The New Environmental Hazard: Prison

By Kole, Janet S.; Lefeber, Hope C. | Risk Management, June 1994 | Go to article overview

The New Environmental Hazard: Prison

Kole, Janet S., Lefeber, Hope C., Risk Management

Lawyers at the United States Environmental Protection Agency (EPA) say that the much-threatened explosion of criminal prosecutions for violations of environmental statutes will begin in earnest in 1994. Pursuant to the Pollution Prosecution Act of 1990, Congress has authorized the EPA to hire as many as 200 criminal investigators by 1995, and federal criminal prosecutions, while certainly not overwhelming in number, have increased more than 300 percent in the last 10 years, with criminal penalties totalling over $260 million in fines and 446 years in prison for environmental criminals.

What makes the prospect of criminal prosecution for an environmental crime so daunting is that more and more frequently, the targets are corporate officers or line managers whose "crime" involved someone else's bad act, or who merely failed to file paperwork required under any one of the many environmental statutes and regulations. This plethora of rules virtually guarantees that no company or individual can always be completely in compliance. And, worst of all, if the violation of an environmental statute or regulation has occurred, there is no absolute defense to criminal liability. Since risk managers don't want to put their CEOs - or themselves - at risk of going to prison, they must develop ways to protect themselves and their officers. Fortunately, there are methods for reducing the risk of being prosecuted for a violation of environmental laws or regulations.

Environmental vs. Other Crimes

First, it is important to discuss how much easier it is for prosecutors to prove an environmental crime than any other type of crime. A fundamental tenet of this nation's criminal law requires that before an act can constitute a crime, the perpetrator must act with criminal intent, or "mens rea." The Supreme Court has held that this tenet is central to the principles of Anglo-American criminal jurisprudence.

However, as national consciousness of environmental issues has increased, Congress has enacted environmental statutes criminalizing some types of conduct without regard to the accused's intent. There are a number of environmental statutes that provide for the conviction of a defendant upon a showing of mere negligence, whether or not the defendant had actual knowledge. Such a conviction exposes an individual to potential terms of imprisonment of one year or less. in addition, certain federal environmental statutes provide for the escalation from a misdemeanor to a felony for conduct that is engaged in "knowingly." Such a conviction can expose an individual to up to five years imprisonment, and even up to 15 years in the case of "knowing endangerment."

Proof of the traditional criminal intent discussed above is not, however, required in the case of an environmental crime; "knowledge" may be inferred from circumstantial evidence and does not have to rise to the level of criminal intent. According to recent opinions in criminal cases, in environmental prosecutions the government generally need demonstrate only that a person knew what he or she was doing and did it voluntarily, not accidentally. it is not necessary to show actual knowledge of what the law requires, or specific intent to violate the law. Thus, since "knowledge" may be inferred from circumstantial evidence, criminal prosecution can be based on virtually any environmental violation.

Who's the Target?

The most alarming aspect of the recent trend in environmental prosecutions is the fact that in addition to the corporate entity itself, there are an increasing number of individual employees of the corporation being targeted for prosecution. Such targeted individuals include not only environmental managers and engineers, but also corporate officers with broad responsibilities for development of corporate policies and the capacity to influence compliance with company policies and procedures and environmental law.

In targeting upper management such as corporate officers and chief executive officers for criminal prosecution, the government relies upon the "responsible corporate officer" doctrine. …

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