican populism have claimed to detect a strain of anti-corporate sentiment. It is true that today’s right-wingers are willing to criticize big tech companies for supposedly treating them unfairly, but most of the times the GOP continues to serve the interests of big business.

That was clear during an important hearing just held by the House Judiciary Committee’s subcommittee on antitrust, commercial and administrative law. Subcommittee chair David Cicilline, vice chair Pramila Jayapal, other Democratic members and the witnesses all raised serious questions about the current regulatory system, focusing on issues such as disclosure and social equity.

The Republicans, on the other hand, did their best to change the subject or spoke in favor of less rather than more oversight. Ranking member Ken Buck used his opening remarks to attack “executive overreach” and praise the Trump Administration’s wholesale attack on regulation.

Jim Jordan spent his time attacking what he claimed was a plan by the Justice Department to treat parents critical of school boards as domestic terrorists. One of the witnesses, NAACP climate justice director Jacqueline Patterson, was asked by Dan Bishop whether she was a revolutionary. She was also chastised for a facetious tweet about vaccines. The comments of GOP members on regulation were mainly limited to attacks on “woke bureaucrats.”

Despite these antics, there was a serious exchange between the Democrats and the witnesses on the failures of the current regulatory system. These issues are also addressed in the Stop Corporate Capture Act introduced by Rep. Jayapal. The legislation would create more transparency in rulemaking, reduce corporate influence over the process and create a framework for considering social equity. It would fine companies that lie about the impact of public interest rules. It would also create a Public Advocate to provide for more robust public participation.

It turns the usual discussion on its head. Rejecting the idea of executive overreach, the bill correctly diagnoses the problem as a situation of what one might called regulatory anemia. Agencies are not aggressive enough in tackling serious problems relating to the environment, the workplace and the marketplace. The parties meant to be targeted instead are playing an outsized role in creating the rules. Hence the reference in the bill’s title to regulatory capture.

Jayapal’s proposal is what one might call a populist approach to reforming the regulatory system—one that is not likely to receive support from corporate lobbyists. When they are not simply kicking up dust, Republicans, by contrast, are doing the bidding of big business by continuing the Trump Administration’s drumbeat against regulation.

This is one of those areas in which the conventional labels of U.S. politics continue to baffle me. Why are those working to benefit giant corporations called populist, while those who are seeking to rein in that power called elitist?

Price Gouging

Many of the increasingly clamorous inflation hawks are convinced that the main culprits behind the recent rise in prices are Congressional Democrats and the Biden Administration. Other observers point to supply chain problems or escalating wage demands. Yet there has been surprisingly little focus on the parties responsible for actually setting most of the prices: large corporations.

That’s why it was refreshing to see a front-page article in the Wall Street Journal the other day that provided a more honest account of what is happening. Its headline was: “Inflation Helps Boost Profit Margins: Companies Seize Rare Opportunity to Increase Prices and Outrun their Own Rising Costs.”

The second part of that is the most significant: corporations are raising prices not only to cover their rising costs but well beyond. In other words, they are exploiting a crisis situation to fatten their bottom lines. There is a term for this: price gouging.

Companies such as high-end mattress producer Sleep Number and heating/cooling equipment manufacturer Carrier Corp., the Journal noted, have each pushed through three major price increases this year. As a result, corporate profits are booming. The Journal article cited figures showing that many large companies are reporting margins at least 50 percent above 2019 levels.

It was appropriate for the Biden Administration to call on the Federal Trade Commission to investigate whether illegal conduct by petroleum companies is responsible for the spike in gasoline prices. Other sectors should also be scrutinized.

Given the high level of concentration in many industries, it is likely that anti-competitive practices may be at play. Sometimes this can verge into explicitly criminal behavior. Earlier this year, for example, poultry processor Pilgrim’s Pride pleaded guilty and was sentenced to pay $107 million in criminal fines for its participation in a conspiracy to fix prices and rig bids for broiler chicken products.

Around the same time, Argos USA had to pay $20 million to resolve criminal allegations that it participated in a conspiracy to fix prices, rig bids, and allocate markets for sales of ready-mix concrete in the Southern District of Georgia and elsewhere.

Those who have studied economics will probably recall this comment by Adam Smith in The Wealth of Nations: “People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the publick, or in some contrivance to raise prices.” These days, the contrivance probably occurs in emails or Zoom calls, but the result is the same.

A key component of the effort to bring inflation under control is to prevent corporations from exploiting the country’s transition from the pandemic in a way that harms the rest of us.

Biden’s DOJ Announces Crackdown on Corporate Recidivists

For years, rogue corporations have in effect gotten away with murder through a system that allows them to avoid prosecution for serious offenses by promising to change their ways and paying affordable financial penalties.

These arrangements, widely used by the Justice Department, are known as deferred prosecution and non-prosecution agreements but they are really nothing more than leniency practices. Their supporters claim that the threat of actual prosecution in the future is sufficient to get companies to clean up their act. They also point out that the agreements have provisions requiring such changes.

Unfortunately, there are numerous examples of companies that have violated the terms of their deferred or non-prosecution agreements with apparent impunity. The Biden Justice Department is vowing to change that. Last month, Deputy Attorney General Lisa Monaco gave a speech in which she said DOJ is tightening its procedures on leniency agreements, especially for companies with “a documented history of repeated corporate wrongdoing.” She indicated that DOJ will look not only at the offense related to the agreement but the full range of misconduct.

To assist DOJ in its efforts, Public Citizen has just published a report highlighting 20 large companies with deferred prosecution and non-prosecution agreements that have histories of wrongdoing documented in Violation Tracker.

Some of these rap sheets have continued after the company entered into its leniency agreement. For example, after signing an agreement in 2020, Wells Fargo was fined $250 million by the Office of the Comptroller of the Currency for unsound banking practices. After signing an agreement in 2019, Merrill Lynch (owned by Bank of America) was fined several times by the Congressionally authorized industry regulator FINRA, including an $11.65 million penalty this year for overcharging customers.

After signing an agreement in 2019, Walmart has been involved in numerous violations, including a case in which it paid $20 million to the EEOC to resolve allegations of gender discrimination.

The list could go on. There are abundant examples proving that deferred prosecution and non-prosecution agreement have done little to deter corporate misconduct and that recidivism has continued to run rampant.

It is encouraging to hear the Biden Justice Department talk tough about corporate crime after years in which large corporations have enjoyed exceedingly light-handed treatment from federal prosecutors. It is especially heartening to learn that DOJ will look at the entire track record of corporations in making prosecutorial decisions. I hope that Violation Tracker will help them in their deliberations.

Culpable 26

COP26, the United Nations Climate Change Conference now taking place in Glasgow, is primarily a gathering of governments. The idea is that political leaders from around the world can come together to make commitments that will address one of the most pressing problems confronting the human race.

The ability of nations to make substantial progress is, however, increasingly in question. European countries are reported to be worried that measures resulting in higher energy prices could prompt a populist backlash like the Yellow Vest movement in France. The ability of the U.S. Congress to enact significant climate legislation remains uncertain.

Moreover, the parties which are most responsible for the climate crisis are not governments or the people they represent, but rather the giant corporations whose operations and products account for a large portion of greenhouse gas emissions. Perhaps we should spend more time talking about the Culpable 26, or whatever number of major polluters we deem to be most worthy of castigation.

Identifying the worst climate culprits is complicated by the fact that many of them are claiming to be part of the solution rather than the problem. They tout their efforts to reduce emissions and many even claim to be moving toward net-zero.

There are several problems with these claims. The first is the “net” part. Many companies will end up focusing more on carbon offsets than reducing their emissions substantially.

The second is that the target dates they are setting are well into the future. The Net Zero Tracker lists about 575 large publicly traded corporations as having commitments to net zero or related goals. Of those, more than half set their target date at 2050 or later. They are giving themselves three decades to respond substantively to what amounts to a global emergency.

The third problem is that progress toward these goals will likely be measured by the corporations themselves. Self-reporting is pervasive in the world of corporate social responsibility and ESG, putting into question the entire enterprise.

After all, many of the companies vowing to meet climate goals have abysmal track records when it comes to regulatory compliance. Take the example of Royal Dutch Shell, the largest industrial company with a net zero commitment (by 2050).

As shown in Violation Tracker, Shell has racked up more than $875 million in environmental penalties from federal, state and local regulators in the United States alone. That shows the extent to which the company and its subsidiaries have run roughshod over pollution regulations.

Shell’s Violation Tracker page also shows hundreds of millions of dollars in penalties for other offenses such as accounting fraud (overstating its petroleum reserves) and false claims (underpaying royalties on oil produced under federal leases). In other words, Shell has a history not only of environmental misconduct but also of deceiving shareholders and the federal government.

Shell is far from unique in this regard. Many companies have a track record of deception. Self-reporting is not a reliable basis to determine whether big business is really reducing its damage to the climate.