By Aaron Regunberg,^[1] Donald Braman,^[2] and David Arkush^[3]

 

Introduction

“Climate change is not a tragedy, it’s a crime.” This refrain, increasingly common among climate activists,^[4] encapsulates rising moral outrage at major fossil fuel companies (“FFCs”) like ExxonMobil, Chevron, Shell, and BP as more information has come to light about their knowledge and conduct regarding climate change. The essential fact pattern is this: FFCs have long understood—with shocking accuracy^[5]—that their fossil fuel products would cause, in their own words, “globally catastrophic” climate change.^[6] Instead of changing their business model, alerting the public, or even acquiescing in solutions, FFCs concealed what they knew and executed a multi-million dollar disinformation campaign to spread doubt about climate science.^[7] Internal documents demonstrate that their goal in deceiving the public was to delay or block policy or market responses that would curb their intensively lethal but highly profitable conduct.^[8] They achieved this goal spectacularly, making trillions of dollars from their deception while most of humanity pays an increasingly devastating price.^[9]

A growing “climate accountability” movement seeks to use policy and the courts to hold fossil fuel companies accountable for these monumental acts of deception. And after years of frustration, climate litigants have begun to achieve meaningful procedural progress.^[10]

Thus far, all climate accountability litigation has been civil. But “climate change is not a tragedy, it’s a crime” is more than a good rhetorical line—it also expresses a legal reality. Elsewhere, the authors and other researchers have explored FFCs’ potential liability under homicide statutes^[11] and other criminal laws.^[12]  Prosecutors are listening.^[13]

This Essay explores an additional theory of criminal liability for FFCs in states that prohibit reckless conduct causing or risking a “catastrophe.”^[14] Given the scale of danger created by climate disasters, these criminal statutes appear particularly appropriate to FFCs’ behavior; indeed, as early as 1980, FFCs themselves characterized the harm that they predicted from their conduct as “catastrophic.”^[15]

To demonstrate how the prosecution of this offense might proceed, this Essay considers in detail one example of this kind of statute: Section 3302 of the Pennsylvania criminal code, which bars “causing or risking catastrophe.”^[16] Although the Essay focuses on this specific crime and the Pennsylvania case law surrounding it, its analysis illustrates how FFCs might be prosecuted for similar “catastrophe” crimes in other states, as well as the closely related offense of reckless endangerment, which exists in more than two thirds of states and criminalizes reckless conduct that creates a substantial risk of serious bodily injury to another person.^[17]

The Essay proceeds in two parts. First, it provides background and context by briefly summarizing the FFCs’ relevant conduct. Then, Section II considers potential liability in Pennsylvania for causing or risking catastrophe.

I.  Background: FFCs’ Criminal Conduct

From the 1950s through the late 1980s, before fossil fuels’ connection to climate change was widely understood by the public, FFCs studied fossil fuel impacts and repeatedly confirmed the same conclusion: unabated fossil fuel combustion posed an enormous danger to the planet and human life.^[18] As early as 1959, FFC executives were being warned that increased levels of carbon dioxide in the atmosphere “[would] be sufficient to melt the icecap[s] and submerge New York.”^[19] In 1965 the president of the industry trade group the American Petroleum Institute (“API”) was warning FFC members that “carbon dioxide is being added to the earth’s atmosphere by the burning of coal, oil, and natural gas at such a rate that by the year 2000 the heat balance will be so modified as possibly to cause marked changes in climate beyond local or even national efforts.”^[20] By 1968 API was commissioning reports warning that greenhouse gasses from fossil fuel combustion could result in “the melting of the Antarctic ice cap, a rise in sea levels, [and] warming of the oceans.”^[21] These industry predictions were startlingly accurate. For example, a 1969 API report found that fossil fuel combustion would cause atmospheric concentrations of carbon dioxide to reach 370 parts per million (“ppm”) by 2000, leading to global temperature increases of 0.5° Celsius.^[22] In 2000, atmospheric carbon dioxide reached 369.64 ppm^[23] and global temperature had increased by an average of 0.5° Celsius.^[24]

FFCs’ understanding of climate change and its effects only grew more precise. Over the next decade FFCs were repeatedly warned by their own scientists that global warming caused by their products would “have serious consequences for man’s comfort and survival,”^[25] that “sea levels could rise 15 to 20 feet,”^[26] and that the effects of climate change “would impact…the human environment, future living standards and food supplies, and could have major social, economic, and political consequences.”^[27] Despite these decades of warnings, FFCs did nothing to slow their aggressive marketing and sale of fossil fuels, choosing instead to conceal their findings from the public.

FFCs’ misconduct was also not limited to reckless inaction. From the late 1980s through the 2000s, FFCs affirmatively waged a massive disinformation campaign to deceive the public about the very climate dangers their own scientists had been warning them about for decades, even while they privately acted on those warnings, for example by raising the height of offshore platforms to make them more resilient to sea level rise.^[28] These companies acted both individually and through front groups like API,^[29] the Global Climate Coalition (“GCC”),^[30] and the Information Council for the Environment (“ICE”)^[31] to spread climate disinformation. They wrote deceptive op-eds and advertorials,^[32] published dishonest reports,^[33] invested vast sums of money into organizations that published research and ran campaigns denying climate science,^[34] funded individual scientists to promote climate misinformation,^[35] and have continued, even in recent years, to make misleading public statements about the realities of climate change.^[36]

FFCs are also misleading the public about their conduct and the impact of fossil fuel products on climate change through ongoing “greenwashing” advertising campaigns and public statements that misleadingly portray their products as “green” and themselves as climate-friendly energy companies deeply engaged in finding solutions to climate change.^[37] These greenwashing campaigns are a cover for FFCs’ accelerating marketing and sale of fossil fuels. Rather than reducing emissions, FFCs are ramping up fossil fuel production like never before. Exxon is projected to increase oil production by more than 35% by 2030—a sharper rise than over the previous 12 years.^[38] Shell is forecast to increase output by 38% by 2030.^[39] BP is projected to increase production of oil and gas by 20% by 2030.^[40] Chevron set an oil production record in 2018 of 2.93 million barrels per day,^[41] and a 2019 investor report touted Chevron’s “significant reserve additions” as well as its considerable capital projects involving construction of refineries worldwide.^[42]

These examples of FFCs’ decades-long scheme to defraud the public about their products’ enormous and ongoing contributions to climate change have had a single purpose: to allow FFCs to continue making billion-dollar profits despite inflicting predictably—and predicted—catastrophic harm on countless people and communities around the world. In recent years climate-fueled hurricanes, wildfires, extreme heat, and other disastrous weather events have likely killed thousands of Americans—children burned alive in Maui,^[43] families drowned in Puerto Rico,^[44] heatstroke deaths across the Southwest^[45]—and this loss of life will continue to accelerate as climate chaos intensifies.

In executing this scheme and causing these harms, FFCs have arguably committed numerous crimes, including, as this Essay posits, risking catastrophe and causing catastrophe.

II. Potential Liability Under 18 Pa.C.S.A. § 3302

Apart from any other criminal statutes fossil fuel companies may have violated by substantially contributing to and covering up the climate crisis,^[46] one Pennsylvania criminal prohibition is a particularly apt tool to prosecute FFCs’ generation of, in their own words, “catastrophic” climate change: section 3302, Causing or Risking Catastrophe.^[47] Based on Model Penal Code § 220.1–2, section 3302 reads:

• Causing catastrophe.—A person who causes a catastrophe by explosion, fire, flood, avalanche, collapse of building, release of poison gas, radioactive material or other harmful or destructive force or substance, or by any other means of causing potentially widespread injury or damage [. . .] commits a felony of the first degree if he does so intentionally or knowingly, or a felony of the second degree if he does so recklessly.
• Risking catastrophe.—A person is guilty of a felony of the third degree if he recklessly creates a risk of catastrophe in the employment of fire, explosives or other dangerous means listed in subsection (a) of this section.

The remainder of this Essay closely considers how this statute and its related case law could be used to pursue climate accountability, first analyzing the more commonly utilized § 3302(b), then discussing § 3302(a), and finally examining how prosecutions under these statutes would interact with Pennsylvania’s criminal restitution, limitations, and conspiracy and racketeering laws.

A.  FFCs Have Risked Climate Catastrophe Under § 3302(b)

In Commonwealth v. Hughes, the Pennsylvania Supreme Court explained that the “risk” proscribed by § 3302(b) is “the use of dangerous means by one who ‘consciously disregards a substantial and unjustifiable risk’ and thereby unnecessarily exposes society to an extraordinary disaster.”^[48] Therefore, to successfully prosecute a defendant for risking a catastrophe, a prosecutor must show (1) that they created a risk of catastrophe, and (2) that they acted recklessly in creating that risk. As defined by multiple Pennsylvania courts, FFCs’ climate misconduct satisfies both requirements.

1.  FFCs created a risk of catastrophe.

Pennsylvania courts have held that § 3302 covers a broad range of potential disasters and that it criminalizes conduct very comparable to that of FFCs. Although FFCs might argue that their actions do not fit within the specific “forces” or “substances” enumerated in § 3302, a number of cases support a conclusion that the fossil fuel industry’s knowing generation and coverup of the climate crisis constitutes a criminal offense under the statute. One such case, Commonwealth v. Karetny, features conduct that is particularly analogous to FFCs’ climate deception.^[49]

Karetny dealt with the operators of a pier in Philadelphia who responded to warnings from engineers that their pier was in danger of collapsing by covering up the damage and keeping their pier open.^[50] When the structure collapsed, killing three people and injuring forty-three others, the operators were charged with risking catastrophe. The Pennsylvania Supreme Court agreed, citing conduct by the defendants that was strikingly similar to FFCs’ climate fraud.

The Court first noted that the defendants had spent years actively ignoring their own observations and expert warnings about the pier’s structural decline, all because they did not want to incur “the cost to repair it satisfactorily.”^[51] This choice is analogous to decisions made by FFCs, who had extremely accurate knowledge about the threat of fossil fuel-induced climate change for decades, yet refused to change course in order to protect their profits.^[52]

The Court also made clear that conduct does not need to be per se dangerous to be criminalized by § 3302(b). Defendants had argued that they could not be held to have employed any of the dangerous means specifically enumerated in § 3302(a),^[53] and that the catch-all phraseology of “any other means of causing potentially widespread injury or damage” should be construed to criminalize only a narrow scope of per se dangerous activities.^[54] On appeal, the prosecution responded that a person is not only liable under the statute when they create the risk of catastrophe through the use of the enumerated “forces” or “substances” because “the statute is broadly drawn to include all possible destructive forces within the capacity of human ingenuity.”^[55] The Court sided with the prosecution, writing that the “language of the statute could not be clearer . . . it is only required that the ‘means’ in a given case have the potential to cause a catastrophe,” and that “a ‘catastrophe’ (i.e., widespread injury or damage) can be caused and/or risked by innumerable means.”^[56] Likewise, FFCs’ climate misconduct did not need to be inherently dangerous to violate this statute, so long as it had the potential to cause widespread injury or damage—which, considering the vast scale of havoc already created by the climate crisis, is an understatement.

Finally, the Karetny Court found the defendants’ attempts to cover up the pier’s disrepair particularly culpable, highlighting that instead of posting “warning signs to keep persons away from the danger, or alert them to what [defendants] knew,” they “persisted in promoting” the pier and “engaged in what amounted to a literal ‘cover-up’” by ordering the structural damage to be concealed.^[57] This conduct is directly analogous to FFCs’ climate denial. Indeed, if one simply swaps out the words “pier” and “facilities” for “climate change” and “fossil fuels,” the Court’s holding on this point could have been written word for word about the climate crisis:

[A]ppellees, after having been made specifically aware of the imminent danger that the pier posed to human life, took affirmative measures to keep that knowledge to themselves and, at the same time, took affirmative steps that exposed others to the risk. . . . [T]heir action in continuing to advertise, promote, and hold open their facilities to the public, coupled with the act of concealing the fact of inevitable collapse from their patrons, is sufficient to warrant a jury in finding [they risked catastrophe under § 3302(b)].[58]

2.  FFCs acted recklessly in creating the risk of climate catastrophe.

In addition to showing that FFCs’ generation and denial of climate change created a risk of catastrophe, a prosecutor bringing charges under § 3302(b) would also need to show that their conduct was reckless: a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.^[59]

Recent exposés of internal documents^[60] show that FFCs have long understood with shocking accuracy^[61] that their fossil fuel products would cause, in their own words, “catastrophic” climate harms^[62] that would “submerge New York,”^[63] do “great irreversible harm to our planet,”^[64] “have serious consequences for man’s comfort and survival,”^[65] and cause “suffering and death due to thermal extremes.”^[66]

Following this showing, the sole question for a jury is whether the FFCs’ conduct constituted the conscious disregard of substantial and unjustifiable risks—that is, should they have continued to produce, market, and sell their products, to say nothing of creating a massive campaign of climate deception to cover up the risks and delay climate action?

It is difficult to imagine jurors concluding that an ordinary, law-abiding citizen would risk submerging the coastal cities of the world, exposing large swaths of humanity to heat waves so intense that a human body at rest cannot survive, or countless other climate-related horrors that have already killed many people and will likely kill many millions more. Common sense suggests that, if presented with the relevant facts, most people would conclude that FFCs’ not only meet the “should have known” standard of ordinary negligence, but also the “conscious disregard” of “substantial and unjustifiable risks” standard required for recklessness.

3.  Causation is easier to prove in a § 3302(b) prosecution.

Establishing causation is often considered the most significant burden in climate liability litigation because it can be difficult to connect the climate contributions of specific actors to particular climate disasters. Notably, however, § 3302(b) sets out a conduct crime, not a result crime, a point articulated well in Commonwealth v. Scatena, in which the Pennsylvania Supreme Court established that causation should not pose as stiff of a challenge under the statute.^[67]

The defendants in Scatena were convicted of creating a risk of catastrophe after dumping hundreds of thousands of gallons of untreated industrial and chemical wastes into a borehole, which eventually discharged into the Susquehanna River.^[68] They appealed, arguing that because prosecutors “failed to present expert testimony relating to the precise degrees of toxicity of the various chemicals and wastes deposited into the river,” they had failed to prove that the defendants’ actions actually risked a catastrophe.^[69] The Court forcefully rejected this argument, writing:

 

When a school bus driver intentionally navigates his bus full of school children through a red light at a high rate of speed and miraculously escapes collision and injuries, no expert testimony is needed to establish that the driver is guilty of risking a catastrophe. . . . Likewise, when polluters cause massive quantities of untreated and hazardous industrial and chemical wastes to be discharged into one of the Commonwealth’s major rivers resulting in the river being covered solidly from bank to bank . . . no expert testimony as to the exact toxic levels of the wastes is needed to establish that the polluters (appellees herein) are guilty of risking a catastrophe.^[70]

FFCs’ actions generating catastrophic climate change  : when major oil and gas companies cause massive quantities of climate-exacerbating pollution to be discharged into the atmosphere, resulting in the rapid warming of average global temperatures and unleashing chaotic and lethal climatic changes, the attribution necessary to connect these emissions to specific climate disasters does not need to be perfectly precise to establish that the polluters are guilty of risking a catastrophe.^[71] It is enough to show what FFCs already, belatedly, admit: that their products are the primary source of the catastrophic climate change currently underway, and that this climate change is placing Pennsylvania residents at a substantially increased risk of death, injury, and loss of or damage to property.

4.  Section 3302(b) has been used to prosecute far less catastrophic risks than those created by FFCs.

The degree of “widespread injury or damage” inherent in the risks of climate catastrophe created by FFCs also meets—and, indeed, overwhelmingly surpasses—the kinds of catastrophic risks that historically have been prosecuted successfully under this statute. In addition to the cases already referenced in which defendants polluted a river and covered up a collapsing pier, other examples include:

• Commonwealth v. Salamone, upholding a conviction where the defendant piloted an airplane over heavily populated areas for several hours while intoxicated by alcohol and valium.^[72]
• Commonwealth v. John, upholding a conviction where the defendant set fire to a building that was occupied by only one person but was connected by a common hallway to another building occupied by more than 100 people.^[73]
• Commonwealth v. Hoke, upholding a conviction where the defendant ran a home methamphetamine lab in his apartment.^[74]

None of these scenarios comes close to risking as much “widespread injury or damage” as the kinds of climate catastrophes Pennsylvanians are already facing and will increasingly face as the climate crisis continues to escalate in coming years.

Cases rejecting § 3302(b) convictions have involved vastly smaller-scale risks. For example, in Commonwealth v. McCoy, the Superior Court found that a defendant’s marijuana growing operation on the second floor of an otherwise empty and freestanding house did not create a risk of widespread injury or damage because there was little potential for a fire caused by the operation to spread and endanger others.^[75] The court reached a similar conclusion in Commonwealth v. Simkins, where a defendant negligently stored acetone near a heater, writing that the resulting fire at a single residence was “not the type of widespread damage contemplated by the statutory term ‘catastrophe.’”^[76] These sorts of risks were insufficiently dangerous to be criminalized by § 3302(b) because of the small number of people they potentially affected, making them fundamentally different than the floods, wildfires, extreme heat, and other massively dangerous catastrophes that large numbers of Pennsylvanians face due to climate change. In none of those cases did the defendants have as much evidence or expertise to understand the potentially catastrophic harms their conduct would generate. And in none of those cases did the defendants undertake multi-million-dollar disinformation campaigns to deny the catastrophic risks and harms their own experts described.

B.  FFCs Caused Climate Catastrophe Under § 3302(a)

3302(a) criminalizes catastrophe-causing actions that are performed intentionally, knowingly, or recklessly, meaning the “recklessness” analysis described in Section II.A.2 would apply similarly to a prosecution under this portion of the statute. The primary difference between a prosecution under § 3302(b) and § 3302(a) is the latter’s heightened causation requirement, which requires prosecutors to demonstrate that the defendant’s conduct actually caused a catastrophe. It is worth noting, however, that legal causation does not require that a defendant’s conduct be the sole cause of a criminal harm.^[77] Rather, Pennsylvania courts have established that “[c]riminal responsibility may be properly assessed against an individual whose conduct was a direct and substantial factor in producing [the criminal result,] even though other factors combined with that conduct to achieve the result.”^[78] For a prosecution under § 3302(a), the causal chain between FFCs and a climate-related catastrophe would have to be shown at two stages: first, climate change caused a catastrophic weather event; second, FFCs caused climate change.

1.  Climate change is causing catastrophes in Pennsylvania.

Climate change is causing climate catastrophes across the country and in Pennsylvania, including historic storms, flooding, extreme heat, and more. In one recent example, Hurricane Ida destroyed dozens of homes and damaged over 11,000 residences in Philadelphia alone.^[79] Many roads and highways were completely inundated with floodwaters.^[80] And despite a massive and heroic emergency response, Hurricane Ida killed at least five Philadelphia residents.^[81] Tropical Storm Isaias similarly enveloped large portions of the community with as much as four feet of water in a matter of minutes.^[82]

The destructive power of these storms is in large part attributable to fossil-fuel-driven climate change.^[83] Abnormally hot water in the Gulf of Mexico fueled Ida’s rapid intensification from a Category 1 to a Category 4 storm in just 24 hours.^[84] Indeed, over the past 40 years, storms within a few hundred miles of coasts have become about three times more likely to intensify quickly.^[85] Storms are also staying stronger farther inland than they did in the past, with warmer sea surface temperatures leading to a “slower decay” of storms by increasing the amount of moisture they can carry.^[86] And they are generating more rainfall––for every degree of warming, the atmosphere can hold seven percent more water vapor that could fall as rain.^[87]

Fatal storms are just one of the many dangers climate change is creating or exacerbating. For example, Pennsylvania’s average daily temperature is already more than three degrees higher than it was in 1970, and the increased heat and humidity are killing people—including infants—every year.^[88] And rising sea levels are pushing salty water further up the Delaware River, likely impacting drinking water quality in many Pennsylvanian communities.^[89]

These harms, and efforts to mitigate them, also pose a financial threat. According to a recent study, necessary climate adaptation measures will cost Pennsylvania over $15 billion by 2040.^[90] These basic mitigation measures—i.e., increasing storm drainage capacity to avoid additional sewage overflows and flooding, increased road maintenance due to increased heavy rain and heat stress, protecting against more frequent landslides, reinforcing bridges against anticipated climate wear and tear, installing and upgrading air conditioning in schools, expanding and operating cooling centers, and building coastal defenses to prevent infrastructure from rising sea levels^[91]—will divert scarce public resources from priorities on which the public would otherwise prefer to spend tax dollars.

2.  FFCs caused climate change.

FFCs have engaged in conduct that causally contributed to climate change. FFCs produced, marketed, and sold fossil fuels that are responsible for a substantial portion of all the greenhouse gas emissions that have caused the planet to heat up. Relatedly, they deceived the public about the dangers of greenhouse gas emissions so that they could continue to produce, market, and sell fossil fuels, creating further risk of climate disasters. And FFCs are still engaging in this activity today.

It is possible to calculate net annual CO₂ and methane emissions attributable to specific companies by quantifying the amount and type of fossil fuel products a company extracts and places into the stream of commerce and multiplying those quantities by each fossil fuel product’s carbon factor.^[92] Analyses using these calculations have shown that a relatively small number of major FFCs are responsible for the majority of all greenhouse gas emissions generated by humanity. Just 100 companies are responsible for 71% of all global greenhouse gas emissions generated since 1988,^[93] and just 57 companies are responsible for 80% of the emissions generated since 2016 (when the Paris Agreement was signed).^[94] Since 1965, when the fossil fuel industry was definitively put on notice that its products were causing climate change,^[95] just five modern-day, investor-owned companies—ExxonMobil, Shell, BP, Chevron, and ConocoPhillips—have generated 12.58% of all the global CO₂ emissions since the start of the industrial revolution.^[96] Several other companies—Occidental, BHP, and Peabody^[97]—have collectively contributed 2.79% of all global emissions.^[98] Together, these eight companies are directly responsible for 15.37% of all global emissions. Each of these FFCs have also engaged in many joint ventures with additional carbon majors, which, if counted, would bring their total contribution to global greenhouse gas emissions to 44.17%.^[99]

There is no current case law delineating the level of greenhouse gas emissions necessary to demonstrate criminal causation for climate-related injuries. However, there are relevant civil precedents that, while not directly on-point for an analysis of criminal causation, are informative and possibly persuasive. In Massachusetts v. EPA,  the U.S. Supreme Court articulated that, in cases alleging climate-related harms, a causal connection exists where the emissions “make a meaningful contribution to greenhouse gas concentrations and hence [. . .] to global warming.”^[100] The Court went on to rule that vehicle emissions from the U.S. transportation sector, which accounted for approximately 6% of global emissions, constituted a meaningful contribution and thus satisfied causation for standing purposes.^[101] And in Connecticut v. American Electric Power Co., the Court held that the argument “that many others contribute to global warming in a variety of ways [. . .] does not defeat the causation requirement” and found that 2.5% of global emissions was satisfactory for the causation prong of a constitutional standing inquiry.^[102]

What’s more, FFCs did not only control the production, marketing, and sales of fossil fuels. They also engaged in an active campaign of disinformation and lobbying to prevent consumers, shareholders, competitors, regulators, and legislators from understanding or acting to reduce the risks associated with fossil fuel consumption.  This campaign included (1) funding and distributing climate disinformation; (2) deceiving the public about the climate benefits of natural gas; and (3) “greenwashing” efforts to dupe consumers into believing that FFCs are committed to addressing climate change and investing in low carbon energy, when in fact they are marketing and selling fossil fuels at record levels.^[103] FFCs’ own internal documents demonstrate they did so in order to avoid market and policy interventions that would abate their conduct—in other words, that would lessen the catastrophic harm they were causing. Particularly in combination, FCCs’ sale of fossil fuels and their deception to hide the harm that they predicted fossil fuel combustion would cause were a “direct and substantial factor” in producing the climate catastrophes Pennsylvanians are experiencing.

3.  FFCs cannot interrupt this chain of causation by blaming consumers.

FFCs frequently claim that it is the consumers of fossil fuel products that are responsible for climate change. ExxonMobil CEO Darren Woods recently argued that “[t]he people who are generating those emissions need to be aware of and pay the price for generating those emissions.”^[104] Another FFC executive claimed that “[b]laming the producers of oil and gas for climate change is like blaming farmers for obesity. It’s our societal consumption that is the issue.”^[105] Another typical FFC claim is that “a distinction must be made between emissions resulting directly from our activities and those which arise from the use of the products which we make available to our customers and which we do not control.”^[106] But blaming the victim is not an effective defense.^[107]

As a legal matter, these claims amount to an argument that consumers’ end-stage emissions constitute an intervening cause that breaks the chain of causation connecting FFCs’ conduct to climate impacts. But to absolve a defendant of criminal liability, the intervening conduct of a third party must be  “highly extraordinary” and cannot be “a normal or foreseeable consequence of the situation created by” the defendant’s conduct.^[108] It is unlikely that FFCs will persuade a judge or jury that they were unaware that their fossil fuel products would be used precisely as intended—indeed, it’s reasonable to imagine that the implication that regular people are ultimately to blame for climate change might rankle some jurors. And this argument is made even more difficult by the fact that FFCs engaged in a campaign to keep the public misinformed about the risks of their products.^[109]

C.  FFCs convicted for causing or risking catastrophe could be liable for major criminal restitution payments

Convicting FFCs for causing or risking climate catastrophe could open the door for the imposition of major criminal restitution payments. Title 18, section 1106 of the Pennsylvania Consolidated Statutes provides that “[u]pon conviction for any crime wherein: (1) property of a victim has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime; or (2) the victim, if an individual, suffered personal injury directly resulting from the crime, the offender shall be sentenced to make restitution in addition to the punishment prescribed therefor.” Restitution can cover all damages which would not have occurred but for the defendant’s criminal conduct.^[110] This amount is not reduced by any benefits or compensation that a victim has received from government agencies or insurance companies—rather, the defendant is required to pay the agency or company for any losses they had previously compensated.^[111]

For example, restitution for a conviction under § 3302 in connection to harm caused by Hurricane Ida in the City of Philadelphia alone could potentially cover the $47 million in Ida-related aid that Philadelphia households had received from the Federal Emergency Management Authority (“FEMA”) by the end of November, 2021 (an amount that represents only a small fraction of the actual need, given that only 20 percent of the 55,000 Philadelphia households that applied for FEMA aid received any assistance),^[112] the $163 million Philadelphia received from the U.S. Department of Housing and Urban Development for Ida-related recovery,^[113] the more than $810 million that Philadelphia city officials estimate as the unmet need for real property recovery caused by Ida;^[114] and damages resulting from the many personal injuries and deaths caused by the storm. Such restitution, which by this calculation could significantly exceed $1 billion, dwarfs many of Philadelphia’s most historic civil settlements, such as the $200 million the City is set to receive over the course of 18 years from the national opioid settlements.^[115] These payments would also not threaten or undermine other potential avenues for victim compensation or climate accountability, as Pennsylvania’s restitution statute explicitly preserves private remedies that might be available to property owners and personal injury victims.^[116]

Given the vast scope of property damage and injuries that are caused by major climate disasters, restitution in connection to causing or risking catastrophe could amount to extremely large gains for the victims of climate disasters and significant losses for FFC defendants.

D.  Causing or risking catastrophe could be combined with conspiracy and racketeering charges

FFCs are being sued for conspiracy and racketeering^[117] in connection to various related charges including fraud and anti-competitive practices.^[118] As states are already asserting in these civil cases, internal memos provide damning evidence of fossil fuel companies forming agreements to  deceive others regarding the harms associated with their products,^[119] which may constitute a criminal conspiracy.^[120] These same lawsuits cite evidence that fossil fuel companies have also combined and conspired to undertake this illegal conduct through their business enterprises, which constitutes criminal racketeering.^[121]

Conspiracy and racketeering charges related to fraud could implicate § 3302 offenses. Alternatively, as a legal matter, prosecutors could bring conspiracy charges predicated on § 3302 without fraud charges.^[122] In Commonwealth v. Karetny, the Pennsylvania Supreme Court validated this general approach, ruling that prosecutors can charge defendants for criminal conspiracy in connection with their causing or risking catastrophe “to the extent the object of the conspiracy was to commit either of those crimes.”^[123] The Court also found that evidence of the defendants’ knowledge and cover-up of the risks of catastrophic harms was sufficient to make out the charge of criminal conspiracy.^[124] This evidence is very analogous to the evidence discussed in Section I showing that FFCs entered into an agreement with a shared intent to deny or downplay risks and took overt acts in furtherance of that conspiracy, despite awareness of the substantial and unjustifiable risk that their actions would cause or risk catastrophe.^[125]

There are excellent reasons to consider this conspiracy approach, including facilitating evidentiary proofs of causation,^[126] expanding the temporal scope of criminal conduct, and tolling of the start of any statute of limitations.^[127] On this latter point, when considering the catastrophic climate change anticipated by fossil fuel companies, risking catastrophe is arguably an ongoing offense that is unlikely to trigger a statute of limitations in the foreseeable future. But because § 3302 has a two-year statute of limitations, prosecutors might be barred from bringing charges of causing catastrophe if more than two years have passed since a specific catastrophe described in the complaint if they did not also bring charges of conspiracy.^[128] However, under conspiracy doctrine, liability for crimes committed during a conspiracy remains in effect from the moment the parties enter into their criminal agreement until the criminal conspiracy ends, or until they decisively withdraw from the conspiracy.^[129] Additionally, and importantly for crimes like those prosecuted under § 3302, the statute of limitations on all those reasonably foreseeable crimes is tolled—that is, the clock does not start—until the last act of the conspiracy.^[130] Considering that FFCs are continuing to engage in deceptive greenwashing and other climate disinformation, the clock has not started on the statute of limitation for § 3302, and it is unlikely to start any time soon.

Conclusion

The unfolding climate crisis, marked by its catastrophic impacts across Pennsylvania and countless other jurisdictions, and the threat of more to come, casts a long shadow over the conduct of the world’s leading fossil fuel companies. These companies, armed with precise and damning predictions of climate-induced catastrophes, chose a path of denial and deception over truthfulness and action. This choice, crassly motivated by the pursuit of profit, has set the stage for a series of environmental and social crises that we now face, from ravaging storms to unprecedented wildfires to babies struggling to breathe in neonatal units—all harbingers of a more dire future should current trends persist.

Fossil fuel companies not only anticipated these climate catastrophes; they detailed them with alarming precision in internal documents that circulated through the offices of some of the most powerful actors in these corporations. These projections, once cloaked in secrecy, are now revealing a chilling anticipation: a world ravaged by climate-induced disasters. Yet, confronted with science––much of it their own––these companies chose a path of obfuscation and denial, prioritizing profits over the lives and welfare of the people they purported to serve.

The egregiousness of this conduct is difficult to overstate. Any reasonable party, armed with extensive scientific evidence of the catastrophic risks FFCs were generating, would have taken immediate steps to alert the public and avert these catastrophes. These corporations instead launched into a concerted campaign to deceive the public, block competition from green energy, and stymie efforts to address climate change. This calculated dissemination of denial, doubt, and disinformation not only delayed vital action, but has exacerbated the severity of the climate crisis that Pennsylvania and other jurisdictions are now experiencing, propelling them towards ecological and societal disaster.

The legal implications of these actions are clear. Under § 3302 of the Pennsylvania criminal code, reckless conduct causing or risking catastrophe is a criminal offense. The same is true under directly analogous statutes in several other states. And conduct that creates a substantial risk of serious bodily injury to another person is similarly criminalized under reckless endangerment statutes in nearly every state. The behavior of these fossil fuel entities fits squarely within this legal framework, constituting ongoing crimes that have already exacted a heavy toll on Pennsylvanians and other communities across the country—measured not just in billions of dollars in damages, but in the irreplaceable loss of human life and suffering. These are not victimless crimes; they are acts that have fundamentally altered the fabric of our communities. They are criminal offenses that demand accountability.

A plain reading of Pennsylvania’s § 3302 describes with great precision the conduct of fossil fuel companies. The fact that they are powerful cannot be a reason for them to escape accountability. For the sake of public safety, the rule of law, and a livable future, prosecutors should at the very least launch investigations into criminal prosecutions that can bring their constituents the meaningful justice they deserve.

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[1] Climate Accountability Director, Public Citizen’s Climate Program.

[2] Associate Professor of Law, George Washington University.

[3] Director, Public Citizen’s Climate Program.

We thank the editors of ELJ for their excellent questions, suggestions, and corrections. All errors of judgment and fact are our own.

[4] See, e.g., Christiane Amanpour, ‘Climate Change Is Not a Tragedy, It’s a Crime’: The Team Taking on Big Oil, CNN, https://www.cnn.com/videos/tv/2023/07/25/amanpour-climate-puerto-rico-missy-sims.cnn (last visited Oct. 1, 2024).

[5] See Oliver Milman, Revealed: Exxon Made ‘Breathtakingly’ Accurate Climate Predictions in the 1970s and 80s, Guardian (Jan. 12, 2023),

https://www.theguardian.com/business/2023/jan/12/exxon-climate-change-global-warming-research.

[6] Letter from J.J. Nelson to AQ-9 Task Force (Mar. 18, 1980), https://www.industrydocuments.ucsf.edu/docs/gffl0228.

[7] See, e.g., Benjamin Andrew Franta, Big Carbon’s Strategic Response to Global Warming, 1950-2020 (Aug. 2022) (Ph.D. dissertation, Stanford University) (detailing the state of FFC knowledge of climate change and the concurrent disinformation campaigns they waged), https://stacks.stanford.edu/file/druid:hq437ph9153/Franta%20-%20Big%20Carbon%20strategic%20response%20to%20global%20warming%201950-2020%20-%202022-08-25-augmented.pdf.

[8] See, e.g., Letter from Joseph M. Carlson, Spokesman, ExxonMobil to D&L (Aug. 3, 1988), http://www.climatefiles.com/exxonmobil/566 (summarizing Exxon’s goals to “[e]mphasize the uncertainty in scientific conclusions regarding the potential enhanced Greenhouse effect” in order to “[r]esist the overstatement and sensationalization [sic] of potential Greenhouse effect which could lead to noneconomic development of nonfossil fuel resources.”).

[9] See, e.g., Matthew Taylor & Jillian Ambrose, Revealed: Big Oil’s Profits Since 1990 Total Nearly $2tn, Guardian (Feb. 12, 2020), https://www.theguardian.com/business/2020/feb/12/revealed-big-oil-profits-since-1990-total-nearly-2tn-bp-shell-chevron-exxon.

[10] Brendan Pierson, Honolulu Climate Case Against Oil Cos Can Go To Trial – Hawaii Top Court,  Reuters (Nov. 1, 2023), https://www.reuters.com/sustainability/cop/honolulu-climate-case-against-oil-cos-can-go-trial-hawaii-top-court-2023-11-01/.

[11] See David Arkush & Donald Braman, Climate Homicide: Prosecuting Big Oil for Climate Deaths, 48 Harv. Env’t L. Rev. 45, 48 (2023).

[12] See Aaron Regunberg, Big Oil Sold Stuff They Knew Was Dangerous. There’s a Law for That, New Republic (Sept. 4, 2024), https://newrepublic.com/article/185468/big-oil-reckless-endangerment-climate-change#:~:text=Reckless%20endangerment%20is%20an%20offense,this%20crime%20is%20pretty%20straightforward.

[13] See, e.g., Dharna Noor, Fossil Fuel Firms Could Be Tried in US for Homicide Over Climate-Related Deaths, Experts Say, Guardian (Mar. 21, 2024), https://www.theguardian.com/us-news/2024/mar/21/fossil-fuel-companies-homicide-climate-deaths-lawsuit.

[14] See, e.g., 720 Ill. Comp. Stat. 5/29D-15.1 (2010) (containing the causing a catastrophe provision); Me. Rev. Stat. Ann. tit. 17-a, §803-A (2001) (containing the causing a catastrophe provision); N.J. Stat. Ann. § 2C:17-2 (West 2002) (containing the causing or risking widespread injury or damage provision); Mo. Ann. Stat. § 574.080 (West 2017) (containing the causing catastrophe provision); Utah Code Ann. § 76-6-105 (West 2023) (containing the causing a catastrophe provision).

[15] See Letter from J.J. Nelson, supra note 66, at 13.

[16] 18 Pa. Stat. and Cons. Stat. § 3302 (West 2002).

[17] See, e.g., Ala. Code § 13A-6-24 (2023) (containing the reckless endangerment provision); Alaska Stat. Ann. § 11.41.250 (West 2023) (containing the reckless endangerment provision); Colo. Rev. Stat. Ann. § 18-3-208 (West 2022) (containing the reckless endangerment provision); Conn. Gen. Stat. Ann. § 53a-63 (West 2023) (containing that reckless endangerment in the first degree provision); Del. Code Ann. tit. 11, § 604 (West 2023), (containing the reckless endangering in the first degree provision); Fla. Stat. Ann. § 784.05 (West 2021) (containing the culpable negligence provision); Ga. Code Ann. § 16-5-60 (West 2022) (containing the reckless conduct provision); Haw. Rev. Stat. Ann. § 707-713 (West 2023) (containing the reckless endangering in the first degree provision); 720 Ill. Comp. Stat. Ann. 5/12-5 (West 2011) (containing the reckless conduct provision); Ind. Code Ann, § 35-42-2-2 (West 2019), (containing the criminal recklessness provision); Kan. Stat. Ann. § 21-5429 (West 2023), (containing the endangerment provision); Ky. Rev. Stat. Ann. § 508.060 (West 2024) (containing the wanton endangerment in the first degree provision); Mass. Gen. Laws Ann. ch. 265, § 13L (West 2010) (containing the wanton or reckless behavior creating a risk of serious bodily injury or sexual abuse to a child provision); Me. Rev. Stat. Ann. tit. 17-a, §211 (2023) (containing the reckless conduct provision); Mont. Code Ann. § 45-5-208 (West 2023) (containing the negligent endangerment provision); N.H. Rev. Stat. Ann. § 631:3 (2021) (containing the reckless conduct provision); N.Y. Penal Law § 120.25 (McKinney 2023) (containing the reckless endangerment in the first degree provision); N.D. Cent. Code Ann. § 12.1-17-03 (West 2023) (containing the reckless endangerment provision); Or. Rev. Stat. Ann. § 163.195 (West 2023) (containing the recklessly endangering another person provision); 18 Pa. Stat. and Cons. Stat. § 2705 (West 2023) (containing the recklessly endangering another person provision); Utah Code Ann. § 76-5-112 (West 2022) (containing the reckless endangerment provision); Vt. Stat. Ann. tit. 13, § 1025 (West 2024) (containing the recklessly endangering another person provision); Wash. Rev. Code Ann. § 9A.36.050 (West 2023) (containing the reckless endangerment provision); Wis. Stat. Ann. § 941.30 (West 2023) (containing the recklessly endangering safety provision); Wyo. Stat. Ann. § 6-2-504 (West 2023) (containing the reckless endangering provision).

[18] See, e.g., Oliver Milman, ‘Smoking Gun Proof’: Fossil Fuel Industry Knew of Climate Danger as Early as 1954, Documents Show, Guardian (Jan. 30, 2024), https://www.theguardian.com/us-news/2024/jan/30/fossil-fuel-industry-air-pollution-fund-research-caltech-climate-change-denial; Am. Petroleum Inst., Environmental Research, A Status Report (Jan. 1972), http://files.eric.ed.gov/fulltext/ED066339.pdf.

[19] Edward Teller et al., Energy Patterns of the Future, Energy and Man: A Symposium, 53, 58 (N.Y., Appleton-Century-Crofts, Nov. 1959).

[20] Frank N. Ikard, Meeting the Challenges of 1966, in 45 Am. Petroleum Inst., Proceedings: 1965 12, 13 (1965), https://www.documentcloud.org/documents/5348130-1965-API-Proceedings.

[21] Elmer Robinson & R.C. Robbins, Sources, Abundance, and Fate of Atmospheric Pollutants 108–109 (Stan. Rsch. Inst., Feb. 1968), https://www.smokeandfumes.org/documents/document16.

[22] See Smoke and Fumes: The Legal and Evidentiary Basis for Holding Big Oil Accountable for the Climate Crisis, Ctr. for Int’lEnv’t L.  12 (Nov. 2017), https://www.ciel.org/wp-content/uploads/2019/01/Smoke-Fumes.pdf.

[23] See Global Mean CO2 Mixing Ratios (ppm): Observations, NASA Goddard Inst. for Space Stud., https://data.giss.nasa.gov/modelforce/ghgases/Fig1A.ext.txt (last visited Nov. 13, 2024).

[24] See Global Temperatures, NASA Earth Observatory, https://earthobservatory.n16asa.gov/world-of-change/global-temperatures (last visited Nov. 13, 2024).

[25] Alan Oppenheim & William L. Donn, Climate Models and CO2 Warming, 4–5 (Am. Petroleum Inst,, Mar. 16, 1982), http://assets.documentcloud.org/documents/2805626/1982-API-Climate-Models-and-CO2-Warming-a.pdf.

[26] Mobil Oil Corp., Atmospheric Greenhouse Effect: Is Burning Fossil Fuels Affecting World Climate? 2–3 (June 1, 1983), http://www.climatefiles.com/exxonmobil/1983-mobil-memo-on-the-atmosphericgreenhouse-effect.

[27] Shell Internationale Petroleum, The Greenhouse Effect 1 (May 1988), https://www.documentcloud.org/documents/4411090-Document3.html#document/p9/a411239.

[28] See, e.g., Amy Lieberman & Susanne Rust, Big Oil Braced for Global Warming While it Fought Regulations, L.A. Times (Dec. 31, 2015).

[29] In 1998 members of API developed a memorandum titled the “Global Climate Science Communication Team Action Plan” (“Action Plan”). See E-mail from Joe Walker to Global Climate Science Team (Apr. 3, 1998), https://insideclimatenews.org/wp-content/uploads/2015/12/Global-Climate-Science-Communications-Plan-1998.pdf (sharing draft Global Climate Science Communications Action Plan). The Action Plan issued a stark warning to API’s members: “Unless ‘climate change’ becomes a non-issue. . . there may be no moment when we can declare victory for our efforts.”  Id. at 3. It then detailed a scheme on how its FFC members would win “[v]ictory” by achieving goals such as: “Average citizens ‘understand’ (recognize) uncertainties in climate science; recognition of uncertainties becomes part of the ‘conventional wisdom’”; “[m]edia ‘understands’ (recognizes) uncertainties in climate science”; “[m]edia coverage reflects balance on climate science and recognition of the validity of viewpoints that challenge the current ‘conventional wisdom’”; and “[t]hose promoting the Kyoto treaty on the basis of extant science appear to be out of touch with reality.” Id. The Action Plan then laid out a series of “Strategies and Tactics” to accomplish these objectives, like a $5 million “Global Climate Science Data Center” that would “rais[e] questions about and undercut[] the ‘prevailing scientific wisdom’” that combustion of fossil fuels causes climate change, and a $2 million fund to disburse to organizations that cast doubt on climate science. Id. at 4–7.

[30] 1989 GCC Membership, ClimateFiles, https://www.climatefiles.com/denial-groups/global-climate-coalition-collection/1989-membership/ (last visited Nov. 13, 2024); 1995 GCC IRS 1024 and Attachments, ClimateFiles, https://www.climatefiles.com/denial-groups/global-climate-coalitioncollection/1995-irs-1024-and-attachments (last visited Nov. 13, 2024).

[31] A group of coal companies, including Chevron-owned Midway Coal Mining, formed ICE in 1991. That year, a report laid out ICE’s “Strategies,” the very first of which was to “reposition global warming as theory (not fact).” Kathy Mulvey & Seth Schulman, The Climate Deception Dossiers: Internal Fossil Fuel Industry Memos Reveal Decades of Corporate Disinformation 19 (July 2015), https://www.ucsusa.org/sites/default/files/attach/2015/07/The-Climate-Deception-Dossiers.pdf. One print advertisement prepared for the ICE campaign showed a sailing ship about to drop off the edge of a flat world into the jaws of a waiting dragon, with the headline, “Some say the earth is warming. Some also said the earth was flat.” Id.

[32]  See, e.g., John Schlaes, What Global Warming?, N.Y. Times, Dec. 22, 1992, at A20, https://www.nytimes.com/1992/12/22/opinion/l-what-global-warming-250692.html;  Mobil, When Facts Don’t Square with the Theory, Throw Out the Facts, N.Y. Times, Aug. 14, 1997), at A31, https://www.documentcloud.org/documents/705550-mob-nyt-1997-aug-14-whenfactsdontsquare.html; Mobil, Climate Change: A Degree of Uncertainty, N.Y. Times, Dec. 4, 1997, at A31, https://www.documentcloud.org/documents/705551-mob-nyt-1997-dec-4-uncertainty.

[33] See, e.g., ExxonMobil, Tomorrow’s Energy: A Perspective on Energy Trends, Greenhouse Gas Emissions and Future Energy Options (Feb. 2006).

[34] From 1998 to 2014, ExxonMobil alone gave nearly $31 million to think tanks and organizations that published research and ran campaigns denying climate science, such as the Competitive Enterprise Institute, the Heartland Institute, Frontiers of Freedom, Committee for a Constructive Tomorrow, and the Heritage Foundation. ExxonMobil Foundation & Corporate Giving to Climate Change Denier & Obstructionist Organizations, Union of Concerned Scientists (2014), https://www.ucsusa.org/sites/default/files/attach/2015/07/ExxonMobil-Climate-Denial-Funding-1998-2014.pdf. ExxonMobil recognized its own previous funding of climate denial groups in its 2007 Corporate Citizenship Report. ExxonMobil, 2007 Corporate Citizenship Report 39 (Dec. 31, 2007), http://www.documentcloud.org/documents/2799777-ExxonMobil-2007-Corporate-CitizenshipReport.html. This funding has continued, with over $1.5 million contributed to think tanks and advocacy organizations denying climate science in 2017. ExxonMobil Foundation & Corporate Giving to Climate Change Denier & Obstructionist Organizations, Union of Concerned Scientists (2017), https://www.ucsusa.org/sites/default/files/attach/2019/ExxonMobil-Worldwide-Giving-1998-2017.pdf.

[35] For example, from 2001 to 2012, ExxonMobil, API, and other industry groups gave $1.2 million to Harvard-Smithsonian astrophysicist Dr. Wei-Hock Soon to publish research contending that solar variability is a primary driver of climate change, a widely discredited theory. See Mulvey & Shulman, supra note 3131, at 6.

[36] For example, as recently as 2020, ConocoPhillips’ stated “Climate Change Position” on its website continued to emphasize the “uncertainties” of climate change. While the company acknowledged that human-caused greenhouse gas emissions “can lead to adverse changes in global climate,” it also stated that “uncertainties remain.” Climate Change Position, ConocoPhillips (2020), https://web.archive.org/web/20200418203515/https://www.conocophillips.com/sustainability/integrating-sustainability/sustainable-development-governance/policies-positions/climate-change-position/.

[37] For example, in recent years ExxonMobil ran a series of advertorials and advertisements touting the company’s investment in alternative energy biofuels from algae and plant waste. See, e.g., T Brand Studio, Algae May Be Small – But its Impact Could Be Big | Presented by ExxonMobil, YouTube (Sep. 25, 2018), https://www.youtube.com/watch?v=pWcIx1LFSWk. This campaign was a sham on multiple levels. First, the biofuels it promoted would have been a miniscule portion of Exxon’s energy portfolio, amounting to just 0.2% of its total refinery capacity. See Big Oil’s Real Agenda on Climate Change, InfluenceMap13 (Mar. 2019), https://influencemap.org/report/How-Big-Oil-Continues-to-Oppose-the-Paris-Agreement-38212275958aa21196dae3b76220bddc. ExxonMobil then ended its investments in algae biofuels in 2023 after having spent nearly $175 million to advertise its algae program, while only spending $350 million on research and development, meaning the company spent nearly half as much on advertising algae as a climate solution as it did on actually researching it, prominently publicizing its small investment in algae biofuel to suggest that a nonexistent solution was at hand and boost its reputation as a company working towards climate solutions. See Amy Westervelt, Big Oil Firms Touted Algae as Climate Solution. Now All Have Pulled Funding, Guardian (Mar. 17, 2023), https://www.theguardian.com/environment/2023/mar/17/big-oil-algae-biofuel-funding-cut-exxonmobil; Adam M. Lowenstein, Congressional Investigation Reveals New Evidence of Big Oil’s Decades-Long Campaign to Deny Climate Science, DeSmog (May 1, 2024), https://www.desmog.com/2024/05/01/congressional-investigation-sheldon-whitehouse-fossil-fuel-industry-report-carbon-emissions-contribute-to-climate-change-senate-budget-committee-jamie-raskin/.

[38] See Jonathan Watts, Jillian Ambrose, & Adam Vaughan, Oil Firms to Pour Extra 7M Barrels Per Day into Markets, Data Shows, Guardian (Oct. 10, 2019), https://www.theguardian.com/environment/2019/oct/10/oil-firms-barrels-markets.

[39] Id.

[40] Id.

[41] Kevin Crowley & Eric Roston, Chevron Aligns Strategy with Paris Deal But Won’t Cap Output, Bloomberg (Feb. 7, 2019), https://www.bloomberg.com/news/articles/2019-02-07/chevron-pledges-alignment-with-paris-accord-but-won-t-cap-output?embedded-checkout=true.

[42] Complaint at 45, District of Columbia v. Exxon Mobil Corp., No. 22-7163 (D.C. Super. Ct. June 25, 2020) (discussing a 2019 Chevron investor presentation promoting the company’s significant planned construction of refineries).

[43] Amanda Jackson, Holly Yan, Christina Maxouris, & Caroll Alvarado, A 7-Year-Old Boy and His Relatives Are Among the Dozens Killed in the Maui Wildfires. Here’s What We Know About Some of the 115 Lives Lost, CNN (Aug. 21, 2023), https://www.cbs58.com/news/a-7-year-old-boy-and-his-relatives-are-among-the-dozens-killed-in-the-maui-wildfires-here-s-what-we-know-about-some-of-the-115-lives-lost.

[44] Hurricane Maria’s Victims, Hurricane Maria’s Dead, https://hurricanemariasdead.com (last visited Oct. 3, 2024).

[45] Seth Borenstein, Mary Katherine Wildeman & Anita Snow, AP Analysis Finds 2023 Set Record for US Heat Deaths, Killing in Areas that Used to Handle the Heat, The Associated Press (May 31, 2024), https://apnews.com/article/record-heat-deadly-climate-change-humidity-south-11de21a526e1cbe7e306c47c2f12438d.

[46] For their role in causing climate harms, FFCs have arguably committed numerous criminal violations under Pennsylvania law. These include fraud under 18 Pa. Stat. and Cons. Stat. Ann. § 4107 (West 2023), criminal mischief under 18 Pa. Stat. and Cons. Stat. § 3304 (West 2023), reckless simple assault under 18 Pa. Stat. and Cons. Stat. § 2701 (West 2023), reckless aggravated assault under 18 Pa. Stat. and Cons. Stat. § 2702 (West 2023), recklessly endangering another person under 18 Pa. Stat. and Cons. Stat. § 2705 (West 2023), conspiracy under 18 Pa. Stat. and Cons. Stat. § 903 (West 2023), racketeering under 18 Pa. Stat. and Cons. Stat. § 911 (West 2023), and homicide under 18 Pa. Stat. and Cons. Stat. § 2501 (West 2023). See supra note 1616.

[47] In addition to risking and causing catastrophe under 18 Pa. Stat. and Cons. Stat. § 3302 (West 2023), FFCs could be charged under the closely related 18 Pa. Stat. and Cons. Stat. § 3303 (West 2023), which criminalizes a person “knowingly or recklessly fail[ing] to take reasonable measures to prevent or mitigate a catastrophe, when he can do so without substantial risk to himself . . . [if] he did or assented to the act causing or threatening the catastrophe.”

[48] Commonwealth v. Hughes, 364 A.2d 306, 311 (Pa. 1976).

[49] See Commonwealth v. Karetny, 880 A.2d 505 (Pa. 2005).

[50] See Id. at 510.

[51] Id. at 516.

[52] See supra notes 1818–3636 and accompanying text.

[53] See Commonwealth v. Karetny, 880 A.2d 505, 515 (Pa. 2005).

[54] Id. at 516.

[55] Id. at 515.

[56] Id. at 517.

[57] Id. at 516.

[58] Id. at 517.

[59] See Commonwealth v. Hughes, 364 A.2d 306, 311 (Pa. 1976).

[60] See supra notes 18–36.

[61] See Milman, supra note 5.

[62] See Letter from J.J. Nelson, supra note 6.

[63] Teller et al., supra note 19, at 58.

[64] Memorandum from M.B. Glaser, Manager of Environmental Affairs Program to R.W. Cohen et al., Exxon Management (Nov. 12, 1982),

https://www.climatefiles.com/exxonmobil/1982-memo-to-exxon-management-about-co2-greenhouse-effect/.

[65] Oppenheim & Donn, supra note 25, at 4–5.

[66] D.J. Devlin, Exxon Biomedical Sciences, Presentation   to Global Climate Coalition Science and Technology Assessment Committee, Purported Impact of Climate Change on Human Health (Sept. 19, 1996), https://www.climatefiles.com/exxonmobil/1996-purported-impact-climate-change-human-health/.

[67] 498 A.2d 1314 (Pa. 1985).

[68] See id. at 1315–1316.

[69] Id. at 1318.

[70] Id.

[71] Clearly only major FFCs that are responsible for an appreciable portion of global emissions meet this bar, versus everyday users of fossil fuel products.

[72] 897 A.2d 1209 (Pa. Super. Ct. 2006).

[73] 596 A.2d 834 (Pa. Super. Ct. 1991).

[74] 928 A.2d 300 (Pa. Super. Ct. 2007), vacated on other grounds, 962 A.2d 664 (Pa. 2009).

[75] 199 A.3d 411 (Pa. Super. Ct. 2018).

[76] 443 A.2d 825, 828 (Pa. Super. Ct. 1982).

[77] See Commonwealth v. Long, 624 A.2d 200, 204 (Pa. Super. Ct. 1993).

[78] Id. at 204.

[79] See Frank Kummer, Hurricane Ida Damaged 11,000 Philly Homes, With 500 Suffering Major Damage, Says New City Report, The Philadelphia Inquirer (Aug. 10, 2023), https://www.inquirer.com/science/climate/hurricane-ida-philadelphia-block-grant-hud-20230810.html.

[80] See At Least 7 Tornadoes Confirmed, 5 People Killed As Ida Hit Philadelphia Region,  CBS News (Sept. 2, 2021), https://www.cbsnews.com/philadelphia/news/philadelphia-ida-tornadoes-flooding-5-killed.

[81] See id.; Rebecca Hersher, Her Father Was Killed in a Climate-Driven Flood. Here’s How She’s Remembering Him, NPR (May 28, 2024), https://www.npr.org/2024/05/28/1231126567/climate-change-flood-fatality-weather-disaster.

[82] See Zoë Read, Philly to Experience Frequent Heat Waves, Flooding, Says Drexel Report, WHYY (May 25, 2023), https://whyy.org/articles/philadelphia-climate-change-future-drexel-university-report/.

[83] See Rebecca Hersher, How Climate Change Is Fueling Hurricanes Like Ida, NPR (Aug. 30, 2021), https://www.npr.org/2021/08/30/1032442544/how-climate-change-is-fueling-hurricanes-like-ida.

[84] See id.

[85] See Yi Li et al., Recent Increases in Tropical Cyclone Rapid Intensification Events in Global Offshore Regions, Nature Communications (Aug. 24, 2023), https://doi.org/10.1038/s41467-023-40605-2.

[86] Lin Li & Pinaki Chakraborty, Slower Decay of Landfalling Hurricanes in a Warming World, 587 Nature 230–34 (Nov. 11, 2020), https://doi.org/10.1038/s41586-020-2867-7.

[87] See Rachel Ramirez, Climate Change is Making Hurricanes Stronger, Slower and Wetter. Ida Checked All the Boxes, CNN (Aug. 30, 2021), https://www.cnn.com/2021/08/30/weather/hurricane-ida-climate-change-factors/index.html; Frank Kummer, Philly Is One of Top Cities Most at Risk of Extreme Rains, The Philadelphia Inquirer (Jun. 29, 2023), https://www.inquirer.com/news/flooding-extreme-rainfall-philadelphia-climate-change-noaa-20230629.html.

[88] See, e.g., Leah H. Schinasi et al., High Ambient Temperature and Infant Mortality in Philadelphia, Pennsylvania: A Case-Crossover Study, 110 Am. J. Pub. Health 189, 189–195 (2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6951370; Environmental Innovations Initiative, Adapting to Extreme Heat in Philadelphia to Increase Human Vitality, Univ. of Pa., https://environment.upenn.edu/research/communities/adapting-extreme-heat-philadelphia-increase-human-vitality (last visited Oct. 1, 2024); Sophia Schmidt, Philly Had Coolest Summer Since 2014, Whyy (Sept. 17, 2023), https://whyy.org/articles/global-heat-philadelphia-coolest-summer-since-2014/.

[89] See Sophia Schmidt, Climate Change Could Threaten Philly’s Drinking Water,  WHYY (Apr. 5, 2023), https://whyy.org/articles/philadelphia-baxter-water-treatment-plant-climate-change-threat/.

[90] See Study: PA Faces $15 Billion in Climate Change Costs by 2040, Ctr. for Climate Integrity (Jul. 25, 2023), https://climateintegrity.org/news/study-pa-faces-15-billion-in-climate-change-costs-by-2040.

[91] Id.

[92] See Richard Heede, Tracing Anthropogenic Carbon Dioxide and Methane Emissions to Fossil Fuel and Cement Producers, 1854–2010, 122 Climatic Change 229–41 (2014), https://link.springer.com/content/pdf/10.1007/s10584-013-0986-y.pdf.

[93] See Tess Riley, Just 100 Companies Responsible for 71% of Global Emissions, Study Says, Guardian (Jul. 10, 2017), https://www.theguardian.com/sustainable-business/2017/jul/10/100-fossil-fuel-companies-investors-responsible-71-global-emissions-cdp-study-climate-change.

[94] See Jonathan Watts, Just 57 Companies Linked to 80% of Greenhouse Gas Emissions Since 2016, Guardian (Apr. 3, 2024), https://www.theguardian.com/environment/2024/apr/04/just-57-companies-linked-to-80-of-greenhouse-gas-emissions-since-2016.

[95] See Ikard, supra note 20.

[96] See The Carbon Majors Dataset, Carbon Majors (Apr. 2024), full dataset available at https://carbonmajors.org/Downloads. For the calculations used to determine these numbers, see https://docs.google.com/spreadsheets/d/1Ft9E0nWNNRLmbpRZA-wRMeGD-HZY1SMV-euSpPkFmdU/edit?usp=sharing, which displays each company’s total emissions 1965-2022 (Post-1965 Emissions in MtCO2e), the percentage their emissions constitute of total global emissions (Company Emissions / Total Emissions), the sum of these priority companies’ emissions (Primary Focus FFCs’ Emissions), the sum of the emissions of companies engaged in joint ventures with priority companies (Joint Venture FFCs’ Emissions), and the total emissions from these two groups combined (Primary Focus + Joint Venture Emissions).

[97] See Global Climate Coalition Membership, supra note 30.

[98] See The Carbon Majors Dataset, supra note 95.

[99] See id.

[100] Massachusetts v. EPA, 549 U.S. 497, 524–25 (2007).

[101] See id. at 524–26.

[102] Connecticut v. American Elec. Power Co. (“AEP”), 582 F.3d 309, 347 (2d Cir. 2009), rev’d on other grounds, American Elec. Power Co. v. Connecticut, 564 U.S. 410 (2011).

[103] See supra notes 18–45.

[104] Dharna Noor & Oliver Milman, Fury After Exxon Chief Says Public to Blame for Climate Failures, Guardian (Mar. 4, 2024), https://www.theguardian.com/us-news/2024/mar/04/exxon-chief-public-climate-failures.

[105] Sam Meredith, Oil CEO Says Blaming the Energy Industry for the Climate Crisis ‘Like Blaming Farmers for Obesity’, CNBC (Dec. 5, 2023), https://www.cnbc.com/2023/12/05/oil-ceo-rejects-fossil-fuel-industry-to-blame-for-the-climate-crisis.html.

[106] Matthew Taylor, Climate Emergency: What the Oil, Coal, and Gas Giants Say, Guardian (Oct. 10, 2019), https://www.theguardian.com/environment/2019/oct/09/climate-emergency-what-oil-gas-giants-say.

[107] See, e.g., United States v. Hamilton, 182 F. Supp. 548, 550 (D.D.C. 1960) (chain of causation not broken when assault victim removed breathing tubes); People v. Lewis, 57 P. 470, 471 (Cal. 1899) (chain of causation not broken when gunshot victim cut his own throat); Ford v. State, 521 N.E.2d 1309, 1310 (Ind. 1988) (chain of causation not broken when gunshot victim refused blood transfusion); Stephenson v. State, 179 N.E. 633, 635 (Ind. 1932) (chain of causation not broken when rape and assault victim poisoned self while held captive); People v. Webb, 415 N.W.2d 9, 9–10 (Mich. Ct. App. 1987) (chain of causation not broken when bar-room-brawl victim initially refused help from paramedics); People v. Velez, 602 N.Y.S.2d 758, 761–62 (N.Y. Sup. Ct. 1993) (chain of causation not broken when gunshot victim had a nurse remove a feeding tube and refused nourishment); State v. Pelham, 746 A.2d 557, 559, 561 (N.J. Super. Ct. Law Div. 1998) (chain of causation not broken when victim had life support removed according to family wishes and his living will).

[108] Frey by Frey v. Smith by Smith, 685 A.2d 169, 173 (Pa. Super. Ct. 1996).

[109] When a party misleads or deceives another into taking some further harmful action, the deceived party is not viewed as breaking the chain of causation. See H.L.A. Hart & Tony Honoré, Causation in the Law 326 (2nd ed. 1985).

[110] See Commonwealth v. Oree, 911 A.2d 169, 174 (Pa. Super. Ct. 2006).

[111] See 18 Pa. Stat. and Cons. Stat. § 1106(c)(1)(i) (West 2023).

[112] See Sophia Schmidt, Philadelphians Have Gotten More Ida Aid Than Residents of Any Other Pa. County, WHYY (Dec. 13, 2021), https://whyy.org/articles/philadelphians-have-gotten-more-ida-aid-than-residents-of-any-other-pa-county/; Sophia Schmidt, Philadelphians Could Get Millions of Dollars in Home Repairs Tied to Hurricane Ida Flooding, WHYY (Aug. 18, 2023), https://whyy.org/articles/hurricane-ida-philadelphia-flooding-recovery-money-home-repairs.

[113] See Schmidt, Home Repairs, supra note 111.

[114] See id.

[115] See Press Release, City Announces Spending Plan for Opioid Settlement Funds, City of Philadelphia (Jan. 5, 2023), https://www.phila.gov/2023-01-05-city-announces-spending-plan-for-opioid-settlement-funds/.

[116] See 18 Pa. Stat. and Cons. Stat. § 1106(g) (West 2023).

[117] See Kate Yoder, The Laws that Took Down Mobsters Are Being Turned Against Big Oil, Grist (May 19, 2023), https://grist.org/accountability/hoboken-rico-lawsuit-oil-companies/.

[118] The argument articulated in these complaints is that FFCs’ climate-related misconduct constituted a conspiracy to defraud consumers and restrain trade.

[119] The Puerto Rican municipalities claim that FFCs’ fraud was perpetrated in part through the GCC as a “not-for-profit corporation to influence, advertise, and promote the interests of the fossil fuel industry by giving false information to their consumers and the public at large.”  Municipalities of Puerto Rico v. ExxonMobil, No. 3:22 Civ. 01550, 2023 WL 7412113 (D.P.R. Nov. 3, 2023), Am.Amended Compl. for Damages at 107. .

[120] To prove the existence of a criminal conspiracy in Pennsylvania, a prosecutor must demonstrate that a defendant “(1) entered an agreement to commit or aid in an unlawful act with another person or persons, (2) with a shared criminal intent and, (3) an overt act was done in furtherance of the conspiracy.” Commonwealth v. Rios, 684 A.2d 1025, 1030 (Pa. 1996); see also 18 Pa. Stat. and Cons. Stat. § 903 (West 2023). This “may be proven inferentially by showing the relation, conduct, or circumstances of the parties.” Commonwealth v. Kennedy, 453 A.2d 927, 930 (Pa. 1982).

[121] To prosecute racketeering in Pennsylvania, prosecutors must show that a defendant was engaged in a pattern of racketeering activity whose profits benefited an enterprise with which they were connected, or that they conspired to do so. 18 Pa. Stat. and Cons. Stat. § 911(b)(2)–(4) (West 2023). The definition of “racketeering activity” includes “[a]n act which is indictable under . . . Chapter 33,” which encompasses § 3302. 18 Pa. Stat. and Cons. Stat. § 911(h)(1)(i) (West 2023). An “enterprise” is defined as “any individual, partnership, corporation, association . . . engaged in commerce” including “legitimate as well as illegitimate entities.” 18 Pa. Stat. and Cons. Stat. § 911(h)(3) (West 2023).

[122] The predicate crimes in conspiracy and racketeering cases typically depend on coordination or cooperation. See Neal Kumar Katyal, Conspiracy Theory, 112 Yale L. J. 1307, 1309–10 (2003); Christopher R. Leslie, Trust, Distrust, and Antitrust, 82 Tex L. Rev. 515 (2004); Jeremy Horder, Ashworth’s Principles of Criminal Law (10th ed. 2013). That is nowhere truer than here. Were fossil fuel companies fully competing in a market where they shared full information about their products, their campaigns to deceive the public and consumers might never have formed, let alone been as effective as they have been.

[123] 880 A.2d 505, 522 (Pa. 2005).

[124] See id. at 517.

[125] See supra notes 18–36.

[126] The statements of all parties to a conspiracy are admissible against all other members of the conspiracy, effectively allowing all statements made during and furtherance of the conspiracy to be admitted against any and all co-conspirators under the hearsay rule. See Fed. R. Evid. 801(d)(2)(E).

[127] Causing or risking catastrophe has a two-year statute of limitations which begins to run at the occurrence of a catastrophe. 42 Pa. Stat. and Cons. Stat. § 5552 (West 2023).

[128] See id.

[129] See 18 Pa. Cons. Stat. § 903(g)(1). Withdrawal is not trivial. The most common way to withdraw is to work with law enforcement to defeat the conspiracy itself. Simply ceasing to participate is not sufficient, and proclamations denying that the conspiracy exists would certainly not be enough, especially if fossil fuel companies continue to unjustly benefit from the conspiracy. As a result of the significant burden of withdrawal, the conspiracy of FFCs to deceive the public and suppress competition already described in complaints by a growing number of states is ongoing and suggests precisely the kind of serious threat of future criminal conduct that racketeering laws were designed to bar.

[130] See, e.g., Commonwealth v. Johnson, 615 A.2d 1322, 1329–30 (Pa. Super. Ct. 1992); Commonwealth v. McSloy, 751 A.2d 666, 669 (Pa. Super. Ct. 2000).