The Future of Corporate Criminal Liability: Watching the ESG Space

Abstract

The future of corporate criminal liability in the U.S. and around the world may be for failure to adequately act on environmental, social, and governance (ESG) issues. In Europe and elsewhere, courts have found a fundamental right or the equivalent to protection from climate change. That right has been exercised in court cases against governments first, and it is moving into cases against private corporations.

This manuscript focuses within ESG issues on potential U.S. corporate criminal liability for inaction to prevent climate change. There has not been discussion of this topic elsewhere in the literature, and businesses need to look for these developments in the law.

U.S. courts are not likely to follow the international pattern of finding a fundamental right to protection against climate change, but they are more likely to find potential corporate criminal liability for misrepresentations that corporations make to investors in the gap between what corporations say and what they do on climate change issues. The first movements in this evolution are already happening.

Keywords: Corporate Criminal Liability, ESG, environmental, social, governance, climate change, corporate response, corporate promises, fraud, misrepresentation, prosecution, U.S. law, international law, fundamental rights, international movements

JEL Classification: K14, K19, K22, K33, K42, K2, K29, K4, Q54, Q56, Q58, Z1, Z13, Z18, Z19