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Environmental Crime Comes of Age: The Evolution of Criminal Enforcement in the Environmental Regulatory Scheme


David M. Uhlmann


University of Michigan Law School

December 15, 2009

Utah Law Review, No. 4, p. 1223, 2009
U of Michigan Public Law Working Paper No. 177

Abstract:     
The environmental crimes program in the United States has entered its third decade, yet questions remain about what makes an environmental violation criminal. Our environmental laws make only limited distinctions between criminal and civil liability, so theoretically the same conduct could give rise to criminal, civil, or administrative enforcement. This article will reconsider concerns that have been raised historically about the role of criminal enforcement under the environmental laws and will suggest an answer to the question of what makes an environmental case criminal. The article addresses claims that the complexity of environmental law makes it a difficult fit for criminal enforcement and that the mental state requirements for environmental crime make it possible for corporate officials to be convicted for conduct that they do not know is occurring. The article considers the role of prosecutorial discretion in environmental cases and asserts that criminal prosecution should be reserved for cases involving (1) significant harm of risk of harm to the environment or public health; (2) deceptive or misleading conduct; (3) deliberate efforts to operate outside the regulatory system; or (4) significant and repetitive violations of environmental laws. By limiting criminal prosecution to these cases, prosecutors can ensure that criminal enforcement will advance the goals of the environmental regulatory scheme.

Number of Pages in PDF File: 30

Keywords: environment, criminal, enforcement, regulatory systems, white-collar crime, criminalization, regulatory complexity, mental state, prosecutorial discretion

JEL Classification: K14, K20, K23, K29, K30, K31, K32, K40, K41, K42

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Date posted: December 15, 2009 ; Last revised: June 23, 2011

Suggested Citation

Uhlmann, David M., Environmental Crime Comes of Age: The Evolution of Criminal Enforcement in the Environmental Regulatory Scheme (December 15, 2009). Utah Law Review, No. 4, p. 1223, 2009; U of Michigan Public Law Working Paper No. 177. Available at SSRN: http://ssrn.com/abstract=1522506

Contact Information

David M. Uhlmann (Contact Author)
University of Michigan Law School ( email )
625 South State Street
Ann Arbor, MI 48109-1215
United States
(734) 764-7362 (Phone)
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