Environmental crimes.

AuthorDioguardi, Christopher
PositionI. Introduction into IV. Clean Water Act B. Elements of a CWA Offense, p. 981-1017 - Thirtieth Annual Survey of White Collar Crime
  1. INTRODUCTION A. Criminal versus Civil Penalties B. Criminal Enforcement C. Interaction with Other Criminal Violations II. GENERAL ISSUES A. Overview of Elements of Environmental Criminal Violations B. Liability 1. Corporate Liability 2. Individual Liability C. Common Defenses 1. Constitutional and Procedural Defenses D. Voluntary Compliance and Sentencing E. Sentencing Guidelines III. CLEAN AIR ACT A. Purpose B. Elements of a Criminal CAA Offense 1. Violation a. Substantive Violations i. National Ambient Air Quality Standards and State Implementation Plans ii. Other Substantive Provisions b. False Statements, Omissions, Tampering with Monitoring Devices, and Failure to Pay Fees c. Negligent or Knowing Endangerment C. Defenses IV. CLEAN WATER ACT A. Purpose B. Elements of a CWA Offense 1. Violation a. Definitions and Threshold Issues b. Criminal Provisions i. Effluent Limitations and Water Quality Standards; National Pollutant Discharge Elimination System ("NPDES") Permit Program ii. Monitoring, Reporting, and Regulatory Searches c. Discharge of Oil and Hazardous Substances 2. Intent C. Defenses D. Penalties V. SAFE DRINKING WATER ACT A. Purpose B. Elements of SDWA Offenses 1. Enforcement of Ban on Tampering 2. Underground Injection of Contaminants VI. COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT A. Purpose B. Elements of a CERCLA Offense C. Defenses D. Penalties VII. RESOURCE CONSERVATION AND RECOVERY ACT A. Purpose B. Elements of a RCRA Offense 1. Violation 2. Intent a. Knowing Violation b. Knowing Endangerment C. Defenses D. Penalties VIII. TOXIC SUBSTANCES CONTROL ACT A. Purpose B. Elements of a TSCA Offense 1. Violation a. Testing Requirements b. Notice and Premanufacturing Approval c. Restrictions on Manufacturing, Processing, Distributing, Using, and Disposing 2. Intent C. Defenses D. Penalties IX. THE FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT A. Purpose B. Elements of a FIFRA Offense 1. Violation 2. Intent C. Defenses D. Penalties 1. INTRODUCTION

    After providing general background on the distinction between criminal and civil environmental enforcement in Section I, Section II of this article discusses issues the major environmental statutes have in common, including theories of liability, defenses, and sentencing.

    Section III examines the Clean Air Act ("CAA"), (1) which imposes penalties on violators of federal and state laws and regulations on air pollution control. Section IV discusses the Federal Water Pollution Control Act ("Clean Water Act" or "CWA"). (2) Section V addressed the Safe Drinking Water Act ("SDWA"), (3) which, together with the CWA, restores and protects the quality of the nation's surface and ground waters. Section VI examines the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), (4) which authorizes the cleanup of hazardous substances at contaminated sites and imposes criminal penalties on those who violate its provisions. Section VII addresses the Resource Conservation and Recovery Act ("RCRA"), (5) which is a set of amendments reinforcing the Federal Solid Waste Disposal Act ("SWDA"). (6) Section VIII reviews the Toxic Substances Control Act ("TSCA"), (7) which governs the manufacture, processing, and distribution or disposal of chemicals that pose a danger to the public or the environment. Lastly, section IX discusses the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), (8) which regulates the manufacture, registration, transportation, sale, and use of toxic pesticides.

    1. Criminal versus Civil Penalties

      Most of the environmental statutes discussed below contain overlapping civil, criminal, and administrative penalty provisions. (9) Because the statutes permit simultaneous civil and criminal enforcement actions against violators, the policy of the Environmental Protection Agency ("EPA") is to evaluate whether the violation would be best addressed through simultaneous proceedings or through either a civil or criminal action alone. (10) The Parallel Proceeding Memo outlines the criteria that the EPA uses to make this determination. (11) The EPA will generally favor a criminal proceeding if complete relief can be achieved criminally, but if remedial measures are necessary, or if the violation is particularly egregious, civil liability may be pursued alone or in conjunction with criminal liability. (12)

      The Environment and Natural Resources Division ("ENRD") of the Department of Justice ("DOJ") has issued its own Parallel Proceedings Memo, which also favors criminal enforcement prior to civil penalties, but also provides for certain situations where civil remedies should be given priority, or both types of remedies should be sought simultaneously. (13)

    2. Criminal Enforcement

      Criminal enforcement of environmental laws is common. (14) The criminal provisions the statutes addressed in this article are enforced by the EPA in conjunction with the DOJ. In enforcing the environmental statutes, the EPA emphasizes cooperation with other administrative agencies (15) and focuses on national enforcement priorities that are revised on an annual basis. (16) Since states have the primary responsibility for implementing many federal environmental laws, a significant amount of enforcement activity takes place at the state level and must be coordinated with federal enforcement efforts. (17)

      The DOJ's policy provides a flexible approach to enforcement. In deciding whether to prosecute violations of federal environmental statutes, the department may consider several factors, including: (i) voluntary disclosure; (ii) "the degree and timeliness of cooperation"; (iii) preventive measures and compliance programs; (iv) pervasive non-compliance; (v) disciplinary systems to punish employees who violate compliance policies; and (vi) subsequent compliance efforts. (18) These factors are intended "to encourage self-auditing, self-policing, and voluntary disclosure of environmental violations." (19)

    3. Interaction with Other Criminal Violations

      General criminal statutes can serve as alternative bases for prosecution of environmental crimes. (20) Prosecution of environmental offenses may be pursued under general criminal statutes, which provide for harsher penalties than the applicable environmental statute. (21) Prosecutors choosing this path generally append environmental criminal offenses as additional charges. (22)

  2. GENERAL ISSUES

    1. Overview of Elements of Environmental Criminal Violations

      Although criminal provisions vary among statutes, (23) environmental criminal laws often share important features. Common acts that constitute substantive criminal violations include making false statements, (24) failure to notify, (25) failing to pay required fees, (26) operating without a permit, (27) and violating the limits or conditions of a permit. (28) With respect to intent, environmental criminal provisions typically require a mens rea of "knowing" (29)--notwithstanding that some statutory schemes include criminal provisions for negligent violations. (30) Courts have interpreted the "knowing" element for some CWA violations to mean a defendant need only have knowledge of the discharge of a pollutant. (31) That is, the actor need not "know" she is violating the law.

    2. Liability

      1. Corporate Liability

        Each statute includes corporations in its definition of "persons" (32) who may be prosecuted for violations of environmental laws. (33) Criminal prosecution of corporations engaging in environmental crimes has been justified on the grounds that (i) the harms posed by environmental crimes may be as significant as those posed by traditional crimes; (ii) the corporate environmental criminal may be just as morally culpable as traditional criminals; and (iii) without criminal sanctions, corporations may view environmental sanctions as "a mere cost of doing business" that...

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