The last couple of years have been rough for the environment. Fracking, oil spills, and, of course, climate change, which is frequently linked to floods and other natural disasters, have made negative news from the warm waters of the Gulf to the chilly climate of northern Canada. Inevitably, these events lead for a call that somebody be held accountable. This week, a New York Times op-ed made the compelling argument that our focus on finding someone to send to jail obscures what’s really needed for better corporate conduct: Better rules.
Author Chase Madar notes that the lead poisoning of the water supply in Flint is a perfect example of this:
The latest criminal charges of public officials in the contamination of the Flint, Mich., water supply seem righteous. After so much government ineptitude with such hideous consequences — tens of thousands of Flint residents poisoned; elevated blood lead levels in nearly 5 percent of the city’s children, many with possibly irreversible brain damage — surely these criminal charges will bring, at long last, justice for Flint.
Not really. Though these sorts of charges fulfill an emotional need for retribution and are of great benefit to district attorneys on the make, they are seldom more than a mediagenic booby prize. Prosecutorial responses fill the void left when health and safety regulations succumb to corporate and political pressure.
Madar’s core arguments are that a) corporate lobbying and political influence often block the kind of regulatory changes that are needed to ensure things like the purity of our tap water or safety for mine workers and b) the criminal prosecutions that do occur tend not to go after the so-called “big fish.” He explains:
Criminal law, however, turns out to be a lot better at catching the small, sad fish of middle management than the sharks of industry and finance. Go to the F.B.I.’s “most wanted” webpage for white-collar crime and what leaps out is how many on the list are nonwhite and how petty their swindles are.
As for the Flint charges — nine officials face them now — no one can doubt that they shine a helpful media spotlight on Michigan’s attorney general, Bill Schuette, a Republican with a widely reported eye on the governor’s mansion in 2018. Nothing in Mr. Schuette’slong career in politics indicates that he would try to resolve the infrastructural crisis of Flint and Michigan’s Flints-in-waiting with major public investment in infrastructure and a regulatory framework. That would take courage in today’s climate of neoliberal austerity. On the other hand, Mr. Schuette is brave enough to go after a handful of low-to-mid-level state officials.
The injustice of the Flint contamination and other safety disasters demand a meaningful response. Criminal law is not the right tool for the job.
I don’t entirely agree with the author’s point: I think criminal charges are an important tool in the arsenal of making sure that it’s more costly for a corporation to do bad than it is to do the right thing; in fact, I was deeply disappointed that more BP officials weren’t charged over the gross negligence that occurred in the Deepwater Horizon catastrophe. I’ve focused my career as an environmental lawyer using the tort process to get justice for victims of corporate environmental abuse — in part because I know that the regulatory and lawmaking process will only let them down. But Madar is exactly right on the big picture: The best way to make sure that the water we drink and the air we breathe is safe is to make sure pollution is against the rules in the first place.
Read Chase Madar’s New York Times op-ed about corporate liability and regulations: http://www.nytimes.com/2016/08/24/opinion/the-real-crime-is-whats-not-done.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-left-region®ion=opinion-c-col-left-region&WT.nav=opinion-c-col-left-region
Learn more about the need for worldwide action on fossil fuels in my new book, Crude Justice: How I Fought Big Oil and Won, and What You Should Know About the New Environmental Attack on America: http://shop.benbellabooks.com/crude-justice
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