Why do we have environmental crimes? What social harms are we addressing, and what interests are we vindicating through use of the criminal sanction? The answer to these questions is not found in traditional criminal law principles. This is because environmental interests and values do not enjoy an absolute protection in the law. Unlike theft or homicide, for example, which may cause personal benefits only to the criminal, most polluting activities generate substantial societal benefits as well as environmental costs. Thus, environmental law in many countries is aimed largely at an administrative control of pollution, usually through licensing and permitting systems. Environmental criminal statutes largely function to help ensure that control.

The interweaving of administrative and criminal law has been pronounced from the beginning of modern environmental crimes in the mid-twentieth century. Then, as now, environmental criminal law focused on punishing the lack of a permit or the violation of permit or other regulatory requirements and conditions. Despite environmental criminal law’s continued administrative dependence, however, European commentators have increasingly pointed to serious weaknesses in this approach. For one thing, if the role of the criminal law is restricted to punishing administrative disobedience, other types of pollution may go unpunished, thus limiting the ability of the criminal law to protect ecological values. In addition, unlike the situation with traditional crimes, administrators (not legislators) decide what is and is not criminal. This critique of the absolute administrative dependence of environmental criminal law has affected European legislation and international conventions. As a result, legislators and commentators are increasingly using other models of environmental crimes that are less dependent on administrative law.

The goal of this paper is to examine and advocate for approaches to environmental crimes which go beyond punishing disobedience of administrative rules and decisions. We acknowledge that an effective environmental criminal scheme must include administrative-disobedience crimes. For one thing, disobedience of at least some administrative decisions is a serious matter, as adherence to the administrative scheme is likely to prevent serious environmental harm in most instances. For another, such offenses are easiest to prove and thus provide a mechanism for punishing some environmental malfeasance that cannot be otherwise addressed.8 Nevertheless, actual harm to the environment—and the threat of such harm—is more serious than mere administrative disobedience. When the government can prove that someone has both acted unlawfully and caused or threatened such harm, an effective system should have criminal sanctions in place to address the situation. In addition, in circumstances of extreme environmental harm, it is important to include a crime that does not require the government to prove any disobedience to administrative rules and decisions. Finally, the authorized punishments for offenses on this continuum of environmental criminal statutes should be graduated according to the seriousness of the social harms at issue.