Reconceptualizing Parens Patriae as Environmental Crimtorts

The Gulf States’ torts litigation in the aftermath of the BP oil spill is the most recent stage in the evolution of crimtorts – environmental litigation by government lawyers that redresses conduct on the borderline between crime and torts. In our earlier work, we coined the term “crimtort” as a heuristic device to describe the myriad ways that criminal law principles were exported into tort law. Crimtort litigation not only served as a means of civil recourse but also had broader societal purposes such as constraining corporate wrongdoers. In “crimtort” cases, private attorneys general uncovered smoking gun evidence of a company’s practices or procedures that threatened the consuming public’s health, safety, and well-being. In this article, we expand our theory of crimtort to explain the U.S. and Mexican Gulf State governmental actions against the BP oil defendants. These civil actions by government lawyers, often working in cooperation with trial lawyers, raise many of the same challenging issues for tort law, constitutional law, and public policy as in the public health torts filed by government lawyers in the 1990s to constrain the tobacco, lead paint, and hand gun industries. We reconceptualize the environmental parens patriae lawsuits as crimtorts that bridge the gap left by inadequate regulation of big oil companies and other corporate wrongdoers. Briefly, our thesis is that the environmental crimtort merges features of criminal law, tort law, and regulation to punish and deter oil companies whose reckless practices create environmental devastation. This Article compares and contrasts the environmental crimtort to other law, policy and society alternatives. Part I examines four options for resolving the aftermath of the BP oil spill and environmental mass disasters: (1) Micro level one-on-one torts; (2) Meso level Class Actions; (3) The Macro level Gulf Coast Claims Facility; and (4) Macro level governmental parens patriae environmental actions. Part II traces the path of parens patriae litigation from its origins in England and the United States to protect children, the mentally ill, and other legal incompetents to redressing larger social problems such as public health and environmental threats. This part also addresses arguments against expanding parens patriae to public health and environmental torts and concludes that, despite its potential drawbacks, this approach is the best public policy because parens patriae actions offer collective solutions without sacrificing political accountability and openness. Part III examines the parens patriae action as emblematic of an “environmental crimtort.” The recent public nuisance lawsuits by the Gulf Coast States are necessary to prevent the cascading impact of hundreds of thousands of individual and class actions from overwhelming the federal and state courts. The Gulf Coast Claims Facility is able to adjudicate hundreds of thousands of claims efficiently but lacks legitimacy because of its overdependence on the arbitrary power of a single claims administrator and its lack of public accountability. These environmental crimtort actions by U.S. and foreign states provide a collective solution without becoming a de facto Fourth Branch of government without bypassing the civil justice system.