Whenever I discuss environmental crimes, it seems, I am confronted with a parade of horribles: “Suppose a businessman dumps toxic waste on his property that leaches into the water supply, killing everybody in the area and making the region uninhabitable forever. How can tort law possibly deal with that?”
I really don’t know.
But in light of those discussions, I thought it was interesting to consider this statement from Michael L. Volkov at the White Collar Crime Prof Blog: “In any year, there are only a handful of environmental crime incidents involving death or serious bodily injury.”
And what is the Environmental Protection Agency’s response to this happy news, according to Volkov: “The EPA’s Strategic Plan outlines a planned 20 percent increase in criminal prosecutions against individuals and corporations. The increased focus on criminal prosecutions reflects a decision by the EPA to increase criminal cases involving waste dumping and other statutory violations where significant harm to the environment or death or serious injury do not occur” (emphasis mine).
This seems to mean: The EPA is going to step up the prosecution of people, as criminals, whose actions do not amount to malum in se crimes—crimes that all civilizations recognize as crimes. Which in turn means: They are going to step up the prosecution of people, as criminals, whose actions are merely malum prohibitum crimes—crimes that are criminal only because some legislative majority decided to call them crimes.
Why would the EPA do this? Libertarians may like to point to Public Choice theory. And certainly the EPA’s plans will help it to maintain or expand budget and personnel. But if empire building were all that was involved, the EPA might equally well have launched a massive, multi-decade plan to study and implement a private-property approach to all the issues under its purview. That alone would require a huge budget and staff—at least for the next century, though perhaps not forever.
No. Public Choice theory has its strengths, but also its limits. And I think this case is one. The EPA is stepping up the criminal prosecution of businessmen, who have done no real wrong, not principally because that allows the agency to hire a lot of bureaucrats, but because the EPA embodies the spirit that Ayn Rand called “the Anti-Industrial Revolution.”