Climate Criminals – Prosecuting Big Oil For Environmental Crimes

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David Arkush is the director of the Public Citizen Climate Program, a fellow at the Roosevelt Institute, and co-author of the forthcoming Harvard Environmental Law Review article entitled “Climate Homicide: Prosecuting Big Oil for Climate Deaths.” Together with Aaron Regunberg, who is a progressive organizer and senior climate policy counsel at Public Citizen, he has written an article for The New Republic called The Case for Prosecuting Fossil Fuel Companies for Homicide.

Wow. Let that sink in for a moment. Could such a thing even be possible? How can we hold executives today responsible for the actions of their predecessors, many of whom have died and left us to deal with the consequences of their bad acts? Arkush and Regenburg have an answer to that question. The objective is not to put corporate leaders in jail, but to reshape these rogue corporations into organizations that promote benefits for society.

A corporation, by definition, is a legal fiction created by a grant of authority from the citizens of a state or nation. Many suggest the power to create fictitious “persons” implies a certain “social license” that can be revoked if the corporation injures the community that created it.

The authors claim that prosecutors also have tools and powers that civil litigants lack. In response to criminal prosecution by the Department of Justice over its role in the opioid crisis, Purdue Pharma accepted a proposed settlement to restructure the company as a public benefit corporation that will function “entirely in the public interest,” delivering safe, legitimate prescription drugs, offering free or steeply discounted addiction treatment and overdose rescue medications, and donating proceeds to opioid abatement programs.

“A similar deal with fossil fuel companies could rewrite their corporate charters and require them to focus on hastening the clean energy transition, subsidizing adaptation and resilience measures, and redressing harms from their past misconduct,” they suggest.

The Preemption Doctrine

Courts have rejected some tort cases against fossil fuel companies by reasoning that climate change is a problem for the federal political branches, meaning Congress and the executive branch, not the courts or state law. In other words, federal law preempts state action, or so the argument goes. Yet, criminal laws enacted by individual states are not barred by the preemption principle. States are entitled to stop conduct that kills people. The authors suggest there is no case in which a court has rejected a criminal prosecution under generally applicable law — for instance, a homicide statute — on the grounds that it is preempted by federal law or is a question for the political branches rather than courts.

Big Oil An&d Criminal Culpability

What crimes have the major oil and gas companies committed? Arkush and Regenburg name a few they think apply: fraud, deceptive advertising, reckless endangerment, criminal mischief, conspiracy, and racketeering, to name the most serious ones. Many of the civil claims pending against fossil fuel companies have criminal analogs. Prosecutors could allege essentially the same conduct that plaintiffs in those civil suits are claiming caused harm.

The crime that best captures the nature, scale, and gravity of their corporate misconduct in most jurisdictions might be homicide. In criminal law, homicide means causing a death with a culpable mental state. If someone substantially contributes to or accelerates a death, that counts as “causing” it. If they did so intentionally, knowingly, or recklessly, that counts as “culpable mental state.” So the basic questions in a climate homicide trial are as follows: Did fossil fuel companies substantially contribute to or accelerate deaths, and did they do so at least recklessly, if not knowingly or intentionally?

So the basic questions in a climate homicide trial would be, did fossil fuel companies substantially contribute to or accelerate deaths? Did they do so at least recklessly, if not knowingly or intentionally? The reason for pursuing criminal accountability is simple, they say. “The climate crisis is an all hands on deck moment if there ever was one, and we need to use every available strategy to curtail greenhouse gas pollution.”

In tort law — which defines civil wrongs — the law seeks economically efficient outcomes. The question for a judge or jury to decide is whether one party should pay another money. Criminal law is concerned with morality, which is society’s fundamental value. It determines whether conduct is permissible or forbidden. Where tort law prices misconduct, criminal law prohibits it.

The Nature Of The Crimes

“Climate change is not a tragedy, it’s a crime,” the authors say. We have learned only recently of how companies like ExxonMobil, Chevron, Shell, and BP, among others — a group known collectively as Big Oil — were told by their own scientists decades ago that their products would lead to rising average temperatures but chose to ignore that information. Fossil fuel companies have long understood — with shocking accuracy — that their fossil fuel products would cause, in their own words, “globally catastrophic” climate change.

Instead of shifting their business model or at least alerting the public to this threat, the companies concealed what they knew and executed a multi-million dollar disinformation campaign to spread doubt about climate science. They did this while privately acting on the predictions of climate science to protect their own business operations, for example by raising the height of offshore platforms in anticipation of sea level rise.

Internal documents show that their goal in deceiving the public was to delay or block policy or market responses that would curb their lethal but highly profitable conduct. They achieved this goal spectacularly, making trillions of dollars from their deception while most of humanity pays an increasingly devastating price.

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The Takeaway

At first, the idea of holding Big Oil and its colleagues criminally responsible for their actions is breathtaking. And yet, why should corporations, which want to be seen as “persons” with all the rights and privileges of citizens, be exempt from suffering the consequences if they commit crimes? The notion that any actors in society are exempt from criminal prosecution is a fiction and is one of the reason Big Oil has felt free to ruthlessly pursue its business interests despite the harm to the environment. No corporation has ever gone to jail, so why worry?

But the barriers to prosecuting fossil fuel companies for climate harms are not primarily legal, Arkush and Regenberg suggest. The main problem is the industry’s extraordinary power — political, economic, and cultural power. That should not exempt them from being brought to justice, however. Prosecutors owe it to their communities and their profession to explore the possibility of pursuing the climate justice we deserve, the authors argue.

It is likely readers will have opinions about this rather novel theory put forward by Arkush and Regenberg. Please feel welcome to share them with us in the comments section.

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