On May 15, 2013, Ken Ward and Jay O`Hara steered a lobster boat on their way to a coal freighter, anchored and delayed by one day the delivery of 40,000 tons of coal to the largest coal-fired power plant (and one of the largest sources of carbon emissions) in New England.1×1. Wen Stephenson, The New Climate Radicals, The Nation (July 17, 2013), www.thenation.com/article/archive/new-climate-radicals [perma.cc/7UGQ-S7UY]. After the Coast Guard boarded the boat, the two environmental activists returned ashore and were charged with conspiracy, misconduct and several other charges that threatened them with several years in prison.2×2. Susan Kieffer, Two Men and a Lobster Boat, Audubon (October 22, 2014), www.audubon.org/news/two-men-and-lobster-boat-0 [perma.cc/442S-KGB6]. Shortly before the trial began, Bristol County, Massachusetts District Attorney Sam Sutter dropped the charges in exchange for a $2,000 refund from each,3×3. Id.; Press release, Bristol Cnty. Dist. Att`y, Statement on the Disposition of the Brayton Point Protest Case (September 8, 2014), bristolda.com/2014/09/statement-on-the-disposition-of-the-brayton-point-protest-case [perma.cc/XLE8-WCYW]. From the steps of the district courthouse, Sutter explained, “This chapter begins to explore these issues. Section A provides an overview of how climate change will affect the criminal justice system and provides a framework on how local prosecutors should exercise their powers in response. Sections B and C then look at the different tools available to local prosecutors to respond to climate change, some of which have already begun (although they rarely explicitly articulate their actions in relation to climate change). Section B examines the steps prosecutors can take to hold accountable those who contribute to climate change or exacerbate its consequences, namely businesses, managers and decision-makers. Section C then examines how local prosecutors should exercise their day-to-day authority, including by continuing detention, showing clemency to climate protesters, and advocating for climate action.
Levenson describes three main components of the criminal justice system that climate change will disrupt: the physical infrastructure, the crimes committed, and the nature of the defense arguments that will be presented in court. The first category is perhaps the most obvious: prisons, prisons and courtrooms are “terribly ill-prepared to deal with climate disasters.” In addition to endangering detainees and guards, forest fires, hurricanes and heat waves can derail the fundamental right to a speedy trial. Courtrooms may need to improvise more flexibility, as some have done during the pandemic, to avoid violating the rights of a Sixth Amendment defendant during protracted climate disasters. From Hurricane Katrina to Hurricane Ida, one prediction is already obvious: modernizing or modernizing facilities is expensive, but the cost of waiting until disaster is even higher. In addition to mitigating climate change, local prosecutors can also bring charges against companies whose actions facilitate disasters exacerbated by climate change. Specifically, California county prosecutors have filed criminal charges against Pacific Gas & Electric (PG&E) in response to devastating wildfires caused, at least in part, by the company`s negligent maintenance of its power lines. Scientists have shown that climate change “has inexorably stacked the cards in favor of larger, more intense fires in the American West” in recent decades, due to rising temperatures, falling rainfall, and other factors.73×73. Alejandra Borunda, The Science Connecting Wildfires to Climate Change, Nat`l Geo. (September 17, 2020), www.nationalgeographic.com/science/article/climate-change-increases-risk-fires-western-us [perma.cc/K4GS-VHV9].
The 2018 campfire, which made the city of Paradise infamous, became the most destructive fire in California history when it set fire to more than 18,000 buildings and killed at least eighty-four people.74×74. Dan Whitcomb, PG&E, pleads allegiance to 84 manslaughter cases at California Wildfire, Reuters (June 16, 2020, 3:22 p.m.), www.reuters.com/article/us-california-wildfires-pg-e/pge-pleads-guilty-to-84-counts-of-involuntary-manslaughter-in-california-wildfire-idUSKBN23N35T [perma.cc/9JZN-C2ER]. Investigators were quick to indicate that a poorly maintained PG&E power line was the likely source of the fire.75×75. See Butte Cnty. Dist. Att`y, The Camp Fire Public Report 2-3 (2020). 1. How climate change affects the criminal justice system. First, climate change is expected to change the frequency and nature of crimes facing the criminal justice system, particularly in the absence of stronger social safety nets. According to a 2012 Harvard Kennedy School working paper, the United States will experience 3.8 million additional cases of theft, 3.1 million burglaries, 2.4 million simple assaults, 1.4 million vehicle thefts, 409,000 thefts, 216,000 rapes and 35,000 murders above baseline due to climate change, according to a Harvard Kennedy School working paper ×2012. Crime, Weather, and Climate Change 2 (Harvard Kennedy Sch., M-RCBG Associate Working Paper Series No. 8, 2012).
A 2020 study came to similar conclusions regarding violent crime in general.21×21. Ryan D. Harp & Kristopher B. Karnauskas, Global Warming to Increase Violent Crime in the United States, 15 Env`t Rsch. Lettres, March 3, 2020, p. March 1, 2020 The two studies discuss several hypotheses for these increases: First, longer periods of temperate weather (i.e., during the winter months) will increase the likelihood of crime; Secondly (and in this context), changing weather conditions can increase the likelihood of crimes being committed successfully; and third, high temperatures cause higher physiological heat stress, resulting in more frequent conflicts.22×22. Ranson, op. cit. Cit. 20, p. 3. Beyond its impact on more traditional crimes, climate change is also likely to increase the frequency of less frequent crimes and create new forms of crime overall.
Professor Laurie Levenson notes that the expected increase in the number of climate refugees seeking to enter the United States can cause dozens of immigration-related crimes such as illegal entry.23×23. Note 19, 340-42. More aggressive efforts to criminalize immigration would lead to “a tsunami of new cases.” Id. at 342. Professor Rob White further notes that climate-related events will increase the prevalence of crime, including “looting and the black market in relation to food products, illegal fishing and the slaughter of birds and land animals, as well as trafficking in human beings and precious goods such as water and food.” 24×24 Weiß, op. cit. Cit. Note 8, p. 44. Levenson also anticipates the continued spread of fraud and property crime in the wake of climate-related disasters and other new crimes such as criminal negligence in cases where “defendants ignore the dangers of climate change and their actions contribute to death.” 25×25 Levenson, loc. cit. 19, p.
363; see Id. at 346-49, 354-56; Infrarot I, section B.1.a, pp. 1554-58. And those who refuse or are unable to obey evacuation orders can, at least theoretically, be prosecuted.26×26. For example, William S. Gribble, It`s a Trap!: Responsible Enforcement of Texas Disaster Evacuation Orders, 52 Tex. Tech L. Rev. 725, 732–34 (2020). (a) Examples of local law enforcement.
For local prosecutors interested in addressing the “root causes” of climate change, there is an obvious starting point: reducing carbon emissions. Although carbon emissions are generally not criminalized (as long as they are within legal limits), 66×66. See Michael G. Faure, Ingeborg M. Koopmans & Johannes C. Oudijk, Imposing Criminal Liability on Government Officials Under Environmental Law: A Legal and Economic Analysis, p. 18 Loy. L.A.
Int`l & Compar. L.J. 529, 558 (1996). There are cases where lawsuits may take place under national or local health and safety regulations or environmental laws.