Targeted Enforcement

TARGETED ENFORCEMENT: TOWARD A MORE FAIR AND EFFECTIVE USE OF CRIMINAL SANCTIONS IN ENVIRONMENTAL VIOLATIONS

Over the past three decades, the United States has passed a number of Federal environmental laws that contain various enforcement provisions – including civil penalties and administrative fines, and both misdemeanor and felony-level criminal charges.  While certain statutes do indicate certain levels of punishment for certain conduct, the actual decision on whether to charge a suspected violator takes place, as it does with many laws, at the level of government prosecutors, in this case from the Department of Justice.  The EPA Criminal Enforcement Division investigates and forwards evidence to the DOJ for review and potential charges.  But there is criticism over the apparent randomness of who is actually charged, and what charges they face.

The criticism of the criminal enforcement of environmental laws can be broken down into two large categories:  fairness and effectiveness.  The fairness argument generally involves the perceived loss of the element of mens rea, the criminal mindset.  In amendments to certain environmental laws to be discussed below, the mens rea element has essentially been removed.  When combined with the fact that corporate officers may face charges because of their positions of oversight, it can lead to results that contradict the important principle of culpability in the criminal law – that a person must have at least a reckless state of mind to face serious criminal charges.  Supporters of the removal of the mens rea requirement argue that the prosecution of environmental crimes could be undermined if prosecutors had to demonstrate a culpable mind.  In addition, they claim that these crimes are “public welfare” crimes, for which it is permissible to relax the mens rea requirements. 

The efficacy argument involves the question of whether prosecutor’s charging decisions are effective in deterring or punishing violators of environmental laws, or whether prosecutors are going after cases that are the easiest to prove, or alternatively, the violators who have the deepest pockets.  Critics call for changes to the criteria used to determine who will be prosecuted.  Some say that those doing the most harm to the environment should be the priority, while others believe that it should be those with the most egregious conduct, despite the harm. Another question is whether priority should be given to those who violate substantive rules like thresholds for pollution emissions, or those who violate regulatory rules such as falsifying reports or misleading regulators. 

This paper concludes that the system is not just in allowing a relaxed standard of culpability, especially as it relates to corporate officers, and suggests that Congress require the proof required in other criminal cases.  Specifically, I argue that public welfare offenses generally do not have penalties as harsh as those here, and that this category of crimes should, for various reasons, include a mens rea component.  Without this element, efficiency is lost and compliance is actually weakened, because of the fact that power is concentrated in the hands of government prosecutors. 

As to the efficacy debate, I argue that it complements the mens rea argument, in that focus should be on cases in which there was a reckless endangerment, or knowing and deliberate conduct, rather than negligent violators.   Negligent conduct is best handled through civil fines, since it is difficult to point the blame at a particular person.  By leaving these violators to be dealt with in the civil system, the government would enjoy relaxed standards of proof, and will be able to recover damages to mitigate the effects without creating a culture of fear in well-meaning corporate officers. On the other hand, in cases in which a culpable mental state may be shown, criminal charges are the most effective deterrent, and can send a clear message of society’s disapproval.  Further, criminal charges are a good method of dealing with the problem of companies’ perceived “efficient breach,” where companies determine that paying fines is more cost-effective than complying with environmental laws.