‘Climate homicide’: Could Big Oil be Sued for Disaster Deaths?

A large plume of smoke rises from BP's Deepwater Horizon offshore oil rig in 2010. The explosion killed 11 people and is being pointed to by some legal experts who argue that oil companies should be prosecuted for climate-related homicide. AP Photo/Gerald Herbert

Oil majors are facing civil lawsuits in courts from Hoboken to Honolulu that could cost the industry hundreds of billions of dollars for its role in producing planet-warming emissions.

But can petroleum producers be held criminally responsible for climate-related deaths that occurred after companies allegedly deceived the public about the dangers of burning fossil fuels? A new academic paper says they can, and authors of the research say the novel legal theory — known as “climate homicide” — is already stirring interest from prosecutors.

“We have some indication they’re at least listening and curious,” said David Arkush, director of Public Citizen’s climate program and a fellow at the Roosevelt Institute. “To someone who knows the criminal law, there’s a moment of ‘What!?’ and then, ‘It’s OK. It’s not crazy.’“

The paper, “Climate Homicide: Prosecuting Big Oil for Climate Death” — written by Arkush and Donald Braman, an associate professor at George Washington University Law School — will be published next spring in the Harvard Environmental Law Review.

“We concluded there aren’t really any legal or factual barriers to prosecution,” Arkush said.

He added: “The real potential barriers are political, cultural. Does this strike people as just too out there? Do the fossil fuel companies have too much power, culturally, politically, economically? Those are the real barriers.”

The paper tries to make a case for criminal prosecution of companies that knew but publicly dismissed the dangers of global warming. The authors argue that criminal charges are routine “for far less culpable and lethal conduct.”

They cite, for example, a Florida man who was convicted of felony murder after a security guard who tried to stop him from shoplifting died of a heart attack.

A homicide charge against the oil industry, Braman said, “is a way for prosecutors who have been prosecuting low-level drug offenses for decades to better align their practice with their values.”

“Go after the folks who are really generating significant harm, rather than the folks who are simply the least powerful, least capable of defending themselves with high-priced attorneys,” Braman added.

Several lawyers who have handled civil and criminal cases say the theory is 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.

“I cannot say that there is no prosecutor in America who would pursue this,” but the chances are slim that the approach will gain traction, said Jonathan Brightbill, who served as a top civil and criminal enforcement official at the Justice Department’s environmental division during the Trump administration.

Brightbill, now a partner at Winston & Strawn LLP, said oil companies could argue that their “fractional contribution” to greenhouse gases worldwide are “dwarfed by the increases in emissions we see out of China every couple months.”

And he said prosecutors — in the case of criminal charges against an oil company after a disaster — would be left to “prove beyond a reasonable doubt that the storm was the result of climate change, as opposed to a mere natural event that, but for the emissions of the company, would not have occurred.”

Arkush and Braman say homicide charges for environmental crimes are not unprecedented. DOJ prosecuted BP PLC after the 2010 Deepwater Horizon oil spill in the Gulf of Mexico, leading to a $4 billion settlement — the largest ever in a criminal case — and the oil giant pleading guilty to 11 felony counts of manslaughter for workers who died on the rig.

California prosecutors in 2019 charged Pacific Gas & Electric Co. with homicide for deaths related to the 2018 Camp wildfire that killed 85 people. PG&E pleaded guilty to 84 felony counts of involuntary manslaughter for causing the blaze and was fined $4 million, the maximum penalty allowed.

But Brightbill said that proving a causal connection to climate change would be difficult because of its diffuse nature, unlike an oil spill or a fire.

“In a fire, if it was started by gross negligence or misconduct, the causal connection is pretty readily evident,” Brightbill said.

Arkush and Braman note that the “most significant burden for a prosecution” would be proving that the conduct of oil companies was a legal cause of any particular death.

But they said that there would be no bar to prosecution “so long as the defendant engaged in related conduct that a reasonable person would understand to be generating lethal risk.”

Braman said a criminal court would defer to jurors “to determine whether or not it’s appropriate to hold a defendant accountable for something they have contributed to.”

The next climate law frontier

Criminal charges have been wielded in other environmental incidents, including against government officials in Flint, Mich., over the town’s 2014 drinking water crisis, said Anthony Moffa, an associate law professor at the University of Maine.

Moffa, who looked at the possibility of criminal culpability for environmental policy decisions in a 2018 paper published in the Penn State Law Review, said charges for climate malfeasance would not be a stretch.

“I think it’s the next thing,” he said. “If we’re doing it in these other instances and saying there was environmental harm, logically it’s hard to distinguish that from the climate crisis.”

The causal connection between burning fossil fuels and climate change-related storms may be “longer and maybe more attenuated, but it’s still a pretty direct line,” he said.

“If we’re willing to accept that there is a potential criminal liability attached to a situation where you have contamination of the environment that harms people, I don’t know how you exclude climate change from that conversation,” Moffa added.

Braman, who studies criminal law, said he’s long been bothered that “the people who are engaging in conduct that is putting significant portions of the world population at risk” face little criminal accountability.

He said he and Arkush “went through every possible objection” and found no legal barrier for prosecutors to raise criminal charges against companies that he said have lied about their knowledge of the danger of burning fossil fuels.

“What’s really probably stopping them is that no one has done it before,” Braman said. “The level of culpability and the extent of the harm is so massive that it’s not the kind of thing that prosecutors are used to prosecuting.”

An alternative to civil lawsuits?

Already, cities, counties and states have filed more than two dozen civil lawsuits against the oil industry, seeking compensation for the costs of dealing with the effects of climate change, such as flooding and sea-level rise.

Phil Goldberg — special counsel for the Manufacturers’ Accountability Project, which was created by the National Association of Manufacturers to oppose the climate liability litigation pursued by local governments — said the theory advanced by Arkush and Braman appears to be “largely based on rhetoric and trying to achieve energy policy goals through criminal law.”

“Importantly, the article does not call for an end to these fuels, but says they have public benefits, at least for the time being, and acknowledges the federal government’s role in advocating for their production,” Goldberg said, adding, “I don’t think prosecutors will find much value in it.”

The climate liability lawsuits, which were mostly filed in state court, have been mired in jurisdictional disputes for several years. Industry attorneys have argued that the cases belong before federal judges and are asking the Supreme Court — which has previously sided with the companies — to revisit the procedural question.

Arkush and Braman, however, argue that “prosecution for homicide may be the most effective legal remedy available in cases like this,” noting that unlike in the civil cases, oil companies could not seek relief in federal law.

“There is a much more direct, dependable, and timely path to negotiated or court-imposed remedies through a homicide prosecution than through a tort claim,” Arkush and Braman wrote.

And they note that “with an anti-regulatory majority on the Supreme Court” and federal agencies like EPA facing restrictions on regulating greenhouse gas emissions, “criminal law may offer an effective tool for states to shift [fossil fuel companies’] conduct from lethal to beneficial.”

They also charge that civil lawsuits “may fall well short of the impact that a homicide prosecution would have,” Arkush and Braman wrote.

“Homicide not only more accurately describes what [fossil fuel companies] have done, it brings the scale of the harm and culpability into focus in ways that even a criminal fraud conviction cannot,” they wrote. Oil companies “have not simply been lying to the public, they have been killing members of the public at an accelerating rate, and prosecutors should bring that crime to the public’s attention.”

Niskanen Center chief legal counsel David Bookbinder, who is representing several Colorado communities in a climate liability case, said that “given that climate change has already killed thousands of people, and put millions more at risk, it’s encouraging to see serious thought being given to criminally prosecuting fossil fuel companies for their actions.”

Options for relief

Corporations can’t be put behind bars even if they are convicted of a crime.

But Arkush and Braman say they’ve identified an option for prosecutors to use in climate homicide cases that could lead to public good, rather than prison time or corporate dissolution.

Companies that are convicted of criminal charges could instead face restructuring into a “public benefit corporation,” a designation that gives a company latitude to focus on priorities other than simply maximizing shareholder value.

That could lead to “reducing the production and distribution of fossil fuels at the fastest pace feasible — but not so fast as to cause harm — while protecting displaced workers and local economies and investing in the development and deployment of clean energy,” Arkush and Braman wrote.

“What we’re trying to do here is identify that there are actually options for prosecutors that would be constructive and productive and that would bring real benefit,” Arkush said.

This article was published by Climatewire.