“Climate change is not a tragedy, it’s a crime.” This refrain, increasingly common among climate activists, encapsulates rising moral outrage at major fossil fuel companies like ExxonMobil, Chevron, Shell, and BP as more information has come to light about their knowledge and conduct regarding global warming. The essential fact pattern is this: Fossil fuel companies have long understood—with shocking accuracy—that their fossil fuel products would cause, in their own words, “globally catastrophic” climate change. Instead of shifting their business model or at least alerting the public to this threat, the companies concealed what they knew and executed a multimillion-dollar disinformation campaign to spread doubt about climate science. They did this while privately acting on the predictions of climate science to protect their own business operations, for example by raising the height of offshore platforms in anticipation of sea-level rise. Internal documents show that their goal in deceiving the public was to delay or block policy or market responses that would curb their lethal but highly profitable conduct. They achieved this goal spectacularly, making trillions of dollars from their deception while most of humanity pays an increasingly devastating price.
A growing movement wants to hold fossil fuel companies accountable for this deception. The reality that polluters knew about climate change, lied about it, and should face meaningful consequences is an effective political narrative, and climate liability litigation is an increasingly promising strategy. More than 40 states, municipalities, and tribal nations are currently suing fossil fuel companies to make them pay for the damage they’ve caused. After years of frustration, climate litigants are now making meaningful procedural progress and have even notched a first win.
In addition to civil harms, however, fossil fuel companies may have committed numerous criminal acts, including fraud, deceptive advertising, reckless endangerment, criminal mischief, conspiracy, racketeering, and more. Indeed, many of the civil claims pending against fossil fuel companies have criminal analogues. Prosecutors could allege essentially the same conduct that civil plaintiffs are suing over.
The crime that best captures the nature, scale, and gravity of their misconduct in most jurisdictions might be homicide. In criminal law, homicide means causing a death with a culpable mental state. If someone substantially contributes to or accelerates a death, that counts as “causing” it. If they did so intentionally, knowingly, or recklessly, that counts as “culpable mental state.” So the basic questions in a climate homicide trial are as follows: Did fossil fuel companies substantially contribute to or accelerate deaths, and did they do so at least recklessly, if not knowingly or intentionally? These questions would be presented to a jury. If you think the jury should say “yes,” you’re not alone.
The reason for pursuing criminal accountability is simple: The climate crisis is an all-hands-on-deck moment if there ever was one, and we need to use every available strategy to curtail greenhouse gas pollution. In today’s thinking, tort law—the law of civil wrongs—seeks economically efficient outcomes: The question is about whether one party should give another some money. Criminal law, by contrast, is concerned with society’s fundamental values—with morality. It answers whether conduct is permissible or forbidden. Where tort law prices misconduct, criminal law prohibits it.
Courts have rejected some tort cases against fossil fuel companies by reasoning that climate change is a problem for the federal political branches, meaning Congress and the executive branch, not the courts or state law. While this argument is specious—these cases are not seeking to make climate policy but rather to require the actors responsible for climate change to pay for the harms they caused, which is the exact role that civil lawsuits are supposed to play—it is even harder to apply it to criminal law. State criminal law is entitled to stop conduct that is killing people. There is no case in which a court has rejected a criminal prosecution under generally applicable law—say, a homicide statute—on the grounds that it is preempted by federal law or is a question for the political branches rather than courts.
Prosecutors also have tools and powers that civil litigants lack, including, in some cases, simply more leverage. In response to criminal prosecution by the Department of Justice over its role in the opioid crisis, Purdue Pharma accepted a proposed settlement to restructure the company as a public benefit corporation that will function “entirely in the public interest,” delivering safe, legitimate prescription drugs, offering free or steeply discounted addiction-treatment and overdose-rescue medications, and donating proceeds to opioid abatement programs. A similar deal with fossil fuel companies could rewrite their corporate charters and require them to focus on hastening the clean energy transition, subsidizing adaptation and resilience measures, and redressing harms from their past misconduct.
To be clear, civil litigation is a critically important tool, and civil cases are showing promise. The point is that criminal law, long overlooked, also has contributions to make.
At a time when the criminal justice system faces a legitimacy crisis, the prosecution of powerful actors who are causing some of society’s worst harm could also help rehabilitate its reputation and restore faith in the principle of equal justice under law. It is perverse and unjust to condemn the politically powerless to spend years in prison for smaller-scale criminal conduct while powerful corporations evade prosecution for massively larger harms.
Prosecutors are well aware of the problem. As the public has become more conscious of racial imbalances in the criminal justice system, district attorneys’ offices across the United States are dealing with low morale and struggling to recruit and retain lawyers. As one prosecutor said last year, “We were so used to wearing the white hat. We were the good guys. Then all of a sudden, things are shifting.” A district attorney facing high vacancy rates and a dearth of applicants summed up the situation: “We have to overcome the perception that the DA’s office is part of the problem and convince people that we are actually part of the solution.”
In the climate crisis, prosecutors have a chance to be an essential, leading part of the solution and to fulfill their professional mission: standing up to actors that are causing immense harm to their communities, and protecting the public from the greatest danger of our time.
The climate crisis, and the crimes committed in perpetuating it, constitutes an existential threat to our society. Individual prosecutors may conclude that attempting to hold fossil fuel companies accountable doesn’t make sense in their jurisdictions—that the facts don’t fit, the courts aren’t ready, or resource constraints are prohibitive. But the barriers to prosecuting fossil fuel companies for climate harms are not primarily legal. The main problem is the industry’s extraordinary power—political, economic, and even cultural power—and the truth is, powerful actors can be brought to justice. It won’t be an easy fight. But at the least, prosecutors owe it to their communities and their profession to explore the possibility of pursuing the climate justice we deserve.
