Thinking outside the "Black Box": Tailored Enforcement in Environmental Criminal Law[dagger]
Fortney, David C., Texas Law Review
A longstanding debate in environmental law centers around the best way to achieve corporate compliance with the many complicated provisions of environmental statutes and regulations. Effective enforcement of environmental laws against corporations is vital to any environmental-protection regime: by virtue of their size and industrial nature, corporations are often among the largest producers of pollutants. Yet corporations are not always "polluters" in a derogatory sense; some amount of polluting byproducts are inevitable in any industrial enterprise, and American business cannot completely eliminate its emissions and effluents. Therefore, environmental enforcement must walk a fine line between being overly harsh and overly lax if it is to accomplish its goals.
In the early days of environmental regulation, violations carried largely insignificant civil fines as penalties.1 Under this initial regime, corporations had little incentive to comply with environmental laws: it was more cost-effective to continue to pollute more than the law allowed and simply pay the fine (if the corporation was actually caught violating the law).2 Somewhat perversely, corporations actually had a disincentive to comply. Compliance generally raises operating costs, which means that corporations trying to obey the law-whether out of a sense of legal duty or public obligation-lose a competitive edge to lawbreakers and consequently may suffer in the marketplace.3 In any event, absent some guilt for breaking the law, corporate officers likely lost little sleep over their continued violations.
Over the course of the 1980s, Congress, the Department of Justice (DOJ), and the Environmental Protection Agency (EPA) realized that a harsher enforcement regime was necessary to ensure compliance with environmental laws.4 To achieve this goal, Congress increased the complexity of the regulatory regime and raised many violations from misdemeanors to felonies.5 The DOJ established an Environmental Crimes Section, and the EPA was allowed dramatically to increase the number-and legal powers-of its environmental investigators.6 The theory was, and remains, that without criminal sanctions, including heavy fines and occasionally the imprisonment of corporate officers, corporations would continue to treat environmental violations as a "cost of doing business."7 Indeed, the DOJ and EPA were very successful even in the formative years of criminal enforcement. From 1983 to 1990, the DOJ assessed a total of $57,358,404 in criminal penalties and obtained sentences of imprisonment for fifty-five percent of criminal defendants.8 Corporate officers could no longer sleep quite as soundly with the knowledge of continued environmental violations.
Public reaction toward environmental crime increased the pressure to obtain stiffer penalties. Images of "midnight dumpers" and other heartless, profit-driven businessmen portrayed in books like A Civil Action raised awareness among members of the public. Indeed, in one survey of public perception of the severity of various crimes, environmental crime ranked seventh-above armed robbery and other serious crimes.9 Thus, for nearly two decades, the prevailing viewpoint (and prosecutorial standard) has been to punish the corporation as a criminal. Increasingly this has also entailed the use of criminal sanctions against individual officers of these corporations.10
However, the increased deterrence of criminal penalties has not been achieved without a price. Critics of corporate criminal liability in environmental law point out as particularly problematic the erosion of the mens rea required for corporate liability, the artificial nature of "guilt" imputed to corporate officers, and the unfairness engendered by virtually unlimited prosecutorial discretion enjoyed by the DOJ's Environmental Crimes Section.11 In addition, these critics highlight the enormous complexity of environmental laws, noting that it is often unclear whether or not a violation has actually occurred. …