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Many policymakers remain blind to the moral implications of environmental harm caused by government action (or inaction) and have not adequately considered how criminal law deals with similar immoral behavior in other contexts. Building from Lisa Heinzerling’s thought-provoking essay Knowing Killing and Environmental Law, this article considers the possibility of criminal culpability for environmental policy decisions and the implications of that potential culpability for decision-making and communication. It builds from the premise that morality and law universally condemn the knowing killing of other human beings. It matters not that the identities of the dead are unknown. What matters from the perspective of the criminal law is whether the actor causing their deaths possessed the requisite level of mens rea. Thus, the lens of the criminal law concept of intent can be used to examine the choices we, as a society, make in designing environmental policy. This perspective can be informed not only by the basic principles of criminal law but also by recent developments in criminology, the law of corporate and environmental crime, and relevant historical precedent. This article makes the case that the criminal law mode of analysis could prove useful to prosecutors and policymakers. Ultimately, the article will apply this theoretical framework to environmental policy decisions currently challenging local, state, and national governments.

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Penn State Law Review



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