It’s time to charge oil companies with homicide
In 1980, Ernest Pebbles, in-house counsel and future vice president for the Big Tobacco company Brown & Williamson, wrote a memo detailing his concerns about any admission that the company had knowledge of the harmful effects of smoking. In it, he expressed a pronounced fear of one type of exposure in particular:
“If we admit that smoking is harmful to heavy smokers, do we not admit that [Brown & Williamson] has killed a lot of people each year for a very long time? Moreover, if the evidence we have today is not significantly different from the evidence we had five years ago, might it not be argued that we have been ‘wilfully’ killing our customers for this long period? Aside from the catastrophic civil damage and governmental regulation which would flow from such an admission, I foresee serious criminal liability problems.”
In the end, Big Tobacco resolved the civil litigation against it before criminal charges were ever filed. But the industry’s fear of criminal liability over tobacco-related deaths should offer a lesson to the activists and policymakers working to respond to an even more broadly lethal crisis facing us today: climate change.
In recent years, the US body count from climate change has skyrocketed. Climate change-fueled hurricanes, wildfires, extreme heat, and other disastrous weather events have killed thousands of Americans — children burned alive in Maui, families drowned in Puerto Rico, heatstroke deaths across the Southwest — and this loss of life will continue to accelerate as climate chaos intensifies.
Fatalities like these are result of climate pollution in great part caused by companies like ExxonMobil, Chevron, Shell, and BP — sophisticated corporate actors who knew for decades and with shocking accuracy that their fossil fuel products were likely to cause deadly, even “globally catastrophic” climate change, yet waged a massive disinformation campaign to obscure this reality and prevent the public and regulators from reducing their profits. In this context, it does not make sense to categorize these deaths simply as tragedies. They’re homicides, and it’s high time we started treating them that way — by prosecuting the corporations responsible.
The core of homicide doctrine is straightforward: If a person or corporation contributes to or accelerates any deaths, they may be held liable for some grade of criminal homicide. The specific charge depends on the mental state behind the act — ranging from the most culpable, premeditated intent (for first-degree murder, which doesn’t apply in the case of the oil companies), to the least culpable, negligence (for involuntary manslaughter). And while we usually think of criminal prosecutions in the context of accused individuals, charging corporations with homicide is not a new idea. Prosecutors sought corporate homicide convictions over a century ago for the workers killed in the Triangle Shirtwaist Factory Fire. More recently, BP was charged with and pleaded guilty to manslaughter charges for its conduct related to the 2010 Deepwater Horizon disaster, and Pacific Gas & Electric was convicted of manslaughter charges for deaths caused by a 2018 wildfire.
Prosecutions like these may be particularly well suited to addressing Big Oil’s dangerous actions and protecting the public from further harm. While a civil lawsuit — like Massachusetts’ nation-leading case against Exxon — puts a price on harmful conduct, criminal law prohibits such conduct, meaning the sanctions available to prosecutors are commensurately broader. With a homicide conviction in hand, prosecutors could seek not only large fines for oil companies but such other remedies as asset seizure, compulsory participation in climate cleanup programs, and long-term judicial oversight. This could provide the tools and leverage to get to the roots of the climate crisis.
But what would it actually take to convict a fossil fuel company of climaterelated homicide? As one of the authors of this essay details in a forthcoming article in the Harvard Environmental
Law Review, a prosecutor would first need to show that a Big Oil company’s actions substantially contributed to or accelerated a deadly harm. Given the clear scientific consensus that the fossil fuels these companies are extracting, marketing, and selling are the primary drivers of the climate crisis, this should not present a major obstacle.
Next, in most states, a jury would have to conclude that the deaths resulting from the companies’ actions were “not too remote or accidental” to fairly hold them liable. The science of connecting particular extreme weather to climate change is rapidly improving. It can increasingly show that if not for Big Oil’s extraction, production, marketing, and sale of fossil fuels, extraordinary weather events and other climate disasters would be less severe and they would kill fewer people. Fossil fuel companies’ own internal documents also demonstrate that they engaged in an active campaign of disinformation in order to avoid public policy interventions that would lessen the harm they were causing. Particularly in combination, Big Oil’s sale of fossil fuels and its deception regarding their destructiveness were a direct and substantial factor in producing, accelerating, and intensifying climate catastrophes.
Fossil fuel companies may argue that end-stage emitters — people driving cars, heating their homes, and so on — are more responsible for climate change. The French oil company TotalEnergies has already argued that it does not control how consumers use its products — including products that exist for one purpose only and that the company pumps directly into people’s cars at gas stations it runs. This argument should fare even worse than Big Tobacco’s attempt to shift blame for smoking-related deaths to individual consumers. The truth is, a small number of “carbon majors” are responsible for the majority of the world’s emissions and for the climate misinformation and deception that have blocked our transition away from fossil fuels and unnecessarily locked many people into using these fuels for basic needs of modern life. Courts found that tobacco companies were not absolved of culpability simply because consumers acted on the misinformation that the industry peddled for decades. And it is doubtful that a reasonable judge or jury could be persuaded that fossil fuel companies should escape accountability simply because the public failed to see through their deception and continued using their products as intended.
Finally, a prosecutor would need to show that fossil fuel companies had the requisite mental state, which — depending on the charge — could be that they acted with negligence, with recklessness regarding the possibility of harm, or with knowledge that harm was likely.
Because of the overwhelming evidence we now have that these corporations were aware of the dangers of climate change, proving this element also seems eminently achievable. After all, homicide convictions are regularly obtained across the United States against defendants who have engaged in far less culpable conduct. Consider a few real-world examples:
▪ A nurse was convicted of negligent homicide for mistakenly injecting a patient with a paralytic instead of a sedative.
▪ A woman was convicted of vehicular homicide for accidentally hitting and killing a child running into the road.
▪ A man was convicted of involuntary homicide after his 5-year-old son followed him across the street and was hit by a passing car.
▪ A man was convicted of felony murder after stealing cocaine with a cousin who later overdosed in the man’s presence.
None of these defendants inflicted harm on a scale anything like the fossil fuel industry’s. None of them had a history of disregarding evidence about the dangers their conduct presented. And none was engaged in campaigns of fraud or deception designed to evade responsibility.
The purpose of homicide doctrine is to punish those who kill, to give expression to a core value that the law and society value the lives of all people, and — above all else — to protect human life. Given the scope of the danger we face from climate change, it is possible that in all the history of our criminal legal system there has never been a prosecutorial strategy with as much potential to protect as many human lives as the prosecution of Big Oil for climate homicide. So what are we waiting for?
Aaron Regunberg, a former member of the Rhode Island General Assembly, is senior climate policy counsel at Public Citizen. David Arkush is the director of Public Citizen’s Climate Program and coauthor of the forthcoming Harvard Environmental Law Review article “Climate Homicide: Prosecuting Big Oil for Climate Deaths.” They will be discussing their idea of pursuing oil companies for climate homicide in a panel at Harvard Law School on Thursday, March 21, at 12:20 p.m.