Climate change is not just about building seawalls, managing forests, and putting houses on posts. It’s also about loss of life and property on a World War scale. The World Health Organization (WHO) estimates climate change will cause an additional quarter of a million deaths per year between 2030 and 2050.
While mitigation of climate damage and minimization of loss of life from climate events is clearly necessary, it’s important to understand that massive loss of life and property from climate change cannot be altogether avoided through “resiliency” strategies. As reported in a recent NY Times article, climate change will cause:
[W]idespread food shortages, wildfires, coastal flooding and population displacement . . . [as early as] 2030.
That’s in just over ten years. We are already experiencing increases in fire and flooding, measured in multiples rather than percentages, causing population displacement. The scale of destruction will soon be that of a global war. A quarter of a million casualties per year is at the level of history’s largest genocides. The article further notes:
Led in large part by China, the United States and India, the world will release a record 37.1 gigatons of planet-warming emissions in 2018
In the scientific community, there is no debate about the existence of man made climate change, whether it is dangerous for the planet, and most importantly, whether humans must take immediate and large scale corrective action.
Nevertheless, there are important actors in government, in the media, and in fossil fuel funded “think tanks” who continue to pump out misinformation about climate change in order to to convince the public it doesn’t exist and poses no threat. A must read for anyone seeking a full understanding of the history of climate change politics is Nathaniel Rich’s excellent NY Times narrative, Losing Earth: The Decade We Almost Stopped Climate Change. In it, he details the decade between 1979 and 1989 when scientists raised the alarms about climate change spurring an honest bipartisan effort, ultimately to be buried in a campaign of deceit and cover-up.
However, many of these purveyors of misinformation are not merely exhibiting a genuine disbelief in the science of climate change. Rather, they intentionally deceive the public. The evidence of intent? There is no reasonable basis for the assertions they make. Additionally, many of these professional climate deniers are in positions that give them greater access to the facts and science of climate change. Exxon and Shell’s own scientists were among the first to sound the alarm about climate change, as detailed in Rich’s ‘Lost Decade’ article. Only later did Exxon begin its cover up, as detailed in the 2015 InsideClimate News series. Now, when professional deniers make assertions contrary to the conclusions of well over 95% of the scientific community, it’s not reasonable. Nor is it genuine.
In some instances, climate deniers in positions of authority use their power to squelch even discussion or analysis. Such was the case with Florida Governor Rick Scott’s administration in 2011. As reported in the Miami Herald,
[Florida environmental] officials have been ordered not to use the term “climate change” or “global warming” in any official communications, emails, or reports, according to former DEP employees, consultants, volunteers and records obtained by the Florida Center for Investigative Reporting.
Florida is a state that will be severely and directly impacted by rising sea levels because much of the state sits only 3 – 6 feet above sea level or is swamp or reclaimed swamp. As also reported in the Miami Herald, nearly the entire southern 1/3 of the state – including its populous “Gold Coast” ( Miami, Ft. Lauderdale and West Palm Beach) – will be submerged by only a few feet of sea level rise, which may happen between 2050 and 2100. Most climate predictions thus far have underestimated the rate of change. Accordingly, the Governor’s actions in censoring even the mention of climate change to prevent the topic gaining legitimacy and public awareness seems close to an actionable breach of the duties of his office. It is the deceit about the impacts of producing greenhouse gasses, more than the production of gasses itself, that resonates as morally and legally wrong.
Moreover, even if only 25% (rather than the actual >95%) of the scientific community predicted dire consequences from climate change, no reasonably responsible person would advocate ignoring a one-in-four chance of disaster. If a family learns that that there is a one-in-four chance that one or more of them will be killed or seriously injured unless they move, most families would not defy those odds. If we learned that a meteor was approaching the Earth with a one-in-four chance of impact, killing millions of people, we would expend vast sums of money and effort in an attempt to prevent the disaster. Simple logic dictates that at far smaller risks of disaster than exist for climate change (a near certainty), our current national policy would be rejected out of hand. Nevertheless, the industry denial PR campaign not only knowingly promotes false information about the cause and effect of climate change, fossil fuel industry advocates also use the misinformation campaign to oppose all reasonable responses to climate change. Trump’s withdrawal of the U.S. from the Paris Climate Agreement is the most high-profile example.
The intentional deceit is not limited to the message. It also applies to the sources. In a misinformation feedback loop, certain media outlets owned and programmed by billionaire partisans regularly publish articles and op-eds from fossil fuel industry funded “think tanks.” These foundations operate essentially as public relations firms for fossil fuel and billionaires’ interests. They exhibit little tolerance for little intellectual independence. Yet they are intentionally disguised as independent “think tanks” in order to create the appearance of having a factual basis to dispute scientific studies and university scholarship. George Monbiot of the Guardian has written extensively on the topic.
This behavior and its consequences satisfies the fundamental elements of the type of conduct to which most societies attach criminal liability. For example criminal fraud is generally defined as intentional deceit in order to secure an unlawful gain or to cause a detrimental reliance. Here, the deceit is present, the knowledge of falsity is present, the securing of a financial advantage is present, and the detriment to life and property is present.
As the damage from climate change is felt by a broader portion of the population, it not hard to imagine pubic sentiment demanding accountability. In fact, criminal liability has been discussed. In a 2007 the Center for Global Development published an opinion piece, entitled: Beyond a Reasonable Doubt: Climate Change and Criminal Liability. It concluded with the statement:
The writing on the wall is clear: In February, 2007 the world’s climate scientists, speaking through the IPCC, elevated the likelihood of human-induced climate change to over 90% — the prevailing standard for guilt “beyond a reasonable doubt” in US courts. Sooner or later, international or national tort law will respond to this finding.
The principal impediments to criminal prosecution for the climate change cover up are the lack of a specific applicable statute or treaty, the First Amendment, and statutes of limitation. On the international level, because climate change deaths are not the result of targeting a specific ethnic, religious, national, or racial group, it likely will not fit the definition of “genocide” under United Nations General Assembly Resolution 260 adopted in 1948. On the other hand, in the U.S., the statutes of limitation ‘clocks’ for many crimes do not begin to run until the date of discovery of the criminal act. Additionally, when the root crime is difficult to charge or prove, prosecutors have sometimes been able to pursue charges under conspiracy or racketeering laws based on participation or a pattern. These laws, such as the Racketeer Influenced and Corrupt Organizations Act (RICO), have been used successfully against organized crime and white collar crime. Under current laws, the act of knowingly distributing false information in the form of opinions about climate change in exchange for financial remuneration, itself, is probably not enough to prosecute as a crime. However, higher up the chain of orchestration, coupled with other acts of concealment, the totality of the conduct may be vulnerable to running afoul of even current laws or statutes (e.g., environmental or securities laws), particularly under a RICO or conspiracy theory of prosecution.
In a 2012 article in an academic journal, William C. Tucker, an Assistant Regional Counsel of the Environmental Protection Agency (EPA), engaged in a detailed analysis of the issue of criminal liability for climate denial activity. He argued that criminal exposure does exist. In particular, Tucker examined criminal exposure in a RICO context under two underlying criminal statutes: Mail and wire fraud under 18 U.S.C. §§ 1341 and 1343.1 and Conspiracy to defraud the United States under 18 U.S.C. §371. He eloquently characterized the conduct of the deniers as follows:
The denial campaign is designed for one purpose alone: to deceive. Its purpose is to prevent government regulation of CO2 emissions by creating out of whole cloth a monumental illusion: that a controversy exists among climatologists about the basic facts, as well as the climate implications, of global warming. To create the impression in the public mind of such a controversy, the denial campaign deliberately set out to create a vast artificial edifice, a Hollywood set of false facades and roads leading nowhere complete with lab-coated actors mouthing carefully tested and scripted messages. The purpose is to hide from the public the dangers of the conspirators’ principal product, fossil fuels, by creating a soothing alternate reality to cast doubt upon the looming threat of global environmental catastrophe predicted by mainstream climate science. It is fundamentally deceptive in purpose, conception and execution.
He concluded that there is potential criminal exposure for some of those involved. The First Amendment does not protect fraudulent speech. However, he notes that there may be an escape outlet via a well documented withdrawal from denial conspiracy, so that, if nothing else, the statute of limitations might begin to run. Rather than viewing such an escape outlet as a loophole to be closed, he encourages denier individuals and corporations to avail themselves of this escape now in the hopes defections will turn the tide on the climate denial fraud.
If criminal prosecutions are undertaken, they are likely to take place when public sentiment has changed and passions have increased due to the impacts of climate change. When conduct sufficiently shocks the public conscience, prosecutions flirt with retroactivity and creativity. An interesting and in depth critique of the Nuremberg Trial charges can be found in this 1946 Atlantic Magazine article by Judge Charles E. Wyzanski, Nuremberg: A Fair Trial? A Dangerous Precedent.
Civil liability for tortious actions (i.e. monetary judgments rather than criminal sentences) can have definitions similar to their criminal counterparts but with far lesser burdens of proof (more likely than not, i.e., 51% likely – rather than beyond a reasonable doubt sometimes pegged at 90%). Additionally, RICO can be used to pursue civil liability as well as criminal convictions. There are already pending civil lawsuits over climate change liability. Fraud allegations against Exxon is central to some of them. The major differences between civil and criminal liability is the degree of proof and, in some but not all, negligent vs. intentional or reckless conduct. Whatever successes climate change defendants may experience in court in the short term are more likely to come from technical defenses rather than the fundamentals of tortious or criminal behavior. However, as noted, such victories will decrease in number as public sentiment changes and legislation adjusts criminal statutes to more clearly cover climate crimes.
The current administration has prioritized partisan loyalty over scholarship in its selection and nomination of justices for the Supreme Court and other courts. Perhaps this endeavor is a preemptive effort by those who would be vulnerable to calls for accountability, rather than simply the yearning for justices focused on “originalism” and “religious freedom.” The pool of prospective nominees is exceedingly limited and exclusive. For example, Trump Supreme Court nominees Neil Gorsuch and Brett Kavanaugh both went to the same elite prep school (Georgetown Preparatory School with enrollment of only 390 students) and both have strong partisan political pedigree (Gorsuch’s mother was Reagan’s controversial EPA chief and Kavanaugh was in the George W. Bush administration). What are the chances of selection from such a small pool in a country of 300 million if their selection was based primarily on conservative legal scholarship and merit?
In summation, certain individuals are intentionally sabotaging efforts to prevent a climate disaster with full knowledge of the consequences. They do so with a campaign of deceit and they are motivated by profit. This profit will come at the expense of millions of human lives. The sooner we talk about accountability, the sooner we will start taking meaningful action to avoid the worst consequences of the impending, and now unavoidable (but still reduce-able), climate disaster.