"Fossil Fuel Free Future" by Jeremy Buckingham MLC is licensed under CC BY 2.0.

High Crimes: The Case For Charging Fossil Fuel Companies With Criminal Acts

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Aaron Regunberg is the senior policy counsel for the climate program at Public Citizen, a nonprofit advocacy group founded in 1971 by Ralph Nader. On its website, it says “Corporations have their lobbyists. The people need advocates too. That’s where we come in.” Last week, Regunberg and three colleagues — Cindy Cho, David Arkush, and Donald Braman — released a position paper entitled Charging Big Oil with Climate Homicide — Preliminary Prosecution Memo for July 2023 Heat Wave. Bringing criminal charges against fossil fuel companies may seem like a giant leap into the unknown, but the analysis by the four authors is extensive and exhaustive.

It is a thorough and deeply detailed review of all the nefarious shenanigans by the fossil fuel industry over multiple decades to protect its profits while knowing full well its activities were putting the health of many thousands of people at great risk. If you ever want a compilation of all the dirty deeds done by the oil and gas industries — with full knowledge of their most senior executives — this report is for you. Settle down in a comfortable chair and read the whole thing, all 51 pages complete with over 300 footnotes. It shouldn’t take you more than four or five hours.

Fossil Fuel & Climate Risks

The authors focus their attention on a heat wave in 2023 that led to the deaths of several people, but its message is broad enough to apply to any number of similar situations in the US where extreme weather events — include raging forest fires — have resulted in the deaths of innocent people. We are going to start this discussion by quoting from the conclusion of the paper. It’s powerful stuff.

“Hundreds of Americans, including 403 residents of Maricopa County, were killed in the heat wave that struck the American Southwest in July 2023. These deaths didn’t just happen. They had a cause — a cause that traces back to decisions that fossil fuel companies  made with full knowledge of the risks. The deaths were caused by an extreme weather event that would have been “virtually impossible” but for human caused climate change, which in turn has been caused by fossil fuel companies that are responsible for generating a substantial portion of all the greenhouse gas emissions that have caused the planet to heat up and deceiving the public about the dangers of their fossil fuel products so they could continue to generate these emissions.

“These companies have made trillions of dollars from their reckless conduct, while regular people, like the victims of the July 2023 heat wave, pay the price. These victims deserve justice no less than the victims of street-level homicides. A strong case exists for charging major fossil fuel companies with manslaughter or even second degree murder for these deaths — strong enough, based on the publicly available information discussed in this memorandum, for state and local prosecutors in Arizona to consider initiating criminal investigations.

“While the July 2023 heat wave was devastating, it was not a unique occurrence. In recent years climate-fueled heat waves, hurricanes, wildfires, and other disastrous weather events have killed thousands of Americans — have burned children alive in Maui, drowned families in Puerto Rico, killed people by heatstroke in the Pacific Northwest and elsewhere, And this loss of life will continue to accelerate as climate chaos intensifies. The charges described in this memo provide a starting point for similar analyses that could, and should, be undertaken by prosecutors in every jurisdiction that experiences loss of life due to climate disasters.”

Can corporations be charged with crimes? Absolutely. According to chief justice John Roberts and his band of merry pranksters (see Ken Kesey, The Electric Kool-Aid Acid Test), corporations are people, just like you and me. If people can be held responsible for their crimes, why shouldn’t corporations be as well? Co-author Cindy Cho, a former federal prosecutor for over a decade, told The Guardian, “Although civil remedies are of course vital, sometimes only our criminal laws can measure up to the harm someone has inflicted. If human generated climate change is killing people, and the organizations that generated it knew the risks, then it stands to reason that criminal charges may be exactly what society expects.”

Bill McKibben Weighs In On Fossil Fuel Crimes

Indefatigable climate activist Bill McKibben had a few thoughts to share with The Guardian. “What’s happened to the climate is a crime: after fair warning from scientists about what would happen, Big Oil went right ahead pouring carbon into the atmosphere, and now there’s a huge pile of dead bodies (and a larger one of dead dreams). The only question left is whether our legal system will recognize these crimes and this analysis shows there’s a good chance the answer could be yes.”

The authors anticipated that question and did their best to answer it in their executive summary:

“This preliminary “prosecution memorandum” draws from publicly available material to assess potential criminal charges that local or state prosecutors could bring against major fossil fuel companies for lives lost in a climate disaster. To ground this assessment in real world analysis, it focuses on one specific factual scenario — the lethal heat wave that struck the American Southwest in July 2023, causing hundreds of deaths in Maricopa County.

“Though this memo asks a particular question — how officials in Maricopa County could pursue reckless manslaughter or second degree murder prosecutions for deaths caused by the July 2023 heat wave — its analysis is relevant in most jurisdictions where prosecutors might seek justice for climate victims. Some jurisdictions define homicide or their causation requirements slightly differently, but the charges discussed and reasoning employed in this memorandum could be investigated in practically any jurisdiction that has experienced climate-related deaths.

“Indeed, the authors hope this public memo can serve as a starting point for any prosecutor who wants to build a case to protect their constituents from the lethal climate disasters that are threatening public safety in communities across the country.”

The Takeaway

It would not be surprising if most CleanTechnica readers agreed with the authors of this report. If a corporation is exempt from being charged with crimes, doesn’t that give them an incentive to commit criminal acts? Some people will struggle to understand how a fictional entity — a corporation is really nothing more than a set of papers filed in an office somewhere — can commit a crime. While that argument makes for an interesting theoretical discussion — sort of like debating how many angels can dance on the head of a pin — the answer is that corporations are controlled by humans, who will lie, cheat, and steal like there’s no tomorrow if there is a chance to make more money.

It is a failing in our makeup that has caused untold suffering and misery for thousands of years. Giving corporations immunity from criminal responsibility is like pouring gasoline on a campfire. Isn’t it time to finally make them suffer the burdens —  including penalties for criminal behavior — of their personhood as well as the benefits that have enjoyed for so long? We look forward to hearing what our readers have to say on that issue.

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Steve Hanley

Steve writes about the interface between technology and sustainability from his home in Florida or anywhere else The Force may lead him. He is proud to be "woke" and doesn't really give a damn why the glass broke. He believes passionately in what Socrates said 3000 years ago: "The secret to change is to focus all of your energy not on fighting the old but on building the new." You can follow him on Substack and LinkedIn but not on Fakebook or any social media platforms controlled by narcissistic yahoos.

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