ENVIRONMENTAL CRIME AND PUNISHMENT

III. CRIMINAL LIABILITY FOR ENVIRONMENTAL OFFENSES

Two main bodies of criminal law related to environmental violations:

1. General Crime Statutes (i.e., conspiracies, mail fraud etc.)
2. Specific Environmental Statutes that include criminal provisions
- Virtually all environmental statutes include criminal provisions

Criminal provisions fall into two distinct categories:

1. “strict liability”/”public welfare” offenses
- Refuse Act of 1899 – imposing criminal liability on any party who
discharged refuse into navigable waters.
- Most subsequent envi legislation failed to impose strict liability
standard.
- Comprehensive Environmental Recovery, Conservation and
Liability Act – strict liability standard for failure to notify authorities
of either a release of a hazardous substance or the existence of
unpermitted hazardous waste disposal site.
- Can be used in cases where proof that violation was “knowing” is
difficult. BUT, since CERCLA violations are only misdemeanors, it
has not been the charge of “choice” for prosecutors.
- Moreover, “strict liability” in this provision has been [removed]
by case law: defining “knowing” broadly enough to include mere
knowledge of the occurrence of a violation.
- - SUCH AS in a case where defendant didn’t know that the
facility lacked an EPA permit was not accepted as an adequate
defense.
2. offenses requiring some degree of “knowing,” “willful,” or negligent
conduct. –
- Clean Water Act – provides for criminal sanctions when a discharge
is “willful”/”negligent”
- Negligence – broad enough to allow prosecutors to charge firms with
criminal negligence for failure to adequately prevent accidental oil
discharges.
- IN CONTRAST:
- Clean Air Act only charges for “knowing" violations
- Resource Conservation and Recovery Act – also imposes a
“knowing” standard for illegal storage, transportation, treatment, or
disposal of wastes and recordkeeping violations.
- Other laws requiring some degree of mens rea – either by applying
“knowing” standard or by requiring falsification of records:
- Toxic Substances Control Act
- Safe Drinking Water Act
- Federal Insecticide, Fungicide, and Rodenticide Act – also
provides that “criminal liability may be vicariously imposed upon
principals without any additional required mental state, for the
acts, omission, or failures of their officers, agents, or employees.”
 “Knowing” requires a lower burden of proof than “willful,” since the
individual knowledge need not intend or desire the result to occur, so long as
he is substantially certain to occur.
Knowledge is more difficult standard to prove than negligence, since
negligent violator need only have known there was substantial risk that
unlawful conduct would occur, or have failed to exercise due case to avoid
unlawful result.

Corporations may be held criminally liable for any illegal actions of their
agents or employees – even in employee’s actions were in direct conflict with
company policy. ONLY REQUIREMENT: corporation exerts some control over
persons or events responsible for a criminal violation.
- Corporate officers may also be held criminally liable for the actions
of their employees, regardless of whether they participated.
- BECAUSE: Under “strict” liability” or “negligence”- Individual
criminal liability may be established solely on the basis that the officer
was ultimately responsible for the activity.
- Individual liability will generally be applied to corporate officers
who somehow fail to prevent a crime of who authorize or tacitly
acquiesce in the commission.

VIRTUALLY ALL environmental crimes can be dealt through civil or

administrative actions.
- BUT, Generally reserved for instances where both injunctive relief or
remedial action and criminal sanctions are warranted.
- Pending resolution of criminal investigation, civil and administrative
actions generally held in abeyance.
FACTORS prosecutors allegedly use in determining which approach to
take:
1. knowledge or intent
2. harm associated with the offense
3. gain to the offender
4. continued violations after repeated EPA notifications
5. strength of evidence

Prosecutorial guidelines for envi crimes (released by Justice Dept.)

1. whether disclosure was voluntary
2. degree of cooperation
3. extensiveness of the compliance program and efforts to prevent
violations
4. pervasiveness of non-compliance
5. internal disciplinary action
6. subsequent compliance efforts