Charging Big Oil Companies & CEOs with Reckless Endangerment
A Preliminary Prosecution Memo for New York
By Published by Public Citizen and Fair and Just Prosecution
Charging Big Oil Companies & CEOs with Reckless Endangerment
Executive Summary
The climate crisis, including a rapid escalation in extreme weather events, is causing severe harm to residents of New York. These disasters are in large part the result of reckless conduct undertaken by major fossil fuel companies (“FFCs”) like ExxonMobil, Chevron, Shell, and BP that are responsible for a substantial portion of all the global greenhouse gas emissions that have caused our planet to heat up.[1] Recent exposés of internal documents show that these FFCs have long understood with shocking accuracy[2] that their fossil fuel products would cause, in their own words, “catastrophic” climate harms[3] that would “submerge New York,”[4] do “great irreversible harm to our planet,”[5] “cause flooding on much of the U.S. East Coast,”[6] “have serious consequences for man’s comfort and survival,”[7] create “more violent weather—more storms, more droughts, more deluges,”[8] and cause “suffering and death due to thermal extremes.”[9] Instead of finding new business models or at least warning the public and government officials, these companies conspired to wage a massive disinformation campaign to prevent regulators, investors, and the public from understanding the risks their products were creating.[10] They have made trillions of dollars from this deception, and the people of New York are paying the price.[11]
This conduct was not just amoral. It was criminal. Public Citizen has previously described how prosecutors could charge FFCs with homicide for deaths caused by climate disasters.[12] Another offense that FFCs could be charged with for substantially generating and fraudulently covering up the climate crisis is reckless endangerment.
This memorandum considers whether prosecutors in New York could charge FFCs or their CEOs with reckless endangerment for substantially contributing to the climate conditions that are creating an increased risk of lethal weather disasters in New York. Ultimately, it concludes that the case for such charges is strong enough to merit the initiation of criminal investigations by local prosecutors.
Though this memo asks a particular question—how officials in New York City could pursue reckless endangerment charges related to climate change—its analysis is relevant in all jurisdictions that have reckless endangerment statutes and have experienced climate disasters.[13] This discussion is the starting point for any prosecutor who wants to build a case to protect their constituents from climate harms that are threatening public safety in communities across the country.
This memo proceeds in four parts.
I. Offenses
Part I lays out the elements of the crimes of reckless endangerment in the second and first degrees, the two New York state criminal offenses under consideration.
II. Defendants
Part II describes two possible classes of defendants for a climate-related reckless endangerment prosecution, which could focus on the world’s largest investor-owned fossil fuel companies or the individual leaders of these companies. It also describes how multiple defendants could potentially be charged collectively in the context of a broader conspiracy prosecution.
III. Prosecution’s Case
This section lays out the prosecution’s case. Part III.A discusses the ways climate disasters are currently endangering the lives of New Yorkers. Part III.B summarizes how FFCs have increased the risks of these disasters for New Yorkers, detailing both how they directly generated a substantial portion of all the greenhouse gas emissions that have caused the planet to heat up and, relatedly, how they deceived the public about the dangers of greenhouse gas emissions in ways that led to additional emissions and worse global warming. Finally, Part III.C analyzes the FFCs’ mental states, summarizing the publicly available evidence showing that they were aware of and consciously disregarded the risk that the conduct described in Part III.B would cause serious injuries or deaths. It shows that FFCs were predicting several decades ago that their actions would cause dangerous climate disasters like those that have resulted in death and injury to New Yorkers, and that they were sufficiently confident in their science that they based business decisions on their climate predictions.
IV. Legal Questions
This section answers and assesses questions prosecutors may have and likely legal defenses that FFCs may assert. Part IV.A discusses why, because reckless endangerment can be charged as a continuing offense, statutes of limitations are likely not a major concern. Part IV.B demonstrates that New York’s reckless endangerment laws are not limited in the kind of conduct they criminalize, so long as the conduct meets the elements of the offense. Part IV.C discusses the New York case law showing that reckless endangerment covers the kind of generalized risk created by climate change. Part IV.D examines in more detail the differences between reckless endangerment in the second and first degrees. Part IV.E rebuts the likely industry argument that consumers, not FFCs, are to blame for climate change. Part IV.F explains why FFCs cannot assert a successful necessity defense. Part IV.G addresses the issue of federal preemption, which to our knowledge has never been applied to a generally applicable state criminal law. Finally, Part IV.H discusses why FFCs will struggle to invoke a defense of selective prosecution.
Download and read the full paper here.
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[1] 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.
[2] See, e.g., Oliver Milman, Revealed: Exxon made ‘breathtakingly’ accurate climate predictions in 1970s and 80s, The Guardian (Jan. 12, 2023),
https://www.theguardian.com/business/2023/jan/12/exxon-climate-change-global-warming-research.
[3] Jimmie Nelson, The CO2 Problem; Addressing Research Agenda Development, American Petroleum Institute, Climate Investigations Center, 13 (Mar. 18, 1980), https://www.industrydocuments.ucsf.edu/docs/gffl0228.
[4] Edward Teller et. al., Energy Patterns of the Future, Energy and Man: A Symposium, 53, 58 (New York, Appleton-Century-Crofts, Nov. 1959).
[5] Memo from M.B. Glaser to Exxon Management, CO2 Greenhouse Effect (Nov. 12, 1982),
https://www.climatefiles.com/exxonmobil/1982-memo-to-exxon-management-about-co2-greenhouse-effect/.
[6] Id.
[7] Alan Oppenheis & William I. Donn, Climate Models and CO2 Warming, Lamont-Doherty Geophysical Observatory, Columbia University, 4–5 (Mar. 16, 1982), http://assets.documentcloud.org/documents/2805626/1982-API-Climate-Models-and-CO2-Warming-a.pdf.
[8] Shell Confidential Group Planning, Scenarios 1989–2010, Challenge and Response, Shell, 36 (Oct. 1989), https://www.documentcloud.org/documents/23735737-1989-oct-confidential-shell-group-planning-scenarios-1989-2010-challenge-and-response-disc-climate-refugees-and-shift-to-non-fossil-fuels.
[9] Presentation by D.J. Devlin to Exxon Management, Purported Impact of Climate Change on Human Health (1996), https://www.climatefiles.com/exxonmobil/1996-purported-impact-climate-change-human-health/.
[10] See, e.g., Benjamin Franta, Big Carbon’s Strategic Response to Global Warming, 1950-2020, Stanford University (2022); see also Section III.B.2.
[11] See, e.g., Matthew Taylor & Jillian Ambrose, Revealed: Big Oil’s Profits Since 1990 Total Nearly $2tn, The 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.
[12] See Cindy Cho et. al., Charging Big Oil with Climate Homicide: Preliminary Prosecution Memo for July 2023 Heat Wave, Public Citizen (Jun. 2024), https://www.citizen.org/article/charging-big-oil-with-climate-homicide/.
[13] Most states have an analogous reckless endangerment offense with similar elements. See, e.g., Ala. Code § 13A-6-24, Reckless endangerment; Alaska Stat. § 11.41.250, Reckless endangerment; Colo. Rev. Stat. § 18-3-208, Reckless endangerment; Conn. Gen. Stat. § 53a-63, Reckless endangerment in the first degree; Del. Code tit. 11 § 604, Reckless endangering in the first degree; Florida Stat. 784.05, Culpable negligence; GA Code § 16-5-60, Reckless conduct; Haw. Rev. Stat. § 707-713, Reckless endangering in the first degree; 720 ILCS 5/12-5, Reckless conduct; Ind. Code § 35-42-2-2, Criminal recklessness; K.S.A. 21-5429, Endangerment; KRS § 508.060, Wanton endangerment in the first degree; M.G.L. c. 265 § 13L, Wanton or reckless behavior creating a risk of serious bodily injury or sexual abuse to a child; MRS Title 17-A, §211, Reckless conduct; MT Code § 45-5-208, Negligent endangerment; NH Rev. Stat. § 631:3, Reckless conduct; N.D. Cent. Code § 12.1-17-03, Reckless endangerment; ORS § 163.195, Recklessly endangering another person; 18 Pa. C.S. § 2705, Recklessly endangering another person; U.C.A. § 76-5-112, Reckless Endangerment; 13 V.S.A. § 1025, Recklessly endangering another person; RCW 9A.36.050, Reckless endangerment; Wis. Stat. § 941.30, Recklessly endangering safety; Wyo. Stat. Ann. § 6-2-504, Reckless endangering.