BONUS: The Case for Charging Fossil Fuel Companies With Homicide
Our guests map out what a climate-related homicide prosecution would look like.
Last week, we dropped an episode outlining a legal theory to prosecute fossil fuel companies for homicide. We hope you had a chance to listen or have it queued up, but basically, the argument goes like this: There’s mounting evidence that Big Oil was aware of the dangers associated with burning fossil fuels for decades, yet they concealed the information from the public and set us on a perilous path toward environmental chaos and a potentially incalculable number of climate-related deaths.
While skeptics may consider such legal pursuits a stretch, our guests see this as a reasonable way of holding polluters accountable.
“We think that what a criminal prosecution has to offer is a far better and more appropriate way to address this than what we have seen thus far,” says Donald Braman, an associate professor at the law school at George Washington University and director of Science and Policy at the nonprofit Justice Innovation Lab.
Braman co-authored a lengthy paper on this very topic with David Arkush, the director of the Climate Program at nonprofit consumer advocacy organization Public Citizen. Their work comes amid a wave of civil lawsuits targeting fossil fuel companies for misleading the public about the climate crisis.
One thing we weren’t able to include in the episode was what an actual homicide case would look like. While it sounds rudimentary, we wanted to know whether a prosecutor would have to identify a particular victim of a climate-related homicide and how a theoretical case could be made against Big Oil.
With that, here’s a bonus clip from our interview featuring Braman, including a transcript:
“There are two ways to think about where you would find the death with which the criminal killing of whom you would prosecute in court. The first is that in a lot of northern—you have to go pretty far north, but once you're in the northern climates where you have permafrost, and people have been spending, and this is especially true for a lot of Native peoples, Indigenous peoples living in the Northern Hemisphere. If there's permafrost, that they've lived on and traveled over for thousands of years, hundreds of years, the one thing that is causing the permafrost to melt is climate change, global warming. And that's driven by fossil fuels. And as that permafrost is melting, people are falling through the ice to their death, whether it's on a road or even just on—there's huge sinkholes opening up, methane released…and the speed of the transformation at the poles and towards the poles is just extremely, extremely dramatic. And many American citizens live there, and if they die, those deaths will, I think, by and large be caused by climate change, right?
“The only thing that has changed in their life and their pattern of life, is that what once was safe, has been rendered lethal as a result of climate change caused by fossil fuel companies. So that's a very directly attributable kind of death. But I would also say that in circumstances like Hurricane Maria, where climate researchers can only tell us, 'Well, you know, the storm was this much stronger, or this much more likely, and this many more people died as a result of it,' then you would have to have a factual inquiry to figure out which people died as a result of the climate change-driven event. And here, it's important to note that the person doesn't have to die solely as a result of that. Remember that in the criminal law, if you contribute to, or substantially accelerate death, that's enough.
“And so you can have many different parties who contribute to a death. But a person who contributes substantially can be convicted of homicide because they were a major contributor to that death. And so the people who died in Hurricane Maria don't have to all have died solely as a result of fossil fuel companies’ actions, so long as fossil fuel companies significantly contributed to it or accelerated those deaths. And so you will have to bring in experts and they'll have to testify to this, but you need to do that. And that's what happens with a lot of industrial-scale harms and deaths. You have to bring in the experts to figure out what happened, right? Neither David nor I are attribution scientists. But those are the people you would bring in. And they would testify to what happened there. And those estimates are going to become increasingly, increasingly important, because this is the world we're living in. It's not someone who harms someone who lives next to them. It's a trillion-dollar industry that is wreaking havoc with the entire climate. And that's the kind of death that we're going to see accelerating at an increasingly rapid pace.”
We’ll be back soon with another episode!
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