“What fossil fuel companies knew and what they did with that knowledge is revealing a story of antisocial conduct.”
Fossil fuel corporations—the primary drivers of the climate emergency—are facing dozens of civil lawsuits that could see them pay billions of dollars for knowingly unleashing environmental destruction.
But a pair of legal experts argue they should be held criminally responsible for extreme weather-related deaths that occurred after the industry downplayed the dangers of burning coal, oil, and gas.
In a new paper titled Climate Homicide: Prosecuting Big Oil for Climate Deaths, Public Citizen’s David Arkush and George Washington University law professor Donald Braman contend that “if our criminal legal system cannot focus more intently on climate crimes—and soon—we may leave future generations with significantly less for the law to protect.”
“As of this writing, no prosecutor in any jurisdiction is bringing homicide charges of any kind against fossil fuel companies (FFCs) for even a single death related to climate change. They should,” states the paper, which is set to be published next spring in the Harvard Environmental Law Review.
According to Arkush and Braman:
The case for homicide prosecutions is increasingly compelling. A steady growth in the information about what FFCs knew and what they did with that knowledge is revealing a story of antisocial conduct generating lethal harm so extensive it may soon become unparalleled in human history.
FFCs have long understood the “globally catastrophic” risks that the production, marketing, and sale of their product generates. But when confronted with extensive internal and external research about the grave dangers posed by their business model, they did not notify the public, regulators, or legislators, much less work to find solutions or change their business model. Instead, they developed extensive disinformation and political influence campaigns to obscure the risks, confuse others, and block legal or regulatory restriction of their increasingly lethal conduct. Moreover, while they put their wealth to work reducing regulatory and legal risks to their profit margins, they privately used the data they disputed and obscured to reduce their own exposure to climate-change-related industrial risks to further maximize their future profits.
FFCs were technically sophisticated enough to know that they could hide the harms they were generating from lay observers for decades, allowing them to earn trillions of dollars while researchers, activists, and regulators struggled to overcome the sophisticated disinformation and political influence campaigns these profits supported. In recent years, the harms have become increasingly lethal and will likely continue to worsen for decades to come. These harms, while global, already include thousands of readily foreseeable deaths of residents of the United States, a toll that may escalate into the hundreds of thousands and, over time, potentially millions.
In the co-authors’ words, the preceding summary “describes the core elements of an ongoing mass homicide: conduct undertaken with a culpable mental state that substantially contributes to or accelerates death.”
“Regardless of whether FFCs knew their conduct would contribute to these lethal risks, were aware of the substantial and unjustifiable risks they were running, or merely should have known and should have investigated further—that is, whether they had a knowing, reckless, or negligent attitude towards these risks—they satisfy at least one of the culpable mental states required for some gradation of homicide,” Arkush and Braman argue. “Further, under misdemeanor manslaughter or felony murder laws, if prosecutors can prove that FFCs engaged in any related criminal conduct involving fraud, racketeering, anti-competitive practices, or safety violations, homicide liability could obtain independent of any mental state regarding the risk of death.”
“As additional evidence of FFCs’ knowledge of the lethal risks they were generating surfaces through leaks and court-mandated discovery, obstacles to a successful prosecution are falling away,” the scholars continue. “At the same time, with every new wave of climate-related deaths, the justification for prosecution grows.”
“Although some of the harmful externalities that FFCs generate may be suitable for tort or regulatory suits, the lethality of FFCs’ conduct, their awareness of the risks they are generating, and their efforts to obscure those risks make criminal prosecution for homicide particularly appropriate,” they add. “Perhaps most importantly, if FFCs continue to fight speedy reductions in the harms they are generating, and if they continue to obstruct or delay state and federal regulation and civil suits designed to reduce the lethal impact of their conduct, then homicide prosecutions may prove necessary.”
Last month, BP and Shell announced they are diluting their emission-reduction targets and expanding fossil fuel production after Big Oil enjoyed record-breaking profits in 2022 as Russia’s invasion of Ukraine disrupted global energy markets and gave firms an excuse to hike prices. Climate scientists have made clear that such decisions are, as United Nations Secretary-General António Guterres put it earlier this year, “inconsistent with human survival.”
After the U.N.’s Intergovernmental Panel on Climate Change released its latest assessment report on Monday, Guterres said that limiting global warming to 1.5°C is possible, “but it will take a quantum leap in climate action,” including a prohibition on funding and approving new coal, oil, and gas projects along with a phaseout of existing fossil fuel production.
The deadly consequences of unmitigated greenhouse gas pollution, which has increased average surface temperatures by roughly 1.1°C over preindustrial levels to date, are already apparent.
For instance, a report released Monday by UNICEF, the World Health Organization, and Somalia’s health ministry found that an ongoing drought caused 43,000 excess deaths in the country last year. Nearly 130,000 people in Somalia and other countries in the Horn of Africa are at risk of dying prematurely this year from famine. In southern Africa, a record-breaking cyclone has killed more than 500 people this month, while last year’s unprecedented flooding in Pakistan killed more than 1,700 people.
This is just a small sample of recent climate change-intensified calamities affecting the residents of low-income countries who have contributed the least to planet-heating pollution but are disproportionately vulnerable to its impacts. Nevertheless, increasingly frequent and severe hurricanes, heatwaves, wildfires, and other extreme weather disasters that are consistent with scientists’ longstanding warnings are also wreaking deadly havoc in rich nations, including the United States.
Because their paper “addresses the question of criminal prosecution under domestic law,” Arkush and Braman focus their attention on the U.S., where an estimated 12,000 people died each year from climate change-related heat exposure between 1991 and 2018—an annual mortality figure that is expected to surge to 96,000 by the end of the century.
Oil and gas companies – whose conduct is putting significant portions of the world population at risk – face little criminal accountability— Julia Levin (@lev_jf) March 20, 2023
But a new paper says that could change – Big Oil companies could be held accountable for climate homicide https://t.co/ENFazs53EL
Speaking with E&E News on Monday, Arkush said prosecutors are already intrigued by the novel legal theory of “climate homicide.”
“We have some indication they’re at least listening and curious,” Arkush, director of Public Citizen’s climate program and a fellow at the Roosevelt Institute, told the outlet. “To someone who knows the criminal law, there’s a moment of ‘What!?’ and then, ‘It’s OK. It’s not crazy.'”
“We concluded there aren’t really any legal or factual barriers to prosecution,” said Arkush. “The real potential barriers are political, cultural. Does this strike people as just too out there? Do the fossil fuel companies have too much power, culturally, politically, economically? Those are the real barriers.”
According to Braman: “What’s really probably stopping them is that no one has done it before. The level of culpability and the extent of the harm is so massive that it’s not the kind of thing that prosecutors are used to prosecuting.”
Anthony Moffa, an associate law professor at the University of Maine who has previously assessed the possibility of criminal liability for environmental policy decisions, told E&E News, “I think it’s the next thing.”
“If we’re doing it in these other instances and saying there was environmental harm, logically it’s hard to distinguish that from the climate crisis,” said Moffa. The causal link between burning fossil fuels and climate change-exacerbated storms might be “longer and maybe more attenuated, but it’s still a pretty direct line.”
As E&E News reported: “Corporations can’t be put behind bars even if they are convicted of a crime. But Arkush and Braman say they’ve identified an option for prosecutors to use in climate homicide cases that could lead to public good, rather than prison time or corporate dissolution. Companies that are convicted of criminal charges could instead face restructuring into a ‘public benefit corporation,’ a designation that gives a company latitude to focus on priorities other than simply maximizing shareholder value.”
According to Arkush and Braman’s paper, this could enable a reduction in “the production and distribution of fossil fuels at the fastest pace feasible—but not so fast as to cause harm—while protecting displaced workers and local economies and investing in the development and deployment of clean energy.”