The Rhetoric of Environmental Crime: Culpability, Prosecutorial Discretion, and Structural Reform

Posted: 5 Feb 1999

See all articles by Kathleen F. Brickey

Kathleen F. Brickey

Washington University in St. Louis - School of Law


If there are lessons to be learned from the prosecution that followed the explosion of Consolidated Edison's asbestos-laden steam pipe in 1994, they are lessons about culpability, individual and institutional accountability, and prosecutorial discretion. Culpability, accountability and discretion are core issues in the burgeoning body of literature that challenges regulators' increased reliance on the criminal law to deter and punish environmental violations. The literature relies heavily on rhetoric, intuition and unarticulated assumptions to sustain the argument that criminal prosecutions should be disfavored because they place innocents at risk of being held strictly accountable for inadvertent and unavoidable technical violations. These arguments, in turn, lead to calls for reforming environmental criminal law by creating special substantive and evidentiary rules for environmental defendants. Oddly, none of the commentary endeavors to test hypotheses that are boldly presented as facts.

This article, which introduces the initial phase of my large-scale empirical study of environmental crime, presents a starkly different view of the dynamics of environmental prosecutions. The article first explores the myth that environmental statutes allow felony convictions without regard to intent, and exposes the flawed legal premises on which calls for elevating culpability and proof requirements are based. It then reveals that critics' portrayal of prosecutorial discretion as a dangerous and unnecessary tool is based on surprisingly naive assumptions about the degree of clarity generally found in criminal law and the critical role that prosecutorial discretion plays in its enforcement. The last part of the article demonstrates that critics' proposals for structural reform are based on mistaken factual assumptions about the dynamics of environmental prosecutions, and presents empirical evidence that strongly rebuts key assumptions on which calls for reform are based.

JEL Classification: K14, K32

Suggested Citation

Brickey, Kathleen F., The Rhetoric of Environmental Crime: Culpability, Prosecutorial Discretion, and Structural Reform. Available at SSRN:

Kathleen F. Brickey (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States
314-935-6482 (Phone)
314-935-8463 (Fax)

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