In the United States, people are regularly indicted and convicted over momentary negligence that kills a single person.

A nurse mistakenly injects a patient with a paralytic instead of a sedative.  The nurse is convicted of negligent homicide for the death of the patient.

A woman swerves around a car that stopped abruptly in front of her, hitting and killing a child running into the road. The woman is convicted of vehicular manslaughter.

A man brings his five-year-old to a park to play, then crosses the street to speak with a friend. His son follows behind him and is hit and killed by a passing car. The father is convicted of involuntary homicide for the death of his son.

And yet, negligent and reckless action by large corporations that injure and kill hundreds and thousands of people rarely see criminal prosecutions. Think tobacco. And opioids. And fossil fuel companies. 

Why not?

Prosecutors regularly bring homicide charges against individuals and corporations whose reckless or negligent acts or omissions cause unintentional deaths, as well as those whose misdemeanors or felonies cause unintentional deaths. 

Fossil fuel companies learned decades ago that what they produced, marketed, and sold would generate “globally catastrophic” climate change. 

Rather than alert the public and curtail their operations, they worked to deceive the public about these harms and to prevent regulation of their lethal conduct. 

They funded efforts to call sound science into doubt and to confuse their shareholders, consumers, and regulators. And they poured money into political campaigns to elect or install judges, legislators, and executive officials hostile to any litigation, regulation, or competition that might limit their profits. 

The climate change that they forecast has already killed thousands of people in the United States, and it is expected to become increasingly lethal for the foreseeable future. 

Given the extreme lethality of the conduct and the awareness of the catastrophic risk on the part of fossil fuel companies, should they be charged with homicide? Could they be convicted? 

Those are questions asked by David Arkush and Donald Braman in an article titled Climate Homicide: Prosecuting Big Oil for Climate Deaths.

It will be published in the Harvard Environmental Law Review in January 2024.

The article identifies important advantages of homicide prosecutions relative to civil and regulatory remedies, and it details how and why prosecution for homicide may be the most effective legal remedy available in cases like this. And it argues that, if our criminal legal system cannot focus more intently on climate crimes – and soon – we may leave future generations with significantly less for the law to protect.

What’s the genesis of this article?

“Don and I are friends,” Arkush told Corporate Crime Reporter in an interview last week. “We have known each other for a long time. We talk a lot. We were talking about all of the harms from climate change. We were also talking about a study from 2014 or so that presented this evidence about how much the fossil fuel companies knew about climate change and the harm it could cause.”

“They knew it not just in the abstract, but they had very good scientists who made very accurate predictions. And they knew quite well what was going to happen. There were internal memos, including an American Petroleum Institute document from 1980 that called it “globally catastrophic.”

“Don is a criminal law professor at GWU. And it became clear that the information from these documents turned what you might think of as an unfortunate consequence of fossil fuel burning into a crime. And that’s because of the state of mind. To have a crime, you need a wrongful act and the required mental state. This evidence shows that the fossil fuel companies had most of the mental states that you can have for crimes.”

“The different types of homicide are distinguished by the state of mind. Did you negligently cause an unlawful death? Were you reckless? Or did you actually know that it was pretty likely to happen and ignored that risk? Or did you deliberately set out to murder someone?”

“And we quickly came to the conclusion that the fossil fuel companies had every mental state except for first degree murder. And then we thought — why isn’t anyone talking about this? Why isn’t anyone prosecuting this case? And we started researching this paper.”

Major corporations have been convicted of manslaughter. Ten years ago, BP pled guilty to felony manslaughter in the Deepwater Horizon case where workers were killed.

But other mass tort cases like tobacco and opioids present similar fact patterns as you lay out in your article on fossil fuel companies, and yet no homicide prosecution. 

Why is that?

“It’s hard to know. Documents that emerged from the tobacco industry indicate that they were worried about criminal prosecution. They knew of the possibility. In retrospect, the tobacco companies got a pretty good deal with their civil settlements.” 

“Why don’t prosecutors bring these criminal prosecutions? There are a few reasons. One is — it is just pretty uncommon to think about corporate conduct this way. That’s a problem.” 

“We should recognize criminal conduct for what it is and not just give people a free ride just because they happen to be in a business. And that gets down to the way the law is taught these days. There is no morality. There is no right and wrong. It’s just economic efficiency and what you can get away with.”

“The criminal law is different from tort and contract this way. The criminal law is very much about society deciding where the moral limits are and the difference between right and wrong. We only apply that reasoning and logic to disfavored people in society. No one has any question as to whether they are going to prosecute a gang member who killed somebody.”

“Look at the level of harm. It is absolutely mind blowing that we will put someone away for homicide for the tragedy of a five year old following the parent across the street and dying and we are not even talking about prosecuting people responsible for more deaths than anybody else in human history. And they saw it coming with clarity forty years in advance.” 

If there were to be a prosecution of the fossil fuel companies, it would need to be brought by the federal government. They have the resources. But there is a real corporate capture of the Justice Department.

“I would hope that some of the bigger states would consider bringing this prosecution. I don’t see it happening at the federal level. The case probably wouldn’t be brought against an individual fossil fuel company. It would make a lot more sense to bring it against the companies as a large group.”

Where does the prosecutor get the death? From a flood, from a hurricane?

“There are now deaths that are much more directly attributable to climate than a flood or a hurricane or a wildfire. There are places in Alaska where the permafrost has been stable for millennia. And now there is nothing. And people on a snowmobile fall through the ice and die. It’s a place where they have been riding for many years.” 

“The attribution science has gotten good enough to estimate, for example, that an excess of 800 people died in a heat wave due to climate induced warming. So we have a body of science that is increasingly able to estimate what proportion of deaths are being caused by climate change.” 

“There are different kinds of homicide deaths related to climate change. There are many different actors. It would make sense to bring them all together in a prosecution. And the question for the jury would be — under these circumstances, is it just to hold defendants accountable for these deaths? And I think a lot of juries would answer that question — yes.”

What is the status of the civil actions against the fossil fuel companies for climate change?

“Most of them are in the early stages. There have been a lot of disappointments there. Over the long term, there are probably going to be some successes. We are not there yet. It took a really long time and a lot of effort before there were successful civil actions against the tobacco companies.”

Which states might consider bringing a criminal charge against the fossil fuel companies?

“The considerations of who might bring a criminal charge are kind of what you might expect. You need a lot of resources. And you need a state where the politics are right. And you need a state where there has been a lot of harm. Harm. Politics. Resources. Maybe California. And you might see a number of Attorneys General work together, which would make a lot of sense. That’s pretty speculative and getting ahead of ourselves.”

And are you saying that it would be more likely at the state level because the politics are not right at the federal level?

“That’s the principal reason.”

But no nibbles from prosecutors?

“No. But all we have done is posted this article on the internet. We haven’t briefed anybody in Congress. We haven’t briefed anybody in any of the states. We haven’t called prosecutors.”

In your article, you raise the issue of imbalance of resources. The fossil fuel companies will bring the best and the brightest of the corporate criminal defense bar.

“And that’s just on the legal side. The fossil fuel companies are no strangers to political communication. And the prosecutor will have to expect political attacks from the beginning — political attacks, personal attacks, character assassination. It’s going to take moral courage to bring such a case. Is it a step too far? No, not in terms of our argument. But are the fossil fuel companies going to declare war on the prosecution? Yes.”

[For the complete q/a format Interview with David Arkush, see 37 Corporate Crime Reporter 21(13), Monday May 29, 2023, print edition only.]