While Braman agrees it would be difficult to take on as a prosecutor, he said that could change as more young people move into positions of influence.
“As the catastrophes escalate and as young people who face their entire future in an environment dominated by increasing climate harms, [and] start to join the jury pool, start to become prosecutors, start to become judges and start to become shareholders, I think that the writing’s on the wall,” Braman said, “and I hope that everybody, including everyone inside fossil fuel companies, starts to pay attention to that.”
But Weber said prosecutors would still have to convince a judge or jury to convict beyond a reasonable doubt.
Fossil fuel companies have permits to conduct their business, essentially government permission to do what they are doing, another way for the company to defend itself in court.
If the companies are charged and convicted of risking or causing a catastrophe, the fines are in the range of $15,000 to $25,000 per count, Weber said.
“Is that going to deter a multimillion dollar company? Is that going to interfere with the operation of their business and the money that they’re making? I don’t think so,” Weber said. “I mean, did Energy Transfer go out of business by that criminal prosecution?”
“Maybe you put the CEO in jail,” Weber said. “And do you think that the other fossil fuel companies are going to say, ‘That guy went to jail, so we shouldn’t do what we’re doing anymore’? No, they’re going to do what drug dealers do. Drug dealers say, ‘Well, that guy got caught for drug dealing because he’s stupid. We’re not stupid.’”
‘Win by losing’
Environmental attorney Rich Raiders said there are a lot of questions with the strategy, but says the article does serve an important purpose.
“The idea behind these articles isn’t necessarily to come to an answer, but to get people to start thinking about how to address a question. And in that respect, it does that and it does it well,” Raiders said.
Raiders represented homeowners who sued Energy Transfer over the Mariner East pipeline construction. He said a case like this would be a battle of the experts, but there are fundamental questions the article does not address about whether the charges would stick.
“What do you have to show responsible for climate change to meet the definition of a catastrophe?” Raiders said. “What is that level of threshold that you have to show before you can write a complaint that actually can survive objections? And how do you prove that it was the fossil fuel emissions caused by the marketing aspects of these companies to get you far enough that you can meet this definition? We don’t know.”
Raiders said the goal of this type of prosecution could be to get a large settlement, similar to what happened with the tobacco companies settlement or a previously proposed Sackler family settlement over opioids.
In that case, it makes sense to bring a case where you “win by losing.”
“And maybe that’s what a case like this does. It’s not necessarily to win the case, but it’s to move the needle,” Raiders said.
For example, he said it could get the legislature to take action. But it also requires someone willing to lose.
“I think this is an interesting discussion in the long term for how to get people to think about the problem,” Raiders said. “And as a thought piece it does have some merit. But will you see something like that filed in the next 12 months? No, not anytime soon.”
Braman, one of the co-authors of the piece, is more optimistic.
“We desperately need some kind of solution that will allow the public to hold these massive corporate criminal actors accountable and have them really address the harms that they’re generating,” he said.
