Discretion and the Criminalization of Environmental Law

By Babbitt, Charles J.; Cory, Dennis C. et al. | Duke Environmental Law & Policy Forum, Fall 2004 | Go to article overview
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Discretion and the Criminalization of Environmental Law

Babbitt, Charles J., Cory, Dennis C., Kruchek, Beth L., Duke Environmental Law & Policy Forum


Enforcement of federal environmental law is complex. Central to the efficacy of enforcement is the role of prosecutors and judges in exercising their discretion over which violations to prosecute and what sanctions to impose. In the context of the Clean Water Act ("CWA"), discretion is exercised in an institutional framework of marginal deterrence, criminal sanctions, broad prosecutorial discretion, and judicial discretion constrained by the Federal Sentencing Guidelines. After a description of the CWA institutional framework for enforcement, a review of legal, economic, and criminal justice dimensions of exercising discretion is provided. It is concluded that while broad prosecutorial discretion is justified on economic efficiency grounds, extending criminal sanctions to outcomes lacking violator intent or control is likely to result in the over-criminalization of environmental law. Equally troubling, if judicial discretion is used to impose significant downward departures from the Federal Sentencing Guidelines, the trivialization of CWA enforcement is inevitable. Thus, overzealous prosecution runs the risk of creating over-deterrence and stripping criminal sanctions of their moral stigma, while lax criminal sanctioning undermines deterrence objectives and minimizes the importance of violating federal environmental law itself. Policy implications of recent sanctioning trends, as well as future research needs, are also explored.


Discretion exists wherever the law leaves a public official free to make a choice. (1) Put another way, to the extent that discretion exists, legal outcomes are underdetermined by the letter of the law. Discretion may therefore be thought of as the "wiggle room" that the system leaves for the disparate or individualized treatment of parties before the law. The law may expressly delegate discretionary authority or it may exist de facto, due to a lack of review.

While we aspire to an objective system of "laws not men," some measure of discretion is inevitable; The absolute and automatic enforcement of the law is practically impossible and would, in any case, be both unconscionably harsh and prohibitively expensive. Discretion allows room for judgment. Of course, wherever there is room for judgment, there is room for bias. Discretion therefore remains a persistent chink in the law's armor; A chink that invites attack by anyone who seeks to call the objectivity of the law into question.

So much of the legal system is discretionary that some critics have gone as far as to conclude that the law amounts to no more than a "ritual dance," (2) the performance of which may be manipulated by prosecutors and courts to produce any substantive outcome they desire. The solemn observance of the dance's formalities, they hold, serves merely to consecrate the "myth of due process." (3) Although this radical critique is directed at the legal system as a whole, similar (though somewhat less stringent) charges have recently been leveled against the enforcement of environmental crime, specifically.

While it is not immediately clear that these criticisms have merit, it is easy to see why environmental law is particularly susceptible to them. Environmental crimes are relatively new to the American legal landscape and attitudes toward them are still far from uniform. While many believe criminal law to be an uncommonly effective means of environmental regulation, society has yet to reach any consensus about the seriousness of environmental offenses. Some feel that harms to the environment lack the moral weight of crimes committed against human beings, and should therefore be addressed only through regulatory sanctions like compliance orders, injunctions and money damages. At the other end of the spectrum are those who judge the scale of environmental damage so large and its consequences so grave that even accidental violations may merit prison time.

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