A Graduated Punishment Approach to Environmental Crimes: Beyond Vindication of Administrative Authority in the United States and Europe

59 Pages Posted: 1 Oct 2008 Last revised: 18 May 2013

See all articles by Susan F. Mandiberg

Susan F. Mandiberg

Lewis & Clark Law School

Michael G. Faure

University of Maastricht - Faculty of Law, Metro; Erasmus University Rotterdam (EUR) - Erasmus School of Law

Abstract

In both the United States and Europe, most environmental crime statutes focus on punishing disobedience to administrative rules and decisions. In most cases, the statutes do not require harm - or even a threat of harm - to the environment. Thus, convictions for these crimes vindicate mainly administrative values. Nevertheless, it is possible to define crimes such that environmental values are focal.

This article suggests four models of environmental crimes. Purely administrative violations are at one end of a continuum, while crimes with no administrative predicates but serious environmental harm occupy the other end. Examples drawn from the United States and Europe illustrate each approach. After exploring the intricacies and challenges of each model, the article proposes a graduated punishment approach based on the described continuum. The article concludes with an evaluation of the extent to which current German, French, and federal U.S. environmental crimes fail to reflect the proposed approach.

The approach advocated in the article is important for practical reasons. For one, if the goal is really protection of the environment - and not just of human beings and their activities - that goal is likely to be reached more effectively by statutes that actually focus on the environment. In addition, a graduated punishment scheme will better hone the governments environmental protection tools: with crimes defined accurately to reflect different degrees in the harm at issue, convictions will more suitably fit the defendants' actions. Finally, statutes that define crimes more particularly can better limit the discretion of judges and other fact finders, better ensuring that the social goals reflected in authorized punishments are actually met.

Keywords: administrative, Belgium, causation, Clean Air Act (CAA), Clean Water Act (CWA), comparative law, environmental crimes, France, Germany, Netherlands, Resource Conservation and Recovery Act (RCRA)

JEL Classification: K00, K14, K23, K32, K33, K40, K41, K42, N50, O13, Q25, Q28

Suggested Citation

Mandiberg, Susan F. and Faure, Michael G., A Graduated Punishment Approach to Environmental Crimes: Beyond Vindication of Administrative Authority in the United States and Europe. Columbia Journal of Environmental Law, 2009; Lewis & Clark Law School Legal Studies Research Paper No. 2008-21. Available at SSRN: https://ssrn.com/abstract=1275547

Susan F. Mandiberg (Contact Author)

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States

Michael G. Faure

University of Maastricht - Faculty of Law, Metro ( email )

PO Box 616
Maastricht, 6200 MD
Netherlands
+31 - 43 - 388 30 60 (Phone)
+31 - 43 - 325 90 91 (Fax)

HOME PAGE: http://www.michaelfaure.be

Erasmus University Rotterdam (EUR) - Erasmus School of Law ( email )

3000 DR Rotterdam
Netherlands

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