Confronting the Climate Crisis's Corporate Culprits
As the UN Secretary-General calls for confronting the fossil fuel industry, climate accountability advocates say criminal charges against Big Oil should be considered.
When former US president Donald Trump was found guilty on 34 felony counts by a New York jury just one week ago in the first of several criminal cases he is facing to go to trial, it reinforced the bedrock principle that no one is above the law. “While this defendant may be unlike any other in American history, we arrived at this trial, and ultimately today at this verdict, in the same manner as every other case that comes through the courtroom doors: by following the facts and the law and doing so without fear or favor,” Manhattan District Attorney Alvin Bragg said on May 30 in remarking on Trump’s conviction.
If following the facts and the law led a jury to find someone with Trump’s status and power criminally liable, could the same outcome be imagined for individuals or entities at the helm of one of the richest and most powerful industries on the planet, an industry whose business model and conduct is resulting in death and destruction on a massive and global scale?
“The question today is whether it’s possible to imagine and under what circumstances a criminal prosecution of [fossil fuel] entities,” prominent environmental activist and author Bill McKibben said in introducing a virtual panel on Tuesday titled “Prosecuting Big Oil for Climate Crimes.” Proponents of this theory of criminal liability for major fossil fuel producers have been discussing it at law schools and with local prosecutors over the last few months. The climate emergency is becoming so dire and deadly, they argue, that it warrants leveraging this area of the legal system, criminal law, to hold the corporate actors most responsible for bringing about this crisis to account.
“We’re in a do or die moment for climate, and so from a public safety perspective, we need to be exploring every tool out there,” Aaron Regunberg, senior policy counsel in the climate program at Public Citizen, said during Tuesday’s panel. In “knowingly generating and fraudulently covering up the climate crisis,” he contended, “fossil fuel companies have committed crimes.”
The American Petroleum Institute, the US oil and gas industry’s biggest lobbying and trade organization, did not immediately respond to a request for comment.
David Arkush, director of Public Citizen’s climate program and co-author of a paper exploring the idea of prosecuting Big Oil for deaths stemming from climate change or climate-related disasters, noted that fossil fuel companies’ own internal documents indicate they knew that use of their products would cause severe climate harms that would be, in the industry’s words, “catastrophic.” In 1965, then-president of the American Petroleum Institute Frank Ikard for example warned at an oil industry conference of the “catastrophic consequence” of climate pollution and that “time was running out” to save the world’s peoples.
“Their documents show these companies knew their conduct was dangerous,” Arkush said. In terms of whether big oil entities could be criminally prosecuted, particularly for a homicide charge, he argued: “The standard is whether the fossil fuel industry substantially contributed to deaths. Being substantially responsible for the climate crisis, which is clearly killing people, ought to qualify.”
Through what is called climate attribution science, it is possible to connect extreme weather disasters, like a hurricane or a heatwave, to climate change, which is primarily caused by greenhouse gas emissions from fossil fuels. Deaths that result from such climate-related disasters, therefore, could (at least theoretically) be linked to the sectors or corporate entities most responsible for these emissions and for perpetuating the societal dependency on fossil fuels.
The theory of climate homicide and the thought of prosecuting any of the so-called “carbon majors” might seem far-fetched, especially in a country that is the biggest oil and gas producer in the world and where the fossil fuel industry wields considerable political and economic power. But this is also a time when there are mounting calls and efforts to hold major fossil fuel firms accountable for their historical and ongoing role in fueling the damaging climate crisis - and for lying about it.
Over the last seven years, more than three dozen civil climate accountability cases have been filed against Big Oil by communities across the US, including cities, counties, states, and several Native American tribes. More of these cases are likely to be filed, and several of the pending cases are nearing trial. A case brought by the city and county of Honolulu, Hawaii, for example, could potentially reach a jury trial as soon as next year. But several of the oil company defendants have petitioned the US Supreme Court to intervene in an attempt to “put a stop” to not just the Honolulu case, but to this climate deception litigation broadly. The Court was slated to address the companies’ petitions in their conference today, so we will soon see whether the justices (specifically the right-wingers who comprise the majority) are inclined to entertain Big Oil’s bid to derail the civil climate accountability cases against them.
Moreover, Democratic members of Congress are investigating the oil and gas industry over climate disinformation and obstruction, and now over what they say is a troubling “quid pro quo” with Trump. Last month, following a Senate committee hearing that featured the former Department of Justice attorney who led the successful civil racketeering case against Big Tobacco testifying that there is ample evidence for DOJ to investigate Big Oil over its consequential climate cover-up, Sen. Sheldon Whitehouse and Rep. Jamie Raskin announced they made an official referral of their investigation to DOJ head Merrick Garland.
Several states are also looking at holding major fossil fuel companies liable for helping pay for climate-related costs incurred by their jurisdictions through passage of “polluter pays” legislation modeled on the federal Superfund program. One week ago, on the same day that the Manhattan jury issued their verdict against Trump in his criminal hush money trial, Vermont became the first state in the country to enact this so-called “climate superfund” law. It is the first law of its kind anywhere in the world to hold Big Oil financially accountable for paying their fair share of skyrocketing climate costs.
“I’m hopeful that we’re nearing an inflection point,” Regunberg told me of the increasing pressure facing the industry and efforts to use the law to hold it accountable. He said he thinks public support for such efforts will continue to grow as devastating climate impacts – consequences that were foreseeable by the oil and gas industry decades ago – continue to hit communities across the country in the years ahead. Already, polling suggests there is considerable public backing for legal efforts to hold oil and gas companies accountable for climate harms – a recent poll conducted by the progressive organization Data for Progress showed that 62 percent of sampled voters believe there should be legal accountability for the industry, and nearly half (49%), including nearly one-third of Republicans, strongly or somewhat support criminal charges being brought against oil and gas companies for climate-related deaths.
Given all of this backdrop, and the development of Trump’s criminal conviction by a jury of his peers last week, the notion of using the criminal justice system to prosecute Big Oil for what some climate advocates argue are climate crimes is not out of the realm of possibility, proponents of the idea say.
“For me what Alvin Bragg’s case showed is that it is possible for a local district attorney to take on one of the most powerful people in the world in Donald Trump, and win,” Regunberg told me. Leveraging the judicial system, in particular the local criminal courts, is a way to “cut through the systems that operate to protect those powerful, wealthy actors from accountability,” he said. Several local prosecutors are potentially on board with exploring this idea of going after fossil fuel companies, Regunberg added. “There are multiple offices that have expressed interest in the idea of pursuing criminal accountability for climate harms in their jurisdictions.”
UN Secretary-General Calls out “Godfathers of Climate Chaos”
Why does any of this matter, and can some of the wealthiest corporations on Earth, with their legions of lobbyists and lawyers, actually be held accountable through the judicial system for their outsized role in causing the climate emergency? It matters because as ecological collapse and climate destabilization worsens, scientific experts and scholars, and civil society, are increasingly urging systemic change to preserve a habitable planet. “Our goal is not to put a bunch of people in prison,” Donald Braman, a professor at George Washington University Law School and co-author of the climate homicide paper, said during Tuesday’s virtual panel, “but to push for systemic change through reformed corporate behavior.”
Yesterday in New York in a special address on climate action to mark the United Nations’ World Environment Day, UN Secretary-General António Guterres called out the fossil fuel industry and its enablers (as he has previously), labeling the industry “Godfathers of climate chaos” with companies that “rake in record profits and feast off trillions in taxpayer-funded subsidies” while they spend billions of dollars “distorting the truth, deceiving the public, and sowing doubt.” Guterres called on advertising and PR firms to stop taking on fossil fuel clients, and he urged every country to ban fossil fuel advertising and challenged news media and tech companies to cease accepting fossil fuel ads.
“We must directly confront those in the fossil fuel industry who have shown relentless zeal for obstructing progress – over decades,” the Secretary-General said.
“UN Secretary General António Guterres acknowledged one simple truth: The fossil fuel industry is the prime culprit behind the escalating climate crisis,” David Tong, Oil Change International’s global industry campaign manager, said in an emailed statement responding to Guterres’ “moment of truth” address on climate. “Our recent report, Big Oil Reality Check, showed oil and gas companies – the climate arsonists fueling climate chaos – cannot be trusted to put out the fire,” Tong continued. “It's time to hold the fossil fuel industry accountable for its role in driving climate chaos.”
Guterres grounded his remarks in climate science and the present reality of rising global average temperatures and a narrowing window of time to avoid breaching exceptionally dangerous and likely irreversible tipping points in the climate system. Global average temperatures have already risen by more than 1°C above pre-industrial levels and are likely to exceed, at least temporarily, 1.5°C over the next five years. Scientists warn that long-term warming beyond 1.5°C could breach climate tipping points (resulting in positive feedback loops and runaway, catastrophic global heating) and would risk more severe harm to human and ecological systems.
“The difference between 1.5 and two degrees could be the difference between extinction and survival for some small island states and coastal communities. The difference between minimizing climate chaos or crossing dangerous tipping points,” Guterres said. He emphasized that decisions and actions over the next 18 months are especially critical and said “the battle for 1.5 degrees will be won or lost in the 2020s.” Without urgent action to rapidly slash greenhouse emissions, global society is in for a far more dangerous and disruptive future, he warned, saying that “it’s climate crunch time.”
“We are playing Russian roulette with our planet,” the Secretary-General warned. “We need an exit ramp off the highway to climate hell.”