The criminalization of environmental law.

• Author: Riesel, Daniel
• Position: Meeting the Environmental Challenge

Behavior that once would have triggered only civil proceedings resulting in fines may now set in motion criminal indictments as well.

Environmental regulation is increasingly being driven by the threat of criminal prosecution -- prosecution of corporations and corporate managers. Prosecutors at all levels of government believe that the public expects willful violations of the burgeoning number of environmental statutes to be prosecuted criminally. Prosecutorial offices across the country are meeting this expectation by acquiring an ability to prosecutre environmental derelictions that had previously been the exclusive province of bureaucratic regulators. Civil enforcement actions are now often eclipsed by criminal proceedings.

Whatever the desirability of this exercise of state power, it is clear that the criminalization of environmental law is a fact that has an impact on day-to-day corporate management.

Today's manager must be prepared to deal with the environmental aspect of the criminal justice system. Behavior that once would have triggerd only civil proceedings resulting in fines may now set in motion criminal indictments as well.

Between 1983 and 1991, the federal government alone increased the number of indictments brought against coporations and individuals over 300% (40 in 1983; 125 in 1991). Conviction rates for federal prosecutions have been no less impressive -- consistently over 50%. This trend will continue, as states and the federal government devote more resources to environmental prosecutions.

Prosecutors increasingly are bringing indictments against managers as well as against the corporation. In 1983, for example, corporate officers were charged in 81% of cases where the corporation was charged, and these rates have continued. Individuals charged have included occupants of the executive suite (presidents, vice presidents, directors, comptrollers), technical staff (chief engineers, chemists, certified pesticide applicators), and supervisory personnel and lower-level managers (ships masters, foremen).

Conviction inevitably raises the specter of jail for individuals and onerous fines for the corporation. Though jail sentences have been much lower than permitted by statute, there is continuing pressure to impose stiffer sentences. Alos, the 1989 Sentencing Guidelines for United States Courts sharply reduced the discretion of judges to suspend sentences, a common practice for environmental crimes prior to 1989.

Above all, as one federal court observed, unlike civil proceedings the mere presentment of an indictment "will often have a devastating personal and professional impact that a later dismissal or acquittal can never undo."

The number of state and federal statutes criminalizing infractions of environmental regulatory programs...