How Criminal Law Can Help Save the Environment

Abstract

The nation is experiencing a white collar crime boomlet of offenses that harm public health, jeopardize worker and consumer safety, and threaten the environment. Stung by criticism that too-big-to-fail banks escaped criminal prosecution for the 2008 market crash, 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 several years. 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 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 revived but greatly strengthened, criminal prosecution is the best hope for people who believe that the government must redouble its efforts to preserve natural resources and protect the public health.

Keywords: white collar crime, deepwater horizon, volkswagen, regulatory failure, corporate scandal, responsible corporate officer, responsible relation, oil spill commission, cheat device, AECD