‘Climate homicide’ architects pitch theory to prosecutors

By Lesley Clark | 04/09/2024 06:16 AM EDT

The lawyers are promoting new ways to hold oil companies criminally accountable for climate change. Progressive district attorneys are listening.

Harvard University.

Lawyers behind a novel "climate homicide" claim are presenting their theory at some of the nation's top law schools. Harvard Law School's Langdell Hall is shown. Charles Krupa/AP

CAMBRIDGE, Massachusetts — Lawyers advancing an effort to charge oil companies with homicide over climate-related deaths are ramping up their campaign to hold fossil fuel producers criminally accountable for contributing to climate change.

The authors of “Climate Homicide: Prosecuting Big Oil for Climate Death” — which will be published soon in the Harvard Environmental Law Review — embarked on a road trip of college campuses this spring, making the case for bringing a slew of criminal charges against oil and gas companies.

The push by David Arkush, director of Public Citizen’s climate program, and Donald Braman, an associate professor at George Washington University Law School, aims to bolster support for the theory through presentations at law schools. Their events have attracted law students, legal professors and local climate activists.


Local district attorneys offices are also starting to pay attention.

“As stakeholders in the realm of criminal justice, it is imperative that we acknowledge and address the profound impact of pollution and chemical exposure on individuals’ well-being and their abilities to live full lives,” said Marian Ryan, district attorney for Middlesex County, Massachusetts, whose office sent a representative to a recent event at Harvard Law School.

In a classroom at Harvard last month, Arkush and Aaron Regunberg, a senior climate policy counsel at Public Citizen, told an audience that their initial climate homicide theory is expanding to include other crimes, such as reckless endangerment.

“We believe that by knowingly generating the climate crisis and fraudulently covering it up, fossil fuel companies have committed some crimes,” Regunberg said. “We think it’s important that we are exploring and pursuing every tool that could help drive us to climate solutions.”

Arkush noted prosecutors have power that civil litigators do not and may be able to negotiate concessions and agreements beyond what a civil lawsuit could accomplish.

Pharmaceutical giant Purdue Pharma, for example, settled a civil and criminal investigation into its opioid distribution practices by reaching an agreement with the Department of Justice to restructure as a public benefit company, focused on operating in the public interest.

“Imagine if we could rewrite the charters of fossil fuel companies and require them to advance the clean energy transition and donate proceeds to resilience, adaptation and compensating people for past harms,” Arkush said.

The oil industry is already facing a barrage of civil lawsuits as local and state governments from Hoboken to Honolulu go to court to force companies to pay for the costs of dealing with rising tides and intensifying storms. Oil companies have asked the Supreme Court to put a stop to the litigation, which could cost them billions of dollars.

Phil Goldberg — special counsel for the Manufacturers’ Accountability Project, which was created by the National Association of Manufacturers to oppose the civil climate liability litigation — told E&E News last year that the theory of criminal homicide charges appears to be an effort “largely based on rhetoric and trying to achieve energy policy goals through criminal law.”

Criminal charges are not meant as a substitute for civil litigation against the oil industry, Arkush said, but they are a yet-unexplored avenue for holding companies accountable for their impact on humans and the environment.

“I work on climate, day in, day out, and we need all hands on deck,” Arkush said at a recent event at Yale Law School. “We need every strategy, we need every tactic, and criminal prosecutions could potentially make major contributions.”

Hurdles to climate prosecution

Several lawyers who have handled civil and criminal cases have called the climate homicide theory unworkable. They noted the bar for conviction in a criminal case is higher than in civil litigation: A criminal conviction requires convincing a jury of guilt beyond a reasonable doubt.

In an era of “politically motivated lawfare,” it’s not a stretch to think that a prosecutor might be interested in the theory, said Jonathan Brightbill, who served as a top official in DOJ’s environment division during the Trump administration.

But Brightbill said he believes the theory is “constitutionally and legally suspect.” That’s because he said it would be difficult to link any company’s conduct — or emissions — to a particular weather event.

“There’s no science or technical ability that allows anyone to trace particular emissions of greenhouse gases through to any identifiable weather or climate change event,” said Brightbill, now a partner at Winston & Strawn. “With climate change, there are innumerable, superseding, intervening causes before you could begin to lay any particular catastrophe at the feet of any particular company or individual.”

Braman, however, noted at the Yale event that most states follow a penal code that is different than federal law and that in most criminal cases, juries — not judges — would determine the outcome.

“Our hope is not to see a bunch of people in prison,” he said. “Our goal is to figure out how to get enough leverage over these massive corporations that are just continuing, actually accelerating, their harmful conduct.”

Cindy Cho, a former DOJ trial attorney and assistant U.S. attorney for the Southern District of Indiana, has joined the climate crimes discussions, telling attendees at the law school events that she was once skeptical about the prospects for criminal charges against the oil industry.

But Cho, now a law professor at Indiana University, said as she kept learning more, “I thought, ‘There’s something here.’”

Still, Cho detailed a litany of hurdles that a prosecutor would likely face. She cautioned that any prosecution of a corporation would be time-consuming and “deeply, scarringly, litigious.” And she warned that it’s not uncommon for white-collar defendants to level charges of prosecutorial misconduct.

Cho suggested that prosecutors would need a person — not just a company — to put on the stand in a courtroom.

“We want someone sitting at the counsel table to say, ‘This person made decisions that led to this harm,’“ she said. And she added that the prosecution would need to draw “a line from the person to the harm.”

Prosecutors have charged people with drug dealing that resulted in a death. But Cho said it can be difficult to prove that the particular drugs that the defendant sold caused the death.

She noted at the Yale event that some prosecutors are thinking more broadly about oil companies’ harms to their communities and how they can be addressed.

“I think this would be exciting to prosecutors who are interested in getting into the calling of being a prosecutor — not to incarcerate people, but to think through who ought to be held accountable for harms that are inflicted,” she said.

Reckless endangerment

Although climate homicide remains the marquee offense in Arkush and Braman’s fledgling theory, they noted that most states have reckless endangerment statutes that they could use to target conduct by oil companies that creates a substantial risk of physical injury.

Arkush and Braman make the case that fossil fuel producers could be shown to have engaged in “reckless conduct” through industry records that show companies knew decades ago about the dangers of burning fossil fuels — but lied about it to the public, even as they fortified their own infrastructure.

“It’s hard to argue that fossil fuel companies have not created risks,” Public Citizen’s Regunberg said.

Other crimes the oil industry could be accused of include damage or destruction of property and criminal negligence.

In Pennsylvania, a section of state law criminalizes “causing or risking catastrophe.” The law, which is similar to provisions in several other states, makes it a felony to cause or recklessly create a risk of “a catastrophe” — which is defined as an explosion, fire, flood, avalanche, collapse of a building, release of poison gas “or by any other means of causing potentially widespread injury or damage.”

Regunberg noted that the Pennsylvania Supreme Court in a 2005 decision wrote that operators of a pier that collapsed in 2000, killing three women, had “engaged in what amounted to a literal ‘cover-up’“ by concealing structural deficiencies that had led to the catastrophe.

Braman said that many of the claims in civil lawsuits against the oil industry “have clear criminal analogs.”

Company conduct that is detailed in the lawsuits, he wrote in an outline for an upcoming paper, “meet the elements of many other well-established crimes, including various forms of homicide, causing or risking catastrophe, battery, reckless endangerment, criminal damage, and criminal negligence.”

Philadelphia District Attorney Larry Krasner — whose staff met with Arkush and others after their presentation at the University of Pennsylvania’s Carey Law School — expressed interest in the idea of bringing criminal charges against oil companies.

He said his office “continues to explore legal avenues by which we may seek accountability from polluters.”