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Dial Oil For Murder?

Recent paper accuses Big Oil of homicide

In the upcoming April issue of EA, we mention how Big Oil—and even natural gas companies—have become the Grim Reaper. As the faces of fossil fuel pollution, they weather unrivaled criticism and are put on trial, literally. But no claim has gone further than this latest paper, published in an esteemed business review journal, that accuses Big Oil of homicide.

Below is an abstract of the extreme paper, which was written January 23 by David Arkush of Public Citizen and Donald Braman, of George Washington University Law School's "Justice Innovation Lab" and "DC Justice Lab":

"Prosecutors regularly bring homicide charges against individuals and corporations whose reckless or negligent acts or omissions cause unintentional deaths, as well as those whose misdemeanors or felonies cause unintentional deaths. Fossil fuel companies learned decades ago that what they produced, marketed, and sold would generate “globally catastrophic” climate change. Rather than alert the public and curtail their operations, they worked to deceive the public about these harms and to prevent regulation of their lethal conduct. They funded efforts to call sound science into doubt and to confuse their shareholders, consumers, and regulators. And they poured money into political campaigns to elect or install judges, legislators, and executive officials hostile to any litigation, regulation, or competition that might limit their profits. Today, the climate change that they forecast has already killed thousands of people in the United States, and it is expected to become increasingly lethal for the foreseeable future. Given the extreme lethality of the conduct and the awareness of the catastrophic risk on the part of fossil fuel companies, should they be charged with homicide? Could they be convicted? In answering these questions, this Article makes several contributions to our understanding of criminal law and the role it could play in combating crimes committed at a massive scale. It describes the doctrinal and social predicates of homicide prosecutions where corporate conduct endangers much or all of the public. It also identifies important advantages of homicide prosecutions relative to civil and regulatory remedies, and it details how and why prosecution for homicide may be the most effective legal remedy available in cases like this. Finally, it argues that, if our criminal legal system cannot focus more intently on climate crimes—and soon—we may leave future generations with significantly less for the law to protect."

The 70-page paper was published in its entirety in the Harvard Environmental Law Review, Vol. 48, No. 1, 2024. The question remains as to whether charging fossil fuel companies, their boards and/or executives, with homicide, is actually plausible. It should first be noted that "homicide" encompasses lesser charges than murder, including manslaughter. Secondly, as one professor noted in an interview with The Guardian, it would be tough to make such charges actually stick.

“The morality of what fossil fuel companies have been doing over a few decades has become clearer and clearer,” Christopher Kutz, a distinguished professor and director of the Kadish Center for Morality, Law and Public Affairs at the University of California, Berkeley, told the Guardian Wednesday. “They are complicit in the deaths that occur and the article is very persuasive about that. But whether you could make an actual criminal charge stick is tricky because their complicity is mixed with the complicity of everybody else.”

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