Miller, Jeffrey G.; Justice, Caroline --- "Organizational Liability for Environmental Crimes in Civil and Common Law Systems" [2011] ELECD 311; in Paddock, Lee; Qun, Du; Kotzé, J. Louis; Markell, L. David; Markowitz, J. Kenneth; Zaelke, Durwood (eds), "Compliance and Enforcement in Environmental Law" (Edward Elgar Publishing, 2011)

Book Title: Compliance and Enforcement in Environmental Law

Editor(s): Paddock, Lee; Qun, Du; Kotzé, J. Louis; Markell, L. David; Markowitz, J. Kenneth; Zaelke, Durwood

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848448315

Section: Chapter 7

Section Title: Organizational Liability for Environmental Crimes in Civil and Common Law Systems

Author(s): Miller, Jeffrey G.; Justice, Caroline

Number of pages: 26

Extract:

7. Organizational Liability for
Environmental Crimes in Civil and
Common Law Systems
Jeffrey G. Miller* and Caroline J ustice**


1. INTRODUCTION

As environmental law matures globally, environmental law-making will become
less important than environmental law enforcement. For environmental law
enforcement to be effective, officials must have access to a broad array of
effective enforcement actions and sanctions. They surely must include the most
potent enforcement action: criminal prosecution. 1 Since the largest potential
environmental violators are corporations and other organizations, effective
criminal enforcement in the environmental sphere raises the perennial issue of
whether artificial entities can be criminally liable. The debate that issue has
engendered in criminal law generally must now be replayed in environmental
law. 2
Civil law and common law systems initially shared the doctrine that
organizations cannot be subject to criminal liability because they are artificial
people. 3 Because they are incorporeal, they cannot act, they cannot have criminal
intent, and they cannot be incarcerated. That doctrine may be appropriate for
traditional crimes of violence. But over the last century virtually all countries
have enacted extensive legislation to protect society from pollution, despoliation
of the environment, and a host of other economic or business-related evils, such
as monopoly, consumer fraud, and discrimination. Many of these statutes
criminalize violations. Under traditional legal doctrine, employees of
organizations violating these statutes can be prosecuted criminally but the
organizations, on whose behalves they violate, cannot. This raises the question of
whether the social objectives promoted by those statutes can ...