Researchers Suggest Prosecuting Fossil Fuel Companies For Climate Homicide

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Every once in a while here at CleanTechnica someone suggests perhaps fossil fuel companies should be prosecuted for crimes against humanity — climate homicide, if you will. That conversation usually gets a smile or a thumbs up from our readers, but we all know the idea is really far fetched and unlikely to ever happen. Now two researchers are suggesting much the same thing and have laid out their case in an article that has  been accepted for publication in the Harvard Environmental Law Review.

Who are these intrepid researchers? They are David Arkush, a fellow at the Roosevelt Institute and director of the climate program at Public Citizen, and Donald Braman, an associate professor at George Washington University Law School. Normally we don’t just cut and paste things we find on the internet, but in this case we are going to make an exception. The paper is entitled “Climate Homicide.” It is nearly 70 pages long and if I reprinted all of it here, Zachary would take away my access to the ax throwing area. So here is the introduction, which we hope will encourage you to read all of it yourself.

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“Activists and journalists declaim the executives of ExxonMobil, Shell, and other large oil companies as “mass murderers.” Lamenting that “millions of human beings will die so that they can have private planes and huge mansions,” they talk of dragging the corporate titans who profited rom driving the world to the brink before a judge.” But as of this writing, no prosecutor in any jurisdiction is bringing homicide charges of any kind against fossil fuel companies for even a single death related to climate change.

“They should. 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.

“The summary above describes the core elements of an ongoing mass homicide: conduct undertaken with a culpable mental state that substantially contributes to or accelerates death. Much of the conduct — the production, marketing, and sale of their harmful product — is undisputed. 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.

“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.

“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.

“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 to prevent the escalating threat that their lethal conduct poses to hundreds of thousands, if not millions of potential victims in the United States.

“Prosecutors regularly bring charges against corporations for far less serious crimes. But many are reluctant to prosecute corporations, perhaps because they see no obvious benefit. A corporation, after all, cannot be thrown in jail. These prosecutors may be unaware of modern remedies that can effectively force harmful corporate actors to adopt pro-social practices while preserving the value of the corporation itself.

“This Article reviews these remedies, highlighting one particularly appropriate sanction: restructuring into public benefit corporations. Rewriting the corporate form of criminal corporations is, this Article argues, particularly attractive when the corporations in question are engaging in what, doctrinally speaking, to mass homicide.”

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Proving A Charge Of Climate Homicide

Thank you for reading this far. We hope you found what the authors wrote compelling enough to justify reproducing it verbatim. The Guardian — which is the kind of woke organization we support — reached out to several experts to find out what it would take to bring a criminal complaint against one of more fossil fuel companies. The conclusion is the challenges would be daunting, to say the least.

First, it points out that criminal prosecutions of corporations are rare, but not unheard of. California prosecutors charged PG&E with manslaughter for its role in the deadly Camp Fire that leveled the town of Paradise in 2018. And federal prosecutors charged BP with manslaughter following the 2010 Deepwater Horizon disaster. In both cases, the companies pleaded guilty and paid billions in fines and penalties.

“The morality of what fossil fuel companies have been doing over a few decades has become clearer and clearer,” Christopher Kutz, director of the Kadish Center for Morality, Law and Public Affairs at the University of California, Berkeley told The Guardian. “They are complicit in the deaths that occur and the article is very persuasive about that. But whether you could make an actual criminal charge stick is tricky because their complicity is mixed with the complicity of everybody else.”

He added that the central role fossil fuels have played in shaping the modern world would make prosecution challenging.  “The central act for which the homicide charges being applied were embraced, subsidized, and a central part of the world economy for the last 150 years. This is a different kind of case where the use of fossil fuels is the baseline of normal behavior. That would make it a very unusual kind of homicide case.”

Guyora Binder, a distinguished professor of law at the University at Buffalo, said the paper was “exciting, imaginative and insightful in a number of important ways,” but he also advised caution. “An obstacle to finding causal responsibility is when death results from diffuse actions of multiple actors. It’s a little reminiscent of the issues with tobacco and opioids where you have multiple manufacturers and you can’t trace which one contributed to which death. It’s not clear that if you remove any one of [the fossil fuel companies], that the deaths resulting from global warming don’t occur.”

He did suggest that multiple companies could be charged collectively, but it would still be a very challenging case to prosecute. “If it turns out [fossil fuel companies] were all colluding in suppressing research about climate change and all trying to help each other continue this enterprise, then we may be [able to] hold them responsible for one another’s actions,” he said.

The Guardian reached out to the American Petroleum Institute for a response to the paper and got precisely the kind of response one might expect. “The record of the past two decades demonstrates that the industry has achieved its goal of providing affordable, reliable American energy to US consumers while substantially reducing emissions and our environmental footprint. Any suggestion to the contrary is false.”

Nonetheless, the paper has gotten noticed in the environmental community. Kassie Siegal, director of the climate law institute at the Center for Biological Diversity told The Guardian, “The case is compelling that fossil fuel companies’ actions meet the legal definition of homicide. The paper lays that out clearly. I think it’s absolutely brilliant.”

The Climate Homicide Conclusion

Here is the conclusion to the paper:

“The acts committed by FFCs are like those supporting many other successful homicide convictions: the corporations disregarded serious risks that were brought to their attention and engaged in conduct that accelerated or contributed to one or more deaths. In another sense, however, the scope of the lethality is so vast that, in the annals of crime, it may eventually dwarf all prior homicide cases, combined. The scale of the crime may invite some readers to think it too vast to admit to anything but a political remedy.

“We disagree.

“Acts this culpable and harmful should not be beyond the law’s reach, even for the most powerful actors in our society. Where the conduct is immoral enough and the harm is great enough, criminal prosecution must be considered as a tool to protect the public. Just as the research conducted by FFCs and others put FFCs on notice that they are generating catastrophic risks, the threat of a homicide prosecution would put them on notice that they can be called to answer for their conduct.

“Importantly, homicide prosecutions could make available remedies that states have been unable to access by other means. And because FFCs must consider legal risks in their business planning, simply making FFCs aware of the realistic potential for homicide liability may achieve many of the benefits of a successful prosecution. It is both the moral and practical power
of homicide prosecution that make it compelling.

“Few would view homicide convictions as goods themselves, independent of benefits to the public. In this respect, the credible threat of a homicide prosecution would have a strong chance of aligning FFCs’ incentives with the public good. Indeed, if in response FFCs were to restructure into enterprises that reduced mortality and benefited the public, prosecution might not be necessary to protect the public.

“Today, however, FFCs remain exceptionally powerful, profitable, and lethal, and they are acting as though they are above the law. As a result, they are far from pursuing remedies to the harms they are causing, from which prosecutors are sworn to protect the public. If we want FFCs to take the climate related harms they cause seriously, they must face at least the prospect of incurring legal consequences commensurate with the gravity of those harms. Under a plain reading of the law in hundreds if not thousands of jurisdictions in the United States, they are committing mass homicide. Prosecutors should act accordingly.”

We expect our readers will have a few reactions to the paper and we invite you to share your thoughts with us and your fellow readers in the comments section below.