Last summer, an unusually long and brutal heat wave killed hundreds of people in Maricopa County, Ariz. — "far more than all the murders the county experienced that year," former federal prosecutor Cindy Cho wrote on Wednesday.
These deaths ranged from homeless to wealthy; elderly people at home to a 31-year old engineer who died on a hike. And while tragic, Cho argued that these deaths were not accidental, but the result of reckless action by a clear perpetrator: The fossil fuel industry.
The memo, which Cho prepared for civil society group Public Citizen, comes on the heels of a push by Congressional Democrats for federal prosecution of oil companies for alleged price fixing and what Democrats view as their role in covering up the climate crisis — something that one former federal prosecutor told Congress was analogous to criminal racketeering by the tobacco industry.
But whatever decision federal prosecutors make, Cho argued, local prosecutors like those in Maricopa County — home of Phoenix — have their own clear pathway for prosecution.
Cho, a former Assistant U.S Attorney and anti-organized crime prosecutor who now teaches law at the University of Indiana, framed her case on Wednesday in the form of a prosecution memo — a legal document that prosecutor's offices prepare to weigh the strength of a potential case.
Cho's conclusion: Fossil fuel companies' role in climate pollution, and their leaders' role in allegedly "deceiving the public about the dangers of those emissions," open the companies up to charges of second-degree murder, or reckless manslaughter.
The memo focuses on "eight of the world's largest investor-owned fossil fuel companies, and a national oil and gas trade association."
- Each of these, Cho argued, "are collectively responsible for a substantial portion of all global greenhouse gas emissions and that actively participated in a conspiracy to spread climate disinformation."
- That charge of reckless manslaughter hangs on a legal test: Whether the defendant had a "culpable mental state," or acted with full knowledge of the damage their behavior could cause.
The companies, Cho argued, met this standard by corporate policies that combined two parallel strategies: Publicly downplaying the risks of fossil fuels, and lobbying to expand their use — while quietly hardening their own operations against rising heat and more vicious storms.
Oil companies, Cho conceded, have well-worn arguments against culpability: They provided the oil, rather than burning it; that they did not provide the majority of the globe's oil; and that it is impossible to attribute any specific disaster to any companies' specific products.
But these arguments, Cho argued, aren't enough to protect them.
In terms of emissions, the eight biggest fossil companies provided about 1 in every 6 barrels of oil that have been burned — a use to which she argued those companies knew they would be put. When their joint ventures with other oil companies are added in, that number reaches nearly half of all fossil fuel emissions over time.
Cho also acknowledged that fossil fuel companies might argue that "the disinformation they spread and continue to spread did not materially contribute to global warming."
But she argued that prosecutors can point to "substantial evidence" that the companies sought to change public opinion on fossil fuels in a way that kept the fire burning.
- In 1991, an industry memo found that 60 percent of Americans believed global warming was a serious problem, and argued that "our industry cannot sit on the sidelines in this debate."
- By 2007, on the eve of the fracking boom, she noted, that number had fallen to 40 percent. That "regression in the public's understanding of climate science has had major consequences for our transition away from fossil fuels," Cho wrote, "and, therefore, FFCs' continued profitability."
As well, she argued, as their culpability — the deaths in Arizona, as well as similar cases of climate-induced deaths elsewhere.
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