Policy Memo
Topline
Environmental activists, frustrated that their arguments have failed to convince lawmakers, regulators, and the public, are urging state prosecutors to charge energy executives with murder or manslaughter. Such prosecutions would violate fundamental principles of criminal law in our country.
The Edwin Meese III Institute for the Rule of Law
Environmental activists—considered by some to be climate alarmists—who are trying to crush American oil and gas companies and replace fossil fuels are getting desperate. Their claims that the “science is settled” keep getting challenged. They also know that little can be done to curb greenhouse gas emissions in countries like China, India, and Russia and that their pledges to improve are worthless. Moreover, these activists know that their pleas for change will fall on deaf ears in any of the developing countries that consistently rank as the most polluted countries in the world.2 Indeed, in 2024, 87.29 percent of worldwide carbon dioxide emissions came from outside the United States.3
In our country, environmental activists have been unable to persuade their fellow Americans of the righteousness of their cause. So some have taken to juvenile histrionics like splashing paint or soup on iconic works of art by Edgar Degas4 (as they have done in other countries to works by Pablo Picasso,5 Claude Monet,6 Vincent van Gogh,7 and Leonardo da Vinci8). Nuisance lawsuits funded by environmentalists such as Leonardo DiCaprio, who flies in his gas-guzzling private jet to deliver speeches decrying climate change in places like Davos, Switzerland,9 have not done the trick either. At the moment, most activists are pinning their hopes on a series of civil cases premised on state common law theories that have been filed in state courts across the country against energy companies seeking compensation and punitive damages for their contributions to climate change. The U.S. Supreme Court recently agreed to consider a challenge to one of those cases, with oral argument scheduled for Monday, October 5, the first day of the Court’s new term.
The activists fear, with some justification, that they may lose that case. So what to do then? Well, as the popular saying goes, “Never underestimate desperate people. You never know how far they will go to get what they want.” Using language usually reserved to describe serial murders, terrorist attacks, and mass shootings, several environmental activists are encouraging state prosecutors to charge energy executives and greenhouse gas emitters with murder or manslaughter for deaths that the environmentalist activists claim are directly related to their conduct. While their concern about climate change, whether overblown or not, may be legitimate, I argue herein that such a prosecution would be incompatible with the fundamental principles of criminal law in our country, such as the need for criminal laws to provide fair notice and for prosecutors to prove causation and that the defendant acted with a guilty mind (or mens rea) beyond a reasonable doubt. Ignoring or compromising those core principles in order to achieve an outcome that environmentalists consider politically desirable would do great damage to the rule of law.
The case that the Supreme Court will consider this fall is Suncor Energy Inc. v. County Commissioners of Boulder County. In that case—one of dozens of similar lawsuits that energy companies are facing in state courts across the nation—granola-and-crystal-friendly Boulder, Colorado and its surrounding county sued several leading multinational energy companies, Suncor Energy and its affiliates as well as ExxonMobil, asserting a variety of state-law common law tort claims and statutory claims, including nuisance, trespass, unjust enrichment, and consumer protection violations. The plaintiffs claim that the defendants’ worldwide production, refinement, promotion, and sale of fossil fuels have resulted in greenhouse gas emissions that, cumulatively, have contributed to global climate change which, in turn, has caused a parade of horribles inflicting harm around the world, including in Colorado. In their complaint, the plaintiffs indicate that they are seeking billions of dollars “to compensate” for “past and future damages and costs to mitigate the impacts of climate change ….”10
In 1981 in Texas Industries, Inc. v. Radcliff Materials, Inc., the Supreme Court stated that there are “instances, [where] our federal system does not permit the controversy to be resolved under state law, either because the authority and duties of the United States as sovereign are intimately involved or because the interstate or international nature of the controversy makes it inappropriate for state law to control.”11 Additionally, in 1987, in an analogous case, International Paper Co. v. Ouelette, the Court held that, in light of “the fact that control of interstate pollution is primarily a matter of federal law,” the Clean Water Act’s “pervasive regulation” precludes all state-law claims against an alleged polluter except claims brought under the laws of the state from which the discharges emanated.12 As the Court reiterated recently in Fuld v. Palestine Liberation Organization, one of “the principles of interstate federalism embodied in the Constitution” is the proposition that “[s]tate sovereign authority is bounded by the States’ respective borders.”13
In 2011, in American Electric Power Co. v. Connecticut, the Supreme Court considered a case in which the plaintiffs had asserted federal common law claims against several major fossil-fuel fired power plants that generated electricity for much of the country. In a unanimous decision by Justice Ruth Bader Ginsburg, the Court held that the Clean Air Act preempts the assertion of claims based on federal common law asserted by states against entities that emit greenhouse gases.14
The Court recognized that since the early 1900s, it had approved lawsuits brought by one state to abate pollution emanating from another state under federal common law, but not under state common law. Ginsburg continued that even after Erie R. Co. v. Tompkins (1938), in which the Court held that federal courts should not create their own common law for issues that are properly governed by state law, the application of federal common law was still appropriate to address:
subjects within national legislative power where Congress has so directed or where the basic scheme of the Constitution so demands. Environmental protection is undoubtedly an area within national legislative power, one in which federal courts may fill in statutory interstices, and, if necessary, even fashion federal law. As the Court stated in Milwaukee I: When we deal with air and water in their ambient or interstate aspects, there is a federal common law.15
Ginsburg continued that, “[r]ecognition that a subject is meet for federal law governance, however, does not necessarily mean that federal courts should create the controlling law.”16 The Court held that the Clean Air Act, which gives the U.S. Environmental Protection Agency authority to regulate greenhouse gas emissions generally but leaves states mostly free to regulate such emissions within their own borders, evidences a clear intent by Congress to preclude the assertion of federal common law claims. In Suncor, the defendants sought dismissal of the case against them, arguing, among other things, that the Clean Air Act also preempts the assertion of state statutory and common law tort claims to redress emissions emanating from overseas or other states.
In 2021, in a similar case, City of New York v. Chevron Corp., the U.S. Court of Appeals for the Second Circuit accepted that argument, stating that it was “too strange to seriously contemplate” that Congress’s passage of the Clean Air Act “to address issues that demand a unified federal standard” would “suddenly” make state law “presumptively competent” to further address, and potentially interfere with, that standard.17 Allowing such state-law claims to proceed, the court said, would “risk upsetting the careful balance that has been struck between the prevention of global warming, a project that necessarily requires national standards and global participation, on the one hand, and energy production, economic growth, foreign policy, and national security, on the other.”18 More recently, a divided Maryland Supreme Court, relying extensively on City of New York, issued a similar ruling dismissing three consolidated cases that Maryland local governments had filed asserting state common law claims against 26 multinational oil and gas companies.19
In Suncor, however, the trial court and, subsequently, the Colorado Supreme Court, over a vigorous dissent by two of its Justices, rejected this argument, concluding that, whereas the Clean Air Act may have preempted federal common law claims, it did not preempt state common law and statutory claims.20 To get around American Electric Power, the Suncor plaintiffs attempted to distinguish between the pollution emitters themselves and the upstream producers and sellers of fossil fuels, suing only the latter. The plaintiffs in City of New York also made this distinction in their pleadings; however, the Second Circuit recognized that, “[a]rtful pleading cannot transform the City’s complaint into anything other than a suit over global greenhouse gas emissions. It is precisely because fossil fuels emit greenhouse gases—which collectively ‘exacerbate global warming’—that the City is seeking damages.”21
The Colorado Supreme Court, on the other hand, found the distinction to be significant and ruled that the case should be allowed to proceed. That court also offered some counterintuitive reasoning along these lines: the U.S. Supreme Court has long held that federal common law precludes the application of state-law claims to address pollution emanating from outside its borders; but since the Supreme Court has now held that passage of the Clean Air Act prevents courts from applying federal common law in such cases, suddenly state-law claims should be given new life.
In 2023, in an analogous case against fossil-fuel producers and sellers, City & County of Honolulu v. Sunoco LP, the Hawaii Supreme Court reached the same conclusion as the Colorado Supreme Court in Suncor.22 Last year, the U.S. Supreme Court declined to hear an appeal from the Hawaii case, but it has now decided to hear Suncor’s appeal in the Colorado case. These lawsuits have, no doubt, already had a chilling effect on potential investors and entrants into the energy field. If these state-law cases are allowed to proceed and liability and crushing cumulative penalties are imposed, the result would be a de facto carbon tax, which would be passed on to consumers, would destabilize whole sectors of our economy (not to mention world markets), and could end up eventually bankrupting the entire industry, which is the ultimate goal of the well-heeled groups and individuals backing these lawsuits.
Given the profound domestic, international,23 and national security implications and potential destabilizing and deleterious impact, it is no exaggeration to say that the Suncor case will decide whether Congress and the administration or Boulder, Colorado (or, even worse, a smattering of local juries comprised of lay individuals from deep-blue jurisdictions throughout the country) gets to set our national energy policy. At the very least, a ruling in the plaintiffs’ favor would interfere with the sovereign power of the other states to regulate energy policy and the environment within their own borders and would risk creating a patchwork of standards that would likely cripple the energy industry.
Sensing the possibility, if not the likelihood, of a loss in Suncor, some environmentalists, like guitarist Nigel Tufnel of the iconic band Spinal Tap, have decided to turn the amplifier dial up to 11.24 They are advancing the argument that the senior executives of energy companies should be criminally prosecuted for the deaths they contend have been caused by global warming, urging prosecutors to charge them with murder or manslaughter, hoping that the threat or actual use of this dramatic measure will help them accomplish the goals they have thus far been unable to achieve.25
The move to submit energy executives and greenhouse gas to criminal prosecution is not new. For more than a half-century, environmentalists have been trying to add the crime of “ecocide” to the lexicon of international law.26 The issue was first considered seriously in response to the U.S. military’s use of Agent Orange during the Vietnam War to clear jungle brush for military operations. The term was first used by Prof. Arthur Galston in 1970 at a conference in which he proposed developing a new international agreement to prohibit “ecocide.” Shortly thereafter, in 1972, at a United Nations Stockholm Conference on Human Environment, Swedish Prime Minister Olof Palme referred to the U.S. military’s actions in Vietnam as “ecocide.” And in 1973, international law scholar Richard Falk proposed an International Convention on the Crime of Ecocide. More recently, other prominent individuals including the late Pope Francis and French President Emmanuel Macron have joined the chorus in favor of creating a new crime of ecocide. Prior to the creation of the International Criminal Court with the passage of the Rome Statute in 1996, those efforts failed.
In 1991, the International Law Commission, a body of experts established by the United Nations General Assembly, created an initial draft “Code of Offences Against the Peace and Security of Mankind,” which contained a crime of “Willful and Severe Damage to the Environment.” After much debate, this crime was dropped from the final version of the code—usually referred to as the Rome Statute27 (named after the location of the conference where it was considered)—which created the International Criminal Court (ICC) in 1998 and governs its jurisdiction.
Indeed, environmental crimes were left out of the Rome Statute entirely, with one limited exception involving armed conflict. There are four crimes that fall within the jurisdiction of the ICC: genocide, crimes against humanity, war crimes, and crimes of aggression. Article 8(2)(b)(iv) of the Rome Statute includes within the definition of a war crime the intentional launching of an attack with the knowledge that such an attack will cause “widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.” To date, no individual or county has been prosecuted in the ICC for violating this provision. Environmentalists have been trying mightily since then to add ecocide as a separate crime within the jurisdiction of the ICC, but they have thus far failed.
Although advocates have tossed around different definitions over the years, the one most frequently debated was proposed in 2021 by an international panel convened by Stop Ecocide International, which defines ecocide as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage being caused by those acts.” Further, the proposal defines “wanton” as acting “with reckless disregard for damages which would be clearly excessive in relation to the social and economic benefits anticipated.”28
Of course, since the United States is not a signatory to the Rome Statute (neither are China or India; Russia signed but never ratified it and later revoked its signature), energy executives and greenhouse gas emitters operating in the United States would not be subject to prosecution before the ICC, and ecocide laws in other countries would likely have limited reach against them as well. Although environmentalists have failed in their efforts to add ecocide to the Rome Statute, other than in the very limited war crime context discussed above, several countries have passed similar laws.29 Even so, prosecutions in those countries have been few and far between. Several other EU nations are also considering adding ecocide to their criminal codes following the EU’s 2024 Directive on the protection of the environment through criminal law. The Directive informed member states that “where… offences cause the destruction of… an ecosystem of considerable size or environmental value… or cause widespread and substantial damage,” they “should constitute qualified criminal offences,” which “can encompass conduct comparable to ‘ecocide.’”30 Some, however, appear hesitant about doing so.31
The concept of prosecuting U.S.-based energy executives and greenhouse gas emitters for murder or manslaughter has only recently reached our shores. Under the Model Penal Code, which is issued by the American Law Institute and serves as a guide to many state laws, murder is reserved for someone acting purposefully or knowingly (in other words, with a clear intent) to kill another person,32 while manslaughter is for those who kill another by engaging in conduct while knowing that there was a substantial and unjustifiable risk that such conduct could result in someone’s death.33
David Arkush (the Director of Public Citizen’s Climate Program), Donald Braman (a professor at George Washington University Law School), Aaron Regunberg (a climate activist and former member of the Rhode Island House of Representatives), and Cindy Cho (a professor at Indiana University’s Maurer School of Law and a former federal prosecutor), among others, are vigorously pursuing this issue.34 In a 2024 Harvard Environmental Law Review article, Arkush and Braman explain their rationale, arguing that “prosecutors regularly bring homicide charges against… corporations whose reckless or negligent acts or omissions cause unintentional deaths,” and there are “doctrinal and social predicates of homicide prosecutions where multiple corporate actors have engaged in conduct that endangers much or all of the public.” 35 Therefore, according to Arkush and Braman, “fossil fuel companies could be prosecuted for every type of homicide short of first degree murder.” In fact, they say, energy companies’ “culpability far exceeds that in ordinary homicide cases.”36
Before discussing the merits and demerits of this radical proposal, I would like to present some relevant data about the benefits and harms of fossil fuels.
As President Donald Trump recently explained, “[w]e need a reliable, diversified, and affordable supply of energy to drive our Nation's manufacturing, transportation, agriculture, and defense industries, and to sustain the basics of modern life and military preparedness.”37 Certainly for the foreseeable future, diverse, abundant, and reliable energy sources, including from coal, gas, and oil, are fundamental to our national security, stability, and prosperity, not to mention that of our allies and friendly developing countries trying mightily to provide their inhabitants’ basic needs and to improve their well-being and standard of living.
According to the U.S. Energy Information Administration, “[i]n 2025, the United States consumed an average of about 20.6 million barrels of petroleum per day, or a total of about 7.52 billion barrels of petroleum” per year.38 Further, “[n]early all the crude oil that is produced in or imported into the United States is refined into petroleum products, such as gasoline, diesel fuel, heating oil, and jet fuel, which are then consumed. Liquids produced from natural gas processing are also consumed as petroleum products. Renewable biofuels, such as ethanol and biodiesel, are used as substitutes for or as additives to refined petroleum products.”39 Petroleum, a major contributor to greenhouse gases, is a key component of many products that we use every day—such as plastics, ink, cosmetics, detergents, candles, shoe polish, and paper cups—and is critical to innovations such as artificial intelligence and machine learning which are transforming our society.40 Most households rely on natural gas for heating, air conditioning, lighting, and refrigeration; commercial buildings have many of the same needs, plus others such as ventilation, computing, and office equipment; the transportation industry relies almost exclusively on fossil fuels to meet its energy needs; and the same is true of the construction, manufacturing, and agricultural sectors which both consume and produce energy.41
Fossil fuel is not only important to our everyday lives, our domestic economy, and our international relations. As retired Army General and former CIA Director David Petraeus once said, “Energy is the lifeblood of our warfighting capabilities.”42 A brief filed in the Suncor case on behalf of retired Air Force General Richard Myers and retired Navy Admiral Michael Mullen, both former Chairmen of the Joint Chiefs of Staff, makes the compelling argument that “a dependable, abundant supply of energy [is] indispensable to our Nation’s warfighting capacity” and that “achieving energy security is a prerequisite for national security.”43 While acknowledging that “it is important to continue to look for ‘greener’ ways to fuel the military,” they also recognize that, “the reality is the U.S. military must always take into account its enemies’ own fossil-fuel uses and potential superior deployment abilities because of those uses.”44 If it drives, flies, floats, or fires, the odds are extremely high that it uses petroleum products, and in large amounts.
“It is by no means a certainty that the world faces crisis, catastrophe, existential threat.”45 Well, you may ask, which right-wing climate denier said this? That statement was made last year by Dr. Steven Koonin, the former Under Secretary for Science at the Department of Energy during the Obama administration, the former director of the Center for Urban Science and Progress at New York University, and the author of Unsettled: What Climate Science Tells Us, What It Doesn't, and Why It Matters, and co-author of A Critical Review of Impacts of Greenhouse Gas Emissions on the U.S. Climate.
While environmentalist activists and many climate scientists, as well as those pursuing civil litigation against energy companies and pushing ecocide/homicide prosecutions, would like everyone to believe that “the science is settled,” a small, but determined, group of climate scientists, facing public ridicule and professional ostracism, say that the science has been politicized. They contend that the computer models used and touted by environmentalists likely overstate—perhaps dramatically—the threat posed by greenhouse gas emissions and are a classic example of garbage in, garbage out (to wit, flawed and biased inputs leading to flawed and biased outputs).46 Some of the environmental studies and other reference material designed to “educate” judges who will preside over climate-change-related lawsuits received substantial input from groups and individuals that are actively involved in these lawsuits and have financial skin in the game.47
Recently, the European Geosciences Union, which describes itself as “the leading organisation for Earth, planetary and space science research in Europe,”48 published its latest climate modeling report, replacing the previous version, which provided much of the basis for the climate scenarios that a multitude of heavily cited research papers have treated like the Gospel.49 In the new report, the authors candidly admit that the high-end range of emission trajectories and projected temperature increases—in other words, the most extreme scenarios—had become “implausible, based on trends in the costs of renewables, the emergence of climate policy and recent emission trends,”50 and have now been revised sharply downward. Even so, some experts believe that the current model still overstates the problem because the model’s assumptions about projected population growth and other factors are unrealistic, if not outright ridiculous.51
Similarly, there are critics of the models used for climate attribution science, which attempts to estimate precisely how much human-caused global warming increased the likelihood of a particular extreme climate event, as well as the number of deaths resulting from that event that are attributable to that cause.52 Among those critics is Roger Pielke, a Senior Fellow at the American Enterprise Institute, who has characterized climate attribution science as “weather attribution alchemy” and “a form of tactical science—research performed explicitly to serve legal and political ends.”53 The Intergovernmental Panel on Climate Change (IPCC), a United Nations-based organization that tries to assess the latest scientific information in order to provide governments around the world with information to help them develop climate policies, candidly admits that:
Scientists cannot answer directly whether a particular event was caused by climate change, as extremes do occur naturally, and any specific weather and climate event is the result of a complex mix of human and natural factors. Instead, scientists quantify the relative importance of human and natural influences on the magnitude and/or probability of specific extreme weather events.54
In a likely understatement, Pielke states that, “[t]he IPCC’s inability to reach high confidence in the detection and attribution of most types of extreme events has been viewed by climate advocates as politically problematic.”55
Even if one assumes, for the sake of argument, that the data cited by the environmentalists who support cases like Suncor and ecocide/homicide prosecutions is accurate, there is the risk that lawsuits against energy producers like Suncor could backfire, exacerbating the very harm they seek to minimize. Bankrupting domestic energy companies could result in production shifting to other less-regulated countries such as China, India, Iran, and Russia, leading to an increase in global emissions, a phenomenon known as “emissions leakage.”56 It would also, of course, constitute a massive financial and strategic bonanza for these countries, some of which have interests that are adverse to, if not outright hostile towards, us and our allies.
In short, devising an optimal energy policy involves tradeoffs, constant study, informed assessments, and policy choices about how best to supply the world’s copious energy needs while also seeking to reduce greenhouse gas emissions, especially since there are currently no viable, reliable, and scalable alternatives. This reality, and who should be the policymakers, are at the heart of the Suncor case. Similarly, one would be foolish not to weigh these benefits and risks when analyzing whether homicide or manslaughter charges against energy companies and executives ought to be pursued.
There are, of course, environmental crimes already on the books at both the federal57 and state58 levels. And there have been instances in which companies and individuals have been held criminally liable for environmental harms resulting in death, serious bodily injury, or other harms. For example, in U.S. v. Elias, the owner of a fertilizer company was convicted after ordering several of his employees to enter and wash out a tank that he knew contained cyanide-laced sludge without providing them with any safety equipment, resulting in the near-death of one of the employees who suffered severe, permanent disabilities.59 In State v. Far West Water & Sewer, Inc., a company that owned a sewage collection and treatment facility, its president, a supervisor, and one of the company’s subcontractors were convicted after two individuals were directed to enter an underground sewage tank that contained toxic hydrogen sulfide sewage gas without safety equipment, resulting in the death of both individuals and severe injury to a third who attempted to rescue them.60 In United States v. Hansen, the founder and president, the chief executive officer, and a plant manager of a chemical plant were convicted for repeated discharge violations in which untreated wastewater containing highly toxic chemicals was allowed to pool on the plant floor, exposing and endangering workers.61 In United States v. Chemical & Metal Industries, Inc., a company that recycles hazardous compounds was convicted after an employee working for one of its clients died from being exposed to highly toxic industrial waste that was stored in a container mislabeled as containing a non-toxic refrigerant.62 And in 2013, British Petroleum plead guilty to, among other things, 11 counts of manslaughter in connection with the 2010 blowout and subsequent explosion on its Deepwater Horizon drilling rig, which resulted in the death of 11 workers and a massive oil spill.63
It is a fundamental principle of our criminal law that a prosecutor must prove beyond a reasonable doubt that a defendant actually caused, often referred to as but-for causation, the alleged harm.64 Each of the cases mentioned in the preceding paragraph involved a direct, traceable, and clearly foreseeable connection with no intervening, superseding event between the defendant’s discrete conduct and the harm caused, not a generalized grievance against an entity or individual contributing to global warming. Establishing the causal link between greenhouse gas emissions and any particular harm, including someone’s death, and prosecuting energy executives and greenhouse gas emitters for murder or manslaughter, is an entirely different matter altogether.
Mind you, proving causation is exceedingly difficult in civil cases, such as Suncor. This is because, as the Court in American Electric Power recognized, “Greenhouse gases once emitted become well mixed in the atmosphere; emissions in New Jersey may contribute no more to flooding in New York than emissions in China.”65 As the Court has stated, it is “textbook tort law that an action ‘is not regarded as a cause of an event if the particular event would have occurred without it.’”66 In addition to the fact that greenhouse gas emissions and the resultant climate change is a global, borderless phenomenon, there are myriad other sources, including non-fossil-fuel sources, for carbon dioxide and greenhouse gas emissions. Land management and conversion can result in the release of carbon dioxide, methane, and nitrous oxide that has been stored in soil, litter, and dead organic matter.67 The wastewater treatment industry is also a significant contributor of non-fossil-fuel greenhouse gas emissions, as is agriculture, through things like irrigation practices, the use of certain fertilizers, herbicides, and pesticides, the growth of certain crops, and excrement and flatulence from ruminant animals.68 There are other things too that can cause or materially contribute to some of the problems blamed on global warming such as wildfires, which may be declining globally and which can be caused by poor forest management.69
The problem of proving but-for causation would be magnified exponentially in a criminal case where due process requires precision and a clear causal connection between a defendant’s conduct and the harm sustained by a victim. The case of Burrage v. United States is instructive here. 70 In that case, Marcus Burrage sold heroin to Joshua Banka who died after injecting himself with the drug. Heroin was not the only drug that Banka ingested the night he died. His death followed what the Supreme Court characterized as “an extended drug binge”71; an autopsy revealed that, in addition to heroin, codeine, alprazolam, clonazepam metabolites, and oxycodone were found in his system.
Burrage was subsequently tried and convicted of selling the drug that caused Banka’s death. At trial, the government’s toxicology experts could not definitively say that Banka would have lived had he not taken the heroin; they testified that the heroin was a contributing factor in his death, since it was intermixed with the other drugs, and that it was “very less likely” that he would have died had he not injected himself with the heroin. A unanimous Supreme Court, in an opinion by Justice Antonin Scalia, overturned the conviction.
Scalia cited to criminal law treatises by universally acclaimed scholars Wayne LaFave, H.L.A. Hart, and Tony Honoré for the following proposition: “The law has long considered causation a hybrid concept, consisting of two constituent parts: actual cause and legal cause. When a crime requires not merely conduct but also a specified result of conduct, a defendant generally may not be convicted unless his conduct is both (1) the actual cause, and (2) the ‘legal’ cause (often called the ‘proximate cause’) of the result.”72 The Model Penal Code, Scalia wrote, also “reflects this traditional understanding; it states that ‘[c]onduct is the cause of a result’ if ‘it is an antecedent but for which the result in question would not have occurred.’”73 Since the toxicologists could not say that the heroin Banka ingested would have killed him even if he hadn’t taken the other drugs or that Banka would have lived had he not injected himself with the heroin, the government failed to prove but-for causation linking the defendant’s conduct (selling him the heroin) and Banka’s death.
The Court rejected the government’s argument that evidence that the heroin Burrage sold to Banka was a “contributing cause” in his death was enough to sustain the conviction. Citing “the need for clarity and certainty in the criminal law,” Justice Scalia wrote: “Is it sufficient that use of a drug made the victim’s death 50 percent more likely? Fifteen percent? Five? Who knows. Uncertainty of that kind cannot be squared with the beyond-a-reasonable-doubt standard applicable in criminal trials or with the need to express criminal laws in terms ordinary persons can comprehend.”74 Of course, in an ecocide or environmental homicide or manslaughter prosecution, the government would be unable to establish that any particular fossil-fuel producer was a five-percent (or anything even close to that) contributor to any individual’s death.
When it comes to actual causation, climate activists are, thus far, relying on climate attribution models to bridge this gap. As previously noted, however, there are reputable scientists who argue that such models are flawed and were shaped to serve political and legal ends. 75 Moreover, the people who are relying on these models do not seem to consider the socio-economic benefits of fossil fuel production. I am sure that one could, for example, make a compelling argument that the manufacturers of automobiles, who also have a profit motive for what they do, know to a certainty that there will be far more fatalities as a result of the use of their product than there would be if transportation were limited to, say, bicycles and horse-drawn buggies. In the absence of some design flaw, however, we would never countenance prosecuting automobile executives for murder or manslaughter simply because millions of people use their product, even though tens of thousands of individuals die in traffic fatalities in our country every year. (Actually, I am sure there are some activists who would not only countenance it, but would actively encourage it.) The same is true, of course, for firearms manufacturers, who are heavily regulated and produce a lawful product used by millions of law-abiding citizens for lawful purposes, even though use of their product unquestionably results in tens of thousands of mostly self-inflicted deaths every year. (It is likewise true that there are activists who would heartily endorse firearm manufacturers’ prosecution.) One can debate the relative costs and benefits associated with widespread automobile and firearms usage and whether existing regulations (setting aside the constitutional issues in connection with the possession and use of firearms) are adequate, but that is a far cry from urging prosecutors to try the head of General Motors or Smith & Wesson for murder or manslaughter.
As noted above, in addition to actual causation, often referred to as “but-for causation,” which was the issue in Burrage, a prosecutor would have to prove that any harm caused by the defendant was reasonably foreseeable, often referred to as “legal causation” or “proximate causation.” Although the standard varies somewhat by jurisdiction, in criminal cases, this generally requires proof that the harm to the victim was a natural and probable consequence of the defendant’s actions uninterrupted by any independent contributions from unrelated third parties. To quote Justice Ruth Bader Ginsburg, “because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point.”76 Put another way, the harm must not be “too remote or accidental in its occurrence” from the defendant’s conduct.77
In the case of energy production and greenhouse gas emissions (with the former being one step removed from the latter), any causal chain (and it would be a very long one) resulting in death would likely be the result of billions of independent decisions and actions (including regulations and permitting decisions by government actors) over decades by individuals and entities around the world contributing to climate change, each contributing incrementally to that chain. Given this reality, it would be quite a stretch to say that it was reasonably foreseeable or a natural and probable consequence that a particular individual’s death would result from the actions of any individual or entity. While other theories of causation pushed by environmental activists may be suitable in limited civil contexts—theories such as “alternative liability”78 (in which it appears that several actors contributed to a particular harm and the burden is shifted to them to prove who was and was not responsible) and “market-share liability”79 (in which liability is apportioned among several independent actors based on their market share when it is impossible to determine which actor’s product caused the victim’s harm)—such theories are impermissible in the criminal context where the burden of proof never shifts to the defendant and each defendant’s culpability and individual causation must be proven beyond a reasonable doubt based on hard evidence, not the statistical probabilities that climate attribution models purport to provide.
Nullum crimen sine lege, a Latin phrase meaning “no crime without law,” known today as the Rule of Legality,80 is a foundational concept of criminal law.81 At its core, it means that a person should not be punished for an act unless there is a pre-existing law that made it clear that doing that act could subject someone to criminal prosecution and potential punishment.82 The Supreme Court has emphasized this time and again. As quoted above, in order to pass constitutional muster, criminal laws must be expressed “in terms ordinary persons can comprehend.”83 This foundational principle is further supported by the rule of lenity, which demands that, when courts interpret ambiguous terms in a criminal statute, those ambiguities must be construed in favor of the defendant,84 and the void-for-vagueness doctrine, which provides that a statute that is insolubly ambiguous to a person “of ordinary intelligence” cannot form the basis for a criminal charge.85 With rare exceptions such as the 2010 Deepwater Horizon oil spill,86 applying murder or manslaughter statutes or ecocide theories of criminal liability to energy producers or greenhouse gas emitters would lack the requisite specificity.
Take, for example, the model statute that Stop Ecocide International’s panel of experts proposed, which defined ecocide as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage being caused by those acts.” The terms “substantial likelihood,” “severe,” “widespread,” and “long-term” are themselves ambiguous, raise threshold questions (when does something become substantially likely and what counts as damage that is severe, widespread, or long-term?), and can be difficult to tie down in terms of proving at trial or providing adequate notice to individuals ex ante that the conduct they are contemplating would constitute a crime. And “damage” to what? Trees? Grass? How wide is “widespread? Longer than a football field or some other arbitrary distance, such as 1 mile, 5 miles, or 10? How long must something last to be “long-term”? Longer than the three years that it takes to complete law school? The four (or five) years that it takes to finish college? The 14-17 years that it takes to become a neurosurgeon? The Jurassic Period? Some other (again) arbitrary period? And should there be 51 different definitions—one for the federal government and one for each state?
While it is possible that the use of these terms in a statute might survive a due process challenge, it is hard to fathom how requiring proof of wantonness, defined as “with reckless disregard for damages which would be clearly excessive in relation to the social and economic benefits anticipated,” could survive such a challenge, especially when it comes to energy producers and greenhouse gas emitters. After all, it is undisputed that humans benefit, both socially and economically, from energy production and greenhouse gas emissions, even though such acts can harm the environment. It is also indisputable that environmental harm in the energy space usually comes from the cumulative efforts of billions of individuals and entities, both large and small, acting independently over a considerable period of time in which any harm may only become clear in hindsight, if then. How are particular energy producers or greenhouse gas emitters to know ex ante whether any damage they might cause (or, more likely, contribute to) “would be clearly excessive in relation to the social and economic benefits anticipated”? How could a judge or lay jury possibly make such a determination, one that is, essentially, a scientific or legislative line-drawing judgment? Would the cost-benefit calculus be the same in remote rural areas as it is in high-density urban areas? What if the accused murderer complied with all applicable regulations and industry standards? Would that immunize someone from liability? If not, should a judge or jury take that into consideration when determining guilt or innocence? Could the government officials who issued permits or set inadequate standards be indicted as co-conspirators, perhaps for felony murder (setting aside the qualified and sovereign immunity questions)?
Myriad activities that we engage in and rely upon every day impact the environment—manufacturing and then driving automobiles, digging up rare earth minerals to use in computers and laptops, building sewer systems, constructing and powering office buildings, the list is endless. Some of these activities may do extensive damage to the environment, yet yield considerable economic and social benefits and be environmentally superior to currently existing alternatives.
It is often said that criminal law is a blunt instrument, with many potential, perhaps unintended, deleterious side effects. Coming up with sensible environmental regulations that consider appropriate trade-offs on issues of this complexity is difficult enough, especially as circumstances change and technology develops. Regulations, at least, are flexible and can be debated and adjusted far more easily than criminal statutes can be. Regulations and permitting processes can also list specifically prohibited activities that provide the requisite notice to support a criminal prosecution if violated. But convicting someone of murder or manslaughter—with the attendant loss of liberty, not to mention significant reputational and financial harm—without direct causation or any clear standards governing the allegedly culpable conduct? As former President Joe Biden used to say, “C’mon man!”87
One can argue, as environmental activists do, that existing environmental regulations and remedies are inadequate, that so-called climate change deniers are egregiously wrong or even charlatans, and that the results of inaction may soon prove irreversible and catastrophic. One can also argue that those individuals and entities who produce energy resulting in greenhouse gas emissions are engaged in a classic tragedy of the commons on a worldwide scale.88 Criminal prosecutions, however, whether for murder, manslaughter, or ecocide, require that guilt be established beyond a reasonable doubt against a specific defendant, acting with the requisite mens rea or guilty mental state,89 engaged in specific conduct that directly and foreseeably killed others. Each of these elements are ill-suited to harm that is caused by multiple actors operating independently over months, years, or possibly decades.
Any criminal prosecution under such circumstances would be inconsistent, arbitrary, and likely highly politicized, the equivalent of Justice Potter Stewart’s famous (but utterly useless) “I know it when I see it” test for obscenity prosecutions.90 But of course, that’s the point. However unfair this might be and however much damage it would do to the rule of law, environmentalists are counting on this uncertainty and risk-aversion in the face of such a threat to publicly shame those who are prosecuted, raise the public profile and change the public’s perception of their cause, chill future energy development and production, deter others from entering the field, and bankrupt firms that currently engage in that activity, all longstanding goals that regulation and civil litigation have failed to achieve to their satisfaction and likely never would.
Environmental activists may be disappointed, if not outright despondent, that their climate change message of cataclysms to come has not produced the desired response. But pursuing murder or manslaughter prosecutions against energy company executives for their connection to a highly regulated industry that brings undeniable benefits to mankind, albeit at a cost to the environment, would violate fundamental principles of criminal law. Hard and frustrating though it may be, such activists should direct their appeals to members of Congress, regulators, and the general public, not criminal prosecutors.
John G. Malcolm is the Vice President of the Edwin Meese III Institute for the Rule of Law at Advancing American Freedom