If Trump can be convicted, so can Big Oil
Progressive prosecutors should be taking a more aggressive stance against fossil fuel companies, advocates argue.
Climate change is killing people. As time goes on, it’s going to kill a lot more.
The fossil fuel industry should be criminally charged with mass homicide for these deaths, according to a new and novel legal theory. Published by the Harvard Environmental Law Review last year, the argument goes that oil giants knew their products would have lethal consequences, yet actively thwarted efforts to protect people through misinformation and policy delay.
“Prosecutors regularly bring homicide charges against individuals and corporations whose reckless or negligent acts or omissions cause unintentional deaths,” wrote George Washington University law professor Donald Braman and Public Citizen climate director David Arkush.
In their paper, Braman and Arkush urged state attorneys general across the country to pursue criminal charges against oil companies in addition to the multitude of civil cases already pending. They said that criminal prosecution—whether it be for homicide or criminal negligence—could be a more powerful and effective tool for spurring change than civil litigation, because a conviction or settlement could result in mandated changes to how fossil fuel companies operate. (They are “not trying to advocate for locking lots of people up,” they said).
And, in a virtual panel I attended on the topic last week, Public Citizen’s senior policy counsel Aaron Regunberg argued that Donald Trump’s recent felony fraud conviction at the hands of a New York jury should provide yet another piece of inspiration for prosecutors looking to protect citizens from climate harms.
“We saw last week in Manhattan that there can be something very powerful about the mechanism of a jury trial,” Regunberg said.
While civil climate liability cases against Big Oil are important, Regunberg said, Trump’s conviction showed the potential of bringing criminal claims directly before juries, where politically-appointed judges are less likely to influence outcomes.
“There are so many systems in this country that operate to shield the wealthy and powerful from accountability for the awful things they do, whether it’s individuals like Trump, or massive corporations like Exxon Mobil,” he said. “But in the criminal law, there’s a huge amount of deference to the jury. And that can be a way to cut through all that bullshit, and have regular people make a decision about what, according to their common sense, seems fair and just.”
Trump’s case also “moved a lot faster compared to civil litigation that we’ve seen,” Regunburg said. “That’s advantageous to a fast-moving crisis” like climate change.
A criminal conviction against Big Oil would also more effectively communicate the gravity and deadliness of the climate crisis to the public than a civil judgement, Regunberg argued. Think about it: Trump already had two civil judgments against him at the time of his fraud trial. But they simply didn’t hold as much weight in public discourse as the criminal conviction.
That’s likely because Trump now has the dreaded label: “convicted felon.” It’s a label that has disproportionately been used to punish poor people, people of color, and people with mental health or substance abuse issues, Regunberg noted.
So if progressive prosecutors want to actually transform the criminal justice system to protect regular people from harm, Regunberg argued, they would seek to turn that label against “corporate actors whose criminal recklessness is doing harm at an almost unimaginable scale”—and they would start with Big Oil.
One criminal climate case against Big Oil has already been filed since the Harvard Environmental Law Review paper was published. Last month, in France, eight people harmed by extreme weather and three NGOs sued the CEO and directors of the French oil company TotalEnergies “for deliberately endangering the lives of others, involuntary manslaughter, neglecting to address a disaster, and damaging biodiversity,” the Guardian reported. “Such crimes, if proven, are punishable by imprisonment and fines.”
And while there are currently no U.S. prosecutors pursuing homicide charges against fossil fuel companies, cities in New Jersey and Puerto Rico have launched conspiracy cases against oil companies for hiding the long-term risks of burning fossil fuels. But these are civil conspiracy cases, not criminal*.
The authors of the Harvard Environmental Law Review paper, Arkush and Braman, have also embarked on a road trip this spring to bolster support for their theory among the legal community. And progressive prosecutors are reportedly listening.
The biggest thing that could sway local district attorneys and state attorneys general, however, is public pressure, and engagement with state and local-level politics, said the panelists at last week’s virtual event.
”Prosecutors are elected officials. They are accountable to you,” said Amy Fettig, deputy director of Fair and Just Prosecution. “It’s going to take the community.”
Correction: A previous version of this story incorrectly stated that the New Jersey and Puerto Rico lawsuits were criminal RICO cases. They are civil RICO cases.
Further reading:
Majority of US voters support climate litigation against big oil, poll shows. The Guardian, May 2024.
Asked if fossil fuel companies should be held legally accountable for their contributions to climate change, 62 percent of voters said yes, suggesting majority support for the existing civil lawsuits against oil companies. That included 84 percent of Democrats, 59 percent of Independents and 40 percent of Republicans.
Climate change is deadly. Exactly how deadly? Depends who's counting. NPR, June 2024.
The disparate death counts in Kentucky are part of a long-standing problem: Despite the growing danger from climate-driven disasters, there is no single, reliable count of who is dying as a result of extreme weather in the United States. For any given weather disaster, multiple government agencies publish independent — and often widely differing — death counts.
Could fossil fuel companies be charged with homicide? Bulletin of the Atomic Scientists, April 2024.
The idea of “climate homicide” is getting attention in law schools and district attorney’s offices around the country. … It says that oil giants’ awareness that their pollution could have lethal consequences solidly fits within the definition of homicide, which, in its basic form, is causing death with a “culpable mental state.”
Catch of the day: Reader Michael is a solar developer in Dallas, Texas. But he says he can’t do his planet-saving work without his trusty climate sidekick, Blanca.
Thanks Blanca for helping reduce our dependence on fossil fuels! You are a VERY cool dog.
Want to see your furry (or non-furry!) friend in HEATED? It might take a little while, but we WILL get to yours eventually! Just send a picture and some words to catchoftheday@heated.world.
I didn't even have to read the article to agree, but I did anyway. Criminal cases, not just civil penalties. 👏👏👏
Really cool that you covered this! I think negligence is easier to prove than outright homicide, but criminal charges should be applied either way.