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

Abstract

The Gulf oil spill was the worst environmental disaster in U.S. history, and will be the most significant criminal case ever prosecuted under U.S. 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. The Justice Department also may decide to pursue charges for manslaughter, false statements, and obstruction of justice. The prosecution will shape public perceptions about environmental crime, for reasons that are understandable given the notoriety of the spill and the penalties at stake. 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 the spill's most distinctive qualities make it an anomalous environmental crime: the conduct was not as egregious, the harm was far worse, and the penalties 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 better 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 what the proper normative relationship should be between culpable conduct and environmental harm. Nor can criminal prosecution, without more, prevent future spills; for that to occur we must demand greater attention to safety and more rigorously enforce our drilling laws.