Does criminal law apply to climate change? Do we need to draft new criminal laws to deal with climate change? What about laws on the books today?

This gets shockingly little academic or public discussion. It has had some, and it’s growing, but it’s still minimal and on the fringe. There is the Centre for Climate Crime Analysis, in the Hague, which chiefly work on matters which are crimes already and are simply not prosecuted. There is a  recent article by Jeffrey Sachs titled, “Trump’s failure to fight climate change is a crime against humanity.” Sachs opens the editorial with;

President Donald Trump, Florida Gov. Rick Scott, Florida Sen. Marco Rubio, and others who oppose action to address human-induced climate change should be held accountable for climate crimes against humanity. They are the authors and agents of systematic policies that deny basic human rights to their own citizens and people around the world, including the rights to life, health, and property. These politicians have blood on their hands, and the death toll continues to rise.

There is a book called Unprecedented Crime: Climate Science Denial and Game Changers for Survival, by Dr. Peter D. Carter and Elizabeth Woodworth. And there’s more out there, but still not that much.

Generally people seem to think that it would require new laws, and since it is a fundamental tenet of criminal law that it cannot be retroactive, it would not apply to acts done today or in the past.

First, let’s consider a few facts:

• emissions are actually continuing to rise
• oil companies and governments have known about climate change for decades
• oil companies (and governments?) have actively hidden what they knew for decades
• Despite an agreement which is a good start (Paris), and some effort by a few nations, not nearly enough has been done (as evidenced by point #1, and not meaning to belittle the amazing efforts of some people and countries)
• People are already dying of climate change effects

It’s safe to assume that there are people out there laying up awake at night thinking, “what will my child eat, will our home where we have lived for generations be underwater in 20 years, will my child be a climate refugee and potentially stopped at the border of the only safe haven and once there brutalised for needing shelter? Killed?” The terrifying scenarios are unlimited, and the fears are real and justified.

It seems only fair, if there are people out there thinking that – that there should also be people laying awake thinking, “what am I going to do when the law, and justice, comes to fetch me and hold me to account for the things I have done?”

Realistically, there is probably no-one lying awake thinking that. Yet. This is not vengefulness, or mean-spiritedness. It’s part of what undergirds our entire social structure. Criminal responsibility for acts which are harmful to society is an essential element of organized society. It has failed in regards to climate change. So far. 

In this context it’s helpful to consider the broader purposes of criminal law – why have it?  Around the world there are five objectives which are widely accepted as being the objectives of criminal law: retribution, deterrence, incapacitation, rehabilitation and restoration.

The purposes of sentencing are also useful tools to reflect on the goals of criminal law, and are clearly laid out in Canadian law, in s. 718 of the Criminal Code. They are: denunciation, deterrence, separation from society, rehabilitation, reparations, encouraging responsibility in the offender, and acknowledging harm done to the community.

Regarding climate change, all of these things are lacking in the western world. Those in the world who are largely responsible for the coming deaths and displacement of millions have not been encouraged to have any sense of responsibility. There is no deterrence, because there’s no price to pay, as evidenced by the fact that no price has been paid by anyone, no-one has been held responsible (criminally).

But it doesn’t take a lot of imagination to ask, how many “Camp Fires” do we need before the public cries for justice? And not environmental justice, intergenerational justice, climate justice, or any other new term, just plain old justice. We will see.

And many questions flow from that, far more than can be analysed in a short blog post. Like – aren’t there defenses, and wouldn’t it be really difficult to prove charges like this beyond a reasonable doubt? Yes, of course, those are the hurdles of criminal justice. Not impossible, just challenging. A challenge which has been bravely tackled for hundreds of years.

But also questions like – does making decisions which will cost hundreds, thousands, millions, tens of millions of lives, and making those decisions dishonestly, and with knowledge of the coming harm, ground any specific criminal charge? Murder? Manslaughter? Criminal negligence causing death? 

Could it, should it? This blog will continue to examine these questions in our steeply changing times.