The paper, set to be published in the Harvard Environmental Law Review, says the case is "increasingly compelling".
Should fossil fuel companies face homicide charges for their contributions to climate change?
That’s the question explored in a paper set to be published in the Harvard Environmental Law Review next year.
Oil and gas companies have faced a wave of litigation in recent years, typically over greenwashing and fraud.
In February, environmental law charity ClientEarth even personally sued Shell’s board of directors over their alleged failure to properly manage risks associated with the climate crisis.
But does this go far enough?
The paper’s authors - Donald Braman, a law professor at George Washington University, USA, and David Arkush, a director at consumer advocacy group Public Citizen - argue that it doesn’t.
Individuals and corporations regularly face homicide charges for unintentional deaths caused by recklessness or negligence.
Oil and gas majors like Shell and ExxonMobil have known about, and covered up, the devastating impact of their industry for decades.
Rather than scaling back their operations and warning the public, they chose to cast doubt on climate science and lobby against action on global warming in the pursuit of profit.
Oil and gas companies have known about the harm they cause for decades
Research released earlier this year showed that scientists for ExxonMobil predicted climate change with “shocking skill and accuracy” as far back as the 1970s.
The authors of ‘Climate Homicide: Prosecuting Big Oil for Climate Deaths’, currently published in the journal SSRN (Social Science Research Network), paint this as damning.
“FFCs [fossil fuel companies] were technically sophisticated enough to know that they could hide the harms they were generating from lay observers for decades,” the paper reads.
This allowed them to “earn trillions of dollars while researchers, activists, and regulators struggled to overcome the sophisticated disinformation and political-influence campaigns these profits supported,” it continues.
The catastrophic impact of global warming is already being felt around the world and it is only set to get worse.
Extreme weather events have caused countless deaths and forced migration. Pollution from petrol engine vehicles contributes to millions of deaths and millions more health complications every year.
Given fossil fuel companies’ significant contribution to and awareness of this disaster, civil and regulatory rulings are not adequate at holding them to account, the paper argues.
It then delves into US criminal law to see if homicide prosecutions could be applied to corporate conduct with such far-reaching implications.
Could fossil fuel companies be charged with homicide?
The paper lays out the case for charging fossil fuel companies with homicide.
It posits that their culpability far exceeds that in ordinary homicide cases, particularly in light of recent revelations on their long-standing awareness of the damage they are causing - and their efforts to cover it up.
US homicide law dictates that if a person or corporation contributes to or accelerates any number of deaths, they may be held liable for anything from manslaughter to murder.
Even negligence leading to lethal risks can be punished - and, the paper argues, fossil fuel companies are at the very least culpable of this.
While it acknowledges that carbon emissions from fossil fuels are not solely responsible for extreme weather events, it argues that they make these events “more frequent, more damaging and more deadly”.
Air pollution, ocean level rise, and water and food insecurity are also all set to reach catastrophic levels under current fossil fuel consumption.
Studies attributing a specific number of deaths to extreme weather events could potentially be used to litigate against oil and gas companies.
If charged, companies could be forced to restructure their operations or phase out fossil fuel production, rather than simply paying fines.
“FFCs could be restructured… 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,” the paper reads.
How might fossil fuel companies defend themselves?
It could be argued that the actual emitters of fossil fuels - those driving cars, heating homes and flying - are more directly responsible for climate change.
But the paper’s authors say this doesn’t stand up, as it would require these uses and their outcomes to be “unforeseeable” by fossil fuel companies. The end users have also been deceived into taking harmful actions by these companies.
However, determining who’s complicit would bring complications in a court of law.
Some companies claim that curbing fossil fuel production would have led to greater harms associated with poverty. But for a ‘greater of two evils’ argument like this to stand up in court, the choice faced must have been “clear” and “imminent” the paper explains.
The paper also talks down various other defences, including arguments that governments should be the ones held responsible for regulating fossil fuels.
In reality, finding a court willing and able to charge fossil fuel companies with homicide would be extremely challenging - but, the paper argues, not impossible.