Arkush & Braman on Climate Homicide

David Arkush and Donald Braman (Public Citizen and George Washington University - Law School) have posted Climate Homicide: Prosecuting Big Oil For Climate Deaths on SSRN. Here is the abstract:

 

Prosecutors regularly bring homicide charges against those whose reckless or negligent acts or omissions cause unintentional deaths, as they do against 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, to confuse their shareholders, consumers, and regulators, and they poured money into political campaigns to elect judges, legislators, and executives hostile to any litigation, regulation, or competition that might limit their profits. Today, the climate change that they forecast has already killed tens of 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 when deaths reach into the thousands or millions. 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.