Taking Big Oil to court for ‘climate homicide’ isn’t as far-fetched as it sounds

A New Legal Theory Suggests Oil Companies Could Be Held Accountable for Homicide

A new legal theory suggests that oil companies could be taken to court for every kind of homicide in the United States, short of first-degree murder.

The Concept of “Climate Homicide”

The idea of “climate homicide” is gaining attention in law schools and district attorney’s offices around the country. A recent paper published in the Harvard Environmental Law Review argues that fossil fuel companies have been “killing members of the public at an accelerating rate.” The paper suggests that oil giants’ awareness of the lethal consequences of their pollution fits within the definition of homicide, as it involves causing death with a “culpable mental state.” This implies that oil companies knew the potential harm they were causing.

The concept of “climate homicide” is generating significant conversation among elected officials and prosecutors. Many have shifted from dismissing the idea as “crazy” to recognizing its validity.

The Role of Oil Companies in Climate Change

Since the 1970s, oil companies like Exxon have understood the dangers associated with burning fossil fuels. They were aware that this activity would lead to unprecedented warming, rendering parts of the globe “less habitable,” causing coastal cities to submerge, and triggering droughts and famines. Despite this knowledge, oil companies continued to rely on coal and oil, actively opposing legislation to reduce greenhouse gas emissions and spreading doubt about climate change science. As a result, the predicted consequences of climate change, such as increased atmospheric CO2 levels, have begun to materialize. Conservative estimates suggest that climate change has already caused the deaths of approximately 4 million people since the start of the 21st century.

According to a new paper by David Arkush, the director of Public Citizen’s climate program, and Donald Braman, a law professor at George Washington University, the number of people killed by climate change could reach the same figure every year by 2100. The authors argue that the scale of these deaths is so vast that it may eventually surpass all other homicide cases in the United States combined.

Expanding Climate Litigation

Climate litigation has entered its “third wave,” according to Anthony Moffa, a professor at the University of Maine School of Law. The first wave involved lawsuits against power companies to limit emissions through federal public nuisance claims, which were rejected by the Supreme Court in 2011. The second wave saw individuals suing the U.S. and state governments, arguing that they had a duty to protect citizens from climate change. This approach proved successful when young climate activists won a lawsuit against Montana, claiming that the state’s failure to evaluate climate risks violated their constitutional right to a healthy environment.

The current phase of climate litigation includes numerous lawsuits filed against oil companies in state courts using laws designed to protect people from deceptive advertising. These cases are finally moving closer to trial after years of delays. Additionally, racketeering lawsuits, which employ laws used against organized crime, are being used against Big Oil. The concept of “climate homicide” introduces the possibility of criminal law cases, including charges of homicide or reckless endangerment.

Potential Homicide Charges Against Oil Companies

The paper by Arkush and Braman suggests that all types of homicide, except for first-degree murder, could be applicable to oil companies. Options include charges of involuntary manslaughter for engaging in reckless conduct that causes death, negligent homicide for neglectful behavior, and depraved heart murder for engaging in conduct with knowledge of a substantial risk of death. Other variants include felony murder and misdemeanor manslaughter. The specific approach taken by an attorney general or district attorney would depend on the jurisdiction’s criminal law.

Implications for Holding Oil Companies Accountable

Homicide suits could be a powerful tool for holding oil companies accountable and compelling them to change their polluting practices. While tort law only imposes financial penalties, criminal law prohibits harmful conduct and provides tools to stop it. A successful lawsuit could result in court-ordered restructuring of fossil fuel companies as “public benefit corporations” that must balance profits with a commitment to the public good. Other potential outcomes include replacing boards of directors or making legally binding commitments to abandon certain practices.

Promoting the Idea of “Climate Homicide”

To promote the concept of “climate homicide,” Public Citizen has been organizing panel discussions at various law schools and is considering staging mock trials to gauge public response and identify compelling evidence. Many prosecutorial offices are interested in exploring these legal theories seriously, recognizing the threats posed by climate disasters to their communities.

The idea of suing oil companies for homicide has gained support from Sharon Eubanks, who led the United States’ racketeering lawsuit against tobacco companies in 2005. Eubanks believes that a similar approach is necessary to address the climate crisis.

Challenges and Roadblocks

Until recently, suing oil companies for homicide had not been seriously considered. Advances in climate science, which connect climate change to extreme weather events and quantify the role of corporate emissions in fueling disasters, have paved the way for such cases. However, the inclusion of attribution science adds complexity not present in litigation against tobacco or opioid companies.

Another obstacle is the reluctance of prosecutors to bring criminal charges against corporations. The first criminal charge against a corporation for manslaughter occurred in 1904 but did not gain traction as a legal strategy. Therefore, the lack of criminal charges against corporations extends beyond environmental law.

In conclusion, Arkush and Braman argue that fossil fuel companies have been acting as if they are above the law and that they are committing mass homicide under a plain reading of the law. They call on prosecutors to take appropriate action.

SDGs, Targets, and Indicators

1. Which SDGs are addressed or connected to the issues highlighted in the article?

• SDG 3: Good Health and Well-being
• SDG 7: Affordable and Clean Energy
• SDG 11: Sustainable Cities and Communities
• SDG 13: Climate Action
• SDG 16: Peace, Justice, and Strong Institutions

2. What specific targets under those SDGs can be identified based on the article’s content?

• SDG 3.9: By 2030, substantially reduce the number of deaths and illnesses from hazardous chemicals and air, water, and soil pollution and contamination.
• SDG 7.2: By 2030, increase substantially the share of renewable energy in the global energy mix.
• SDG 11.6: By 2030, reduce the adverse per capita environmental impact of cities, including by paying special attention to air quality and municipal and other waste management.
• SDG 13.1: Strengthen resilience and adaptive capacity to climate-related hazards and natural disasters in all countries.
• SDG 16.3: Promote the rule of law at the national and international levels and ensure equal access to justice for all.

3. Are there any indicators mentioned or implied in the article that can be used to measure progress towards the identified targets?

• Number of deaths and illnesses attributed to air pollution and contamination caused by fossil fuel companies.
• Percentage increase in the share of renewable energy in the global energy mix.
• Air quality index in cities affected by fossil fuel pollution.
• Number of climate-related hazards and natural disasters and their impact on communities.
• Number of successful criminal law cases against fossil fuel companies for their role in climate change.

SDGs, Targets, and Indicators

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Source: grist.org

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