June 2011 Vol. 109 No. 8 THE REVIEW

After the Spill is Gone: The Gulf of Mexico, Environmental Crime, and the Criminal Law

David M. Uhlmann

The Gulf oil spill was the worst environmental disaster in U.S. history, and will be the most significant criminal case ever prosecuted under the environmental laws. The Justice Department is likely to prosecute BP, Transocean, and Halliburton for criminal violations of the Clean Water Act and the Migratory Bird Treaty Act, which will result in the largest fines ever imposed in the United States for any form of corporate crime, and possibly for manslaughter and other crimes as well. The prosecution will shape public perceptions about environmental crime, for reasons that are understandable given the notoriety of the spill and the likely penalties. In some respects, the Gulf oil spill is similar to other environmental crimes, most notably because it involves large corporations that committed serious violations because they put profits before environmental compliance and worker safety. Yet its most distinctive qualities make the Gulf oil spill an anomalous environmental crime, with conduct that was not as egregious, harm that was far worse, and penalties that bear no relation to norms for environmental crime.

The Justice Department should bring criminal charges based on the Gulf oil spill, because a criminal prosecution will deter future spills more than civil penalties alone and will express societal condemnation of the negligence that caused the spill in ways that civil enforcement cannot. But criminal prosecution of the Gulf oil spill may raise questions about the role of criminal enforcement under the environmental laws, including whether ordinary negligence should result in criminal liability as well as the proper normative relationship between culpable conduct and environmental harm.

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