The public regards lawyers with great distrust. They think lawyers are smarter than the average guy but use their intelligence deviously. Well, they're wrong. usually they're not smarter. -- F. Lee Bailey
by Judson Starr, John Cooney and Joseph Block [4/94?]
The new environmental enforcement officials at the Department of Justice
and EPA will be under the gun from their first day in office. During the
1992 Presidential campaign, three Congressional subcommittees
investigated whether the Bush Justice Department, for political reasons,
impeded EPA's criminal prosection efforts. In particular, they
questioned whether Justice insisted on an unreasonably high standard of
intent -- specific intent -- in deciding whether or not to initiate a
criminal investigation or seek an indictment.
Congress keeps score through a body count. In return for augmented
appropriations, the oversight committees demand increases in the number
of cases brought, the amount of penalties collected, and the number of
people sent to jail. This is a false metric for evaluating the success
or failure of an environmental enforcement program. But like many able
officials before them, the Clinton appointees may conclude that they
have no option but to accept the grading system and to play the numbers
Front-line prosecutors will encounter substantial legal and policy
problems as they attempt to translate this pressure for larger numbers
into actual cases. However laudable the goal of promoting strict
compliance with environmental laws, the ambiguity and complexity of
these statutes make them imperfect instruments for criminal enforcement.
The danger is that, in determining whether close cases should be
prosecuted under civil or criminal law, the agencies will decide to err
on the side of being perceived as aggressive criminal enforcers, and
thereby initiate prosecutions that in several respects are unfair,
unnecessary and counterproductive.
In this article, we analyze two of the most significant problems
enforcement officials will face: (1) lack of precision in EPA
implementing regulations, which makes it difficult to define what
constitutes a violation; and (2) legal and prudential problems involved
in determining the showing of intent that warrants criminal prosecution.
I. AMBIGUOUS SUBSTANTIVE STANDARDS.
As Federal agencies shift from civil to crimi nal enforcement of the
environmental laws, the current regulatory structure will be subjected
to stresses it may not be able to bear. In many areas of law, EPA has
been unable to define with precision what constitutes a violation. This
degree of ambiguity is in part purposeful, to allow EPA to cast a broad
net for civil enforcement purposes. But in many cases, the problem is
inherent in the statute. The infrequency of criminal prosecution, such
as under the Clean Air Act prior to its amendment in 1990, may thus have
reflected sound prosecutorial judgment, rather than sloth or political
favoritism. If Justice and EPA strain to prosecute borderline cases
criminally, they may find that courts and juries reject their efforts
due to the imprecision of the standards whose violation must be proved
beyond a reasonable doubt.
The problems are best illustrated by the Resource Conservation and
Recovery Act, which regulates the management of hazardous waste. The EPA
implementing rules have been called "the most complex environmental
regulations ever written." Despite exhaustive efforts over 16 years, EPA
has never been able to delineate what constitutes a "hazardous waste"
subject to regulation. The problem lies with RCRA itself, which relies
on the "apparently plausible" but incorrect notion that "it was possible
[to] classify wastes as either hazardous or not hazardous." But
hazardousness is contextual, rather than absolute. It depends upon the
circumstances of disposal, which in turn control such critical factors
as the concentrations to which people are exposed and their effects.
Unlike the Clean Air Act and the Clean Water Act which establish ambient
standards, treatment requirements under RCRA are not dependent on the
state of the receiving eco-system.
The RCRA rules instead adopt a complex definitional and classification
scheme to determine whether a waste must be managed as hazardous. The
system does not depend upon the actual risk presented to the public.
The same material may or may not be classified as hazardous, depending
upon minor changes in the manner in which it was generated. The
hazardous waste system is substantially underinclusive, because of the
high costs of managing wastes that fall within its coverage. But in
other respects, the hazardous waste system is overinclusive, and applies
to many waste streams that contain only small amounts of hazardous
constituents and that do not pose an actual risk to the public.
The system is further complicated by a large number of formal and
informal interpretations issued by EPA to companies over the years
concerning specific waste streams. This guidance often was issued to
avoid litigation or to avoid irrational results from a wooden
application of a rule. But these interpretations contain many apparent
inconsistencies that can only be squared with a detailed knowledge of
the actual production processes involved. The resulting regulatory
system is difficult for industry, especially small business, to
understand and follow.
Efforts to increase the number of criminal prosecutions will reveal
substantial legal and policy problems that are inherent in this
Legal Problems. In many cases, it is difficult even for an expert to
determine whether a specific waste stream is or is not properly
classified as hazardous. Many applications of the RCRA rules therefore
may be vulnerable to constitutional challenge, on the ground that the
EPA rules did not provide adequate notice to the public of what the law
required. Further, judges and juries may look skeptically on criminal
charges for technical violations of highly complex regulations. The
apparent disproportion between the harm, if any, to the environment and
the gravity of the sanction may cast an aura of unfairness over the
case. Finally, the body of prior, apparently inconsistent EPA
interpretations will provide defense counsel significant grounds for
defending these cases successfully.
Policy Problems. Under pressure to increase the number of criminal
prosecutions, Justice and EPA will inevitably be tempted to develop
plausible interpretations of the rules to fit a particular fact
situation, and then to seek enforcement of that theory for the first
time in a criminal case. In another context, former Assistant Attorney
General Don Baker has demonstrated persuasively that such an approach
would be an abuse of prosecutorial discretion. "Criminal proceedings
seem less appropriate where the Department's theory of . . . liability
is entirely new. Criminal indictments, particularly felony indictments,
in such cases raise important issues of fairness which in turn may
affect the likelihood of obtaining a conviction."
These problems with trying to force criminal prosecutions through the
existing regulatory maze are perhaps most evident in RCRA, but they are
common to all Federal environmental statutes.
II. WHAT SHOWING OF INTENT IS NECESSARY?
There currently is with no theoretical distinction between which
violations of the environmental laws are civil and which are criminal,
because the laws do not have a standard of intent that requires some
element of willful violation of the law. The question of which cases to
pursue criminally is left to the discretion of the prosecutor. Federal
environmental criminal prosecutions are already very aggressive. Efforts
to force more cases into the criminal process may well produce
unintended consequences that make the outcome counterproductive for
What showing of intent is required to make out a criminal, as opposed to
a civil, violation of environmental laws or regulations? The statutes
themselves generally require proof that the defendant "knowingly"
violated the law -- that he or she knew that the act violated legal
requirements. This is the showing of intent (known as "specific intent")
traditionally required to prove felony offenses. However, the Federal
courts have concluded that, under environmental and other public welfare
laws, a prosecutor can prove a felony by merely showing that the
defendant knew that he or she was doing what was done -- that is, that
the defendant knew that he or she was putting factory floor sweepings in
a dumpster or sending industrial wastes off-site for disposal.
As a result, there is little practical difference between the standard
for proving a civil violation and that required to show a criminal
offense. The environmental criminal prosecutor thus has tremendous
discretion to seek felony sanctions based on acts undertaken with no
criminal intent at all, or undertaken without knowledge of the legal
requirements. Accordingly, critical decisions in this area must be
controlled by well established, but little publicized, Department of
Justice standards. The Bush Administration did not articulate these
standards well in attempting to justify its enforcement record.
The Justice Department has sought to guide the exercise of discretion in
environmental cases in several ways. Internal policy has always
emphasized the importance of evidence of guilty knowledge or intent in
making the decision whether to proceed criminally, despite the fact that
judicial decisions had progressively lowered the standard of knowledge
of law or regulation required for conviction. Officials in charge of the
criminal enforcement program have described their policy as generally
targeting persons operating outside the regulatory program, without any
compliance (such as the "midnight dumper"), or companies and individuals
operating within the system, but surreptitiously avoiding or violating
regulatory requirements. This would include, for example, acquiring
required permits and making required reports but with false or
incomplete information, with both categories involving highly
intentional acts. In a 1987 Memorandum outlining the justifications for
using incarceration as a sanction in environmental criminal cases, the
responsible Assistant Attorney General stated that "these
(environmental) cases . . . mainly involve blatant failures to obtain
any of the required permits for toxic pollutant disposal or deliberate
falsification of required discharge-monitoring reports . . . . "
However, even if Justice currently is guided by a standard of willful
conduct in deciding whether to pursue environmental criminal
prosecutions, it also has reserved its discretion to proceed in certain
cases on the basis of lesser facts.
The fairness of instituting a criminal investigation or obtaining an
indictment with less than evidence of some intent or willfulness is
addressed by a longstanding Justice policy, known as the "Principles of
Federal Prosecution." They recognize that "(t)he manner in which federal
prosecutors exercise their decision-making authority has far-reaching
implications, both in terms of justice and effectiveness in law
enforcement and in terms of the consequences for individual citizens."
They recognize "both that serious violations of federal law must be
prosecuted, and that prosecution entails profound consequences for the
accused and the family of the accused whether or not a conviction
Measuring the profound consequences for an individual or company of an
environmental criminal investigation in terms of the defense costs, the
hiring of criminal and environmental lawyers required to defend and seek
to ward of indictment can easily exceed $100,000. A trial with necessary
expert witnesses can easily exceed $250,000. These figures ignore costs
associated with the pall that an investigation, seizure of documents,
and subpoenaing of employees and officers for testimony before a grand
jury casts on company operations. Thus, the bare decision to investigate
can have profound consequences indeed.
Furthermore, small businesses are, perhaps disproportionately, the focus
of environmental criminal prosecutions. This is not because the Justice
Department targets small businesses for prosecution. Rather, economists
have long noted that there are substantial economies of scale in
responding to environmental controls. Because environmental compliance
requirements have come to affect all aspects of industrial activity and
are, at the same time, terribly complex, even a small company may need a
full-time employee with environmental expertise. Many small companies
have been unable or unwilling to make that commitment. Increased
emphasis on criminal prosecution thus may, inadvertently, impose greater
relative burdens on this part of industry, at a time when Clinton
economic team is looking to small business to lead the way in job
Finally, the threat of more aggressive enforcement, coupled with the
reality that a prosecutor can treat almost any environmental violation
as criminal, may have counterproductive effects. For example, given the
definitional complexities of RCRA, a policy decision to bring more cases
criminally may adversely affect the creation of a new hazardous waste
recycling operations. Despite the environment advantages of recycling
over current disposal methods, now facilities may not be built, due to
executives' fear of incarceration for operator error, and capital market
fears of adverse financial impacts, since criminal actions are not
covered by insurance.
Similarly, increased threat of criminal enforcement may deter companies
from voluntary auditing of environmental compliance. Defense counsel and
corporate managers already have substantive reservations about the
wisdom of a company's auditing, where the government can and does seek
to obtain the audit results in an investigation and will use the audit
as a roadmap to find violations to prosecute. Companies concerned about
even greater exposure under a self-consciously aggressive program may
take elaborate steps to keep audit reports confidential. This may impede
remedial followup to any problems that are found, thereby producing
counterproductive environmental effects.
More aggressive criminal enforcement of the environmental laws may look
like a costless way for the Clinton Administration to distinguish itself
from its predecessors and to respond to Congressional wishes. Before
committing themselves, the new appointees would be well advised to study
carefully whether the Congressional critique of prior enforcement
efforts was, in fact accurate. There are substantial potential negative
effects that could result from blind adherence to a strategy of erring
on the side of increased criminal enforcement. The new officials would
do well to study the possible unintended consequences and to devise a
targeted plan for improving on prior efforts.
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