Climate Prosecution as Climate Regulation

Abstract

Last term, the Supreme Court weakened the federal government’s ability to regulate. Three new decisions—and one landmark case from the previous term—will affect everything from drug approvals to overtime pay to national security. One issue stands out as a political flashpoint that will prove particularly difficult to address via regulation in the wake of this term: climate change. Given the unlikelihood of congressional climate action any time soon, those concerned about the risks of a warming planet will no doubt be looking for alternatives to regulation. Private and state civil lawsuits against polluters reflect an important legal tradition that must continue. The same goes for affirmative civil enforcement by governments and standard federal environmental prosecutions. This essay proposes that a new alternative that, although perhaps riskier, can achieve regulatory aims via the criminal law: prosecuting emitters with homicide when their reckless or knowing conduct kills people. This basic idea has gained substantial attention recently, and its primary aim is to bring justice for victims of unnatural heat. My work on that proposal, as well as my experience as a prosecutor, convince me such prosecutions—in particular, the threat of criminal law’s most serious punishments, as well as the stigma a homicide charge generates— would advance the same ultimate purposes in the fight against climate change the regulatory state may now struggle to achieve following the most recent Supreme Court term.