Public Citizen: Prosecutors have strong case against fossil fuel companies for extreme heat deaths

An interview with Aaron Regunberg about criminally prosecuting those who profit from climate death and destruction.

Last week Public Citizen released a “preliminary prosecution memo” to assess potential criminal charges that local or state prosecutors could bring against major fossil fuel companies for lives lost in a climate disaster. Founded in 1971, Public Citizen is a nonprofit consumer advocacy organization that “champions the public interest in the halls of power.”

What Public Citizen is trying to do with their preliminary prosecution memo is lay out a pathway that prosecutors across the country can use to criminally charge fossil fuel companies for conduct that has led to property damage, injury, and death.

“In this prosecution memo, we analyze a specific climate disaster – the July 2023 heat wave that killed hundreds of people in Maricopa County last year – to assess whether prosecutors could prove each element of the crimes of reckless manslaughter or second-degree murder about those deaths. We also analyze Big Oil's likely defense arguments,” writes one of the memos’ authors, Rhode Island resident Aaron Regunberg.

“Our conclusion,” continues Regunberg, “and this isn't just Public Citizen making this conclusion, it's also a practitioner [Cindy Cho] who spent her career doing these kinds of complex prosecutions – is that prosecutors could build a case that would reasonably convince a grand jury and ultimately a trial jury that Big Oil recklessly caused many of the deaths during the July 2023 heat wave. (And though our memo focuses on one particular climate disaster, its analysis applies similarly in practically any jurisdiction that has experienced climate-related deaths.)”

I interviewed Aaron on his porch. The text has been edited for clarity.

Steve Ahlquist: I'm here to talk to you about Public Citizen and the work you're doing there. So can you give me a quick introduction to it?

Aaron Regunberg: Public Citizen has been working with a growing network of former prosecutors, criminal law professors, and other experts to think through the potential of holding big oil, not just legally accountable, but criminally accountable for their role in causing the climate crisis and causing all the harms and injuries and deaths that come from it.

We are at a do-or-die climate moment, right? The World Meteorological Organization last year certified that we were 1.45 degrees Celsius above pre-industrial levels. Globally, we've been over 1.5 degrees for most of this year. We're in a moment that human civilization has never experienced before and did not evolve to face. When facing an existential threat, we think we need to explore every possible tool to protect people from climate harm and hold the actors responsible for it accountable.

Criminal law has thus far not been a big part of the equation. We think that's worth changing because big oil engaged in conduct - both in generating a substantial portion of the greenhouse gases that humanity has generated that have caused climate change and in leading a campaign of deception to keep us hooked on fossil fuels. That conduct was not just morally reprehensible and wrong, it's violative of a bunch of criminal statutes. As progressives, we often think of our criminal legal system as a thing we have to fight against because of all the ways that it is disproportionately turned against poor people and people of color. But to our thinking the ostensible purpose of this system is to keep communities safe and to protect us from dangerous actors that would do us harm. So there's value in putting the question out there: What if we use this system to keep us safe, to protect us from the dangerous corporate actors that are harming - right now - at an almost incomprehensible scale? We think there's a very good case to be made.

Steve Ahlquist: I like the theory. My doubt, if that's the word for it, is that the criminal justice system isn't tailored to go after white-collar crime. Occasionally it does that, usually under extraordinary pressure. I would love it if the police could go in and arrest a restaurant owner who steals money from his employees the same way they might arrest an employee who steals from the restaurant owner, but we just don't do that. There's an imbalance that's always been there. It's been cooked into the system. How do we break that through? How do we convince a prosecutor in any state to do this work?

Aaron Regunberg: We constantly grapple with that concern. It's a parallel concern to the same one we have about every institution in our government that it is often captured by the powerful and used in ways that are not helping regular people. One response is saying, “I am against the concept of a state” and another is saying, “Let's try to take it over and use this for the good it could do.”

We haven't done that in criminal justice reform. Criminal justice reform in progressive circles has largely been about how do we do less because so much of what has been done by the criminal legal system has been bad, but it's worth shifting that conversation - to see where we can do more. Folks are pushing for more work on economic justice - to use the criminal legal system to go after wage theft and things like that.

We should be doing the same thing on climate. You talked about what could make that happen. The short answer is we don't know because we haven't accomplished it yet. We are facing a moment where systems are coming under incredible strain. We just put out this report, working with a former federal career DOJ prosecutor [Cindy Cho] looking at one particular climate-caused disaster - the extreme heat wave that struck the southwestern United States in 2023. We looked at one jurisdiction in the Phoenix area, Maricopa County, which is right now experiencing the same thing as last year. We're going to be experiencing it throughout the summer and we're experiencing it every year. People are understanding that hundreds of people are dying every day in our communities. There are good prosecutors, there are folks who were elected and genuinely want and believe in the idea of public safety -trying to protect communities from harm.

So we're making the case to prosecutors that part of their job is to think about climate harm. That part of public safety is dealing with this crisis that killed more people in your community than street-level homicides. “How many resources do you put into that enforcement? What if we put some into this?” I don't think that's a crazy argument and the response we've been getting from some DA offices and regions around the country leads me to think that it's not so crazy.

Another big point of this report was to break it down in the language that a prosecutor understands. We formatted this report as a prosecution memo, which is the exercise that any District Attorney or other prosecutor goes through to decide whether there's a case worth pursuing and whether there's enough evidence to sustain an indictment and, ultimately, a prosecution.

We're working with someone who's done this her whole professional life, including complex corporate prosecutions, white-collar crimes, and organized crime. Looking at the evidence, not talking in hypotheticals or theory, but breaking down and showing the offenses. We looked at two offenses - reckless manslaughter and second-degree murder. What are the elements of those offenses? You need to prove beyond a reasonable doubt that someone caused a death and that they did so through reckless conduct, which means basically that they knew there was a substantial risk, that their conduct would hurt someone, and they did it anyway. For second-degree murder, we need to show that they acted with extreme indifference to human life.

We looked at the evidence for both of those elements, and we think that there's enough evidence for a prosecutor to build a case. I can go into that case in the argument.

Seeing what Alvin Bragg did in Manhattan against Donald Trump. Trump has avoided accountability his whole life and has always been able to use his power and connections - particularly now that his power has grown so much - to weasel out of facing consequences for his criminal and damaging conduct.

Bragg saw the way that a criminal prosecution can cut through a lot of the systems that protect the rich and powerful. He put this question to a group of 12 regular people who were tasked with making a common-sense decision as to whether Trump should be legally responsible. That is a format that has a lot of potential for us. It's not to say that spin and all that other stuff doesn't operate in a courtroom. But it's a lot easier for a giant corporation to have a whole campaign to change how people think in the world than in the context of a court where there are guardrails around what is and is not fact. These guardrails constrained Trump - the ultimate master at getting around those things. We saw that as a demonstration that this idea could work.

Steve Ahlquist: Have we done anything like this in the past? We talk about going after the tobacco companies, but that's done through lawsuits. I understand the monetary cases we can build against big oil, but you're talking about criminal liability, which is different. And what happens if we win? We can't put an oil company in jail. What is the penalty?

Aaron Regunberg: Remedies are an important part of this, and we can have a conversation about going after individual executives. That's not our focus for a couple of reasons.

When you go after corporations, it creates opportunities to construct creative remedies that can get at some of the structural problems. That can happen in the context of a criminal settlement when a company thinks, “Oh God, the stakes here are too severe if we are convicted, so we will agree.”

One example of that is the Department of Justice's criminal settlement with Purdue Pharma, which included a plan to restructure the company as a public benefit corporation explicitly focused, in its charter, on dealing with the harms of its actions and investing in public health.

That's one vision. We could have a case that's so significant that you could get a company to say, “We're going to put in our charter that we need to focus on the clean energy transition.” There are a lot of other things you can envision. You can envision a court order, an injunction, against future exploration of fossil fuels that add to this criminal conduct. You can imagine warning signs or apologies at the point of sale for fossil fuel products. You can envision the same sort of cash damages from a civil suit - many states have criminal restitution statutes. The payments would see cities and states getting money from fossil fuel companies to do all the resiliency stuff they need to do. That money could also be going directly to the victims.

You asked, has this happened before? There's a long history of corporate prosecutions, including for crimes like homicide, and I've mostly been talking about homicide. To be clear, there are several criminal offenses they've arguably violated. There's reckless endangerment, criminal destruction of property, conspiracy racketeering, antitrust, and many other things. Homicide is the most severe crime so we spent a lot of time talking about it.

Steve Ahlquist: Racketeering sounds promising.

Aaron Regunberg: Absolutely. The Pacific Gas and Electric Company (PG&E) case in California is instructive. The utility pled guilty to a bunch of manslaughter charges a couple of years ago for its role in the Paradise Fire in California that killed 80 or so folks. That charge was based on their negligence in infrastructure upkeep that produced the spark that started the fire. That fire happened in November. Usually, in that part of California, there would've been rain for months but that year, because of climate change, there hadn't been, and everything was tinder. Without that, that spark would not have created a fire. Take one step back and who should be responsible? Is it Exxon? Chevron?

Steve Ahlquist: These companies could theoretically be prosecuted for the same deaths under this theory.

Aaron Regunberg: Yeah.

Steve Ahlquist: That's interesting. The case study in your release talks about Arizona and last year's heat wave. What has happened in Rhode Island that would allow for a similar kind of prosecution? Is there an event or series of events here?

Aaron Regunberg: The goal of the report was to take a real-world scenario and do the analysis to see how it applies, but this analysis should apply to any jurisdiction that experiences deaths from climate-related disasters. In Rhode Island we've been relatively lucky - we haven't had a lot of the experiences that other places have had.

You need to make a causal argument and have it pretty clear. I am not pretending to know all the details for a potential claim. But we've experienced hurricanes and storms.

Steve Ahlquist: And the flooding...

Aaron Regunberg: I would argue to the Attorney General that even in a place like Rhode Island that has not yet experienced a devastating climate disaster as so many places have, we're probably not going to be immune from that for that long. Whether it's next year, three years, or five years, we're probably going to experience something, so it's worth building the foundation to do that work now. When a hurricane hits us straight on, like it did in New York, or when we have a heat wave like the one that hit Portland, Oregon in 2021 and killed hundreds of people, we should be ready.

Steve Ahlquist: Right now we are planning for sea level rise. We're going to lose a whole bunch of Newport real estate unless we start building dams or whatever. The attack on us, in terms of rising sea levels, is enough to say this is property damage and that would not be happening if it were not for climate change. Could we bring a charge of criminal negligence in a case like that? Or do we have to wait until damages happen?

Aaron Regunberg: I need to look up the specific laws in Rhode Island because it's different by jurisdiction. We're doing surveys of all 50 states...

Steve Ahlquist: That's time-consuming.

Aaron Regunberg: If you and I took crowbars and went to Newport and started bashing houses and caused even a fraction of the damage that we're already seeing from sea level rise, I don't think it would take that long for us to be not just sued civilly, but indicted by law enforcement. The same sort of causality and reckless mental state is what we laid out in our homicide memo.

I mentioned reckless endangerment statutes. Most states have some version of a reckless endangerment statute. The law is that if you engage in reckless conduct that creates a substantial risk of injury or death, you've committed that crime whether or not injury or death results.

We think it is a very easy case because the hardest thing to do here is show causation. We have a strong argument for causation, which maybe I should summarize, but there are offenses where you get around that completely.

Briefly, to summarize the basic argument in our prosecution memo: I mentioned two elements. There's the cause and there's the reckless mental state. On the first one, the argument is that fossil fuel companies, by generating a substantial portion of fossil fuels, have caused climate change. We have source attribution research where folks can say, “Exxon is responsible for X percent of all of that. Chevron is responsible for X percent of all of that.” You can add that up and say, “That is a substantial cause.”

And that's not the only cause, because they also engaged in climate deception. For decades, fossil fuel companies worked to keep us from transitioning away from fossil fuels. Exxon was a global leader in this. There's a lot of social science research showing how that has impacted public opinion and how that has impacted public action. Taken together, it's fair to say that Exxon's emissions and their fraudulent disinformation were a substantial factor in causing climate change, and there's climate attribution research that can show that particular events were caused by climate change. For the heat wave, the report is focused on, studies are saying that would have been virtually impossible but for human-caused climate change. That's the causation part.

Then there's the mental state part. Often in a criminal prosecution, that's the hard part because it is hard to show what someone was thinking or what someone knew. In this case, we have piles of evidence - internal reports from these companies - starting in the 1950s and continuing through now showing that they knew exactly what was going to happen. They were correctly predicting, to the 10th of a percent, the heating and consequences we'd have.

In their own words, they talk about globally catastrophic climate consequences. They talk about New York being submerged. They talk about excess heat due to thermal extremes. That shows that they at the very least acted recklessly and knew there was a risk that their conduct would lead to this - and they went ahead and did it anyway. Maybe you could show that they acted with extreme indifference to human life, which is enough for a murder conviction.

This will come down to a jury of 12 regular people. It's about the story a prosecutor and the defense can tell. Fossil fuel companies will be scared of these cases if it starts to look like they could be filed. The story that people will read about these companies is that they knew this was going to happen, and they wanted to keep making money.

These companies could still have been hugely profitable engaging in clean energy. Lots of people are making lots of money from clean energy. But it's not quite as profitable. There's a quote from Chevron's CEO in a recent interview where he is asked “Why aren't you guys doing wind turbines?” And he replies that if you look at the returns for that, and they're usually in the single digits, and Chevron's returns are in the double digits, so it doesn't make any sense. They decided to condemn my son, your granddaughter, and humanity to the disasters that we're seeing that are killing people - because they wanted more obscene wealth. It is hard for me to wrap my head around, but it is a story that a jury is not going to have too much trouble latching onto. That should make fossil fuel executives very nervous when local district attorneys start moving forward and launching criminal investigations.

Steve Ahlquist: The courts, especially the Supreme Court, appear to be captured by right-wing interests. If a case like this were to go to the Supreme Court and the court ruled against it, this might be dead in the water. H to do this. I don't know. But how does that play into your calculation here?

Aaron Regunberg: One of the reasons I am most excited about and committed to this idea is because criminal law is the area where the federal court stepping in is the most unheard of and the hardest to do. The caveat here is that the Supreme Court has made it clear that the law doesn't matter and they will do anything. But having said that, criminal law is traditionally the purview of states and municipalities. Criminal law is part of police power, which we leave to the states. We have looked for any single case of the federal court preempting a criminal law like homicide at the state level [and we haven't found it.]

This is an area where it is and should be state and local courts that make the decision. If federal courts could step in, they could create new laws to do whatever they want. But if it happens, it's because they have reached way out on a limb to create brand new laws to justify it.

Steve Ahlquist: What's the next step here? You have this report out, you've laid it out and you noted there was some possible interest.

Aaron Regunberg: There are prosecutor's offices around the country expressing serious interest in this. We will continue this work and continue the research to support folks who are interested in thinking this through. I have to be careful about what I say about what offices might be engaging in.

I think it would be great if folks in the Rhode Island Attorney General's office were thinking about this because Rhode Island faces a lot of climate threats, and the Attorney General is the ultimate criminal law enforcement official for the state. We are not immune to the kind of disasters that this report looked into.

Steve Ahlquist: Though Attorney General Peter Neronha and I have differences, one place that we seem unified on is climate change. He was a big proponent of the Act on Climate.

Aaron Regunberg: I couldn't agree more about his sincere, genuine commitment to climate action here and not for nothing, Rhode Island was the first state to file a civil climate accountability suit, Rhode Island v Chevron, way back in 2017. We can lead on this front as well and I think it's worth considering.

Steve Ahlquist: One last thing. Rich people have more class solidarity than poor people, in my opinion. The criminal prosecution of fossil fuel companies opens the possibility of prosecuting other companies for other crimes. As a result, there's the possibility that the Chambers of Commerce or the Rhode Island Public Expenditures Council (RIPEC) will exert political pressure to oppose this. “Let's keep the law focused squarely on the poor, and middle class, not so much on us.” And honestly, that's the way it's always been, and that's the way the rich and powerful want it to continue. So that worries me as well. There is civil law for the rich, and criminal law for the rest of us.

Aaron Regunberg: This idea goes right to the core of corporate power, and we know just how formidable that power is in this country. We don't want to understate the challenges. Is there an interest and capacity among the movement? Are there resources to do this? This is an open question, but if the Masters of the Universe class is going to organize against this stuff, the answer has to be organizing for it. Most prosecutors are elected, they have constituents to answer to, and climate accountability is popular. It's even popular among Republicans. The idea is that polluters should pay for what they did versus you paying for it. For folks who haven't had their minds rotted out by Fox News and propaganda, it makes sense.

In a community that has just been hit by a horrific climate disaster, which is probably where this is going to be if a prosecution like this happens, it's going to be there first, I think there could be a lot of demand from elected constituents for a prosecutor to do this. When you talk about potential jury pools, a jury pool from a community that just experienced this, where everyone has a cousin who lost their home, that's going to be a jury pool that can potentially be very sympathetic to the argument. So while I agree with you about the challenges, that's the case with everything we do in climate, right? We don't have a great shot, but we have to do everything we can with the shot we have.

Steve Ahlquist: I think there's a case to be made for the asthma rates in Providence and the conduct of businesses in and around ProvPort. There are businesses there that are contributing to high asthma rates, and we're getting to get more and more data that shows it's about the highway that snakes through the communities. We live near a highway, you and I, and yet 02906 does not have the asthma levels of 02903.

Is there criminal negligence for the toxins these companies know they're releasing? I think the case could be made - against the ProvPort as a whole and the individual companies therein. So that's a possibility. People would benefit from accountability there for their children who are hospitalized and maybe even die.

Aaron Regunberg: It doesn't show up on the recording, but I've been nodding my head in agreement.