HOW CRIMINAL LAW CAN HELP SAVE THE ENVIRONMENT

• Published in: Environmental law (Portland, Ore.) Ore.), 2016-01, Vol.46 (1), p.209-239
• Main Author: Steinzor, Rena
• Format: Article
• Language: English
• Subjects: Automobile manufacturers; Automobiles; Criminal law; Criminals; Environmental agencies; Environmental crimes; Environmental law; Environmental legislation; ESSAYS; Oil spills; Pollutant emissions
• ISSN: 0046-2276

The nation is experiencing a white collar crune boomlet, if not a wave, of offenses that harm public health, jeopardize worker and consumer safety, and threaten the environment Some big cases have settled and others are being tried. Still others are under investigation, including the notorious Volkswagen (VW) "defeat device" case that continues to make news almost every day. Stung by criticism that too-big-to-fail banks escaped criminal prosecution for the 2008 market crash that continues to cause misery in the country, the Department of Justice has pledged to indict individual corporate executives whenever possible. It has yet to deliver on that promise, but unless Republicans retake the White House and carry through on pledges to further dismantle the regulatory state, every account of high-profile corporate malfeasance will speculate about criminal implications. These developments do not represent an idiosyncratic emergence of a handful of rogue corporations and executives even as their competitors studiously avoid running afoul of the law. Instead, a relentless campaign against big government has produced weak to nonexistent enforcement as well as widespread corporate disdain for regulatory requirements. Without any question, criminal law is the last resort. It closes the barn door after the horses have run free, leaving the aftermath of an incident to be ameliorated at great cost, often over periods of several years. Environmental laws were enacted because of similar flaws in the tort system with the goal of preventing iiyury rather than merely compensating it Good regulation enforced aggressively to prevent harm is always a better choice. But congressional conservatives and their industry allies have embarked on a highly successful strategy of starving and badgering the agencies—even the Environmental Protection Agency, the strongest and most rebellious among them—into quiescence. In the vacuum that remains, criminal prosecutions, especially of individual senior executives, have a better potential to deter violations than the broken regulatory system. This Essay explores, contrasts, and compares the two most prominent criminal cases that have emerged in the last several years: the $4 billion criminal settlement with British Petroleum that resulted from the Deepwater Horizon blowout and oil spill and the VW cheat device scandal. The similarities between the two cases are chilling. They suggest that until and unless the regulatory state is not just rev