Choosing a Better Path: The Misguided Appeal of Increased Criminal Liability after Deepwater Horizon

30 Pages Posted: 8 Jan 2012

Date Written: December 31, 2011


Despite the potential appeal of dramatically increased liability and sentences in the wake of environmental disasters like the Deepwater Horizon oil blowout in the Gulf of Mexico, this Article argues that more aggressive criminal provisions and enforcement related to environmental harms, up to and including strict criminal liability, are not likely to protect the environment better or lead to safer work environments. This Article first considers the history and legality of, and the rationale behind, policies designed to make it easier to convict allegedly responsible parties and also discusses the pursuit of increased liability in relation to disaster-related and tragedy-related events in the financial and criminal sectors. The Article then discusses the use of reduced burdens and strict liability in environmental law in both civil and criminal contexts, and argues that the use of strict liability is less effective than a negligence standard because it tends to reduce penalties, which can limit the direct punishment to violators, as well as the prophylactic potential of the laws. Finally, the Article concludes that, rather than reducing mens rea standards and increasing criminal liability, U.S. energy and environmental law needs to focus on encouraging proper risk assessment and risk management to promote safe and effective energy extraction and production while encouraging and protecting both the environment and the economy.

Keywords: strict liability, deepwater horizon, environment, oil, drilling, offshore

JEL Classification: Q40, Q48, Q43, K14, K23, K42, O13, K32

Suggested Citation

Fershee, Joshua Paul, Choosing a Better Path: The Misguided Appeal of Increased Criminal Liability after Deepwater Horizon (December 31, 2011). William & Mary Environmental Law and Policy Review, Vol. 36, No. 1, 2011. Available at SSRN:

Joshua Paul Fershee (Contact Author)

Dean & Professor of Law ( email )

2500 California Plaza
Omaha, NE 68178
United States
402-280-2348 (Phone)

HOME PAGE: http://

Register to save articles to
your library


Paper statistics

Abstract Views
PlumX Metrics