Photo credit: Marie Lam, via Wikimedia Commons

A lot of the Supreme Court’s most recent rulings impact the U.S. government’s ability to act on climate change. To unpack it all, I wanted to talk to someone who could talk me through the other availble legal options for climate accountability. That person is Aaron Regunberg, senior climate policy counsel for Public Citizen.

Public Citizen has recently been talking about the idea of filing criminal charges against oil companies related to climate change, including the most serious of such charges: homicide. I asked Regunberg to walk me through their thinking on that charge and other criminal charges, how using criminal law might help with the giant brick wall facing us at the Supreme Court, and what some of the most recent Supreme Court rulings mean for climate accountability across the board.

Prefer to listen? Check out the podcast version of this interview:

The following interview has been edited for length and clarity.

Amy Westervelt: When did you start thinking about whether a homicide charge could be a viable climate accountability option, and what got you and Public Citizen thinking in that direction?

Aaron Regunberg: The work that Public Citizen, my organization, is doing on this really comes from a place of just knowing that, we're in five-alarm fire mode, right? We're in throw everything at the wall mode. We need to be exploring every possible solution, every possible tool that we have for protecting folks from climate harms for holding the actors responsible for this crisis accountable.

And, there's this whole big part of the law, a really important, powerful part, the criminal law that I think has not really been brought to bear on this crisis. Again, we're getting to a point where, the harms are really clear, right? The injuries, the deaths that we're seeing, it's getting harder and harder to ignore.

And when you have people dying and you have particular individuals, particular corporate actors who have recklessly acted in ways that have caused or contributed to those harms, you know, we have a word for that and it's homicide. We're looking to be clear, actually, at a number of possible criminal offenses that we think these companies, big oil could potentially be charged with, Though homicide is the most high profile and important and severe given the stakes. And I think that this work becomes even more important considering the larger context. I guess we'll probably talk about the Supreme Court term later later on in this conversation. But you know, a lot of a lot of our tools are getting are getting taken away or whittled away. And I think we all know that the criminal law in this country has for a long time, maybe always been disproportionately targeted against poor people, people of color.

But ostensibly what it's supposed to be about protecting us from harm, right? Keeping us safe from dangerous actors that would, that would do harm in our communities. And so the question we've been asking is, What if we use this system to actually protect us from harm?

To actually Protect us from the corporate actors that right now are doing damage at an almost unimaginable scale.

Amy Westervelt: Could you actually run through the list of potential criminal offenses that you're looking at?

Aaron Regunberg: Yeah, absolutely. So as far as the sort of range of criminal offenses that we're looking at that, that we're in conversations with prosecutors of various sorts about there's, there's offenses like reckless endangerment. So it most states have some sort of reckless endangerment statute that says if you engage in reckless conduct that creates a substantial and unjustifiable risk of injuring or killing someone, then you have committed that crime.

Similarly, some states, five or six states actually, have a charge that's perfectly suited to what we're seeing, they have made it a crime to cause or risk catastrophe, which is, it's sort of similar, but at a larger scale to reckless endangerment. And it's kind of hard to imagine a more apt description of what Big Oil has done than caused or risked catastrophe. There's conspiracy and racketeering which can be a component of a lot of different prosecutions. There's obviously, fraud and there could be civil fraud, but there's also criminal fraud in many states based on what they said versus what they knew.

Some antitrust statutes have criminal components. And we think anti competitive practice is a pretty good way of describing engaging in massive fraud and cover ups specifically in order to keep the technical competitors, i. e. renewable energy sources out of the market.

So that just kind of gives you an idea. There is a range, but having said that I do think that homicide really does get at at a lot of the moral corruption of what big oil has done. And you think about the kind of incidents and the kind of people that we do charge with homicide in this country and… well my wife's a public defender. So I hear stories every day. She had a client earlier this year who was, you know, was driving in Her car totally soberly with her fiance and got in a crash and she was badly injured.

Her fiance was killed. So her life's like already ruined. And and then the local DA slaps her with a, reckless homicide charge. It was a horrible case and my wife won, but it was like a year and a half of this woman's life, additionally ruined the point is like we charge a lot of folks with homicide for conduct that is orders of magnitude, less culpable and less harmful and disastrous than what, what big oil has knowingly done.

And we're now seeing the body count going up in real time every day from climate disasters, whether it's hurricanes, whether it's the kind of extreme heat waves that so many of us are currently sweating under, whether it's wildfires you know, we, we could go on. We just put out a report looking at just as one example, Maricopa County. It's experienced last year with the the July heat wave and there were over well over 400 Heat deaths in, in that county in July, which is more than the number of, of overall murders that the city experiences, right?

If someone were pressing a, killer heat button I think law enforcement would be all over trying to stop them. That, that's not how we've thought about These killer heat waves we think of them as these natural disasters, but we, we know, right, that they're not natural.

In many cases, we have studies saying that they would have been virtually impossible, but for human climate change, and we know who is behind human caused climate change.

Amy Westervelt: If a homicide charge were to be brought, would it have to be brought against particular individuals, or could it be brought against a corporate entity?

Aaron Regunberg: Individuals and corporations can both be charged criminally. And indeed, there's a there's a long history of corporations being charged with offenses like homicide. BP pled guilty to manslaughter for the Deepwater Horizon Disaster.

Amy Westervelt: That's right, I forgot about that!

Aaron Regunberg: One more recent example that we think is really interesting is PG& E Utility in California was convicted of negligent homicide for the the Paradise Fire several years ago in California.

And I think that's a really interesting example because basically

Amy Westervelt: That's so interesting. Wow.

Aaron Regunberg: The culpable behavior there that was found to have caused those deaths was their negligent upkeep of of equipment that ended up causing the spark that led to that fire. But you take one step back and the normal time, right?

I think that fire was in, was in October, November, normal, normally there would have been rain. You know, many times over the previous months, that spark would have not led to a raging inferno that killed dozens and dozens of people. The reason that that fire happened was what Exxon and Chevron and BP and Shell have done.

Amy Westervelt: Right.

Aaron Regunberg: And so, again, it's, you know, you take a step back and you think about who's really responsible for those deaths. So anyway, you asked about individual versus corporation. So you can, you, you can pursue both. Most of our focus is really looking at the corporate entities both because there are some legal reasons why we think that that that could be a stronger for Case and because as far as remedies go, I think, you know, the project is less about, you know, throwing people in jail and more about how do we get to the root issue of the problem.

And so thinking the kinds of solutions that could come out of this, that could actually. That could actually shift those, those root causes. One, one good example of that kind of remedy the, the DOJ's criminal settlement with Purdue Pharma for its role in the opioid crisis included, includes a plan to restructure Purdue as a public benefit corporation that is, you know, explicitly focused in its corporate charter on repairing the harm it did, you know, investing in public health uh, solutions to, to the opioid crisis.

And so, you know, that, that's one, that's one vision for, you know, you have a strong enough case and, and you could potentially get to a a solution where we're rewriting a charter to say this company needs to focus on the clean energy transition. Though there's, there's lots of other remedies that, that you could envision that could come either from a criminal settlement because the company's like, we don't want to go through this or You know, they do go through it and there's a conviction and then there's a court order.

Amy Westervelt: Right. Actually, I wanted to ask you about the the opioid stuff because I know, people are kind of constantly saying, why aren't the climate cases like the opioid cases? And I I know that a lot of those cases leaned on Municipal code and this idea that the opioid epidemic was increasing costs for cities.

Which is certainly the case with the climate situation. And I know that some of the liability cases are getting at that. Could you walk me through how these charges would be different?

Aaron Regunberg: Yeah, so I really interesting and important to think about the the difference between you know, the civil suits and civil law in general and criminal law and these these criminal charges that we've been proposing and and the first thing to say is in no way Is anything that we're saying to say that, you know, we should be talking about criminal instead of civil .The the climate accountability suits I think are The most important thing happening right now in climate litigation, and they're actually, you know, several of them are actually getting past the jurisdictional phase phase into discovery.

Like, they're starting to bear real fruit. And that is unbelievably exciting. So that's, you know, we're just saying we need to be looking at everything and there are advantages to, to, to criminal law. There's advantages to the speed. I mean, criminal, criminal. Cases move a lot faster. There's advantages to discovery.

The state has some, some advantages there that that a private plaintiff does not. And there's advantages to the actual law. Again, you think about how civil law has developed. It is big corporations who are usually the defendants, right? And so they are, have been for decades bringing All the power and best, you know, big law lawyers in the world to make it as hard as possible to hold civil defendants accountable.

As many sort of off ramps, as many ways for judges to throw out cases before you actually get to trial. On the criminal side, you think about who's developed the law, right? It's, it's overwhelmingly For people, people who, I mean, again, my wife's a public defender, some great representation, but it's not people who have the, have had the capacity to, to do that same kind of work.

And so in a lot of ways, I mean, there's more deference to the judge in a criminal trial. Generally, it's harder to throw something out before you actually get to trial. And I think we saw in the Trump trial, there can be something really powerful about putting these questions in front of a group of 12 regular people who are tasked with making a common sense decision based on what they think is fair and just about you know is it right to hold this person or actor responsible for this harm?

There's a lot of systems that protect the rich and powerful and corporations in this country from accountability for the horrible things they do And there's a lot of ways in which that process that I just described cuts through a lot of those, a lot of those systems.

Amy Westervelt: What would you have to prove? What evidence would you have to bring to the table?

Aaron Regunberg: We just partnered with a former DOJ prosecutor her name is Cindy Cho. She's spent her career doing these kinds of complex prosecutions and we partnered with her to do what's called a, a, a process memo or a prosecution memo. It's basically the exercise a prosecutor does when they're deciding, is there enough evidence here to actually pursue a case looking at a particular climate crisis and the evidence around it and trying to decide, you know, analyze, is there, is there a there there?

And by the way, we yeah. The, the conclusion, and it wasn't just us again, it was this, this longtime DOJ prosecutor was that, yeah, there, there is enough here. So to prove a homicide charge, basically the two elements in a reckless homicide in some states it's called manslaughter, manslaughter, sometimes it's called second degree murder, is one, that the defendant Caused a death.

So that's the causation piece and two that they had the appropriate culpable mental state in their causing of the death. And so that's what sort of grades the level of homicide charge. So from the lowest negligent homicide. So you act negligently that caused a death. The highest is, you know, first degree murder.

And that's when you acted with, you know, intent.

We're not arguing that right. Exxon was not doing what it did in order to kill the dozens of people that have died in this recent round of heat waves. But as far as reckless endangerment, acting recklessly, that's, that's acting with with knowledge of risk, but doing it anyway.

Or for a lot of different second degree murder charges, you need to show that they acted with extreme indifference to human life. Those are what we're really looking at. And in this prosecution memo, we did go through the different defenses that they're likely to raise and analyze the strength of them real quickly on those two elements. So, on the mental state, on acting either recklessly or with extreme difference to human life, often in a criminal prosecution, that's the hardest thing to prove.

Because it's hard to sort of get in someone's head. In this situation, that's actually, I think, very doable, right? We have just mountains of evidence In, in these companies, internal memos showing that they exactly, I mean, you've reported on this to such a wonderful efficacy. They knew exactly what they were doing.

They were predicting, you know, to the decimal point of temperature increase, they were talking about disasters. They're talking about sea level rise. They're talking about extreme heat. I was just looking at a report from 1996 that Exxon Had look really describing exactly in detail the kind of excess deaths from weather from heat Extremes that we're seeing right now So anyway to show that they knew that there was a risk at the very least and that they went ahead anyway We think that's very doable

The more, just to be frank, difficult piece of this is the causation.

So to show causation in a case like this, you really need to prove it and you need to prove it beyond a reasonable doubt, which is the higher standard for criminal prosecution at three different stages, right? So you need to show one that this particular event, this particular extreme weather event, whether it's a an extreme heat wave or something else caused.

This particular death and we think that's pretty doable. There's a lot of public departments of health boards of medical examiners, they, they will report this was a death due to extreme heat.

Then you need to prove that this extreme weather event was caused by climate change. And again, that's, that's the area where the, the rapidly developing climate attribution science is so, so important. Climate scientists can now say that this disaster was made X times more likely was made X times more powerful, or would have been virtually impossible, but for climate change.

And I think it's particularly interesting in the context of, again, I'm just. I'm really hot right now. I'm sweating. So thinking a lot about extreme heat. But, you know, in an extreme heat wave, we, the human body has clear thresholds right below which you can survive and above which you get, you get one or two degrees above that threshold and you die.

And so, so to show that the, that climate change even caused this particular margin that went above that threshold that that shows that that caused the death. So anyway, that's the second stage and then the third stage probably the the biggest is showing that these particular Companies and again, we're looking at some of the at the biggest investor owned oil and gas companies, the big names Exxon, Chevron, BP, Conoco Phillipps, etc that they cause climate change.

And that's one important thing to note: in most states and most jurisdictions, causation does not require, you know, You to have been the sole cause or even in many cases, the primary cause you need to have been a substantial factor in contributing to that death. And so we think again, there's plenty of evidence that, a group of particular big oil companies has been a substantial factor in causing climate change, both through the the actual physics of the emissions, right? We have source attribution research that can say this company is responsible for generating this percentage of all of human caused greenhouse gas emissions, you know, since the beginning of the industrial revolution. And then also through their climate disinformation and deceit.

And we think there's a causative argument there that what these companies did specifically in order to delay or block climate action has has meant that climate change is is worse is farther along than it otherwise would have been so you add those two together and we think there's a pretty strong argument that these companies cause substantially contributed to climate change that climate change, you know, caused substantially contributed to this weather event and then that this weather event caused.

And we think that the victims of these disasters and their families deserve justice just as much as, as the victims of any street level crime. We spend a lot of time talking about justice for people who've been wronged. But we don't think about all the people being harmed from climate in the same way.

[00:20:30] Amy Westervelt: You touched on this a minute ago and I want to ask you more about it, how does this help with this giant brick wall that we're facing with the Supreme Court right now?

Aaron Regunberg: Yeah. I mean, definitely you know, dark times in the law.

The TLDR of, of this last term and, and lots of terms before, but certainly, What we just saw in the last month is that it's, it's been made a lot harder for the federal government to pursue the kind of regulatory actions that we need to solve climate and, and so for us, that, that means it is even more important that we are exploring other tools exploring other areas of the law that could have a big impact on this.

And again, criminal law is it's sort of half the law of this country and it hasn't really been brought to bear. Another important piece we think about the value of, of these kinds of prosecutions that, that they could bring is it is a lot harder, I think, for the federal courts.

to step in when you're talking about a core police power of a state. We've been looking, we haven't been able to find a single case where , a criminal law of general application , let alone a homicide prosecution was preempted by the federal courts, right? Because again, that is a core power of states and localities that they have control of, of criminal law.

And it's not to say that, you know, the Supreme Court has made clear that they don't give a shit about what the law actually is. And so it's not to say that they Would not be able to make up new law from whole cloth in order to try to stop something like this. But certainly it's a lot harder, right?

They would have to make it up from whole cloth. This is a core state and local jurisdiction thing. And there's no precedent for the federal courts coming in and taking it and squashing it. So, you know, to the degree, the degree we can use the courts on climate.

We think this is one of the ways to ensure that states and localities actually can have a voice, because again, there's nothing more core to a, to a local DA than being able to prosecute homicides that occurred in their jurisdiction.

Amy Westervelt: Yeah. Can I have you give me like your sort of quick and simple explanation of the impact of chucking chevron deference?

Aaron Regunberg: Yeah. It's not good. I mean, it's the, the, the quick and dirty of the Chevron decision is that it is another massive judicial power grab. It is taking an immense amount of, of power. Out of the hands of actual experts in administrative agencies, people who have been doing whatever work, whether it's on environment, whether it's on health and medicine, whether it's on economics, you know, whatever it is, we've got a lot of smart people in government.

They've been doing this their whole careers. We are saying they don't get to decide anything. Even if Congress has very clearly said. You get to decide this. And we're putting that power in the hands of, frankly, some of the worst and dumbest people in the world. And I'm talking about like, 25 year old law school grad, you know, Like FedSoc twerps.

You know, These are, these are the law clerks, conservative justices who write the actual opinions. I clerked for a judge. These are the people who write the opinions. And these are kids who like, went right from college to law school, did not do anything in law school to open their minds, right? They spent the whole time in like conservative fed sock circle jerk meetings.

And then they're asked to like, they're given the power to make these immense decisions about the environment and, and economics and health and, and occupational safety and, and everything else, having zero expertise I went to law school with these people. They're not, they're not smart. They're not good.

And they don't have that capacity to make, to do good analysis on any of these questions. So, so it's a big problem. I will say the, the optimist in me on, on the, on the throwing Chevron in the garbage is I have some hope that it won't be. As sort of cataclysmic as I think some people predict, and it's not particularly, it's not super reassuring why that would be, but the reason why is that, like, things are already so bad.

I mean, like, the Supreme Court's major questions doctrine, I think, has already Has already destroyed much of, of this of the capacity of agencies to,

Amy Westervelt: I wanted to ask you about that because it did really seem to me like there was all this uproar about Chevron deference. And while that was all going on before the ruling, I was thinking that it felt like they've already achieved a lot of this with the major questions doctrine stuff and the extent to which they're leaning on it.

But yeah, what are the additional issues beyond what major questions doctrine was already doing that this accomplishes?

Aaron Regunberg: No, I, I think that's absolutely right. They have already mostly accomplished this and Chevron, I think it has been relied on less by agencies as we, win some, we lose some, but we don't, we often have already lost. there was case, those arguments. I actually think I actually think more impactful arguably, in a really horrific way is the statute of limitations.

the other big you know, agency action case corner post that was decided the last day of the term. The opinion there was basically throwing aside the statute of limitations for challenges to government action. So that there's a six year statute of limitations on challenging agency action. And what the Supreme Court interpreted is that that that six years does not start when the. government action occurs, it starts whenever the injury happens.

So basically that throws open the door to challenging literally any administrative action at all. So I think the potential for being wildly destabilizing of every thing we have that protects our health and our water and our air from that decision is, is arguably more concerning than, than Chevron.

Amy Westervelt: That's interesting. In terms of what can be done and how all of this dovetails with what's happening around electoral politics right now, too, what are your thoughts on ideas around packing the court, or other ideas for remedying the judicial takeover, and how that fits in with the elections coming up in November?

Aaron Regunberg: Well, I think any Democrat who's not serious about court reform including court expansion is like either blind or I mean, this is like, this is existential threat. They just ruled that Donald Trump can literally get away with murder.

Amy Westervelt: Yeah, actually I found that ruling to be so much more shocking than the Chevron deference stuff. It felt like it was basically saying we're not a democracy anymore.

Aaron Regunberg: I don't think you can overreact to it. It is so profoundly terrifying. I mean, they literally, they literally say, you know, there's a literal question, can you order SEAL Team Six to assassinate a rival? And it is pretty clear in that opinion that They are saying you can,

Amy Westervelt: Well, and especially getting that in the context of him really ramping up the rhetoric around revenge as part of his goal for, for reelection is I don't know. It's very concerning.

Aaron Regunberg: It's really scary. I think that that there are leaders in the Democratic party on this. But I think overall the Democratic party has completely fallen on its ass on this. Whether it's Biden's refusal to engage in a real way, whether it's Dick Durbin's refusal to act like he's the chair of Senate judiciary and has actual powers, I mean, the whole idea of constitutional interpretation just being the role of the judiciary is a new idea. Judicial supremacy is a new thing. And we've seen the playbook for how you deal with it. So FDR, he comes in great depression and he does his first round, the first new deal it's called of programs.

And there's a conservative Supreme court and they, they basically bat them all down, they eviscerate them. And FDR does not. Like Biden has go out and say, well, that's not the role for the president. You know, we got to respect what they say. FDR, you know, goes on a full on, you know, whistle stop tour. He says, this is what we're fighting for.

These things that'll help improve your lives. And these are the, these are the jackasses that are taking it away from you. It's bullshit. And proposes a number of different fixes. We, we, we think about his. You know, quote unquote, court packing plan and that it was not successful. But I think we've, we've totally drawn the law with the wrong historical lesson there.

He did this all out front against the Supreme Court. And though that particular, the court expansion plan was not passed the overall effect of that larger that larger, Offensive was that the Supreme Court backed off and the second new deal set of programs was allowed to continue. And it, you know, it was our entire welfare state and system of government.

The party has not done that. You need to start, you have needed to start doing that decades ago. And it's really clear now

Amy Westervelt: Totally. The Democratic Party or like you'll hear political strategists say things like this too, I imagine would say “sure that worked in FDR's day, but the Supreme court wouldn't, respond to that kind of pressure today.”

And I mean, maybe, but could we try? I don't understand what seems to be the total lack of energy or interest in doing anything at all about it.

Aaron Regunberg: It's indefensible. And again, this is, it's everything. The Supreme Court is threatening and has the ability to further threaten every single thing we care about. They've already obviously destroyed some of the most important rights that Americans have. If you're not serious about this.

I don't know how you can say you're serious about any of the issues we care about.

The last thing I'd say is, again, it's, it's one more reason for us to be, to be looking for alternative alternative solutions for how the law can keep our communities safe from climate harms and climate criminals. And, and we think that, the criminal law is a way that localities and states can take action on the area that they have the strongest jurisdiction and right to say this is our core powers.