Voume 53, Issue 4

Chemical substance crimes that involve significant harm or culpable conduct impact marginalized communities at a much greater rate than the general population. While the Biden Administration has made historic commitments to fund enhanced enforcement efforts in environmental justice communities to protect them from toxic exposures, we still know very little about how companies have been criminally prosecuted for violations of the Toxic Substances Control Act (TSCA) and how TSCA criminal enforcement might be applied to marginalized communities. Using content analysis of 2,728 environmental crime prosecutions derived from U.S. Environmental Protection Agency (EPA) criminal investigations, 1983–2021, we analyzed all criminal prosecutions of companies under TSCA. Results show that EPA adjudicated twenty-six prosecutions, with fifty-six years of probation and over $33 million assessed to companies at sentencing, but a few large- penalty outliers considerably impacted total monetary penalties. Forty-six percent of prosecutions involved polychlorinated biphenyls (PCBs), 30% involved asbestos, and 23% involved lead- based paint. We conclude by discussing the value of TSCA criminal enforcement for criminal deterrence and the necessity of additional resources for expanding prosecutions under TSCA, as well as offering prescriptions for increasing TSCA criminal enforcement as part of a broader enforcement strategy to mitigate environmental harm in marginalized communities.

Every significant decision made by government agencies, and many made by private organizations, impacts climate change. Ignoring those impacts is increasingly unacceptable. But how to account for a decision’s impact on the climate is far from clear. This article seeks to answer that question in the context of the greenhouse gas (GHG) emissions that will likely result from a proposed action and begins with a detailed description of the environmental impact assessment (EIA) process. EIA is crucial to understanding the likely consequences of a proposed action, including the climate- related consequences. EIA also serves as the primary vehicle for estimating GHG emissions and assessing the social cost associated with those emissions. While EIA is most commonly used by government decision makers, tools like EIA work equally well, and are at least as useful in evaluating private actions and their climate impacts.

The article then considers how the environmental assessment should address the difficult questions associated with quantifying GHG emissions. To what extent, for example, should indirect emissions count, and how should decision makers calculate them? Once decision makers quantify GHG emissions, they must quantify their cost to society. The social cost of carbon or, more specifically, the “social cost of greenhouse gases” (SC-GHG), is an increasingly popular tool that provides an estimate of that cost and helps ensure that cost receives fair consideration when an agency is choosing among available options.

Finally, the article considers the growing movement towards corporate social responsibility as reflected in the push for investment firms and corporations to adopt environment, social, and governance (ESG) policies. While ESG standards are currently lacking clear definition, and while the idea that corporations would follow ESG policies is controversial within some conservative circles, the movement towards ESG policies in the private sector offers an excellent opportunity to focus organizations on their responsibility to account for the climate impacts associated with every important decision that they make.