Essay: Environmental Crime Tort Laws Are Designed

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Environmental Crime

Tort laws are designed to protect individuals, groups or organizations against undue harm as a result of malice, negligence of willful recklessness. The key characteristics of tort concern the nature of the relationship between plaintiff and defendant, the degree of injury definable in the plaintiff and the liability of the defendant in the provocation or affliction of this injury. Usually, among the rudimentary factors in determining whether or not a party has some responsibility to those individuals negatively affected by some practice or incident at the behest of said party is that of a non-contractual association, with regards to negligence resulting from a more unintended or incidental relationship. So in determining whether or not a plaintiff is entitled to claims of a litigious nature, the legal process demands a comprehensive review of the relationship under contest. If it can be clearly deduced that an economic, personal or contextual loss was as a result of actions identifiable as originating with the defendant, than said plaintiff should find himself in a position of liability.

This form of legal conditionality is directly correlated to the measures available to the public in addressing matters of environmental concern. Though demands for federal improvement regarding emissions and toxic dumping have gone unheeded in the last decade of deregulatory executive orientation, the tools which environmental groups have at their disposal have been sharpened through tort proceeding success. The relationship between tort and environmental law is important, and in many ways helps to impose regulation in the absence of any legislative oversight. The inherency of negative environmental practices at the industrial level renders a reality whereby it will cause legally definable injury to those who either reside or own property within range of such behaviors as unsound dumping and waste disposal, the emission of air, water and groundsoil pollutants and the release of chemical toxins into the general surround environment.

The means that those impacted in terms of health, home, livelihood or ecology may have a tort claim against those identifiable forces responsible for producing the damage.

A precedent for a judicial perspective which seems to increasingly favor the use of tort law as a tool for improvement of environmental protections was established in 1991 with Johansen v. Combustion Engineering, Inc. Here, a group of property owners assembled to file suit against Combustion Engineering (CE) for its mining practices, which had demonstrably destroyed the ecological capacity of the possessed land and rendered it unfit for human or animal habitation. (Tager, 10196) Though none of the individuals claiming injury were personally, physically or physiologically impacted by the pollutant and environmentally degrading processes, they did make a case of injury strictly based on the impact which had been levied over the land upon which they made personal claims of ownership. As we approach discussion on the verdict in this suit, we can begin to see why this distinction is important in further establishing protections against industrial abuses.

To the point, the case review denotes that "the only harm the plaintiffs alleged were 'that the streams looked and smelled bad, that the streams no longer contained fish, and that cows would not drink from the streams." (Tager, 10198) Making the case that the mining operation at CE had caused such damage, the plaintiffs were ultimately rewarded for their claims in a statement of enormous legal significance where applying tort liability is concerned. In the resolution, "the court concluded that a punitive award that is 100 times the compensatory damages and 435 times the fine imposed by the expert state agency for the conduct at issue was not unconstitutionally excessive because 'the actual damages awarded were relatively small; yet the state's interest in deterring the conduct -- environmental pollution -- is strong." (Tager, 10198) This is quite aggressively demonstrated by the verdict, which would not simply find tort liability present in instances where not malice but negative environmental practice could be sufficient for attributing the affliction of injury but would additionally create a high latitude for plaintiffs and judges to seek monetary damages. Where state and federal economic imposition for failure to meet legislative standards tends to be eclipsed by the loss of profitability in managing environmental practices more responsibly, this decision arms environmental groups with a more powerful economic deterrent. The threat of such exorbitant fines might serve to encourage more environmentally responsible practices.

By contrast, there are a great many law firms which function on the benefits of representing pollution offenders. Indeed, a quick online search of tort laws brings one to quick contact with a wide array of firms offering services for "defending against toxic tort claims alleging death, injury, and fear of cancer from plant air emissions." (Findlaw, 1) This helps to reflect the single greatest obstacle to using tort law as a way to redress imbalanced legal policy. Particularly, the courts tend to be impacted by a notable economic imbalance, where greater legal representation and more extensive legal and financial resources tend to suggest an advantage in such proceedings for defendants. Thus, without the meaningful support of a legislative initiative to reduce emissions and pollution flexibility, tort laws will likely fall somewhat short of the impact which is needed to help turn the tide against corporate environmental criminals.

2. Today, the fight against environmental abuses rings with more political credibility, especially with the new and progressive President Obama now in office. And just as we can see the environmental movement using language in order to share or argue against certain beliefs and perspectives, it is also to oppose a manipulation in language to the destruction of the environment. Both environmental activists and polluters depend on the public impression for the furthering of their causes, and this makes the discussion on environmental language a very crucial one if we are to understand the political factors of the environmental movement for the public. Particularly, there is an ongoing and crucial battle between environmentally progressive leaders and those who represent the interests of big industry.

It is within the scope of this debate that we consider the distinctions and similarities between the use of criminal law and the use of regulatory oversight in addressing environmental abuses. The primary commonality in these approaches is in their shared interest, which is the disruption, reduction and elimination of the types of abuses that can have a systematically devastating effect on the environment. Criminal law employs the creation and enforcement of regulation, with enforcement taking the form of legal liability where trespass is apparent. To the same interest of reducing or deterring pollution, regulation provides standards by which companies and other polluters must abide in order to receive certain tax benefits or to bypass federally imposed fines.

The most important distinction between these two approaches is that criminal law tends to take a reactionary approach to environmental issues, as might we argue is a precondition of criminal law as a whole. Its role as a respondent to conditions of environmental abuse will usually take the form of the above elaborated tort claim levied by those claiming to be victims of criminal environmental abuses. Absent of such charges, criminal law tends to be of lesser usefulness in terms of providing protections than regulations, which are of a more pointedly preventative nature.

And indeed, there is reason to argue that an absence of collective will for meaningful enforcement has rendered much environmental criminal law rather toothless. As our research denotes, "in the field of environmental law at present, ineffective application and enforcement remains a major problem1 and ranks higher than in any other policy (with the exception of the much bigger internal market sector). In the environmental sector hardly one directive (be it in water, waste, soil or other sectors) has been implemented and enforced by all Member States." (Demmke, 1) This is true on a global level, with the greatest contributors to the world economy also commonly reflecting the worst records in enforcing shared standards for protection through enforcement.

Today, however, there is promise to the world community in the form of new American leadership. Indeed, President Obama has promised to levy widespread regulatory oversight to compensate for a rollback in all these areas across recent years. His attention to this approach highlights the perception shared by this account that regulatory oversight is the only way to truly prevent the types of practices which have led us down such a catastrophic path. And given the heavy economic and political interests involved, Obama is facing entrenched opposition from those who have profited from a deregulated business atmosphere and its attendant opportunity to act against the environment with almost total impunity.

This is evidenced by the rhetoric now being aimed at the new administration from those who stand to lose this impunity. According to a conservative industry blog called the Heritage Foundation, for one example, "with a new president and a new Congress, we could be facing new regulations when it comes to energy production. There's the possibility of a massive cap and trade regulation… [END OF PREVIEW]

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