Ethermac|Should Big Oil Be Tried for Homicide?

Years ago,Ethermac the law professor Donald Braman was listening to a description of the revelations that were emerging about fossil fuel companies’ detailed, long-held knowledge of the grievous risks their products posed to the global climate. David Arkush, the climate director at the advocacy group Public Citizen, was recounting these facts to Braman and noting the increasingly deadly impacts of extreme, climate-driven weather.

“This sounds like something that could be subject to a homicide charge,” Braman recently recalled telling Arkush.

Now, Arkush and Braman, an associate professor at George Washington University Law School, have been hosting a series of panels at prominent law schools, including Harvard and Yale, to promote the idea that fossil fuel companies should be charged with this most grievous of crimes.

Their case, which they first detailed last year in a law review article, rests on the same set of facts and arguments that have propelled dozens of civil lawsuits filed by cities and states against oil companies. Those cases argue that oil companies knew decades ago about the threat their products posed to the global climate, but that rather than try to avoid those dangers, the companies launched campaigns to cast doubt on climate science and to lobby against policies that would reduce fossil fuel consumption.

“If you engage in conduct that is a substantial contributor to someone’s death, and you do it with a culpable mental state, that’s homicide,” Braman said. Criminal charges, he added, would bring a graver tone than the civil cases and would better capture the companies’ conduct. “We’re talking about the idea that these corporations had a deep and detailed understanding of what they were doing, they really tried to hide that from the world as best as they could, and they were very effective at driving doubt and delay into the market, into our democracy, so that our transition is now really dangerously close to events that are just as they predicted, globally catastrophic.”

At an event at New York University Law School last month, Arkush and Braman said oil companies could be charged with everything short of first-degree, or premeditated, murder. In addition to homicide or manslaughter, they pointed to a range of crimes that prosecutors could apply, including reckless endangerment, racketeering and anti-competitive practices.

As radical as it might sound, Arkush and Braman say the law is clear. Extreme heat waves, wildfires and storms have killed thousands of people in recent years, and a developing field of science has begun attributing specific numbers of those deaths to human-driven climate change.

Meanwhile, researchers have attributed certain percentages of climate pollution to specific companies, based on their historical production of fossil fuels. According to the Carbon Majors database, now maintained by the United Kingdom-based nonprofit InfluenceMap, 72 percent of global fossil fuel and cement emissions can be traced to 122 producers. The top five investor-owned companies—Chevron, ExxonMobil, BP, Shell, and ConocoPhillips—are responsible for 11 percent of historical carbon dioxide emissions from 1854 through 2022. 

And because of internal documents and public studies unearthed by advocates, lawyers and journalists at Inside Climate News and other organizations, it has become clear that major oil companies had detailed knowledge of the risks their products posed decades before they began campaigning against global climate pacts and national policies.

“We think that increasingly, as these climate harms escalate, and as evidence about what the fossil fuel companies knew and combined and conspired to suppress,” Braman said, “that more and more jurisdictions will be thinking, ‘Wow, this seems like criminal conduct.’”

A criminal charge would not be entirely unprecedented. TotalEnergies, the French multinational oil company, is facing a criminal complaint for “climaticide action” that advocacy groups filed with a prosecutor’s office in that country. But prosecutors would surely face an enormous, well-financed response by fossil fuel producers.

Scott Lauermann, a spokesperson for the American Petroleum Institute, said in a statement that “the record of the past two decades demonstrates that the industry has achieved its goal of providing affordable, reliable American energy to U.S. consumers while substantially reducing emissions and our environmental footprint. Any suggestion to the contrary is false.”

Many legal theorists will surely be skeptical, too. John Coffee, Jr., a professor at Columbia Law School and expert in corporate law, said in an email that “I do not believe that a criminal prosecution on homicide charges against the major oil companies is appropriate or can be sustained.”

The industry could argue that there is insufficient evidence linking the conduct of specific companies to specific levels of warming or harms in different jurisdictions, as the American Petroleum Institute has in the past. They could argue that they were engaged in legal conduct, selling a product that consumers around the world were demanding.

Ultimately, Braman said, it would be up to jurors to decide. And as Arkush and Braman have begun speaking with prosecutors, they say they’ve been surprised at how quickly their idea seems to have gained support. The objections or skepticism they hear, they said, are generally not based on the legal arguments but on the practical and political difficulty of bringing charges against companies that are still some of the most profitable and powerful in the world.

The goal is not to punish individuals or seek retribution, Braman said. They don’t envision a prosecution putting anyone behind bars. Instead, they argue that criminal prosecutions can result in meaningful changes that could be more difficult to achieve with civil lawsuits. They pointed to a proposed settlement with Purdue Pharma that would put constraints on the company and direct future revenue to funding programs to address addiction.

“Imagine years in the future a successful prosecution of Big Oil resulting in companies’ corporate charters being re-written to require them to focus on hastening the clean energy transition and compensating people for past harms,” Arkush said at the New York University panel.

A conviction or settlement, he argued, could result in a structured wind-down of a given company’s investment in and production of fossil fuels, while directing the profits of any ongoing production to promote renewable energy instead.

“This is some of the most harmful conduct in human history, and it’s criminal, and it is conduct that is not normally recognized as criminal,” Arkush told a room of about 20 students. “I think it is important that it be recognized that way. I think it’s important that we be thinking about these actors as criminal wrongdoers, and I think that could have enormous effects on our ability to achieve climate solutions.”