Locating the Environmental Harm in Environmental Crimes

The current approach to environmental harm is odd from a criminal law perspective. The environmental criminal statutes barely deal with the subject at all. The environmental sentencing guidelines, on the other hand, focus almost entirely on harm. The resulting system does not adequately address the role of harm in evaluating the seriousness of environmental crimes or in graduating punishment for different levels of offenders.

Although the situation could be resolved through amendments to the sentencing guidelines, a statutory approach has certain advantages from a societal perspective. There is no need to jettison the current statutory approach, which works well to address affronts to regulatory authority. Authorization of increased punishment for regulatory violators who cause significant environmental harm, however, would provide both the government and the defense community with a more finely tuned way to address environmental crime.