Environmental Crimes: Raising the Stakes - SSRN papers

Environmental Crimes: Raising the Stakes Environmental Crimes: Raising the Stakes

Robert W. Adler and Charles Lord* Robert W. Adler and Charles Lord* 1.

Introduction

Although criminal sanctions have existed in federal and state envi1 criminal enforcement traditionI. years, Introduction ronmental statutes for many ally has taken a back seat to civil remedies. The past decade has seen increasing use of criminal have remedies forinegregious environmenAlthough criminal sanctions existed federal and state environmental statutes and a for verymany modest trend towardenforcement stiffer criminal penaltal violations years,' criminal traditionally taken a back seat did to civil The past these efforts not remedies. capture public awareness ties. 2hasBut decade and has apparently have use not of yetcriminal prompted significant improvements in enviseen increasing remedies for egregious environmental violations and a very3 modest ronmental compliance. Two recent have heighttrend cases, towardhowever, stiffer criminal penal2 ened and public criminal enforcement the ties. media But these efforts attention did not to capture public awarenessof and apparently have not yet laws. prompted significant improvements in envination's environmental ronmental compliance. 3 Two recent cases, however, have heightened media and public attention to criminal enforcement of the * Robert W. Adler is a Senior Attorney with the Natural Resources Defense Counnation's environmental laws. cil, Inc., (NRDC) in Washington, D.C. Charles Lord was a Law Clerk for NRDC in 1990. Portions of this Article were adapted from written testimony submitted on behalf of NRDC and other environmental organizations on proposed federal legislation affecting * Robert crimes W. Adler a Senior Attorney with theproposed Natural Resources Defense andison Sentencing Guidelines by the United StatesCounSenenvironmental cil, Inc., Commission. (NRDC) in Washington, D.C. Charles Lord a LawofClerk for NRDC 1990. appear at was the end this Article that in present tencing Several appendices Portions on of this Article were adapted from written testimony submitted on behalf of statistics criminal enforcement. NRDC environmental organizations proposed federal 1. and See, other e.g., Clean Water Act, 33 U.S.C. on § 1319(c)(2) (1988); legislation Clean Air affecting Act, 42 environmental crimes (1988). and on Sentencing Guidelines by the United States SenU.S.C. § 7413(c)(l) All 50 states have proposed criminal sanction provisions. See tencing Commission. appendices the end of this Article that present DeCicco & Bonanno, ASeveral Comparative Analysisappear of the at Criminal Environmental Laws of the Fifty statistics criminal enforcement. States: TheonNeed for Statutory Uniformity as a Catalyst for Effective Enforcement of Existing and Proposed Laws,e.g.,5].Clean LAND Water USE & Act, ENVTL. 1,2 &§ n.l (Winter(1988); 1989). Clean Air Act, 42 1. See, 33 L. U.S.C. 1319(c)(2) U.S.C. § 7413(c)(1) (1988). All 50 states have criminal sanction provisions. See 2. See infra Part III. DeCicco & infra Bonanno, A Comparative Analysis of the Criminal EnvironmentalLaws of the Fifty 3. See Part II. States: The Needfor Statutoy Uniformity as a Catalystfor Effective Enforcement of Existing and Proposed LAND UsE & ENvTL. L. 1, 2 & n.l (Winter 1989). April 1991 Laws, Vol. 595J. No.4 2. See infra Part III. 3. See infra Part II.

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The Exxon Valdez Oil Spill The Exxon Valdez Oil Spill On March 24, 1989, the Exxon Valdez supertanker plowed into Bligh in Alaska's Prince William Sound, spilling esOn Reef March 24, 1989,pristine the Exxon Valdez supertanker plowedaninto Reef in Alaska's pristine of Prince William Sound, spilling esBligh timated 10.8 million gallons crude oil from Prudhoe Bayanand 4 The of crude Prudhoe Baybeing and timated 10.8Slope million gallons other North oilfields. effectsoiloffrom the spill are still 5 other North Slope oilfields. The effectscivil of the are still being studied. Moreover, because4 of pending and spill criminal litigation, 5 Moreover, the results of most ofbecause the damage assessment studies conducted in studied. of pending civil and criminal litigation, 6 Despite these data limita1989results and 1990 haveofnot released. the of most thebeen damage assessment studies conducted in havethe notExxon been Valdez released. Despite tremendous these data limita1989 and tions, it is 1990 clear that spill6 wrought damage onit is once-pristine Exxon Valdez tions, clear that theAlaska watersspill andwrought wildlife.tremendous Over 1000damsea ottersonand at least 36,471 birds,waters including 156 bald eagles, age once-pristine Alaska and over wildlife. Over 1000died sea from direct indirect with oil during thebald first eagles, summerdied afand atand least 36,471contact birds, including over 156 otters 7 Hundreds indirect contact with during the first summer affrom direct ter the spill.and of miles of oil previously unspoiled beaches werethe covered oil; some showed unspoiled visible signs of oil ter spill.7 with Hundreds of beaches miles of still previously beaches some still showed signs of oil were covered with oil; in 1990, and many others arebeaches contaminated belowvisible the surface., s many others are contaminated below surface. in Although 1990, andthe precise causes of the spill are still the being debated, Although precise causes the are squarely still being several facts the seem to place muchofof thespill blame on debated, Exxon's seem to 9place the blame on Exxon's several facts corporate shoulders. The much UnitedofStates Coastsquarely Guard (USCG) re9 The ported thatshoulders. the Captain ofUnited corporate StatesJoseph Coast Hazelwood, Guard (USCG) the vessel, hadre-a portedalcohol that the Captain of the vessel, Joseph limits Hazelwood, hadafa blood level exceeding USCG regulatory ten hours ter thealcohol accident. Hazelwood a record of convictions driving blood level exceedinghad USCG regulatory limits tenfor hours after theintoxicated-a accident. Hazelwood had was a record of convictions for driving while record that well-known to Exxon's corporate intoxicated-aHazelwood record thatwas wasnot well-known to Exxon's corpowhilemanagement. on the bridge at the time of the accident, and the Third Mate not time legally rate management. Hazelwood waspiloting not on the the vessel bridgewas at the of authorized havethethe helmMate in those waters. Bligh was Reef the accident,toand Third piloting the vessel not legally was well out of the designated and was wellReef marked. to have theshipping helm inchannel, those waters. Bligh was well authorized outOver of the shipping channel, and was marked. onedesignated hundred civil lawsuits have been filedwell seeking damages and other relief from civil losses causedhave by the spill. Two criminal cases Over one hundred lawsuits been filed seeking damages and other causedindicted by the spill. TwoHazelwood criminal cases were filed.relief Thefrom Statelosses of Alaska Captain for three misdemeanors: oil, operation of a vesof Alaskadischarge indictedofCaptain Hazelwood for were filed. The Statenegligent 0 An Alaskan three misdemeanors: negligent of oil, 1operation of a jury vessel while intoxicated, and recklessdischarge endangerment. acquitted Hazelwoodand of reckless all but endangerment. a single charge (negligent dis10 An Alaskan jury sel while intoxicated, acquitted Hazelwood of responsible all but a single discharge), and the Captain for the charge largest (negligent and most damCaptainStates responsible largest and most hours damcharge), aging oil and spillthe in United historyfor wasthe sentenced to 1000 1000 hours aging oil spill in United States history sentenced of community service working on the was oil spill cleanuptoand ordered of community service working on the oil spill cleanup and ordered 4. ALASKA OIL SPILL COMM'N, SPILL: THE WRECK OF THE Exxon Valdez III (1990).

The 4. volume of oil the Exxon Valdez is still subject to dispute. ALASKA OILspilled SPILL by COMM'N, SPILL: THE WRECK OF THE Exxon Valdez III (1990). See 1990 STATE/FEDERAL RESOURCE DAMAGEto ASSESSMENT The 5. volume of oil spilled by theNATURAL Exxon Valdez is still subject dispute. PLAN FOR THE Exxon5.Valdez OIL SPILL i (Aug. 1990) (prepared through the cooperation the FOR StateTHE of See 1990 STATE/FEDERAL NATURAL RESOURCE DAMAGE ASSESSMENTofPLAN Alaska, the United States Departments of Agriculture andthe Interior, the National Exxon Valdez OIL SPILL i (Aug. 1990) (prepared through cooperation of the Oceanic State of and Atmospheric Administration, andof the United and States Environmental Protection Alaska, the United States Departments Agriculture Interior, the National Oceanic Agency). and Atmospheric Administration, and the United States Environmental Protection 6. Id. Agency). 7. ALASKA DEP'T OF ENVTL. CONSERVATION, CURRENT STATUS OF THE Exxon Valdez 6. /d. OIL SPILL 3 (1990). 7. ALASKA DEP'T OF ENVTL. CONSERVATION, CURRENT STATUS OF THE Exxon Valdez

Id.3at(1990). 2. OIL 8. SPILL 9. See ALASKA OIL SPILL COMM'N, supra note 4, at 133-35. 8. /d. at 2. 10. OILOIL SPILL COMM'N, supra note 4, app. at 9. The State has filed no 9. ALASKA See ALASKA SPILL COMM'N, supra note 4, at N, 133-35. other related to thesupra spill. note Instead, the State givenState most has of its attenALASKAcharges OIL SPILL COMM'N, 4, app. N, at has 9. The filed no 10.criminal tion tocriminal its own civil suit related Exxon and other defendants. v. Exxon Corp., No. against to other charges the spill. Instead, the State Alaska has given most of its atten3AN-89-2533 Sup.Exxon Ct. filed 1989). tion to its own Civ. civil (Alaska suit against andAug. other15, defendants. Alaska v. Exxon Corp., No. 3AN-89-2533 Civ. (Alaska Sup. Ct. filed Aug. IS, 1989).

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to pay $1000 in restitution to the State." Many commentators bel l Many commentators beto pay that $1000 in restitution to the State. lieved justice was done because Hazelwood was being used as2 a justice becauseworld's Hazelwood wasoilbeing used as a lieved that for company.' largest culprit-the real done the was scapegoat the real culprit-the world's largest oil company.12 scapegoat for All eyes turned to the federal government, which had convened a All eyes to the federal government, whichthe had convened Grand Juryturned in Anchorage. On February 27, 1990, United Statesa GrandJury in Anchorage. On February 27, 1990, the United States returned a five-count indictment against Exxon Corporation and 13 charging returned a five-count indictment against Exxon Exxon Shipping Company, them with Corporation violations of and the 14 15 Exxon Shipping Company,13 charging them with violations of the Bird Treaty Clean Water Act, the Refuse Act, the Migratory 16 the 17 and the Bird Clean Water Act,14 Refuse Act,IS Treaty Act, Ports and the Waterways Safety the Act,Migratory Dangerous 8 Act,16 the Ports and Waterways Safety Act,17 and the Dangerous Cargo Act.' All of the charges are misdemeanors, carrying maxithe$600 charges are according misdemeanors, maxiCargopenalties Act. IS All mum of of over million to the carrying statutes under mum penalties of over million according to theexposure, statutes under which the charges were$600 brought. Exxon's principal howwhich the charges brought. Exxon's principal exposure,Act however, appears to bewere under the Criminal Fine Improvements of Fine Improvements of ever, to be under 198719appears under which it couldthe be Criminal fined up to twice the pecuniaryAct gain 19 under which it could be fined up to twice 1987 the pecuniary or loss caused by the alleged criminal conduct,2 0 with combined gain civil or loss caused bytotalling the alleged conduct,20 withExxon's combined civil liability possibly tenscriminal of billions of dollars. Motion of billions dollars.and Exxon's Motion liability possibly totallingon tens to Dismiss was denied October 27, of 1990,21 the case was denied on October 1990,21 and the case was to Dismiss for wastrial scheduled in April of 1991. 27, Several weeks before the trial in Aprilsubmitted of 1991. aSeveral weeks before the trial scheduled for trial date, however, the parties Plea Agreement whereby departies submitted a Plea Agreement wherebypled dedate, however, Exxonthe Corporation and Exxon Shipping Corporation fendants Corporation under and Exxon Shipping Corporation pled fendants Exxon guilty to four misdemeanors the Clean Water Act, the Refuse 2 2 Under guiltyand to four misdemeanors Clean Water the Act,Agreement, the Refuse the Migratory Act, Bird under Treatythe Act. 22 $100 million, andcorporations the Migratory Bird TreatyaAct. the Agreement, Act, the two were assessed fine ofUnder of which 2 3 the two corporations were assessed a fine $100 million, of which $50 million was remitted. In addition, theofAgreement requires the 23 In addition, $50 million was remitted. the Agreement requires the defendants to pay $50 million in restitution to the State of Alaska 24 the defendants to pay million in restitution of Alaska for "remedial and $50 compensatory payments." 'to TheState criminal plea "remedial aand payments."24 The agreed criminal for accompanied civilcompensatory settlement under which Exxon to plea pay under which pay accompanied a civil the United States andsettlement the State of Alaska $1.1 Exxon billion agreed over tentoyears the United States and the State of Alaska $1.1 billion over ten years 11.

N.Y. Times, Mar. 24, 1990, at 8, col. 1.

11. N.Y.Wash. Times, Mar. 24, 24, 1990, at 8, 12. See Post, Mar. 1990, at col. A-3, 1.col. I. 12. See Wash. Post,v.Mar. 24, Shipping 1990, at A-3, 13. United States Exxon Co., col. No. 1.A90-015 (D. Alaska filed Feb. 27, 1990) of indictment). 13. (bill United States v. Exxon Shipping Co., No. A90-015 (D. Alaska filed Feb. 27, 1990) of indictment). 14. (bill 33 U.S.C. §§ 1311(a), 1319(c)(1) (1988). 14. 33 U.S.C. 1311(a), 1319(c)(1) (1988). 15. Id. §§ 407,§§ 411. 15. §§407,411. 16. [d. 16 U.S.C. §§ 703, 707(a) (1988). 16. 703, 707(a)(1988). (1988). 17. 16 33 U.S.C. U.S.C. §§ § 1232(b)(1) 17. 33 U.S.C. 1232(b)(l) (1988). 18. 46 U.S.C. § 3718(b) (1988). 18. 3718(b) (1988). (1988). This provision has been used in only two environ19. 46 18 U.S.C. U.S.C. § 3571(d) United States v. BallardThis Shipping Co., has No.been 89-0121M(T) (D.R.I. 16, mental 19. cases: 18 U.S.C. § 3571(d) (1988). provision used in only two Aug. environ1989) (settled by plea States agreement), andShipping Government's Memorandum in (D.R.I. Aid of Sentencmental cases: United v. Ballard Co., No. 89-012IM(T) Aug. 16, ing, States v. Ashland Oil, 705 Supp. 270 (W.D. Pa. 1989) in(No. 1989)United (settled by plea agreement), and F. Government's Memorandum Aid88-146). ofSentencing,20. United States §v.3571(d). Ashland Oil, 705 F. Supp. 270 (W.D. Pa. 1989) (No. 88-146). 18 U.S.C. 20. 18 U.S.C. § 3571(d). 21. United States v. Exxon Corp., No. A90-015 (D. Alaska Oct. 27, 1990) (order denying to dismiss). motionsStates 21. United v. Exxon Corp., No. A90-015 (D. Alaska Oct. 27, 1990) (order denying motions to dismiss). 22. Plea Agreement at 1-2, United States v. Exxon Shipping Co., No. A90-015. (D. Alaska 13, 1991). at 1-2, United States v. Exxon Shipping Co., No. A90-015 (D. 22. filed Plea March Agreement Alaska 23. filed Id. atMarch 6-7. 13, 1991). 23. 24. /d. Id. at 6-7. 7-8. 24. /d. at 7-8.

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to compensate compensate the governments for past cleanup and future restora25 tion costs. costS. 25 Perhaps Perhaps most notable in this story is who has not been indicted. Some have have criticized the government for not bringing criminal charges ofExxon management management and other corporate corporate ofcharges against senior Exxon ficers.2266 In addition, the government government elected elected not to indict the Alyeska Pipeline Service Co., the consortium of oil companies companies that operates Trans-Alaska Pipeline, which was responsible operates the Trans-Alaska responsible for the oil spill response response in the early days after the spill. In the Plea Agree"additional ment, the United States agreed expressly not to seek "additional criminal administrative penalties [with limited criminal charges or any civil or administrative limited exceptions] defendant EXXON, EXXON, or any of its present or or exceptions] against the defendant employees,. ... . . or against Alyeska Pipeformer officers, officers, directors or employees, line Service Company Company or any of its shareholders shareholders or owner companies or present or former shareholder shareholder representatives," for the spill 27 or related events. 27 It is beyond beyond the scope of this Article to analyze what other criminal charges charges could have been been brought in response to the Exxon Valdez oil spill. The matter has raised serious questions, questions, however, regarding the degree to which corporate corporate America is held criminally accountable for its environmental environmental conduct, and the adequacy adequacy of of 8 As existing criminal sanctions in federal environmental environmental statutes.228 reported by the New York Times: Lawrence G. Rawl, the chairman of Exxon, seemed to shrug off Lawrence off "We're talking about stretching a bill the cost of the settlement. "We're out over 10 years," plans." years," he said. "It will not curtail any of our plans." stock closed $57.25, $1 the New York Hours later, Exxon at $57.25, up on 29 Stock Stock Exchange. Exchange. 29 B.

Case The Pozsgai Pozsgai Case

Although the Exxon Valdez oil spill raised serious questions about about the federal government's ability and willingness willingness to pull out all the stops in criminal enforcement enforcement of serious serious environmental environmental matters, the case ofJohn Pozsgai has been championed championed by the Washington Legal Foundation evidence of of Foundation and other conservative conservative interest interest groups groups as evidence 0 "enforcement overkill" on of environmental environmental regulators. regulators.33o "enforcement overkill" on the the part part of Pozsgai was sentenced sentenced to three years in prison and fined $202,000 $202,000 Clean for violations of the wetlands wetlands protection provision provision of the Clean Agreement and Consent A9125. Agreement Consent Decree at 7-11, 7-11, United States v. Exxon Corp., Corp., No. A9113, 1991). 1991). 082 (D. (D. Alaska filed March 13, Oil Spill, Spill, L.A. Times, February February 28, 26. Exxon Indicted Indicted in Oil 28, 1990, at A-I, A-I, A-20, A-20, col. 5. Agreement at 5, Shipping Co., No. A90-015. A90-015. 5, Exxon Shipping 27. Plea Agreement authors participated in a debate on this issue on the the 28. For example, one of the authors MacNeil MacNeil Lehrer News News Hour after the Exxon indictment indictment was announced. See A Debate Debate over Punishment: an Assault on Nature Nature Make Exxon a Criminal?, Criminal?, N.Y. Times, Apr. 23, 1989, Punishment: Does an 1, col. 3. § 4, at 1, 29. N.Y. Times, Mar. 17, 17, 1991, 1991, § 4, at 5, col. 5. 30. Kamenar, Environmental Environmental Protection Protection or Enforcement Overkill, Overkill, ENVmL. May/June ENVfL. F., May/June 1990, at 29. Mr. Kamenar Washington Legal Kamenar is the Executive Executive Legal Director Director of the Washington Foundation. Foundation.

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3 ' Despite its much smaller environmental toll, the Water Act.31 32 Water Act. Despiteconsiderable its much smaller environmental the as well.toll, media attention Pozsgai case received Pozsgai case received considerable media attention as well. 32 The Pozsgai matter presents a fascinating example of differing The Pozsgai of matter presents a fascinating example of differing presentations the facts of a case. According to the Washington presentations of the facts of a case. According to the Washington Legal Foundation (WLF), Pozsgai's crime was: Legal Foundation (WLF), Pozsgai's crime was: [p]lacing topsoil, earth, and similar clean fill on five acres of his fill on five acres ofconhis [p]lacing topsoil, earth, similar clean own property which the and government determined technically own property which the government determined technically constituted a wetland. The area is a 14-acre dumpsite ...bordered The area is a 14-acre dumpsite ... bordered stituted wetland. an by majorahighways, auto salvage yard, and a tire dealership.... by major highways, anthe autosite salvage yard, andtons a tireofdealership.... [Pozsgai] cleaned up by removing assorted junk 33 [Pozsgai] the site by aremoving of assorted junk few acres.tons fill on began toupplace before he cleaned before he began to place fill on a few acres. 33 Thus, according to WLF's version of the facts, Mr. Pozsgai was imThus, according to for WLF's version the facts, Mr. Pozsgai imprisoned and fined cleaning up of a public nuisance! And, was accordprisoned and fined for cleaning up a public nuisance! And, according to WLF, Pozsgai received the stiffest penalty ever assessed ing to WLF, received the34 stiffest penalty ever assessed violator. Water Act a CleanPozsgai against against a Clean Water Act violator. 34 The United States Environmental Protection Agency (EPA), of The United Agency (EPA), of course, presentsStates a far Environmental different pictureProtection of the facts: course, presents a far different picture of the facts: In U.S. v. Pozsgai, the jury found that John Pozsgai had been In U.S. repeatedly-by v. Pozsgai, the ajury that John Pozsgai hadfirm, beena warned real found estate broker, an engineering 35 thea warned repeatedly-by a real biologist, the U.S.estate consulting Armybroker, Corpsanofengineering Engineers, firm, consulting biologist, the U.S.notices ArmyofCorps of Engineers,35 the EPA (including three written violation or cease-and-deof violation or cease-and-deEPA (including three written notices sist orders), and the restraining order of a U.S. district judgeorder of a U.S. sist that orders), he couldand notthe fillrestraining the forested wetlands site district that hejudgeowned that he could not fill the forested wetlands site that he owned without the proper permit. permit.he bought the property at a reduced without the proper The evidence establishes The evidence establishes he bought thetrees, property at a reduced price because it was a wetland, felled the and filled the area it was a wetland, felled the trees, and filled thefilling area price because while ignoring repeated warnings. It also showed that this while ignoring repeatedand warnings. It also showed that this filling destroyed the wetland caused flooding on neighboring proppropdestroyed the wetland caused flooding erty. The judge found and Pozsgai to be one ofon theneighboring most "stubborn" erty. Thejudge found Pozsgai to be one of the most "stubborn" 36 ... . seen ever criminal violators he had criminal violators he had ever seen ....36 According to the government's view, therefore, Pozsgai was a stubAccording to the government's therefore, Pozsgai was a stubborn, intransigent violator who view, flaunted the nation's wetlands proborn, intransigent violator who flaunted the nation's wetlands tection law despite repeated warnings. As presented by EPA, prothis tection law despite warnings. As presented EPA, this was a classic case ofrepeated using criminal remedies only as abylast resort, was a classic case of using criminal remedies only as a last resort,

31. United States v. Pozsgai, No. Cr. 88-00450 (E.D. Pa. July 13, 1989), aff'd mein., States Pozsgai, No.111Cr.S. 88-00450 (E.D. Pa. July 13, 1989), a.!f'd mem., 89731. F.2dUnited 524 (3d Cir.),v. cert. denied, Ct. 48 (1990). 89732. F.2dSee524 Cir.),ofcert. denied, its 111 S. Ct. 48 (1990). EPA(3d Accused Muddying Jackboots' in Pennsylvania Wetlands, Wash. Post, Jan. 32. See 3, 1990, at EPA A3. Accused ofMuddying its Jackboots' in Pennsylvania Wetlands, Wash. Post,Jan. 3, 1990, at A3. supra note 30, at 30. 33. Kamenar, 33. Idt Kamenar, supra note 30, at 30. 34. 34. The Id. Army Corps of Engineers is responsible for administering the permitting 35. 35. The Army Corps404 of Engineers is responsible permitting program under section of the Clean Water Act. for 33 administering U.S.C. § 1344the (1988). EPA under sectionover 404permits of the issued Clean by Water Act. 33Id.U.S.C. § 1344 (1988). EPA programveto retains authority the Corps. § 1344(c). retains authority overCost permits issued the Corps. !d. § 1344(c). 36. veto Thompson, A New of Business forbyEnvironmental Violators, ENVTL. F., May/June 36. atThompson, A New Cost ofBusinessfor Environmental ENVTI.. F., 1990, 33. Mr. Thompson is EPA's Deputy AssistantViolators, Administrator for May/June Criminal 1990, at 33. Mr. Thompson is EPA's Deputy Assistant Administrator for Criminal Enforcement. Enforcement.

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when all administrative administrative and civil remedies had failed to induce lawabiding conduct. and Purpose Summary and Purpose of this Article Article Environmental Environmental groups rightfully rightfully rallied behind the government government in in supporting the Pozsgai prosecution.3377 Any other result would encourage courage other individuals such as Mr. Pozsgai to flaunt environmental statutes entirely, hiding behind their asserted asserted right to do what they will with private property, regardless of the environmental environmental consequences. consequences. Still, comparing comparing the Pozsgai Pozsgai and Exxon Valdez cases cases raises serious questions about the federal government's willingness questions government's willingness to take as aga gressive criminal posture against major corporate corporate executives as gressive against small individual violators. Environmental individual Environmental groups groups sharply criticized bargain criticized the Department Department of Justice's justice's first proposed plea bargain agreement with Exxon, arguing that the reported reported sanctions repreenvironmental catastrosented a "slap "slap on the wrist" wrist" in light of the environmental 8 phe caused by Exxon's Exxon's conduct.338 And although the ultimate plea bargain raised the stakes to $100 $100 billion in fines and criminal restitucavalier attitude toward settlement settlement intion, Exxon Chairman Chairman Rawl's cavalier conduct.3399 Exxon's conduct. dicates that even this sanction will not modify modify Exxon's Granted, Mr. Pozsgai's violations were were overtly overtly deliberate. Although Exxon acted deliberately deliberately in failing to take adequate measures to prevent and to be prepared prepared to respond to its eleven eleven million gallon gallon accident, clearly it did not intend intend to despoil Prince William William Sound, as Pozsgai intended to fill the wetlands on his property. But equally environmental significance clearly, the environmental significance of the Exxon Exxon spill far exceeds importance of holding major oil Pozsgai's transgressions, transgressions, and the importance executives to high standards of compliance compliance while transcompany executives porting billions of gallons gallons of hazardous cargo annually should be one of the government's environmental enforcement enforcement priorities. government's top environmental priorities. Was the government's government's indictment indictment of Exxon Corporation and not individual executives executives part of a pattern in the selection selection of remedies by the Department of justice Justice (DOj)? (DOJ)? Does the government act more aggressively corporate aggressively against small businesses businesses than against corporate America? The Exxon case also sharply calls into question the adequacy adequacy of the criminal environmental laws. Perhaps the criminal provisions provisions of the nation's environmental Justice justice Department was right in its analysis that Exxon was guilty only of misdemeanors misdemeanors in causing one of the nation's worst environmental catastrophes. catastrophes. If so, the adequacy adequacy of those provisions provisions must must be questioned, as it was by Representatives Schumer (Dem. Representatives Charles Schumer N.Y.) and George Gekas (Rep. Pa.) when they introduced introduced the Environmental Crimes Act of 1989 in the wake of the Exxon Valdez ronmental 40 tragedy. tragedy.40 C. C.

37. 38. 39. 40. 40.

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Finally, assuming that Mr. Pozsgai received an appropriate sentence for his apparently blatant violations of the Clean Water Act, one still must ask how Pozsgai received the most severe sentence ever imposed under the Clean Water Act, given major continuing Clean Water Act violations by large companies. 4 1 Have past criminal prosecutions or sentencing proceedings been unduly lenient? And again, has the government shied away from seeking strict criminal penalties against large corporate violators, while testing the limits of criminal environmental prosecution against smaller offenders? This Article addresses these issues from several perspectives. First, it examines evidence showing that compliance with the nation's environmental laws continues to be poor, and argues that increased and more effective use of criminal remedies is necessary to stimulate improved compliance. Next, it presents a detailed analysis of trends in criminal enforcement of the environmental pollution statutes by EPA and DOJ. This analysis shows a trend toward increased numbers of EPA referrals of criminal matters to DOJ and a slight trend toward increased criminal penalties, particularly after the United States Sentencing Commission's Sentencing Guidelines for individuals took effect. It also shows, however, that the number of DOJ criminal prosecutions has leveled off, perhaps showing the limits of DOJ enforcement resources, and that criminal sanctions for environmental crimes still appear quite light relative to other types of crimes and relative to the maximum penalties authorized by Congress. This section also critiques EPA and DOJ criminal enforcement efforts and suggests possible improvements. Finally, the Article analyzes recent proposals to strengthen criminal enforcement against environmental violations. Included in this discussion is an analysis of two pieces of federal legislation introduced after the Exxon Valdez spill: the Environmental Crimes Act of 1989,42 introduced by Representatives Schumer and Gekas, and the Pollution Prosecution Act of 1990, 43 introduced by Senator Joe Lieberman (Dem. Conn.). This section also comments on the United States Sentencing Commission's proposed Sentencing Guidelines for organizations, which bear important ramifications for the criminal prosecution of corporations and other business organizations guilty of environmental crimes. Although environmental crimes generally are conducted by corporations in the "normal course of business," from a strictly ethical perspective such activities warrant sanctions as, or more, severe than those imposed for many other crimes. Environmental laws are designed to prevent death and serious illness from exposure to toxic 41. See infra Part I.

42. H.R. 3641, 101st Cong., 1st Sess. 43. Pub. L. No. 101-593, 1990 U.S. CODE 104 Stat.) 2954.

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(104 Stat.) 2954.

and other pollutants or the destruction or waste of valuable or irreand other pollutants or the destruction or waste of valuable or irrenatural resources. Other crimes that jeopardize the health placeable placeable natural resources. Other crimes that jeopardize the health or well-being of one or more individuals, or that threaten personal or well-being of one or more individuals, or that threaten personal or public property, are considered serious enough to impose strict or public property, are considered serious enough to impose strict criminal penalties. Environmental crimes that endanger even more criminal penalties. Environmental crimes that endanger even more members of the public, due to contamination of air, water, land, and members of the public, due to contamination of air, water, land, and food and actions that damage or destroy valuable public property food and actions that damage or destroy valuable public property (such as wildlife and critical habitat), deserve similar treatment. (such as wildlife and critical habitat), deserve similar treatment. This point was underscored by the testimony of Dr. Charles This point was underscored by the testimony of Dr. Charles Konigsberg, a political scientist at the University of Alaska, Konigsberg, a political scientist at the University of Alaska, Anchorage, in testimony during the Citizens Commission Hearings Anchorage, in testimony during the Citizens Commission Hearings on the Exxon Valdez oil spill conducted by the National Wildlife Fedon the Exxon Valdez oil spill conducted by the National Wildlife Federation and Natural Resources Defense Council (NRDC) last year: eration and Natural Resources Defense Council (NRDC) last year: It seems very ironic to me that a man can go out and steal a hunIt seems veryand ironic me that a man can go years, out and steal hundred dollars gettostuck in jail for several and theaenordred dollars and get stuck in jail for several years, and the enormous damage done by people such as this is not really punished mous done by people such this is not to really punished in the damage significant sense at all. So I'massuggesting you that what in the significant sense at all. So I'm suggesting to you that what to we have here is a kind of Mafia of the economic world that has we have here in is criminal a kind ofterms. Mafia 444of the economic world that has to 4 be punished terms. be punished in criminal

Compliance with Existing Environmental Laws is Often Poor-Compliance with Existing Environmental Laws is Often PoorStronger Deterrence is Needed Stronger Deterrence is Needed Over the past past twenty twenty years years dozens dozens of laws have passed to to Over the of laws have been been passed protect environmental quality and human health from a wide range protect environmental quality and human health from a wide range of environmental disturbances. 45 Many of these laws include crimiof environmental disturbances. 45 Many of these laws include criminal enforcement tools designed to ensure compliance. nal enforcement tools designed to ensure compliance. There is strong evidence to suggest that despite the array of enThere is strong evidence to suggest that despite the array of enforcement tools available to state and federal agencies, compliance forcement tools available to state and federal agencies, compliance with existing environmental laws is often poor. Although major with existing environmental laws is often poor. Although major events such as Love Canal, Three Mile Island, and the Exxon Valdez events such as Love Canal, Three Mile Island, and the Exxon Valdez and Ashland oil spills capture headlines and public attention, scores and Ashland oil spills capture headlines and public attention, scores of additional violations routinely threaten human health and the enof additionalAviolations routinely threaten human health and the of individuals and corporations do enact vironment. large number vironment. A large number of individuals and corporations do act responsibly and comply with existing environmental laws and reguresponsibly and comply with existing environmental laws and reguothers do not. This inconsistent compliance not lations, but many lations, but many others do not. This inconsistent compliance not only jeopardizes health and the environment, but is unfair to reonly jeopardizes health and the environment, but is unfair to responsible environmental actors, who may suffer severe competitive sponsible environmental actors, who may suffer severe competitive disadvantage at the hands of those who evade their legal duties. disadvantage at the hands of those who evade their legal duties. Evidence of widespread noncompliance with environmental laws Evidence of widespread noncompliance with environmental laws and regulations comes from many quarters, only a few of which are and regulations comes from many quarters, only a few of which are cited here: cited here: II. II.

44. THE DAY THE WATER DIED: A COMPILATION OF THE NOVEMBER 1989 CmzENs 44. THE DAY THE WATER COMPILATION NOVEMBER 1989 and GITIZENS COMMISSION HEARINGS ON THEDIED: ExxonAValdez OIL SPILLOF51THE (1990) (sponsored pubCOMMISSION HEARINGSWildlife ON THEFederation Exxon Val&z SPILL 51 with (1990) (sponsored and pubin OIL Cooperation NRDC, the Wildlife Fedlished by the National lished byofthe National Federation in Cooperation with NRDC, the Wildlife FedAlaska, and Wildlife the Windstar Foundation). eration eration of Alaska, and the Windstar Foundation). 45. See, e.g., Clean Water Act, 33 U.S.C. §§ 1251-1376 (1988); Resource Conservae.g., Clean Act, §§ 33 6901-6992 U.S.C. §§ 1251-1376 (1988); Resource ConservaandSee, Recovery Act,Water 42 U.S.C. (1988); Toxic Substances Control Act, tion45. tion and Recovery Act, 42(1988); U.S.C. Clean §§ 6901-6992 (1988); Substances(1988). Control Act, §§ 2601-2671 Air Act, 42 U.S.C.Toxic §§ 7401-7642 15 U.S.C. 15 U.S.C. §§ 2601-2671 (1988); Clean Air Act, 42 U.S.C. §§ 7401-7642 (1988).


THE GEORGE WASHINGTON LAW THE GEORGE WASHINGTON LAW REVIEW REVIEW

**

46 Accounting Office (GAO) A recent report by the General Accounting (GAO)46 that at percent of industries that that discharge found found that at least least forty-one forty-one percent of industries discharge toxic into public systems violate discharge reretoxic wastes wastes into public sewer sewer systems violate their their discharge quirements. releases cause water pollution, pollution, toxic polluquirements. These These releases cause water toxic air air pollution, and safety at sewage tion, and and threaten threaten worker worker health health and safety at sewage treatment treatment plants. plants. 4 7 found ** Another widespread noncompliance Another GAO GAO report report 47 found widespread noncompliance with with laws and regulations designed to prevent prevent inland inland oil oil spills. laws and regulations designed to spills. In In four four EPA regions regions visited by GAO, GAO, violations violations were EPA visited by were found found in in between between noncompliforty-one to ninety-four ninety-four percent forty-one to percent of of inspections. inspections. This This noncompliled to to 2000 to 3000 each year year since since 1982. ance has led 2000 to 3000 oil oil spills spills each 1982. ** AA 1988 report by by the the NRDC, NRDC, Trustees Trustees for 1988 report for Alaska, Alaska, and and the the NaNa4 8 tional Wildlife Federation (NWF)48 found thousands of violations tional Wildlife Federation (NWF) found thousands of violations of and regulations oil companies companies operating of environmental environmental laws laws and regulations by by oil operating on the the North North Slope Alaska. Violations oil spills, air on Slope of of Alaska. Violations involved involved oil spills, air and water pollution, hazardous waste releases, and other hazardous waste releases, and other problems. This investigation led to to the problems. This investigation led the filing filing of of aa major major citizen citizen of violations of the Clean Water Water suit against ARCO for hundreds suit against ARCO for hundreds of violations of the Clean 9 4 49 Act. Act. 50 found A report NWF50 ** A report by by the the NWF found rampant rampant noncompliance noncompliance with with Water Act -the law to protect protect the the the Safe the Safe Drinking Drinking Water Act5511-the law designed designed to American pollutants in in public public drinking drinking American public public from from dangerous dangerous pollutants water. NWF identified water. The The NWF identified over over 100,000 100,000 violations violations of of the the law law of each year, including approximately 17,000 violations each year, including approximately 17,000 violations of health health standards, thirteen million people. standards, affecting affecting about about thirteen million people. Studies have widespread noncompliance with the ** Studies have found found widespread noncompliance with the SurSurface Mining Conservation and Reclamation Act of 1977,52 face Mining Conservation and Reclamation Act of 1977,52 the the law law the 'environment from the devastating effects effects designed designed to protect protect the environment from the devastating 53 of mining).53 coal mining (strip mining). surface coal of surface

NRDC, which brings civil civil enforcement the Clean NRDC, which brings enforcement actions actions under under the Clean

Water Act,54 finds thousands thousands of of violations violations of industrial disdisWater Act, 54 also also finds of industrial

charge permits each year. These violations pollute our rivers, rivers, lakes lakes and coastal with toxic dangerous pollutants, pollutants, conand coastal waters waters with toxic and and other other dangerous conand drinking water, and taminating taminating seafood seafood and drinking water, and causing causing other other adverse adverse effects. In many cases, NRDC citizen suits successfully effects. successfully deter repeat repeat 46. GENERAL OFFICE (GAO), WATER POLLUTION: MONITOR46. GENERAL ACCOUNTING ACCOUNTING OFFICE (GAO), WATER POLLUTION: IMPROVED IMPROVED MONITORING AND ENFORCEMENT FOR TOXIC POLLUTANTS ENTERING ENTERING SEWERS (GAO/RCEDING AND ENFORCEMENT NEEDED NEEDED FOR Toxic POLLUTANTs SEWERS (GAO/RCED89-101) (1989) (1989) [hereinafter [hereinafter GAO 89-101) GAO REPORT REPORT RCED-89-101]. RCED-89-101]. 47. GAO, INLAND OIL SPILLS, AND ENFORCEMENT 47. GAO, INLAND OIL SPILLS, STRONGER STRONGER REGULATION REGULATION AND ENFORCEMENT NEEDED NEEDED TO TO AVOID (GAO/RCED-89-65) (1989). AvoID FUTURE FUTURE INCIDENTS INCIDENTS (GAO/RCED-89-65) (1989). 48. See L. SPEER & S. LIBENSEN, OIL IN THE ARCTIC (1988). 48. See L. SPEER & S. LIBENSEN, OIL IN THE ARCTIC (1988). 49. Natural Resources Resources Defense v. Arco No. A88-287-CU Alaska 49. Natural Arco Alaska, Defense Council Council v. Alaska, No. A88-287-CU (D. (D. Alaska filed June 16, filed June 16, 1988). 1988). 50. NATIONAL WILDLIFE GOVERNMENT'S FAILURE TO EN50. NATIONAL WILDLIFE FED'N, FED'N, DANGER DANGER ON ON TAP: TAP: THE THE GOVERNMENT'S FAILURE TO ENFORCE SAFE DRINKING WATER Acr & 1989 update). FORCE THE THE FEDERAL FEDERAL SAFE DRINKING WATER ACT (1988 (1988 & 1989 update). 51. U.S.C. §§ to 300j-26 (1988). 51. 42 42 U.S.C. §§ 300f 300f to 300j-26 (1988). 52. 30 U.S.C. U.S.C. §§ (1988). 52. 30 §§ 1201-1328 1201-1328 (1988). 53. See Johnson Johnson & the Law Law on (NRDC 1984); 1984); GAO, GAO, & Hildebrand, Hildebrand, Still Stripping Stripping the on Coal Coal (NRDC SURFACE MINING: STATES STATES NOT ASSESSING AND AND COLLECTING COLLECTING MONETARY SURFACE MINING: NOT ASSESSING MONETARY PENALTIES PENALTIES (1987). (1987). 54. 33 (1988). 54. 33 U.S.C. U.S.C. §§ 1251-1376 1251-1376 (1988).

violations. In some cases, however, intransigent polluters do not violations. In some cases, however,For intransigent seem to respond to civil sanctions. example: polluters do not seem* toArespond to civil sanctions. For leading national pharmaceutical example: company continued to * A national company continued dump leading dangerous organicpharmaceutical chemicals into the Quinnipiac River to in dump organic chemicals into thebyQuinnipiac Riverand in Maine dangerous despite four years of civil litigation both the state Maine despite four years of civil litigation by both the state and environmental groups. environmental groups.decree between environmental groups and a * Despite a consent * Despite consent decree between environmental and a and the payment of $24,000 ingroups civil penalwool dyeinga company, wool dyeing company, of $24,000 in civil penalcompany did and not the stoppayment polluting. A second citizen suit ties, the ties, brought the company did not stop polluting. A second citizen suit to address these ongoing violations. was was brought to address these ongoing violations. It is clear from this widespread noncompliance with the nation's It is clear from noncompliance withneeded the nation's environmental lawsthis thatwidespread stricter criminal penalties are to deenvironmental laws that stricter criminal penalties are needed to deter this irresponsible conduct. Such penalties not only will deter the ter this irresponsible conduct. they Suchalso penalties only will for deter the violator from repeat offenses; will setnot an example other violator from repeat offenses; they also will set an example for other potential violators. potential violators.

III.

An Analysis of Current Criminal Enforcement of Federal

III. An Analysis of Current Criminal Enforcement of Federal Pollution Statutes Pollution Statutes A. Introduction A. Introduction The federal agencies charged with enforcing environmental statThe federal agencies charged enforcing environmental utes have paid more attention to with criminal prosecutions over the statpast utes have paid more attention to criminal prosecutions overenvironthe past several years. EPA and DO] have announced that more several criminals years. EPA DOJ have announced that each moreyear. environ55 In mental are and being investigated and indicted 5 5 In mental criminals are being investigated and indicted each year. December 1989, DO] announced a major increase in indictments December 1989,during DOJ announced major increase and guilty pleas Fiscal Year a(FY) 1989, as wellin as indictments an increase and guilty pleas during Fiscal Year (FY) 1989, as well as an increase in total fines.5566 The impressive increase in indictments continued in in total fines. The impressive increase in indictments continued in FY 1990, though the total number of pleas and convictions fell to 85 FYFY 1990, though number pleastotal and amount convictions fell toalso 85 in 1990 from the 107total in FY 1989.ofThe of fines in FY 1990 from 107 in FY 1989. The total amount of fines also increased dramatically in FY 1990, but prison time fell to its lowest increased in FY 1990, but prison time fellshow to itsthat lowest total sincedramatically FY 1986. 57 These EPA and DO] statistics to57 total since FY 1986. These EPA and DOJ statistics show that gether they are investigating more cases, which in tum has led toto getherindictments. they are investigating more cases, in turn has led to more But these numbers maywhich not tell the whole tale. more indictments. But these numbers may not tell the whole tale. Despite increasing public concern and legislative and administraDespite increasing concern and administrative activity, very littlepublic is known aboutand thelegislative level of criminal enforcetive activity, very little is known about the level of criminal enforcement for environmental violations. We sensed that the old adage on ment for environmental violations. We sensed that the old adage on white collar crime was true-that fines are "manageable" and very white collar crime was true-that fines are "manageable" and very few executive felons go to jail-but nobody had actually looked at few executive felons go to jail-but nobody had actually looked at the cases. theThe cases. success of criminal environmental prosecution depends upon The than success criminalofenvironmental upon more theof number people being prosecution investigated.depends A complete more than the number of people being investigated. A complete picture of environmental enforcement depends upon an underpicture enforcement and depends upon an system. understandingofofenvironmental the criminal investigative prosecutorial standing of the criminal investigative and prosecutorial system. 55. ENVIRONMENTAL CRIMES SECTION, DO], STATISTICS FY83 THROUGH FY90 55. ENVIRONMENTAL CRIMES SECTION, DOJ, STATISTIcs FY83 THROUGH FY90 (1990). (1990). 56. Office of Public Affairs, DO], Department ofJustice Gets Tough on Environmental 56. Office Public December Affairs, DOJ, Department of Justice Gets Tough on Environmental Criminals (pressofrelease, 27, 1989). Criminals (pressofrelease, 57. Office Public Affairs, DO], December 27,Department 1989). ofJustice and EPA Announce Record Number 57. Office of Public Criminal Affairs, DOJ, Department ofJustice and EPA Announce Record Number of Federal Environmental Prosecutions (press release, November 15, 1990). of FederalEnvironmental Criminal Prosecutions (press release, November 15, 1990).

Adler/Lord

THE GEORGE WASHINGTONAdler/Lord LAW REVIEW THE GEORGE WASHINGTON LAW REVIEW

This Part begins with an attempt to explain these systems and a disThis Partofbegins withand an DO] attempt to explain these systems and a dishow EPA conduct an investigation. Statistics on cussion cussion of how EPA and DOJ conduct an investigation. Statistics on the increase in investigations and indictments are presented. We the increase in investigations and indictments are presented. We then compile a summary of the existing penalties in environmental then compile a summary the existing penalties environmental and highlight the of changes in these statutes in since EPA estabstatutes and highlight statutes the changes in these statutes since EPA we estabaslished its criminal enforcement division in 1983. In addition, lished its criminal enforcement division in 1983. In addition, we assess the impact of two major developments in federal criminal law sess the impact of two major developments in federal criminal law generally-the establishment of the United States Sentencing Comgenerally-the establishment of the United States Sentencing Com58 and the passage of mission Guidelines for individual prosecutions 58 and mission Guidelines for individual prosecutions the passage of the Criminal Fine Improvements Act,59 both in 1987. In addition, 59 both in 1987. the calculate Criminal the Fineaverage Improvements Act, addition, sentences delivered each year toIncorporate we we calculate the average sentences delivered each year to corporate and individual defendants under the most commonly enforced enviand individual defendants under theClean most Water commonly enforced ronmental statutes-RCRA,60 the Act,61 Toxic enviSub6 0 6 ronmental statutes-RCRA, the Clean Water Act, ' Toxicso,Sub63 and the Clean Air Act. In doing we stances Control Act,62 63 stances the Control Act,6 2given and to the180 Clean Air350 Act. In doing we sentences of the defendants whoso,were analyze analyze the sentences given to 180 of the 350 defendants who were convicted or pled guilty between FY 1983 and FY 1989. While recconvicted the or pled guilty between in FYdetermining 1983 and FYaverage 1989. While recobvious difficulties sentences, ognizing the obvious difficulties ognizing in determining average sentences, and the vagaries of plea bargaining and sentencing procedures, we and thebriefly vagaries plea bargaining and sentencing procedures, we the of severity of the penalties delivered to each defendassess assess briefly the severity of the penalties delivered to each defendant. This Part demonstrates that the increase in investigations and ant. This Part demonstrates that system the increase investigations and indictments is not enough. The itself in must undergo some indictments is not enough. The system itself must undergo some substantial changes before EPA and DO] will achieve the goal of substantialdeterrence changes before EPA and DOJ will achieve the goal of "effective of environmental environmental wrongdoing."64 64 "effective deterrence of wrongdoing." Our analysis shows some positive developments in the legislative Our analysis positive developments the legislative and shows in thesome prosecutorial system. The in amendments to framework framework and in the prosecutorial system. The amendments to criminal penalty sections of certain statutes have resulted in stiffer criminal penalty of certain statutesinvestigated have resulted in stiffer are being and more penalties. Moresections violations penalties. More violations are being investigated and criminals are being indicted. But the system is apparently at itsmore peak criminalsonly are being indicted. Butbe thehandled system in is apparently at its peak one year. Moreover, because so many cases can because onlyinsothe many cases of cancases be handled in one year. Moreover, the increase number has limited value from a deterthe increase in the number of cases has limited value from a deterrence standpoint without some increase in the actual penalties. rence standpoint increase the that actual in mind, without we assesssome the validity of in claims the penalties. system is With this With this in mind, we assess the validity of claims that the system is augworking better and recommend some positive steps that would working better and recommend some positive steps that would augment the tentative developments toward better enforcement of enviment the tentative ronmental statutes.developments toward better enforcement of environmental statutes. 58. Sentencing Guidelines for United States Courts, 52 Fed. Reg. 18,046-99 (1987). Sentencing United States Courts, 52 Fed. Reg. 18,046-99 The58. Guidelines are Guidelines reprinted inforU.S. SENTENCING COMM'N, GUIDELINES MANUAL (1987). (1990) The Guidelines are reprinted in U.S.Subsequent SENTENCING COMM'N, (1990) [hereinafter GUIDELINES MANUAL]. citations areGUIDELINES taken from MANUAL that source. [hereinafter GUIDELINES MANUAL]. Subsequent are taken from that source. 59. Criminal Fine Improvements Act of citations 1987, Pub. L. No. 100-185, sec. 6, 59. Criminal Fine Improvements Actat of 1987, Pub. L. No. 100-185, sec. 6, § 3571(d), 101 Stat. 1279, 1280 (codified 18 U.S.C. § 3571(d) (1988». § 3571(d), 101 Stat. 1280 (1988). (codified at 18 U.S.C. § 3571(d) (1988)). 60. 42 U.S.C. §§ 1279, 6901-6992 60. U.S.C. §§ §§ 6901-6992 (1988). 61. 42 33 U.S.C. 1251-1376 (1988). 61. 33 U.S.C. U.S.C. §§ §§ 2601-2671 1251-1376 (1988). (1988). 62. 15 62. 42 15 U.S.C. U.S.C. §§ §§ 7401-7642 2601-2671 (1988). (1988). 63. 63. U.S.C. §§ 7401-7642 (1988).PRIORITIES 2 (1982) [hereinafter CRIMINAL EN64. 42 EPA, CRIMINAL ENFORCEMENT 64. EPA,PRIORITIES]. CRIMINAL ENFORCEMENT PRIORITIES 2 (1982) [hereinafter CRIMINAL ENFORCEMENT FORCEMENT PRIORITIES].

Investigation and Prosecution of Environmental Violations Investigation and Prosecution of Environmental Violations 1. History and Priorities of Criminal Enforcement 1. History and Prioritiesof Criminal Enforcement Until 1982 criminal environmental investigations were assigned Until 1982 criminal environmental investigations were assigned to EPA offices around the country, although the National randomly randomly to EPA offices around the country, although the National Enforcement Investigation Center (NEIC) in Denver, Colorado, and Enforcement Investigation Center (NEIC) in Denver, Colorado, and the EPA Region III office in Philadelphia, Pennsylvania, had develthe Region III office incapability Philadelphia, had developedEPA a limited investigative in thePennsylvania, area.6655 In December of oped a limited investigative capability in the area. In December of 1981 EPA established the Office of Criminal Enforcement and hired 1981 EPA established the Office of Criminal Enforcement and hired twenty-one expert criminal investigators. Mter a 1983 reorganizatwenty-one expert criminal investigators. After a 1983 reorganization the investigative force was increased to thirty-five and assigned tion theNEIC, investigative to thirty-five and assigned and theforce legal was staffincreased was put under the auspices of the to the to the NEIC, and the legal staff was put under the auspices of the the Assistant Enforcement Counsel for Criminal Enforcement. With Assistant Enforcement Counsel for Criminal Enforcement. With the creation of this investigative infrastructure, the number of criminal creation of thisprosecutions investigative rose infrastructure, the number of criminal environmental dramatically.66 66 environmental prosecutions rose dramatically. According to the memorandum establishing EPA's criminal enAccording to the memorandum establishing EPA's criminal enas well as "limforcement priorities, the agency's limited resources, forcement priorities, the agency's limited resources, as well as "limited prosecutorial staffs of the Justice Department," required the ited prosecutorial staffs of the Justice Department," required the agency to concentrate only on the "most serious forms of environagency to concentrate only on the "most serious forms of environIn a 1986 review of the program an EPA mental misconduct."67 ' 67 mental " In athree 1986goals: review(1)ofdeter the program an enviEPA group established intentional workingmisconduct. working group established three goals: (1) deter intentional environmental violations through the creation of an expectation of prosronmental violations through the creation of an expectation of prosecution in the regulated community, (2) provide severe punishment ecution in the violators, regulated and community, provide severe for egregious (3) assure(2)the integrity of allpunishment EPA regufor egregious violators, and (3) assure the integrity of all EPAfor reguEPA articulated the appropriate mission its latory programs. 68 68 latory programs. EPA articulated the appropriate mission for its criminal investigation program as "unearthing clandestine illegal accriminal investigation program as "unearthing clandestine illegal activity not within the normal cognizance of Agency program tivity not within the normal cognizance of Agency program personneL"69 personnel." 6 9 B. B.

2. Initiation and Conduct of an Investigation 2. Initiation and Conduct of an Investigation A criminal environmental investigation is performed by a team of A criminal environmental investigation is performed by a team of EPA personnel from different sectors of the Agency. The manageEPA personnel from different sectors of the Agency. The management of all investigations falls on the NEIC, specifically, the Assisment of all investigations falls on the NEIC, specifically, the Assistant Director ofNEIC for Criminal Enforcement. Each investigation tant Director of NEIC for Criminal Enforcement. Each investigation run by the Special-Agent-in-Charge (SAIC) at one of ten regional is is run by the Special-Agent-in-Charge at one of are ten regional and legal issues handled investigative offices. Policy questions (SAIC) investigative offices. Policy questions and legal issues are handled by the Office of Criminal Enforcement in Washington, under the by the Office of Criminal Enforcement in Washington, under the Associate Enforcement CounseL EPA's Regional Offices provide Associate Enforcement Counsel. EPA's Regional Offices provide technical and legal support, and often EPA's Regional Attorney will technical and legal support, and often EPA's Regional Attorney will work with the investigator and the local United States Attorney to work with the investigator and the 70 local United States Attorney to as possible. 70 craft as strong a case craft as strong a case as possible. Leads on possible criminal violations are directed to the SAIC for Leads on possible criminal violations are directed to the SAIC for the region in which the violation occurred or is occurring. The lead the region in which the violation occurred or is occurring. The lead 65. CONSENSUS WORK GROUP, EPA, MANAGEMENT REVIEW OF EPA's CRIMINAL EN65. CONSENSUS WORK GROUP, EPA, MANAGEMENT REvIEw OF EPA's CRIMINAL ENFORCEMENT PROGRAM 5 (1986) [hereinafter WORK GROUP REPORT]. FORCEMENT 66. Id. PROGRAM 5 (1986) [hereinafter WORK GROUP REPORT].

66. Id. 67. CRIMINAL ENFORCEMENT PRIORffiES, supra note 64, at 2. 67. WORK CRIMINAL ENFORCEMENT PRIORITIES, GROUP REPORT, supra note 65,supra at 7. note 64, at 2. 68. 68. !d. WORK GROUP REPORT, supra note 65, at 7. 69. at 13. 69. Id. at 18. 13. 70. !d. at 70. Id. at 18.


THE GEORGE WASHINGTON LAW REVIEW


may by an or EPA may be be supplied supplied by an employee, employee, aa private private citizen, citizen, or EPA personnel personnel performing routine compliance inspections. Any lead the subject subject performing routine compliance inspections. Any lead is is the of a preliminary inquiry by an agent. The results of this investigaof a preliminary inquiry by an agent. The results of this investigaare evaluated by the SAlC to whether further investition tion are evaluated771by the SAIC to determine determine whether further investigation is needed. gation is needed. ' If beyond the preliminary inquiry If the the investigation investigation proceeds proceeds beyond the preliminary inquiry the SAlC contacts the Regional Attorney stage, stage, the SAIC contacts the Regional Attorney and and Regional Regional ProProgram Director to is conto determine determine if if civil civil or or administrative administrative action action is congram Director point aa special special agent, who is templated. templated. At At that that point agent, who is aa specially specially deputized United States Marshal with full powers to investigate, deputized United States Marshal with full powers to investigate, arrests, takes the case carry carry weapons, weapons, and and perform perform arrests, takes over over the case and and comcom7722 piles a referral packet. piles a referral packet. The Regional Regional Attorney the case case assembles packet The Attorney on on the assembles the the referral referral packet and drafts a legal analysis of the case. The cases are "developed and drafts a legal analysis of the case. The cases are "developed as as prior to to referral referral to to DOJ." DO]." 73 73 This This packet is thoroughly as possible possible prior thoroughly as packet is sent to the Director of NEIC and to the Associate Enforcement sent to the Director of NEIC and to the Associate Enforcement whether the been adequately Counsel, who review review whether Counsel, who the case case has has been adequately develdeveloped and whether it adheres to the criminal enforcement oped and whether it adheres to the criminal enforcement priorities priorities of EPA. The The Associate Enforcement Counsel then forwards case of EPA. Associate Enforcement Counsel then forwards the the case to the Assistant Administrator for Enforcement, who makes the final to the Assistant Administrator for Enforcement, who makes the final should be be referred to DOJ. DO].74 decision 74 decision whether whether aa case case should referred to Once referred to DO], the prosecutor assigned to case bears bears Once referred to DOJ, the prosecutor assigned to the the case The Environmental full responsibility for managing its direction. full responsibility for managing its direction. The Environmental monitors the progress of referrals Crimes Unit Unit at Crimes at DO] DOJ monitors the progress of criminal criminal referrals throughout the country, but plea bargaining and settlements enthroughout the country, but plea bargaining and settlements in in enare the sole responsibility ofDO]'s Assisvironmental criminal cases vironmental criminal cases are the sole responsibility of DOJ's Assis75 tant United States the case. case. 75 on the Attorney on States Attorney tant United Cases may may be be closed closed before before or after referral variety of of reareaCases or after referral for for aa variety The SAlC, the prosecutor, and the EPA attorney decide sons. sons. The SAIC, the prosecutor, and the EPA attorney decide colcolinitial allegation allegation was was unfounded, lectively lectively whether whether the the initial unfounded, or or whether whether civil or better option. civil or administrative administrative enforcement enforcement is is aa better option. In In addition, addition, the investigative/prosecutorial team may decide that the the investigative/prosecutorial team may decide that the case case lacks lacks is better better left to state enforcement agencies prosecutorial prosecutorial merit merit or or7 is left to state enforcement agencies (although is rare).76 rare). 6 this is (although this 1985 and 1989 increased the number of investigaBetween Between 1985 and 1989 EPA EPA increased the number of investiga77 that they they "managed" in some way during each fiscal tions that year. 77 "managed" in some way during each fiscal year.

tions

71. Id. at 17. 71. /d. Id. at at 32; 17. EPA, FUNCrIONS AND GENERAL OPERATING PROCEDURES FOR THE CRIMI72.

Id. at 32; EPA, FUNCTIONS AND GENERAL OPERATING PROCEDURES FOR THE CRIMINAL72. ENFORCEMENT PROGRAM 9 (1985) [hereinafter GENERAL OPERATING PROCEDURES]. NAL ENFORCEMENT PROGRAM 9 (1985) [hereinafter GENERAL OPERATING PROCEDURES]. 73. GENERAL OPERATING PROCEDURES, supra note 72, at 8. 73. Id. GENERAL OPERATING PROCEDURES, supra note 72, at 8. 74. at 9 74. Id. Il at at 910. 75. 75. Id. at 11-12. 10. 76. /d. at 76. Appendix Id. at 11-12. 77. A shows the trend in investigations versus referrals between 1985 and 77. Appendix A shows the trend in investigations versus referrals between 1985 and 1988. COMPLIANCE EVALUATION BRANCH, OFFICE OF ENFORCEMENT, EPA, STARS RE1988. COMPLIANCE EVALUATION BRANCH, OFFICE OF ENFORCEMENT, EPA, STARS REPORTS (1985-1989) [hereinafter STARS REPORTS]. For further information call Bill Watt PORTS (1985-1989) [hereinafter STARS REPORTS]. For further information call Bill Watt

The number of cases managed annually jumped from a plateau of The cases managed from atoplateau of aboutnumber sixty toofsixty-five to a newannually plateaujumped of eighty-five ninety.78 new plateau of eighty-five to ninety.7 8 a to sixty-five to sixty about The percentage of investigations that are closed prior to referral deThe percentage closed to referral decreased slightly of asinvestigations well, from a that higharenear fiftyprior percent to about creased slightly as well, from a high near fifty percent to about thirty-two percent in 1989. Thus, with more total investigations and thirty-two percent in 1989.prior Thus, moremore totalcases investigations less investigations closed to with referral, are beingand reless investigations closed prior to referral, more cases are being referred to DOj. ferred to DOJ. Referrals Prosecuted by the Department ofJustice Referrals Prosecuted by the Department ofJustice Once a case is referred to DOj, it goes through several phases Onceprosecution. a case is referred to the DOJ, it goes throughtoseveral phases before Usually, case is presented a Grandjury before prosecution. Usually, the case is presented to a Grand Jury for investigation. Following this investigation, charges may be filed. for investigation. Following this investigation, charges may be filed. Finally, the case may be closed prior to prosecution, or a plea barFinally, may be closed prior to prosecution, or a plea bargain maythe becase arranged. gain may be arranged. EPA and DOj statistics show three stages in the prosecution hisEPA and DOJto statistics in the of prosecution history of referrals D0J.7799 show Until three 1985,stages the number referrals prostory of referrals to DOJ. Until 1985, the number of referrals prosecuted had leveled off at about ten to fifteen per year. Mter 1985 off at about ten to fifteen per year. After 1985 ecuted had leveled the number of prosecutions, indictments, and convictions jumped to the number of prosecutions, indictments, and convictions jumped to a new plateau of between twenty-five to forty per year. In 1989 the anumber new plateau of between twenty-five fortyfiled perremained year. In 1989 of referrals in which charges to were morethe or number of referrals in which charges were filed remained more or less constant. The number of referrals successfully prosecuted and less The number ofand referrals prosecuted and the constant. number of indictments pleassuccessfully or convictions, however, the number of indictments and pleas or convictions, however, jumped to record highs.8800 to record highs. jumped EPA's statistics show that the number of referrals in which EPA's are statistics thatoffthe of referrals in for which charges filed hasshow leveled but number is well above the figures the charges are filed has leveled off but is well above the figures for the early 1980s. The number of referrals successfully prosecuted (guilty early 1980s. The number of referrals successfully prosecuted (guilty pleas or convictions), however, jumped to forty-two in 1989 from or convictions), jumpedalso to forty-two 1989closed from pleas twenty-eight in 1988.81however, These statistics show moreincases twenty-eight in 1988.81 These statistics also show more cases closed without prosecution.8822 DOj statistics indicate that the number of without prosecution. DOJ indicted statisticseach indicate numberatofa individuals and corporations year that has the plateaued individuals and corporations indicted each year has plateaued at a 3. 3.

in the EPA Compliance Evaluation Branch in Washington, D.C. The universe for these in the EPA Compliance in Washington, D.C. universe forinvesthese statistics is called "cases Evaluation managed." Branch This universe represents the The number of open called managed." This theThe number of open invesstatistics were"cases addressed in some wayuniverse during represents a fiscal year. universe is created tigations isthat tigations addressed in some way cases during fiscal year. The is plus created by findingthat the were difference between the open at athe beginning ofa universe fiscal year the by finding the difference between openyear, casesminus at thethe beginning fiscal year plusopen the new investigations opened duringthe a fiscal number of ofainvestigations new a fiscal year,we minus the number of investigations at theinvestigations beginning ofopened the nextduring fiscal year. Thus, analyzed only those cases that EPAopen was at the beginning of the next fiscal the year. Thus, analyzed only those cases that EPA was able to address during year, andwenot all open investigations, in order to actually actually ablea to"dynamic" address during thethat year, and not open investigations, in order to avoid using universe changed as all investigations were opened. Cases avoid using a either "dynamic" universe changed or as by investigations were opened. Cases are managed by closure priorthat to referral, referral to the Office of Criminal are managed either by and closure Enforcement Counsel thenprior DO].to referral, or by referral to the Office of Criminal Enforcement Counsel and DOJ.may jump higher, given the increased criminal en78. /d. Presumably, thisthen plateau 78. Id. resources Presumably, this plateau jump higher, givenAct the of increased criminal enforcement provided by themay Pollution Prosecution 1990. See infra Part

forcement resources provided by the Pollution Prosecution Act of 1990. See infra Part IV.

IV. 79. STARS REPORTS, supra note 77; ENVIRONMENTAL CRIMES SECTION, DO], STATISSTARS REPORTS, noteOFFICE 77; ENVIRONMENTAL CRIMES SECTION, DOJ, STATISTICS79.FY83 THROUGH FY90supra (1990); OF CRIMINAL ENFORCEMENT, EPA, ENFORCETics THROUGH FY90 REPORT: (1990); OFFICE OF CRIMINAL ENFORCEMENT, EPA, ENFORCEMENTFY83 ACCOMPLISHMENTS FY 1989 (1990) [hereinafter ACCOMPLISHMENTS MENT ACCOMPLISHMENTS 1989 (1990)EPA, [hereinafter ACCOMPLISHMENTS REPORT 1989]; OFFICE OF REPORT: CRIMINAL FY ENFORCEMENT, ENFORCEMENT ACCOMPLISHREPORTUPDATE 1989]; (1st OFFICE OF CRIMINAL ENFORCEMENT, EPA, ENFORCEMENT ACCOMPLISHMENTS Quarter 1990) [hereinafter ENFORCEMENT ACCOMPLISHMENTS 1990]. MENTS UPDATE (Ist the Quarter 1990) [hereinafter ENFORCEMENT 1990]. Appendix B shows trends in referrals versus prosecutionsACCOMPLISHMENTS from 1983 to 1989. Appendix shows the79. trends in referrals versus prosecutions from 1983 to 1989. 80. SeeBsupra note 80. ACCOMPLISHMENTS See supra note 79. REPORT 1989, supra note 79; ENFORCEMENT ACCOMPLISH8!. 81. 1990, ACCOMPLISHMENTS MENTS supra note 79. REPORT 1989, supra note 79; ENFORCEMENT ACCOMPLISHMENTS supra note 79. STARS REPORTS, supra note 77. 82. 1990, 82. STARS

REPORTS, supra note

77.




level significantly higher than during the early 1980s.8 3 In addition, 83 in level higher thanoccurred during the 1980s. In any addition, moresignificantly pleas and convictions in early FY 1989 than prior 8 4pleas and convictions occurred in FY 1989 than in any prior more year. 84 year. DOJ and EPA statistics clearly indicate that more environmental DOj andare EPA statistics clearly indicate thatjustice more system. environmental offenders being brought to the criminal These are being brought the criminal justice system. These offenders raw numbers, however, do nottoanswer questions about possible bias raw numbers, however, do not answer questionsthe about toward large or small corporations or whether casespossible that arebias beor small corporations or their whether the casesvalue. that are betoward large are ing brought chosen to maximize deterrence Moreing are chosen to maximize their deterrenceisvalue. Moreover,brought the picture of environmental prosecution incomplete of environmental incomplete over, withoutthe an picture understanding of the kinds prosecution of sentences is environmental understanding of the kinds of sentences environmental without criminalsanare receiving. criminals are receiving. 4. The Targets of CriminalProsecution 4. The Targets of Criminal Prosecution The efficacy of criminal enforcement relies in part on the targets efficacy ofTwo criminal enforcement reliesinvolve in partwhich on thetypes targets ofThe prosecution. central controversies of of prosecution. central controversies involve typesand of corporations lawTwo enforcement officials choose to which prosecute corporations of law corporate enforcement officials for choose prosecuteofanda prosecution executives the toviolations prosecution corporation. of corporate executives for the violations of a corporation. An increase in the number of indictments against corporations in the number of indictments against rarely corporations Anhave increase will little impact if such indictments nonetheless occur. if such indictments nonetheless rarely will have littleifimpact In addition, the law enforcement community can bring occur. cases In addition, if the enforcement community canof bring against only the mostlaw egregious violators, the choice which cases comthe most is egregious violators,totheachieving choice ofthe which comagainst onlyprosecute panies to very important goal of important to achieving the goal of panies to prosecute is very deterrence. deterrence. One commentator noted that despite the increased number of One commentator noted that despite the increased number of criminal indictments of corporations, "criminal prosecutions of cor'85 According criminal indictments corporations, of to cor-a porations remain theofexception, not "criminal the rule."prosecutions the exception, not the rule."85 a porations remain United States Sentencing Commission estimate, "lessAccording than one to perthan perUnited Sentencing Commission cent of States all defendants facing sentencingestimate, in federal"less courts areone corpo' 86 defendants cent of all facing sentencing in federal courtscontinue are corporations." State and regional studies show that courts to and regional show courts continue rations."86 sanctions onthat corporate entities.8 7to be reluctant State to impose criminalstudies 87 beEqually reluctant to impose to criminal sanctionseffect on corporate entities. devastating the deterrent of criminal prosecuEqually to the deterrent effect of criminal tions is the devastating justice system's apparent unwillingness to bring prosecucriminal apparent unwillingness to bring criminal tions is the justice indictments againstsystem's powerful, high profile corporations. Until 1984 indictments against powerful, high profile corporations. Until 1984 83. ENVIRONMENTAL CRIMES SECTION, DOJ, STATISTICS FY83 THROUGH FY90 (1990) [hereinafter DOJ STATISTICS]. 83. ENVIRONMENTAL CRIMES SECTION, DOJ, STATISTICS FY83 THROUGH FY90 (1990) 84. Id. DOJ STATISTICS]. [hereinafter 85. Book Review, 65 N.Y.U. L. REV. 871, 879 (1990) (reviewing F. CULLEN, 84. Bennett, Id. W. 85. MAAKESTAD G. CAVENDER, CRIME ArrACK: THE FORD PINTO Bennett,&Book Review, 65CORPORATE N.Y.U. L. REV. 871,UNDER 879 (1990) (reviewing F. CULLEN, CASE AND BEYOND (1987)). W. MAAKESTAD & G. CAVENDER, CORPORATE CRIME UNDER ATTACK: THE FORD PINTO 86.AND Id. BEYOND at 879 n.82 (citing Called More Equitable than FiningCompanies; Plan Would PunCASE (1987». ish Directors Crime, Times, Dec. 6, Equitable 1988, pt.than IV, Fining at 8). Companies; Plan Would Pun86. Id. for at 879 n.82L.A. (citing Called More See Comment, An Enemy of Dec. the People: Prosecuting the8). Corporate Polluteras a Common ish 87. Directorsfor Crime, L.A. Times, 6, 1988, pI. IV, at Law87. Criminal, 39 AM. U.L. REV. 311, n.46Prosecuting (1990) (citing a study Polluter of hazardous waste See Comment, An Enemy of the319 People: the Corporate as a Common prosecutions Maryland, New Jersey, and Pennsylvania). Law Criminal, in 39Maine, AM. U.L. REV. 311, 319 nA6 (1990) (citing a study of hazardous waste prosecutions in Maine, Maryland, New Jersey, and Pennsylvania).

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no large corporation was criminally prosecuted under federal environmental legislation.8 8 Of the corporations prosecuted under federal environmental laws since 1984, only six percent were among the nation's 500 largest industrial corporations in 1989.89 In fact, only 1.6% of the Fortune 500 have ever been prosecuted for an environmental violation.9 0 Yet, these 500 companies were responsible for $2.16 trillion of $3.954 trillion of non-farm business in the country in 1989.91 Thus, although these industrial corporations are responsible for fifty-four percent of the non-farm gross national product, they are held responsible for less than two percent of the nation's environmental violations. It is conceivable that ninety-nine percent of the nation's largest industrial entities have complied fully with all environmental legislation. Such a suggestion seems unreasonable, however, in light of one commentator's assertion that up to two-thirds of America's largest corporations have been involved in 92 some form of illegal behavior. The law enforcement community is indicting more corporate entities under federal environmental statutes. The targets of enforcement efforts, however, are rarely the big and powerful corporations, which would make the most visible examples for the rest of the regulated community, and which presumably are creating most environmental hazards as measured by sheer volume. Another important aspect of effective deterrence is the willingness to prosecute executives for the environmental violations of their companies. The advocates of aggressive criminal prosecution of corporations suggest that corporate executives should face the "sorts of penalties that make pin-striped decision-makers go pale"93 jail terms and individual fines. Indeed, in the context of environmental violations, our statistics show that indictments of individuals in cases brought against corporations are fairly high and have remained steady.9 4 Statistics on the 88. See Comment, Putting Polluters injai" The Imposition of CriminalSanctions on Corporate Defendants Under Environmental Statutes, 20 LAND & WATER L. REV. 93, 103-04 (1985).

89. OFFICE OF CRIMINAL INVESTIGATIONS, OFFICE OF ENFORCEMENT AND COMPLIANCE MONITORING, EPA, SUMMARY OF CRIMINAL PROSECUTIONS RESULTING FROM ENVIRONMENTAL INVESTIGATIONS i-xiv (1989); The Fortune500 Largest U.S. Industrial Corporations,FORTUNE, Apr. 23, 1990, at 346-64. 90. See supra note 89.

91. Hanging Tough in a Rough Year, FORTUNE, Apr. 23, 1990, at 338; NATIONAL INCOME AND WEALTH DIVISION, BUREAU OF ECONOMIC ANALYSIS, U.S. DEP'T OF COMMERCE, NATIONAL INCOME AND PRODUCTS ACCOUNTS, GROSS NATIONAL PRODUCT BY SECTOR 4, Table 1.7. 92. Sentencing Guidelines for OrganizationalDefendants: Hearings Before the United States Sentencing Commission 156-61 (Feb. 14, 1990) [hereinafter Sentencing Commission Hearings] (testimony of Prof. Etzioni) (unpublished transcript on file at the Sentencing Commis-

sion); Muro, What Punishment Fits a Corporate Crime?, Boston Globe, May 7, 1989, at Al, A6. 93. Muro, supra note 92, at Al, A6. 94. EPA's Office of Criminal Investigations summarized the conviction of 350 defendants between 1983 and 1989. OFFICE OF CRIMINAL INVESTIGATIONS, OFFICE OF ENFORCEMENT, SUMMARY OF CRIMINAL PROSECUTIONS RESULTING FROM ENVIRONMENTAL

INVESTIGATIONS 93 (1989) [hereinafter CRIMINAL SUMMARY]. To compare individual versus corporate prosecutions, we analyzed all cases in this EPA summary that involved corporate defendants, under any statute. We then calculated the percentage of cases in

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Adler/Lord Adler/Lord THE THE GEORGE GEORGE WASHINGTON WASHINGTON LAW LAW REVIEW REVIEW

percentage of of cases cases in which which individuals individuals are are charged charged when when a corpocorpopercentage ration is is charged charged are are presented presented in Appendix Appendix C. C. The The percentage percentage of of ration cases in in which which individuals individuals are are charged charged when when a corporation corporation isis cases 1985 there there was was a charged has has remained remained fairly steady, although although in 1985 charged drop in in the percentage percentage of individual individual indictments. indictments. EssenEssenserious drop serious indicted in seventy-five seventy-five to eighty eighty percent percent of the tially, individuals individuals are indicted tially, cases brought brought against against corporations. corporations. As indictments indictments of individuals individuals cases defend1986, and In 1985 bargaining. so has has plea plea bargaining. 1985 and 1986, have increased, increased, have with the counts of percent twenty ten to to only pled guilty guilty to only twenty percent counts with ants pled last 1987 the trend reversed, and in the the last which they were charged. charged. In 1987 of the percent forty over percent the statistical year, defendants to over pled guilty defendants statistical counts charged. counts are being being indicted indicted in environmental environmental cases, cases, although Individuals are Individuals that the percentages percentages have have dropped dropped slightly since since the we should note that problem greater A into effect. sentencing guidelines went new sentencing greater problem is is judges and juries juries are reluctant reluctant to penalize individuals individuals in any that judges mqre creative creative mechanisms are meaningful way, suggesting suggesting that more meaningful 95 necessary. necessary.95

Sentencing for Environmental Criminals Environmental Criminals Formulasfor Sentencing Formulas

C.

An environmental environmental criminal criminal may be sentenced sentenced under one of three November of 1987, the systems. For violations that occurred before November of criminal penalty sections of penalties will usually be based on the criminal penalties Since the statutes themselves, which are charted in Appendix D. Since 1987, individual environmental under environmental criminals may be sentenced under the United States Sentencing Sentencing Commission's new Sentencing Guide9 6 In addition, the Criminal Fine Improvements Act 198797 97 of 1987 Act of lines. 96 changed defendants and changed the calculation of fines for both corporate defendants individuals. 1.

Statutory Penalties Statutory Penalties

Excepting wildlife protection statutes, most criminal environmental enforcement cases are brought under two or three statutes. In enforcement 1989 for example, seventy-one percent of the criminal enforcement involving aa plea which individuals indicted. All cases involving corporation were indicted. individuals as well as the corporation counts that remained bargain the percentage percentage of indictment counts examined to determine the bargain were examined after the the bargaining bargaining process. have noted that studies have Several other studies E. Several Appendix E. and Appendix Part III.D.2 and infra Part 95. See infra "courts generally are are unwilling unwilling to to incarcerate incarcerate responsible responsible individuals," individuals," and and that that individindivid"courts generally 87, at at supra note 87, Comment, supra sentences. Comment, prison sentences. fines and and suspended prison uals small fines uals receive small ExA MULTISTATE ExCRIME: A WASTE CRIME: HAZARDOUS WASTE UNDERSTANDING HAZARDOUS 319 319 (citing (citing D. REBOVICH, UNDERSTANDING see (1986)); see IN THE NORTHEAST NoRTHEAsT (1986»; AND OFFENDER CHARACTERISTICS IN OF OFFENSE OFFENSE AND AMINATION AMINATION OF 22 Liability, 22 CriminalLiability, Officer Criminal CorporateOfficer Legislation: Corporate Waste Legislation: HazardousWaste ofEffictive Effective Hazardous In Search Searchof Note, In VAL. (1988). 385, 397-99 (1988). U.L. REV. REV. 385, VAL. U.L. (1987). Reg. 18,046-99 18,046-99 (1987). Fed. Reg. Courts, 52 Fed. United States Courts, Guidelines for United Sentencing Guidelines 96. Sentencing of 18 18 U.S.C.). U.S.C.). sections of scattered sections in scattered 1279 (codified (codified in 101 Stat. Stat. 1279 100-185, 101 Pub. L. L. No. No. 100-185, 97. Pub. 97.

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cases involved a violation of the Resource Conservation and Recov8 cases involved a violation of theWater Resource and amendRecovery Act (RCRA) or the Clean Act. 9Conservation Under recent 98 the statutes, Clean Water Act. Under recent amendery Actto(RCRA) ments each of or these the criminal penalties under these 99 Both the ments each increased. of these statutes, penalties thesea statutestowere of criminal these statutes nowunder include Both of which these calls statutes now include statutes increased. 99 provision, "knowingwere endangerment" for stiffer penaltiesa 10 0 penalties endangerment" provision, whichlife calls stiffer "knowing if the pollution seriously threatens human or for health. In addiloo if the the pollution seriously threatens human life or addition, 1984 amendment to RCRA increased thehealth. maximumInfine to the for 1984 RCRA increased the maximum to tion, $50,000 anyamendment violation oftothe Act (from $25,000 for recordfine keep$50,000 for anyand violation of the Actprison (fromterm $25,000 for years recordorkeeping violations) the maximum to two five 01 ing violations) and the maximum prison term to two or five years (from one or two years) depending on the type ofyears violation.1 years (from one or two years) depending on the type ofviolation. lol 2. Sentencing Guidelines 2. Sentencing Guidelines For violations occurring after 1987, an individual defendant will violations occurring 1987, an individual defendant will beFor sentenced according to after the United States Sentencing Commisbe sentenced according to the United States Sentencing Commission's Sentencing Guidelines, which went into effect on November into effect sion's Sentencing Guidelines,include which awent 1, 1987.102 The Guidelines separate sectionononNovember environ102 The Guidelines include a separate section on environ1, 1987. mental violations, which increases the visibility of this type of crime this type of crime mental violations, which increases and makes some significant changesthe in visibility sentencesoffor individual enviand makes some significant changes in sentences for individual environmental criminals. ronmental criminals. The Guidelines divide environmental violations into four The Guidelines divide environmental violations into four categories: categories: (1) Knowing endangerment of human life, (1) Knowing endangerment of human life,substances, (2) Offenses involving hazardous or toxic (2) Offenses involving hazardous or toxic substances, (3) Offenses involving other pollutants, and 3 0 (3) Offenses involving other pollutants, and and Wildlife.1 Conservation (4) (4)

Conservation and Wildlife. l03

Under the Guidelines, each category has a base penalty level for Under themishandling Guidelines, pollutants each category a base wildlife penalty level for knowingly or has violating statutes. or violating wildlife statutes. knowingly mishandling pollutants That penalty level increases if pollutants are released into the enviThat penalty released into the environment and level if the increases violation if is pollutants ongoing orare continuous. Related facronment if the violation is ongoing or continuous. Related factors suchand as criminal history also may increase the penalty level. the penalty level. tors penalty such as level criminal historyifalso may increase The is reduced the violation was due to negligence, 10 4 to negligence, The levelonly is reduced if the violation was due or reporting. record-keeping it involved or if penalty 104 orTwo if it involved onlypractices record-keeping or reporting. sentencing that severely reduced the amount of Two time sentencing practices that severely reduced the amount of prison served by guilty defendants-suspension ofjail time and prison time served by guilty defendants-suspension ofjail time and probation in lieu of prison sentences-were curtailed by the new probation in lieu of prison sentences-were curtailed by the new 98. 4

EPA, OFFICE OF CRIMINAL ENFORCEMENT CRIMINAL ENFORCEMENT, EPA, OFFICE OF CRIMINAL ENFORCEMENT BULLETIN 4 (1990). 99. RCRA was amended in 1984. Hazardous and Solid Waste Amendments of 1984, L. No. 98 Stat. 3221, 3256-57. The Clean Water ActAmendments was amended in amended in 1984. Hazardous and Solid Waste of 99.Pub. RCRA was98-616, 1987. Water Act of Pub. 3256-57. L. No. 100-4, 1984, Pub. L. Quality No. 98-616, 98 1987, Stat. 3221, The Clean Water Act was amended in 101 Stat. 7, 42-45. Quality Act of 1987, Pub.42 L. U.S.C. No. 100-4, 101 Stat. 7, 42-45. 1987. 100. Water 33 U.S.C. § 1319(c)(3) (1988); § 6928(e) (1988). 100. 33 U.S.C. §and 1319(c)(3) (1988); 42 U.S.C. of § 6928(e) (1988). 101. Hazardous Solid Waste Amendments 1984, Pub. L. No. 98-616, sec. 232, § 3008(d), 98 Stat. and at 3257. 101. Hazardous Solid Waste Amendments of 1984, Pub. L. No. 98-616, sec. 232, § 3008(d), 98 Stat. at 3257. 102. Sentencing Guidelines for the United States Courts, 52 Fed. Reg. 18,046-99 (1987). The Sentencing Commission's Guidelines 102. Sentencing Guidelines for the proposed United States Courts,for52corporations Fed. Reg. 18,046-99 and other organizations are discussed infra in Partproposed IV. Commission's Guidelines for corporations and other (1987). The Sentencing organizations are discussed innote Part 58, IV. §§ 2Ql.1-2Q2.1. 103. GUIDELINES MANUAL,infra supra 103. Id. GUIDELINES MANUAL, supra note 58, §§ 2Q1.1-2Q2.1. 104. §§ 2Q1.I-2Q1.3. 104. [d. §§ 2Ql.l-2Q1.3. OFFICE OF CRIMINAL ENFORCEMENT,

BULLETIN 4 (1990). 98. 4 OFFICE OF

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Guidelines. 0 5 Now a judge can give a probation term alone, withGuidelines. judge can give a probation alone, without any timel05inNow jail, aonly to defendants convicted term of violations that 1o6 levels 1-6).that out time in jail, onlyterm to defendants convicted of violations (penalty of zero months prison a minimum carryany prison term of zero monthsof (penalty levels or 1_6).106 carry a minimum Ajudge can give probation with a condition intermittent comAjudge can give probation intermittent or community incarceration (such with as ata condition a "half-wayof house"), to persons 10 7 But even at a "half-way house"), persons munity incarceration as crimes. convicted of level 7 to(such level 10 thesetosentences l07 But even these sentences convicted 7 toincarceration. level 10 crimes. involve at oflevel least some The new guidelines do not al0 8 s at least sentences. some incarceration. Thenow newcannot guidelines do not alinvolve low suspended "IJ]udges impose a sensentences. "Uludges now of cannot impose10 a9 senlow only to suspend it inlOSfavor tencesuspended of a period probation."' tence only to suspend it in favor of a period of probation." 109 3. The CriminalFine Improvements Act of 1987 3. The Criminal Fine Improvements Act of 1987 The Criminal Fine Improvements Act"10 also came into force in llO also came into force in Theand Criminal Fine Actboth 1987 changed theImprovements fine structure for individuals and corpo1987 andUnder changed fine structure for both rations. thethe Act, a defendant may be individuals fined up toand thecorpomaxiUnder the Act,by:a defendant may be fined up to the maxirations. mum level established mum* level by: the offense, or The established law setting forth specified in the Criminal ** The The amount law setting forth the offense, or Fine Improvements Act * The amount specified for the type of offense,inorthe Criminal Fine Improvements Act * The amount for the type ofallowed offense,under or a new gain/loss formula estab1 11 * The amount allowed under a new gainlloss established by the Criminal Fine Improvements Act.formula ll1 lished by the Criminal Fine Improvements Act. The maximum allowable fine is determined by the grade or The maximum allowable fine of is the determined bybethe grade or "class" of the offense. The class offense may listed in the "class" defining of the offense. The class of the offense may be listed in the statute the offense. If the letter grade is not listed statute defining offense. Ifbythe grade prison is not term listedauthorin the statute, the class the is determined theletter maximum 112 statute, class is determined by the maximum prison term authorstatute. defining the by ized 112 statute.and ized by the Until 1987defining corporations individuals were liable for the same Untilof1987 and individuals were liable theestabsame levels fines.corporations The Criminal Fine Improvements Act offor 1987 The Criminal Fine Improvements Act of 1987 establevels offines. lished separate fine levels for corporations, doubling the amount a 3 the amount a lished separate finepay levels for corporations, doubling corporation might compared to an individual."1 The Act also 113 The Act also compared to an individual. corporation might pay includes a formula for calculating fines on the basis of the harm the person basis of the harm includes formula for calculating fines on caused ora gain achieved by the violation. If any derived pecaused or gain achieved by the violation. If any person derived cuniary gain from the offense, or the offense resulted in a losspeto cuniary gain from the offense, or the offense resulted in a loss to 105. Starr& Kelley, EnvironmentalCrimes and the Sentencing Guidelines, NAT'L ENvTL. ENFORCEMENTJ. 3-4 (June 1990) (presenting a more detailed Guidelines, analysis of the effect of ENthe 105. Starr &3, Kelley, Environmental Grimes and the Sentencing NAT'L ENVrL.

Sentencing J. Guidelines on 1990) sentences for environmental criminals). FORCEMENT 3, 3-4 (June (presenting a more detailed analysis of the effect of the 106. GUIDELINES MANUAL, supra note §§ 5A, 5B1.1(a). on sentences for 58, environmental criminals). Sentencing Guidelines 107. GUIDELINES Id. MANUAL, supra note 58, §§ 5A, 5Bl.l(a). 106. 108. [d. Conversation with Paul Martin, Communication Director at the United States 107. Sentencing Commission, 16,Martin, 1990. Communication Chapters Five and Six of the Guidelines, "De108. Conversation withJuly Paul Director at the United States termining the Sentence" July and 16, "Sentencing Procedures" not suspended of authorize the Guidelines, "DeSentencing Commission, 1990. Chapters Five anddoSix sentences. termining the Sentence" and "Sentencing Procedures" do not authorize suspended 109. Starr & Kelley, supra note 105, at 3-4. sentences. 110. Starr Pub. L. 100-185, 101 Stat. (1987) (codified at scattered sections of 18 & No. Kelley, supra note 105, 1279 at 3-4. 109. U.S.C.) 110. Pub. L. No. 100-185, 101 Stat. 1279 (1987) (codified at scattered sections of 18 111. 18 U.S.C. § 3571 (1988). U.S.C.) 112. See Appendix D. (1988). Ill. 18 U.S.C. § 3571 113. See 18 U.S.C. § 3571(b), (c). 112. Appendix D. 113. 18 U.S.C. § 3571(b), (c).

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someone other than the defendant, the court may fine the guilty more than two times the gross gain or two times the gross party party1 not 4 lOSS.' IOSS.114

Several corporate environmental environmental defendants have been sentenced sentenced under the Act. Most notably, Ashland Oil was sentenced sentenced to pay a fine of $2,250,000 $2,250,000 under the Act for using shoddy materials in the construction spilled construction of a storage storage tank that ultimately collapsed and spilled 15 Monongahela River.' River. ll5 Orkin Exter500,000 gallons of oil into the Monongahela $350,000 fine for misuse of a pesticide that reminating Co. paid a $350,000 16 sulted The Ashland Oil and sulted in the death of a Virginia Virginia couple.' couple. 116 Ballard Shipping cases are the only environmental in Ballard Shipping environmental prosecutions in which gainlloss formula has been used. which the Act's gain/loss Such large sentences, sentences, however, may be the exception exception to the rule. In order to assess the import of the increase increase in referral~ referrals and prosecutions, the following section analyzes the average sentence sentence delivered to an individual individual or corporate corporate defendant defendant under the most most commonly commonly enforced enforced statutes. D. D.

Criminal Sentence Statistics: Average Sentences Under Representative Criminal Sentence Statistics: Average Sentences Under Representative Environmental Environmental Statutes Statutes 1.

Method

delivered in cases in which the This section analyzes the sentences sentences delivered defendant was convicted convicted under only one statute. This approach approach is is necessary sentence imposed can be compared compared fairly to necessary so that the sentence the statutory sentence. sentence. We limit our analysis to cases involving violations of the RCRA,11 Act,"18 the Toxic SubRCRA,ll77 the Clean Water Water Act,ll8 l 9 stances Act. 120 (TSCA),ll9 and the Clean Air ACt. I stances Control Act (TSCA), The EPA's Office of Criminal Investigations Investigations summarized summarized the con121 Under the victions of 350 defendants between 1989.121 between 1983 and 1989. criteria criteria noted above, we analyze sentences sentences given to 185 defendants 1983-fifty-three percent since 1983-fifty-three percent of the (corporate and individual) since cases summarized by EPA. We then calculate calculate average average sentences for cases summarized violations of these statutes 1983-84, 1985-87, 1985-87, 1988, 1988, statutes for the periods periods 1983-84, 122 These periods correlate to the stages 1989.122 development and 1989. stages of development 123 in the number of referrals referrals and prosecutions. prosecutions.1 23 Id. § 3571(d). 114. [d. 115. United States v. Ashland Oil, No. 88-146 (W.D. Pa. Mar. 9, 1989); see CRIMINAL 115. CRIMINAL SUMMARY, supra SUMMARY, supra note 94, at 93. Exterminating Co., No. 88-00040 88-00040 (W.D. Va. Nov. 17, 116. United States v. Orkin Exterminating 1988) CRIMINAL SUMMARY, supra note 94, at 79). SUMMARY, supra 1988) (discussed in CRIMINAL (1988). 117. 42 U.S.C. §§ 6901-6992 (1988). 1251-1376 (1988). 118. 33 U.S.C. §§ 1251-1376 (1988). 119. 15 U.S.C. §§ §§ 2601-2671 (1988). (1988). 119. U.S.C. §§ §§ 7401-7642 (1988). (1988). TSCA and the Clean Air Act carry the same 120. 42 U.S.C. criminal penalty, so we calculated calculated one one set of statisitics for violations violations of either statute. 121. CRIMINAL CRIMINAL SUMMARY, SUMMARY, supra supra note 94. 121. 122. See Appendix E. 123. See Appendices Appendices A and B.

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These statistics are the best that can be derived from the informaThese statistics the cases best that can be derived the information at hand. The are RCRA are grouped so thatfrom the 1984 amend1 24that hand.not The RCRA are sentences. grouped so amendtion atdoes ment affect the cases average Allthe of1984 the 1983-84 ment does not affect to thethe average sentences. 124 All of the statistics correspond pre-amendment penalties. All 1983-84 1985-89 correspond to the pre-amendment penalties.provisions All 1985-89 statistics RCRA statistics correspond to the post-amendment of correspond to theforpost-amendment provisions of RCRA the Actstatistics setting criminal penalties the knowing transport, treatthe Actstorage, setting or criminal penalties for thewaste knowing transport, treatdisposal ment, of hazardous in violation of facility 2 5 or disposal of hazardous waste in violation of facility ment, storage, permit requirements. Clean Water Act statistics from 1983-87 125 Clean Water Act statistics from 1983-87 permit requirements. correspond to the Act's pre-1987 standard for willful or negligent correspond the Act'sstatistics pre-1987correspond standard for or for negligent violations. 126to 1987-89 to willful penalties negli126 1987-89 statistics correspond to penalties for negliviolations. gent violations, as established by the 1987 amendments to the 7 gent 2violations, as established by the 1987 amendments to the Act.' 127 Act. The main objection to calculating average sentences is that in domain objection to calculating sentences is that inindidoingThe so we ignore the variety inherentaverage in the system. Although ing so we ignore thesentence variety inherent in the system. Although individual judges may differently and the plea bargaining sentence differently andthese the statistics plea bargaining vidual system judges may leadmay to widely varying sentences, are calsystem leadaverage to widely varying sentences, thesehas statistics culated may by the penalty per count. DOJ noted are thatcalin per one count. has notedalthough that in culated by the most cases eachaverage count penalty represents day DOj of violation, most cases eachcases count represents violation, although there are a few in which each one countday hasofrepresented very difthere are a few of cases in which each28count has represented very of dif-a ferent periods noncompliance. In general, the concept 128 In general, the concept of a of throughout noncompliance. ferent count isperiods the same the federal system at least in that the count is the same throughout system least in that the difference between the numberthe of federal counts in a caseatcorrelates essendifference of counts in a casethe correlates essentially to thebetween severitythe ofnumber a violation. In addition, consistency of severity ofof a calculating violation. In the consistency of tiallyresults, to the the our validity an addition, average sentence per count, our results, the validityofof calculating average sentence per count, the impossibility and finding a fairan average any other way, makes and the impossibility of finding a fair average any other way, makes these statistics a reasonable approach. these statistics a reasonable approach. 2. Average Individual Penalties 2. Average Individual Penalties Calculations of average penalties for environmental crimes are Calculations of average penaltiesdifferent for environmental crimes are presented in Appendix E. Despite mechanics and the difpresented in Appendix E. Despite different mechanics and the different histories of each statute we examined, the statistics for indistatutestory. we examined, the statistics for indiferent vidual histories penalties of telleach a similar vidual penalties tell a similar story. Individuals fined under RCRA are paying higher fines in 1989 under are have paying higher in 1989 Individuals than they did fined in 1983, butRCRA the fines leveled offfines at only onethan they did in 1983, but the fines have leveled off at only one124. The 1984 amendment to RCRA expanded the list of knowing violations of the Act124. thatThe may 1984 constitute criminaltooffenses and raised the the list maximum criminal penalties for amendment RCRA expanded of knowing violations of the suchthat offenses. In addition, the amendment created proviraisedthe the"knowing maximumendangerment" criminal penalties for Act may constitute criminal offenses and sion. offenses. Hazardous and Solidthe Waste Amendments 1984, Pub. L.endangerment" No. 98-616, 98proviStat. In addition, amendment createdofthe "knowing such 3221 (codified as and amended 42 U.S.C. § 6928 (1988)). Solid at Waste Amendments of 1984, Pub. L. No. 98-616, 98 Stat. sion. Hazardous 125.(codified 42 U.S.C. § 6928(d)(1) 3221 as amended at 42(1988). U.S.C. § 6928 (1988». 126. 42 33 U.S.C. 1319(c)(1) (1988) (1988).(amended 1987). 125. U.S.C. § 6928(d)(l) 127. The Water§ Quality Act (1988) of 1987(amended expanded1987). negligent and knowing violations of 1319(c)(I) 126. 33 U.S.C. the127. Clean Water ActQuality subjectAct to criminal penalties, and adThe Water of 1987 penalties, expanded increased negligent criminal and knowing violations of ded "knowing endangerment" a felonypenalties, offense. increased Pub. L. No. 100-4, penalties, 101 Stat. 7and (codithe Clean Water Act subject to as criminal criminal adfied amended at 33 U.S.C. §as1319 (1988)). ded as "knowing endangerment" a felony offense. Pub. L. No. 100-4, 101 Stat. 7 (codi128. Conversation G. Block, Chief, Environmental Crimes Section, DOJ fied as amended at 33withJoseph U.S.C. § 1319 (1988». (July 1990). with]oseph G. Block, Chief, Environmental Crimes Section, DO] 128.17,Conversation Quly 17, 1990).

1991]

tenth of the statutory maximum. The amount ofjail time sentenced tenthalso of the statutory maximum. ofjail time sentenced has increased, due in part toThe the amount 1984 amendment. But after has also increased, due in part to the 1984 amendment. But after sentences are suspended, the average time served represents only sentences areofsuspended, themaximum. average time served represents only one-thirtieth the statutory In addition, the number of one-thirtiethgiven of the statutory maximum. thewhat number of defendants jail time has dropped In to addition, one-half of it was defendants given jail time has dropped to one-half of what it was when the sentences were lighter, as only thirty percent of those conwhen the were lighter, as only thirty percent of those convicted go sentences to jail. victed go to jail. Individuals fined under the Clean Water Act are paying higher Individuals finedaverage under the WaterareAct areabove paying fines as well. The fines,Clean however, just thehigher statufines as well. The average fines, however, are just above theallowastatutory minimum and represent only one-fifth of the maximum tory minimum and represent only one-fifth of the maximum allowable fine. Prison terms are also rising under the Clean Water Act, but ble Prison terms are convicted also rising who undergothetoClean Water Act, but the fine. percentage of those jail has steadied at the percentage of those convicted who go to jail has steadied at about twenty-five percent. The amount of time served is still very about twenty-five amountterms of time served is still very low, and even the percent. length ofThe probation remains low. low, and even the length of probation terms remains low. Under section 2614 of TSCA and section 741(c)(1) of the Clean section TSCA section 741(c)(l) Clean AirUnder Act, fines are2614 up asofwell, butand under these statutes of thetheaverage Air fines are up as well, but under these statutes the average finesAct, have leveled off at approximately one-fifth of the statutory fines have leveled offhave at approximately one-fifth of the statutory maximum. Jail terms increased under these statutes, but the maximum. Jail terms have increased under these statutes, but the average jail sentence is only one-sixth of the statutory maximum. average jail sentence is only one-sixth of the statutory maximum. More importantly, ninety-nine percent of each jail sentence is susMore importandy, ninety-nine of each jail defendants sentence is consuspended. In addition, only one percent out of every twenty pended. In addition, only one out of every twenty defendants convicted spends time in jail. Probation terms have increased, as have victed spendsoftime in jail. Probation terms havesentences, increased,which as have the number defendants receiving probation is the number of defendants receiving probation sentences, which is up to seventy-five percent of those convicted under TSCA and the up to seventy-five percent of those convicted under TSCA and the Clean Air Act. Clean Air Act. Overall, average fines are up but have leveled off at one-fifth of uprespective but have leveled at one-fifth of average finesbyarethe theOverall, maximum allowed statutes.offAverage prison the maximum allowed by the respective statutes. Average prison terms have also increased over the past few years, but the time actuterms have isalso increased over the past years, but the actually served as low as one-twentieth to few one-hundredth oftime the statually served is as low as one-twentieth to one-hundredth of the statutory maximum. For all of the statutes, the percentage of convicted tory maximum. For all of the percentage of convicted individuals who actually gothe to statutes, jail has dropped as the average senindividuals who actually go to jail has dropped as the average sentence has increased. Probation remains the only consistent detertence and has the increased. Probation remains the only consistent deterrent, length of each average probation term has increased rent, and the length of each average probation term has increased significantly. significandy. 3. Average Corporate Fines 3. Average Corporate Fines Under RCRA and the Clean Water Act, the average corporate fine RCRA theNonetheless, Clean Water the Act,average the average fine hasUnder tripled since and 1983. fines corporate hover at sixty has tripled since 1983. Nonetheless, the average fines hover at sixty percent of the maximum of one day violations. Even in 1989 almost percent the maximum of one Water day violations. 1989 almost sixty-fiveofpercent of the Clean Act fines Even were in less than onesixty-five percent of the Clean Water Act fines were less than half of a maximum allowable fine for just one day of violations.onehalf of a maximum allowable fine for just one day of violations. Under TSCA and the Clean Air Act, the average fine over the Under and Act, the finepercent over the seven yearTSCA period is the onlyClean about Air $8400. Overaverage sixty-five of seven year period is only about $8400. Over sixty-five percent of the fines under these statutes were for less than $8000. the fines under these statutes were for less than $8000. Although there has been significant improvement in the average Although there has been significant improvement average fines levied against corporations, this increase must in be the considered fines levied against corporations, this increase must be considered in light of a corporation's capacity to absorb fines both because of in light of a wealth" corporation's capacityof totheir absorb fines because of their "sheer and "because ability to both diffuse the pain, their "sheer wealth" and "because of their ability to diffuse the pain, 802

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write off pass them them on write off penalties penalties or or pass on to to customers."129 customers." 1 2 9

E. Existing Penalties Are Too Too Weak: Between E. Existing PenaltiesAre Weak: Comparisons Comparisons Between Environmental Penalties and Other Crimes Environmental Penalties and Other Crimes A comparison between the the average environmental A comparison between average penalties penalties for for environmental and the penalties for other violent crimes provides some violations violations and the penalties for other violent crimes provides some indication of the traditional resistance to tough sentences for white indication of the traditional resistance to tough sentences for white collar collar crimes. crimes. Under the promulgated by Under the Sentencing Sentencing Guidelines Guidelines promulgated by the the United United States pickpocket or States Sentencing Sentencing Commission, Commission, aa pickpocket or purse-snatcher purse-snatcher is is under section 2Bl.l, which deals with thefts. The base sentenced sentenced under section 2B1.1, which deals with thefts. The base penalty for pickpocketing is either zero zero to to six months or penalty for pickpocketing is either six months or aa fine fine of of 3 0 But with supplements for any planning $500 both. 130 $500 to to $5000 $5000 or or both.1 But with supplements for any planning or involvement organized group and for taking property worth or involvement in in an an organized group and for taking property worth more than $100, the penalty for pickpocketing or purse-snatching more than $100, the penalty for pickpocketing or purse-snatching is is either four to ten ten months or a fine of $1000 to $10,000 or usually usually either four to months or a fine of $1000 to $10,000 or 3 both.1131 both. A theft by by force threat of A theft force or or threat of force force is is sentenced sentenced under under section section of the Sentencing Guidelines. Thus, if a mugger 2B3.1 2B3.1 of the Sentencing Guidelines. Thus, if a mugger takes takes aa or aa wallet wallet worth more than criminal faces faces aa base base watch watch or worth more than $100, $100, the the criminal penalty of either 27 to 33 months or $6000 to $60,000 in fines penalty of either 27 to 33 months or $6000 to $60,000 in fines or or 132 both. If the the mugger uses aa knife knife or pistol, or even just just carries 3 2 both. If mugger uses or aa pistol, or even carries penalty level level rises rises to months or these weapons, these weapons, the the penalty to either either 41-51 41-51 months or 133 3 3 If the mugger injures his vic$7500 to $75,000 in fines or both. $7500 to $75,000 in fines or both.1 If the mugger injures his vicall and and carries the prison prison term could be be as as tim tim at at all carries aa weapon, weapon, the term could as much much 134 as 4 and the fines could range from $10,000 to $100,000. 57 months, $100,000.13 to $10,000 from range could fines the and 57 months, Under these pickpocket could be sentenced to 4-10 Under these rules, rules, aa pickpocket could be sentenced to 4-10 months injail, and a mugger could either spend up to 57 months months in jail, and a mugger could either spend up to 57 months in in jailor pay fines fines totalling totalling $100,000 $100,000 or both. By By comparison, for jail or pay or both. comparison, for dumping hundreds of gallons of waste, hospitalizing two dumping hundreds of gallons of hazardous hazardous waste, hospitalizing two people and causing over $40,000 worth of damage to property and people and causing over $40,000 worth of damage to property and the by clean-up costs) an the environment environment (as (as measured measured by clean-up costs) an environmental environmental spent less time in jail (four months) than criminal criminal spent less time in13s jail (four months) than would would either either the the mugger or the pickpocket. This case and other examples are dede3 5 mugger or the pickpocket. This case and other examples are tailed tailed below. below. 129. Muro, Muro, supra 92, at AI; see Reluctant Soldiers: Soldiers: The 129. supra note note 92, at Al; see Comment, Comment, Reluctant The Criminal CriminalLiability Liability ofCorporate Officersfor Negligent Violations ofthe Clean Water Act, 138 U. PA. L. REV. 935, of CorporateOfficersfor Negligent Violations of the Clean WaterAct, 138 U. PA. L. REV. 935, 957, 957, 968 (1990). For a discussion of the need for more creative sentencing mechanisms and 968 (1990). For a discussion of the need for more creative sentencing mechanisms and significantly higher maximum fines, see infra Part IV.C.3. significantly higher maximum fines, see infra Part IV.C.3. MANUAL, supra note 58, § 2BI.I. 130. GUIDELINES 130. GUIDELINES MANUAL, supra note 58, § 2BI.1. 131. 131. Id. Id 132. Id. Id. §§ 2B3.1. 2B3.I. 132. 133. Id. 133. Id. 134. Id. 134. Id. 135. Id. 135. Id.

1. United States v. Welsh 136 1. United States v. Welsh 3 6 J. Welsh & Sons, under the direction of owner Lawrence Welsh, J. Welsh & Sons, under the direction of owner Welsh, stored fifty-five gallon drums of hazardous wasteLawrence (chemicals, old stored fifty-five gallon drums of hazardous waste (chemicals, old x 7 paint and paint thinner) on its property without a permit to do SO.137 paint and paint thinner) on its property without a permit to do so. 1 The company later dumped many of these fifty-five gallon drums The company later dumped many of these fifty-five gallon drums at at rural and residential sites such as road-side ditches, a flea market, rural and residential sites such as road-side ditches, a flea market, and a vacant lot in aa residential residential neighborhood. neighborhood. 113s 38 and a vacant lot in Two people were hospitalized as a result of the dumping. A state Two people were hospitalized as a result of the dumping. A state conservation officer suffered bums to the back of the throat from conservation officer suffered burns to the back of the throat from inhaling toxic fumes produced by one of the leaking barrels that had inhaling toxic fumes produced by one of the leaking barrels that had been tossed from a truck into a roadside ditch. He was hospitalized, been tossed from a truck into a roadside ditch. He was hospitalized, developed blood clots in his throat and suffered bleeding from the developed in his who throat andnext suffered bleeding the mouth and blood gums. clots A woman lived to a vacant lotfrom in a Demouth and gums. A woman who lived next to a vacant lot in a Detroit suburb watched two men unload toxic barrels belonging to J. troit suburb watched two men unload toxic barrels belonging to J. Welsh & Sons into the vacant lot next to her home. She was rushed Welsh & Sons into the vacant lot next to her home. She was rushed to the hospital. The woman was forced from her home for some to the She hospital. The awoman forced from her home fumes. for some time. developed nodule was on her throat from inhaling 139 39 time. She developed a nodule on her throat from inhaling fumes.1 The federal government spent over $40,000 cleaning up the various The federal government spent over $40,000 cleaning up the various sites contaminated by the company's toxic barrels. Both Welsh sites contaminated by the company's toxic barrels. Both Welsh and the company pled guilty to five violations of RCRA under 42 and the §company pled guilty to five violations of RCRA under 42 U.S.C. 6928(d)(I) and § 6928(d)(2).140 Lawrence Welsh spent U.S.C. § 6928(d)(1) and § 6928(d)(2).1 40 Lawrence Welsh spent four months in jail (he was sentenced to twenty-four months, but all four months in jail (he was sentenced to twenty-four months, but all but four months were suspended). The Company paid a $1000 fine. but four months were suspended). The Company paid a $1000 fine. 2. United States v. Mardikian 141 4 2. United States v. Mardikian1 1 The Mardikians and their company, Albert Mardikian Engineerand their Albertemissions Mardikian EngineeringThe Inc.Mardikians (AME), imported carscompany, and provided testing serving Inc. (AME), imported cars and provided emissions testing services in Orange County, California. Mardikian was the driving force ices in Orange County, California. Mardikian was the driving force behind this country's "gray market" of foreign cars that are imbehind this country's "gray market" of foreign cars that are imported, tested and put on the roads in violation of EPA emissions ported, tested and put on the roads in violation of EPA emissions standards. 42 1142 standards. Mardikian and his company falsified tests, installed coffee cans inMardikian and his company installed instead of carburetor emissionsfalsified controltests, devices, and coffee put oncans faulty, stead of carburetor emissions control devices, and put on faulty, second-hand catalytic converters in thousands of cars in California. second-hand catalytic converters in thousands of cars in California. In 1981 AME tested one-third of the "gray market" cars in the In 1981 AME tested one-third of the "gray market" cars in the country. By 1985 there were over 60,000 "gray market" cars nacountry. By As i985 there were 60,000 "gray cars naone of the firstover laboratories of itsmarket" kind, Mardikian tionwide. 143 tionwide.143 As one of the first laboratories of its kind, Mardikian helped to "chart the course for the gray market industry."144 14 4 helped to "chart the course for the gray market industry."' 136. Criminal No. 83-60543 (E.D. Mich. 1983); see CRIMINAL SUMMARY, supra note 94,

at 136. 10. at 137. 10. 137. 138. 138. 139.

Criminal No. 83-60543 (E.D. Mich. 1983); see CRIMINAL SUMMARY, supra note 94, CRIMINAL SUMMARY, supra note 94, at 10. CRIMINAL SUMMARY, supra note 94, at 10. /d. Id. Government's Memorandum in Aid of Sentencing at 6-7, Welsh (Criminal No.

139. Government's Memorandum in Aid of Sentencing at 6-7, Welsh (Criminal No. 83-60543). 83-60543). 140. CRIMINAL SUMMARY, supra note 94, at 10. 140. CRIMINAL SUMMARY, supra1985). note 94, at 10. No. 85-00509 (C.D. Cal. 141. 141. Government's No. 85-00509 (C.D. Cal. 1985).in Aid of Sentencing at 7, Mardikian (No. 85Memorandum 142. 142. Government's Memorandum in Aid of Sentencing at 7, Mardikian (No. 8500509). 00509). 143. /d. at 2-7. 143. Id. 144. [d. at at 2-7. 7. 144. Id. at 7.

Mardikian charged his customers $1500-$4000 per car for EPA made tests which he either did not perform or falsified. AME Adler/Lord $2300-$5000 per car in extra net profitsTHE by GEORGE fakingWASHINGTON or not performing LAW REVIEW the required tests. 145 Of the seven cars EPA tested during its investigation, five failed all emissions tests and all seven exceeded some emissions standard by up to four hundred percent. 146 Mardikian charged his customers $1500-$4000 for EPA Albert Mardikian pled guilty to nine counts of per falsecar statements tests which he either did not perform or falsified. AME made under 18 U.S.C. § 1001 and one count of mail fraud under 18 $2300-$5000 per car in extra net profits by faking or not performing U.S.C. § 1341. Mardikian was sentenced to five years but four and the required tests.1 45 Of the seven cars EPA tested during its invesone-half were suspended. Mardikian spent six months in jail.147 tigation, five failed all emissions tests and all seven exceeded some hundred percent.1 46 up to four standard emissions 3. United States by v. Ashland Oil, Inc. 148 Albert Mardikian pled guilty to nine counts of false statements Ashland Oil constructed an oilone tankcount on the the Monongaunder 18 U.S.C. § 1001 and ofbanks mail of fraud under 18 hela River. The company cut corners on the construction costsand by U.S.C. § 1341. Mardikian was sentenced to five years but four 14 7 or faulty materials. The tank fell apart and spilled using inferior jail. in one-half were suspended. Mardikian spent six months over 500,000 gallons of oil into the Monongahela and Ohio Rivers. 14 8 long. Over one million The created anv.oilAshland slick twenty miles Oil, Inc. States United 3. spill people went without water for as long as a week. Schools, churches, Ashland Oil constructed an oil tank on thealong banksthe of the Monongaand businesses closed in sixty communities Monongahela hela River. The company cut corners on the construction costs by 149 and Ohio Rivers. using inferior or faulty materials. The tank fell apart and spilled Ashland had a long history of ignoring environmental statutes over 500,000 gallons of oil into the Monongahela and Ohio Rivers. throughout the country. The company had contaminated groundThe spill created an oil slick twenty miles long. Over one million water in eastern Kentucky, caused over $750,000 in damage by people went without water for as long as a week. Schools, churches, dumping waste water, and had been convicted of twenty-two violaand closed in sixty communities along the Monongahela of the Clean Water Act. 150 tionsbusinesses 1 49 and Ohio Rivers. The Company entered a nolo-contendere plea to a one-count vioAshland a long history ignoring environmental of thehad Clean Water Act 151ofand one count of violating statutes the Relation throughout the country. The company had contaminated groundthe fuse Act. 152 The corporation was fined $2.25 million under water in eastern Kentucky, caused over $750,000 in damage by Criminal Fine Improvements Act,153 compared to $90 million in dumping waste water, and had been convicted of twenty-two violaprofitsoffor year.Water No individuals were indicted, and no jail time Act. 150 Clean thethe tions was served. 154 The Company entered a nolo-contendere plea to a one-count vio5 1 and one count of violating the Relation ofatthe 145. Id. 5.2 Clean Water Act' 15 fuse 146. Act. Id. at 9. The corporation was fined $2.25 million under the 147. See CRIMINAL SUMMARY, supra note 94,5 at Criminal Fine Improvements Act,' 3 27. compared to $90 million in 148. 705 F. Supp. 270 (W.D. Pa. 1989). profits for the year. No individuals were indicted, and no time at 3, Ashland (No.jail 88-146). 149. Government's Memorandum in Aid of Sentencing 1 54

was 150.served. Id. at 4-5. 151. 152. 145. 153. 146. 154. 147. 148. 149. 150. 151. 152.

33 U.S.C. § 1319(c)(1) (1988). Id. l §at411. 5. (d) (1988). 18 U.S.C. Il at 9. § 3571 See CRIMINAL SUMMARY, supra 94, at 93. See CRIMINAL SUMMARY, supra note note 94, at 27. 705 F. Supp. 270 (W.D. Pa. 1989). Government's Memorandum in Aid of Sentencing at 3, Ashland (No. 88-146). Id. at 4-5. 33 U.S.C. § 1319(c)(1) (1988). Id. § 411.

153. 18 U.S.C. § 3571(d) (1988). 154. See CRIMINAL

SUMMARY, supra note 94,

at 93.

4. United States v. Pennwalt Corp. 55 4. United States v. Pennwalt COrp.155 Pennwalt Corporation manufactures the chemical sodium dichro5 6 In Pennwalt the chemical sodium by the EPA.'dichrois listed as manufactures a hazardous substance mate, whichCorporation EPA.156 In mate, which is listed as by a hazardous substanceopened by the leaks in one caused sodium dichromate 1984, corrosion 1984, corrosion caused by sodium opened leaks in feet one approximately twenty-four of Pennwalt's storage tanks that wasdichromate of Pennwalt's that was twenty-four feet contained a volume of about feet intanks diameter andapproximately high, thirty-sixstorage high, thirty-six in chemical. diameter and contained a volume of about installed a bag liner that gallons feet of the Pennwalt 180,000 180,000 gallons of the chemical. Pennwalt installed bag liner supthat and provided no astructural was 100 millionths of an inch thick was an inch provided no 75,000 structural supOver gallons January 2,of1985, thethick tank and ruptured. port.100 Onmillionths port. On January 2, 1985, the the tankdrainage ruptured. Overat75,000 gallons system the plant and dichromate entered of sodium of dichromate drainageand system the plant anda into atPuget Sound, into theentered Hylebosthe Waterway wassodium discharged 15 7 fishery. was discharged the Hylebos Waterway and into Puget Sound, a commercial andinto recreational fishery}57 recreational Orval Highand wascommercial the manager of the Pennwalt Tacoma Plant. He Orval his High was the manager the Pennwalt Tacoma He included that itPlant. report of the spill byoffailing to mention falsified falsified report of(athehazardous spill by failing to mention that it included and misrepresenting dichromate substance) sodium his 158 In addition, sodium dichromate (a hazardous substance) misrepresenting workersand from the plant used the quantity of the spill. the quantity of the spill. 158 In addition, workers from gallons the plantofused the of the spill, forcing hoses to wash down the area hoses to wash down the area of the spill, forcing gallons of two the chemical into the Waterway and Puget Sound. During the next chemical into the Waterway and Puget Sound. During the next two weeks, plant workers twice left valves open, which allowed the chemweeks, workers twice valves which allowed chemandthe into the againleft into the open, drainage system ical to plant be discharged ical to be discharged again into the drainage system and into by Hylebos Waterway. In addition, by failing to report the spill and the Hylebos Waterway. In the addition, by failing to report the spill by theand comspill into the drainage system, hosing the remains of hosing the remains of the spill the drainage system, the comtheinto problem. pany knowingly exacerbated pany knowingly exacerbated the problem. The government initially brought charges against the corporaThePennwalt's government initially brought against theInorganic corporapresident of the vice-president, the charges tion, tion, Pennwalt's vice-president, the president of the Inorganic Chemical Division, the manager of the Division, and Orval High.1 59 159 Chemical the manager the Division, Orval High.the under pledofguilty to fourand counts Eventually,Division, the corporation 16 The 160 and one pled Eventually, to the fourSuperfund. counts under the Actcorporation countguilty under Clean Waterthe I60 Clean Water Act and one count under the Superfund.161 The government dropped the charges against the corporate officers as a government dropped charges against the corporate officers twoa to as on High's plea of guilty contingent part of this plea, andthe part of this plea, and contingent on High's plea of guilty to two Environmental Act violations and one Comprehensive Clean Water Water Act violationsand andLiability one Comprehensive Clean Act violation. Environmental The corporaResponse, Compensation Response, and in Liability Actset violation. The corporaup an environmental fines and tion agreedCompensation to pay $500,000 tion to pay in fines and Guard set up in an the environmental amount of the $500,000 United States Coast trust agreed fund for was fined trust fund Orval for theHigh United States$5000.162 Coast Guard in the amount of $600,000. $600,000. Orval High was fined $5000. 162 63 5. United States v. Ballard Shipping Co.' 5. United States v. Ballard Shipping CO.163 On June 23, 1989, the oil tanker MIT World Prodigy ran aground OnJune 23, 1989, the oil tanker M/T World Prodigy ran aground 155. No. CR-88-55T (W.D. Wash. 1989). promulgated this regulation listing sodium § 116.4 (1990). 156. 40 155. No. C.F.R. CR-88-55T (W.O. Wash.EPA 1989). Clean Water Act, 33 sodium U.S.C. as a hazardous substance to thethis dichromate § 116.4 (1990). EPApursuant promulgated regulation listing 156. 40 C.F.R. § 1321(b)(2)(A) dichromate as a(1988). hazardous substance pursuant to the Clean Water Act, 33 U.S.C. 157. Government's § 1321(b)(2)(A) (1988).Information at 4-5, United States v. Orval J. High, No. CR8931FDB Wash. 1989). 157. (W.D. Government's Information at 4-5, United States v. Orval J. High, No. CR89158. Id. at 7.Wash. 1989). 31FOB (W.O. 159. Id. 158. /d. at at 4-5. 7. 160. 159. 33 /d. U.S.C. at 4-5. § 1319(c)(1) (1988). Response, Compensation and Liability Act Comprehensive Environmental 161. § 1319(c)(l) (1988). 160. The 33 U.S.C. 42 Comprehensive U.S.C. § 9603(b)(3) (1988). § 103(b), 161. The Environmental Response, Compensation and Liability Act note 94, at 82-83. CRIMINAL SUMMARY, supra(1988). § 162. 103(b), 42 U.S.C. § 9603(b)(3) (D.R.I. 163. 89-0121M(T) 162. No. CRIMINAL SUMMARY, supra 1989). note 94, at 82-83. 163. No. 89-0121M(T) (O.R.I. 1989). r_---

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and spilled 420,000 gallons of oil in the mouth of the Narragansett and spilled 420,000 of oil in theBallard mouthShipping of the Narragansett the captain and owned the Bay. Georgoudis wasgallons Bay. Georgoudis was the captain and Ballard Shipping owned the World Prodigy. World Prodigy. According to the plea agreement, the spill caused up to $1 million to the plea the spill $1 million in According property damage andagreement, up to $500,000 in caused damageuptotothe natural in property damage and up to $500,000 in damage to the natural cloresources of the State of Rhode Island. l644 The spill caused the resources of the State ofshellfish Rhode Island.'r The spill and caused the loss closure of fishing grounds, beds, and beaches, caused sure of fishing grounds, shellfishto beds, and beaches, and caused of income, damage, or expense thousands of individuals andloss the of income, damage, or expense to thousands of individuals and the State.1165 65 State. The company pled guilty to one count of negligent violation of company guilty to one to count of negligent violation of 166 theThe Clean Water pled Act 16 agreed be fined under the Criminal 6 and the Clean Water Act and agreed to be fined under the Criminal Fine Improvements Act. Captain Georgoudis also pled guilty to one Fine Improvements Act. Captain Georgoudis also pled to one violation of the Clean Water Act. 167 The company paidguilty a $500,000 16 7 The violation of the Clean Water Act. company paid a $500,000 fine and agreed to pay $500,000 in restitution to the State. Captain fine and agreed pay $10,000. $500,000168in restitution to the State. Captain Georgoudis was to fined Georgoudis was fined $10,000.168 As these cases illustrate, the Criminal Fine Improvements Act inAs these cases illustrate, the Criminal Fine Improvements Act inthe fines levied on corporate defendants. By treating corpocreases creases the fines levied defendants. By treating corpothe on Actcorporate led to a dramatic increase in corporate rations differently, rations differently, the Act led to a dramatic increase in corporate fines. But the increases must be compared to the maximum fines fines. increases mustatbe to the maximum fines andthe must be looked in compared light of a corporation's ability to allowedBut allowed and must be looked at in light of a corporation's ability to pay and to make money by violating the environmental statutes. pay and toindividual make money by violating the environmental statutes. are generally still well below even Moreover, sentences Moreover, individual sentences are generally still well below even the statutory maximum, not to mention the maximum authorized the statutory maximum, not to mention the maximum authorized under the Criminal Fine Improvements Act. under the Criminal Fine Improvements Act. In addition, these cases illustrate that the individual defendants In to addition, these cases illustrate that thethan individual tend be middle level "custodians" rather top leveldefendants executive tend to be middle level "custodians" rather than top level executive activimanagers who control a company's safety and environmental managers who a company's safety and environmental activiis acontrol sense of a "fall guy" approach at work in many of ties. There ties. There is a sense of a "fall guy" approach at work in many of the cases examined. For example, in Pennwalt, the only individual the cases examined. in Pennwalt, the only individual defendant sentencedFor wasexample, the manager of the manufacturing defendant sentenced was the manager of the manufacturing plant. 16 169 9 plant.

F.

F.

Conclusions and Recommendations

Conclusions and Recommendations Changes in the sentencing system and increased attention from the sentencing system and increased have attention theChanges federal in environmental enforcement community led tofrom imthe federal environmental enforcement community have led to important increases in the number of environmental violators brought portant increases the number of environmental to justice. But theinnumber of cases referred to andviolators broughtbrought by DO] to justice. But the number of cases referred to and brought by DOJ 164. 164. 165. 165. 166. 166. 167. 167. 168. 168. 169. 169.

Plea Agreement at 2, 4, Ballard Shipping (No. 89-0121M(T). PleaatAgreement at 2, 4, Ballard Shipping (No. 89-0121MM). Id. 4. Id. at 4. 33 U.S.C. § 1319(c)(l) (1988). 33 U.S.C. § 1319(c)(1) (1988). Id. § 1319(a). Id. § 1319(a). Plea Agreement at 4, Ballard Shipping (No. 89-0121M(T». Pleasupra Agreement at and 4, Ballard Shipping (No. See note 162 accompanying text. 89-0121M(T)). See supra note 162 and accompanying text.

seems to have reached a plateau, perhaps due to resource limitations. Recent amendments to environmental statutes have increased the potential penalties for a few violations. The statistics show, however, that actual penalties remain low. Clearly, the changes in the system are being under-utilized, as defendants receive consistently low sentences. 1.

The Sentencing System and Average Penalties

The penalties faced by those who are sentenced are the true measure of the level of deterrence achieved by the criminal system, because those most serious cases brought to trial serve as a deterrent for the rest of "the regulated community." The developments in the sentencing system have increased the prison terms served by convicted defendants. One of the largest problems with the system up to 1989 has been the amount of prison time suspended, so that sentences that seem strict have been painless. The Sentencing Guidelines' procedural changes, such as restricting probation and eliminating suspension of sentences, will increase the time individu17 0 als spend in jail. The Sentencing Guidelines should also eliminate some of the variations between districts in the way multiple count violations are handled, because any and all violations that occur over many days are one count violations and are increased by the same add-on for "ongoing" violations. The complex multiple-count system guarantees that penalty levels will be increased by a standard amount for violations that involve different types of infractions, and for defendants who are charged with a series of similar infractions that are not "continuous." This method should standardize the deterrence in different districts and eliminate the admittedly minor variations in the definition of a count. In addition, despite the slight rise in the length of prison terms, fewer defendants are receiving prison terms at all. This trend suggests a systemic reluctance to imprison environmental violators. The Criminal Fine Improvements Act and the Sentencing Guidelines have had some effect on the average individual fines. The Act includes new and creative mechanisms that tie the penalty to the harm caused and thus guarantee that deterrence increases with the seriousness of the violation. Under a sliding scale, violators cannot include the cost of a fine in the cost of doing business by calculating when a violation would be profitable. Nonetheless, the average fine does not even approximate the statutory maximum for a one day violation. Fines have leveled off and are decreasing under some statutes. The average fine is only one-fifth of the maximum allowed, showing that these penalties are clearly being under-utilized. In addition, most convictions are for more than one count and more than one day of violations, and fines are below even the one day maximum. It 170. Sentencing Guidelines for United States Courts, 54 Fed. Reg. 47,063 (1989).


is therefore clear that an increase in fine levels or the promulgation of more creative mechanisms is needed to compel courts to punish individual defendants. Even the middle-level defendants generally do not spend more than a few months in jail. The average fines for environmental violations that threaten the health and safety of entire towns, regions, and watersheds remain well below the statutory minimum for an 17 1 armed mugger. The system apparently is resistant to procedural changes meant to raise the amount of fines paid and time served by individual environmental criminals. This inertia suggests that new mechanisms are needed or that the procedural changes should involve quantum leaps in the maximum penalties, so that the minima and the averages follow them up the scale. Continuing, widespread non-compliance with environmental statutes and permits 17 2 suggests both that many corporate polluters do not get caught and that corporations may consider it more efficient to pollute and pay the fine than to comply with the standards. A professor at George Washington University found, in his survey of 500 leading industrial corporations, that nearly two-thirds were involved in significant illegalities.'"3 Professor Etzioni's study indicates that corporations calculate that getting caught costs less than operating legally. 174 The most important new measure of the Criminal Fine Improvements Act ties fines to the level of harm, which could discourage the practice of considering fines a part of 175 the cost of doing business. But high fines pursuant to the Act are rare, and the average fines imposed have leveled off, which suggests the same systemic resistance to increased fines found in individual sentencing. In addition, the fine levels should be considered in light of EPA's decision to prosecute only the most egregious offenses. There are indications that the Act is not used as much as it should be. Even with higher average fines and the few large fines, the sentences hover at about the maximum for a one day violation. Taken together, these statistics and their context suggest that corporate environmental violations are severely under-deterred. The corporate-fine statistics also suggest the need for creative sentencing mechanisms that courts 171. See supra notes 130-35 and accompanying text. 172. See supra Part II. 173. Sentencing Commission Hearings, supra note 92, at 156-61 (testimony of Prof. Etzioni). Professor Etzioni also discusses ajustice Department survey of 600 corporations that came to much the same conclusions. NATIONAL INST. OF LAW ENFORCEMENT & GRIMINALJUSTICE, DOJ, ILLEGAL CORPoRATE BEHAVIOR 108 (1979). 174. Sentencing Commission Hearings, supra note 92, at 155-56. 175. Pub. L. No. 100-185, sec. 6, § 3571(b), (c), 101 Stat. 1279, 1280. 0.

may more readily utilize and higher maximum levels that will pull up higher maximum levels that will pull up mayminimum more readily andfines. the andutilize average the minimum and average fines. 2. EPA and DO]: The Enforcement Community 2. EPA and DOJ: The Enforcement Community EPA has, by choice and necessity, concentrated its limited investinecessity, concentrated investiEPAresources has, by choice gative only and on the "most serious forms its of limited environmental environmental gative resources only on the "most serious forms of violators brought to justice therefore serve misconduct."176 176 Those violators brought to justice therefore serve misconduct." many less blatant polluters EPA does not target as a proxy for theThose for the many less blatant polluters EPA does not target as a proxy for criminal enforcement. Only if those who are brought to trial pay to enforcetrial pay for criminal enforcement. Only if those whofor arethe brought a serious penalty will EPA achieve its goals criminal for the criminal enforceament serious penalty will EPA achieve its goals program, which include "creation of the expectation of EPA EPA which include "creation ofillegal the expectation program, ment prosecution" and "unearthing clandestine activity notofwithin not within prosecution" and "unearthing clandestine illegal activity the normal cognizance of Agency program personnel." 177 is 77 EPA personnel."' EPA is the normal cognizance Agency investigating more casesofthan it hasprogram in the past. But the indication cases than in the past. suggests But the indication investigating that referrals more have leveled off itat has a new plateau that more that more that referrals have leveled off at a new plateau suggests resources are necessary at EPA to move to an even higher number are necessary at EPA to move to an even higher number resources of referrals. 178 8 referrals.17 ofAt DOj, the number of referrals in which charges are filed rein which charges are filed reAt DOJ, the number of referrals mains constant. This statistic indicates that while referrals are up, This statistic indicates that while referrals are up, mains constant. the number of cases prosecuted has leveled off. Similarly, although has leveled off. Similarly, although the number cases prosecuted DOj is to be of applauded for increasing the number of cases for which increasing the number of cases for which for DOJ is to be applauded there was a verdict of guilty, the number of guilty pleas has inof guilty, the more number of guiltyare pleas has inthere was a verdict creased as well. 179 For each case, defendants being pros179 For each case, more defendants are being prosas well. creased ecuted but many of these are plea bargained. Furthermore, of the of these are the plea number bargained. Furthermore, of has the many ecuted mass ofbut new investigations, addressed by DOj investigations, the number addressed by DOJ has mass of new reached a plateau. These statistics suggest that more DOj as well as suggest that more as reached a plateau. These statistics EPA resources are needed to prosecute criminal casesDOJ fullyasinwell order needed to prosecute criminal cases fully in order EPA resources are to achieve the objectives of the environmental criminal enforcement to achieve the objectives of the environmental criminal enforcement program. program. Additional resources alone, however, will not maximize enforcewill not maximize enforceAdditional resources alone, however, ment effectiveness without improved coordination within EPA, beEPA, bement effectiveness without improved coordination within tween EPA and DOj, and between criminal and civil enforcement and civil enforcement tween EPA DOJ, and efforts. Theand following is a between samplingcriminal of the types of improvements the types of improvements efforts. The following is a sampling of that would help to improve the effectiveness of criminal enforcethe effectiveness of criminal enforcethat would to improve ment in the help context of the overall EPA enforcement program. ment in the context of the overall EPA enforcement program. a. Overall EPA Enforcement Efforts Are Weak a. Overall EPA Enforcement Efforts Are Weak Even presuming the agency resources are adequate, studies show the agency resources areare adequate, studies show Even presuming that overall EPA enforcement efforts often weak. For example, that overall EPA enforcement efforts often are weak. For example, EPA's Inspector General (IG) recently criticized EPA's water pollu(IG) recently criticized EPA's waterBay polluEPA's Inspector General tion enforcement efforts in Region IV and the Chesapeake ReReefforts in Region IV and the Chesapeake Bay tion enforcement 180 gion. 8 0 The IG's report for Region IV concluded that EPA Region gion.1 The IG's report for Region IV concluded that EPA Region 176. CRIMINAL ENFORCEMENT PRIORmES, supra note 64, at 2. 176. WORK CRIMINAL ENFORCEMENT PRIORITIES, 177. GROUP REPORT, supra note 65,supra at 7, note 13. 64, at 2. GROUP supra notewill 65, be at provided 7, 13. 177. Some WORK of 178. these REPORT, needed resources under the Pollution Prosecuresources will be provided under the Pollution Prosecu178. of these needed tion ActSome of 1990, discussed infra in Part IV. tion ActInof1989 1990,the discussed in Part IV.closed without prosecution" was more than numberinfra of "referrals 179. 179.theInhighest 1989 the number of "referrals closed without prosecution" was more than twice previous figure. highestofprevious figure. twice Region IV's National Pollutant Discharge Elimination System Permit 180.theReview 180. Review of Region IV's National Pollutant Discharge Elimination System Permit



IV and and IV forcing forcing (1) (1) (2) (2)

the Georgia and not effectively the States States of of Georgia and Alabama Alabama were were not effectively enenthe Clean Water Act permitting program because: the Clean Water Act permitting program because: they enforcement management systems; they lacked lacked adequate adequate enforcement management systems; enforcement actions against chronic violators were not taken taken enforcement actions against chronic violators were not in a timely fashion, or escalated when appropriate; in a timely fashion, or escalated when appropriate; (3) appropriate were not used (3) appropriate civil civil and and administrative administrative penalties penalties were not used effectively; and effectively; and (4) as compliance Water Act Act deadlines deadlines was was (4) as aa result, result, compliance with with Clean Clean Water I81 8' poor. poor.l These studies indicate that providing providing new training These studies indicate that new personnel personnel and and training alone will not necessarily improve enforcement efforts unless alone will not necessarily improve enforcement efforts unless the the will must be will to to enforce enforce is is present. present. Ways Ways must be found, found, through through management management incentives that EPA's reincentives and and proper proper program program oversight, oversight, to to ensure ensure that EPA's reenforcement personnel take their enforcement responsibiligional gional enforcement personnel take their enforcement responsibiliand as more more than ties seriously ties seriously and view view enforcement enforcement as than aa "bean-counting" "bean-counting" I82 exercise. measure of of success should be be based exercise.18 2 The The appropriate appropriate measure success should based on compliance with properly-written permits-not just the number on compliance with properly-written permits-not just the number of discrete enforcement of discrete enforcement actions actions taken, taken, however however effective effective or or ineffective. ineffective.

b. Improved Enforcement Efforts Efforts is is Needed b. Improved Oversight Oversight of of State State Enforcement Needed One reason why increases are needed in federal enforcement One reason why increases are needed in federal enforcement perpersonnel is the lack of adequate state enforcement programs. Consonnel is the lack of adequate state enforcement programs. Conintended that that wherever wherever possible implementation of of the gress gress intended possible implementation the nation's environmental programs would be delegated to the states nation's environmental programs would be delegated to the states 83 under the of EP A.I83 EPA.' supervision of the supervision under Information shows EPA oversight oversight of Information shows that that EPA of state state enforcement enforcement proprograms often is extremely weak. For example, the on grams often is extremely weak. For example, the IG's IG's Reports Reports on Clean Water Act permit enforcement in EPA Region IV and in the Clean Water Act permit enforcement in EPA Region IV and in the Enforcement Program Program (Audit (Audit Report 1989) [here[hereEnforcement Report EIHWD8-04-0207-9100462, E1HWD8-04-0207-9100462, Sept. Sept. 7, 7, 1989) ofAudit on the Management of the Chesapeake inafter Region IV Audit Report]; Report inafter Region IV Audit Report]; Report of Audit on the Management of the Chesapeake Bay Program Program Point Point Source Pollution Program (Audit Report EIH98-03-0208-9100467, Bay Source Pollution Program (Audit Report E1H98-03-0208-9100467, Sept. Chesapeake Bay Bay Audit Audit Report]. Sept. 11, 11, 1989) 1989) [hereinafter [hereinafter Chesapeake Report]. supra note note 180, at 2-5. Similarly, the 181. Region IV Report, supra 181. Region IV Audit Audit Report, 180, at 2-5. Similarly, the Chesapeake Chesapeake Bay Bay states to apply proper proper management management procedures, procedures, Audit found that that EPA did not Audit found EPA did not require require states to apply that states states were reluctant to appropriate enforcement that EPA EPA did that were reluctant to take take appropriate enforcement actions, actions, and and that did not not take appropriate states failed Audit take appropriate enforcement enforcement actions actions when when states failed to to do do so. so. Chesapeake Chesapeake Bay Bay Audit Report, supra note 180, at 4-5. Report, supra note 180, at 4-5. to refer of managemanage182. EPA commonly commonly uses uses the 182. EPA the phrase phrase "bean-counting" "bean-counting" to refer to to aa system system of ment at performance is the number number of of cases cases brought rather than ment at EPA EPA in in which which performance is judged judged by by the brought rather than the quality quality of result achieved. the of result achieved. 183. See Clean Water Act, 33 U.S.C. §§ 1251(b), 1251(g), 1319, 1370 (1988); RCRA, 183. See Clean Water Act, 33 U.S.C. §§ 1251(b), 1251(g), 1319, 1370 (1988); RCRA, 42 U.S.C. §§ 6902(a)(7), 6929 42 U.S.C. §§ 6902(a)(7), 6929 (1988). (1988).

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Chesapeake Bay recommended increased EPA oversight of the Na4 enforceChesapeake BayDischarge recommended increased EPA (NPDES) oversight18of the National Pollution Elimination System 184 enforcetionalprograms Pollution in Discharge System (NPDES) ment states to Elimination which enforcement was delegated.18 5 In 185 In ment programs in states to whichmay enforcement part, this inadequate oversight be causedwas by delegated. insufficient EPA part, this staffing. inadequate oversight be caused insufficient EPA program In other cases,may political factorsbymay cause EPA to program other cases, political factors may cause EPA to ignore or staffing. downplayIninadequate state enforcement, in particular, due ignore or reluctance downplay inadequate enforcement, particular, due to EPA's to take overstate the state program.inBut in the long to EPA's reluctance take over the statebeprogram. Butthe in expendithe long run, inadequate statetoenforcement must replaced by run, state enforcement mustduplicative be replacedstate by the ture inadequate of federal resources or through andexpendifederal ture of against federal the resources or through duplicative federal actions same facility. It would be far state more and efficient to same would be far efficient to actions against improve EPA's the ability to facility. oversee It state efforts andmore to bolster state improve EPA's ability to oversee state efforts and to bolster state criminal and civil enforcement programs. criminal and civil enforcement programs. c. EPA Should Be Given More Independent Enforcement Authority

c. EPA Should Be Given More Independent Enforcement Authority Currently, all EPAjudicial enforcement must go through DOJ, re6 This Currently, allsize EPAand judicial enforcement must1 8go through DOJ, regardless of the complexity of the case. requirement 186 of theof size and complexity the case. This of requirement gardless has a number adverse effects. It of causes duplication efforts behas a number of DOJ, adverse effects. Itthe causes duplication of efforts between EPA and increasing number of federal personnel and DOJ,a increasing number of federal tween EPA needed to maintain given level the of enforcement effort. personnel It causes needed to maintain of enforcement causes EPA to focus largely aongiven majorlevel criminal actions that effort. warrantItreferral on smaller major criminal actions referral EPA to focus to DOJ, thus largely ignoring violations untilthat theywarrant blossom into to DOJ, thus problems. ignoring smaller violations untilEPA theyregional blossomattorinto more serious In addition, it keeps morewho serious problems. for In addition, it keeps EPA regional neys are responsible overall enforcement programs at attora disare responsible for overall enforcement programs at a disneys who tance from actual enforcement actions, which are prosecuted by tance from actual enforcement actions, which are prosecuted by DOJ. DOJ. This problem can be cured by giving EPA direct responsibility for This problem can be cured by giving EPA direct responsibility for certain types of judicial enforcement actions. By reducing duplicaofjudicial enforcement actions. By reducing duplicacertain types and tion of effort avoiding DOJ referral procedures, EPA should be and avoiding DOJ referral procedures, EPAfirst should be tion of able to effort take more enforcement actions when violations occur. able to take more enforcement actions when violations first occur. Taking timely action, in turn, will help to prevent violations from Taking timely action, in turn, will help to prevent violations from recurring or deteriorating into more serious problems. When violarecurring or deteriorating into more serious problems. When violations persist, enforcement can accelerate, and DOJ can be brought enforcement can accelerate, and DOJ cancomplex be brought tions in for persist, the most egregious violations that require more enin for the most egregious violations that require more complex enforcement actions. forcement actions. d. The Federal Government Wastes Resources by Impairing Citizen d. Enforcement The Federal Government Wastes Resources by Impairing Citizen Efforts Enforcement Efforts It is ironic that, although EPA and DOJ request additional enviIt is ironic that, although EPA and DOJ resources request additional environmental enforcement resources, existing are wasted by ronmental enforcement resources, existing resources are wasted by federal intervention in independent enforcement cases brought independent cases brought federalthe intervention under citizen suit in provisions of the enforcement various environmental laws, 18 7 under the citizen suit provisions of the various environmental such as section 505 of the Clean Water Act. In most cases,laws, this 187 In most cases, this Clean such as section 505 of the intervention is designed solely to Water object ACt. to the use of civil penalties penalties intervention is designed solely to objectefforts, to the use for local or regional pollution control andoftocivil divert these for local or regional pollution control efforts, and to divert these 184. 33 U.S.C. §§ 1319, 1342 (1988). 185. IV §§ Audit Report, supra note 180, at 5; Chesapeake Bay Audit Report, 184. Region 33 U.S.C. 1319, 1342 (1988). supra, 180 IV at 5.Audit Report, supra note 180, at 5; Chesapeake Bay Audit Report, 185. note Region 186. note See supra supra, 180 atnotes 5. 70-76 and accompanying text. 187. 33 U.S.C. § 1365 (1988). 186. See supra notes 70-76 and accompanying text. 187. 33 U.S.C. § 1365 (1988).

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funds into the federal treasury, rather than to assist in the prosecuitself. For example, DO] tion of the action itself. DOJ recently fought a proposed settlement of citizen suit claims against Unocal for pollution settlement of San Francisco Francisco Bay, under which civil penalties would be used to restore the affected environment, study additional pollution effects, 88 and improve state pollution emergency efforts. 1188 emergency response efforts. Congress provided these remedies to encourage encourage citizens to supplement Through the and state state enforcement enforcement efforts. efforts. Through the successful successful ment federal federal and prosecution of these cases by NRDC and other groups around the country, the federal federal government government should save considerable considerable resources that otherwise otherwise would be needed to produce equivalent is equivalent results. It is counterproductive discourage such citizen encounterproductive for EPA and DO] DOJ to discourage forcement. In 1987 Congress amended amended the Clean Water Act to al1987 Congress 8 9 The comment on proposed citizen suit settlements. settlements.'189 low DO] DOJ to comment purpose of this amendment ensure that citizen citizen enforcement enforcement purpose amendment was to ensure produces the proper results-that settlements settlements do not relieve relieve polproduces I90 0 But federal interluters of cleanup or corrective action duties.19 vention for the sole purpose of diverting civil penalties from efforts to the the legitimate local and regional cleanup or restoration efforts legitimate general does not serve this this purpose and may deter legitigeneral treasury treasury does not serve mate citizen enforcement. As shown above, this supplemental enforcement badly needed component of our overall environenvironenforcement is a badly mental enforcement enforcement strategy.

e. Improved Compliance Monitoring Improved Compliance Monitoringis Needed Additional enforcement enforcement resources are of limited value if EPA lacks the basic compliance information necessary to detect and to information necessary prosecute violations. In many cases, cases, EPA and state compliance compliance data prosecute 9 ' In some derive almost entirely from self-reporting self-reporting requirements. requirements.' 191 derive almost entirely 19 2 EPA cases, these data are infrequent otherwise inadequate. 192 infrequent or otherwise cases, should examine its available inspection, monitoring, monitoring, and labshould examine closely closely its available inspection, resources are oratory capabilities capabilities to additional resources what additional to determine determine what oratory 188. Sierra Club v. Union Oil Co., Nos. C 84-3435, C 86-6063 86-6063 (N.D. Cal. fiIed]une filed June 4, 188. Sierra 1984). 1984). 189. Water Quality Quality Act of 1987, §§ 504, Pub. L. No. 100-4, 101 Stat. 7, 75. 190. Of course, DO] intervene when necessary to protect protect legitimate federal interDOJ can intervene ests or bring its own enforcement Senate Report Report on the enforcement case when appropriate. The Senate 1987, however, balance between between avoiding avoiding dual enforceWater Quality Act Act of Water Quality of 1987, however, struck a balance ment actions and unnecessarily citizens suits. S. REP. No. 50, unnecessarily obstructing legitimate citizens 99th Cong., Ist 1st Sess. 28 (1985). (1985). 191. 191. 33 U.S.C. §§ 1318 1318 (1988). (1988). 192. inadequate monitoring to be a major cause of of 192. For example, the GAO found inadequate inadequate enforcement. GAO GAO REPORT RCEDinadequate Clean Water Act pretreatment pretreatment program enforcement. 89-101, supra note 46, at 39-40. 89-101, supra

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needed to support an increased overall enforcement effort. An inneeded support an of increased enforcement increase intothe number civil andoverall criminal inspectors effort. will be An meannumber of civil and criminal inspectors will be meancrease ingless inif the these personnel lack the information they need to detect if theseviolations. personnel lack the information they need to detect ingless and prosecute and prosecute violations. f Cross-ProgramEnforcement Would Be More Efficient fEPACross-Program Enforcement Would Be More Efficient enforcement programs are divided narrowly by statute or enEPA enforcement are divided narrowly by statute environmental media. programs In many cases, EPA personnel are lockedorinto In many cases,toEPA are locked into vironmental even smaller media. cubbyholes, assigned the personnel use of particular types of to the use of particular of even smaller actions cubbyholes, enforcement withinassigned a particular statutory program. types As a reenforcement actions statutory program. As a enresult, performance in within a givena particular region is measured by how many performance given pursuant region is to measured by how many ensult, forcement actions in area taken each distinct enforcement are by taken to eachare distinct enforcement forcement actionsthan program, rather howpursuant many facilities brought into com193 program, rather than by how many facilities are brought into compliance through an appropriate mix of enforcement strategies. 193 through an appropriate mix of enforcement strategies. pliance This division of labor, while perhaps making personnel proficient in This of labor, perhaps making proficient in their division respective areas while of responsibility, can personnel result in considerable their respective areas of responsibility, can result in considerable inefficiency. For example, RCRA inspectors may look for and detect For example, inspectors may look for and detect inefficiency. RCRA violations, but missRCRA obvious Clean Water Act problems that but miss obvious Clean Water Act problems RCRA violations, remain unaddressed or are addressed by a separate inspectionthat at remain unaddressed addressed by a separate at some later time. Orora are particular pollution problem inspection may be adsome later time. Or a particular pollution problem may be addressed through one enforcement mechanism because of the particdressed through one enforcement because of the particular EPA personnel involved, mechanism when a different strategy or ular EPA personnel involved, when a different strategy or combination of strategies would be more effective and more combination of strategies would be more effective and more efficient. efficient. This problem can be corrected by cross-training EPA personnel in This problem can be corrected by cross-training EPA personnel in various related programs, or by coordinating site inspections to invarious related programs, or by coordinating site inspections to include a team of EPA personnel schooled in different areas. Followteam of EPA personnel schooled in different areas. can Followclude ing thea inspection, investigators from the various programs then ing the inspection, investigators from the various programs can compare notes and ensure that the most effective, coordinatedthen encompare notes and ensure that Measuring the most effective, coordinated enforcement strategy is chosen. performance by overall by actions overall forcement is chosen. compliance strategy rates rather than by Measuring the numberperformance of enforcement rather than by the number of enforcement actions compliance rates taken would promote this cooperative approach. taken would promote this cooperative approach. g. Enforcement and Program Personnel g. Enforcement and Program Personnel Personnel who write regulations and permits often are isolated Personnel who write regulations often isare isolated from enforcement personnel becauseand of permits the way EPA organized. enforcement personnel because of the offices way EPA organized. from Regulations are written by EPA program in is Washington, are written by EPA program offices inlevel Washington, Regulations D.C. Enforcement is initiated largely at the regional with supthe regional level supD.C. Enforcement initiated largelyinatWashington. port from the Officeisof Enforcement This with structure port Officeofofunfortunate Enforcement in Washington. This structure leadsfrom to a the number results. Permits and regulations of unfortunate Permits and regulations leads a number are notto always written in a mannerresults. that maximizes enforcement or 4 Conversely, are not always19written in a manner that maximizes enforcement or enforceability. enforcement personnel are conenforceability. 194 with Conversely, personnel are concerned primarily complianceenforcement with the permits as written. Percerned primarily compliance permits as personnel written. Permit-writers receivewith little feedback with fromthe enforcement on enforcement personnel on mit-writers receive little feedback ways to strengthen the permits (orfrom to increase their enforceability). ways to strengthen the permits (or to increase their enforceability). 193. This problem is exacerbated by the sometimes confusing division of responsibility193. for environmental litigation withinbyDOJ. This problem is exacerbated the sometimes confusing division ofresponsibilAs just one example, if awithin discharger ity194. for environmental litigation DO]. files an administrative appeal of an NPDES permit, permit is effective (insulatingfiles theandischarger from enforcement 194. the As just oneitself example, if a discharger administrative appeal of an action), NPDES permit, the permit itself is effective (insulating the discharger from enforcement action),

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Efforts to involve enforcement personnel at both the regulatory Efforts to involve at both the regulatory and permitting stagesenforcement will increasepersonnel both enforcement efficiency and and permittingFor stages will increase enforcement efficiency and effectiveness. example, a recentboth GAO report found that EPA's effectiveness. For example, a recent GAO report that EPA's new sewage sludge management program may befound jeopardized unnew sludgeanmanagement program may be jeopardized unless itsewage coordinates effective enforcement program with the reguless it coordinates effective enforcement program theoutset, regulatory program. 195 anSuch coordination should occur with at the 195 Such and program. coordination should occur at the outset, latory already written. permits are not after the regulations not after the regulations and permits are already written. IV.

Possible Improvements on the Horizon

IV.

Possible Improvements on the Horizon

Three developments have the potential to improve sentencing Three have the potential improve sentencing and otherdevelopments aspects of environmental criminal to prosecution. The Poland other aspects of environmental criminal prosecution. TheofPollution Prosecution Act of 1990,196 passed in the waning days the lution Prosecution Act of 1990,196 passed in the waning days of the 101st Congress, will provide an important boost to EPA investigalOlstand Congress, provideThe an important boost to EPA tive training will resources. other two measures, the investigaproposed 9 7 and training resources. The other two measures, the proposed tive Environmental Crimes Act' and the proposed Sentencing Guide9 8 were 197 and the proposed Sentencing GuideEnvironmental Crimes Act lines for Organizations,' deferred largely due to political fac198 were deferred political lines tors, for butOrganizations, there is a good chance thatlargely eitherdue or toboth will facbe is a good chance that either or both will be tors, but there implemented in 1991. implemented in 1991. A. The Pollution ProsecutionAct A. The Pollution Prosecution Act Frustrated by the lack of sufficient criminal and civil enforcement Frustrated the on lackFebruary of sufficient and civil resources at by EPA, 26, criminal 1990, Senator Joeenforcement Lieberman resources at EPA, on February 26, 1990, Senator Joe Lieberman (Dem. Conn.) introduced S. 2176, the Pollution Prosecution Act of 9 This introduced S. 2176, the by Pollution Prosecution Act as of (Dem. 1990.' 9Conn.) Bill was signed into law President George Bush 1990. 199 This wastosigned into law PresidentRights GeorgetoBush as Title II of theBill Bill Transfer FishbyHatchery South 200 Title II of the Bill to Transfer Fish Hatchery Rights to South Carolina. 20o Carolina. The new law accomplishes four objectives. Section 202 increases new law objectives.forSection 202 increases theThe number of accomplishes EPA criminal four investigators each of five federal the number of EPA criminal investigators for 203 eachrequires of five EPA federal fiscal years beginning in FY 1991.201 Section to fiscal years beginning in FY 1991. 201 Section 203 requires EPA to but the provisions challenged are stayed. Thus, during the lengthy administrative proceeding, enforcement is impossible and deadlines can be C.F.R. § 124.16 but the provisions challenged are stayed. Thus, during themissed. lengthy 40 administrative pro(1990). Itenforcement is apparent that enforcement into the draftceeding, is impossible and personnel deadlines had can inadequate be missed. input 40 C.F.R. § 124.16 ing of this provision. (1990). It isstay apparent that enforcement personnel had inadequate input into the draftGAO, POLLUTION: SERIOUS PROBLEMS CONFRONT EMERGING MUNICIPAL ing195. of this stayWATER provision. SLUDGE MANAGEMENT PROGRAM GAO/RCED-90-57, 28-32 (1990). GAO MUNICIPAL based this 195. GAO, WATER POLLUTION: SERIOUS PROBLEMSatCONFRONT EMERGING conclusion on its evaluations of EPA's NPDES, pretreatment, other GAO programs under SLUDGE MANAGEMENT PROGRAM GAOIRCED-90-57, at 28-32and (1990). based this the Clean Water Id. at 28. conclusion on its Act. evaluations of EPA's NPDES, pretreatment, and other programs under Pub. L. No. 1990 U.S. CODE CONG. & ADMIN. NEWS (104 Stat.) 2954, the196. Clean Water Act.101-593, /d. at 28. 2962. 196. Pub. L. No. 101-593, 1990 U.S. CODE CONGo & ADMIN. NEWS (104 Stat.) 2954, 197. H.R. 3641, 101st Cong., 1st Sess. (1989). 2962. 198. H.R. 55 Fed. Reg.IOIst 46,600 (proposed Nov. 5, 1990). 197. 3641, Cong., 1st Sess. (1989). 199. 136Fed. CONG. REC. S1636 (daily ed.Nov. Feb.5,26,1990). 1990). The bill was co-sponsored by 198. 55 Reg. 46,600 (proposed Senators Lautenberg, Chafee, Jeffords and Wilson. 199. 136 CONGo REC. S1636Durenberger, (daily ed. Feb. 26, 1990). The bill was co-sponsored by 200. Pub. L. No. 101-593, U.S. CODE CONG. and & ADMIN. NEWS (104 Stat.) 2954, Senators Lautenberg, Chafee, 1990 Durenberger, Jeffords Wilson. 2962. 200. Pub. L. No. 101-593, 1990 U.S. CODE CONGo & ADMIN. NEWS (104 Stat.) 2954, 201. Id. § 202(a), 1990 U.S. CODE CONG. & ADMIN. NEWS (104 Stat.) at 2962 (to be 2962. codified at 42 U.S.C. 1990 § 4321 note). 201. [d. § 202(a), U.S. CODE CONGo & ADMIN. NEWS (104 Stat.) at 2962 (to be codified at 42 U.S.C. § 4321 note).

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hire fifty new civil investigators by no later than FY 1991.202 Section hire fifty newa civil by no later than FYInstitute 1991.202 toSection 204 creates new investigators National Enforcement Training "train Training Institute to "train 204 creates a new Enforcement Federal, State and National local lawyers, inspectors, civil and criminal invesFederal, and local experts lawyers,ininspectors, civil andof criminal investigators, State and technical the enforcement the Nation's in 205 the enforcement of the Nation's tigators, and technical environmental laws." 20 3experts Section creates an appropriation to environmental laws. "203 Section 205 creates an appropriation to efforts.204 these pay for 204 pay for thesesimple efforts. Although on the surface, this measure should increase subAlthough on the surface, this measure stantially thesimple level and quality of EPA criminal should (as wellincrease as civil)subenthe level and quality of EPA criminal (as well as civil)local enstantially forcement efforts and facilitate improved state and and facilitate improved state and local forcement efforts enforcement efforts as well. Clearly, a lack of adequate civil and enforcement efforts ashas well. Clearly, a lack of adequate civilprosand criminal investigators impaired EPA's efforts to detect and 2 05 criminal investigators has impaired EPA's efforts to detect and prosecute environmental violations. For example, currently EPA has 205 For example, currently EPA has ecutethan environmental less one criminalviolations. investigator per state-a woefully inadequate than one of criminal investigator state-a woefully inadequate less commitment resources to such a per large and growing problem, parcommitment of resources to such a large and growing problem, particularly given the amount of work necessary to bring a single crimithe amount of work necessary resolution. to bring a single crimiticularly given nal case or a complex civil case to successful Although it or awhether complexthe civil case to successful resolution. Although it nalnot case is clear increases in personnel specified in this Bill is not whether the increases in personnel in this Bill will beclear sufficient to support an adequate overallspecified EPA enforcement to support an adequate overall enforcement will be sufficient program, the increases provided by the Act are EPA certainly a major program, increases provided by the Act are certainly a majora step in thethe right direction, and if used effectively, should provide step in boost the right direction, and prosecution if used effectively, should provide a strong to environmental nationwide. strong boost to environmental prosecution nationwide. Further, hiring additional enforcement personnel will not necesFurther, hiring additional enforcement personnel will not necessarily be effective in improving environmental enforcement unless be effective in improving environmental enforcement unless sarily both existing and new personnel are adequately trained. Training is both existing andmatters new personnel aredetect adequately trained. Training is needed in such as how to and document violations, needed in suchproper matters as how to detect and document violations, how to ensure chains of custody of evidence, how to identify to ensure proper ofmake custody evidence, how inspection to identify how and use witnesses, andchains how to fullof use of available and and to makeand full other use ofevidence. available The inspection toolsuse andwitnesses, procedures forhow documents Polluand procedures for documents and other evidence. The PollutoolsProsecution tion Act addresses this need by creating a National Enneed by creating a National Ention Prosecution Act addresses forcement Training Institute. this Moreover, by providing training Moreover, by personnel, providing the training forcement resources toTraining state andInstitute. local, as well as federal, Instito state overall and local, as well as federal, personnel, thereduce Instiresources tute will improve enforcement efforts and hopefully tute will improve and hopefully the need for more overall federal enforcement enforcement efforts in the future. In manyreduce cases the more federal the future. In many cases stateneed and for local officials whoenforcement spend moreintime with a particular facilofficials who spend moretotime a particular facilstate ity areand in local a better position than EPA take with appropriate enforcein a better position than EPA to take appropriate enforceity areaction. ment ment Theaction. Act, however, falls short by addressing only EPA enforceTheresources Act, however, falls short by DOJ addressing only EPA ment and not addressing shortcomings. As enforcedemonment resources not addressing shortcomings. As demonstrated by the and statistics developed DO] in Part II of this article, the strated by the statistics Parthas II increased of this article, the number of EPA criminal developed referrals toinDOJ in recent number EPA criminal to DO] has in recent years, butofthe number of referrals DOJ prosecutions hasincreased leveled off. If this years, the number of DO] prosecutions hasreferrals, leveled off. this plateaubut is caused by poor quality of some EPA this If probquality of some EPA referrals, probplateau is caused by poorby lem should be addressed the increased number of EPAthis criminal lem should beand addressed by thequality increased numberdue of EPA investigators the improved of referrals to thecriminal effects and theinstitute. improvedMore quality of referrals duethis to the effects investigators of the new training likely, however, effect has of the new training institute. More likely, however, this effect has 202. 203. 202. 204. 203. 205. 204.

Id. § 203, 1990 U.S. CODE CONG. & ADMIN. NEWS Id. § 203, 204, 1990 U.S. CODE CODE CONGo CONG. & ADMIN. /d. ADMIN. NEWS NEWS Id. §§ 204, 205, 1990 U.S. CODE CONGo CONG. & & ADMIN. /d. U.S. CODE ADMIN. NEWS NEWS See supra and accompanying text.NEWS Id. § 205,notes 199065-69 U.S. CODE CONGo & ADMIN.

(104 Stat.) at 2963.

(104 Stat.) at 2963. (104 Stat.) at 2963. (104 Stat.) at 2963.

205. See supra notes 65-69 and accompanying text.

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been caused at least in part by limited DOJ resources. Unless this been caused at least inaspart bythe limited Unless this problem is addressed well, new DO] EPA resources. resources may be less problem is addressed well, the new resources may effective than intended.as In addition, as EPA discussed in Part III be of less this than intended. In addition, as discussed in improve Part III of this effectiveincreased EPA resources Article, are not sufficient to overall well. 20 6 overall made as are notare sufficient to improve Article, increased EPA resources other reforms unless enforcement EPA EPA enforcement unless other reforms are made as well. 206 B. The Environmental Crimes Act B. The Environmental Grimes Act In response to the Exxon Valdez oil spill and other environmental In response some to themembers Exxon Valdez oil spill and other environmental catastrophes, of Congress have expressed dismay Congress have expressed dismay catastrophes, some members over the inadequacy of criminalof penalties authorized by federal enviof criminal penalties authorized federal enviover the inadequacy ronmental laws to punish conduct causing major by environmental ronmental lawshave to punish conduct causing environmental tragedies and introduced legislation to major increase the number andofhave introduced legislation to criminal increase enforcement the number tragedies and potency arrows in the government's and potency of arrowsininNovember the government's criminal enforcement quiver. In particular, 1989, Representative Charles particular, November Charles quiver. In(Dem. Schumer N.Y.) inand George 1989, Gekas Representative (Rep. Pa.) introduced Schumerof (Dem. N.Y.) and Bill George Gekas (Rep. introduced House Representatives number 3641, the Pa.) Environmental House Act of Representatives Bill number the Environmental Crimes of 1989.207 In introducing the3641, Bill, Congressman SchuCrimes Act of 1989.207 In introducing the Bill, Congressman Schumer stated: mer stated: Progressive legislation has been enacted in the past twenty years to help protect and has preserve Progressive legislation been our enacted in the past environment. Buttwenty while tougher to standards help protect preserve our environment. while years haveand been established, the price for But failure to toughertostandards been as established, price be. for failure to adhere them hashave not been severe as ittheshould adhere to them has not been as severe as it should be.

Incidents resulting in serious damage to the environment continue to occur with to in [sic]serious great adamage regularity. Incidents resulting to the environment conOne of the incidents to [sic] great a regularity. One the incidents tinueoriginally to occur with that brought widespread attention to theofseriousness of the thatproblem originallyoccurred broughtat widespread attention to the seriousness of Love Canal. theAnd problem occurred at Love Canal.devastation when the Exxon we have all seen the tragic And we have all tragic devastation when the Exxon Valdez dumped overseen ten the million gallons of crude oil into Prince William Sound. None of us over ten million gallons crudeasoilthousands into Prince Valdez dumped will forget ourofhorror of dead fish, sea otters and None ofbirds us willwashed forget ashore our horror as thousands of William Sound. in toxic muck. The dead fish, sea ottersofand ashore and in toxic muck. The destructive effects thebirds spill washed on the Sound on the wildlife will be felt for destructive effects ofyears the spill on the Sound and on the wildlife many to come. felt for many disaster years to that come. will Anbeenvironmental causes death, serious bodily inAnorenvironmental that causes death, bodilylike injury grave damagedisaster to our environment ought serious to be treated any other jury or grave damage our environment ought to be treated major crimetoagainst society. The legislation I have like introduced... equates any other major crimethe against society.with The I have punishment thelegislation crime; it says thatinif troduced ... an equates theagainst punishment with thethe crime; it says that if you commit offense nature, and people who depend on it, you be held criminally you commit an will offense against nature, and the people who deaccountable for the extent 20 8 consequences. of theon pend it, you will be held criminally accountable for the extent of the consequences. 208

206. See supra Part III.F. 207. See supra 135 CONG. REc. H8350 (daily ed. Nov. 9, 1989). 206. Part III.F. 208. Hearing H.R.REC. 3641,H8350 Environmental Crimes 1989 Before the Subcomm. on Crimi207. See 135 on CONGo (daily ed. Nov.Act9,of1989). nal208. Justice of the House Comm. on Environmental theJudiciary, 101st 1st Sess. 2-3the(1990) [hereinafter Hearing on H.R. 3641, GrimesCong., Act of 1989 Before Subcomm. on GrimiCrimes Heaing] (statement Schumer). nalJustice ofthe House Gomm.of onRep. theJudiciary, lOlst Cong., 1st Sess. 2-3 (1990) [hereinafter Grimes Hearing] (statement of Rep. Schumer).

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1. 1.

Description of the Bill Description of the Bill The Environmental Crimes Act 20 9 seeks to accomplish several 209 types objectives. The Bill would create two enhanced several felony The Environmental Crimes Act seeksoftonew accomplish offenses forThe environmental crimes-both to fill gaps objectives. Bill would create two typesdesigned of new enhanced felony in federal authority made evident by the Exxon Valdez spill andgaps other offenses for environmental crimes-both designed to fill in cases. The first is made a new evident offense for "knowingly or recklessly federal authority by the Exxon Valdez spill andendanother 210 gering The life first or causing catastrophe." This endanprovicases. is a newenvironmental offense for "knowingly or recklessly sion would gering life orcreate causingsevere environmental This provipenalties catastrophe."210 for "whoever commits an environmental offensesevere and thereby knowingly or recklessly causesana penalties for "whoever commits sion would create risk of-(1) imminent death of a human being; (2) seriouscauses bodily environmental offense and thereby knowingly or recklessly a injury to a human being;death or (3)ofenvironmental catastrophe." This risk of-(1) imminent a human being; (2) serious21 1bodily offensetowould carry penalties up to thirty years in jail and a fine of a human being; or (3)ofenvironmental catastrophe."211 This injury $500,000 for individuals, andof a up finetoof up to $2,000,000 fora fine an oroffense would carry penalties thirty years in jail and of 2 1 2 A related provision, ganization.for would create $500,000 individuals, and a finesection of up 733, to $2,000,000 for aansimior212 A lar crime for committing an environmental and thereby related provision, section 733,offense would create a simiganization. negligently a risk of imminent death, serious bodily or lar crime causing for committing an environmental offense andinjury, thereby 2 13 Section environmental catastrophe. 733 serious would bodily carry maximum neglipently causing a risk of imminent death, injury, or 213 Section penalties of one year in jail and $125,000 for carry individuals, or envIronmental catastrophe. 733 would maximum 2 14 organizations. for fines $500,000 penalties of one year in jail and $125,000 for individuals, or The second of new felony 214 $500,000 finestype for organizations. is for "endangering life or causing 15 This environmental catastrophe by a course of illegal conduct." The second type of new felony is for "endangering life or2causing provision creates maximumby criminal penalties identical to those in catastrophe a course of illegal conduct."215 This environmental section (knowing or reckless for to"whoever provision731 creates maximum criminal endangerment) penalties identical those in knowingly in a course of illegal conduct and thereby causes section 731engages (knowing or reckless endangerment) for "whoever aknowingly risk of" engages imminentin death, serious bodily injuryand or thereby environmental a course of illegal conduct causes 2 1 6 A course of illegal conduct catastrophe. consists "2 or more a risk of" imminent death, serious bodily injury or of environmental environmental of which contributes risk" of catastrophe. 216 offenses, A courseeach of illegal conduct consists to of the "2 or more imminent death,offenses, serious bodily injury or contributes environmental environmental each of which to catastrophe, the risk" of but excludes multiple arising out of a "single discrete imminent death, serious offenses bodily injury or environmental catastrophe, 2 17 occurrence." but excludes multiple offenses arising out of a "single discrete occurrence."217 Perhaps the most innovative provision of the Bill, section 734, Perhaps the most innovative provision of the Bill, section 734, 209. The Bill was changed in several respects as it went through the Hearing and Committee process. For of clarity, thiswent analysis applies the Billand as 209. Thereview Bill was changed in purposes several respects as it through the to Hearing originally introduced reproduced in Crimes note 208 at 5-17. Committee review and process. For purposes ofHearing, clarity, supra this analysis applies to the Bill as 210. Id. at 6-7. The Bill proposedintoGrimes amend title 18supra to add sections to 735. The originally introduced and reproduced Hearing, note 208 at 731 5-17. following willBill refer to those numbers. 210. [d. discussion at 6-7. The proposed to section amend title 18 to add sections 731 to 735. The 211. H.R. 3461, 101st Cong., Ist Sess. § 731 (1989). An "environmental offense" following discussion will refer to those section numbers. means criminal violation of any of1st 23Sess. federal statutes listedAn in "environmental section 735(1) ofoffense" the bill. 211. aH.R. 3461, lOlst Cong., § 731 (1989). Id. § 735(1). "Serious bodily injury" definedstatutes as bodily injury that involves means a criminal violation of any of 23isfederal listed in section 735 (1) aofsubstanthe bill. tial §risk of death, unconsciousness, extreme physical pain, injury protracted and obvious disfig[d. 735(1). "Serious bodily injury" is defined as bodily that involves a substanurement, protracted loss or impairment of a bodily part or mental facility, reproductive tial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigor geneticprotracted damage, or increased risk of cancer or other chronic disorder. Id. § 735(4). urement, loss or impairment of a bodily part or mental facility, reproductive "Environmental catastrophe" includes a member of a threatened or or genetic damage, or increased risk ofdeath cancerororinjury othertochronic disorder. [d. § 735(4). endangered species; death or includes injury todeath specified percentages of other wildlife or or "Environmental catastrophe" or injury to a member of afish, threatened plant populations; or death significant disruption or alteration of habitat. Id. fish, § 735(5). endangered species; or injury to specified percentages of other wildlife or 212.populations; Id. § 731(b).or The penalties vary depending on the Appendix D plant significant disruption or alteration ofcircumstances. habitat. [d. § 735(5). compares precise The penalty schemevary in the Bill to existing penalties in individual envi212. /d. the § 731(b). penalties depending on the circumstances. Appendix D ronmental laws. compares the precise penalty scheme in the Bill to existing penalties in individual envi213. Id. § 733. ronmental laws. 214. Id. 213. /d. § 733. 215. Id. 214. Id. 216. Id. [d. § 732. 215. 217. Id. 732(b). 216. [d. §§ 732. 217. [d. § 732(b).

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would require in some cases, and authorize in others, the sentencing would require in some cases, and authorize in others, the sentencing court to impose mandatory probation on a convicted organizational court to impose mandatory probation on a convicted organizational as aa condition that probation that the the defendant, defendant, "and "and require require as condition of of that probation that organization pay for an environmental audit."218 The audit would 2 18 organization pay for an environmental audit." The audit would be conducted by an independent expert by the the court court and and be conducted by an independent expert appointed appointed by would identify the causes of, and recommend specific measures to would identify the causes of, and recommend specific measures to prevent a recurrence of, those problems. In addition, the audit prevent a recurrence of, those problems. In addition, the audit would identify and recommend measures to reduce or eliminate would identify and recommend measures to reduce or eliminate other types of pollution or other environmental effects caused by other types of pollution or other environmental effects caused by the organization; and in both cases suggest a specific schedule for the organization; and in both cases suggest a specific schedule for implementing recommendations. 219 The court is required to implementing those those recommendations.2 1 9 The court is required to order the defendant to implement those recommendations unless order the defendant to implement those recommendations unless the defendant can prove, by clear and convincing evidence, that the the defendant can prove, by clear and convincing evidence, that the recommendations not achieve the desired are impossible recommendations will will not achieve the desired effect, effect, are impossible to accomplish, or there is a less costly means to achieve the same to accomplish, or there is a less costly means to achieve the same objective. These provisions must be incorporated into any federal objective. These provisions must be incorporated into any federal or permit for for aa facility be enforced environmental license environmental license or permit facility and and can can be enforced by by 20 222o judicial sanctions. judicial sanctions. The passed out out of of the the Criminal Criminal The Environmental Environmental Crimes Crimes Act Act was was passed Justice Subcommittee of the HouseJudiciary Committee, in Justice Subcommittee of the House Judiciary Committee, in aa somesome221 The on March 29, 1990. Bill, however, was what weakened form, what weakened form, on March 29, 1990.221 The Bill, however, was never scheduled for full committee action during the 101st Connever scheduled for full committee action during the 101st Conand was introduced introduced in in the authors gress, gress, and no no similar similar bill bill was the Senate. Senate. The The authors hope that the original Bill, or a strengthened version of the Bill, is hope that the original Bill, or a strengthened version of the Bill, is introduced and enacted during the 102d Congress. The benefits introduced and enacted during the 102d Congress. The benefits of of the Bill it are are discussed in the the following following the Bill and and proposals proposals to to strengthen strengthen it discussed in sections. sections. 2. Benefits 2. Benefits of of the the Proposed Proposed Bill Bill The primary rationale for the Environmental Environmental Crimes Crimes Act, Act, as as The primary rationale for the in Part II of this Article, is that existing criminal sanctions, at shown shown in Part II of this Article, is that existing criminal sanctions, at least as applied, apparently have not resulted in significant improveleast as applied, apparently have not resulted in significant improvements in suffiments in environmental environmental compliance, compliance, and and thus thus have have not not served served suffitheir intended deterrent purpose. The Bill, however, is ciently ciently their intended deterrent purpose. The Bill, however, is supported by other arguments as well. supported by other arguments as well. a. Many Environmental Laws Have Inadequate and Inconsistent a. Many EnvironmentalLaws Have Inadequate and Inconsistent Criminal Sanctions Criminal Sanctions Most of the environmental laws involve Most of the the criminal criminal provisions provisions in in the environmental laws involve 218. [d. § 734(a). 218. Id. 734(a). (c). 219. [d. §§ 734(b), 219. Id734(b), (e). (c). 220. [d. §§ 734(d), 220. Id. § 734(d), (e). 221. Conversation with Dan Goldberg, Staff Member, Subcommittee on Criminal 221. Conversation Dan Goldberg, Member, on Criminal Justice, Committee onwith the Judiciary, UnitedStaff States House Subcommittee of Representatives Uan. 3, Justice, 1991). Committee on the Judiciary, United States House of Representatives (Jan. 3, 1991).

misdemeanors, misdemeanors, regardless regardless of the severity severity of of the conduct conduct or the pubpublic lic health health or environmental environmental consequences consequences of the violation. Some Some environmental environmental statutes have have been been amended amended recently recently to add add relatively strict For example, example, the Clean Water Water Act Act strict criminal criminal sanctions. For 1987 to add stricter was amended in 1987 stricter criminal criminal penalties penalties for violations was amended of the the Act that result in in "knowing "knowing endangerment" endangerment" of life or serious serious 2 22 Because criminal provisions provisions of other other environenvironbodily injury. injury.222 Because the criminal bodily mental reviewed piecemeal, piecemeal, however, this type of of mental laws typically typically are reviewed environmental lawspenalty penalty is not available available for violations violations of most environmental lawsviolations violations that can pose equally equally dangerous dangerous risks to human health and and the environment. environment. The Environmental Environmental Crimes Act would apply this principle other laws. laws. principle to these other specific penalties penalties provided provided for violations of various Similarly, the specific environmental are highly highly inconsistent inconsistent because because those laws environmental statutes are were different times by different different Congressional Congressional comwere developed developed at different 2233 Although these different appropriate mittees. different penalties penalties may be appropriate mittees.22 due due to the different different nature nature and severity severity of of violations independent independent of of actual threatenedharm, actual or threatened harm, when when the type and severity of of actual harm isis similar applicable penalties penalties should be similar similar as similar or identical, the applicable well. Thus, a person person who violates the Clean Air Act and thereby knowingly should bear the same type type knowingly causes death or serious injury should of penalty as a person who does so by violating violating the Clean Water Act. The proposed proposed Bill would accomplish accomplish that objective. b.

Existing Criminal CriminalPenalties PenaltiesDo Not Address Environmental Existing Environmental Catastrophes Catastrophes

Many Many existing existing criminal criminal penalties for violations of environmental environmental laws involve violations. The criminal penalties do not necesnecesinvolve per se violations. 224 When sarily reflect the actual harm caused by the violation. 224 stricter penalties are provided to address actual or threatened threatened harm invariably harm to caused by the violation, the harm involved is invariably human health (such as the risk of death or serious bodily injury). These added penalties penalties are entirely appropriate. They do not, howcaused catastrophic environmental environmental harm caused ever, address the type of catastrophic threaten by the Exxon Valdez oil spill and similar events that severely threaten endanger human health. environmental environmental quality but do not directly endanger at 1987, Pub. L. No. 100-4, § 312, 101 222. 222. Water Quality Act of 1987, 101 Stat. 7, 7, 43 (codified at 1319(c)(3) (1988». (1988)). A similar provision exists in Subchapter 33 U.S.C. § 1319(c)(3) Subchapter C of the Solid Solid Waste Disposal Act, for violations of provisions regarding the transportation, storage (1988). and disposal of hazardous wastes. 42 U.S.C. § 6928(d) (1988). 1319(c), of the Clean Water Act, 33 U.S.C. § 1319(c), example, although violations of 223. For example, of hazardous waste provisions of the Solid Waste Disposal Act allow up to 15 years of or hazardous other environmenimprisonment, 42 U.S.C. § 6928(d), equally dangerous violations of other considerably smaller penalties: maximum violation of pesticide laws-one tal laws bear considerably 136(l)(b)(1) (1988); maximum violation of Toxic Substances Control year, 7 U.S.C. § 136(I)(b)(l) year, (1988); maximum violation of Surface Surface Coal Coal Mining Mining Act-one year, 15 U.S.C. § 2615(b) (1988); Act-one Reclamation and Recovery Act-one year, 30 U.S.C. § 1268 (1988); maximum violation (1988). Currently, the maxiAct--one year, 33 U.S.C. § 1415(b) (1988). of Ocean Dumping Act-one mum violation of the Clean Air Act allows one year of imprisonment, 42 U.S.C. § 7413(c). supra to all of the examples of of weaker penalties cited supra This is the case with respect to 224. This note 223.

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Environmental crimes that that cause disrupEnvironmental crimes cause serious serious environmental environmental disruption warrant stricter environmental penalties from a purely tion warrant stricter environmental penalties from a purely ethical ethical protect not only perspective. Environmental laws designed to perspective. Environmental laws were were designed to protect not only human society, but also to protect the integrity of fish, wildlife human society, but also to protect the integrity of fish, wildlife and and other populations, populations, as whole ecosystems. Environmental other as well well as as whole ecosystems. The The Environmental criminal sanctions for those Crimes Act would provide provide appropriate Crimes Act would appropriate criminal sanctions for those or through a course of illegal who knowingly, recklessly, who knowingly, recklessly, or through a course of illegal conduct conduct cause destruction. cause such such environmental environmental destruction. Increasingly, however, we we are Increasingly, however, are also also realizing realizing that that catastrophic catastrophic the environment ultimately may result in efdamage to damage to the environment ultimately may result in devastating devastating efhuman beings as well. For example, severe damage to the fects to fects to human beings as well. For example, severe damage to the ozone layer ultimately doses to to ultimately may may increase ozone layer increase solar solar radiation radiation doses in increased incidence of cancer and birth dehumans, resulting resulting in increased incidence of cancer and birth dehumans, 225 laws designed to phase phase out fects. fects. 2 25 Corporations Corporations that that violate violate any any laws designed to out chloroflourocarbons (CFCs) or other ozone-depleting chemicals chloroflourocarbons (CFCs) or other ozone-depleting chemicals be prosecuted it is that could could be prosecuted under under this this Bill. Bill. Similarly, Similarly, it is predicted predicted that alteration of the concentrations of various atmospheric gases will alteration of the concentrations of various atmospheric gases will the global climate, possibly causing severe droughts seriously alter seriously alter the global climate, possibly causing severe droughts 226 and massive of populated populated coastal coastal areas. that and massive flooding flooding of areas. 226 Companies Companies that violate any measures enacted to combat the threat of global warmviolate any measures enacted to combat the threat of global warming could be covered In the the criminal criminal law law context, context, ing could be covered by by this this provision. provision. In it is difficult to link these phenomena directly with impacts however, however, it is difficult to link these phenomena directly with impacts on human health. This legislation would remedy the problem by on human health. This legislation would remedy the problem by providing increased penalties for environmental catastrophes withproviding increased penalties for environmental catastrophes without requiring out requiring direct direct evidence evidence of of damage damage to to humans. humans.

c.c. Existing Environmental Laws Do Not Address Patterns Patterns of Existing Environmental Laws Do Not Address of Conduct Conduct that Lead to Serious Consequences that Lead to Serious Consequences Most penalties involve involve discrete Most environmental environmental penalties discrete violations violations of of laws, laws, or permit conditions. These penalties are sufficient regulations, regulations, or permit conditions. These penalties are sufficient in in many cases, when when single single violations multiple, unrelated unrelated violations many cases, violations or or multiple, violations under individual occur. imposed under occur. Penalties Penalties imposed individual statutes statutes may may serve serve to to dedeter such conduct in the future. ter such conduct in the future. In however, such at Three Three Mile Island In some some cases, cases, however, such as as the the accident accident at Mile Island or the Exxon Valdez oil spill, extremely serious consequences resulted or the Exxon Valdez oil spill, extremely serious consequences resulted not from single illegal acts acts but but from of acts acts or omissions that not from single illegal from aa series series of or omissions that led to, caused, prevented adequate response to, or exacerbated led to, caused, prevented adequate response to, or exacerbated the the effects of an each of effects of an environmental environmental disaster. disaster. Individually, Individually, each of these these acts acts criminal sanctions, under the may not may not suffice suffice to to warrant warrant severe severe criminal sanctions, even even under the 225. THE RISKS OF TRACE GASES THAT CAN MODIFY THE STRATO225. EPA, EPA, ASSESSING ASSESSING THE RISKS OF TRACE GASES THAT CAN MODIFY THE STRATO(1987). SPHERE (1987). 226. EPA, THE POTENTIAL EFFECTS OF GLOBAL CLIMATE CHANGE ON THE UNITED 226. EPA, THE POTENTIAL EFFECTS OF GLOBAL CLIMATE CHANGE ON THE UNITED STATES (1988) (Draft Report to Congress). STATES (1988) (Draft Report to Congress). SPHERE

new "intentional or reckless" or "negligent" endangerment provi2 2 7 Taken new "intentional or reckless" or "negligent" endangerment provisions of this legislation. together, however, these events 227conduct sionsestablish of this legislation. Taken that together, however, these events may a pattern of causes serious consequences may establish a pattern of conduct that causes consequences warranting stricter criminal sanctions. Stricterserious penalties are approwarranting stricter criminal sanctions. Stricter penalties not only priate because of the serious consequences of are the approcourse priate not onlybut because of the serious consequences of the course of conduct, because repeated, even unrelated, violations of conduct, abutserious because repeated, unrelated, violations demonstrate disregard for even responsible environmental demonstrate compliance. a serious disregard for responsible environmental compliance. Although many hypothetical incidents could be devised, we need 22 8 The be devised, weThree need Although hypothetical only turn to many two real disasters toincidents illustratecould this point. only two real disasters to illustrate The Three Mile turn Islandto (TMI) nuclear accident resultedthis notpoint. from228 a single act or Mile Islandbut (TMI) accident from a singleto actrisk or omission, fromnuclear an entire series resulted of eventsnot that combined omission, but President's from an entire series of events that combined to risk disaster. The Commission established to investigate the disaster. The President's Commission established to investigate the accident concluded that deferred maintenance on reactor parts, improper plant accident concluded deferred maintenance on reactor imdesign,that inadequate personnel training, andparts, severely proper design,emergency inadequateresponse personnel training, and severely deficientplant operating procedures all led to a deficient operating emergency response procedures all led tore-a near-disaster and actual exposure of the public to unnecessary 22 9 Inexposure leases of radiation. near-disaster and actual public to unnecessary readdition, of thethe information' released by the 229 leases of federal radiation. In addition, the information' released the utility to and state agencies during the accident was ofby ques23 0 state utility to integrity. federal and agencies each during accident of questionable Individually, ofthe these eventswas might warof thesethey events might wartionable each rant someintegrity.23o enforcementIndividually, action. Taken together, amounted to a rant some Takenmuch together, amounted to a pattern of enforcement conduct that action. might justify morethey serious penalties. pattern of conduct thatValdez mightoil justify more serious penalties. Similarly, the Exxon spill much and resulting environmental Similarly, the Exxon Valdez oil spill and resulting environmental tragedy resulted not from a single act (although the actions of Captragedy resultedand not his from a single act (although of most Captain Hazelwood crew immediately prior tothe theactions accident tain Hazelwood andthe his spill) crew immediately prioroftoacts the and accident most proximately caused but from a series omissions proximately caused theand spill) but from a series of actsCorporation. and omissions on the part of Exxon Alyeska Pipeline Service A on the part Alyeskaabuse Pipeline Corporation. A captain with of a Exxon history and of alcohol was Service in charge of the vessel. alcohol abusewas wasmeasured in charge after of thethevessel. captainalcohol with a in history Blood excessofof legal limits acciBlood excess legal was to measured accident. Aalcohol Third in Mate whoof was notlimits qualified pilot theafter ship the in those dent. Third Mate who was not qualified to pilot contingency the ship in those waters Awas at the helm. An adequate, approved plan waters at prepared the helm.for Anthe adequate, approved contingency plan had notwas been vessel. Emergency response equiphad prepared or forwas theinvessel. Emergency response equipmentnot wasbeen not available disrepair. And Exxon had laid off 23 1 laid ment availableresponse or was inteam disrepair. Exxon had off much was of itsnot emergency beforeAnd the accident. Again, 231 to much its combination emergency response the accident. Again, it was of the of theseteam and before other events that led and it was the combination of these and other events that led to and exacerbated the Exxon Valdez tragedy, not individual events alone. exacerbated theconduct Exxon Valdez tragedy, not severe individual eventsthan alone. course of This warranted a more response the This conductthat warranted a more severe responseviolations than the sum course of the of penalties were imposed for individual sum ofthe theExxon penalties imposed for individual violations under Valdez that Plea were Agreement. under Exxoncourse Valdez of Plea Agreement. The the "illegal conduct" provision in the proposed bill 23 2 this nature. events of The provide "illegal acourse offor conduct" provision in the proposed bill remedy would would provide a remedy for events of this nature. 232 227. H.R. 3641, 101st Cong., 1st Sess. §§ 731, 733 (1989). 228. The of these is Sess. not intended to accuse any individuals of criminal 227. H.R.use 3641, lO1st examples Cong., 1st §§ 731, 733 (1989). conduct, butuse rather to illustrate how a course of conduct can to serious of these examples is not intended to accuse anylead individuals ofenvironcriminal 228. The mental conduct,consequences. but rather to illustrate how a course of conduct can lead to serious environ229. consequences. PRESIDENT'S COMM'N ON THE ACCIDENT AT THREE MILE ISLAND, THE NEED FOR mental CHANGE: THE LEGACY OF TMION27-56 (1979). 229. PRESIDENT'S COMM'N THE ACCIDENT AT THREE MILE ISLAND, THE NEED FOR 230. Id.THE at 57-58. CHANGE: LEGACY OF TMI 27-56 (1979). 231. See at supra note 9 and accompanying text. 230. /d. 57-58. 232. 3641, 101st Cong., 1st Sess. §text. 732 (1989). 231. H.R. See supra note 9 and accompanying 232. H.R. 3641, lOlst Cong., 1st Sess. § 732 (1989). 000

r-.--

L-np7o

i



d. Existing Penalties for Violations of Environmental Laws Do Not d. Always ExistingPromote Penalties for Violations of Environmental Laws Do Not Future Compliance Always Promote Future Compliance

Many environmental laws include criminal sanctions designed to Manyindividuals environmental laws include criminal sanctions designed reto punish and organizations who violate environmental punish individuals and organizations who violate environmental requirements. Although these sanctions may serve to deter serious quirements.in Although these sanctions maydo serve deter serious the future, penalties alone nottonecessarily do violations violations in the future, penalties alone do not necessarily do enough to promote responsible conduct when environmental comenough to promote responsible conduct when environmental compliance expertise is lacking, or when a company fails to take advanpliance expertise is lacking, or when a company fails to take advanexpertise. tage of this tage of this expertise. The proposed legislation addresses this problem direcdy and conThe proposed legislation this problem directly audits and conof structively by providing for addresses comprehensive environmental structively by providing for comprehensive environmental audits of 233 facilities owned by the violator.23 3 These audits are designed to facilities owned by the violator. These audits are designed to identify specific improvements in equipment and operating pracidentify specific improvements in equipment and operating practices that will prevent a recurrence of the events that led to the contices thatand will prevent a recurrence of the events that led to con234 other possible environmental problems as the wel1. viction, problems as well. 23 4 environmental possible other and viction, Environmental audits will not simply ensure compliance with exEnvironmental audits laws will and not simply ensure compliance with exregulations, which would duplicate isting environmental isting environmental laws and regulations, which would duplicate the functions of state and federal environmental agencies. Rather, the functions of state environmental on and waysfederal to promote additionalagencies. pollutionRather, reducaudits would focus audits would focus on ways to promote additional reducand recycling. tions, through techniques such as source reductionpollution tions, through techniques such as source reduction and recycling. This constructive provision can be viewed as a tool to "rehabiliThisrather constructive provision can be environmental viewed as a tool to "rehabilithan merely to punish, violators. It is tate," tate," rather than merely to punish, environmental violators. It is analogous to sentencing concepts for other types of crimes designed analogous sentencing future concepts for other types crimes designed behavior, such as of community service to promotetoresponsible to promote responsible future behavior, such as community service requirements, emergency room service by convicted drunk drivers requirements, emergency room service by convicted drunk drivers and social work duty by drug pushers. and social work duty by drug pushers. Moreover, the real victim of environmental crime is society as a Moreover, the real victim environmental is society as a require guiltycrime parties to compenwhole. Environmental auditsofwill whole. Environmental audits will require guilty parties to compensate the public for past environmental damage by reducing addisate the public for past environmental damage by reducing addiin the future. A "fine" that reduces tional environmental pollution pollution tional environmental in the future. A "fine" that reduces future environmental problems is more constructive and beneficial futurea environmental problems more beneficial than simple monetary penalty is paid intoconstructive the federal and treasury. than a simple monetary penalty paid into the federal treasury. 3. Suggested Improvements in the Bill 3. Suggested Improvements in the Bill Although we strongly support the concept of the Environmental Although weintroduced,235 strongly support and the the concept majorityof ofthe theEnvironmental specific proviCrimes Act as 2 35 and Crimes Act as introduced, the majority of the specific provistrengthen sions of the Bill, we have several suggestions that would sions of further. the Bill, we have several suggestions that would strengthen the Bill the Bill further. 233. ld. § 734. 233. Id § 734. 234. Encouraging environmental audits is fully consistent with EPA's new "pollution 234. Encouraging environmental is fully consistent with EPA's pollution. new "pollution prevention" policy, designed to find audits new ways to reduce environmental Polprevention" policy,Policy designed to find 54 new ways to reduce environmental pollution. Pollution Prevention Statement, Fed. Reg. 3845 (1989). lution PolicytheStatement, 54 Fed. Reg. 3845 (1989). 235. Prevention Unfortunately, Bill was weakened further during Subcommittee markup. We 235.that Unfortunately, the Bill was weakened during Subcommittee We hope the original version of the Bill, or afurther somewhat stronger version, markup. will be reinhope that during the original version of the Bill, or a somewhat stronger version, will be reintroduced the 102d Congress. troduced during the 102d Congress.

a.

Victims' Rights

a. Victims' Rights Federal law currently provides for the consideration of victims' Federal law of currently providesprocedure. for the consideration victims' the sentencing For offensesofinvolving rights as part rights as part of the sentencing procedure. For offenses involving fraud or other intentionally deceptive practices, the court may order 236order fraud or other intentionally deceptive may that reasonable notice be provided to practices, victims ofthe thecourt offense. For 23 6 For that reasonable noticeinjury be provided to victims of theinjury, offense. offenses that involve to property or bodily the court 237or offenses that injury to property bodily injury, as thepart court may order theinvolve payment of restitution. And of course, of 23 7 And of course, as part may order the payment of the sentencing process, of therestitution. court in determining its sentence and the probation sentencingofficer process, the court ainpresentencing determining its sentence and the in preparing report may conthe a presentencing report may considerprobation the actualofficer effectinofpreparing the violation on victims. 238 23 8 on victims. violation of the apply effectshould the actual sider Similar principles to the victims of environmental Similar principles should to water the victims of are environmental whoseapply ground supplies polluted or crimes such as persons crimes such as persons whose ground water supplies are or recreational fishermen who consume contaminated fish. polluted We thererecreational fishermen who consume contaminated fish. We therefore recommend the following provisions to ensure that the rights fore recommend the following provisions to ensure that the rights of victims of environmental crimes are adequately considered when of victims of crimes are adequately considered when areenvironmental imposed: sentences sentences imposed:officer should be instructed to consider, as (1) Theare probation (1) The probation officer should be instructed to consider, as part of the presentencing report, the magnitude of impact or potenpart of the presentencing report, the magnitude of impact or potential impact of the underlying offense on human health and the envitial impact In of making the underlying offense on human health and the ronment. this investigation, the officer should seekenvithe ronment. In making this investigation, the officer should seekprothe advice and expertise of qualified, independent environmental advice and and expertise of qualified, independent environmental professionals, the views of victims or representatives of victims, fessionals, and the views of victimsorganizations. or representatives of persons victims, environmental These such as reputable such asbereputable These persons should allowed toenvironmental identify issues organizations. or problems to be addressed in should be allowed to identify issuesunder or problems to be addressed in any environmental audit required section 734. any(2)environmental audit required under section 734. notice, by all The defendant should be ordered to provide (2) The defendant should be ordered to provide notice, all whobymay reasonable and available means, to all potential individuals reasonable and available means, to all potential individuals who may be harmed by the offense. For example, notice should be provided be individuals harmed by whose the offense. Forwater example, notice be provided to drinking supplies mayshould be affected by polto individuals water supplies mayusers be affected by poldefendant; or downstream (fishermen or lution caused whose by the drinking lution caused by the downstream that usersmay (fishermen or swimmers) should bedefendant; notified ofor contamination jeopardize swimmers) notified of contamination that may jeopardize their health.should Noticebecould involve posting of affected areas, newspatheirnotices, health. mailings Notice could involve neighborhoods, posting of affected per to affected or areas, similarnewspaapproper notices, priate means.mailings to affected neighborhoods, or similar appropriate When actual harm to individual health or property results (3) means. (3) the When actual to individual health or property results offense, theharm defendant should be required, in addition to from from offense, the defendant should be to required, in addition to other the penalties imposed, to pay restitution all victims, consistent other the penalties imposed, to payinrestitution victims, set forth 18 U.s.C.to§ all 3663. Forconsistent example, with principles with the principles setdrinking forth inwater 18 U.S.C. 3663. For example, or private supplies§ are contaminated bewhen public when public private drinking water should suppliesbeare contaminated beof the or violation, the defendant required to replace cause cause of thewith violation, the water defendant shouldallbeapplicable required to replace that supply drinking that meets federal or that supply with drinking water When that meets all injury applicable federal or state drinking water standards. bodily occurs, the destate drinking standards. When injury occurs, the debe required to pay all bodily necessary medical expenses, fendant shouldwater fendant should beand required pay all necessary expenses, of income, other to reparations. When medical testing is recomloss loss of income, andexperts other reparations. When testingorisextent recommended by qualified to determine the presence of mended by qualified experts to determine the presence or extent of 236. 237. 236. 238. 237. 238.

824 824

18 U.S.C. § 3555 (1988). /d. § 3663.§ 3555 (1988). 18 U.S.C. See id. §§ 3552, 3553, 3661. Id. § 3663. See id §§ 3552, 3553, 3661.

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harm (for example, chemical water or or toxicological toxicological examichemical testing testing of of water examiharm (for example, the defendant should be required to bear such nations), the costs costs of of such nations), the defendant should be required to bear the tests. tests. or other Violations other sentencing sentencing conditions conditions imposed imposed of probation probation or Violations of pursuant to these requirements should be independently actionable, pursuant to these requirements should be independently actionable, or grounds grounds for of probation. revocation or or amendment amendment of probation. or for revocation

b. Negligent Endangerment Endangerment b. Negligent There precedent for imposing criminal sancis well-established well-established precedent for imposing criminal sancThere is of environmental laws. For example, tions for negligent violation tions for negligent violation of environmental laws. For example, ofthe Clean Water Act provides provides for for criminal section 309(c)(l) criminal penalpenalthe Clean Water section 309(c) (1)of 239Act Section 733 of ties for negligent noncompliance. 23 9 the proposed proposed Section 733 of the ties for negligent noncompliance. environmental imposes criminal criminal sanctions negligently sanctions for for negligently environmental crime crime bill bill imposes endangering life or causing an environmental catastrophe catastrophe by by comcomendangering life or causing an environmental 240 an environmental offense. "Negligently" is defined mitting 240 in "Negligently" is defined in mitting an environmental offense. section to mean: section 735(3) 735(3) to mean: (A) that that aa person person is that aa circumstance circumstance exists exists is unaware unaware of of aa risk risk that (A) or a result will occur; and or a result will occur; and (B) the and degree to be such aa nature nature and degree that that to be unaware unaware of of (B) the risk risk is is of of such the risk constitutes a gross deviation from the standard of care the standard of care the risk constitutes a gross deviation from 241 that person would would exercise. exercise.2 4 1 reasonable person that aa reasonable

This definition, however, is too restrictive as applied to individuals This definition, however, is too restrictive as applied to individuals or organizations engaged commercial or or industrial industrial activity. Given activity. Given or organizations engaged in in commercial the growing, highly sophisticated understanding of environmental the growing, highly sophisticated understanding of environmental threats should be be held held to to aa high high in recent recent years, years, these these individuals individuals should threats in standard of care in preventing human health and environmental standard of care in preventing human health and environmental standard of of care care as requires aa "gross harm. Yet "gross deviadeviathe standard as drafted drafted requires harm. Yet the the standard of care that a reasonable person tion from exerwould exertion from the standard of care that a reasonable person would In fact, because of of the the use use of "gross deviation," deviation," this cise." of "gross this cise." In fact, because extremely similar to the the definition definition of definition is extremely We of "recklessly.~'242 "recklessly.' 242 We similar to definition is recommend that that the the word word "gross" from this this definition. definition. "gross" be be deleted deleted from recommend

c.c. Standard Standard for for Course Illegal Conduct Course of of Illegal Conduct Section provides sanctions sanctions for endangering life or life or which provides for endangering Section 732, 732, which 2 43 causing environmental catastrophe by a course of illegal conduct,243 causing environmental catastrophe by a course of illegal conduct, person or engage in in aa course requires that course requires that aa person or organization organization "knowingly "knowingly engage 239. 33 U.S.C. § 1319(c)(l) (1988). 239. 33 U.S.C. 1319(c)(1) 240. H.R. 3641,§ lOlst Cong.,(1988). 1st Sess. § 733 (1989). 240. 3641, 101st Cong., Ist Sess. § 733 (1989). 241. H.R. Id. § 735(3). 241. Id. § 735(3). 242. "Recklessly" requires that the person be aware of and disregard the risk, and andthat disregard the risk, and "Recklessly" that from the person be aware 242.there be a "grossrequires deviation" the standard of of care a reasonable person that deviation" from the standard of care that a reasonable person that there be a "gross would exercise. Id. § 735(2). "Negligently" requires that the person be unaware of a would exercise. Id. § 735(2). "Negligently" requires that the person be unaware of a risk, and that this lack of awareness constitutes a "gross deviation." !d. § 735(3). risk, this lack of awareness constitutes a "gross deviation." Id. § 735(3). 243.andId.that § 732. 243. Id. § 732.

conduct is not performed "knowingly." Rather, the course of conduct may result from a general disregard for proper environmental laws or regulations, which, in combination, lead to or exacerbate the event. A "knowingly" standard is therefore inappropriate for this '2 44 In the majority of cases in which environof illegal conduct.We type of violation. recommend that the term "knowingly" be dementalfrom catastrophes are caused by an illegal of conduct, leted the definition. Alternatively, the course standard should besuch reconduct is not performed "knowingly." Rather, the course of convised to "knowingly, recklessly, or negligently." duct may result from a general disregard for proper environmental laws regulations, which, in combination, lead to or exacerbate the d. or Definition of "Environmental Catastrophe" event. A "knowingly" standard is therefore inappropriate for this Section 735(5) of proposed that bill defines environmental catype of violation. Wethe recommend the terman"knowingly" be detastrophe. This definition includes destruction. or alteration of leted from the definition. Alternatively, the standard should be rehabitat, as well as death or injury to species of fish, plants and wildvised to "knowingly, recklessly, or negligently." life. With respect to species, section 735(5)(B) states that an environmental catastrophe means "death or injury to 20 percent or d. Definition of "Environmental Catastrophe" more of the known population of any species of fish, wildlife, or Section 735(5) of the proposed bill In defines an environmental caplant within a defined ecosystem."245 addition, section 735(5)(C) tastrophe. This definition includesofdestruction or alteration of defines "death or injury to 5 percent the known population of any habitat, of as fish, well wildlife, as death or or plant injurywithin to species of fish,States plantsor and species the United thewildwalife. of With species, as 246 section 735(5)(B) states that an enviters therespect Unitedto States" an environmental catastrophe. ronmental catastrophe means "death or injury to 20 percent or These two subsections are problematic because it is difficult to idenmore of the known population of any species of fish, wildlife, or tify precise percentages of death ' 24 or5 injury to many species in the plant within a defined ecosystem. In addition, section 735(5)(C) wake of an environmental catastrophe, although reasonable sciendefines "death may or injury to 5 percent of the known population 247 We of any be possible. recommend that the words tific estimates species of fish, wildlife, or plant within the United States or the wa"as determined by reliable scientific measurements or estimates," 2 46 catastrophe. environmental an as States" United the of ters be added after the words "death or injury" in sections 735(5)(B) These two subsections are problematic because it is difficult to idenand (C). tifyInprecise percentages of death or injury to many in tothea addition, defining environmental catastrophe by species reference wake of an environmental catastrophe, although reasonable scienprecise percentage of any given 2species fraught with uncertainties, 47 We isrecommend tific estimates may be possible. that the words some species have ascientific greater inherent capacity than others because "as determined by reliable or estimates," to recover from severe disturbance. measurements Although we agree that prebe added after the words "death or injury" in sections 735(5)(B) sumptive values should be included in the bill, we recommend that and following (C). the language be added at the end of sections 735(5)(B) In (C) addition, defining environmental catastrophe by species: reference"or to aa and to ensure protection of particularly sensitive precise percentage of any given species is fraught with uncertainties, lower percentage if reliable scientific evidence indicates that such because some species have aingreater than others lower percentage will result seriousinherent damage capacity to the species, or to to recover from severe disturbance. Although we agree the population of the species within a defined ecosystem."that presumptive values should be included in the bill, we recommend that the language 244.following /d. (emphasis added). be added at the end of sections 735(5)(B) 245.(C) /d. to § 735(5)(B). and ensure protection of particularly sensitive species: "or a 246. /d. § 735(5)(C). if reliable scientific evidence indicates that such lower percentage 247. For example, experts estimate that only a small fraction of the carcasses of birds lower percentage result serious damage to the species, STATE/ or to and other species killedwill by the ExxoninValdez oil spill actually will be recovered. FEDERAL NATURAL RESOURCE DAMAGE within ASSESSMENT PLAN FORecosystem." THE EXXON VALDEZ OIL the population of the species a defined SPILL

(August 1989 Public Review Draft).

244. Id. (emphasis added). 245. Id. § 735(5)(B). 246. Id. § 735(5)(C). 247. For example, experts estimate that only a small fraction of the carcasses of birds and other species killed by the Exxon Valdez oil spill actually will be recovered. STATE/ FEDERAL NATURAL RESOURCE DAMAGE ASSESSMENT PLAN FOR THE EXXON VALDEZ OIL SPILL

(August 1989 Public Review Draft).

Adler/Lord

Adler/Lord



e. Definition of "Environmental Offense"

e.TheDefinition ofof "Environmental Offense" definition "environmental offense" 24 8 includes only criminalThe violations of of the"environmental listed statutes. offense"248 This definition should definition includes only be crimiexpanded to include of the listed statutes. This definition should be exnal violations intentional civil violations of these statutes. panded to include intentional civil violations these statutes. All three of the new environmental crimesof created by this Bill include special factors that warrant criminal of the new environmental crimes created by this Bill inAll three sanctions-knowing, reckless, or negligent that warrant criminal sanctions-knowing, clude special factors endangerment, or an illegal pattern of conduct, andor a resulting of imminent or reckless, negligentrisk endangerment, an illegal conhuman death,pattern seriousofbodily injury, or aenvironmental liability to criminal resulting risk catastrophe. of imminent Limiting human death, serious bodily duct, and or environmental Limiting liability to criminal injury, violations would seriouslycatastrophe. restrict the usefulness of the statute. theconduct usefulness of the in statute. violations wouldthe seriously For example, illegal restrict course of provision House of Representatives Bill Number 3641 is designed to address patterns For example, the illegal course of conduct provision in House of of conduct that are serious individually, buttothat Representatives Bill not Number 3641 is designed address causepatterns serious consequences of conduct thattaken are not seriousBecause individually, but course that cause serious together. it is the of conduct it is the course of conduct consequences taken together. Because that justifies more serious penalties, the fact that many of the underlying offenses areserious civil rather thanthe criminal does not that justifies more penalties, fact thatviolations many of the underchangeoffenses the rationale forrather criminal sanctions, the lying are civil than criminalparticularly violations when does not civil violations are intentional. Similarly, change the rationale for criminal sanctions, the whenparticularly a person orwhen corporacivil violations are intentional. Similarly, when a person or corporation knowingly commits civil violations and thereby knowingly, recklessly, or negligently risks death,knowingly, serious bodily and thereby recktion knowingly commits civilimminent violationshuman harm, or catastrophe, sanctions are equally or environmental negligently risks imminent criminal human death, serious bodily lessly, justified. harm, or environmental catastrophe, criminal sanctions are equally justified. C. Sentencing Guidelinesfor Organizations C. AsSentencing for new Organizations discussedGuidelines in Part III, federal sentencing guidelines for inAs discussed in Part III,had new federal sentencing for the individual defendants have some beneficial effectguidelines in increasing magnitude and consistency sentences given to individuals found beneficial effect in increasing the dividual defendants have hadofsome 24 9 Thesegiven guilty of environmental crimes. magnitude and consistency of sentences to individuals found guidelines, however, do of environmental crimes. These guidelines, however, do guilty not address corporate and other249 organizational defendants. not address corporate and other organizational defendants. 1. Description of Proposed OrganizationalGuidelines 1. Description of Proposedstudy Organizational Guidelinessentencing in the Following a three-year of organizational Following organizational sentencing in the federal courts,a three-year the United study Statesof Sentencing Commission proposed to fill this gap inthe federal courts, United Sentencing Commission proposed July 1988, States when the Commission distributed a pub25 0a public discussion organizational sentencing guidelines. Two to fill this gap draft in]ulyof1988, when the Commission distributed 25o Two lic discussion draft of organizational sentencing guidelines. versions of Preliminary Draft Sentencing Guidelines for Organiza1989.251 in November commentGuidelines public proposed for tions were versions of Preliminary Draft Sentencing for OrganizaAmid allegationsfor that the proposed were going to public commentGuidelines in November 1989.251 tions public were proposed Amid public allegations that the proposed Guidelines were going to 248. H.R. 3641, 101st Cong., 1st Sess. § 735(1) (1989). 249. Individual however, still§lag considerably 248. H.R. 3641,sentences, lOlst Cong., 1st Sess. 735(1) (1989). behind maximum statutory penalties and are not yet sufficiently high achieve their intended See 249. Individual sentences, however, stilItolag considerably behind deterrent maximumeffect. statutory supra Part and III.D.2. penalties are not yet sufficiently high to achieve their intended deterrent effect. See 250.Part SeeIII.D.2. 54 Fed. Reg. 47,056 (1989) (discussing background of proposed amendsupra ments). 250. See 54 Fed. Reg. 47,056 (1989) (discussing background of proposed amend251. Id. ments). 251. !d.

19911

be weakened due to intensive industry lobbying pressure, the Combe weakened due toaintensive lobbying pressure, thevacanCommission postponed decision industry on the Guidelines until three postponed a decision the Guidelines three vacanmission cies on the Commission were on filled. The Justiceuntil Department and on theHouse Commission were filled. to The Justiceeither Department and ciesWhite the reportedly hesitated endorse draft propothe after Whitebusiness House reportedly hesitated to endorse draft propo2 both. 25either against leaders testified sal 252 salRevised after business leaders testified against both. proposed organizational guidelines were published in the Revised proposed guidelines were in the Federal Register on organizational November 5, 1990,253 with anpublished announcement Federal on November 1990,253 guidelines with an announcement that the Register Commission may report5,proposed to Congress that Commission may report guidelines to Congress on orthe before May 1, 1991.254 Theproposed Federal Register Notice actually 254 The Federal on or before Mayseparate 1, 1991.proposals. Register NoticeCommisactually includes several First, the Sentencing separate proposals. First,options the Sentencing includes severalitself sion's proposal includes alternative for severalCommisaspects 2 55 proposal itself includes alternative options severalGeneral aspects sion's of the proposal. Second, at the request of for Attorney of the proposal.255 Second, at the request of Attorney General Richard Thornburgh, who is an ex-officio member of the Sentencing Thornburgh, whoalso is an ex-officio member draft of theof Sentencing Richard Commission, the Notice includes a separate organiza2 5 6 a separate draft of organizathe Notice also includes Commission, tional guidelines proposed by DOJ. Parties were invited to comproposed DOJ.256 Parties were invited to comtional on guidelines ment all aspects of thesebyproposals. ment on all aspects of these proposals. a. The .Sentencing Commission Proposals a. The §entencing Commission Proposals The Sentencing Commission proposals direct the court to calcuThe Sentencing proposals the court to calculate a fine based onCommission the greater of the grossdirect pecuniary loss caused by thegross greater of the gross by late aviolation, fine basedoronthe the pecuniary gainpecuniary achieved loss by caused the viola25 7 The proposed the violation, or the gross pecuniary achieved by the violation. formulas includegain three basic alternatives for 257 The proposed formulas include three basic alternatives for tion. recommended fines absent mitigating factors. Alternative A (Upper recommended mitigating factors. A (Upper Bound Offensefines Levelabsent Amounts) sets base finesAlternative at $5,000 for singleBound Offense Level Amounts) sets base fines at $5,000 for singlecount violations for Offense Levels 4 or less, to $165,000,000 for count Levelsthis 4 or less, to a$165,000,000 for Offenseviolations Levels 40for or Offense more. Under proposal, court is required 40 or more. Under this a court Offense Levels to impose the statutory maximum fine proposal, for offense levelsis4,required 16 and 258 to impose the statutory maximum fine for offense levels 4, 16 and 38, absent mitigating factors. Alternative B (Lower Bound Of38, absent factors. 258 (Lower Bound Offense Level mitigating Amounts) ranges fromAlternative $3,300 for Bsingle-count offenses fense Level Levels Amounts) $3,300 for offenses for Offense 4 orranges less to from $60,000,000 for single-count Offense Levels 40 or for Offense Levels or less to a$60,000,000 for Offense Levels or more. Under this 4approach, court is also authorized to levy40the more. Under this approach, a court is also authorized to levymitithe maximum statutory fine at offense levels 4, 16 and 38, absent 2 59 Alternative maximum statutory fine at offense levels 4,Offense 16 and Level 38, absent mitigating factors. C (Average Amounts) 259 Alternative C from (Average Offense ALevel Amounts) gating factors. averages (and rounds off) values Alternatives and B, ranging rounds off) values A and B, ranging averages (andfor from $4,150 Offense Levels from 4 andAlternatives below to $115,000,000 for 2 60 from $4,150 Levels 4 and below to $115,000,000 for or above. Levelsfor40Offense Offense 26o Offense Levels or above. For each of 40 these alternatives, minimum and maximum fines For be each of these minimum andonmaximum fines would calculated by alternatives, applying multipliers based the application be calculated applyingHere multipliers on the application would of various mitigatingbyfactors. too, thebased Commission sets forth of various mitigating factors. Here too, the Commission sets forth 252. N.Y. Times, Apr. 29, 1990, at 23, col. 1. 253. Reg.Apr. 46,600. 252. 55 N.Y.Fed. Times, 29, 1990, at 23, col. 1. 254. at 46,600-01. 253. Id. 55 Fed. Reg. 46,600. 255. Id. at 46,600-01. 46,601. 254. /d. 256. Id. at 46,601. 255. /d. 257. Under the proposal, pecuniary gain is counted only if it has not been or other256. /d. wise not bethe disgorged orpecuniary taken from theisdefendant; and ifpecuniary will 257.willUnder proposal, gain counted only it has notgain beenororloss othernot be used calculation wouldfrom unduly the gain sentencing wise will notifbe"the disgorged or taken the complicate defendant; or andprolong pecuniary or lossprowill cess." Id. at if46,604. not be used "the calculation would unduly complicate or prolong the sentencing pro258. [d. Id.atat46,604. 46,603. cess." 259. 258. Id. /d. at 46,603. 260. Id. 259. /d. at 46,603-04. 260. /d. at 46,603-04.

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two alternative proposals. In the first option, multipliers range from 0.15alternative to 2.0 to calculate two proposals.theInminimum the first option, multipliers range from fine, and from 0.25 to 3.0 to 26 1 In calculate fine.minimum 0.15 to 2.0theto maximum calculate the fine, and from 0.25 to 3.0 to the second option, multipliers 261 to range from to 2.0 and calculate the0.35 maximum fine.0.55 In 3.0 thefor second option, minimum andmultipliers maximum 2 Mitigating fines, respectively. factors range from 0.35 to262.0 and 0.55 to 3.0 for minimum and maximum include voluntary reporting of therespectively.262 offense, programs to detectfactors Mitigating includeviolations, voluntary reporting fines, and prevent degree of knowledge by programs corporate to management, of the offense, detect and prevent degree of degree violations, of cooperation with the government investigation, and steps knowledge by corporate management, degree of cooperation taken to remedy with the 2 63 Within harm.government the range calculated the investigation, and using steps this taken to remedy the formula, a sentence should263beWithin determined aftercalculated considering such harm. the range using thisfactors formula, sentence as athe nature and circumstances of the offense, the defendants' should be determined after considering such factors as the history, thenature severity of the offense, of thethe punitive value of the fine, history, and circumstances offense, the defendants' the severthe deterrence of future offenses, need for protection ity of the offense,thethe punitive value of the fine,public, the deterrence of of the and the in4 to pay.2 of offender of the ability the come and future offenses, need for protection the public, and the income ability of the offender Theand proposed guidelines also to setpay.264 forth various grounds for upward downwardguidelines departures Theorproposed also set the forth various groundsbased for upfrom formula penalties on a list or of additional or mitigating factors, downward aggravating departures from the formula penalties based on ward if such factors 26 5 were otherwise aggravating taken into account in the formula a list not of additional or mitigating factors, if such factors calculation. 265 Notably, not however, othenviseno taken into account in the calculation.dewere guidance is provided as formula to the appropriate gree of departure Notably, however,justified no guidance is provided to the deby these factors. asOne of appropriate the aggravating factors gree ofisdeparture by these factors. One of the aggravating "Threat justified to the Environment": "Threat to the Environment": factors is offense If the presented a threat to the environment of a kind, or to a degree, not adequately takentointo by the If the offense presented a threat the account environment ofapplicable a kind, or offense guideline, an upward from the applicable to a degree, not adequately takendeparture into account by the applicable 266 warranted. range mayanbe upward guideline offense guideline, departure from the applicable 266 be warranted. guideline range may Another departure factor of particular relevance to environmental 7 Injury. to' 26environmental Bodily "Risk of Death crimes is departure Another factororofSerious particular relevance of Death Serious Bodily Injury."267 crimes is "Risk A final portion of the or Commission proposal of particular relevance to environmental is "Partproposal D - Organizational ProbaA final portion of thecrimes Commission of particular rele8 tion." 26to This section would require a court to order probation environmental crimes is "Part D - Organizational Probavance to (1) imposeThis restitution, a remedial order, or community tion."268 section would require a court to order probation to service; (2) to the defendants' abilityorder, (1)safeguard impose restitution, a remedial or payments community service; (2) to make on a deferred fine; or (3) "tothe ensure that changes to safeguard defendants' abilityare to make a deferred made payments within theon organization ' 26 9 The to reduce ofchanges future criminal conduct. fine; or (3)the "tolikelihood ensure that are made within the organization last of these threethe reasons for probation is reminiscent to reduce likelihood of future criminal conduct."269 last of of the The mandatory environmental auditforprovision these three reasons probationofis the reminiscent the mandatory proposedof Environmental environmental audit provision of the proposed Environmental 261. 262. 261. 263. 262. 264. 263. 265. 264. 266. 265. 267. 266. 268. 267. 269. 268. 269.

1991]

Id. at 46,604. Id. Id. at at 46,606. 46,604. Id. Id. at 46,606. Id. /d. at 46,606-07. Id. /d. at at 46,607. 46,606-07. Id. Id. at at 46,608. 46,607. It Id. at 46,608. Id. Id. at 46,609. lId Id. at 46,609. Id.

829

Crimes Act discussed above.2 70 Crimes Act discussed above. 27o b. The DOJ Proposal b. The DO} Proposal DOJ's proposed guidelines adopt a somewhat simpler approach. proposed guidelines adopt aa range somewhat simplerfor approach. A DOl's single table is supplied providing of penalties offense penalties for offense A single table is supplied providing a range ofat levels 1 through 27, with the range beginning $250-500 for level with the rangetobeginning at $250-500 for level levels 1 through 27, 1 and increasing to $100,000,000 $204,000,000 for offense to $100,000,000 to $204,000,000 forincrease offense level 1 and increasing 27.271 Higher offense levels are increased by the same used 271 Higher offense levels are increased by the same increase used 27. between levels 26 and 27.272 Aggravating or mitigating factors can between levels 27. 272 or adding mitigating factors can be used to raise26orand lower the Aggravating fine, by simply or subtracting 2 73 For be used levels to raise lower the fine,DOJ by simply adding or subtracting offense as or specified in the proposal. example, if 273 For example, if in the DO] proposa1. offense levels as specified high-level management aided or abetted, knowingly encouraged, or high-level aided or abetted, knowingly encouraged, or condoned management the offense, two offense levels are added. If the organization promptly condoned the offense, two offense offensewithout levels are organizareports the theadded. threat If ofthe government reports theisoffense without the threat of government tion promptly action, one offense level subtracted. action, one offense subtracted. The DOJ proposallevel alsoisadopts a different approach to the loss or Theconcept DO] proposal also by adopts a differentFine approach to the lossAct. or gain introduced the Criminal Improvements Instead of using pecuniarybygain gain concept introduced the or Criminal Improvements Act. loss as Fine an alternative to the fines Instead usingthe pecuniary loss or as loss an alternative assessedofusing formula,gain anyorgain is added to to the the fines fine 274 the formula. formula, any gain or loss is added to the fine assessed using theunder ranges calculated ranges calculated under the formula. 274 2. The Need for OrganizationalSentencing Guidelines 2. The Need for Organizational Sentencing Guidelines Regardless of the merits of the individual proposals, it is clear that Regardless the merits guidelines of the individual proposals, is clear that some uniform of sentencing are needed for it organizations some uniform sentencing guidelines areshown needed for organizations convicted of environmental crimes. As in Parts II and III of ofpast environmental crimes. As shownefforts in Parts II and of convicted this Article, environmental enforcement have not III been sufficient to past deter this Article, environmental enforcement efforts have not been significant noncompliance with environmental sufficient to deter significant noncompliance with statutes. Moreover, our statistical analysis proves thatenvironmental past environourbeen statistical proves thata past environstatutes.sentences Moreover, mental have far tooanalysis weak, evidencing reluctance to treat far too weak, criminals evidencingwith a reluctance to mental"white sentences have been collar" environmental sufficient treat "white collar" environmental criminals with sufficient stringency. stringency. Environmental crimes in particular warrant strict, consistent senin particular warrant strict, consistent senEnvironmental tencing guidelinescrimes for several other reasons. tencing guidelines for several other reasons. a. Consistent Criminal Sanctions Will Prevent Corporationsfrom a. Shopping Consistentfor Criminal Sanctions Will Prevent Corporations from "Pollution Havens" Shopping for "Pollution Havens" The same principles of equity that justify both individual and orThe same sentencing principles of equity that and organizational guidelines forjustify other both types individual of crimes apply as well to environmental of crimes apply as ganizational sentencing crimes. guidelines for other types Individuals and organizations that to in environmental crimes. Individuals and organizations that well engage similar environmentally harmful conduct should be subengage in similar environmentally harmful conduct should be subject to similar sanctions. ject to history similar of sanctions. The federal environmental laws, however, evidences an Themore history of federalargument environmental laws, however, evidences an even compelling for such uniformity. Many of our even more compelling argument for such uniformity. Many of our 270. 271. 270. 272. 271. 273. 272. 274. 273. 274.

830

See supra notes 233-34 and accompanying text. 55 Fed. (proposed Nov. 5,text. 1990). See supra Reg. notes46,603-04 233-34 and accompanying Id. Fed. at 46,612. 55 Reg. 46,603-04 (proposed Nov. 5, 1990). Id. at 46,612. /d. Id. /d. /d.

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environmental control statutes, such as the Clean Air Act and the environmental control such as thetoClean Air corporations Act and the Clean Water Act, were statutes, passed specifically prevent Clean Water Act, specifically to prevent corporations from shopping for were thosepassed states with the weakest environmental laws 2 75 those shopping for states with the states, weakestcompanies environmental from and regulations. By locating in these wouldlaws oband By locatingadvantage. in these states, companies would obtain regulations. a significant275competitive Conversely, many states tain a shortsighted significant competitive Conversely, many states made decisions toadvantage. bid for growth by weakening envimade shortsighted decisions bid for growth by the weakening ronmental standards, with theto unfortunate price of bid beingenvithe ronmental with unfortunate price thequality bid being health andstandards, welfare of thethestate's citizens, or ofthe of the its health and welfare of the state's citizens, or the quality of jts environment. environment. Obviously, Congress cannot want this goal of uniform national of uniform national Obviously, Congress want this goal environmental standards'cannot to be jeopardized by inconsistent criminal by inconsistent environmental to be jeopardized enforcement in standards federal judicial districts around the country.criminal Inconin federal judicial districts aroundeffect the country. Inconenforcement sistent criminal sanctions can have a similar of encouraging encouraging sistent criminal sanctions can have similar effect of corporations to locate in those areasa with relatively weak penalties, in those areas relatively weak corporations locate to obtain an to unfair competitive edgewith at the expense of penalties, the local to obtain an unfair competitive edge at the expense of the local environment. environment. b. Monetary Penaltiesfor Violations of EnvironmentalLaws Do Not b. Always Monetary Penalties for Violations ofCompliance Environmental Laws Do Not Promote Cleanup or Future Always Promote Cleanup or Future Compliance Many environmental laws include criminal sanctions designed to Manyindividuals environmental laws include criminal sanctions designed reto punish and organizations who violate environmental punish individuals and organizations who may violate environmental requirements. Although punitive sanctions serve to deter serious deter serious quirements. Although sanctions may serve violations in the future,punitive monetary penalties alone dotonot necessarily in the future, monetary alone not necessarily violations result in environmental cleanup orpenalties restoration, ordo promote responin environmental cleanup or restoration, or promote responresultconduct sible in the future. in thewe future. sible Forconduct this reason, strongly support the mandatory inclusion of For this in reason, we penalties strongly for support the mandatory of probation criminal corporations guilty inclusion of environ2 76 with penalties probation in criminal corporations of environmental crimes, probationfor conditioned on guilty elements such as: probation conditioned elements such as: mental crimes,276 (1) cleanup ofwith the damage caused by the on violation as much as (1) cleanup of the damage caused by the violation as much as technologically feasible, and so long as cleanup does not cause more technologically feasible, and so long as cleanup does not cause more harm than good; harm than good; (2) restoration or replacement of natural resources (or (2) restoration replacement of natural resources (or equivalent resources)ordamaged or destroyed by the illegal conduct; or destroyed by or thedamage illegal to conduct; equivalent damaged (3) full resources) restitution to individuals for any loss health fullproperty, restitution individuals for any loss or damage health or (3) private ortotrust funds when immediate harm is to impossior property, funds when immediate harm is impossibleprivate to determine or or to trust compensate; ble(4)to determine compensate; conductingorortofunding of studies necessary to ascertain the (4) conducting or funding studies necessary to ascertain the full extent of damage to healthofand environment; full extent of damage to health and environment; 275. Most federal environmental laws are not completely uniform, but establish minimum requirements below which no not statecompletely can go. States often free to minipass 275.federal Most federal environmental laws are uniform, butare establish standards thatrequirements exceed thesebelow minima. mum federal which no state can go. States often are free to pass 276. The November 1989minima. proposal included mandatory probation. The March 6, standards that exceed these 1990, only discretionary requirements. See supra related The discussion 276. draft The included November 1989 proposal included mandatory probation. March on 6, mandatory underdiscretionary the proposedrequirements. EnvironmentalSeeCrimes Act. supra related discussion on 1990, draft probation included only mandatory probation under the proposed Environmental Crimes Act.

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831

adequate notification (5) adequate notification to members of the public who may conduct; and have been, or who may be, affected by the illegal conduct; comprehensive environmental environmental audits of the organization's organization's (6) comprehensive facilities, conducted by outside experts, to ensure that similar violations do not occur in the future. probation involve matFinally, because because all of these conditions of probation consent ters that affect the general public, when they derive from a consent terms and conditions conditions of probation probation should should be decree or plea plea bargain, the terms subject to public public notice and comment. subject 3.

Critique of the Proposed Guidelines Critique Proposed Organizational Organizational Guidelines

a. a.

Sentencing Reform The Goals of Sentencing Reform

A critique critique of the current proposal proposal must begin with the goals and and purposes of sentencing reform. In legislating reform in sentencing sentencing laws, Congress legislation should "contain "contain a sentencing legislation Congress found that sentencing comprehensive and consistent statement of the . . . law of of comprehensive 27 7 sentencing." sentencing."277 One suggested that the absence One congressional congressional committee committee suggested absence of a comprehensive sentencing created "inevitable "inevitable disparity in the comprehensive sentencing law created defendants." 2 78 sentences which courts impose on similarly similarly situated defendants."278 Federal Federal studies studies show that judges judges hand down very different different 79 sentences defendants.2279 Apparently this insentences to similarly situated defendants. consistency consistency is caused caused by confusion over the goals of and procedures in sentencing. 22800 Disparate sentencing sentencing creates creates uncertainty in the justice justice system, and can be regarded as unfair. In addition, this per28 1 ceived system. 281 Congress has ceived unfairness unfairness undermines faith in the system. "[t]he shameful sentences is a major stated that "[t]he shameful disparity in criminal sentences major system." 2 82 flaw in the existing criminal justice system."282 The central tenets of reform are increased deterrence, consis83 options.2283 availability of sentencing tency, fairness, certainty, and availability sentencing options. Congress felt that sentencing sentencing should be fair to the offender and to society, and that such fairness should be reflected in the individual individual pattern of cases. In addition, addition, Congress found that sencase and pattern "assure the availability availability of a full range of sentence reforms should should "assure to select the most appropriate appropriate sentence sentence tencing options from28which case." 4 in a particular particular case."284 Congress proposed several very important changes changes to achieve the the deterrence and flexibility. First, Congress found that fines goals of deterrence reprinted in 1984 U.S. CODE CONGo CONG. & & 277. S. REP. No. 225, 98th Cong., 2d Sess. 39, reprinted ADMIN. ADMIN. NEWS 3220, 3220, 3222. 3222. reprinted in 1984 ADMIN. NEWS 3224 278. Id. /d. at 41 nn.21-22, nn.21-22, reprinted 1984 U.S. CODE CONG. CONGo & ADMIN. NEWS at 3224 nn.21-22.

279. Id. /d. 280. Id. /d. 281. McMurry & Ramsay, EnvironmentalCrime: Crime: The Use of CriminalSanctions Sanctions in Enforcing Enforcing 281. McMurry & Ramsay, Environmental ofCriminal EnvironmentalLaws, 19 Loy. L.A.L. REv. Environmental REV. 1133, 1143 (1986). 282. S. 225, 98th Cong., 2d Sess. 65, reprinted reprintedin 1984 U.S. CODE CONGo CONG. & 282. S. REP. No. 225, ADMIN. NEWS at 3248. ADMIN. 283. 39, reprinted 1984 U.S. CONG. & & ADMIN. 283. Id. /d. at 39, reprinted in 1984 U.S. CODE CONGo ADMIN. NEWS NEWS at 3222. 3222. 284. Id. /d.

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had to be much higher. This change addresses the chronic underhad to be much Thisseeks change addresses underdeterrence in thehigher. system and to restore faiththe in chronic the justice sys2 85 deterrence in the system and seeks to restore faith in the justice system. Congress recognized that "[t]he need for such increased 285 Congress recognized that "[t]he need for such increased tem. penalties is particularly apparent with regard to a corporate defendapparent with regard to a corporate penalties is particularly ant." 28 6 The new fine levels and mechanisms must constitutedefenda "sigThe new fine levels and mechanisms must "sigant."286 nificant" penalty for white collar criminals in orderconstitute to deter afuture in order to deter future nificant" penalty for white collar criminals misconduct effectively and to give courts more flexibility in 28 7 misconduct sentencing. effectively and to give courts more flexibility in sentencing.287 According to Congress, "the most important purpose of a fine is Congress, most important purpose of a fine2 8is his offense." gain from any pecuniary of "the deprive thetooffender to According to deprive theCommission offender of on anyReform pecuniary gain from his offense."288 The National of Federal Criminal Laws and The National Commission Reform of Federal Congress found that the on most effective way toCriminal ensure Laws that and the Congress found thatprofit the most to ensure that the wrongdoer does not is to effective base the way fine upon the pecuniary 9 This wrongdoer does not profit to to base fine 28upon the pecuniary gain of the defendant or the isloss the the victims. finding sug289 the defendant or the loss to the victims. This findinginsuggain gests ofthat Congress saw the gain/loss formula articulated 18 gainlloss this formula 18 gests that Congress saw the U.S.C. § 3571(d) as central to achieving "mostarticulated important"ingoal § 3571(d) as central to achieving this "mostmay important" goal U.S.C. of sentencing in any corporate case when profits be involved. ofSecond, sentencing in any corporate case when profits may be involved. Congress realized that fines alone are not adequate to that fines alone adequate to Second, Congress realizedStudies modify corporate behavior. show that are the not corporate structhat the corporate strucmodify corporate behavior. Studies show ture encourages group conformity and an ability within a group to 2 90 Due and ture encourages groupcosts. conformity an to ability within a groupbeto ignore organizational in part this organizational 290 ignore organizational costS. that Duefines in part to this organizational behavior, there is little evidence alone, particularly at the low is little evidence fines alone, at the low havior,atthere levels which they are being that imposed, triggerparticularly internal disciplinary 2 91 It theyaare being imposed, trigger that internal disciplinary levels at which mechanisms within firm. may be argued punishment of a It may be argued that punishment ofa mechanisms within firm. 291 corporation by finesaalone depends on the assumption that the marcorporation alone depends on the assumption the market operates by as afines check on corporate behavior and that athat corporation on corporate behavior and that a corporation ket operates a check will respond aswith internal disciplinary action. No empirical evi2 92 No empirical evirespond internalthese disciplinary action. will contentions. supported has everwith dence 292 dence everof supported The has nature corporatethese crimecontentions. is such that it is highly conceal293 nature The of corporate is such thatand it isitshighly concealable. In addition, the aimscrime of a corporation managers may 293 In addition, the aims ofa corporation and its managers may able. conflict in such a way as to undermine compliance. One commentasuchalthough a way asatocorporation underminemay compliance. One commentaconflict tor notesinthat seek to comply with envitor notes that although a corporation may seek to comply with environmental statutes, its plant managers may be under pressure to ronmental statutes, its plant managers may be under pressure to 285. Id. at 107, reprinted in 1984 U.S. CODE CONG. & ADMIN. NEWS at 3290. 286. Id. 106, reprinted CONG. & ADMIN. 285. Id. at 107, reprinted in 1984 1984 U.S. CODE CONGo ADMIN. NEWS at 3289. 3290. 287. H.R. 906, in 98th Cong., Sess.CONGo 16, reprinted in 1984 U.S. 286. Id. at REP. 106, No. reprinted 1984 U.S.2d CODE & ADMIN. NEWS at CODE 3289. CONG. & ADMIN. 5433, 5449. 287. NEWS H.R. REP. No. 906, 98th Cong., 2d Sess. 16, reprinted in 1984 U.S. CODE CONGo & 288. Id. at 17, reprinted ADMIN. NEWS 5433, 5449. in 1984 U.S. CODE CONG. & ADMIN. NEWS at 5449 (quoting MODEL CODE § 6.03incomment (Tent. No.&2,ADMIN. 1954)).NEWS at 5449 (quoting 288. PENAL Id. at 17, reprinted 1984 U.S. CODEDraft CONGo 289. PENAL Id. MODEL CODE § 6.03 comment (Tent. Draft No.2, 1954». 290. CorporateCrime and Punishment: A Non-Chicago View of the Economics of Crimi289. Coffee, Id. nal Sanctions, AM. CRIM. REV. 419, 467A n.175 (1980).View Professor CoffeeofCrimicites a 290. Coffee,17Corporate CrimeL.and Punishment: Non-Chicago ofthe Economics Wharton School thatREV. shows of the study group displayed nal Sanctions, 17 experiment AM. CRIM. L. 419,that 467almost n.175807o (1980). Professor Coffee cites a these characteristics. Id. at 467. Wharton School experiment that shows that almost 80% of the study group displayed 291. characteristics. Id. at 458. /d. at 467. these 292. 460-61. 291. Id. at 458. 293. Id. at 460-61. 470. 292. Id. 293. /d. at 470.

1991]

294 Thus, fines alone generally do not alter corpomaximize profits. 294 maximize profits. Thus, fines alone generally do not alter corporate practices and incentives. rate practices and incentives. In addition, the obvious fact that organizations cannot be imprisIn addition, the courts obviouspossess fact that organizations cannot be imprisoned means that significantly reduced flexibility in oned means that courts possess significantly reduced flexibility in sentencing. This reality reinforces the need for creative sentencing sentencing. reality reinforces for serve creative mechanisms This that supplement fines, the justneed as fines as sentencing an alternathat supplement fines, just as fines serve as an alternamechanisms tive to imprisonment in individual sentencing. tive to imprisonment in individual sentencing. Thus, in order to meet the goal of creating a "full range of senThus, options," in order 2to the goal of creating a "full range of sen95 meet tencing Congress drafted important changes in the use drafted important changes in the use tencing options,"295 Congress of probation. Congress stressed that under the new sentencing of probation. Congress new sentencing scheme, probation is to bestressed treated that as a under type ofthe sentence, not as an probation is to be treated as a type of sentence, not as an scheme, 29 6 alternative to the imposition of a sentence. 296 In addition, Congress alternative to the imposition of a sentence. In addition, Congress made clear that when the purpose of sentencing is to provide "cormade clear that when the purpose of sentencing is to provide rectional treatment required for rehabilitation," probation is a"corprerectional treatment required rehabilitation," probation is a pre2 9 7for ferred form of sentencing. The Committee found that the 297 The Committee found that the best ferred of sentencing. best course form was not to provide a presumption either for or against procourse was not to provide a presumption either for or against probation, but to allow the Commission full exercise of informed disto allowprobation the Commission full exercise of informed disbation, cretion but in tailoring requirements to the circumstances of 2 98 in tailoring probation requirements to the circumstances of cretion individual cases. 298 The Committee did suggest that when the rehaindividualneeds cases.of the Thedefendant Committee suggest that when thewill rehabilitative aredid paramount, probation be needs of the defendant are paramount, probation will bilitative 2 9 9 an important sentencing option. 299 According to Congress, be in an important sentencing option. the According to Congress, in drafting conditions for probation decisionmaker should focus drafting conditions probation theoffender, decisionmaker focus on the nature of thefor offense and the and theshould purposes of 3 00 of the offense and the offender, and the purposes of on the nature sentencing. 30o sentencing. Congress also intended that restitution be a central part of an apCongress flexible also intended that restitutionsystem. be a central an appropriately and fair sentencing "[I]n part the of Commitand fair sentencing system. "[I]n the Commitpropriately flexible tee's judgment, [Congress] gave priority to restitution and, in effect, 301 tee'sjudgment, [Congress] priority to order restitution and, in effect, full restitution" will the judge that gave a presumption created created a presumption that the orderThus, full restitution"301 to victims of environmental andjudge otherwill crimes. we also urge to victims of environmental and other crimes. Thus, we also urge the Commission to support the use of victim impact statements that the Commission to support the use of victim impact statements are made fully public to assure both restitution and to fulfill that the are fully public to assure both restitution and to fulfill the goalsmade of criminal sanctions. goals of criminal sanctions. To summarize, Congress articulated the four purposes that a senTo summarize, the four purposes that a sentence should seekCongress to achievearticulated in a particular case. It should: tence should seek to achieve in a particular case. It should: 1. reflect the seriousness of the offense, 1. reflect therespect seriousness the and offense, 2. promote for theoflaw provide just punishment, promote respect for the law and provide justdefendant, punishment, 2. 3. protect the public from future crimes of the and 3. protect the public from future crimes of the defendant, and 4. address the need to provide the defendant with educational/

4.

address the need to provide the defendant with educational!

294. Bower, On the Amoral Organization,in THE CORPORATE SOCIETY 178, 197 (R. MarBower, On the Amoral Organization, in THE CORPORATE SOCIETY 178, 197 (R. Mar1974). 1974). See supra note 284. See supraNo. note 284. S. REP. 225, 98th Cong., 2d Sess. 88, reprinted in 1984 U.S. CODE CONG. & 296. S. REP.3271. No. 225, 98th Cong., 2d Sess. 88, reprinted in 1984 U.S. CODE CONGo & ADMIN. NEWS ADMIN. NEWS 3271. 297. Id. at 91, reprintedin 1984 U.S. CODE CONG. & ADMIN. NEWS at 3274. 297. Id. at 91, reprinted in 1984 U.S. CODE CONGo & ADMIN. NEWS at 3274. 298. Id. 298. /d. 299. Id.

ris294. ed. ris295. ed. 295. 296.

299. Id. at 75, reprinted in 1984 U.S. CODE CONG. & ADMIN. NEws at 3258. 300. Id. 300. Id. atREP. 75, reprinted 1984 U.S. CODE CONGo & ADMIN. NEWSU.S. at 3258. 301. H.R. No. 906,in98th Cong., 2d Sess. 15, reprinted in 1984 CODE CONG. & 301. H.R. No. 906, 98th Cong., 2d Sess. 15, reprinted in 1984 U.S. CODE CONGo & ADMIN. NEwsREP. 5433, 5447. ADMIN. NEWS 5433, 5447.

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302 2 vocational other rehabilitative care.30 rehabilitative care. or other vocational or

b. b.

Critique of Commission's Proposal Critique of the the Commission's Proposal

1. 1.

Remedying Harm-Section Remedying Harm-Section 8B 8B

Under the Commission proposal, proposal, for Under the Commission for offenses offenses that that involve involve injury injury property or bodily injury, a court may order the payment restito to property or bodily injury, a court may order the payment of of resti3303 0 3 We strongly support the wide use of restitution as a remtution. tution. We strongly support the wide use of restitution as a remedy crimes. edy for for organizational organizational crimes. an especially remedy for for environmental environmental Restitution is Restitution is an especially important important remedy When actual harm to individual health or property crimes. crimes. When actual harm to individual health or property results results offense, the from from the the offense, the defendant defendant should should be be required, required, in in addition addition to to other penalties penalties imposed, to provide provide compensation victims, other imposed, to to all all 304 victims, compensation to principles set consistent consistent with with the the principles set forth forth in in 18 18 U.S.C. U.S.C. § § 3663. 3663.304 ResResthe public should be made in the form of payment the titution to titution to the public should be made in the form of payment for for the lost use and other values of the damaged environment, as well as lost use and other values of the damaged environment, as well as or acquisition of equivalent natural refull restoration, replacement full restoration, replacement or acquisition of equivalent natural rethe course an environmental environmental sources damaged damaged or sources or destroyed destroyed in in the course of of an is required, for example, under section 311 (f) of the the Clean crime, as crime, as is required, for example, under section 311 (f) of Clean 3305 0 5 The commentary should reflect this breadth of restiWater ACt. Water Act. The commentary should reflect this breadth of restitution requirements. tution requirements. We object to the language that would would allow We object to the language in in Section Section 8B1.1(b) 8Bl.l(b) that allow aa court to to waive waive restitution and proprocourt restitution in in situations situations when when "complication "complication and longation" the need provide restitulongation" of of sentencing sentencing "outweighs" "outweighs" the need to to provide restitu0 6 Congressional intent on this point is clear-restitution is an tion.3306 tion. Congressional intent on this point is clear-restitution is an important tool in the goals of flexible flexible sentencing important tool in achieving achieving the goals of sentencing and and fairfairno limits the use use of ness to society, ness to society, and and Congress Congress contemplated contemplated no limits on on the of restitution. The concern procedures restitution. The concern over over complex complex sentencing sentencing procedures be addressed two-stage sentencing sentencing procedure, procedure, could be could addressed by by allowing allowing aa two-stage one to establish the initial mandatory sentence and one later to one to establish the initial mandatory sentence and one later to esesto the environment becomes more tablish restitution as damage tablish restitution as damage to the environment becomes more apparent. apparent. In intended this this "prolongation" In addition, addition, Congress Congress intended "prolongation" limitation limitation to to be very narrow. narrow. In In its this limitation, Congress stated be very its discussion discussion of of this limitation, Congress stated that complications complications outweigh the use that outweigh the use of of the the sentencing sentencing option option only only in in situations sentencing hearsituations when when use use of of the the option option would would require require aa sentencing hear307 If the Commission retains this limitation ing ing that that outlasted outlasted the the trial. trial.3 0 7 If the Commission retains this limitation 302. 225, 98th 2d Sess. Sess. 75-76, reprinted in CONGo 302. S. S. REP. REP. No. No. 225, 98th Cong., Cong., 2d 75-76, reprinted in 1984 1984 U.S. U.S. CODE CODE CONG. & NEWS at at 3258-59. 3258-59. & ADMIN. ADMIN. NEWS § 3663 3663 (1988). 303. 18 U.S.C. § 303. 18 U.S.C. (1988). 304. /d. 304. Id. 305. 33 U.S.C. § 1321(f). section covers covers liability removal. 305. 33 U.S.C. § 1321(0. This This section liability for for actual actual costs costs of of removal. 306. Fed. Reg. 46,602 (proposed 306. 55 55 Fed. Reg. 46,602 (proposed Nov. Nov. 5, 5, 1990). 1990). 307. No. 906, reprinted in in 1984 U.S. CODE CONGo & & 307. H.R. H.R. REP. REP. No. 906, 98th 98th Cong., Cong., 2d 2d Sess. Sess. 17, 17, reprinted 1984 U.S. CODE CONG. ADMIN. 5450. ADMIN. NEWS NEws 5433, 5433, 5450.

on the use of restitution, the commentary should reproduce this on the use of restitution, the commentary should reproduce this of the appropriate use of the limitation. definition definition of the appropriate use of the limitation. In Section 8B1.2(a)(2), the presumption should be that if a deIn Section 8B1.2(a)(2), the presumption should be that if a defendant creates a risk to human health or the environment, the defendant creates a risk to human health or the environment, the defendant must be prepared to remedy that harm. The language in fendant must be prepared to remedy that harm. The language in this section that would allow waiver of restitution where "costs" of this section that would allow waiver of restitution where "costs" of remedial action do not match the harm caused,308 should be limited remedial action do not match the harm caused,3 0 8 should be limited to situations when the damage caused is so obvious as to be virtually to situations when the damage caused is so obvious as to be virtually "liquidated damages," such as monetary crimes. The text or com"liquidated damages," such crimes. The text or comthismonetary section not apply when the monementary should suggest that as mentary should suggest that this section not apply when the monetary value of the harm caused may take longer, or be more difficult, tary value of the harm caused may take longer, or be more difficult, to quantify. Otherwise, this section might be used to side-step the to quantify. Otherwise, this section might be used to side-step the clear mandate that restitution is a preferred remedy in situations clear mandate that restitution is a preferred in situations 309 The remedy when the defendant has caused harm. 30 commentary for this when the defendant has caused harm. 9 The commentary for this section should note that in environmental violations the immediate section should note that in environmental violations the immediate harm caused can be easy to show, but may take time to appear and harm caused show, butbemay take time appearfully. and be quantified,can andbe in easy sometocases may impossible to to quantify be quantified, and in some cases may be impossible to quantify fully. In such cases the proposed "cost-benefit" test is not appropriate. In such cases the proposed "cost-benefit" test is not appropriate. We support the Commission's proposed Section 8B1.2(b), which We support the to Commission's proposed Section 8B1.2(b), which establish a trust fund sufficient to address exauthorizes courts authorizes courts to establish a trust fund sufficient to address expected harm when such harm can be reasonably estimated. 310 DOj pected harm when such harm can be reasonably estimated. 3 10 DOJ inexplicably leaves out this crucial variation on restitution sentencinexplicably leaves out crucial variation on restitution sentencspill from which the full extent of environing. The Exxon Valdez oilthis ing. The Exxon Valdez oil spill from which the full extent of environmental harm will not be known for years, clearly shows the need for mental harm will not be known for years, clearly shows the need for this provision. Notice to victims, as contemplated in ,section this provision. to victims, tool as incontemplated in ,section remedying environmen8B1.4,311 is also aNotice crucial sentencing 8B 1.4,311 is also a crucial sentencing tool in remedying environmental violations. Federal law currently provides for the consideration tal violations. Federal law currently provides for the consideration of victims' rights as part of the sentencing procedure. For example, of victims' rights as part of the sentencing procedure. For example, for offenses involving fraud or other intentionally deceptive pracfor involving fraud other intentionally deceptive topracthe court may order thatorreasonable notice be provided victices,offenses tices, the court may 312 order that reasonable notice be provided to victims of the offense.3 12 For offenses that involve injury to property tims of theinjury, offense. Formay offenses to property 313 or bodily the court orderthat the involve paymentinjury of restitution. 3 13 bodily injury, the court may order the payment of restitution. or And of course, as part of the sentencing process, the court in deterAnd of course, as part of the sentencing process, the court in determining its sentence, and the probation officer in preparing a premining its sentence, and the probation officer in preparing a presentencing report, may consider the actual effect of the violation on sentencing report, may consider the actual effect of the violation on 314 victims. 14 victims.

3

Similar principles should apply to the victims of environmental Similar principles should apply of environmental thatthethevictims following provisions be crimes. We therefore recommend to crimes. We therefore recommend that the following provisions be added to the commentary on this section to ensure that the rights of added toofthe commentary on this section to ensure considered that the rights of victims environmental crimes are adequately when victims of environmental crimes are adequately considered when sentences are imposed. sentences are imposed. 308, 55 Fed. Reg. 46,602 (proposed Nov. 5, 1990). 308. See 55 Fed. Nov. 5, 1990). 309. supra Reg. note 46,602 301 and(proposed accompanying text. Cf. Ohio v. Department of the Inte309.880See supra 301Cir. and1989), accompanying text. Ohio clearly v. Department InteD.C.Cf.Circuit rejected of thisthe type of rior, F.2d 432note (D.C. in which the rior, 880 F.2d 432 (D.C. Cir. 1989), in which the D.C. Circuit clearly of cost-benefit test in natural resource damages assessments for rejected damage this to type public cost-benefit resources. test in natural resource damages assessments for damage to public resources. 310. 55 Fed. Reg. 46,602 (proposed Nov. 5, 1990). 310. [d. 55 Fed. Reg. 46,602 (proposed Nov. 5, 1990). 311. at 46,602-03. 311. Id. at 46,602-03. § 3555 (1988). 312. 18 U.S.C. 312. 18 U.S.C. 313. [d. § 3663.§ 3555 (1988). 313. 314. Id. See §id.3663. §§ 3552, 3553, 3661. 314. See id. §§ 3552, 3553, 3661.



A defendant should be ordered ordered to provide notice, notice, by by all all reasonA defendant should be to provide reasonand available means, to all potential individuals who able able and available means, to all potential individuals who may may be be harmed by the offense. For example, notice should be provided to harmed by the offense. For example, notice should be provided to be affected by pollution individuals whose drinking water may individuals whose drinking water may be affected by pollution caused by caused by the the defendant; defendant; or or downstream downstream users users (fishermen (fishermen or or swimswimbe notified of contamination that may jeopardize their mers) should mers) should be notified of contamination that may jeopardize their and radio advertisements, health. Notice could involve television health. Notice could involve television and radio advertisements, posting of affected affected areas, areas, newspaper mailings to posting of newspaper notices, notices, or or mailings to affected affected neighborhoods. neighborhoods.

2. 2. Fine Fine Structure-Section Structure-Section 8e 8C For the reasons reasons articulated we support the highest For the articulated above, above, we support the highest possible possible A) and below, DO] and Comfine structure. At level 16 (Alternative fine structure. At level 16 (Alternative A) and below, DOJ and Com315 3 1 5 are comparable. The Commission fine levels, mission fine levels mission fine levels are comparable. The Commission fine levels, 316 drop drastically after level 16. however, drop 16.316 drastically after however, At the upper of the fine table, table, courts be dealing with At the upper level level of the fine courts may may be dealing with major corporacatastrophic environmental violations caused by catastrophic environmental violations caused by major corporano punitive punitive effect effect unless they are tions, fines will have no tions, for for which which fines will have unless they are subsubTo make fines effective in such a context, and in stantial. stantial. To make fines effective in such a context, and in cases cases the world's world's largest upper fine caninvolving the involving largest corporations, corporations, the the upper fine levels levels cannot be too high. We therefore support, at a minimum, Alternative not be too high. We therefore support, at a minimum, Alternative A A the DO] levels for offense categories with substitution with substitution of of the DOJ levels for offense categories 16 16 and and higher. higher. In must address the impact impact that that inIn addition, addition, the the final final Guidelines Guidelines must address the inand changing conditions have on fines. flation 3317 1 7 The present-day flation and changing conditions have on fines. The present-day the passage passage of time has has made fine structure ineffective because because the fine structure is is ineffective of time made the the fines obsolete. We propose that the final fine tables fines obsolete. We propose that the final fine tables include include to the the Consumer Price Index. mandatory annual mandatory annual increases increases pegged pegged to Consumer Price Index. the proposed proposed use use of of mitigating Moreover, we object strongly to Moreover, we object strongly to the mitigating As the noted in in its factors to to lower factors lower these these fines. fines. As the DO] DOJ noted its testimony testimony before the the Commission, mitigating factors before Commission, use use of of mitigating factors is is "inconsistent "inconsistent the individual currently in effect."318 applicawith 3 1 8 This with the individual guidelines guidelines currently in effect." This application undermines the crucial goals of clarity, consistency, predictabiltion undermines the crucial goals of clarity, consistency, predictabilfairness articulated As DO] also noted, many ity ity and and fairness articulated by by Congress. Congress. As DOJ also noted, many of the the mitigating factors are already required required by environmental of mitigating factors are already by environmental 319 they would reward corporations simply following following laws. laws.3 19 Thus, Thus, they would reward corporations for for simply the law. law. the 315. 55 55 Fed. Fed. Reg. Reg. 46,603, 5, 1990). 1990). 315. 46,603, 46,612 46,612 (proposed (proposed Nov. Nov. 5, 316. Id. 316. Id at at 46,603. 46,603. supra note note 290, at 434 n.36. 317. 317. Coffee, Coffee, supra 290, at 434 n.36. of Richard B. Stewart, Stewart, Assistant General, Environment and 318. 318. Statement Statement of Richard B. Assistant Attorney Attorney General, Environment and Natural the United United States Sentencing Commission Commission ConcernNatural Resources Resources Division, Division, Before Before the States Sentencing Concerning Sentencing for Organizational Organizational Defendants Defendants 99 (Dec. ing Sentencing Guidelines Guidelines for (Dec. 13, 13, 1990) 1990) [hereinafter [hereinafter Statement of Richard Stewart]. Statement of Richard Stewart]. 319. Id. at at 10. 319. Id 10.

Because of the nature of corporate crime, the drastic under-deterBecause of the fines, naturethe of corporate crime, the drastic under-deterrence of present tendency to under-utilize existing penalrence of the present fines, the fines tendency to under-utilize existing penalties, and ability to pass through as a cost of doing business, and the ability to pass fines a cost of doingUse business, ties, it is essential that fine levels be through increasedas dramatically. of the that fine levelspotentially be increased Use of the it is essential proposed mitigating factors will dramatically. undercut the fundamenproposed factors potentially will undercut the fundamental purposemitigating of the guidelines, both by drastically reducing the size of of theand guidelines, both by drastically reducing size of tal purpose many sentences by causing inconsistent fines due to the subjective many sentences and by causing inconsistent fines due to subjective application of the mitigating factors. of theare mitigating factors. there is no question that the application If the factors used, however, If the factors used,athowever, there notable question that the Commission mustare adopt, a minimum, theisfine in Alternative Commission must adopt, but at a not minimum, the fine tablesuggests in Alternative A. The use of mitigating aggravating factors a preA. The usethat of mitigating aggravating a presumption maximum but finesnotshould apply, factors unless suggests the defendant sumption that maximum finesmitigating should apply, unless the warrant defendanta clearly demonstrates that circumstances clearly demonstrates thatsense mitigating smaller fine. It makes no to start incircumstances the middle or warrant at the lowa It makes sense to start in the middle or mitigating at the low smaller fine.range, end of the and no then to allow reductions due to end of but the no range, and then allow reductions due to mitigating factors increases due to to aggravating factors. but no increases due to aggravating factors. factors Further, if mitigating factors are retained, they must not apply in Further, when if mitigating arerequires retained,a they must not applyand in situations the lawfactors already corporate action, situations when thebylaw already requires a corporate action, and they must be offset aggravating factors. The text or commentary they must be clearly offset by aggravating commentary should state that mitigatingfactors. factors The will text not or apply in situamitigating factors will not apply inaction. situashould tions in state whichclearly the lawthat already requires a particular corporate in which the law already a particular action. tions statement This would address requires our concern, shared corporate by DOJ, that corThis statement addressfrom our reduced concern,sentences shared byunder DO], the thatmiticorporate offenderswould will benefit porate will benefit from reducedinsentences under the mitigating offenders factor section 8C2.1(e)(2)(A), situations when, for gating section faces 8C2.1(e)(2)(A), in situations for example,factor a corporation additional criminal and civilwhen, penalties 3 20 or corporation additional criminal example, for failinga to report thefaces violation, to cleanand upcivil the penalties damage to report the violation,320 or to clean up the damage for failing caused by the event. Fines for an underlying offense should not be the event. Fines for mandatory an underlying offense should not be caused bysimply reduced because other requirements are met. reduced simply because other mandatory requirements are met. The mitigating factors also should be offset by clearly quantified The mitigating factors shouldthe be offset by clearly quantified aggravating factors. As also proposed, mitigating factors are inthe mitigating factors inaggravating As proposed, cluded in thefactors. calculation of the Guideline Range and are are clearly calculationcircumstances, of the Guideline Range are andonly are considclearly cluded in the quantified. Aggravating however, 2 1 These only considquantified. Aggravating ered as "Departures fromcircumstances, the Guideline however, Range." 3 are aggraered asfactors "Departures the Guideline Range."321 These aggraare notfrom quantified and are applied in a very different vating are not quantified applied a very different vating factors manner, as mathematic "add-ons"and as are opposed to in multipliers of the manner, mathematic "add-ons" opposed to multipliers of the fine. Thisasmethod undermines the as consistency, fairness, and clarity method undermines the consistency, fairness, and clarity fine. This goals of sentencing reform, because, as Congress has found, sensentencing reform, because, as Congress has found, goals offactors tencing are not used or are inconsistently applied when senthey are not used or are inconsistently applied they tencing factors are totally discretionary. Aggravating factors should be when quantified are totally discretionary. should be quantified and calculated in the sameAggravating section andfactors same manner as mitigating and calculated in the same section and same manner as mitigating factors. factors. If aggravating factors are not quantified they will go unused beIf aggravating are not on quantified willtogoutilize unused because courts havefactors no guidance how andthey when them. no guidance on how and when to utilize them. cause courts have This type of guidance in sentencing lies at the heart of sentencing This type of guidance in sentencing lies at the heart of sentencing 320. The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), example, includes a penalty Response, for failureCompensation to notify the and government. 42 320. The for Comprehensive Environmental Liability Act U.S.C. § 9603(b) (1988). includes a penalty for failure to notify the government. 42 (CERCLA), for example, 321. §559603(b) Fed. Reg. 46,608-09 (proposed Nov. 5, 1990). (1988). U.S.C. 321. 55 Fed. Reg. 46,608-09 (proposed Nov. 5, 1990). nanC

r____

er%_"01


reform. At the very least, to establish some fairness and consistency, aggravating factors such as those found under section 8C5 should be given some quantity as add-ons so the court knows that it may depart from the guideline range up to a certain level. Finally, if despite these objections the Commission adopts mitigating factors alone, the Commission must at least adopt its second alternative, which calls for fewer mitigation points, and less drastic 3 22 multipliers. 3.

Gain/Loss Formula-Section 8C2.1(d), ()

We strongly support the Commission's mandatory use of the gain/loss formula set forth at 18 U.S.C. § 3571(d). Congress stated that: [s]ince the most important purpose of a fine is to deprive the offender of any pecuniary gain from his offense, it seems appropriate that limits stated in amounts should be subordinate to such pecuniary gain, when its amount can be determined.... [F]ines as a sanction are most valuable where defendant has gained econom3 23 ically or has caused measurable loss to the victim. Congress thus contemplated that the gain/loss formula is the preferred sentencing option in any situation involving pecuniary gain or loss. This legislative history refutes the DOJ contention that the 24 gain/loss formula should be used only in extraordinary cases.3 Such a limitation would violate Congress's clear mandate for sentencing reform in this area. In addition, the legislative history of sentencing reform and the Criminal Fine Improvements Act of 1987325 articulate only one limitation on the use of the gain/loss formula. 3 26 Congress allowed a waiver of the gain/loss formula only where it would "unduly complicate or prolong the sentencing process." 32 7 Congress, however, defined this limitation narrowly, intending that it be used only in situations where the formula would require a sentencing hearing longer than the trial.3 28 The Commission has proposed additional limitations on use of the gain/loss formula at section 8C2.1(d)(2), which clearly misreads congressional intent that this formula be 322. Id. at 46,606. 323. H.R. REP. No. 906, 98th Cong., 2d Sess. 17, reprintedin 1984 U.S. CODE CONG. & ADMIN. NEWS 5433, 5450. 324. See Statement of Richard Stewart, supra note 318, at 6. 325. Pub. L. No. 100-185, 101 Stat. 1279 (codified in scattered sections of 18 U.S.C.). 326. H.R. REP. No. 906, 98th Cong., 2d Sess. 6, reprintedin 1984 U.S. CODE CONG. & ADMIN. NEWS 5433, 5438. 327. 18 U.S.C. § 3571(d) (1988). 328. H.R. REP. No. 906, 98th Cong., 2d Sess. 17, reprintedin 1984 U.S. CODE CONG. & ADMIN. NEWS 5433, 5450. 0.

used Proposed section used liberally liberally and and limited limited narrowly.329 narrowly. 32 9 Proposed section must be dropped altogether. the 8C2.1(d)(2) therefore 8C2.1 (d) (2) therefore must be dropped altogether. In In addition, addition, the commentary following section 8C1.2 should reproduce the lancommentary following section 8C1.2 should reproduce the lanlimitation is guage guage of of the the Committee Committee report report that that illustrates illustrates that that the the limitation is to be used sparingly, and only in situations where the sentencing to be used sparingly, and only in situations where the sentencing 3330 30 hearing would be longer than the trial. hearing would be longer than the trial. We support the Commission language at section 8C2.1(f), which We support the Commission language at section 8C2.1(f), which the calculation pecuniary gain by the defendant reintroduces reintroduces the calculation of of any any pecuniary gain by the defendant and requires that any gain not otherwise disgorged the and 331 requires that any gain not otherwise disgorged be be added added to to the This calculation ensures that the Guidelines meet one of fine. 33 fine. ' This calculation ensures that the Guidelines meet one of Congress's principal goals: guaranteeing that a criminal offender Congress's principal goals: guaranteeing that a criminal offender crime. will not will not profit profit from from the the crime. Section 8C3.l(b), however, which appears to prohibit sentences Section 8C3.1(b), however, which appears to prohibit sentences that be clarified. As written, the that exceed exceed statutory statutory maxima,332 maxima,3 3 2 must must be clarified. As written, the section could be misunderstood in such way as to violate existing section could be misunderstood in such aa way as to violate existing Under the statute, this limitation may apply to the interplay law. law. Under the statute, this limitation may apply to the interplay statute defining the offense and between between the the penalty penalty set set forth forth in in the the statute defining the offense and the Guidelines, but may not apply to under the gainlloss the Guidelines, but may not apply to sentencing sentencing under the gain/loss 333 Congress intended that the gainlloss create formula. 3 3 3 formula. Congress intended that the gain/loss formula formula create above the statutory maximum, in that an organization minimum fines minimum fines above the statutory maximum, in that an organization "may be fined not not more greater of ... the the amount specified "may more than than the the greater of... amount specified in the law setting forth the offense" and the amount calculated using in the law setting forth 334 the offense" and the amount calculated using the gainlloss formula. The commentary for this section of 3 3 4 the gain/loss formula. The commentary for this section of the the Guidelines cites 18 U.S.C. § 3571(c), which clearly states that the Guidelines cites 18 U.S.C. § 35 7 1(c), which clearly states that the fine under the the gain/loss gainlloss formula may exceed the statutory limits. s35 fine under formula may exceed the statutory limits. 3 3 5 Either the section should be rewritten, or the the commentary commentary should Either the section should be rewritten, or should that this limitation does not apply to fines calculated under clarify clarify that this limitation does not apply to fines calculated under section section 8C2.1(d). 8C2.1(d). 3. Probation 3. Probation We strongly support the use of probation coupled with creative We strongly support the use of probation coupled with creative of probation. studies show that fines fines used conditions conditions of probation. Empirical Empirical studies show that used alone cannot rehabilitate corporations, nor lead to corporate discialone cannot rehabilitate corporations, nor lead to corporate disci3s6 those responsible responsible for for illegal illegal behavior. behavior.3 3 6 Congress Congress has has pline of pline of those stated that when rehabilitation is the primary sentencing clearly clearly stated that when rehabilitation is the primary sentencing and creative creative conditions are the most important sengoal, probation goal, probation and conditions are the most important sen337 Because the goal goal of sentencing a corporation is tencing options. 3 3 7 tencing options. Because the of sentencing a corporation is not to drive it out of business, but to preserve it as as aa constructive constructive not to drive it out of business, but to preserve it member of the community, and because fines alone cannot reform member of the community, and because fines alone cannot reform corporate behavior, probation should be used to its utmost in corcorporate behavior, probation should be used to its utmost in corporate sentencing. porate sentencing. 329. 329. 330. 330. 331. 331. 332. 332. 333. 333. 334. 334. 335. 335. 336. 336. 337. 337.

55 Fed. Reg. 46,604 (proposed Nov. 5, 1990). 55 Fed. Nov. 5,text. 1990). See supra Reg. note46,604 257 and(proposed accompanying See note 46,604 257 and(proposed accompanying text. 55 supra Fed. Reg. Nov. 5, 1990). 55 Fed. Reg. 46,604 [d. at 46,607 (1990). (proposed Nov. 5, 1990). Id. 46,607 (1990). 18 at U.S.C. § 3571 (1988). 18 U.S.C. § 3571 (1988). /d. § 3571 7 (c). Id. § 35 1(c). /d. Id. See supra notes 290-94 and accompanying text. See See supra supra notes notes 290-94 296-300and andaccompanying accompanyingtext. text. See supra notes 296-300 and accompanying text.



We the Commission's proposal concerning probation but We support support the Commission's proposal concerning probation but believe that probation more often should be a mandatory requirebelieve that probation more often should be a mandatory requirecorporate policies. ment, with with conditions conditions that ment, that encourage encourage reform reform of of corporate policies. For example, although the proposed subsections require probation For example, although the proposed subsections require probation and aa compliance compliance plan plan when when aa corporation relies on on mitigating facand corporation relies mitigating faccorporate program to detect violations, none of tors relating to a tors relating to a corporate program to detect violations, none of the subsections explicidy require probation when the court finds the subsections explicitly require probation when the court finds that corporate corporate preventative policies were defective. We that preventative policies were defective. We also also support support the DO] proposal that probation be required in situations when aa the DOJ proposal that probation be required in situations when the five years prior corporation has violated similar statutes within corporation has violated similar statutes within the five years prior to its conviction and when a fine is reduced based on inability to to its conviction and when a fine is reduced based on inability to 338 pay.3S8 pay. Because jailed, and to the the oft-menBecause aa corporation corporation cannot cannot be be jailed, and due due to oft-mencorporate ability ability to to lessen lessen the the impact impact of fines, it be that that tioned corporate tioned of fines, it may may be "public "public opprobrium" deterrent in the coropprobrium" may be the only effective deterrent in the cor339 We therefore suggest that the Commission draft porate porate context. context.3 39 We therefore suggest that the Commission draft require aa corporation to publicize additional conditions to require additional conditions to corporation to publicize its its conconand perform an environmental audit when a pattern of viction viction and perform an environmental audit when a pattern of violaviolations tions is is established. established. Many criminal sanctions Many environmental environmental laws laws include include criminal sanctions designed designed to to punish individuals individuals and and organizations who violate environmental repunish organizations who violate environmental remay serve serve to to deter deter serious serious violaquirements. Although punishment quirements. Although punishment may violain the future, penalties alone do not necessarily do enough to tions tions in the future, penalties alone do not necessarily do enough to promote promote responsible responsible conduct conduct when when environmental environmental compliance compliance exextake advantage this pertise is lacking, pertise is lacking, or or when when aa company company fails fails to to take advantage of of this For this reason, we urge the Commission to draft a conexpertise. expertise. For this reason, we urge the Commission to draft a conprobation that that would expressly allow require aa dition dition of of probation would expressly allow aa court court to to require its corporation to perform corporation to perform aa comprehensive comprehensive environmental environmental audit audit of of its to the audit provision of facilities. As discussed above with respect facilities. As discussed above with respect to the audit provision of the Environmental Crimes Crimes Act, Act,340 improvements in in 340 audits the Environmental audits identify identify improvements equipment and operating practices as well as techniques to reduce equipment and operating practices as well as techniques to reduce pollution emissions. audit therefore would promote promote rehabilitarehabilitapollution emissions. An An audit therefore would and reduction of future environmental problems. tion tion and reduction of future environmental problems.

Conclusion Conclusion The above analysis analysis demonstrates that, although although some The above demonstrates that, some progress progress been made in criminal enforcement of environmental laws over has has been made in criminal enforcement of environmental laws over the past improvement is needed to deter serious the past decade, decade, much much more more improvement is needed to deter serious and to future evidence of evidence of environmental environmental noncompliance, noncompliance, and to prevent prevent future the Exxon Valdez oil spill. tragedies such as tragedies such as the Exxon Valdez oil spill. The number of prosecutions increased increased during The number of federal federal criminal criminal prosecutions during 338. 338. 339. 339. 340. 340.

55 Fed. Reg. 46,614 46,614 (proposed (proposed Nov. 55 Fed. Reg. Nov. 5, 5, 1990). 1990). McMurry & Ramsay, supra note 281, at McMurry & Ramsay, supra note 281, at 1157-58. 1157-58. See 233-34 and See supra supra notes notes 233-34 and accompanying accompanying text. text.

this period, but has leveled off in recent years. Although increased this period, butprovided has leveled off the in recent EPA resources under Pollution Prosecution should years. AlthoughAct increased EPA resources provided increased under the resources Pollution Prosecution improve this situation, are needed Act at DOj as should improve this situation, increased needed at environDOJ as well. Additional improvements areresources needed inare overall EPA well. improvements are needed in overall EPA environmentalAdditional enforcement efforts. mental enforcement efforts. The magnitude of penalties given to environmental criminals also magnitude of penalties given to of environmental hasThe increased slightly due to the effect the 1987 Sentencing criminalsComalso has increased slightly for due individual to the effectdefendants. of the 1987 Sentencing mission Guidelines These penalties, Commission forlow individual These penalties, however, Guidelines still are quite relative todefendants. maximum statutory penalties, however, still are quite loweven relative to statutory maximumsanctions and there is evidence that these not adstatutoryare penalties, and there equate to is deter environmental Moreover, the United States evidence that even crime. these statutory sanctions are not adequate to deter environmental Sentencing Commission is still working on proposed for crime. Moreover, the Guidelines United States Sentencing Commission is still workingdefendants. on proposed Guidelines for corporations and other organizational corporations organizational In order to and deterother noncompliance withdefendants. environmental statutes, and In order to deter noncompliance withcriminals, environmental effectively rehabilitate environmental severalstatutes, steps must and effectively environmental be taken. rehabilitate Enactment of the proposedcriminals, Environmental Act several Crimes steps must be taken. Enactment of the proposed Environmental and promulgation of strict organizational guidelines by the SentencCrimes Act and Commission promulgationwould of strict organizational ing promote increasedguidelines uniformitybyinthe theSentencapplicaing Commission would promote increased uniformity the application of stricter sentences, restitution for victims, and in reformulation tioncorporate of stricterpolicies. sentences, restitution for of Improvements in victims, enforcement practices by and reformulation of corporate policies. Improvements enforcement EPA, DOj, and the states, however, areinalso necessary to attain the practices by EPA, of DOJ, and thecompliance states, however, are also and necessary goal increased by individuals corporations. to attain the goal of increased compliance by individuals and corporations.

842 842

[VOL. [VOL.

59:781 59:781

1991] ......

Appendix A

N uz

......

, 12

(.0 (.0

Investigations v. Riferrals

l-J

0

-D

C)

co

Cases Managed

Cases Closed Before Referral

Cases Referred To OCEC·

Cases Referred To Dep't of Justice

42 (49%)

44 (51 %)

37 (43%)

U0

(0

65

24 (37%)

41 (63%)

41 (63%)

119

69

28 (40%)

m

41 (59%)

41 (59%)

1988

115

93

32 (34%)

61 (65%)

59 (64%)

1989

147

93

29 (32%)

62 (66%)

60 (65%)

m (0

Co 00

t1- 00Co

00

4-4--

m c

04

103

1987

CD 00

86

1986

co m

1985

Cases Open at Start of Fiscal Year C,3

s-. I U') cz 00 IJ

>4 --

Year

• Office of Criminal Enforcement Council THE GEORGE WASHINGTON LAW REVIEW

iilt'l

~ ~ ~

VJ

:z:

Adler/Lord

!

z~

~~

00

t+:>-

(,)0

l:lN ;S c ~a.

844 00

;j:o.

Appendix B Referrals v. Prosecutions

*'"

-~cz

Defendants Indicted

101

107

40 32 37 94 86 63

C

r l

o CC I 0co (O

q

40 43 40 94 127 124

C ~on

-

olir

3*

29

qe

13

COC tq

8

O

0

7

Guilty Pleas And Convictions 0

Referrals Closed Without Prosecution

It 11

C)0Go(.0

12 14 15 26 27 28 42

0

eq

Most cases were still under review.

Referrals In Which There Was A Plea Or Verdict of Guilty

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W2)

~

00

CD

to

k

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4

[VOL. 59:781

~

12 16 16 40 25 39 37

~

*

26 31 40 41 41 59 60

2-C,3

Year

1983 1984 1985 1986 1987 1988 1989

Referrals

Referrals In Which Charges Were Filed

1991]

to to

Appendix C Pleading Statistics ".

'-'

o

0o

¢.U---

.~

u

p4i

2 0..

1983 1984 1985 1986 1987 1988

81% 84% 45% 82% 77% 73%

55% 84% 22% 68% 77% 73%

34% 23% 21% 10% 37% 42%

)

-

dj

.

.

.~cz I)

Percentage of Counts in Indictments to Which Defendants Pled Guilty

.

Percentage of Cases in Which Corp. Pled Guilty and Corp. Officers Pled Guilty

-

Year

Percentage of Cases in Which Corp. Officers Charged When Corporation Charged

el l

M l4

--- e---

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--

o

e

M 4t I-C4

e


@ Pl

~

~

Pl

~

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Adler/Lord

o Z:::t,..

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00 ~

CJl

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00 ~

846

Appendix D

O"l

Fine: Max. $250,000 Prison: Max. 15 yrs. Fine: Max. $250,000 Prison: Max. 15 yrs.

0

o

0.

W

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0.

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Fine: Max. $25,000 Prison: Max. 5 yrs.

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0

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Class A Misdemeanor Fine: Max. $100,000

0 Co -

c

c

4

0

~41

Fine: Max. $50,000 Prison: Max. 1 year

*a; 0

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cz

PQ Ul) Z0

0

Class E Felony Fine: Max. $250,000

0

0z

clU

6.'

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o

Marine Protection Research and Sanctuaries Act 33 U.S.C. § 1415(B)(I) Marine Protection Act, 33 U.S.C. § 1415(B)(I)medical wastes

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0

0

0

Fine: Max. $2000 Prison: Max. 2 yrs.

~0 Cu

ci)

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U

U)

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r..

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Migratory Bird Treaty Act 16 U.S.C. § 707(B)

New Sentencing Guidelines Base: $3000-$30,000 Prison: 10-16 mos. Ongoing: $4000$40,000, 15-21 mos. Base: $1000-10,000 Substantial effect on population: $3000-$30,000, Prison: 10-16 mos. Base: $2000-$20,000 Prison: 6-12 mos.

Alternative Fines Act Class C Misdemeanor Fine: Max. $5000

0 U)

W >,

A od C:

Statutory Penalty Fine: Max. $1000 Prison: Max. 30 days

4)

4)

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Act FIFRA, 7 U.S.C. § 136L(b)(2)

4)

Individual Knowing Violation

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Environmental Crimes Bill of 1990* Fine: $250,000 Prison: 15 yrs.

E0

New Sentencing Guidelines Base: $3000-$30,000 Prison: 10-16 mos. Continuous: $4000-$40,000, Prison: 15-21 mos. N/A °U

0o

0

-

c

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Fine: $250,000 Prison: 15 yrs. C-

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Fine: $3000-$30,000 Prison: 10-16 mos.

c> 0 140


C. 0 CIS

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Fine: Max. $250,000 Prison: Max. 15 yrs.

0

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Base: $1000-$10,000 Prison: 2-8 mos. CZ

0

Class E Felony Fine: Max. $250,000 4

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0

C C

221

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Base: $10,000$100,000 Prison: 51-63 mos. CIS-4C-

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Fine: Max. $250,000 Prison: Max. 15 yrs. 0

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Base: $2000-$20,000 6-12 mos. Subst. clean-up: $4000-$40,000 15-21 mos. 0

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Class E Felony* Fine: Max. $250,000

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Fine: Max. $50,000/day Prison: Max. 5 yrs. Fine: Max. $50,000/day Prison: Max. 2 yrs. Fine: Max. $250,000 Prison: Max. 15 yrs. Fine: Title 18* Prison: Max. 3 years

CC)

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Class E. Felony Fine: Max. $250,000

C0

QC)

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[VOL. 59:781

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Safe Drinking Water Act, 42 U.S.C. § 300(H)(2), § 300(I)(I)(b)

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Fine: Max. $50,000 Prison: Max. 5 yrs. C; X

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0:4(0)

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Max. $1 million

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cu 0

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Max. $1 million

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Max. $1 million

Max. $1 million

0


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Max. $1 million

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Max. $1 million

Base: $2000-$20,000 Continuous: $3000-$30,000 $500-$5000

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Fine: Max. $50,000/day

A Misdemeanor Max. $200,000 E Felony Max. $500,000

Cus 0 Co

Class Fine: Class Fine:

m

Fine: Max. $25,000/day Fine: Max. $50,000

Environmental Crimes Bill of 1990* Max. $1 million 0

0) o)

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Fine: Max. $25,000

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Class A Misdemeanor Fine: Max. $200,000 U,

Fine: Max. $50,000

C.

u

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Co04 Co~

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bt

0 0 0

Class E Felony Fine: Max. $500,000 0 0

0

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0

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w, cU) .

0

Fine: Max. $20,000

C14

Marine Mammal Protection Act 16 U.S.C. § 1375(B) Marine Protection Research & Sanctuaries Act (MPRSA) 33 U.S.C. § 1415(b)(1) MPRSA, 33 U.S.A. § 1415(b)(2) Medical Wastes Noise Control Act 42 U.S.C. § 491O(a)(1) Ports & Waterway Safety Act 33 U.S.C. § 1232(b)(1) RCRA, 42 U.S.C. § 6928(d)(1), (d)(2)


C) 0

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0 eq

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Fine: Max. $2000

0

Migratory Bird Treaty Act 16 U.S.C. § 707(B)

New Sentencing Guidelines Base: $3000-$30,000 10-16 mos. Ongoing: $4,000$40,000, 15-21 mos. Base: for Commercial Purposes: $1000$10,000, 2-8 mos. Base: for Commercial Purposes: $1000$10,000, 2-8 mos. Base: $2000-$20,000 .)

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Alternative Fines Act Class A Misdemeanor Fine: Max. $200,000 .)

0.

0

Statutory Penalty Fine: Max. $25,000 Prison: Max. 1 year

i.)

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Act FIFRA, 7 U.S.C. § 1366(B)(1)(b) Commercial applicator

Corporate Knowing Violation

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Max. $1 million

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Max. $1 million 0

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Base: $1000-$10,000 Tranport: $3000$30,000

Max. $1 million U

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Max. $1 million C

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Fine: Max. $5000

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Max. $1 million

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Max. $1 million C

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Base: $6000-$60,000 Risk or death: $10,000-$100,000 Base: $2000-20,000 Subst. cleanup $4000-$40,000 N/A

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Base: $10,000$100,000 Base: $1000-$10,000

Environmental Crimes Bill of 1990* Max. $1 million cz M

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Fine: Max. $10,000

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Surface Mining Control & Reclamation Act 30 U.S.C. § 1268(e)-(g) Surface Mining Control & Reclamation Act 30 U.S.C. § 1294 Toxic Substance Control Act, 15 U.S.C. § 2614

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C

0n OP 0

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Fine: Title 18*

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Safe Water Drinking Act 42 U.S.C. § 300(i)(1)(b)

New Sentencing Guidelines Base: $1000-$10,000 Zco

0

0

u-

U~-

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c))

Alternative Fines Act Class E Felony Fine: Max. $500,000 Class C Felony Fine: Max. $500,000 Class E Felony* Fine: Max. $500,000 Class E Felony* Fine: Max. $500,000 0~0

t4

C/3

CU4~C

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00~0

Statutory Penalty Fine: Max. $50,OOO/day Fine: Max. $1 million Fine: Title 18* Fine: Title 18*

bf

0

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Act RCRA, 42 U.S.C. § 6928(d)(3)-(d)(5) RCRA, 42 U.S.C § 6928(e) Safe Water Drinking Act 42 U.S.C. § 300(h)(2) Safe Water Drinking Act 42 U.S.C. § 300(i)(1)(a)

01

1991

1991]

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Indiv. - $250,000 15 yrs. Corp. - $1 million

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$3000-$30,000 Continuous: $4000-$40,000 Base: $2000-$20,000 Ongoing release: $3000-$30,000 Base: $500-$5000 Up to: $1000-$10,000 for: 1) species worth more than $2000 2) subst. impact N/A

Magnuson Fishery Fine: Max. N/A Conservation and $100,000 Management Act 16 U.S.C. § 1857(2) * assuming the action threatens human life or causes an environmental catastrophe

ex>

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Fine: Max. $10,000

Max. $500,000 Double for subsequent

03~0

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f

Lacy Act Amendments of 1981, 16 U.S.C. § 3373(d)(2)

Class D Felony Fine: Max. $500,000

Fine: $500-$2500

N/A

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Outer Continental Shelf Lands Act 43 U.S.C. § 1350(c) Rivers and Harbors Act 33 U.S.C. §§ 406, 411

Environmental Crimes Bill of 1990*

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z0

0)

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c!

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0

Fine: Min. $2500/day Max. $25,000/day Prison: N/A Fine: Max. $100,000/day

New Sentencing Guidelines 0

Alternative Fines Act

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Clean Water Act 33 U.S.C. § 1319(c)(l)

c00 v-

bo 0

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1991

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t.O t.O

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--

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860

00

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Appendix E Average Individual Penalties

0

43,

Clean Water Act bb

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Average Probation / % Who Get Probation 0

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months / months / months / months

0o0

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5.5 6 5.3 4.6

co)

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C'4C'o

/ 0% / 22% / 25%

60% 88% 88%

0

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78% 73% 75% L~o1

9 months / 8.2 months / 15 months / 44.?

to 0

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12 months / 100% 16 months / 66% 9.5 months / 30% 0 4?

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1.5 months / 63% 3.25 months / 46% 2.5 months / 30% 0

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5 days / 33% 3 days / 5% 2.6 months / 75%

RCRA 7.2 months 10.4 months 20 months 0

2

0

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Ul)

w) w

5 days 2.6 months 2.6 months O

4to C>O

$2560 $7600 $ 916 $2800

C',00

$1375 $4404 -0-

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101

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C 0

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59:781

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114

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1983-1984 1985-1987 1988 1989

C)

o- 66:

t--

[VOL.

4).

Year

Average Prison / % Who Go to Jail After Suspension

1991]

-to to

Average Corporate Fines

l.-I

0

RCRA

Percentage Less Than: $ 2,500 = 60% $15,000 = 33% e-Ieo oC>

Average Fine $ 8,460 $ 40,000 $ 31,000 $103,000

ISLo

0u,

'-

00 Lo00 MC

co*z 00

----

~ 0000

;>4

Year 1983-1984 1985-1987 1988 1989 (3 cases)

Clean Water Act

TSCA/CAA


ei I el el

10

Than: 85% 51% 88% 63%

C/)

F-'

CZ 06

Average Fine $ 8,413

0O000M 00 000

c

1>0 10

cq 01

to

(n

*

Percentage Less $12,500 = $15,000 = $25,000 = $25,000 =

0

-

-q

Year 1983-1989

Fine $ 10,750 $ 18,862 $ 29,760 $ 34,375 in

C4--

Year 1983-1984 1985-1987 1988 1989

5lt'l Cl

Percentage Less Than: $ 8,000 = 62%

assuming the action threatens human life or causes an environmental catastrophe

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