The Federal Environmental Crimes Program: The Lorax and Economics 101
By Avi Samuel Garbow
INTRODUCTION
The Rivers and Harbors Act recently celebrated its 100th birthday. Enacted in 1899, it is the longest-surviving member of a body of law whose abiding purpose is the protection of the environment, and the health and welfare of Americans - environmental laws. In that respect, it also represents the genesis of environmental criminal law. The Rivers and Harbors Act's misdemeanor sanctions for violating its prohibition against the discharge of refuse into the navigable waters of the United States represent the first direct commingling of criminal and environmental law. The collaboration between criminal sanction and environmental prohibition has grown significantly in the past thirty years, as Congress and virtually every state legislature have sought to include criminal penalties for violations of nearly every major environmental law. The environmental crimes program has reached a level of maturity where it is an integral component of national and state efforts to ensure compliance with these laws and regulations.
With this maturation, however, has come criticism. The criticism is often programmatic, and its implicit message is one that attempts to tarnish the ‘field‘ of environmental crimes enforcement, often by reducing it to a measure of economic efficiency. Such criticism may also be in the form of hyperbolic anecdotes and the use of a ‘poster child’ case meant to excoriate prosecutorial discretion and impugn the entire program of environmental criminal enforcement.
In this essay I argue that these criticisms are misguided and fail to account for the appreciable and vital role of criminal enforcement in ensuring overall environmental compliance. In doing so, however, I do not intend to engage in an advanced economic discourse meant to convince one of the cost-effectiveness of criminal liability versus civil liability for a corporate or individual violator of environmental laws, mens rea notwithstanding. I also do not intend to present a parade of horribles of environmental criminals to point out the tremendously egregious conduct that is currently being addressed in the federal environmental criminal enforcement program. Instead, this essay is meant to refocus the debate on the environmental crimes program by returning to a basic examination of the underlying conduct at issue - the deliberate and knowing violation of environmental laws. By doing so, I hope to remind the reader of his or her kindergarten years, where we all learned the real lessons in life.
The Rivers and Harbors Act recently celebrated its 100th birthday. Enacted in 1899, it is the longest-surviving member of a body of law whose abiding purpose is the protection of the environment, and the health and welfare of Americans - environmental laws. In that respect, it also represents the genesis of environmental criminal law. The Rivers and Harbors Act's misdemeanor sanctions for violating its prohibition against the discharge of refuse into the navigable waters of the United States represent the first direct commingling of criminal and environmental law. The collaboration between criminal sanction and environmental prohibition has grown significantly in the past thirty years, as Congress and virtually every state legislature have sought to include criminal penalties for violations of nearly every major environmental law. The environmental crimes program has reached a level of maturity where it is an integral component of national and state efforts to ensure compliance with these laws and regulations.
With this maturation, however, has come criticism. The criticism is often programmatic, and its implicit message is one that attempts to tarnish the ‘field‘ of environmental crimes enforcement, often by reducing it to a measure of economic efficiency. Such criticism may also be in the form of hyperbolic anecdotes and the use of a ‘poster child’ case meant to excoriate prosecutorial discretion and impugn the entire program of environmental criminal enforcement.
In this essay I argue that these criticisms are misguided and fail to account for the appreciable and vital role of criminal enforcement in ensuring overall environmental compliance. In doing so, however, I do not intend to engage in an advanced economic discourse meant to convince one of the cost-effectiveness of criminal liability versus civil liability for a corporate or individual violator of environmental laws, mens rea notwithstanding. I also do not intend to present a parade of horribles of environmental criminals to point out the tremendously egregious conduct that is currently being addressed in the federal environmental criminal enforcement program. Instead, this essay is meant to refocus the debate on the environmental crimes program by returning to a basic examination of the underlying conduct at issue - the deliberate and knowing violation of environmental laws. By doing so, I hope to remind the reader of his or her kindergarten years, where we all learned the real lessons in life.