This paper offers a brief theoretical overview of the problem of environmental crime as, on the one hand, a legal, and on the other, an economic phenomenon. In particular, it seeks to determine the circumstances, if any, in which criminal law may represent an efficient policy tool for the deterrence of environmental offences. The standard legislative approach to deterring environmental pollution has been a system of tort. Tort has been judged normatively preferable to criminalisation for two reasons: firstly in that, criminal non-monetary sanctions, such as imprisonment, are taken further to incur social costs; and secondly, because it is supposed that potentially polluting firms and their employees will be able to transact private agreements between themselves effectively transferring risks. This framework of arguments, however, is challenged by the hypothesis that individual employees may evaluate choices of action sub-optimally in the domain of chance. In situations featuring inherent risk, it has been established that individuals commonly deviate from prefect rationality, becoming riskaverse when facing gains and risk-seeking when facing losses. While broadly accepting the preferability of tort to criminal law in seeking to limit pollution, this paper investigates the claim that risk demarcates a field of special circumstances for which lawmakers can optimise social welfare by maintaining the threat of criminal penalties. In other words, the different risk-seeking and risk-averse behaviour of groups (firms) and individuals interferes with the efficient contractual transfer of risks. Where tort law is unable to effect the full internalisation to firms of the externalities of their actions (pollution), a secondary criminal law framework may become necessary for optimal deterrence. Where my account will be new, however, will be in factoring into discussion a consideration of findings from psychology, suggesting that behaviour ceases to be rational in circumstances where expected utility cannot be calculated with certainty.
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