Punishing for Abetting Climate Change: A Gap in Causation?

By Nicolette Pellegrino

Humans are expediting global warming and destroying Planet Earth.1 Earth’s climate has naturally altered throughout the last 650,000 years due to minute changes in its orbit.2 But today, scientists are almost certain that the current warming of planet Earth is “human-induced.”3 For centuries, the carbon dioxide level in Earth’s atmosphere has never reached over 300 parts per million (ppm).4 However, since the Industrial Revolution in the 1950s, carbon dioxide levels have soared to 400 ppm – a 40 percent increase.5 Consequently, in the 1980’s, the American Government began to implement statutes and regulations to punish and penalize those who pollute the environment with the intent of combating climate change.6

Implementing punishment of environmental law is complex. Although some states are taking steps towards regulating Greenhouse Gas emissions, “the federal government […] has failed to produce domestic strategies to address the problem in any meaningful way.”7 While criminal law requires perpetrators to violate “clear legal duties,” environmental law encompasses “dense regulatory requirements.”8 Furthermore, Congress has enforced that all statutes regulating the environment must contain “both civil and criminal sanctions.”9

Various enforcement methods currently exist pertaining to environmental crimes, they are: civil administrative actions, civil judicial actions, and criminal actions.10 While Administrative actions usually order an individual or entity to take action, civil judicial actions can order a party to pay for the EPA to cleanup the party’s pollution. Meanwhile, criminal actions occur when either the EPA or a state wishes to enforce a regulation against an entity or person and are “are usually reserved for the most serious violations, those that are willful, or knowingly committed.”11 Such criminal actions require “scienter,” or the element of mens rea. Mens rea is known as the “guilty mind.”12 Thus, those who are criminally punished for environmental crimes must have been aware of their criminal conduct. Logically, a conviction following criminal actions can result in fines or imprisonment.13

However, at what point does the causational chain become too far-stretched? In 2009, the Fifth Circuit Court in New Orleans decided, “that victims of Hurricane Katrina have legal standing to sue over global warming-related damages.”14 Who would be held liable for the damages? Is it fair to sue a company or individual for the damages incurred by a natural disaster? Perhaps, when science has proven that global warming can cause “bilateral tipping,” which causes the Earth’s momentum to switch from accelerating to deceleration, triggering seismic events such as earthquakes and other natural disasters.15 But how far will the causational links be stretched?

1 NASA, “Global Climate Change” http://climate.nasa.gov/evidence/; The Environmental Defense Fund, What Sparked Global Warming? People Did https://www.edf.org/climate/what-sparked-global-warming-people-did; Jorgenson, Andrew K., Global Warming and the Neglected Greenhouse Gas: A Cross-National Study of the Social Causes of Methane Emissions Intensity (1995).

2 NASA, “Global Climate Change” http://climate.nasa.gov/evidence/

3 NASA, “Global Climate Change” http://climate.nasa.gov/evidence/; The Environmental Defense Fund, What Sparked Global Warming? People Did https://www.edf.org/climate/what-sparked-global-warming-people-did

4 NASA, “Global Climate Change” http://climate.nasa.gov/evidence/

5 NASA, “Global Climate Change” http://climate.nasa.gov/evidence/; The Environmental Defense Fund “What Sparked Global Warming? People Did.” https://www.edf.org/climate/what-sparked-global-warming-people-did

6 Skinnider, Eileen, Effect, Issues and Challenges for Victims of Crimes that have a Significant Impact on the Environment, United Nations Crime Prevention and Criminal Justice Programme Network of Institutes (March 2013), https://www.unodc.org/documents/commissions/CCPCJ/CCPCJ_Sessions/CCPCJ_22/PNI_Workshop/Paper_ICCLR_CJP_PNI-Workshop.pdf

7 Kevin Haroff & Jacqueline Hartis, Climate Change and the Courts: Litigating the Causes and Consequences of Global Warming, Natural Resources & Environment 50-55 (Vol. 22 Issue 3, 2008).

8 David M. Uhlmann, Environmental Crime Comes of Age: The Evolution of Criminal Enforcement in the Environmental Regulatory Scheme, http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1786&context=articles

9 The Criminal Process in Environmental Regulation, p. 6-42, http://www.law.uh.edu/faculty/thester/courses/Environmental-Practicum-2014/syllabus/chap6.pdf

10 See further United States Environmental Protection Agency, Enforcement Basic Information, https://www.epa.gov/enforcement/enforcement-basic-information

11 U.S. Environmental Protection Agency, https://www.epa.gov/enforcement/enforcement-basic-information

13 United States Environmental Protection Agency, Enforcement Basic Information https://www.epa.gov/enforcement/enforcement-basic-information

14 Fuel For Thought. Energy & Environment [serial online]. January 2010;20/21(8/1):1411-1489. Available from: GreenFILE, Ipswich, MA. Accessed January 8, 2017.

15 Fairbridge, Rhodes W., Global Warming and the Tipping Point, International Journal of Environmental Studies, Vol. 63, No. 4, p. 361-371 (August 2006); Science Direct, Crime, Weather, and Climate Change. http://www.sciencedirect.com/science/article/pii/S0095069613001289.

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