
United States of America
Criminal Law and Climate Change

This section was last reviewed in September 2024.
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Introduction
The criminal law and the criminal justice system is continuously influenced and shaped by ever-changing social, cultural, political, economic and ecological developments.[1] The repeated and worldwide acknowledgement of climate change as an existential threat to humanity[2] highlights the impacts that climate change has and will continue to have on natural and socio-economic systems.
Crime is one of many social issues that interacts with climate change. This intersection will become more and more apparent as the climate crisis disrupts the natural, economic and social systems that communities depend upon.
Overall, climate change will have, and is already having, a direct and indirect impact on criminal law, and, as a result, criminal law is one of many legal areas that will likely see an increased focus on climate change.
- Empirical evidence shows a link between higher temperatures and crime, which means that climate change may increase crime rates, or at least slow their decrease. Climate change may also influence the kinds of crimes people commit and, if convicted and sentenced to imprisonment, how they serve their sentence.
- Climate change protestors have faced criminal charges, but may be able to avoid punishment in limited circumstances. On the other hand, environmental defenders abroad have been victims of crimes themselves.
- Environmental crimes, both directly and indirectly related to climate change, may help to prevent egregious cases of pollution, however broader concepts of criminal ‘ecocide’ remain policy proposals rather than actual offences in the US.
How climate change is impacting criminal law
Connection between physical climate impacts and crime
Studies suggest that there are significant correlations between temperature and the incidence of crime.[3] Harp and Karnauskas[4] in a series of US-focused studies found that the greater the temperature increase, the greater the increased occurrence of additional violent crimes.
Some analysis suggests that the cumulative impact of higher temperatures in the US from 2010 to 2099 could lead to ‘an additional 35,000 murders, 216,000 cases of rape, 1.6 million aggravated assaults, 2.4 million simple assaults, 409,000 robberies, 3.1 million burglaries, 3.8 million cases of larceny, and 1.4 million cases of vehicle theft, compared to the total number of offences that would have occurred between the years 2010 and 2099 in the absence of climate change’[5]
The estimate of future additional crime linked to rising global temperatures highlights that climate change is likely to become a factor that will give rise to new challenges within the criminal justice system. In particular, climate change could:
- Lead to the development of new types of criminal offenses, such as immigration-type offenses arising from future influxes of climate refugees displaced by climate change or white-collar offenses connected to climate-related policies and environmental regulations.
- Impact physical infrastructure, like prison and jail systems, and may influence where and what conditions a person may be incarcerated or held on criminal charges.
- Influence the development of traditional doctrines of criminal law, such as sentencing and criminal defenses used in the courts.
Protests and activism
The rise of a global climate movement has seen an increase in climate activism and protests throughout the US.
In 2016, thousands of protestors from across the US, joined the Standing Rock Sioux tribe to protest the construction of the Dakota Access pipeline, a $3.7bn crude oil project. The protest, which lasted from about August 2016 to February 2017 resulted in hundreds of arrests and criminal charges being filed laid against protestors.[6]
Since 2016, in response to the Standing Rock protests, more than 21 states have passed critical infrastructure protection laws which seek to limit citizens’ ability to protest against fossil fuel infrastructure projects through means such as increased penalties for trespassing and permitting state officials to prohibit public gatherings.[7] The text of these critical infrastructure laws shares language drafted by the American Legislative Exchange Council (“Alec”), which is widely known to be a right wing group funded by fossil fuel companies.
The case of Mountain Valley Pipeline, LLC v. Tuhus,[8] which is listed for hearing in 2024, is an example of how the enactment of critical infrastructure laws have empowered developers to bring lawsuits against protesters who allegedly take actions to block work on fossil fuel.
Further, in 2019, North Dakota filed a lawsuit against the federal government seeking the recovery of $38 million to cover the policing costs associated with the Standing Rock protests.[9] This highlights the possibility of potential future costs implications for state and federal governments who are required to respond to climate related protests.
Financial crimes, fraud and climate policy
There is an emerging connection between climate-related policies and fraud.
Examples of this could include the concealment of climate risks from investors such as overstating the value of fossil-fuel assets, or undervaluing environmental liabilities and physical risks to infrastructure posed by climate change.[10]
The introduction of the Inflation Reduction Act which seeks to provide billions of dollars in grant and loan programs to companies for clean energy and climate action,[11] is an example of the lucrative opportunities that the transition to net zero offers US individuals companies. [12] This opens up further possibility for fraudulent behaviour by criminals who want to capitalise on the net-zero transition.
Further, although ‘greenwashing’ issues tend not to reach the level of criminal conduct, this has been the case in egregious instances. In that respect, in 2021 the Federal Trade Commission announced that it was reviewing its “Green Guides”[13] which offer companies direction on how to avoid making deceptive environmental claims in advertising and marketing.[14]
An example of a case resulting in both civil and criminal charges, including fraud and conspiracy is the ‘Volkswagen emissions scandal’, where the United States Environmental Protection Agency (“EPA”) issued a notice of violation of the Clean Air Act to German automaker Volkswagen Group (“VW”). The EPA found that many VW cars were sold in America with a ‘defeat device’ or software which could detect whether they were being tested and change the performance to show false ‘improved’ results (i.e. lower emissions) when this was not the case.[15] VW was ordered to pay both civil and criminal fines and there have been a number of convictions in the USA and Germany of high ranking officials in relation to the scandal, which indicates the potential for increased criminal liability as companies and industry face increasing oversight.
Environmental Defenders and Climate Whistleblowers
Environmental Defenders
In September 2023, Global Witness reported that almost 2,000 land and environmental defenders had been killed between 2012 and 2022 for protecting the environment.[16] The report reflects that worldwide, there is an increasing backlash against ‘environmental defenders’[17] resulting in public admonition, harassment and in the most extreme cases murder.[18] These cases have led to greater international efforts to protect environmental campaigners.[19] Global Witness reported that in 2018, 164 environmental defenders were murdered,[20] a number that is increasing annually[21]. [GK4] There may also be negative consequences from the administration of the criminal justice system itself, such as criminal charges, restriction of rights and false prosecutions.[22] The concern is so high internationally that the UN has recognised and is calling for greater protection of environmental defenders.[23]
The subject suffers from a lack of research.[24] Although there are relevant reports and analyses[25] a complete picture of the plight of environmental defenders does not yet exist. The Environmental Justice Atlas is one database compiled in 2011 which unites academics and civil society groups to identify environmental conflicts around the world and the actors involved in securing environmental justice.[26] Key sectors where conflict emerged included the mining sector (21% of all cases), the energy sector (17%), biomass and land use (15%), and water management such as dams (14%).[27] Although most extreme cases involve jurisdictions with weaker governance and enforcement than in the United States, these issues have and will affect US nationals abroad.
In January 2023, the US Government publicly acknowledged and advocated for the need for increasing protections for environmental defenders.[28] Further, in September 2023, Ambassador James O’Brien, Head of the U.S. Department of State’s Office of Sanctions Coordination hosted a roundtable discussion with environmental defenders and NGOs which focused on ways to confront and prevent violence against environmental defenders.[29]
Climate Change Whistleblowers
The National Whistleblower Center defines a climate change whistleblower as a person who “discloses information about violations of law, including criminal conduct, gross mismanagement of funds, abuse of authority or other wrongdoing that exacerbates climate change.”[30]
The US has a number of whistleblower laws that seek to create robust protection for whistleblowers. Those that may be applicable climate change whistleblowers include the U.S Dodd-Frank Act, which, in the climate change context, could serve to protect whistleblowers who disclose information about the improper concealment of climate change-related risks related to financial industry activities.
Additionally, climate change whistleblowers may have rights under the Foreign Corrupt Practices Act, Internal Revenue Code, False Claims Act, or the Lacey Act.[31]
How criminal law can help drive the net zero transition
Environmental crimes
Although, on the whole, environmental crimes only capture a small volume of greenhouse gases, they remain an important backstop to prevent actions that significantly damage the environment and may have a broader deterrent effect on polluters.
Environmental crimes are generally enforced by the United States EPA. In September 2023, the EPA announced the establishment of its Climate Enforcement and Compliance Strategy. The EPA indicated that its new strategy introduced climate enforcement initiatives which focus on increasing oversight of oil and gas facilities, landfills, and the production and consumption of hydrofluorocarbons. The introduction of a climate-focused strategy may lead to an increase in criminal investigations concerning actions taken by the fossil-fuel sector.
There have been some calls to broaden the range of environmentally harmful conduct that is considered criminal through laws against ‘ecocide’.[32] However, many of these calls have targeted international criminal law and there are no similar proposals in the US which advocate for the criminalization of such conduct.
[1] Anna Matczak, Sylvia I Bergh, A review of the (potential) implications of climate change for policing practice worldwide, Policing: A Journal of Policy and Practice, Volume 17, 2023, paad062. link
[2] he White House, “Remarks by President Biden on Actions to Tackle the Climate Crisis,” July 20, 2022. link
[3] Michael J. Lynch and others, ‘The Climate Change-Temperature-Crime Hypothesis: Evidence from a Sample of 15 Large US Cities, 2002 to 2015’ (2022) 66(4) International Journal of Offender Therapy and Comparative Criminology 430.
[4] Ryan D Harp and Kristopher B Karnauskas 2020 Environ. Res. Lett. 15 034039.
[5] Matthew Ranson, ‘Crime, Weather, and Climate Change’ (2012). Harvard Kennedy School M-RCBG Associate Working Paper Series No. 8.
[6] ACLU, Stand with Standing Rock: Protect Protesters’ Rights. link.
[7] For instance, see critical infrastructure legislation in: Oklahoma: 21 OK Stat § 1792 (2022); North Dakota, N.D. Cent. Code § 12.1-21-06; South Dakota Codified Laws (2022) 20-9.
[8] Mountain Valley Pipeline, LLC v. Tuhus, S.D. W. Va., Docket Number: 5:23-cv-00625.
[9] North Dakota v. United States, 1:19-cv-00150 (D.N.D. Dec. 13, 2023).
[10] National Whistleblower Center, “Report: Exposing a Ticking Time Bomb: How Fossil Fuel Industry Fraud is Setting Us Up for a Financial Implosion – and What Whistleblowers Can Do About It” (2020). link.
[11] The White House, “Building a Clean Energy Economy Guidebook”, January 2023.
[12] Mary Alice Young, and Deborah Adkins, ‘The ascent of green crime: Exploring the nexus between the net zero transition and organized crime’(2022) 29(3) Journal of Financial Crime 789.
[13] Located at 16 C.F.R. § 260.
[14] Regulatory Review Schedule, 86 Fed. Reg. 35239 (July 2, 2021); Guides for the Use of Environmental Claims, 87 Fed. Reg. 77766 (proposed Dec. 20, 2022) (to be codified at 16 C.F.R. pt. 260).
[15] Russell Hotten, ‘Volkswagen: The scandal explained’ (BBC, 10 December 2015). link.
[16] Global Witness, Standing Firm: The Land and Environmental Defenders on the frontlines of the climate crisis (September 2023).
[17] Nathalie Butt, Frances Lambrick, Mary Menton and Anna Renwick, ‘The supply chain of violence’ (2019) 2 Nature Sustainability 742.
[18] See e.g. Tom Phillips and Andrew Downie ‘Murdered British journalist Dom Phillips laid to rest in the Amazon’ (The Guardian, 26 June 2022). link; and Josie Cohen, ‘Five years since the murder of our friend Chut Wutty’, (Global Witness, 2017). https://www.globalwitness.org/en/blog/five-years-murder-our-friend-chut-wutty/.
[19] Nick Middledorp and Phillippe Le Billon, ‘Deadly environmental governance: authoritarianism, eco-populism, and the repression of environmental and land defenders’ (2019) 109(2) Ann. Am. Assoc. Geogr 324.
[20] Global Witness, ‘Enemies of the state? How government and business silence land and environmental defenders’ (Global Witness, 2019), https://www.globalwitness.org/en/campaigns/environmental-activists/enemies-state/.
[21] Global Witness, Standing Firm: The Land and Environmental Defenders on the frontlines of the climate crisis (September 2023).
[22] Arnim Scheidel, Daniela Del Bene, Juan Liu, Grettel Navas, Sara Mingorría, Federico Demaria, Sofía Avila, Brototi Roy, Irmak Ertör, Leah Temper and Joan Martínez-Alier, ‘Environmental conflicts and defenders: A global overview’ (2020) 63 Global Environmental Change.
[23] Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (Escazu Agreement); and United Nations Environment Programme, ‘Promoting Greater Protection for Environmental Defenders Policy’ (UNEP, 2018).
[24] Butt, Lambrick, Menton and Renwick (n 19). Pages 2 and 33.
[25] Ibid.
[26] Ibid; Leah Temper and Daniela Del Bene ‘Transforming knowledge creation for environmental and epistemic justice’ (2016) 20 Curr. Opin. Environ. Sustain. 41.
[27] Ibid.
[28] U.S Department of State, Press Release: Strengthening Protection of Environmental Defenders in the Americas (24 January 2023). link.
[29] U.S Department of State, Press Release: U.S. Department of State Hosts Environmental Defenders Event at UNGA (20 September 2023), link
[30] Whistleblowers International, “Climate Corruption Campaign,” https://www.whistleblowers.org/climate-corruption-campaign/.
[31] Id.
[32] Jojo Mehta, ‘Ecocide as an International Crime’ (UNA-UK, 2021). link.