The sky outside is hazy orange, and my five-year-old son is screaming bloody murder. “Sorry, buddy, we have to stay inside,” I say. “It’s not safe to breathe out there.” I had told him we’d be going to the beach today. Something inside me tears a little as I wonder how many promises he’ll see similarly broken in the coming years.
Far too many parents were forced to have some version of this conversation with their children this month, as smoke from record-breaking wildfires poured across the midwest and north-east. Some of them already had to tell their kids that their Fourth of July festivities were canceled because of the lethal heatwave that caused numerous mass casualty events earlier this month.
According to scientists, these extreme weather events are not “natural” disasters. A team of researchers already published a study finding that the Fourth of July heat wave would have been “virtually impossible” but for the climate crisis. Other studies – using methods recently validated by the National Academy of Sciences, the country’s top scientific advisory body – found that the pollution from individual big oil companies such as ExxonMobil, Chevron, Shell and BP made some past climate-exacerbated heatwaves at least 10,000 times more likely compared with preindustrial levels.
Big oil’s role in these disasters was no accident. Decades ago, these companies were predicting that their fossil fuels would cause, in their own words, “globally catastrophic” climate harms that would create “more violent weather” and cause “suffering and death due to thermal extremes”. Even as they used this knowledge to protect their own infrastructure, they orchestrated fraudulent campaigns of climate denial and deception to lock us into the disasters we are currently experiencing.
It’s no wonder, then, that climate harms are increasingly being interpreted not just as tragedies but as crimes. “We need Nuremberg trials for Big Oil,” wrote one climate advocacy group in a recent post that received tens of thousands of likes – and the sentiment has been echoed by many others.
The desire for an extraordinary tribunal is understandable given the scale of the harm. The Nazis were responsible for approximately 40m deaths; some analyses estimate that climate change will cause more than 1bn preventable deaths this century.
But we actually don’t need any special new legal innovations like the Nuremberg trials to begin to prosecute these climate crimes. In jurisdictions across the country, there are already criminal laws on the books that describe and proscribe big oil’s conduct in knowingly driving and deceptively covering up the climate crisis – offenses such as reckless endangerment, causing or risking catastrophe, and involuntary manslaughter.
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Most states have a reckless endangerment offense. These laws criminalize reckless conduct that creates a substantial risk of injuring another person. Recklessness means knowing something is dangerous – eg predicting your pollution would cause “more violent weather” – and engaging in that conduct anyway. That’s exactly what big oil did, and the resulting climate crisis is now creating a substantial risk of injuring people across the country.
Some jurisdictions also criminalize conduct that creates a risk of catastrophe, meaning “widespread injury or damage”. Pennsylvania and New Jersey both have these laws on the books, and were two of the states hit hardest by the Fourth of July heatwave, with dozens killed and thousands more hospitalized. Case law shows that these catastrophe laws in particular have been used to prosecute actors for exacerbating a danger by lying about it. In one such case, the operators of a pier in Philadelphia were warned by engineers that the structure was in danger of collapsing. Rather than addressing the problem, they covered it up. When the pier collapsed, the operators were charged with risking catastrophe, and the Pennsylvania supreme court agreed, writing: “After having been made specifically aware of the imminent danger that the pier posed to human life, [they] took affirmative measures to keep that knowledge to themselves and took affirmative steps that exposed others to the risk.” Swap out the word “pier” for “climate change” and that ruling applies perfectly to big oil.
Finally, there’s involuntary manslaughter – the crime of recklessly causing (or, in many states, substantially contributing to) the death of another person. Clearly, climate-caused deaths are accelerating – a recent analysis found that extreme heat from climate change may have caused more than 20,000 deaths in Europe last month alone. Already, there are victims and survivors who are connecting the dots to big oil. Earlier this month, a Washington state court ruled that a lawsuit against the fossil fuel industry for the wrongful death of the plaintiff’s mother in a climate-induced heatwave will proceed toward discovery and trial. Prosecutors could follow suit and begin charging big oil companies in relation to the climate disasters that are, in some instances, taking the lives of more of their constituents than are being lost to traditional homicides.
Of course, the scale of big oil’s climate liability will only grow in the coming years – this is, after all, not just the hottest summer of our lives, but the coolest summer for the rest of our lives. Someday, we can hope that the corporate actors responsible for such breathtaking havoc will face a made-to-fit tribunal that can fully address the ways they have condemned my five-year-old and countless children like him to a dangerous future. But we don’t need to wait.
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Climate victims deserve justice now, and the officials responsible for pursuing that justice have all the laws they need to begin prosecuting big oil today. So next time you hear a climate disaster described as a crime, remember that this isn’t just rhetoric. These really are crimes. It’s time we treated them that way.
