Background
Crimes against the environment of the United States have occurred since the country’s beginning. During colonization, indiscriminate removal of trees and resulting unchecked erosion and sedimentation polluted our environment. Westward expansion brought the slaughter of buffalo herds, placer mining utterly destroyed streams of the Sierra Nevada, and mining of lands for minerals forever changed our landscape. Activists such as Henry David Thoreau and John Muir teamed with then-President Theodore Roosevelt to pass federal legislation to protect wild lands— technically the first environmental legislation passed in the United States aimed specifically to protect the environment.
Twentieth-century industrialization and chemical waste production, land use expansion, and urbanization radically changed the environment in the United States. Some, such as Rachel Carson, decried the harmful effects of chemical use, particularly horrors from pesticides such as DDT, instigating a chain reaction of events leading to the establishment of Earth Day in 1970 and a subsequent avalanche of environmental legislation. The National Environmental Policy Act (NEPA) created national environmental awareness through the Council on Environmental Quality (CEQ) within the Executive Office of the President. The Clean Air Act (CAA) and Clean Water Act (CWA) followed as major environmental legislation protecting the environment. With this legislation it became a crime to pollute without governmental oversight.
Modern environmental protection is rooted in statutory law—the passing of legislation by congress and state legislators to protect the environment. Legislation sets out the framework such as protection of air or water. Federal and state regulators mold legislation creating rules. Rules carry the full weight of the law. Courts carry final interpretation often deciding the meaning of vague environmental legislation, settling disputes generated from rules, or setting the precedents we follow today. All branches of government are involved as the president appoints key environmental posts such as EPA director and secretary of the interior. Within the states, governors appoint top posts such as secretary of natural resources. These posts set and enforce the policy framework legislators develop as environmental law.
Enforcement
Once an environmental crime is suspected, investigators and prosecutors at the federal and state levels become involved. The Environmental Protection Agency (EPA), Federal Bureau of Investigation (FBI), Defense Criminal Investigative Service (DCIS), and the U.S. Coast Guard regulate and enforce federal law. Specifically, EPA’s Office of Criminal Enforcement, Forensics and Training (OCEFT) investigates environmental crime for all EPA programs along with the FBI through the attorney general of the United States. Individual state environmental protection agencies, attorneys general offices, or the state police prosecute crimes within individual states.
The EPA began initial enforcement in 1982 with full law enforcement authority by 1988. The 1990 Pollution Prosecution Act greatly expanded the EPA’s enforcement authority. The National Enforcement Training Institute was founded to provide training to federal, state, and local personnel with regard to both criminal and civil enforcement. To further strengthen the EPA’s enforcement capabilities, the Environmental Crimes and Enforcement Act was introduced into Congress in 1992, 1996, and again in 1999. The act’s intent was to amend the federal criminal code to require that, on motion of the United States, a person convicted of an environmental crime (defined as a violation of specified statutes, including provisions of the Toxic Substances Control Act, Solid Waste Disposal Act, and Community Right-to-Know Act of 1986) be ordered to pay the costs incurred by a state, local, or tribal government when assisting in the investigation and prosecution of the case by the United States.
Enforcement may be divided into three distinct areas of environmental law. Civil enforcement brings violators into compliance with existing laws. Typically fines are imposed and permits revoked to force compliance. The effort is toward prevention and elimination of illegal pollution into the air, water, and soil. Cleanup enforcement forces responsible parties to clean up hazardous waste sites or pay the government for the cleanup. Both federal and state governments have created priority lists for the cleanup of contaminated areas. Criminal enforcement brings criminal sanctions against the most serious environmental violators. Serious environmental crimes involve negligent, knowing, or willful violations of law. These acts are deliberate—not an accident or a mistake.
Local governments develop, investigate, and prosecute a limited number of environmental crimes. Budget limitations dictate the breadth of environmental enforcement possible by a local government. Typically issues of land use, erosion, and water/sewage disposal are covered by the local municipality. Any violation is subject to local, state, and federal prosecution.
Prosecution
Many legal questions arise during the prosecution of an environmental crime. The most difficult question surrounds standing or right to sue in criminal litigation. Because the environment does not have rights under our constitution, individuals must show harm or loss of use from an environmental crime to prosecute. Administrative charges must show violation of rules set by the regulating authority.
Different means exist to prosecute under the law. Charges of assault and battery by means of a dangerous weapon from hazardous materials, criminal trespass for leachate from underground storage tanks, or felony convictions for illegal fishing activities in closed waters are examples of charges relating to environmental crime. Many environmental statutes contain provisions for citizen suits allowing anyone to bring charges against purported environmental violators. Courts view these provisions as a necessary and vital component of environmental enforcement.
Punishment
Punishment for convictions takes three forms: notice of violation, permit revocation or fines, and community service and/ or incarceration. Stemming from some of the earliest convictions in 1979 to current punishments, the courts show a pattern of increasing fines and jail sentences indicating a greater level of seriousness associated with environmental crime.
Corporate Crime
Of the top one hundred corporate crimes committed during the 1990s, thirty-eight were environmental:
• Exxon Corporation and Exxon Shipping pled guilty to federal criminal charges in connection with the March 24,1989, Exxon Valdez oil spill. The company was assessed a $125 million criminal fine, possibly the largest single environmental criminal recovery ever enacted.
• Louisiana-Pacific Corporation pled guilty to eighteen felonies for tampering with pollution control equipment, was fined $37 million, and was placed on five years of probation.
• The Summitville Consolidated Mining Co., Inc., pled guilty to forty counts of violating the Clean Water Act and other federal statutes at its Summitville Gold Mine operation in southwestern Colorado from 1984 to 1992. The company was fined $20 million.
• Rockwell International pled guilty to four felony violations of the Resource Conservation and Recovery Act and to one felony and five misdemeanors of the Clean Water Act for illegally stored and treated hazardous wastes generated during the production of plutonium ”triggers” and other components of nuclear weapons at Rocky Flats.
• Royal Caribbean Cruises Ltd., one of the world’s largest passenger cruise lines, pled guilty to twenty-one felony counts and agreed to pay a record $18 million criminal fine for dumping waste oil and hazardous chemicals and lying to the U.S. Coast Guard.
Individual Criminal Violations
Courts are becoming less tolerant of environmental crimes by the individual. While the criminal threshold still demands willful knowledge of the crime, punishment is increasingly becoming more severe.
• Father and son owners of asbestos abatement companies in New York State were sentenced to twenty-five years of imprisonment with forfeiture to the United States of America of more than $2 million in assets for violation of the Clean Air Act and the Toxic Substances Control Act. Their illegal asbestos abatement activities took place over a ten-year period at more than 1,550 facilities throughout New York State—including elementary schools, churches, hospitals, military housing, theaters, cafeterias, the New York State Legislature Office Building, public and commercial buildings of nearly every sort, and private residences. Each was sentenced to serve the two longest federal jail sentences for environmental crimes in U.S. history.
• A Connecticut businessman who made millions by illegally importing and selling ozone-depleting chloro-fluorocarbon (CFC) gases was sentenced to six years and six months in prison with $1.8 million in restitution. The businessman concealed more than $6 million in profits from the sale of more than a million pounds of CFCs between 1996 and 1998. The defendant admitted smuggling about 660 tons of CFCs into the United States, and importing another 1,100 tons without paying excise taxes. These chemicals are subject to an excise tax of about $5 per pound, which is imposed to discourage their use and to promote the transition to more ozone-friendly replacement products.
• A Mississippi man was sentenced to six years and six months in prison for his conviction on forty-five counts of spraying the pesticide methyl parathion without a license and three counts of illegally distributing methyl parathion in violation of the federal Insecticide, Fungicide and Rodenticide Act. Methyl parathion is approved only for outdoor agricultural use in uninhabited fields. Human exposure to methyl parathion can produce convulsions, coma, and death.
• A Connecticut metal finisher pleaded guilty to discharging wastewater containing excessive amounts of cyanide and acid into a public sewer system between November 1993 and April 1995, operating without a permit, and making false monitoring reports to environmental officials. The metal finisher was sentenced to six months of home confinement, three years of probation, and a $15,000 fine.
Lab Fraud
Environmental protection is dependent on accurate and reliable reporting by laboratories. All regulators rely on this reporting to determine if polluting entities are in compliance. Lab fraud cases go to the heart of a regulatory system that relies on accurate reporting.
• Intertek Testing Services, Inc., was fined $9 million for falsifying the results of environmental tests. ITS conducted environmental sample analysis, primarily as a subcontractor, for environmental consulting firms, engineering firms, and federal, state, and local governments nationwide. The test results were used for decision making at Superfund sites, Department of Defense facilities, and hazardous waste sites to determine site safety and to monitor the migration of hazardous wastes, including cancer-causing petrochemicals. The migration could affect groundwater, drinking water, and soil conditions in places where people might be exposed.
• The owner of a Baton Rouge laboratory known as Enviro-Comp was sentenced to serve forty-six months in federal prison and was ordered to pay $13,359 in public defender fees for mail fraud and obstruction of justice. The owner admitted to witness tampering and making false statements in an EPA Criminal Investigation Division (EPA-CID) lab fraud investigation.
