Pennsylvania law could be used to prosecute climate pollution, some say

Could climate polluters face criminal charges in Pennsylvania for causing or risking a catastrophe? A new article published this month in the New York University Environmental Law Journal highlights a Pennsylvania statute that could be used as a unique legal strategy to hold large carbon dioxide emitters accountable. But several lawyers say it could be difficult to convince prosecutors.

More than 2,000 legal cases related to climate change have been filed nationwideincluding a lawsuit filed in March by Bucks County v. BP. TO landmark case decided in December by the Montana Supreme Court ruled that the state was violating residents’ constitutional rights to a clean environment by failing to take into account the impact of greenhouse gas emissions by allowing fossil fuel operations. However, none of these thousands of lawsuits filed in state, local and federal courts cite criminal statutes.

But the New York University Law Review article, “Causing or Risking Climate Catastrophe,” relies on Pennsylvania criminal statutes and relies on a criminal case brought against the owner and manager of a nightclub at Pier 34 in Philadelphiathat collapsed into the Delaware River in 2000, killing three women and injuring more than 40 people.

“It’s a novel approach,” said Aaron Regunberg, co-author of the paper and director of the climate accountability program at the nonprofit Public Citizen. “We think it’s really appropriate and fits well with the role that prosecutors are supposed to play in seeking justice for victims of climate disasters and trying to proactively prevent these catastrophes from going forward.”

The criminal statute that, according to Regunberg, applies is cause or risk a catastrophewhich is a second or third degree felony in Pennsylvania. It is also a crime in five other states, including New Jersey. The authors chose to write about Pennsylvania because it has strong case law supporting it, Regunberg said.

“It’s obviously not new to prosecute corporations even for charges like homicide,” Regunberg said.

The Department of Justice accused BP of criminal offenses over the Deepwater Horizon oil rig explosion in 2010, for example. But criminal charges for companies that have emitted CO2, knowing the consequences would be “catastrophic,” may still not be used due to impracticality and obstacles, according to several litigants who reviewed but were not involved in drafting the law review article.

Still, Regunberg said they have been discussing the possibility with several county prosecutors and state attorneys general.

“We need to explore all strategies that can help keep our community safe and seek justice for people who have been harmed by this crisis,” Regunberg said. “We have these criminal statutes that are untapped.”

“(Fossil fuel companies) have long understood, with surprising precision, that their fossil fuel products would cause, in their own words, ‘globally catastrophic’ climate change,” the article reads. “Instead of changing their business model, alerting the public, or even accepting solutions, the FFC hid what they knew and ran a multi-million-dollar disinformation campaign to sow doubt about climate science.”

A spokesperson for the American Petroleum Institute said in an email that the industry has worked over the past two decades to achieve “its goal of providing affordable, reliable American energy to American consumers while substantially reducing emissions and our environmental footprint.” . “Our industry will remain focused on that important work, despite these types of unserious distractions.”

Follow-up to a 2023 journal article published in Science internal documents that have since come to lightshowing that Exxon predicted the impacts of climate change decades ago.

“Victims of these climate disasters deserve justice in the same way a victim of any type of street crime deserves justice,” Regunberg said. “They are the result of specific decisions made by specific corporations and specific CEOs who knew the likely effects of those decisions and went ahead and did it anyway to continue increasing their profits and have kissed each other like bandits and left all the rest of us We must pay the price and if that is not what a statute against causing or risking a catastrophe is for, we do not know what is.”

A legal theory with many questions.

“There’s no prosecutor in the country who will handle this,” said Seth Weber, a retired assistant U.S. attorney who led efforts to investigate Energy Transfer’s criminal conduct regarding the construction of the Mariner East pipeline project in Chester County.

“Who is going to prosecute this case? Is there going to be a county attorney’s office that has DUI cases, rapes, murders, assaults, robberies, drug trafficking crimes, sex trafficking crimes? Where are the resources going to come from to even investigate and prosecute that case?”

Weber, who teaches at DeSales University in Center Valley, Pennsylvania, has tried more than 150 jury trials, including environmental crimes. He says Pennsylvania has a law that prohibits criminal prosecution of companies unless it is considered serious, and there is smoking gun that points to executives, something he learned during the Mariner East Investigation. He The Pennsylvania Attorney General ended up criminally charging Energy Transfer, in part using some of the evidence gathered by Chester County prosecutors, but Weber said the company “had to accept it” as part of a deal.

Regunberg said there is also evidence to charge individual executives, should a prosecutor decide to pursue the case.

But Weber said that’s unlikely, especially because the reason most environmental cases are civil, rather than criminal, is because a criminal charge has a much higher bar. It requires proof beyond a reasonable doubt, while a case brought under civil statutes requires only a preponderance of the evidence.

“Why would a prosecutor bring a climate change case against a fossil fuel company using a criminal statute when, if you want to punish it, it’s all about dollars?” Weber said. “You can’t put Exxon in jail. None of the other large greenhouse gas emitting companies can be imprisoned. You cannot imprison a corporation or business organization. Nobody will go to jail. So forget about deterrence. Why get a higher burden of proof when you can pursue them civilly and get a lower preponderance of the evidence standard?

Weber also said that since carbon emissions started decades ago and are now having an impact, statutes of limitations arise.

“Can you imagine waiting 50 years to prosecute a robbery?” said.

The authors of the law review article argue that a conspiracy charge could be a way to avoid the statute of limitations. And they agree that the fossil fuel industry would contribute many more resources than any local prosecutor.

“This is a trillion-dollar industry. So for a prosecutor’s office to take on an industry of this size with these financial resources and this type of political power is going to be risky for them,” said Donald Braman, professor of criminal law at George Washington University and co-author of the piece.

While Braman agrees it would be difficult to take over as prosecutor, he said that could change as more young people hold positions of influence.

“As catastrophes increase and young people face their entire future in an environment dominated by increasing climate damage, (and) they start to join the jury, they start to become prosecutors, they start to become judges and they start to become Shareholders, I think “That’s already been written,” Braman said, “and I hope everyone, including everyone inside fossil fuel companies, starts paying 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 businesses, essentially permission from the government to do what they do, another way for companies to defend themselves in court.

If companies are charged and convicted of risking or causing a catastrophe, fines range from $15,000 to $25,000 per charge, Weber said.

“Is that going to deter a multi-billion dollar company? Is that going to interfere with the operation of your business and the money you make? I don’t think so,” Weber said. “I mean, Energy Transfer closed because of that criminal process?”

“Maybe they put the CEO in jail,” Weber said. “And do you think 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 are going to do what drug traffickers 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 many questions about the strategy, but he says the article serves an important purpose.

“The idea behind these articles is not necessarily to come up with an answer, but to get people to start thinking about how to approach a question. And in that sense, he does it and he does it well,” Raiders said.

The Raiders represented homeowners who sued Energy Transfer over the construction of the Mariner East pipeline. He said a case like this would be a battle of experts, but there are fundamental questions the article doesn’t address about whether the charges will stick.

“What must be proven responsible for climate change to meet the definition of a catastrophe?” said the assailants. “What is that threshold level that you have to show before you can write a complaint that can actually survive objections? And how do you prove that it was the fossil fuel emissions caused by the marketing aspects of these companies that got you far enough to meet this definition? “We don’t know.”

Raiders said the goal of this type of prosecution could be to achieve a large settlement, similar to what happened with the tobacco companies liquidation or a deal previously proposed by the Sackler family over opioids.

In that case, it makes sense to present a “win-lose” case.

“And maybe that’s what causes a case like this. “It’s not necessarily about winning the case, it’s about moving the needle,” the Raiders said.

For example, he said he could get the legislature to take action. But it also takes someone willing to lose.

“I think this is an interesting long-term discussion about how to get people thinking about the problem,” Raiders said. “And as a reflection piece it has some merit. But will you see something like this presented in the next 12 months? No, not in the short term.”

Braman, one of the paper’s co-authors, is more optimistic.

“We desperately need some kind of solution that allows the public to hold these huge corporate criminal actors accountable and have them really address the harms they are creating,” he said.

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