From Damages: Could Oil Companies Be Charged with Murder?

being some legal options for a climate accountability. That person is Aaron Regenberg, your Climate policy Council for Public Citizen. Public Citizen has recently been talking about the idea of filing criminal charges against oil companies related to climate change.

One of those charges is homicide. That's right, homicide. I asked Regenberg to walk me through they're thinking on that charge and other criminal charges, how using criminal law might help with the giant brick wall facing us at the Supreme Court, and what some of the most recent Supreme Court rulings mean for climate accountability. That conversation is coming up after this quick break.

responsible for this crisis accountable. And there's this whole big part of the law, a really important, powerful part the criminal law that I think has not really been brought

to bear on this crisis. Again, we're getting to a point where the harms are really clear, right, the injuries, the deaths that we're seeing, it's getting harder and harder to ignore or and when you have people dying and you have particular individuals, particular corporate actors who have recklessly acted in ways that have caused or contributed to those harms, you know, we have a word for that, and homicide.

We're looking to be clear, actually at a number of possible criminal offenses that we think these companies, Big oil could potentially be be charged with, though homicide is the most high profile and just I think important and severe given the stakes, and I think that this work becomes even more important considering the larger context. I guess we'll probably talk about the Supreme Court term later later on

in this conversation. But you know, a lot of our tools are getting are getting taken away or whittled away. And I think we all know that the criminal law in this country has for a long time, maybe always been disproportionately targeted against poor people, people of color. But ostensibly, what it's supposed to be about protecting us from harm, right keeping us safe from dangerous actors that would do

harm in our communities. And so the question we've been asking is what if we use this system to actually protect us from harm, to actually protect us from the corporate actors that right now are doing damage at an almost unimaginable scale.

then you have committed that crime. Similarly, some states, five or six states actually have it's kind of perfectly suited to what we're seeing. Have make it a crime to cause or risk catastrophe, which is it it's sort of similar but at a larger scale to reckless endangerment, and it's kind of hard to imagine a more apt description of what Big Oil has done than caused risk. There's you know, there's conspiracy and racketeering, which can be a

component of a lot of different prosecutions. There's there's obviously fraud, and there could be civil fraud, but there's also criminal fraud in many states based on what they said versus what they knew. There's some some anti trust statutes have criminal components, and we think, you know, anti competitive practice is a pretty good way of describing engaging in massive fraud and cover up specifically in order to keep the technical competitors ie renewable energy sources out of the market.

So that just kind of gives you an idea, there is a range. But having said that, I do think that that homicide really does get at at a lot of the moral corruption of what big oil has done. And you think about the kind of incidents and the kind of people that we do charge with homicide in this country. My wife's a public defender, so I hear stories every day. She had did a client earlier this year who was driving in her car totally soberly with her fiance and got in a crash and she was

badly injured. Her fiance was killed, so her life's like already ruined, and and then the local DA slaps her with a reckless homicide charge. It was a horrible case, and my wife won, but it was like a year and a half half of this woman's life additionally ruined. The point is like, we charge a lot of folks with homicide for conduct that is orders of magnitude less culpable and less harmful and disastrous than what Big Oil

has knowingly done. And we're now seeing the body count going up in real time every day from climate disasters, whether it's hurricanes, whether it's the kind of extreme heat waves that so many of us are currently sweating under

whether it's wildfires. You know, we could go on. We just put out a report looking at just as one example, Maricopa County its experienced last year with the July heat wave, and there were over well over four hundred heat deaths in that county in July, which is more than the number of overall murders that the city experience. Is right, if someone were pressing a killer heat button, I think law enforcement would be all over trying to stop them.

That That's not how we've thought about these killer heat waves. We think of them as these natural disasters, but we know right that they're not. In many cases, we have studies saying that they would have been virtually impossible but for human cause climate change, and we know who is behind human caused climate change.

dozens and dozens of people. The reason that that fire happened was what Exxon and Chevron and BP and Shell have done, right, And so again it's you know, you take one step back and you think about who's really responsible for those deaths. So anyway, you asked about individual

versus corporation, so you can you could pursue both. Most most of our focus is really looking at the corporate entities both because there are some legal reasons why we think that that that could be a stronger case and because as far as remedies go, I think, you know, the project is less about you know, throwing people in jail and more about how do we get to the root issue of the problem, and so the kinds of solutions that could come out of this that could actually

that could actually shift those those root causes. One good example of that kind of remedy the DOJ's criminal settlement with Perdue Pharma for its role in the opioid crisis. Included includes a plan to restructure Purdue as a public benefit corporation that is, you know, explicitly focused in its corporate charter on repairing the harm it did, you know, investing in public health solutions to to the opioid crisis.

And so you know that that's one that's one vision for you know, you have a strong enough case and you could potentially get to a solution where we're rewriting a charter to say this company needs to focus on

the clean energy transition. Though there's lots of other remedies that you could envision that could come either from a criminal settlement because the companies like, we don't want to go through this, or you know, they do go through it, and there's a conviction and then there's a court order.

instead of civil. The climate accountability suits, I think are the most important thing happening right now in climate litigation, and they're actually, you know, several of them are actually getting past the jurisdictional phage phase into discovery, like they're starting to bear real fruit, and that is unbelievably exciting. So that's, you know, we're just saying we need to be looking at everything. And there are advantages to to criminal law. There's advantages to the speed. I mean criminal

criminal cases move a lot faster. There's advantages to discovery. The state has some advantages there that a private plaintiff does not. And there's advantages to the actual law. Again,

you think about how civil law has developed. It is big corporations who are usually the defendants, right, and so they are have been for decades, all the power and best you know, big law lawyers in the world to make it as hard as possible to hold civil defendants accountable, as many sort of off rands, as many ways for judges to throw out cases before you actually get to trial. On the criminal side, you think about who's developed the law, right,

it's overwhelmingly poor people. People who I mean, again, my wife's public defender some great representation, but it's not people who have had the capacity to do that same kind of work. And so in a lot of ways, I mean, there's more deference to the judge in a criminal trial. Generally it's harder to throw something out before you actually

get to trial. And I think we saw on the Trump trial there can be something really powerful about putting these questions in front of a group of twelve regular people who are tasked with making a a common sense decision based on what they think is fair and just about you know, is is it right to hold this person or actor responsible for this harm. There's a lot of systems that protect the rich and powerful incorporations in this country from accountability for the horrible things they do.

And there's a lot of ways in which that process that I just described cuts through a lot of those a lot of those systems.

there a there there? And by the way, the conclusion and it wasn't just us again, it was this long time DOJ prosecutor was that, Yeah, there is enough here so to prove a homicide charge. Basically, the two elements in a reckless homicide. In some states it's called man manslaughter, sometimes it's called second degree murder is one that the defendant caused a death, so that's the causation piece. And two that they had the appropriate culpable mental state in

their causing of the death. And so that's what sort of grades the level of homicide charge. So from the lowest negligent homicide, so you act neligently that caused death, the highest is you know, first degree murder, and that's where you acted with you know intent. So we're not arguing that right Exxon was not doing what it did in order to kill the dozens of people that have

died in this recent round of he waives. But as far as reckless endangerment, acting recklessly, that's that's acting with with knowledge risk but doing it anyway, or for for a lot of different second degree murder charges, you need to show that they acted with extreme indifference to human life. Those are what we're really looking at.

think very doable. Right, We have just mountains of evidence in these companies' internal memos that exactly, I mean, you've reported on this to such wonderful efficacy. They knew exactly what they were doing. They were predicting, you know, to the decimal point of temperature increase. They were talking about disasters, they're talking about sea level rise, they're talking about extreme heat.

I was just looking at a report from nineteen ninety six that Exon had really describing exactly in detail the kind of excess deaths from whether from heat extremes that we're seeing right now. So anyway to show that they knew that there was a risk at the very least and that they went ahead anyway. We think that's very doable. More, just to be frank difficult piece of this is the causation.

So to show causation in a case like this, you really need to prove it, and you need to prove it beyond a reasonable doubt, which is the higher standard for criminal prosecution. At three different stages. Right, So you need to show one that this particular event, this particular extreme weather event, whether it's an extreme heat wave or something else, caused this particular death. And we think that's pretty doable. There's a lot of public departments of health,

boards of medical examiners. They will report this was a death due to extreme heat. Then you need to prove that this extreme weather event was caused by climate change. And again that's that's the area where the rapidly developing climate attribution science is so so important. Climate scientists can now say that this disaster was made x times more likely, was made x times more powerful, or would have been

virtually impossible but for climate change. And I think it's particularly interesting in the context of again, I'm just I'm really hot right now, I'm sweating, so thinking a lot about extreme heat. But you know, in an extreme heat wave, we the human body has clear thresholds right below which you can survive and above which you get You get one or two degrees above that threshold and you die.

And so so to show that the that climate change even caused this particular margin that went above that threshold, that shows that caused the death. So yeah, that's the second stage. And then the third stage, probably the biggest, is showing that these particular companies, and again we're looking at some of the at the biggest investor owned oil and gas companies, the big names ex On, Chevron, VP, Shell, Conicophillips, et cetera, that they cause climate change. And that's one

important thing to note. In most states and most jurisdictions, causation does not require you to have been the sole cause, or even in many cases the primary cause. You need to have been a substantial factor in contributing to that death. And so we think, again there's plenty of evidence that a group of particular big oil companies has been a substantial factor in causing climate change, both through the actual

physics of the emissions. Right, we have source utian research that can say this company is responsible for generating this percentage of all of human caused greenhouse gas emissions, you know, since the beginning of the Industrial Revolution, and then also through their climate disinformation and deceit, And we think there's a causative argument there that what these companies did specifically in order to delay or block climate action has meant

that climate change is worse, is farther along than it otherwise would have been. So you add those two together, and we think there's a pretty strong argument that these companies cause substantially contributed to climate change, that climate change, you know, caused substantially contributed to this weather event, and then that this weather event caused And we think that the victims of these disasters and their families deserve justice just as much as as the victims of any street

level crime. We spend a lot of time talking about justice for people who've been wronged, but we don't think about all the people being harmed from climate in the same way. And I think we start doing that.

law that could have a big impact on this. And again, criminal law is it's sort of half the law of this country and it hasn't really been brought to bear. Another important piece we think about the value of these kinds of prosecutions that they could bring is it is a lot harder, I think, for the federal courts to step in when you're talking about a core police power

of a state. We've been looking, we haven't been able to find a single case where a criminal law of general application, that let alone homicide prosecution was preempted by the federal courts. Right because again, that is a core power of states and localities that they have control of criminal law. And it's not to say that the Supreme Court has made clear that they don't give a shit

about what the law actually is. And so it's not to say that would not be able to make up new law from whole cloth in order to try to stop something like this, but certainly it's a lot harder, right, they would have to make it up from whole cloth. This is a core state and local jurisdiction thing, and there's no precedent for the federal courts coming in and

taking it and squashing it. So yeah, to the degree, to the degree we can use the courts on climate, we think this is one of the ways to ensure that states and localities actually can have a voice, because again, there's nothing more core to a to a local da than being able to prosecute homicides that occurred in their jurisdiction.

this with their whole careers. We are saying they don't get to decide anything, even if Congress has very clearly said you get to decide this, And we're putting that power in the hands of frankly, some of the worst and dumbest people in the world. And I'm talking about like twenty five year old law school grad like fedsock twerps. You know, these are these are the law clerks, conservative justices who write the actual opinions. I clerked for a judge.

These are the people who write the opinions. And these are kids who like went right from college to law school, did not do anything in law school to open their minds, right, They spent the whole time in like conservative fed sock circle jerk meetings, and then they're asked to like they're given the power to make these immense decisions about the environment and economics and health and and occupational safety and everything else. Having zero expertise. I went to law school

with these people. They're not they're not smart, they're not good, and they don't have that capacity to make to do good analysis on any of these questions. So it's a big problem. I will say. The optimist in me on the on the throwing Chevron in the garbage is I have some hope that it won't be as sort of cataclysmic as I think some people predict. And it's not particular, it's not super reassuring why that would be, but that the reason why is that, like things are already so bad.

I mean, like the Supreme Court's Major Questions Doctrine I think has already has already destroyed much of this of the capacity of agencies.

Statute of limitations. The other big, you know, agency action case Corner Post that was decided the last day of the term, and so the the opinion there was basically throwing aside the statute of limitations for challenges to government action, so that there's a six year statute of limitations on challenging agency action. And what the Supreme Court interpreted is that that that six years does not start when the

government action occurs. It starts whenever the injury happens. So basically that throw open the door to challenging literally any administrative action at all. So I think the potential for being wildly destabilizing of every thing we have that protects our health and our water and our hair from that decision is arguably more concerning than Chevron.

So yeah, I'm just I'm curious for your thoughts on the packing the court stuff that people we'll talk about when these rulings come out.

of the judiciary is a new idea. Judicial supremacy is a new thing, and we've seen the playbook for how you deal with it. So FDR he comes in great depression and he does his first round the first new deal. It's called of programs, and there's a conservative Supreme Court and they basically at them all down, they eviscerate them, and FDR does not, like Biden has go out and say, well, that's not the role for the president. You know, we

got to respect what they say. FDR. You know, cos on a full on, you know, whistlestop tour, he says, this is what we're fighting for, these things that will help improve your lives, and these are the these are the jackasses that are taking it away from you. It's bullshit and proposes a number of different fixes. We we we think about his quote unquote quote packing plan and that it was not successful. We've we've totally drawn the

wrong historical lesson there. He did this all out front against the Supreme Court, and though that particular the Court expansion plan was not passed, the overall effect of that larger, that larger offensive was that the Supreme Court backed off and the Second New Deal set of programs was allowed to continue in it. You know, our entire your first state and system of government party has not done that. You need to start you have needed to start doing that decades ago. And it's really clear now.

care right. The last thing I'd say is, again, it's or reason for us to be looking for alternative, alternative solutions for how the law can keep our communities safe from climate harms and climate criminals. And we think that the law is a way that localities and states can take action on the area that they have the strongest jurisdiction and right to say, this is our core powers.