Lisa Long attempts to wake a cooling center resident

Lisa Long attempts to wake a resident at the First Congregational United Church of Christ shelter, which served as a cooling center on July 13, 2023 in Phoenix, Arizona.

(Photo: Brandon Bell/Getty Images)

Legal Memo Makes Case for Prosecuting Big Oil Over Extreme Heat Deaths

"The only question left," said Bill McKibben, "is whether our legal system will recognize these crimes—and this report shows there's a good chance the answer could be yes."

A U.S.-based consumer watchdog unveiled a legal memo Wednesday detailing how local or state prosecutors could bring criminal charges against Big Oil for deaths from extreme heat made more likely by the fossil fuel-driven climate emergency.

"As Americans reel from another lethal heatwave, it's important to remember that these climate disasters didn't come out of nowhere," said Aaron Regunberg, senior policy counsel for Public Citizen, the group behind the framework.

Extreme heat and other deadly weather events, he continued, "were knowingly caused by fossil fuel companies that chose to inflict this suffering to maintain their profits, while regular people, like the victims of the July 2023 heatwave, and of so many other climate disasters, pay the price."

"These victims deserve justice no less than the victims of street-level homicides. And this memo shows that prosecutors have a path to secure that justice, if they choose to pursue it," added Regunberg, lead author of the new preliminary prosecution memorandum, which focuses on the fatal heatwave last summer during the hottest year in human history.

"These victims deserve justice no less than the victims of street-level homicides."

The memo's other authors are George Washington University law professor Donald Braman—who also worked with Regunberg for a paper on "climate homicide" recently published in the Harvard Environmental Law Review—as well as David Arkush, director of Public Citizen's Climate Program, and Cindy Cho, a law professor at Indiana University.

"When someone causes suffering by breaking the law, good prosecutors know it is their duty to bring appropriate charges," said Cho, a former federal prosecutor. "Some of the very best public servants I've had the privilege to work with are prosecutors who embrace really tough cases because they can also be the most righteous cases."

"Although civil remedies are of course vital, sometimes only our criminal laws can measure up to the harm someone has inflicted," she added. "If human-generated climate change is killing people, and the organizations that generated it knew the risks, then it stands to reason that criminal charges may be exactly what society expects."

Last summer, the memo explains, "a lethal heatwave which would have been 'virtually impossible' but for human-caused climate change broke temperature records across the American Southwest. Communities like Phoenix, Arizona experienced a historic 31 days in a row with temperatures above 110 degrees."

"Hundreds of people across the region were killed," the document notes, "with Maricopa County alone recording 403 heat-related deaths in July 2023—far more than all the murders the county experienced that year."

The defendants in a potential prosecution for last year's deadly heat, according to the memo, "would include some of the world's largest investor-owned fossil fuel companies and a national oil and gas trade association: ExxonMobil, Chevron, Shell, BP, ConocoPhillips, Occidental, BHP, Peabody, and the American Petroleum Institute."

The proposed offenses are reckless manslaughter, defined as "recklessly causing the death of another person," and second-degree murder, which is recklessly killing someone by creating a "grave risk of death" under circumstances "manifesting extreme indifference to human life."

Pursuing those charges would require prosecutors to show that last July's heatwave caused deaths, climate change caused the heatwave, and the fossil fuel companies caused climate change. The memo lays out how they could do all three—thanks in part to advances in attribution science—and explores various potential defenses.

It also emphasizes that "while the July 2023 heatwave was devastating, it was not a unique occurrence. In recent years climate-fueled heatwaves, hurricanes, wildfires, and other disastrous weather events have killed thousands of Americans—have burned children alive in Maui, drowned families in Puerto Rico, killed people by heatstroke in the Pacific Northwest and elsewhere—and this loss of life will continue to accelerate as climate chaos intensifies."

"The charges described in this memo provide a starting point for similar analyses that could, and should, be undertaken by prosecutors in every jurisdiction that experiences loss of life due to climate disasters," the document declares.

Welcoming the memo's release amid more widely anticipated extreme heat, author and climate activist Bill McKibben stressed that "what's happened to the climate is a crime: After fair warning from scientists about what would happen, Big Oil went right ahead pouring carbon into the atmosphere, and now there's a huge pile of dead bodies (and a larger one of dead dreams)."

"After fair warning from scientists about what would happen, Big Oil went right ahead pouring carbon into the atmosphere, and now there's a huge pile of dead bodies."

"The only question left," he said, "is whether our legal system will recognize these crimes—and this report shows there's a good chance the answer could be yes."

Earlier this month, McKibben moderated a virtual panel featuring the memo's four authors along with Amy Fettig, deputy director of Fair and Just Prosecution; Kathy Mulvey, accountability campaign director at the Union of Concerned Scientists; and Hadrien Goux, fossil fuel campaign officer at Bloom, which recently filed a criminal complaint against TotalEnergies in France.

"There's a lot of work to do here," Regunberg said during that discussion. "We are creating a movement... and it needs to grow."

Others suggested that legal leaders across the United States may be open to pursuing such cases, particularly if they face public pressure to do so. Cho said that early on in the research, she was skeptical about criminally prosecuting Big Oil in this way—but she concluded that "it actually isn't as much of a stretch as the people on this call might think."

"It fits within the framework of what they seek to do with their careers," she said of prosecutors who want to protect their communities.

Fettig pointed out that for the most part, prosecutors and district attorneys are elected officials, meaning that "they're accountable to you."

"The truth has been that most people haven't paid attention to those elections and so we haven't seen the kind of public accountability for district attorneys and prosecutors that is really available—so as constituents, get to the ballot box," Fettig said. "That's an important power that you have."

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