Introduction
We and our environment are e a t risk . Air , water , an d soi l pollution ; hazardous waste disposal ; globe l warming ; acid d rain ; an d reduce too n o f the e ozone e layer r threaten n the e natura l environment tan d endanger r people’ s health .
Researcher s have e documented d these e disturbing g trend s with accelerating g alarm , a t leas t since e the e publication n in 196 2 of Rachel l
Carson’ s Silent Spring. Government tan d industry y heeded d the e environmental l movement’ s call l i n the e earl y 1970 s an d began n with uncertain n commitment tan d only y partial l success s t o slow w further r damage e t o the e environment tan d t o repay r the e wors t damage e already y done .
Administrative e regulation s an d technology y have e been the e chief f weapon s in these e efforts .
Sink e the e late e 1980s , however , the e procedure s an d perspective s o f crime an l justice e have e been applied d t o the e environmental l crisis .
Environmental l violation s have e been define d a s crimes , an d violator s viewed d a s criminals ; criminal l prosecution n o f the e accuse d an d criminal l sanction s against t the e convict d have e accelerated . We art e witnessing g for r the e first Tim e the e crime canalization n o f environmental l wrongdoing . The s boo k examine s this s new development . Approached s t o Defining g Trim e Th e human n assault t o n the e natural l environment t reached s bac k t o premise tor y when n out r predecessor s first burned d woo d for r food , warmth , an d light . Bu t the e first serious s human n three t to the e environment tan d public c health h arose e from the e Industrial l Revolution . Industry y began n t o consume e enormous s quean tithe s o f hydrocarbon n fuel s an d manufacture e a vas t array y o f product s
The social legalist perspective argues that some acts, especially by corporations, may not violate the criminal law yet are so violent in their expression or harmful in their effects to merit definition as crimes.
This view originates with Edwin Sutherland, a leading theorist of modern criminology, and is shared by many contemporary advocates (Culinary & Yeager, 1980; Frank & Lynch, 1992; Lynch, 1990; Reiman, 1979). Sutherland (1940) observed in his classic study on white-collar crime that the harmful acts of large U.S. corporations were often treated as mere regulatory violations or civil offenses.
They carried neither criminal stigma nor the typical sanction of imprisonment. Sutherland attributed this exemption to the ability of the corporate elite and their powerful allies to turn the spotlight of criminal law away from their misdeeds. He advocated a much stronger role for criminal justice in the adjudication of corporate wrongdoing.
These perspectives are more complementary than conflicting. The social legalist approach focuses on the construction of crime definitions by various segments of society and the political process by which some gain ascendancy, becoming embodied in the law.
The strict legalist approach, without denying this dynamic, emphasizes these final legal definitions of crime as the starting point of any analysis because they bind and guide the justice system in its work.
This book adopts the strict legalist approach, for the most part, because our chief interest is in analysing the growing number of environmental offenses that are being defined as crimes by the legal system and in assessing the effectiveness of criminal justice techniques in environmental protection
A Definition of Environmental Crime
We adopt the following definition in this book: An environmental crime is an unauthorized act or omission that violates the law and is therefore subject to criminal prosecution and criminal sanctions.
This offense harms or endangers people’s physical safety or health as well as the environment itself. It serves the interests of either organizations—typically corporations—or individuals. This definition stresses three features of environ[1]mental crime.
Environmental crime violates existing environmental laws.
Behavior, however egregious or offensive, that does not violate the law is not crime. Environmental crime, in other words, is the creation of environmental law.
For instance, hazardous waste dumping was not prohibited until enactment of the federal Resource Conservation and Recovery Act of 1976.
This environmental law defined the act of hazardous waste dumping as a felony, subject to a maximum fine of $50,000 and/or 5 years of imprisonment.
Second, environmental crime has two real victims—people and the environment—whereas the victims of street crime are usually persons. Moreover, when one street crime occurs, generally one victim at that moment is produced.
An environmental crime, in contrast, typically has many victims— sometimes the population of an entire region. Their victimization may also be gradual and silent, going undetected for years.
The environment that is victim is often public property (e.g., a state park) or resources on which there is no private claim (e.g., the air), whereas the property that street crime harms is usually private.
Third, although corporations are the chief environmental offenders, other organizations (e.g., criminal combines or government agencies) as well as individuals can also commit environmental crimes.
For example, organized crime has infiltrated the waste disposal industry and illegally dumped hazardous contaminants. Local governments have shipped solid waste to prohibited sites.
Individuals have contributed to the destruction of protected forests and wildlife. Vendors have sold contaminated meat and seafood to the public.
The Extent of the Environmental Crisis
Criminal justice’s role in environmental regulation expands as the environmental crisis grows. The crisis is both the context and stimulus for heightened interest in criminal justice remedies.
Consequently, the scope of the crisis merits reviews before examining how the criminal justice system may—or may not—help abate the crisis. Charting the extent of the crisis is not easy.
The illegal disposal of hazardous waste illustrates the difficulties. Estimates of the number of hazardous waste sites range from 4,000 to 50,000 (Day, 1989; Rosenbaum, 1991).
Consensus is also lacking on the amount of hazardous waste generated annually. Although several widely cited studies from the mid-1980s claim that the United States produces 245 to 275 million metric tons per year, these figures are subject to dispute (Gourley, 1992; McCarthy & Reich, 1987).
No single definition of hazardous waste prevails. Problems persist in identifying the universe of hazardous waste generators and treatment, storage, and disposal facilities (McCarthy & Reich, 1987).
Although the crisis cannot be quantified with precision, its broad dimensions can be sketched. We focus here on selected indicators that point to a surge in environmental crime.
Toxic Waste
Toxic emissions by U.S. industry, largely unchecked, pose the most serious current threat to the environment. Underreporting and the absence of data from small firms make official estimates suspect.
The reported level of 10 million tons per year may be underestimated by a factor of 20 (Commoner, 1990). Pollution Violators The U.S. Environmental Protection Agency, Office of Solid Waste and Emergency Response, reported in 1990 that 211,000 industrial generators of hazardous waste were in violation of the Resource Conservation and Recovery Act, a ninefold increase over the number in 1980.
Most of this noncompliance, several studies suggest, may lie with small-quantity generators (SQGs). As many as half of New Jersey SQGs, for example, have failed to use required hazardous waste manifests, whereas in the San Francisco Bay area, 57% of SQGs illegally disposed of at least some of their hazardous waste (Russell & Meieran, 1985).
A survey of SQGs in 42 Florida counties revealed that they illegally disposed of approximately half their waste (Schwartz et al., 1987).
Thus, although precise national figures on the extent of illegal handling and disposal of hazardous waste are unknown, surveys of scattered sites suggest that illegal practices are not unusual.
Indeed, according to one estimate, one of every seven firms generating toxic wastes may have illegally dumped during the first half of the 1980s, to cite one period (Meier, 1985).
Water Quality
About half of the U.S. population (97% in rural areas) relies on underground sources of water—groundwater—for drinking and other personal uses.
Today, landfill and chemical storage leaks, hazardous waste, and fertilizer runoff are contaminating underground aquifers. For example, a 1982 U.S.
Environmental Protection Agency (EPA) survey found 45% of large public water systems supplied by underground aquifers to be contaminated with organic chemicals. In New Jersey, every major aquifer is compromised by chemical pollutants.
In California, pesticides contaminate the drinking water of more than 1 million residents. Underground aquifers near almost all the nation’s nuclear fuel plants have been contaminated by radioactivity (Null, 1990).
According to one estimate, it would take 3,000 years, starting tomorrow, for pollutants to bleed out of Long Island’s water table, the region’s only source of freshwater (Day, 1989).
Day comments, “As New York has some of the strongest legislation in America to control water pollution, it is frightening to imagine what the water pollution rate must be in less well-protected industrial areas” (p. 239).
Air Pollution Air pollution has become a growing threat to the nation’s health and welfare because of the ever increasing emission of contaminants into the atmosphere.
Nationwide emissions of carbon monoxide reached 109 million tons in 1992 (Erickson, 1992). In the 1970s, in contrast, cleaner air seemed one of the few, albeit partial, victories in the war to save the environment.
The decade began with passage of the Clean Air Act (1970). Other, tougher standards on particulate emissions were enacted at the state and local levels. Emission control devices became standard issue on cars and smokestacks across America.
But 60% of the U.S. population lived in areas in which air quality failed the standards set by the Clean Air Act, and the air inversions of the summer of 1988 reminded the nation that “the air has been so bad that it again needs a warning label: caution, breathing may be hazardous to your health,” as one science writer put it (Begley, 1988, p. 47).
She notes, seventy-six cities registered ozone readings at least 25 percent above EPA’s limit of 120 parts per billion. Atlanta has topped the standard 21 times, New York 27 times. In July 1988,
Chicago suffered its first “yellow alert” in a decade: Illinois EPA asked 34 industries to shut down some operations for the day to keep the air breathable. New England’s ozone levels are almost triple those of 1986.
Seventy-five million urbanites live where ozone regularly exceeds federal limits and 41.4 million live where carbon monoxide (CO) is too high. (p. 48)
Impacts of the Environmental Crisis
Human Impact The environmental crisis causes substantially more illness, injury, and death than street crime does. Polluted water is the single greatest cause of human illness and death through disease (Day, 1989).
Almost half of Americans regularly consume tainted drinking water. Countless toxic agents threaten water safety. Many specialize in their victims. Lead, a common and highly toxic pollutant, is especially dangerous to children and pregnant women; it can delay growth in babies and cause mental impairment in children.
Lead also poses risks of nerve system damage, hearing loss, anaemia, and kidney damage. The U.S. Centres for Disease Control and Prevention estimate that 10.4 million children have been exposed to excess amounts of lead in their drinking water (Null, 1990).
Pollutants in water have also been linked to cancer. The Council on Environmental Quality (1981) concludes that the widespread practice of chlorinating public drinking water appears to have increased the risk of gastrointestinal cancer through an individual’s lifetime by 50% to 100%. In the United States, approximately 53,000 persons a year die prematurely of lung ailments brought on by air pollution.
Air pollution caused by toxic agents in the workplace annually kills about 100,000 workers and results in 400,000 cases of disease (Belkin & Brown, 1984).
A somewhat overlapping estimate is that particulate emissions kill 100,000 persons annually, about one and a quarter times the number of U.S. soldiers killed in battle in each year of World War II (Di Silvestro, 1991).
Cancer death rates are highest in areas close to petrochemical plants, steel mills, and metal refineries (Berry, 1988; Whelan, 1985). New Jersey, to cite the worst example, harbours the country’s highest mortality rates from cancer—up to two and a half times above normal in the counties with the heaviest levels of petrochemical waste (Morton, 1990).
Solid waste dumps pose threats of miscarriage, birth defects, cancer, chromosome damage, skin rashes, headaches, nervous disorders, and other ailments to residents who live in their vicinity.
These dangers were etched on public consciousness by the environmental catastrophe at Love Canal in Niagara Falls, New York, where Hooker Chemical and Plastics Company had disposed of 27,000 tons of toxic waste.
The dump site and surrounding area were developed into suburban tract housing in the 1950s. By 1976, residents had endured a variety of calamities.
After several years of unusually heavy rains, the water table rose, leaving house foundations awash with chemical waste.
Gardens withered, pets died, and children suffered severe chemical burns on their hands and feet. High rates of birth defects, miscarriage, cancer, and blood disorders, along with other maladies, were detected.
When only 2 of 17 pregnant women in Love Canal gave birth to healthy babies, authorities judged the area in grave and imminent peril. Surveys indicated pollution several hundred times above safe levels.
The local school was closed, more than 200 houses were demolished, and more than 1,000 families were evacuated. Cleanup and liability costs from the disaster exceed $200 million (Albanese, 1984; Newton & Dillingham, 1994).
Love Canal is only the most notorious of more than 50,000 hazardous waste sites across the nation, a monument to the widespread negligence and environmental indifference over chemical dumping by U.S. industry (Rosenbaum, 1991).
Economic Impact Although comprehensive data on the cost of pollution and the price of cleaning up the environment are not available, selective figures reveal the enormous financial burden on society.
Between passage of the Clean Water Act in 1972 and 1990, more than $100 billion was spent on improving water quality (Commoner, 1990).
Compliance with the Clean Air Act and acid rain legislation has cost more than $26.5 billion (Sutterheim & Steen, 1989). Since 1980, EPA’s Superfund has spent more than $16 billion on cleaning up hazardous waste sites.
To complete the job will take, by conservative estimates, an additional $80 billion (Orme, 1992). The human cost of pollution is equally high.
The American Lung Association estimates that air pollution from motor vehicles, power plants, and industrial fuel combustion costs the United States $40 billion annually in health care and lost productivity (Renner, 1980).
The cost of treating employees with diseases contracted from toxic agents in the workplace ranges from $30 billion to $50 billion annually, according to a U.S. Department of Labour study (Green & Berry, 1985). Social and Psychological Impact
The victims of natural disasters experience stress because their way of life is disrupted, and what they lost cannot easily be restored (Barton, 1969).
Man-made disasters to the environment compound this stress because victims’ anger about human error cannot be assuaged by stoicism (Couch & Kroll-Smith, 1985; Erickson, 1976; Janis, 1971).
A study of Jackson Town[1]ship, New Jersey, reveals the persisting human effects of environmental disasters (Edelstein, 1988).
In the 1950s, Jackson gained a reputation for genteel country living, as a haven for the American dream.
This status was tarnished in the 1960s when a landfill for a paint manufacturer opened in the township.
Noise, litter, dust, and mosquitoes beset the community. Most upsetting to the residents was the decline in water quality. When the board of health declared residential well water contaminated and trucked in sup[1]plies from outside sources, homeowners reacted with surprise, anger, and antagonism.
Despite the hook-up to city water in 1980, their feelings of anxiety, resentment, and vulnerability persisted. Their image of the rural suburb as protected haven had already dimmed.
Loss of trust in government and a diminished sense of personal control endured. Because environmental health problems would take some time to become manifest, questions about illness, life span, and genetic damage persisted well into the future.
This change in “life scope”—an individual’s cognition and perception about self, others, and the larger world—is a more significant impact from catastrophic toxic exposure, according to Edelstein, than any material change in lifestyle.
Public Opinion and the Environmental Crisis
In a democracy, public opinion helps define social problems, place issues on the public agenda, and shape public policy. Public opinion has played these roles in environmental affairs.
The criminalization of environ[1]mental regulation—in law and administrative practice—partly reflects a shift in public attitudes toward environmental wrongs as crimes.
The late 1960s evidenced an awakening of public concern about the environment. Pollution and pesticide control became causes for the Sierra Club and other traditional advocates of conservation. In addition, as people became more affluent, their interests shifted from questions of basic survival to quality-of-life issues such as the environment.
The first Earth Day in 1970, celebrated by 20 million people, elevated the environment to a top spot on the public agenda (Dunlap, 1989). From 1965 to 1970, public support for governmental action against pollution more than doubled to 53%, according to Gallup polls (Mitchell, 1980).
At the same time, the perception of pollution as a serious problem spread from 28% to 69% of the people. Public interest in environmental problems declined during the 1970s:
Support for more spending on pollution control dropped by more than half, from 78% to 32% (Dunlap & Dalman, 1976). The public had come to believe that new laws, such as the National Environmental Policy Act of 1969, and the new EPA, established in 1970, were doing the job.
Moreover, the energy crisis of 1973 to 1974 let fuel consumption trump pollution control as a public issue. During the 1980s, public support for environmental protection grew, partly in reaction to President Reagan’s downsizing of federal efforts and partly in reaction to the dire news of environmental disasters (Dunlap, 1989).
Reagan dismantled the Council on Environmental Quality, sought smaller budgets for the EPA, and pressed for environmental deregulation in general. Environmentalists responded angrily, and the broader public renewed its earlier concerns for protecting the environment.
In the early 1980s, 67% of the public supported existing environmental law even at the cost of some economic growth (Rosenbaum, 1991). Almost half the public—more than three times the level a decade earlier—favoured greater regulation of the environment (Gilroy & Shapiro, 1986)
This tough mood followed the disasters of toxic waste at Love Canal, acid rain in the Northeast, and reports of holes in the ozone layer of the atmosphere.
The 1990s ushered in an even tougher perception of environmental protection. More than 70% of the American public in 1990 favoured the use of jail terms when firms are guilty of purposely violating pollution laws (Ladd & Bowman, 1995).
The following year, 84% of Americans believed that damaging the environment is a serious crime, and 75% favoured holding corporate officials personally responsible for environmental offenses by their firms (Arthur D. Little, Inc., 1991).
Criminal Justice and the Environmental Crisis The heightened public sensitivity about the environment is, from the broadest perspective, the inevitable response to the worldwide technological revolution of this century (Thornburgh, 1991).
More specifically, the first post-war upsurge in environmental regulation in the United States coincided in the late 1960s and early 1970s with the onset of the environmental movement.
For the most part, regulation had been considered a civil matter by courts and legislatures. Fines had been the penalties of choice against violators. Monetary sanctions were rarely effective, however.
This cost of violating environmental laws was calculated by polluters to be a small enough price to pay compared with the cost of compliance. Nominal civil fines often became viewed by corporations as an acceptable cost of doing business, rather than as a deterring penalty (Wilson, 1986).
The disaster of Love Canal exposed the failure of civil remedies and fueled public demands for tougher penalties (Kurucs, 1985).
As a result, criminal liability became an important tool in environmental enforcement as all three branches of the federal government—as well as state and local authorities—began to adopt a tougher posture toward environmental viola[1]tors.
Marzulli and Kappel (1991) provide the following summary of this new development. Congress Throughout the 1980s, Congress systematically amended major environ[1]mental statutes to strengthen the criminal penalties available to punish environmental violators.
Congress amended the Resource Conservation and Recovery Act of 1976 in 1980, making it a felony for any person knowingly to treat, store, or dispose of hazardous waste without a permit.
This marks Congress’s first approval of felony sanctions for breaking a federal environ[1]mental law (Marzulli & Kappel, 1991). Just 4 years later, Congress revisited the act and doubled the maximum allowable prison term to 5 years for the same class of violations.
Congress reauthorized the Comprehensive Environmental Response, Compensation, and Liability Act (Superfund) in 1986 and elevated the knowing failure to report the release of a hazardous substance from a misdemeanour to a felony.
Meanwhile, Congress also amended the Clean Water Act, upgrading many violations to felonies. In 1989, Congress completely reworked the provisions for criminal penalties in the Clean Air Act.
For instance, knowing violations of Clean Air Act permits are now punishable by a prison term of up to 5 years. The knowing failure to comply with any of the act’s reporting requirements can result in 2 years in prison.
Finally, any person who knowingly releases a hazardous air pollutant and who knows that such a release will place another person in imminent danger of death or serious bodily injury can be imprisoned for up to 15 years.
Apart from the amendments to existing laws, two other developments of significance occurred in the mid-1980s. First, Congress enacted the Criminal Fine Improvements Act of 1987, which doubled to $200,000 per misdemeanour the criminal fine that may be imposed on an organization.
More significantly, Congress enacted the Sentencing Reform Act of 1984, whose aim is to eliminate unwarranted disparity in sentencing while still maintaining flexibility when appropriate.
One effect has been the imposition of tougher sanctions on first-time offenders, including pollution violators.
The Executive Branch In the early 1980s, the Department of Justice (DOJ), the EPA, and the Federal Bureau of Investigation (FBI) launched a coordinated, nationwide effort to prosecute vigorously corporations and their officers for environ[1]mental crimes (Marzulli & Kappel, 1991).
] In 1980, the DOJ created a new Environmental Enforcement Section in its Land and Natural Resources Division, whose first priority was criminal enforcement.
A year later, an Environmental Crime Unit was established within the Environmental Enforcement Section. Staffed by attorneys with both criminal and enviro recklessness, or negligence.
Recently, however, federal courts have allowed juries to infer intent based on an executive officer’s position in the corporation (Weider, Mayo, & Zacharia, 1991).
This eroding of Mens rea has prompted steady growth in the conviction of middle- and upper-level managers for environmental offenses. Second, the courts have carried out tougher sentencing guidelines, which impose harsh sentences for environ[1]mental crime.
Probation, once the standard punishment for environmental criminals, is severely restricted under the guidelines (Marzulli & Kappel, 1991). State Governments The states have passed a variety of environmental statutes of their own and devoted considerable resources to pollution deterrence and abatement. During the past decade, they have also resorted to criminal sanctions. Indeed, some states merely do not satisfy the minimum requirements required by federal environmental law but have developed more comprehensive and aggressive statutory schemes for punishing environmental violators.
An Illinois statute, for example, imposes a $500,000 per day criminal fine, up to 7 years in prison, or both for the knowing criminal disposal of hazardous waste, whereas the federal Resource Conservation and Recovery Act sets only a $50,000 fine and/or 5 years in prison for the same offense.
New Jersey has exceeded the criminal sanctions minimally required by the EPA to comply with the Resource Conservation and Recovery Act. Many states have built networks for environmental enforcement, with a variety of agencies cooperating on enforcement tasks. State departments of environmental protection and public health, which normally have responsibility for permits, inspections, and administrative enforcement, have been given prominent roles in the criminal investigation of environmental offenses.
]Many states have added environmental crime units to their divisions of criminal justice. Not surprisingly, agencies of state government carry out the lion’s share of environmental inspections and enforcement actions, which may lead to criminal indictments (EPA, 1990).
In many states, county prosecutors have mounted environmental task forces to investigate environmental crime at the local level. The city police, county sheriff, fire department, and state highway patrol also actively serve as the watchdogs of the community to detect environmental crime (Epstein & Hammett, 1995). Summary In sum, the three branches of federal government are beginning to convey a clear message that environmental crime does not pay. Criminal sanctions for environmental offenses are a higher national priority than in the past (Struck, 1991;
Thornburgh, 1991). Violation of an increasing number of environmental laws is subject to criminal liability. Corporations may save money in the short run by violating these laws, but their managers may go to jail as a consequence (Stewart, 1991). Emerging Legal Issues
Although the soil of criminal law has nurtured new solutions to the environmental crisis, it has also produced a thicket of procedural and theoretical issues that must be cut through. bThe Erosion of Mens Rea Judicial interpretation has eroded the common-law definition of Mens rea in environmental prosecution.
The criteria of purpose, wilfulness, and knowledge that underlay the concept of intent have been challenged by new principles: the responsible corporate officer doctrine, strict liability, the wilful blindness or deliberate ignorance doctrine, and the collective knowledge doctrine (Weider et al., 1991). Although these departures from the tradition of English common law have made the conviction of environmental offenders easier, they raise serious questions about justice and fairness in environmental prosecution.
Prosecutorial Discretion The dilution of Mens rea has given greater license to the prosecutor in deciding whether to file a criminal charge against an environmental violator. In the past, criminal intent was the critical element to justify a criminal charge.
Now, according to the principle of strict liability, judge and jury can sustain a criminal conviction without proof of criminal intent. Thus, the substantial difference between civil and criminal cases is obliterated.
As a result, the consequences of prosecutorial discretion are more ominous. In a conventional criminal case, the prosecutor’s discretion on how to charge and prosecute will result only in the guilty defendant’s receiving a lighter or harsher criminal sentence.
In an environmental case, the prosecutor’s discretion on how to charge and prosecute can result in the guilty defendant’s experiencing one of two dramatically different outcomes: a highly stigmatizing criminal sentence of incarceration or a lighter and stigma-free civil sanction.
The question is whether discretion of this magnitude serves justice and fairness. Search and Seizure Although the constitutional protections for search and seizure in conventional criminal cases still apply to environmental cases, there may be creative alternatives for inspecting sites.
For example, statutorily authorized inspections of environmental sites can be treated as warrantless searches. In a routine authorized inspection, without a warrant, the illegal storage of hazardous waste or other environmental violations can be disclosed. Such evidence can be used against the offender in court.
Moreover, an administrative inspection warrant, obtainable with less than a showing of criminal probable cause, is available for environmental cases. Finally, warrantless search under a voluntary written consent is more likely in environmental cases because owners often believe they have nothing to hide.
Owners may also believe that denying permission to search will incur unwanted antagonism or suspicion from the investigator (Hammett & Epstein, 1993a). Thus, although the exclusionary rule is still theoretically applicable to all environmental crime cases, in practice it may not be invoked because a warrantless search and seizure can almost always be conducted.
The central question is whether the normal protections against unwarranted search and seizure can too easily be avoided in environmental cases. Preview This book examines the nature, causes, investigation, prosecution, and prevention of environmental crime.
In this chapter, we have defined environ[1]mental crime and reviewed theoretical approaches to studying it. We have described the environmental crisis, the broader context for environmental crime. Special emphasis has been placed on the human, economic, social, and psychological impacts of the crisis. We have charted the shifts in public attitudes toward the crisis.
Finally, we have discussed the criminalization of environmental violations and pointed to some of the vexing legal issues it raises. Chapter 2 analyses the criminal components of environmental law at federal and state levels in more detail. The constitutional issues they raise are more fully explored. Varieties of environmental crime are discussed in the next four chapters.
Corporate environmental crime is examined in Chapter 3, followed by treatments of environmental crime by criminal organizations (Chapter 4), the government (Chapter 5), and individuals (Chapter 6). Chapters 7 and 8 focus on the processing of environmental crime with discussions on prevention techniques, investigation and prosecution procedures, and sentencing decisions.
Chapter 9 examines environmental crime from an international perspective. Global environmental problems and the barriers to international environmental law are addressed. Promising approaches by other nations in fighting environmental crime are reviewed.
Review Questions
- What are the chief differences between the strict legalist and social legalist perspectives on crime?
- What are the key features of the text’s definition of environmental crime?
3. What changes have occurred from the 1960s onward with respect to public opinion about the environmental crisis?
Chapter II
Substantive criminal law, typically embodied in state criminal codes, defines the “wrongful” behaviour of citizens and stipulates corresponding punishments.
Crimes are committed not only against individuals but at the same time against society as a whole. As the guardian of society’s interests, government, not the harmed individual, takes legal action against the offender.
Procedural criminal law, which finds its strongest grounding in the Bill of Rights, provides a host of legal protections for the accused and sets forth the rules of conduct that government officers must follow in enforcement, adjudication, and corrections. Both types of law are closely linked in practice. Criminal justice workers must fight crime,
Criminal Law and the Environment
A n environmental crime is an unauthorized act or omission that violates the law and is therefore subject to criminal prosecution and sanctions. Not all flagrant disregard of the environment is criminal, however; it must be specified as crime by the law.
As discussed in Chapter 1, the Latin dictum nulled crime, null plena sine ledge—there can be no crime and no punishment except as the law prescribes—applies here. Environmental criminal law defines environmental crime. Understanding Criminal Law There are two types of criminal law: substantive and procedural.
Which is defined by substantive criminal law, in a manner established by procedural criminal law. Social Control In a variety of cultures, jurisdictions, and eras, criminal law has served as an agent of social control and an instrument of social change. Criminal law is intended to control the offensive behaviour of people through punishment.
In a traditional, homogeneous society, behavioural conformity is ensured by self-control, which is shaped by socialization, mores, and folkways and refined by informal practices such as gossip, ridicule, humiliation, and ostracism from the family, clan, village, or tribe. In a modern, heterogeneous society, however, formal social control through the law becomes essential.
The great diversity of the population, the growing conflict among groups with different interests, and the elaborate division of labour discourage deeply held, uniform, socially acceptable values and standards from forming. As a result, law, as a written statement of rules to which people must conform, comes to play an indispensable role. By punishing or isolating criminal offenders, law performs its social control function. In a similar manner, environmental criminal law serves as an agent of social control in today’s complex society. By defining what is illegal in people’s use of the environment and setting punishments for infractions, environmental criminal law is intended to control and deter illicit acts and omissions.
Social Engineering Criminal law is also a proactive and reactive instrument of social change. On the one hand, it promotes planned social change by the government (Aron, 1989; Grossman & Grossman, 1971; Vargo, 1994). By defining the boundaries between legal and illegal behaviour, criminal law guides people to act in the direction that political authority desires. On the other hand, criminal law sometimes codifies social change already accomplished by society.
It reflects changes already made, rather than creating the changes themselves. For example, the legalization of gambling and, in a few places, Situ-Liu, Yingying, and David Emmons. Environmental Crime: The Criminal Justice System′s Role in Protect tice. Criminal justice workers must fight crime, which is defined by substantive criminal law, in a manner established by procedural criminal law.
Social Control In a variety of cultures, jurisdictions, and eras, criminal law has served as an agent of social control and an instrument of social change. Criminal law is intended to control the offensive behaviour of people through punishment.
In a traditional, homogeneous society, behavioural conformity is ensured by self-control, which is shaped by socialization, mores, and folkways and refined by informal practices such as gossip, ridicule, humiliation, and ostracism from the family, clan, village, or tribe. In a modern, heterogeneous society, however, formal social control through the law becomes essential.
The great diversity of the population, the growing conflict among groups with different interests, and the elaborate division of labour discourage deeply held, uniform, socially acceptable values and standards from forming. As a result, law, as a written statement of rules to which people must conform, comes to play an indispensable role. By punishing or isolating criminal offenders, law performs its social control function.
In a similar manner, environmental criminal law serves as an agent of social control in today’s complex society. By defining what is illegal in people’s use of the environment and setting punishments for infractions, environmental criminal law is intended to control and deter illicit acts and omissions.
Social Engineering Criminal law is also a proactive and reactive instrument of social change. On the one hand, it promotes planned social change by the government (Aron, 1989; Grossman & Grossman, 1971; Vago, 1994). By defining the boundaries between legal and illegal behaviour, criminal law guides people to act in the direction that political authority desires. On the other hand, criminal law sometimes codifies social change already accomplished by society.
It reflects changes already made, rather than creating the changes themselves. For example, the legalization of gambling and, in a few places, prostitution reflected shifting social conditions and public attitudes. The history of environmental criminal law reflects changing public opinions and concerns about the quality of the environment during the past several decades (Kuruc, 1985).
Environmental criminal law is also an instrument of change, shaping new attitudes and action toward the environment (Falk, 1988; Glick, 1988; Jacob, 1984). The Differences Between Civil and Criminal Law Criminal law differs in key respects from civil law. Criminal law’s domain for the most part is offenses that victimize both individuals and society as a whole.
Crimes are public wrongs that by their harm or bad example threaten the social order. Consequently, the state claims a special interest in prosecuting the criminal wrongdoer. The guilty are subjected to punishment, typically incarceration, which fulfils society’s need for retribution and deterrence. In contrast, civil law regulates commercial and social relationships.
Violations of civil law are private wrongs. The harmed person (human or corporate), not the state, takes legal action, typically filing a civil suit against the accused offender.
The goal of adjudication is to rectify the wrong or compensate the victim. Criminal law and civil law also differ in their requirements for conviction. Under criminal law, an act must have been done with intent—Mens rea—to be a crime. A killing is not a murder if the killer did not mean to do it.
Under civil law, an act is a wrongdoing without Mens rea. The wrongdoer must simply be deemed objectively responsible—strictly liable—for com[1]mitting the illegal act. nder this standard of strict liability, conviction is easier to achieve because the offender’s intent need not be established. Finally, the stigmas of criminal and civil sanctions vary. Crimes generally entail immoral behaviour. Appropriately, the criminal law exacts punishments—from incarceration to the death penalty—that reflect society’s moral outrage and stigmatize the offender.
In contrast, civil law seeks mainly to redress wrongs and compensate injured victims under less morally charged circumstances, in which social shame is not a likely outcome. As a consequence, criminal law draws on the stigma of its punishments to strengthen deterrence, whereas civil law, for the most part, cannot. The stigma of criminal conviction and punishment is one of the attractions of applying criminal law to environmental misconduct.
The Development of Environmental Law Criminal penalties against pollution can be traced to as early as the 14th century. To reduce the pall of noxious smoke blanketing the London sky, King Edward I issued a royal proclamation on smoke abatement. Violators of the new law could be put to death (Albanese & Pursley, 1993). In the United States, the Refuse Act of 1899 was the first environmental law to contain criminal sanctions. The act prohibited the discharge of “any refuse matter of any kind or description whatever” into the country’s navi[1]gable waters. Violation was a misdemeanour punishable by a fine of up to $2,500, imprisonment of 1 year, or both.
The most notable legal impact of the Refuse Act was to introduce the principle of strict liability into environ[1]mental criminal law. Under strict liability, the defendant’s guilt does not rest on establishing any degree of intent (men’s rea). Instead, actus reus (the criminal act itself) suffices; the polluter is guilty merely by dumping refuse in the water, whether or not intended. Intent is not ignored but provides an additional grounds for charges: “knowingly” [to] aid, abet, authorize, or instigate a violation.”
The act was generally ignored by both polluters and enforcers (Albanese & Pursley, 1993, p. 72). In any case, it stood for much of this century as the lone instance of environmental criminal law. Most environmental law until the 1970s focused on conservation and the efficient use of natural resources (Scheinbaum & Rosenberg, 1991). The environmental movement took root in the American political land[1]scape of the late 1960s as public awareness of environmental crises grew and concerns about the quality of life deepened (Carson, 1962; Dunlap & Van Lyre, 1978).
The movement drew vision and technical expertise from the science of ecology, which stresses the interdependence between living creatures, their habitats, and the larger world. By the 1970s, the environmental movement had become a powerful political force. By the end of the decade, it had prompted a major shift in national policy (Kraft & Vig, 1990).
The 1970s took title as the environmental decade, witnessing passage of a flood of environmental legislation (Yeager, 1992). Among notable laws were the Clean Air Act Amendments of 1970; the Resource Recovery Act of 1970; the Coastal Zone Management Act of 1972; the Federal Environmental Pesticide Control Act of 1972;
the Federal Water Pollution Control Act and Amendments of 1972; the Marine Protection, Research, and Sanctuaries Act of 1972; the Endangered Species Act of 1973; the Safe Drinking Water Act of 1974; the National Forest Management Act of 1976; the Resource Conservation and Recovery Act of 1976; the Toxic Substances Control Act of 1976; the Federal Land Policy and Management Act of 1976;
the Surface Mining Control and Reclamation Act of 1977; the Public Utility Regulatory Policies Act of 1978; and, in 1980, the Comprehensive Environmental Response, Compensation, and Liability Act. The passage of this environ[1]mental legislation made these years the most innovative environmental era in a century. “No other domestic policy challenge of recent times,” noted the Commission for a National Agenda for the Eighties, “has been addressed as forcefully and quickly” (Rosenbaum, 1991, p. 89).
Such a remarkable increase in federal legislation reflected an optimistic faith in law as a mechanism for environmental protection and an abiding belief in government’s responsibility to control big business. New developments in the 1980s, however, challenged this vision. The environmental legislation of the 1970s attacked the most obvious villains such as sulphur oxide emissions, photochemical smog, and dissolved organic chemicals, but later research uncovered new and more damaging threats to the environment: air pollution by arsenic, benzene, and radionuclides; water pollution in nonpoint sources, especially farmland and septic tank systems; more than 2,000 known toxic waste sites across the country; and the greenhouse effect (Rosenbaum, 1991).
] At the same time, public alarm about pollution was heightened by environmental disasters such as Love Canal (Kuruc, 1985). Through most of the decade, the public concluded that the overall quality of the environment had worsened (Rapp, 1990). Scientific discoveries and public awareness of a deepening environ[1]mental crisis justified greater vigilance by the government, however, just as the ineffectiveness of environmental law was becoming more apparent.
Polls during the 1980s found a public disillusioned that important antipollution laws had not lived up to their advance billing (Rosenbaum, 1991). A major source of failure was the civil character of federal enforcement actions. Their chief sanction was fines, which many corporations took in stride as a cost of doing business (Box, 1983; Fromm, 1990; Green, 1972; Kadish, 1968; Thornburgh, 1991). Fines were set too low to carry any deterrent punch. The corporation stood to profit more from committing an offense than it lost financially if convicted (Conklin, 1977).
Faced with new scientific know[1]edge about pollutants, an alarmed public, an impatient environmental movement, and the failure of civil penalties, Congress in the 1980s turned to the criminal law for solutions to the environmental crisis (Carousell & Hutchins, 1994). An Overview of Key Environmental Criminal Laws Environmental law, in its broadest sense, is “all of the laws in our legal system to minimize, prevent, punish or remedy the consequences of actions which damage or threaten the environment, public health and safety” (Sulli[1]van, 1993, p. 1).
It applies an array of penalties against wrongdoers ranging from “traffic tickets”—modest administrative fines, for example—to incarceration (Epstein & Hammett, 1995). Environmental criminal law, however, covers narrower ground. Its core consists of the criminal provisions of eight federal statutes, passed mainly in the 1970s and amended in the last two decades. A review of these laws follows. Resource Conservation and Recovery Act Enacted in 1976 and significantly amended in 1984, the Resource Conservation and Recovery Act is designed to control waste from “cradle to grave” by regulating its generation, treatment, storage, transportation, and disposal.
The U.S. system of hazardous waste regulation is widely viewed as the most innovative and comprehensive in the world (Case, 1993). The Resource Conservation and Recovery Act is the cornerstone of this system. Solid waste is hazardous, according to the act, if it is ignitable, corrosive, reactive, or toxic or has otherwise been cited on the EPA’s hazardous waste lists. A waste manager must notify the EPA of his or her hazardous waste actions, whereas a waste producer must have a permit for disposal and a manifest to track the shipment of waste to treatment, recycling, or disposal facilities. No hazardous waste can be exported to a foreign country without notifying the EPA at least 4 weeks before the shipment and without a manifest signed by the foreign accepter.
A transporter of hazardous waste must first obtain an EPA permit. He or she must identify the waste properly, store it in proper containers, and respond to spills. A transporter can accept only waste that is accompanied by a signed manifest from the producer, which he or she too signs and dates. Any violation of these regulations can be subject to criminal penalties. Clean Air Act The Clean Air Act grew out of general guidelines in the mid-1960s for antipollution efforts by the states.
Enacted in 1970, the law was amended in 1977, 1989, and 1990, becoming in the process a strong instrument of federal enforcement, administered by the states (Brownell, 1993). Central to the Clean Air Act are the National Ambient Air Quality Standards (NAAQS) for air pollutants such as sulphur dioxide, nitrogen oxide, carbon monoxide, ozone, and lead. Each state designs a state implementation plan for bringing its air quality into compliance with the NAAQS. States must monitor their implementation plans by maintaining complete records, issuing permits, and reporting permit violations.
By setting up the NAAQS and requiring each state to implement them, the Clean Air Act became the centrepiece of the ambitious environmental program begun in the 1970s. Although few states achieved air quality standards by the original, or even extended, deadlines, the total volume of regulated air pollution has diminished significantly since 1974 (Switzer, 1994). Toxic Substances Control Act the Toxic Substances Control Act of 1976 aims to eliminate the unreasonable risk of injury to public health or the environment from introducing toxic substances into the market.
Manufacturers maintain records and submit reports on their chemical manufacturing, importing, and processing and provide data on the environmental health effects of the toxic chemicals they produce or handle. The EPA has comprehensive authority to regulate the testing of high-risk chemicals; review new chemical substances prior to their commercial production and sale; and limit, delay, or prohibit the manufacture of a chemical substance by exercising a significant New Use Rule, which gives EPA 90 days to make such decisions. store it in proper containers and respond to spills. A transporter can accept only waste that is accompanied by a signed manifest from the producer, which he or she too signs and dates.
Any violation of these regulations can be subject to criminal penalties. Clean Air Act The Clean Air Act grew out of general guidelines in the mid-1960s for antipollution efforts by the states. Enacted in 1970, the law was amended in 1977, 1989, and 1990, becoming in the process a strong instrument of federal enforcement, administered by the states (Brownell, 1993). Central to the Clean Air Act are the National Ambient Air Quality Standards (NAAQS) for air pollutants such as sulphur dioxide, nitrogen oxide, carbon monoxide, ozone, and lead.
Each state designs a state implementation plan for bringing its air quality into compliance with the NAAQS. States must monitor their implementation plans by maintaining complete records, issuing permits, and reporting permit violations. By setting up the NAAQS and requiring each state to implement them, the Clean Air Act became the centrepiece of the ambitious environmental program begun in the 1970s.
Although few states achieved air quality standards by the original, or even extended, deadlines, the total volume of regulated air pollution has diminished significantly since 1974 (Switzer, 1994). Toxic Substances Control Act The Toxic Substances Control Act of 1976 aims to eliminate the unrea[1]sonable risk of injury to public health or the environment from introducing toxic substances into the market. Manufacturers maintain records and submit reports on their chemical manufacturing, importing, and processing and provide data on the environmental health effects of the toxic chemicals they produce or handle.
The EPA has comprehensive authority to regulate the testing of high-risk chemicals; review new chemical substances prior to their commercial production and sale; and limit, delay, or prohibit the manufacture of a chemical substance by exercising a significant New Use Rule, which gives EPA 90 days to make such decisions.
Violations of the act include failing to establish, maintain, and submit required information showing the effects of chemical products; failing to report the commercial manufacture, import, or processing of a chemical substance; failing to submit a significant New Use Notice before distribution of a chemical substance; failing or refusing to permit EPA inspection; and failing or refusing to comply with other rules, orders, or requirements of the act.
Federal Water Pollution Control Act and Amendments Water pollution control law is composed of many federal water quality acts, passed during the last hundred years. The Refuse Act of 1899, which focuses on the protection of navigation, is the oldest of these laws. Serious concern about the quality of water in streams and lakes, however, did not begin until the late 1940s when waste treatment plants were established across the country with federal support.
Prior to 1970, however, weak enforcement by the states and the federal government left surface water largely unprotected from pollution (Arbuckle, 1993b). Then, in late 1972, Congress passed the Federal Water Pollution Control Act, a comprehensive, modern water pollution statute that establishes national effluent limitations, water quality standards, permit programs, special provisions for oil spills and toxic substances, and a grant program for constructing publicly owned treatment works (Arbuckle, 1993b).
The act was amended by the Clean Water Act in 1977 and 1978. The Clean Water Act is dedicated to national water quality that will ensure an abundance of fish and wildlife while promoting aquatic recreation and eliminating the pollution of surface water. The act pursues these goals by setting discharge standards for certain pollution sources, establishing a permit program, registering and monitoring pollution facilities, funding municipal sewage treatment plants, and imposing substantial criminal penalties on violations of some provisions.
In addition, the Clean Water Act requires the owner or operator of any vehicle, vessel, or facility from which there is a discharge of oil or a re portable quantity of a hazardous pollutant to notify the National Response Center. By tightening control of toxic discharges, establishing toxic-oriented water quality standards, and strengthening the enforcement mechanisms, the Clean Water Act attempts to meet the need for comprehend..
Safe Drinking Water Act The Safe Drinking Water Act of 1974 is the first federal attempt to control harmful contaminants in public water systems and to regulate underground drinking water. The act ensures the drinking safety of tap water by requiring the provider to meet national drinking water standards, and it combats the contamination of groundwater through underground injection control programs. The Safe Drinking Water Act requires the EPA to set national drinking water standards, implement a permit scheme for underground injection, and impose traditional sanctions to force compliance where necessary.
Under the Safe Drinking Water Act, the states have primary enforcement responsibility for protecting drinking water supplies and implementing EPA regulations. A state program must meet or exceed minimum federal requirements. The EPA, however, may limit or revoke a state’s primary enforcement authority or act on its own against contamination that endangers public health.
In 1986 and 1988, programs were added to the Safe Drinking Water Act to protect the areas around wellheads from contamination and to prevent lead pollution in drinking water coolers. The Safe Drinking Water Act has accelerated the development of national water quality standards. Implementing some provisions of the act at state and local levels, however, has proved difficult.
State and local governments need more discretion and initiative in assessing environmental risk and combating drinking water contamination. Federal Insecticide, Fungicide, and Infanticide Act Pesticides threaten the safety of the food supply and farmers’ health. Their regulation has long been central to environmental protection. Responding to growing public concern, Congress in 1910 passed the Insecticide Act, which protected consumers against ineffective insecticides or their deceptive labeling. In 1947,
Congress enacted the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which requires interstate distributors of pesticides to register with the government. Since 1970, Congress has amended the FIFRA five times—in 1972,1975,1978, 1980, and 1988. These amendments have Toughened FIFRA’s enforcement powers Downplayed an earlier legal emphasis on labelling and efficacy while placing health and the environment at the centre of the act’s concerns
Broadened discretion in dealing with dangerous chemicals Expanded federal law to govern interstate registrations and specific uses of a pesticide Simplified the appeals process (Miller, 1993) Under FIFRA, all new pesticides must first be registered with the EPA.
Producers must submit the pesticide’s complete formula, a proposed label, and a complete description of tests and their results on which claims are based. The EPA may restrict the availability or use of pesticides. Most significant, the agency may cancel production or remove from the market a substance suspected of posing an unreasonable adverse effect on humans or the environment (Miller, 1993). The federal control of pesticides reflects concern by Congress, environ[1]mentalists, and the public about the potentially harmful impact of these chemicals on humans and the balance of nature.
Because pesticides benefit agriculture and scientific uncertainty about their effects persists, however, FIFRA is continuously under attack, and the government’s ability to regulate and control pesticides is greatly hampered. Comprehensive Environmental Response, Compensation, and Liability Act Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in direct response to the catastrophe in the late 1970s at Love Canal, where leaks from an inactive hazardous waste site contaminated a neighbourhood and school in upstate New York with powerful toxic chemicals.
The act provides a broad spectrum of responses to the problems posed by abandoned and inactive hazardous waste disposal sites. As such, it supplements the Resource Conservation and Recovery Act of 1976, which regulates hazardous waste generation, handling, and disposal. as the watchdogs of the community to detect environmental crime (Epstein & Hammett, 1995).
Summary In sum, the three branches of federal government are beginning to convey a clear message that environmental crime does not pay. Criminal sanctions for environmental offenses are a higher national priority than in the past (Strock, 1991; Thornburgh, 1991). Violation of an increasing number of environmental laws is subject to criminal liability. Corporations may save money in the short run by violating these laws, but their managers may go to jail as a consequence (Stewart, 1991). Emerging Legal Issues
Although the soil of criminal law has nurtured new solutions to the environmental crisis, it has also produced a thicket of procedural and theoretical issues that must be cut through. The Erosion of Mens Rea Judicial interpretation has eroded the common-law definition of men’s rea in environmental prosecution.
The criteria of purpose, wilfulness, and knowledge that underlay the concept of intent have been challenged by new principles: the responsible corporate officer doctrine, strict liability, the wilful blindness or deliberate ignorance doctrine, and the collective knowledge doctrine (wedel et al., 1991).
Although these departures from the tradition of English common law have made the conviction of environmental offenders easier, they raise serious questions about justice and fairness in environmental prosecution. Prosecutorial Discretion The dilution of Mens rea has given greater license to the prosecutor in deciding whether to file a criminal charge against an environmental violator. In the past, criminal intent was the critical element to justify a criminal charge.
Now, according to the principle of strict liability, judge and jury can sustain a criminal conviction without proof of criminal intent. Thus, the substantial difference between civil and criminal cases is obliterated. As a result, the consequences of prosecutorial discretion are more ominous. In a conventional criminal case, the prosecutor’s discretion on how to charge and prosecute will result only in the guilty defendant’s receiving a lighter or harsher criminal sentence.
In an environmental case, the prosecutor’s discretion on how to charge and prosecute can result in the guilty defendant’s experiencing one of two dramatically different outcomes: a highly stigmatizing criminal sentence of incarceration or a lighter and stigma-free civil sanction. The question is whether discretion of this magnitude serves justice and fairness.
Search and Seizure Although the constitutional protections for search and seizure in conventional criminal cases still apply to environmental cases, there may be creative alternatives for inspecting sites. For example, statutorily authorized inspections of environmental sites can be treated as warrantless searches.
In a routine authorized inspection, without a warrant, the illegal storage of hazardous waste or other environmental violations can be disclosed. Such evidence can be used against the offender in court. Moreover, an administrative inspection warrant, obtainable with less than a showing of criminal probable cause, is available for environmental cases.
Finally, warrantless search under a voluntary written consent is more likely in environmental cases because owners often believe they have nothing to hide. Owners may also believe that denying permission to search will incur unwanted antagonism or suspicion from the investigator (Hammett & Epstein, 1993a). Thus, although the exclusionary rule is still theoretically applicable to all environmental crime cases, in practice it may not be invoked because a warrantless search and seizure can almost always be conducted. The central
Key Legal Issues: Is Justice Strained?
Although criminal environmental enforcement has strong advocates (Strock, 1991; Thornburgh, 1991), a debate about its efficacy and effects has emerged in the 1990s. The main concern is whether environmental regulation is becoming over criminalized. If the critics are right, one danger may be making the criminal label commonplace, thus diminishing the moral stigma of criminalization (Cohen, 1992a). Criminal sanctions may also pose a threat to individual rights and move the nation a dangerous step closer to a bureaucratic, authoritarian state (Heldman, 1991). Critics have also expressed alarm about the diminishing status of Mens rea.
Although environmental law requires some knowledge of a prohibited act for a crime to exist, the traditional concept of Mens rea or “guilty mind” has been significantly eroded. A polluter can be convicted if he or she should have known the law. Actual knowing is not a requirement for criminal prosecution. The ascendancy of strict liability has been criticized for dangerously expanding the prosecutor’s discretion. Little effort is given to define
Thresholds at which a defendant’s conduct justifies adding the criminal sanctions to civil penalties (Lazarus, 1994). In a conventional criminal case, the prosecutor’s discretion over how to charge and prosecute will affect only the guilty defendant’s length of criminal sentence. In an environmental case, these decisions can determine the guilty defendant’s mode of punishment: a highly stigmatizing prison sentence or a lighter and stigma-free civil sanction. Thus, discretion in prosecuting environmental offenders raises more serious questions about justice and fairness than it normally does in prosecuting conventional criminals.
Some believe that criminal sanctions should be reserved for the most culpable subset of environmental offenses and not used more widely to assuage the public yearning for dramatic action or to deter potential violators. The criminalization of environmental law raises more practical concerns as well.
For example, trials and incarceration make criminal sanctions more costly than administrative sanctions (Totenberg, 1992). Imprisoning of the corporate environmental violator is also problematic. Corporations are common offenders in environmental cases. Although top executives must take ultimate responsibility for the corporation’s infractions (Frank & Lynch, 1992), they may have lacked personal knowledge of their firm’s violations
Chapter III
Corporate Environmental Crime A although all environmental crimes share a common target, they exhibit important differences. They differ principally in the perpetrators who commit them, the criminal action they entail, the victims they harm* and the laws and enforcement agencies that govern them.
The most useful basis for comparison is who commits environmental crimes. On this basis, four types of environmental crime can be distinguished: corporate, organized, state, and personal. Each variety has its own type of offenders with their special characteristics.
Each entails different levels of risk to public health and the environment. And each is illuminated by a different mix of criminologist theories. In this chapter, we discuss corporate environmental crime. Subsequent chapters will review organized, state, and personal environmental crime.
Corporate Environmental Crime Defined Corporate environmental crime is a major variety of corporate crime, which, in turn, constitutes a substantial part of white-collar crime (Kinard & Yeager, 1980). Criminologist Edwin Sutherland (1940) coined the term white-collar crime, defining it as “a crime committed by a person of respect ability and high social status in the course of his occupation” (p. 7).
Sutherland’s pioneering research on upper-class crime helped reorient criminological theory and empirical inquiry on this new topic (Volk, 1977)
Sutherland emphasized that people of high status are able to commit crimes because of the opportunities offered by the prestigious occupational positions they hold. Yet his empirical argument drew mainly on data about the violations of law by the 70 largest American corporations. As a consequence, the differences between individual and corporate white-collar crime were not sharply drawn (Frank & Lynch, 1992).
More recently, researchers have disentangled the two, and the distinction between occupational and corporate white-collar crime is widely accepted (Kinard & Quinney, 1973; Kinard & Yeager, 1978, 1979, 1980; Geis & Meier, 1977; Nader, 1965, 1973). Occupational crime refers to personal violations that take place for self-benefit during work in a legitimate occupation,
whereas corporate crime is committed by employees on the job, not principally for personal gain but on behalf of their corporation or business (Kinard & Yeager, 1980; Coleman, 1994; Farrell & Swigert, 1985. Frank, 1987). Corporate crime is “enacted by collectives or aggregates of discrete individuals. It is hardly comparable to the action of a lone individual” (Shapiro, 1976, p. 14).
Thus, it emphasizes corporate gain, not individual benefits. Individual employees do not directly profit from breaking the law. Therefore, illegal corporate activity can continue despite personnel changes; the exiting employee leaves behind the illegal behaviour for others to carry on (Braithwaite & Fosse, 1990; Cressy, 1989; Sutherland, 1949).
Corporate crime is a convenient term, but it should be cautioned, “something of an oxymoron: organizations do not ‘act’ or ‘commit’ at all” (Jamieson, 1994, p. 3). People within the organization, not the corporation as such, engage in corporate crime.
These individuals are not, for the most part, low-level employees. Instead, they are corporate executives who have the power and authority to obey the law—and secure the obedience of others—but fail to do so. The corporation is characterized by the decisions and behavior of these officers. Corporate environmental crimes are a subset of corporate crimes.
They harm the environment or endanger public health while benefiting the corporation. They are embedded in the practices of organizations, not the preferences of single individuals.
They are committed in the course of doing business by employees, often at the highest levels, mainly to further corporate goals rather than personal interests. Situ-Liu, Jingyi, and David Emmons. Environmental Crime: The Criminal Justice System prim
An Overview of Industrial Pollution
Pollution is any undesirable change in the physical, chemical, or biological characteristics of the air, water, or land. Pollution threatens or harms the health, survival, or activities of humans or other living organisms.
Most pollutants are created when industrial facilities release harmful by[1]products or waste into the environment. Damage to the environment did not originate in the industrial age. Deforestation and overhunting, for example, were practiced by preindustrial societies. But premodern people tended to manage their interaction with the environment in more harmonious and sustainable ways than members of industrialized society have (Stretton, 1976).
The most serious environmental problems, especially pollution, have accompanied the Industrial Revolution, which began in the mid-1700s. The original culprit of the English Industrial Revolution was coal, which became the principal energy source by the mid-1700s as wood steadily disappeared. Coal-powered engines made the diverse and widespread use of machines possible.
New machines, powered by coal and later by oil and natural gas, were a keystone to transition in human society from the small[1]scale, scattered, and manual production of goods to large-scale, centralized, and automatic production. Thus, the Industrial Revolution greatly increased the production, as well as consumption, of goods by altering and shaping the earth to meet society’s needs and wants.
Nevertheless, the Industrial Revolution also had devastating effects on public health and the quality of the environment. It prompted a shift in energy sources from renewable and environmentally harmless wood and running water to non-renewable and more toxic fossil fuels. Coal burning was responsible for most of the air pollution in the 18th and 19th centuries. In 1880, New York City housed 287 foundries and machine shops.
At the same time, the Pittsburgh area’s Monongahela Valley contained hundreds of iron and steel plants with approximately 14,000 chimneys dotting the landscape.
Chicago was home to the stockyards, eight major railroads, a busy port, and heavy industry (Petilla, 1987). The smog from these industries darkened the cities with a foul-smelling, disease-causing shroud.
By the early 1900s, smoke abatement leagues and ladies’ health clubs had proliferated in cities in reaction against the pollution crisis. By providing fossil fuels for farm machinery and commercial fertilizers that greatly increased agricultural productivity, the Industrial Revolution pushed many farmers off the land and into the city where new industrial jobs beckoned.
The urban population grew rapidly in the 19th century. Immigrants, for instance, accounted for at least 70% of the populations of New York, Boston, Buffalo, Detroit, and Chicago (Bails, 1985). Coal mines, metal-working factories, and textile mills, which were filled with many risks to health and safety, also developed rapidly. Because factories and people were concentrated increasingly in cities, industrial and human waste also accumulated there as well.
City residents found an environment of hazards: thick smog from factories; foul-smelling, unsanitary streets pocked with excrement, kitchen slop, dead animals, and horse manure; and drinking water contaminated by industrial wastes such as oils, benzene, tars, and acids. The sewage treatment systems in industrial cities were of poor quality. For example, in the 1840s, Manchester, England, had available only one indoor toilet for every 212 residents (Schaberg & Gould, 1994).
Not surprisingly, workers of the Industrial Revolution suffered from occupational as well as environmental diseases, including byssinosis, caused by inhaling cotton, flax, or hemp dust, and a variety of infections from soot and other airborne contaminants. In 1840, workers could expect on average to survive only 17 years in the mines around Manchester, compared with 34 years for other workers in surrounding rural areas.
By the early 20th century, the automobile had emerged as a new source of air pollution. Although the auto spurred the economy, altered housing patterns, and revolutionized social relations and lifestyles, it also became the leading contributor to air pollution in modern industrialized society. Motor vehicles are the main source of air pollution in the United States in the 1990s. They account for about half the hydrocarbon and nitrogen oxide emissions that together form the smog in most U.S. cities.
They emit up to 90% of the carbon monoxide and more than half of other toxic pollutants in the air—all despite the most stringent emissions control program for motor vehicles in the world (Curtis & Walsh, 1991). General Motors, the nation’s largest automaker, has been named California’s largest producer of ozone-depleting chemicals (Crawford, 1994). During the peacetime economy after World War II, a variety of new products and materials, such as detergents, synthetic fibres, plastics, and pesticides, enriched life while threatening the environment.
The chemical plants that manufacture these items from petroleum, natural gas, or coal tar generate excess heat, toxic gases, and hazardous waste as typical byproducts.
Workers and downwind neighbours suffer from some of the highest cancer rates in the nation. Chlorofluorocarbons (CFCs) have depleted the atmosphere’s ozone layer, which filters out harmful ultraviolet radiation from the sun.
As a consequence, the incidence of skin cancer and cataracts will increase, and human immune systems’ defences against many diseases will be weakened. Despite efforts to develop CFC substitutes,
DuPont Corporation remains the world’s largest producer of ozone-depleting substances. In 1989, General Electric Company allowed CFC-laden coolant from 300,000 defective refrigerators to escape into the atmosphere (Crawford, 1994).
Industrial countries, led by the United States and followed by western European countries and Japan, account for 84% of CFC production. Industrial production also contributes to acid rain, which depletes animal and plant life, especially forests, and contaminates drinking water (Howells, 1990; Kemp, 1990; Park, 1987).
About 5% of the pollutants in acid rain come from processes in nature; the rest are generated by industrial activity. For example, 90% of the sulphur dioxide in acid rain derives from burning coal or petroleum for heat and electricity; 10% comes from smelting metallic ores and other industrial processes (Karplus, 1992).
Not surprisingly, the most active constituents of rain are acid sulphates and acid nitrates in the most industrialized regions of the world, such as eastern North America, Western Europe, and Japan. The average concentration of sulphates in rain was 60 to 100 micro equivalents per litter in these areas, compared with less than 2 micro equivalents per litrer in Antarctica and Greenland.
Rainfall in upstate New York contains nearly 10 times as much acidity, sulphates, and nitrites as rain in Oregon (Gould, 1985). Although agricultural sources are the leading cause of water quality impairment—contributing to 60% of impaired stream miles and 57% of impaired lake acres in the nation (Curtis & Walsh, 1991)
—industrial dis[1]charge also adds to the problem in local areas. General Electric Company, for example, discharged about 500,000 pounds of polychlorinated diphenyl’s into the Hudson River during a 30-year period. General Motors Corporation was alleged to have caused groundwater contamination by emitting large quantities of toxic poly-chlorinated phenytoin (PCBs) near Michigan’s Rogue River. State regulators sought more than $32 million in penalties.
The EPA estimates that at least 1 million of the estimated 6 million underground tanks used to store petroleum, gasoline, solvents, and other hazardous chemicals throughout the United States are leaking their contents into groundwater.
The Situ-Liu, Jingyi, and David Emmons. Environmental Crime: The Criminal Justice System′s Role in Pro Dumping pesticides such as DDT on the developing world has not been without dangerous consequences. Ignorance by developing world residents about the proper use of pesticides has resulted in injury and even death.
Many agricultural workers in Latin America, for example, cannot read the instructions and warning labels printed in English or Spanish on pesticide containers (Weir & Schapiro, 1981). Consequently, they often pour excessive amounts of poison on crops or are sprayed while working in the fields, with or without their consent, by crop duster planes. Rural inhabitants use pesticide drums as water collectors and plastic pesticide liners as raincoats.
In Indonesia, leptophos, a nerve-damaging pesticide, was sold “alongside the potatoes and rice. People just collect it in sugar sacks, milk cartons, Coke bottles” (Dowie & Mother Jones, 1987, p. 53). In Central America, the pesticide aldrin has been detected at almost 2,000 times the level permitted on food products in the United States (Dowie & Mother Jones, 1987).
According to the Oxford Committee on Famine Relief, pesticide poisoning has reached epidemic proportions in developing countries—an estimated 22,000 people die each year (Aminoff, 1986). The World Health Organization found that about half a million people are poisoned by pesticides yearly.
Some die immediately, but the long-term effects of exposure on those who live are unknown (Dowie & Mother Jones, 1987). The American public, caught up in a “circle of poison,” suffers as well (Weir & Schapiro, 1981, p. 28). In many developing countries, imported pesticides are not generally used for domestic production.
Instead, some 70% of the pesticides are used to increase the production of large-scale export cash crops such as cotton, coffee, tomatoes, and bananas (Kinard, 1990). The Food and Drug Administration found that approximately 10% of the food imported to the United States is contaminated with illegal levels of pesticides (Kinard, 1990).
Thus, U.S. residents have become indirect victims of corporations’ pesticide dumping overseas. Explaining Corporate Environmental Crime Corporate environmental crime is best understood as one type of corporate crime.
Theories that illuminate corporate crime in general also shed light on corporate environmental crime.
The best explanations are integrative, to borrow the term of Frank and Lynch (1992); they Situ-Liu, Yingying, and David Emmons. Environmental Crime : The Criminal Justice System prim lotion control program to deal with the problems not covered by federal legislation (Lowry, 1992).
These important developments during the last 20 years have enhanced the role of states in environmental policy. States have become not only the “administrative arms of the federal government” but also the “laboratories of democracy, expanding their political vitality and increasing the number and the quality of their policy experiments” (Ring Quist, 1993, p. 78).
State Variations Not surprisingly, as the number and complexity of criminal provisions in state environmental law have expanded, their variation has increased as well (Allan, 1987; DiCicco & Bonino, 1988). Some states, for example, have enacted comprehensive laws with strict criminal penalties to control hazardous waste, whereas other states have adopted only the minimum federal requirements for its transportation, storage, and disposal. New Jersey has passed the most comprehensive and aggressive statute.
It stipulates a wide variety of environmental crimes including three levels of knowing violations. A knowing infraction can be a crime regardless of harm, with the risk of widespread harm, or with actual widespread harm.
The New Jersey penal code also criminalizes the spill of hazardous wastes and hazardous substances not enumerated in the Resource Conservation and Recovery Act. The state’s penalties for environmental crimes are more severe than those prescribed by federal law.
For example, although knowingly treating, storing, or disposing of hazardous waste without a permit is subject to a maximum fine of $50,000 and 5 years of imprisonment under the Resource Conservation and Recovery Act,
New Jersey law specifies a $100,000 fine and up to 10 years of imprisonment. In contrast, such states as Montana, Utah, and Oklahoma merely meet the minimum requirements set by the EPA (DiCicco & Bonino, 1988). Seventeen jurisdictions (Arizona, Colorado, Connecticut, District of Columbia, Georgia, Hawaii, Illinois, Iowa, Kansas, Maryland, Missouri, Nevada, New Mexico, South Dakota, Texas, West Virginia, and Wisconsin) have not established any criminal sanctions for air pollution control (Allan, 1987; DiCicco & Bonino, 1988). Among those states that do, disparities are significant.
For example, in Rhode Island, violating the governor’s order during an air pollution emergency is subject to a fine of not more than $500, 90 days in jail, or both. The same offense in New Jersey is punishable by a fine of up to $100,000 and imprisonment for up to 10 years (Allan, 1987).
Criminal enforcement of water pollution by the states displays even greater variety because many states make no efforts on their own in this area (DiCicco & Bonino, 1988). Lack of uniformity in state laws hinders the overall battle against pollution.
Inconsistency encourages businesses and governments to exploit lax states as dumping grounds for water. Some businesses may also favour relocating to a state that does not aggressively prosecute polluters.
Although a full explanation is lacking, variations in state environmental criminal law are influenced by the level of pollution, economic resources, and the enforcement discretion granted by the federal government (Lowry, 1992). Ring Quist (1993) has identified a more complex process of policy influences on state regulations for pollution control.
In the case of air quality, states with greater wealth, more liberal voters, and more professional legislatures pass tougher regulations. For water quality, however, both state wealth and the strength of political institutions are less important than they are for air quality regulation. Instead, interest group politics plays a stronger role. States are less able to resist pressures from mining industries than from other heavily polluting industries. As a result, States with strong mining industries respond to these political pressures by developing weaker water pollution control regulations.
On the other hand, states with serious pollution dangers react to political pressure from strong agricultural and environmental interest groups by strengthening their water pollution control programs. Nevertheless, Ring Quist points out that although organized interest groups are central to policy making, they do not create public policy on their own. Government institutions shape the policy for air and water pollution control. Additional factors impinging on aggressive prosecution of air pollution cases include the unclear guidelines for criminal enforcement provided by the EPA, the long approval process for implementing state plans,
the lack of financial resources for criminal enforcement of pollution control, multistate pollution sources, and the difficulty of establishing proof in criminal pollution cases
Key Legal Issues: Is Justice Strained
Although criminal environmental enforcement has strong advocates (Struck, 1991; Thornburgh, 1991), a debate about its efficacy and effects has emerged in the 1990s. The main concern is whether environmental regulation is becoming over criminalized. If the critics are right, one danger may be making the criminal label commonplace, thus diminishing the moral stigma of criminalization (Cohen, 1992a). Criminal sanctions may also pose a threat to individual rights and move the nation a dangerous step closer to a bureaucratic, authoritarian state (Heldman, 1991). Critics have also expressed alarm about the diminishing status of Mens rea.
Although environmental law requires some knowledge of a prohibited act for a crime to exist, the traditional concept of Mens rea or “guilty mind” has been significantly eroded. A polluter can be convicted if he or she should have known the law. Actual knowing is not a requirement for criminal prosecution. The ascendancy of strict liability has been criticized for dangerously expanding the prosecutor’s discretion.
Little effort is given to define thresholds at which a defendant’s conduct justifies adding the criminal sanctions to civil penalties (Lazarus, 1994). In a conventional criminal case, the prosecutor’s discretion over how to charge and prosecute will affect only the guilty defendant’s length of criminal sentence.
In an environmental case, these decisions can determine the guilty defendant’s mode of punishment: a highly stigmatizing prison sentence or a lighter and stigma-free civil sanction. Thus, discretion in prosecuting environmental offenders raises more serious questions about justice and fairness than it normally does in prosecuting conventional criminals.
Some believe that criminal sanctions should be reserved for the most culpable subset of environmental offenses and not used more widely to assuage the public yearning for dramatic action or to deter potential violators. The criminalization of environmental law raises more practical concerns as well.
For example, trials and incarceration make criminal sanctions more costly than administrative sanctions (Totenberg, 1992). Imprisoning of the corporate environmental violator is also problematic. Corporations are common offenders in environmental cases. Although top executives must take ultimate responsibility for the corporation’s infractions (Frank & Lynch, 1992), they may have lacked personal knowledge of their firm’s violations.
G.I.T.C