How Can Fossil Fuel Companies be Made Accountable?

The fossil fuel industry and the ethics of harmful falsehoods.

I will propose here a normative moral claim: it is morally wrong to spread information if one both knows (a) that said information is factually incorrect or misleading, and (b) that said information carries with it a significant potential to cause harm. Insofar as I am here setting aside the question of whether or not lying is intrinsically a moral wrong, and also setting aside the subject of accidental harm, we can assume that both sides of the conjunction (“and”) here must be true in order for moral wrongdoing to be attributed to the individual; that is, they must know that the information is misleading and know that it has a significant potential to cause harm — it is not sufficient to merely know one or the other. This can be clarified through an example.

Person A and B go camping, but end up finding themselves lost. It will take them approximately a week to find their way back to their vehicle, but they only have enough food and water to last them four days. During the first day of their return, they find a group of mushrooms, trees full of some fruit, and a stream of water. Hopeful that they may now have enough food to last the entire journey, B asks A if the mushrooms and fruit are edible, as B cannot identify them. Consider the following possibilities:

1. Although they are not at all poisonous, and A is highly confident in their knowledge that they are not poisonous, A tells B that they are poisonous, as A does not like the scent of the fruit or mushrooms and does not want to have to deal with it during the remainder of their journey. A is also highly confident that they can make their food and water last the whole journey instead of just four days. B does not eat the fruit or mushrooms, and they manage to make their food and water last the entire journey.
2. Although they are in fact poisonous, A is highly confident in their knowledge that they aren’t poisonous, since they are fundamentally identical to mushrooms and fruit they have consumed many times before. A, however, does know that if they were poisonous, B would become ill. B consumes them, becomes sick, but ultimately makes a full recovery following a hospital visit after they return to civilization.
3. Although A knows that they are in fact poisonous and will likely make B sick, A tells B that they are not poisonous. B still ultimately recovers fully following a hospital visit.

Based purely on the moral claim above, A is guilty in (3) but not guilty in (1) or (2) — and our intuitions appear to align with this determination. I posed the following question as a Twitter poll: “Do you intuitively agree that it is morally wrong for one to spread information which one knows is factually inaccurate / misleading, and which one also knows to have a great potential to cause harm?” 98% of respondents (N=40) voted in the affirmative, and as such we may infer that they would find A guilty in (3). Before moving to the discussion of who in particular the moral thesis herein would find guilty, I must make it clear that the normative ground upon which I here stand is not novel — for, although this may hold me up for dispute, John Stuart Mill offers some brute justification on my behalf:

The maxims are, first, that the individual is not accountable to society for his actions, insofar as these concern the interests of no person but himself. Advice, instruction, persuasion, and avoidance by other people if thought necessary by them for their own good, are the only measures by which society can justifiably express its dislike or disapprobation of his conduct. Secondly, that for such actions as are prejudicial to the interests of others, the individual is accountable, and may be subjected either to social or to legal punishment, if society is of opinion that the one or the other is requisite for its protection.

Whether or not the thesis here proposed is deemed reasonable according to Mill’s second maxim is a topic worthy of a moral philosophy essay and not this article, as it would require an amount of attention and detail not suitable for a short piece. For my present purposes, I merely choose to cite Mill in order to demonstrate that I am not here entering uncharted moral territory.

Who is Guilty?

If we accept the moral thesis here posited, I argue, then a great deal of those responsible for spreading the denial of anthropogenic climate change may be guilty of wrongdoing. Of course, the claim would not hold accountable those who spread denial, if they are unaware of its inaccuracy or its potential for harm — and, for the most part, I believe that the vast majority of those who spread denial fall into this camp. They are, for lack of a better term, victims of those who are responsible, and likely fail to satisfy either (a) and (b) of our thesis. So who in particular is guilty?

Exxon-Mobil is the paradigmatic model. As early as July, 1977, the fossil fuel giant became aware of climate change — a whole decade before the subject became an issue of public concern. James Black, a senior scientist for the company, had revealed to their management committee that “there is general scientific agreement that the most likely manner in which mankind is influencing the global climate is through carbon dioxide release from the burning of fossil fuels.” He continued to warn the company that “present [scientific] thinking holds that man has a time window of five to 10 years before the need for hard decisions regarding changes in energy strategies might become critical.” How did Exxon-Mobil, now the largest fossil fuel company, respond? Well, in 1988, when James Hansen — a scientist for NASA — had discussed climate change at a congressional hearing, Exxon-Mobil worked to convince the public that the science remained controversial. Only a year later, the company established the Global Climate Coalition in order to further spread misinformation. Although Exxon-Mobil continues to deny having any nefarious intent, i.e. the kind which the moral thesis here proposed condemns, an investigation into internal company documents says otherwise. Exxon-Mobil is also not alone here, either. A dossier published by the Union of Concerned Scientists, titled The Climate Deception Dossiers: Internal Fossil Fuel Industry Memos Reveal Decades of Corporate Disinformation, other big players have been doing the same, such as the American Petroleum Institute.

Legal Challenges

If the moral thesis here posited were to be instantiated in law, it would meet a number of challenges. The first challenge arises before we even start discussing existing law; that is, how is it that we determine what someone does or does not know? More specifically, if someone expresses proposition not-P, how are we to determine that they know P to be true though they express not-P, and how are we to determine that they know the expression of not-P carries with it a great potential for harm? The answer is that we can only determine what it is someone knows to a degree of probability, through an inductive process. This is ultimately how Exxon-Mobil has been determined to have ‘known about climate change’ since 1977, despite expressing otherwise. This is also how the Criminal Code of Canada (R.S.C., 1985, c. C-46) currently operates.

Criminal liability in Canada requires generally that the accused has a requisite ‘guilty state of mind’ meaning that the accused (a) knows a fact (e.g. that climate change is occurring and poses a serious threat to human life and well-being), or (b) has an intent to achieve a certain outcome (e.g. to mislead the public about the scientific consensus regarding climate change) or to commit an act. Furthermore, according to s. 21(1) of the Criminal Code, anybody who assists or encourages an offence is a ‘party of offense’: “Everyone is a party to an offence who (a) actually commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; or © abets any person in committing it.” Offences can also be based on negligence, and in these cases is judged ‘objectively’ such that acts themselves constitute proof of criminal fault. Criminal negligence is defined, in s. 219(1) of the Criminal Code, as follows: “Everyone is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.”

We thus have a lot of room, in terms of criminal liability, to instantiate our moral thesis into law. Our impasse, however, would be the broad application of freedom of expression, which is laid out in s. 2(b) of the Charter of Rights and Freedoms (C.C.R.F.): “Everyone has the following fundamental freedoms: […] freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication […].” The purpose, however, of this freedom involves the promotion and attainment of truth, which is in line with the moral thesis here proposed: “The protection of freedom of expression is premised upon fundamental principles and values that promote the search for and attainment of truth, participation in social and political decision-making and the opportunity for individual self-fulfillment through expression (Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 at 976; Ford v. Quebec, [1988] 2 S.C.R. 712 at 765–766).” Though expression is valued primarily as being instrumental for democratic decision making, what democratic utility does a certain kind of expression have, which puts forth what the actor knows to be false and to carry with its expression a great potential for harm?

The question of utility has been answered with “no utility at all” regarding the subject of hateful and discriminatory speech. The Criminal Code, in s. 319, makes illegal the incitement and promotion of hatred against an identifiable group, and this is typically applied to public rather than private discourse. Although cases have been made that s. 319 of the Criminal Code is an infringement of s. 2(b) of the C.C.R.F, there is a precedent of the Supreme Court ruling s. 319 as a justified infringement, even in such cases wherein hateful speech makes no direct calls for violence (see R. v. Keegstra [1990]). I ask: what, if anything, is the real difference between speech which has an express intent to cause harm and speech which carries with it a great potential to cause harm? In at least one respect, they are the same; the person of the prior case, although willing a certain outcome, does not know beyond perhaps an unspecified degree of probability that their desired outcome will be achieved. To illustrate this, compare the following two speech-acts, inspired by R. v. Keegstra (1990):

1. “Group X is treacherous! They are out to destroy our country, weaken our culture, plummet our economy, and corrupt our youth! They are the greatest evil afflicting us today! Therefore, we should kill them on sight!”
2. “Group X is treacherous! They are out to destroy our country, weaken our culture, plummet our economy, and corrupt our youth! They are the greatest evil afflicting us today!”

Does the conclusion at the end of (1), i.e. “Therefore, we should kill them on sight!,” really make much of a difference? Is this conclusion not implicitly contained within (2), although left for an audience to infer themselves? Would an audience, who wholeheartedly believes (2), conclude that “Although X is the greatest evil afflicting us today, and they pose a great threat to myself, my family, and my fellow citizens, violence is wholly unacceptable”? Lastly, is it unlikely for the speaker in both cases to be aware of some probability of harm being carried with their speech, although they only have a clear intent to cause harm in (1)?

Although it is incredibly unlikely that Canadian law will come to reflect the moral thesis I have defended here, and that such would be used to prosecute those — such as Exxon-Mobil — who express misinformation regarding climate change with the knowledge that it is misinformation and carries a great potential for harm, we should at least pressure our government to hold such people accountable. To do so would not be entirely unconstitutional, nor would it require them to stand upon uncharted moral territory. Whether or not they thus act to hold such people accountable would ultimately be a matter of where their true interests lie — with the people they claim to represent, or with capital.

Originally published on theleftgazette.com.