New York Officials Consider Criminal Charges Against Big Oil

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Fans of the long-running TV show Law & Order may recall many instances when district attorney Jack McCoy brought criminal charges against malefactors for “depraved indifference.” Not every state recognizes depraved indifference as a crime, but New York does. In broad terms, depraved indifference deals with the state of mind of the person committing the overall offense. The prosecution has to show that the defendant engaged in conduct that creates an extreme risk of death to another person in utter disregard for the value of human life. The defendant must be shown to have exhibited a willingness to act, not because of an intent to cause harm, but because of a total disregard for whether the act would result in harm.

In a case of life imitating art, some in the state of New York are considering criminal charges against Big Oil for its role in fueling hurricanes and other climate disasters, The idea is presented in a prosecution memorandum that has been endorsed by elected officials across the state.

The 50-page document, published by Public Citizen and the progressive prosecutors network Fair and Just Prosecution this week, comes as the states in the southeast of the US struggle to recover from the deadly hurricanes Helene and Milton, both of which scientists have found were exacerbated by the climate crisis. It details the havoc wrought on New York by Hurricane Ida in 2021 and Hurricane Sandy in 2012, and other deadly climate events such as extreme heatwaves across the US this past summer. These disasters were fueled by the climate crisis, which is primarily caused by the burning of fossil fuels. A growing body of evidence shows that Big Oil knew about the climate dangers of its products but promoted them to the public anyway, the authors write. “This conduct was not just amoral,” the memo says. “It was criminal.”

Public Citizen New York Memo

In the executive summary to the memo, Public Citizen says,

The climate crisis, including a rapid escalation in extreme weather events, is causing severe harm to residents of New York. These disasters are in large part the result of reckless conduct undertaken by major fossil fuel companies (“FFCs”) like ExxonMobil, Chevron, Shell, and BP that are responsible for a substantial portion of all the global greenhouse gas emissions that have caused our planet to heat up.

Recent exposés of internal documents show that these FFCs have long understood with shocking accuracy that their fossil fuel products would cause, in their own words, “catastrophic” climate harms that would 1.) “submerge New York,” 2.) do “great irreversible harm to our planet, ”3. ) “cause flooding on much of the U.S. East Coast,” 4. ) “have serious consequences for man’s comfort and survival,” 5.) create “more violent weather –more storms, more droughts, more deluges,” 6.) and cause “suffering and death due to thermal extremes.”

Instead of finding new business models or at least warning the public and government officials, these companies conspired to wage a massive disinformation campaign to prevent regulators, investors, and the public from understanding the risks their products were creating. They have made trillions of dollars from this deception, and the people of New York are paying the price.

This conduct was not just amoral. It was criminal. Public Citizen has previously described how prosecutors could charge FFCs with homicide for deaths caused by climate disasters. Another offense that FFCs could be charged with for substantially generating and fraudulently covering up the climate crisis is reckless endangerment.

In case any readers think the allegations by Public Citizen are overblown, please refer to the latest post by Emily Atkins in her HEATED blog entitled “Big Oil knew monster storms were coming. We have the receipts.” In it, she posts specific documents prepared by the companies’ own staffs beginning in 1979 warning of the very dangers that have now come to pass. It is important reading for anyone who wants to be informed about the actions taken by the fossil fuel industry that totally disregard the consequences. For context, be sure to read our recent story about how BP has pulled back from its promise to reduce emissions from its operations because the money it is making is just too great to risk interrupting the cash cow it has created.

New York Officials Endorse The Memo

New York officials who have endorsed the Public Citizen legal strategy include Brad Hoylman-Sigal, the New York senate judiciary committee chair; Antonio Reynoso, the Brooklyn borough president, the state senator Kristen Gonzalez; Assembly members Emily Gallagher and Jessica González-Rojas; and the New York city council members Sandy Nurse and Carmen De La Rosa. “It is clear that the actions of Big Oil, major fossil fuel companies, and their executives have endangered generations of Americans,” said González in a statement. “Big Oil must be held accountable for their actions, and justice must be won for those who have suffered the devastating impacts of climate-related disasters.”

The Public Citizen memo claims that just a small number of oil and gas companies, controlled by just a few executives, have generated a substantial portion of all planet-heating pollution, while deceiving ordinary people about the dangers of their products in marketing, lobbying and other public-facing communications. Internal documents from those companies demonstrate those companies have long understood “with shocking accuracy” that their products would cause major damage, the report says.

In 1959, the physicist Edward Teller told oil industry leaders that the projected temperature rise associated with the sector’s planned emissions would be devastating for the state. “It has been calculated that a temperature rise corresponding to a 10% increase in carbon dioxide will be sufficient to melt the ice caps and submerge New York,” he said at a symposium organized by the American Petroleum Institute, the country’s top fossil fuel lobby group.

In 1982, an official at Exxon issued an internal report that found the global heating tied to fossil fuel emissions could “cause flooding on much of the US east coast.” Such conduct amounts to reckless endangerment, said Aaron Regunberg, senior policy counsel with Public Citizen’s climate program. “Reckless endangerment occurs when someone engages in reckless conduct that risks injuring or killing another person,” he said. “That’s exactly what these companies and their CEOs have done.”

The proposals in the Public Citizen memo have sparked curiosity from experts and public officials, won broad support from likely US voters in polls, and captured the imaginations of climate advocates. “Big Oil’s behavior is immoral, and it’s high time to recognize it’s also illegal,” said Durwood Zaelke, president of the Institute for Governance & Sustainable Development.

The Arizona Memo

The Guardian reports that Public Citizen released a similar memo earlier this year laying out a case for Arizona prosecutors to press criminal charges against big Oil for its role in a deadly 2023 heat wave. The New York case could be easier to make, Regunberg said. While the Arizona memo proposes filing reckless manslaughter or second-degree murder claims, which have high standards for causation, the New York proposal calls for reckless endangerment, a charge that covers harm caused without explicit intent.

“Reckless endangerment statutes criminalize reckless conduct that creates a risk of injuring or killing someone,” he said. “So proving this crime doesn’t require the same demonstration of causation as offenses like homicide or assault, where prosecutors need to prove that a defendant’s conduct actually caused a specific victim’s injury or death.” This proposal also opens the door for New York prosecutors to bring charges against individual oil executives, the memo says.

Rachel Rivera, a member of environmental justice group New York Communities for Change, saw her home destroyed by Hurricane Sandy. She told The Guardian, “If I committed a crime like that against a corporation, you can bet I’d get prosecuted,” said Rivera. “So why shouldn’t they be held accountable? Isn’t that why we have a criminal justice system?”

The Takeaway

Some people believe that corporations are immune from criminal prosecution, but that belief is mistaken. They can be and have been held criminally liable many times. Reckless endangerment seems like the least of Big Oil’s sins. Or if that doesn’t work, depraved indifference may be the right tool. To my ear, it seems to best describe the behavior of the major oil and gas companies for the past 50 years or more, and it would make Jack McCoy proud to be the one to first promote the idea.