Prosecutorial Discretion and Environmental Crime

• Date: 01 August 2015

8-2015 NEWS & ANALYSIS 45 ELR 10801

H O N O R A B L E M E N T I O N

Prosecutorial Discretion and

Environmental Crime

by David M. Uhlmann

David M. Uhlmann is the Jerey F. Liss Professor from Practice and Director of the

Environmental Law and Policy Program, University of Michigan Law School.

The environmental laws create a complex reg ulatory

system aecting a wide range of ec onomic activity

in the United States. e Resource Conservation

and Recovery Act (RCR A) establishes a cradle-to-grave

regulatory scheme for ha zardous wastes; the Clean Water

Act (CWA) regulates a ll discharges of polluta nts into

waters of the United States; and the Clean Air Act (CAA)

imposes limits on all air pollutants that could endanger

public health and welfare. As with any complex regulatory

scheme, there are signicant disparities in the serious-

ness of environmental violations. Some involve deva stat-

ing pollution, evacuation of communities, or deliberate

eorts to mislead regulators. Others may be de mi nimis

violations or isolated events that occur notwithstanding a

robust compliance program.

Given the wide range of potential environmental vio-

lations, it might have been preferable for Congress to

specify which environmenta l violations could result in

criminal prosecution. Instead, Congre ss made only lim-

ited distinctions between acts that could result in cri mi-

nal, civil, or administrative enforcement. Even the most

technical violation of the environmenta l laws theoretically

could result in criminal prosecution if the defendant acted

with the mental state specied by the statute. Mental state

is not required for civil or administrative violations, but

the additional proof required for criminal prosecution

often does litt le to dierentiate between criminal, civil,

and administrat ive violations. In most cases, the govern-

ment must show only that the defendant acted knowi ngly.

In other words, the government must show defendants

know they a re engaging in the conduct that is a violation

of the law ; the government is not requi red to show that

defendants know they are break ing the environmental

laws. Indeed, in some cases, the government is required to

prove only t hat the defendant acted negligently; in other

cases, t he government is not requi red to show any menta l

state at all.

If the same violation often could give rise to criminal,

civil, or administ rative enforcement—and if mental state

requirements only preclude criminal enforcement for a

small subset of violations —what determines which envi-

ronmental violations result in criminal prosecution? e

answer is the exercise of prosecutoria l discretion, which

exists in all areas of the criminal law, but assumes a par-

ticularly critical role in environmental cases because so

much conduct falls within the cri minal provisions of the

environmental laws. Critics of environmental cri minal

enforcement argue that Cong ress gave too much discre-

tion to prosec utors or, even worse from t heir perspective,

to EPA enforcement ocials. ey note that whether a

case is prosecuted criminally may be determined by noth-

ing more substantive than whether the case originates

with a criminal investigator or with one of their civil or

administ rative counterpa rts within the agency. Even sup-

porters of criminal enforcement acknowledge that prose-

cutorial discretion is broad under the environmental laws.

But they insist that it is no greater than in other areas of

economic or regulatory crime and that Congre ss properly

relied on the good sense of prosecutors, the wisdom of

judges, and the judgment of juries to determine when vio-

lators of the environmenta l laws should be convicted of

criminal activity.

I see no merit in debating whet her prosecutorial dis-

cretion is broad under the environmental laws—it clearly

is—and I concede that it may be disquieting in a nation

predicated on t he rule of law that we depend so much

on individua l prosecutors to determine what conduct

should be criminally prosecuted. I also acknowledge that

the e xtent of prosecutorial discretion under the environ-

mental law s may raise uncerta inty in the regulated com-

munity about which environmental v iolations w ill result

in crimina l prosecution. On the other hand, our criminal

justice system always relies to some degree upon the exer-

cise of prosecutorial discretion to determine which viola-

tions w ill be prosecuted crimina lly. To eva luate whether

prosecutors have too much discretion—and to address

e full version of this Article was originally published as: David

M. Uhlmann, Prosecutorial Discretion and Environmental Crime,

38 H. E. L. R. 159 (2014). It has b een excerpted with

permission of Harvard Environ mental Law Review and David

M. Uhlmann. Please see the f ull article for footnotes and sources.

Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.