Environmental Enforcement in the Age of Trump

Is it time for a retributive turn in environmental law?

Many thought that the BP Oil Spill would lead to new environmental legislation, as happened after past environmental disasters.  That didn’t happen.  But something else did happen: BP paid $24 billion in civil and criminal penalties.   In an era where any effort at government regulation is immediately denounced as a dire threat to liberty, there was nary a peep out of Republican politicians about these massive penalties.Nor do I hear Trump, Cruz, or Rubio defending Volkswagen from penalties.  The moral is that the public is much more united behind punishment for corporate wrongdoers than it is about new regulation.

This makes sense if you think about the arguments that are made against regulation.  Opponents of regulation have successfully spun their position as protecting consumers from higher prices and workers from lost jobs.  Corporate shareholders, and corporations as entities, don’t get such a respectful hearing.  Indeed, “corporate welfarism” is reviled by the Tea Party, and big business remains low in public esteem.  Punishing corporate wrongdoers also fits well with the populist anger at both ends of the political spectrum — it’s something Trump supporters and Sanders supporters can both support.  Indeed, on both the Right and Left, few things have caused as much anger as the government’s bailout of banks rather than punishing the financial institutions responsible for the financial crash.

The main benefit of punishing corporate wrongdoers is deterrence, which is partly due to the punishment itself but also due to the public stigma that comes along with penalties.  After the Exxon Valdez spill, the company became a paragon of safety offshore.  But there is another benefit, because it reinforces the idea that environmental law is stopping companies from doing something morally wrong.

It would be wrong to oversell the potential role of punitive actions.  There are other incentives for compliance that often make more sense, and corporate officials are by no means all enemies of the environment.  But in a time when new regulations are so fiercely resisted, coming down hard on corporate violators of existing regulations may be a sound strategy.

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Reader Comments

5 Replies to “Environmental Enforcement in the Age of Trump”

  1. Tragically, last nights results prove again that environmental efforts to win the minds of the electorate during the presidential election are being crushed by two political parties that totally fail to heed the call of nature.

    The developing worst case scenario is that Trump appears to have won the minds of far too many voters who are tragically easy to win over with political propaganda that hasn’t been experienced since Germany lost their democracy was overwhelmed by Nazi propaganda.

    It is all too clear that as long as environmentalists continue to fail to produce leadership and unite to inform, educate and motivate people to save our planet from global warming, the worst loser in the election shall most certainly be the human race.

    This election is that important, time is running out faster than even environmentalists appear to admit.

    1. Anthony said;
      “….. save our planet from global warming, the worst loser in the election shall most certainly be the human race…..”

      Dear Anthony,
      Cheer up! its not so bad. The climate doesn’t care who is President. Scientists and politicians cannot change the climate and save the world. President Trump understands this, so does Hillary but she is not truthful . The climate doesn’t care, but we care and that is why Hillary cannot be President.

      1. BQRQ, the most inconvenient truth about global warming is that politicians and intellectuals only care to talk and write about things, that’s all they have do to get paid.

        They don’t really care enough to make the effort to actually make the right things happen because they are dominated by the power of money that doesn’t want them to care about the long-term future of the human race so they can maximize their profits today.

        Politicians and intellectuals keep proving that, according to evolutionary biologists like Ornstein, Ehrlich and Wilson, their mental limitations prevent them from solving problems and taking actions that protect future generations.

  2. “The moral is that the public is much more united behind punishment for corporate wrongdoers than it is about new regulation.” No factual support given [or possible] for this false dichotomy, but maybe Hilary fans, neocons and the GOP crowd will lap it up. The Flint drinking water problem shows that the people want more not less regulation and enforcement.

    “The main benefit of punishing corporate wrongdoers is deterrence,…”. No factual support given [or possible] for this ‘deterrence’ baloney either. The statutes authorize penalties to achieve deterrence but EPA and DOJ practice is to always settle for far less than deterrence requires– most activist locals know this notwithstadning EPA settlements listed for public review on DOJ’s webpages do not support review on this point. http://e360.yale.edu/feature/twenty_years_later_impacts__of_the_exxon_valdez_linger/2133/

    1. How can we trust any California utilities, regulators and politicians after

      the 2010 PG&E San Bruno gas explosion deaths,

      the long-long-term future SCE San Onofre nuclear radiation threats to people in Orange and San Diego counties,

      the SoCalGas gas leaks that have seriously injured people in Porter Ranch,

      and no one is being held accountable for manslaughter and/or gross criminal negligence that is destroying public safety and health throughout California?

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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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