Protection of the environment through criminal Law: an american perspective
| Author | David M. Uhlmann |
| Pages | 144-163 |
144 DAVID M. UHLMANN
PROTECTION OF THE ENVIRONMENT THROUGH
CRIMINAL LAW: AN AMERICAN PERSPECTIVE
David M. UHLMANN
Abstract
In this article, I consider how the United States approaches the question of what conduct is
criminalized under the environmental laws and what entities should be held accountable for
environmental crime. Part I of this article explains how the act and mental state requirements under
American law do not impose significant limits on what conduct is criminalized. Part II of this article
suggests that criminal enforcement should be reserved for cases where aggravating factors are
present and summarizes my research regarding the extent to which prosecutors have focused on
matters involving those aggravating factors. Part III argues that both corporations and individuals
should be held accountable when criminal violations occur and asserts that criminal prosecution
serves retributive, utilitarian, and expressive purposes, particularly for corporate environmental
crime. I conclude that a robust criminal enforcement regime should be part of a multi-tiered
enforcement scheme under the environmental laws with both corporate and individual liability.
Keywords: criminal law, corporate and individual liability, multi-tiered enforcement scheme.
More than two dozen environmental and natural resource statutes were
enacted in the United States during the 1970s and 1980s.1 The Clean Air Act
amendments in 19702 and the Clean Water Act amendments in 19723 brought
dramatic changes in how the United States addressed air and water pollution. The
Endangered Species Act of 19734 provided unprecedented protection for the
critical habitat of endangered and threatened species. The Resource Conservation
Jeffrey F. Liss Professor from Practice and Director of the Environmental Law and Policy
Program, University of Michigan Law School. This article is based on my prepared remarks at the
Second AIDP World Conference entitled “Protection of the Environment through Criminal Law” held
in Bucharest, Romania during May 2016. Parts I and II of the article are adapted excerpts from David
M. Uhlmann, Prosecutorial Discretion and Environmental Crime, 38 HARV. ENV’TL. L. REV. 159, 164 (2014);
Part III of the article is an adapted excerpt from David M. Uhlmann, The Pendulum Swings:
Reconsidering Corporate Criminal Prosecution, 49 U.C. Davis L. Rev. 1235 (2016). I am grateful to AIDP
President John Vervaele and Professor Mircea Dutu for inviting me to participate in the conference
and to Professor Andrei Dutu for being such a terrific host throughout my visit to Bucharest.
1 See Richard J. Lazarus, The Making of Environmental Law 69-73 (2004).
2 42 U.S.C. §§ 7401 to 7671q.
3 33 U.S.C. §§ 1251 to 1387.
4. 16 U.S.C. §§ 1531 to 1544.
Law Review vol. VI, issue 2, July-December 2016, p. 144-163
Protection of the environment through criminal law … 145
and Recovery Act of 19765 introduced “cradle-to-grave” regulation of hazardous
waste in the United States, as well as provisions governing waste management
more generally. The Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 created retroactive joint and several liability for the cleanup of
hazardous waste sites.6
Taken together, the laws enacted during the 1970s and 1980s fundamentally
changed how the United States addresses pollution, stewards its natural resources,
and protects biodiversity, culminating with the Clean Air Act amendments of 1990,
which expanded the regulation of hazardous air pollutants,7 enacted controls for
acid rain,8 and implemented the treaty obligations of the Montreal Protocols.9 Since
1990, the United States has not enacted any significant new environmental laws,
even though the environmental and sustainability challenges facing America and
the world have increased dramatically over the last 25 years.10
The failure to enact new environmental laws in the United States reflects the
increased partisanship and polarization of American politics. Environmental
protection enjoyed broad bi-partisan support during the 1970s in the United States,
with environmental laws passing with nearly unanimous support.11 Today, with
some exceptions, support for new environmental protection laws—to include
climate change mitigation efforts—is limited to the majority of Democrats and
opposed by the majority of Republicans.12
What has not changed in the United States, however, is our commitment to
vigorous enforcement of the environmental laws. The United States utilizes a
multi-tiered enforcement approach that includes criminal, civil, and administrative
penalties.13 Egregious violations of the law, particularly those that cause harm to
public health and the environment or involve deceptive conduct that undermines
the effectiveness of the regulatory system, can result in criminal prosecution.14
Significant environmental protection measures that involve new or controversial
5 42 U.S.C. §§ 6901 to 6992k.
6 42 U.S.C. §§ 9601 to 9675.
7 42 U.S.C. § 7412(b).
8 42 U.S.C. §§ 7651 to 7651o.
9 42 U.S.C. §§ 7671 to 7671q.
10 David M. Uhlmann, The Quest for a Sustainable Future, 1 Mich. J. Envt’l & Admin. L. 1, 10 (2012).
11 Richard J. Lazarus, The Greening of America and the Graying of United States Environmental Law:
Reflections on Environmental Law’s First Three Decades in th e United States, 20 VA. Envtl. L.J. 75, 79 (2001).
12 Jaime Fuller, Environmental policy is partisan. It wasn’t always. WASH. POST (June 2, 2014), available
at https://www.washingtonpost.com/news/the-fix/wp/2014/06/02/support-for-the-clean-air-act-has-changed-a-
lot-since-1970/.
13 See generally David M. Uhlmann, Environmental Protection through Law: The Role of Corporate
Criminal Prosecution, forthcoming Jus, 1 (2016).
14 See David M. Uhlmann, Prosecutorial Discretion and Environmental Crime, 38 Harv. Env’tl. L.
Rev. 159, 164 (2014). I also argue that operating outside the regulatory system and repetitive violations
of the environmental laws may warrant criminal enforcement, while more technical violations are
more appropriate for civil or administrative enforcement.
146 DAVID M. UHLMANN
legal requirements often are addressed by civil judicial enforcement. Less serious
violations are the focus of administrative enforcement by either the federal
Environmental Protection Agency or a state environmental agency; minor
violations at facilities that have no history of environmental violations might be
resolved by regulatory “compliance counseling” without the need for formal
enforcement action.15
In addition, when environmental violations occur in the United States that are
not addressed by the federal and state governments, the environmental laws
authorize citizen suits by environmental groups and other private parties to obtain
penalties and injunctive relief.16 In essence, the citizen suit provisions of the
environmental laws create a private attorney general model in cases where the
government fails to act to address environmental violations. These citizen suit
provisions ensure that political considerations, regulatory capture, and limited
government resources do not limit environmental protection efforts in the United
States.17
A multi-tiered enforcement system that authorizes criminal, civil, and
administrative remedies combined with citizen suit authority when the
government does not address violations has helped increase air and water quality
and decrease the number of hazardous waste sites in the United States.18 Even
though the American environmental law system must be updated to address the
environmental and sustainability challenges of the 21st century, our multi-tiered
enforcement system remains an optimal model for how to ensure compliance with
environmental laws and the significant environmental and public health benefits
those laws provide.
The more difficult question is the role of criminal enforcement in the optimal
multi-tiered environmental enforcement system. Each of the major environmental
laws enacted in the United States during the 1970s includes criminal provisions,
most of which were upgraded to felonies during the 1980s.19 Since that time, the
United States has developed the most robust environmental crimes program in the
world, with hundreds of corporate and individual defendants prosecuted. But it is
a central tenet of a multi-tiered enforcement system, and a fundamental fairness
principle, that not every violation of the environmental laws should be criminal.
15 Uhlmann, Environmental Protection through Law, supra note 13 at 2.
16 See, e.g., 33 U.S.C. § 1365 (authorizing citizen suits for violations of the Clean Water Act).
17 Uhlmann, Environmental Protection through Law, supra note 13 at 2.
18 EPA, Air Quality Trends, available at http://www.epa.gov/airtrends/aqtrends.html (noting
improvements in air quality); EPA, Progress in Water Quality 15–18 (2000), available at
http://water.epa.gov/polwaste/wastewater/treatment/benefits.cfm (noting that tremendous
progress has been made in improving water quality in nine sample waterways); EPA, Beneficial
Effects of the Superfund Program 17 (2011), available at http://www.epa.gov/superfund/accomp/
pdfs/SFBenefits-031011-Ver1.pdf (noting that over the past twenty-five years, federal government
programs remediated approximately 500,000 hazardous waste sites).
19 See David M. Uhlmann, Environmental Crime Comes of Age: The Evolution of Criminal Enforcement
in the Environmental Regulatory Scheme, 4 UTAH L. REV. 1223, 1227 (2009).
Protection of the environment through criminal law … 147
Perhaps the distinction between criminal and non-criminal enforcement
should be based upon the act requirement, with some violations treated as criminal
and others only giving rise to civil and administrative enforcement. Or the
distinction could depend upon the mental state requirement, with willful or
knowing violations treated as criminal and negligent or strict liability violations
only giving rise to civil and administrative enforcement. Still another approach
would be to distinguish based on both the act requirement and the mental state
requirement, in essence limiting criminal enforcement to certain kinds of violations
that occur with what the law might consider a culpable mental state. Whatever the
approach, there also is the role of prosecutorial discretion, which in all enforcement
regimes limits what conduct is treated as criminal.
In this article, I consider how the United States approaches the question of
what conduct is criminalized under the environmental laws and what entities
should be held accountable for environmental crime. Part I of this article explains
how the act and mental state requirements under American law do not impose
significant limits on what conduct is criminalized. Part II of this article suggests
that criminal enforcement should be reserved for cases where aggravating factors
are present and summarizes my research regarding the extent to which
prosecutors have focused on matters involving those aggravating factors. Part III
argues that both corporations and individuals should be held accountable when
criminal violations occur and asserts that criminal prosecution serves retributive,
utilitarian, and expressive purposes, particularly for corporate environmental
crime. I conclude that a robust criminal enforcement regime should be part of a
multi-tiered enforcement scheme under the environmental laws with both
corporate and individual liability.
1. The United States broadly defines what conduct constitutes environmental
crime
Environmental crimes are no different than other crimes in the United States.
They require proof that the defendant committed a prohibited act (the actus reus or
act requirement) and did so with the requisite intent (the mens rea or mental state
requirement).20 Congress therefore has two ways to define criminal conduct under
the environmental laws, as it does in other areas of the law. First, Congress can
specify the acts or violations that are egregious enough to warrant the moral and
social opprobrium of criminal prosecution. Second, Congress can specify the mental
state or intent that a defendant must possess to be held criminally responsible.
With regard to the act requirement, Congress identified some of the conduct
that it viewed as criminal when it included criminal provisions in each of the major
20 See, e.g., John Kaplan, et al., Criminal Law: Cases and Materials 103 (6th ed. 2008).
148 DAVID M. UHLMANN
environmental laws. For example, Congress included language in the Clean Water
Act (CWA), the Resource Conservation and Recovery Act (RCRA), and the Clean
Air Act (CAA) making it a crime to knowingly make false statements in
documents required under the relevant law and any implementing regulations.21
Congress included similar language that prohibited tampering with or rendering
inaccurate required monitoring methods under the environmental laws.22
Congress also made clear that failure to obtain permits for the disposal of
hazardous waste, the discharge of pollutants into waters of the United States, and
the construction of new stationary sources of air pollution could give rise to
criminal liability, as could violations of permits issued pursuant to the
environmental laws.23 Congress provided enhanced penalties for environmental
violations that placed others in imminent danger of death or serious bodily
injury.24 In each of these ways, Congress took meaningful steps to define which
violations of the environmental laws are criminal.
In other ways, however, Congress did not distinguish criminal violations of
the environmental laws from violations warranting only civil or administrative
enforcement.25 Congress allowed all permit violations to satisfy the act
requirement for criminal prosecution.26 As a result, Congress criminalized both
substantive permit violations, such as discharging in excess of permit limits, and
more technical permit infractions, such as failing to maintain documents for a
specified period of time. Congress used similarly expansive language in the
criminal provisions that apply to notification, recordkeeping, and filing
21 33 U.S.C. § 1319(c)(4) (2012) (“knowingly make any false material statement, representation, or
certification in any application, record, report, plan, or other document filed or required to be
maintained [under the CWA] . . . .”); 42 U.S.C. § 6928(d)(3) (2012) (“knowingly omits material
information or makes any false material statement or representation in any application, label,
manifest, record, report, permit, or other document filed, maintained, or used for purposes of
compliance [with RCRA] . . . .”); 42 U.S.C. § 7413(c)(2)(A) (2012) (“knowingly makes any false materi al
statement, representation, or certification in, or omits material information from, or knowingly alters,
conceals, or fails to file or maintain any notice, application, record, report, plan, or other document
required [by the CWA] . . . .”).
22 33 U.S.C. § 1319(c)(4) (“knowingly falsifies, tampers with, or renders inaccurate any
monitoring device or method required to be maintained under [the CWA]. . . .”); 42 U.S.C. §
7413(c)(2)(C) (“knowingly . . . falsifies, tampers with, renders inaccurate, or fails to install any
monitoring device or method required to be maintained or followed under [the CWA]. . . .”).
23 42 U.S.C. §§ 6928(d)(1)–(2), (7) (disposal of hazardous waste); 33 U.S.C. §§ 1319(c)(1)–(2)
(discharge of pollutants into waters of the United States); 42 U.S.C. §§ 7413(c)(1), (5) (preconstruction
permits).
24 42 U.S.C. § 6928(e); 42 U.S.C. § 7413(c)(5); 33 U.S.C. § 1319(c)(3).
25 Uhlmann, Environmental Crime Comes of Age, supra note 19, at 1242.
26 E.g., 33 U.S.C. §§ 1319(c)(1)–(2) (criminalizing the negligent or knowing violation of “any
permit condition or limitation” under the CWA).
Protection of the environment through criminal law … 149
requirements.27 In the process, Congress made it possible for nearly any violation
of the environmental laws to satisfy the act requirement, regardless of the
seriousness of the violation.28
Perhaps Congress acted wisely when it broadly defined environmental crimes.
After all, it is difficult for legislatures to anticipate the myriad ways that violations
might occur in complex regulatory schemes.29 It may be better to provide broad
enforcement tools to address violations and to rely upon the government to
exercise its enforcement authorities in a reasonable way.30 If the government
abuses its discretion in a particular case, the judge may use her authority to limit
the evidence or direct a verdict for the defendant; if overreaching occurs on a more
systemic basis, the legislature could restrict the government’s discretion.
On the other hand, many environmental violations, at least at their inception,
were malum prohibitum (a prohibited wrong) as opposed to malum in se (inherently
wrongful).31 Of course, legislatures are not required to limit criminal provisions to
malum in se conduct. Nonetheless, Congress might have mitigated concerns about
over-criminalization under the environmental laws32 if it had limited criminal
prosecution to violations that already were or soon would become malum in se.
Indeed, as noted above, Congress took exactly that approach when it focused on
harmful pollution and deceptive conduct. But in many areas of the environmental
enforcement regime, Congress abandoned a more rigorous definitional effort in
favor of catch-all language that imposes few limits on the act requirement. As a
result, the act requirement does not limit the role of criminal enforcement under
the environmental laws in the United States as much as might be considered
optimal.
The mental state requirement goes further than the act requirement in
distinguishing criminal from civil and administrative violations, at least as a matter
of statutory construction. For most felony violations of the CWA, CAA, and RCRA,
27 E.g., 42 U.S.C. § 6928(d)(3) (criminalizing knowing omissions of “material information” and
the making of “any false material statement or representation in any application, label, manifest,
record, report, permit, or other document filed, maintained, or used for purposes of compliance with
regulations promulgated by the Administrator [pursuant to RCRA]”).
28 Uhlmann, Environmental Crime Comes of Age, supra note 19, at 1225. See also Richard J. Lazarus,
Meeting the Demand of Integration in the Evolution of Environmental Law: Reforming Environmental
Criminal Law, 83 Geo. L.J. 2407, 2453–55 (1995) (arguing that Congress failed to specify a state of mind
that reflects heightened levels of culpability for environmental crime).
29 Uhlmann, Environmental Crime Comes of Age, supra note 19, at 1233.
30 Id. at 1244.
31 Id. at 1230.
32 Id. at 1229 (citing Erik Luna, The Overcriminalization Phenomenon, 54 AM. U. L. Rev. 703, 709
(2005)).
150 DAVID M. UHLMANN
the government must show that the defendant acted knowingly.33 Criminal
violations of the Comprehensive Environmental Response, Compensation, and
Liability Act (“CERCLA”) also are limited to situations where the defendant acted
knowingly.34 Similarly, the misdemeanor provisions of the CWA apply only when
the defendant acted negligently.35 In contrast, civil and administrative violations of
the environmental laws do not require the government to prove a culpable mental
state; they are strict liability violations, so the government must prove only that the
defendant committed the prohibited act.36
Mental state often is a significant issue during criminal trials because of the
difficulty of proving what a defendant knew. Nonetheless, mental state
requirements may not distinguish criminal, civil, and administrative violations as
much as the additional proof requirements suggest.37 Numerous appellate court
decisions have construed “knowingly” under the environmental laws to require
knowledge of the facts that make the charged conduct unlawful but not
knowledge that the conduct was illegal.38 Those decisions have drawn support
from the United States Supreme Court’s admonition in United States v. International
Minerals and Chemical Corp. that “ignorance of the law is no defense” and “where
obnoxious waste materials are involved, the probability of regulation is so great
that anyone who is aware that he is in possession of them or dealing with them
must be presumed to be aware of the regulation.”39 Moreover, the mental state
requirements for environmental crimes mirror the knowledge requirements for
most federal crimes.40 As the Supreme Court explained in Bryan v. United States,
“unless the language of the statute dictates a different result, the term ‘knowingly’
merely requires proof of knowledge of the facts that constitute the offense.”41
As a result, the government must prove the defendant’s knowledge of the
discharges in a CWA case, but is not required to show that the defendant knew
33 33 U.S.C. § 1319(c); 42 U.S.C. § 6928(d) (2012); 42 U.S.C. § 7413(c) (2012).
34 42 U.S.C. § 9603(b) (2012).
35 33 U.S.C. § 1319(c).
36 See 33 U.S.C. § 1319(b); 42 U.S.C. § 6928(c); 42 U.S.C. § 7413(b).
37 Compare Susan F. Mandiberg, What Does an Environmental Criminal Know?, 23 Nat. Resources &
Env’t 24 (2009), with J.T. Morgan, The Mythical Erosion of Mens Rea, 23 Nat. Resources & Env’t 29 (2009).
38 See, e.g., United States v. Hopkins, 53 F.3d. 533, 537–40 (2d Cir. 1995) (CWA); United States v.
Buckley, 934 F.2d 84, 88 (6th Cir. 1991) (CAA); United States v. Laughlin, 10 F.3d 961, 965, 967 (2d. Cir.
1993) (RCRA).
39 United States v. Int’l Minerals & Chem. Corp., 402 U.S. 558, 565 (1971).
40 Uhlmann, Environmental Crime Comes of Age, supra note 19, at 1235.
41 Bryan v. United States, 524 U.S. 184, 193 (1998) (footnote omitted). The Court thus disti nguished
a “knowing” act from a “willful” act, holding that a willful violation required the government to
“prove that the defendant acted with knowledge that his conduct was unlawful.” Id. at 192 (citing
Ratzlaf v. United States, 510 U.S. 135, 137 (1994)).
Protection of the environment through criminal law … 151
that the CWA requires permits for discharges.42 In a RCRA disposal case, the
government must prove that the defendant intentionally disposed of waste and
knew the waste had the substantial potential to be harmful to human health or the
environment, but it would not need to show that the defendant knew the waste
was hazardous under RCRA or that a permit was required for its disposal.43 In a
CAA case, the government must show that the defendant knew the nature of the
pollutant in question (i.e. the fact that it was asbestos), but it does not need to show
that the defendant knew that the pollutant was regulated under the Act or the
scope or requirements of those regulations.44
The knowledge requirements under American law are appropriate, since they
make clear that companies are obligated to know their legal obligations and cannot
plead ignorance of the law as a defense. Since most pollution involves intentional
conduct, however, mental state requirements may not differentiate criminal
enforcement from civil and administrative enforcement, other than foreclosing
felony prosecution in cases of accidental pollution. Civil enforcement cases also
often involve conduct that would satisfy the “knowingly” requirement under the
environmental laws. For example, a facility that does not have pollution controls
required under the CAA, almost certainly is acting knowingly in the sense that
management knows that the facility does not have a “scrubber” or whatever
pollution control device is required. Yet, until recently, the government largely has
pursued civil or administrative remedies in CAA cases involving the lack of
pollution controls, particularly if the facilities involved are otherwise complying
with the Act, because of uncertainty about the scope and meaning of the
underlying regulatory requirements.45
Of course, there are environmental violations that clearly occur unintentionally
and would be beyond the reach of the criminal provisions of the environmental
laws, at least for statutes that only allow prosecution for knowing conduct. For
example, a facility that has a CWA permit would not commit a knowing violation
of its permit if it experienced a mechanical failure or some other unforeseen
circumstance that caused a permit exceedance. Such violations would likely be
subject only to civil or administrative enforcement, unless the company involved
did not promptly and accurately report the resulting permit violations to EPA or
the State.
42 See, e.g., Hopkins, 53 F.3d at 541.
43 See, e.g., United States v. Self, 2 F.3d 1071, 1089–92 (10th Cir. 1993).
44 See, e.g., United States v. Buckley, 934 F.2d 84, 88 (6th Cir. 1991).
45 See, e.g., United States v. Duke Energy Corp., 278 F. Supp. 2d 619, 626, 630–32 (M.D.N.C. 2003)
(government pursues civil enforcement action due in part to the lack of clarity of the CAA’s New
Source Review standards), aff’d on other grounds, 411 F.3d 539 (4th Cir. 2005), vacated sub nom. Envtl.
Def. v. Duke Energy Corp., 549 U.S. 561 (2007).
152 DAVID M. UHLMANN
But even where accidental pollution is involved, criminal prosecution still
might be possible for CWA and CAA violations. Those statutes authorize
prosecution for negligent discharges (CWA)46 and negligent endangerment
(CAA).47 In addition, misdemeanor prosecutions under the Refuse Act48 and the
Migratory Bird Treaty Act49 are strict liability offenses that, according to some
courts, do not require proof of mental state.50 Criminal violations of those statutes
require the same proof as civil or administrative claims.
In sum, mental state requirements impose an additional burden of proof on
criminal prosecutors in the United States that their civil counterparts are not
required to meet. In addition, since mental state often is difficult to prove and must
be shown circumstantially,51 the additional burden may be significant in some
cases (particularly since criminal prosecutors in the United States must prove each
element beyond a reasonable doubt rather than by the civil standard of a
preponderance of the evidence). Nonetheless, while proving mental state is an
additional legal requirement, as a practical matter it would be wrong to conclude
that criminal cases are distinguished from civil cases by the presence or absence of
knowing conduct. The bottom line therefore is that the environmental laws in the
United States do not differentiate between criminal and civil or administrative
violations as much as might be expected—nor as much as might be normatively
desirable.
2. Prosecutors in the United States reserve criminal charges for conduct with
aggravating factors
If the same violation could give rise to criminal, civil, or administrative
enforcement — and if mental state requirements only preclude criminal enforcement
for a small subset of violations — what determines which environmental violations
result in criminal prosecution? The answer is the exercise of prosecutorial discretion,
which exists in all areas of the criminal law, but assumes a particularly critical role in
environmental cases in the United States because so much conduct falls within the
criminal provisions of the environmental laws.
46 See 33 U.S.C. § 1319(c)(1)(B) (2012).
47 42 U.S.C. § 7413(c)(4) (2012).
48 33 U.S.C. § 407 (2012).
49 16 U.S.C. § 703 (2012).
50 See United States v. Apollo Energies Inc., 611 F.3d 679, 684–86 (10th Cir. 2010) (finding no mental
state requirement for prosecution under the Migratory Bird Treaty Act); United States v. White Fuel
Corp., 498 F.3d 619, 622 (1st Cir. 1974) (finding no mental state requirement for prosecution unde r the
Refuse Act). But see United States v. Citgo Petroleum Corp., ___ F.3d. ___ (5th Cir. 2015) (finding that the
Migratory Bird Treaty Act does not extend to the unintentional taking or killing of migratory birds).
51 See United States v. Williams, 195 F.3d 823, 826 (6th Cir. 1999).
Protection of the environment through criminal law … 153
Critics of environmental criminal enforcement argue that Congress gave too
much discretion to prosecutors or, even worse from their perspective, to agency
enforcement officials.52 They argue that whether a case is criminal may be
determined by nothing more substantive than whether the case originates with a
criminal investigator or with one of their civil or administrative counterparts
within the regulatory agency.53 Even supporters of criminal enforcement
acknowledge that prosecutorial discretion is broad under the environmental
laws.54 But they insist that it is no greater than in other areas of economic or
regulatory crime and that Congress properly relied on the good sense of
prosecutors, the wisdom of judges, and the judgment of juries to determine when
violators of the environmental laws should be convicted of criminal activity.55
I see no merit in debating whether prosecutorial discretion is broad under the
environmental laws in the United States— it clearly is — and I concede that it may
be disquieting in a nation predicated on the rule of law that so much discretion is
given to individual prosecutors to determine what conduct should be criminally
prosecuted. I also acknowledge that the extent of prosecutorial discretion under the
environmental laws may raise uncertainty in the regulated community about which
environmental violations will result in criminal prosecution. On the other hand, the
American criminal justice system always relies to some degree upon the exercise of
prosecutorial discretion to determine which violations will be prosecuted criminally.
To evaluate whether prosecutors have too much discretion — and to address claims
that the environmental laws criminalize too much conduct — we need to know more
about the circumstances under which environmental prosecutors exercise their
discretion to seek criminal charges for violations.
For environmental crimes, I have argued that prosecutors should exercise their
discretion to reserve criminal enforcement for cases with one or more of the
following aggravating factors: (1) significant environmental harm or public health
effects; (2) deceptive or misleading conduct; (3) operating outside the regulatory
system; or (4) repetitive violations.56 Limiting criminal enforcement to cases with
52 See Keith A. Onsdorff & James M. Mesnard, The Responsible Corporate Officer Doctrine in RCRA
Criminal Enforcement: What You Don't Know Can Hurt You, 22 Envtl. L. Rep. 10099, 10104 (1992);
John C. Coffee, Jr., Does "Unlawful" Mean "Criminal". Reflections on the Disappearing Tort/Crime
Distinction in American Law, 71 B.U. L. Rev. 193, 210–13 (1991) (objecting to the alleged “diminution of
mens rea” by environmental statutes).
53 See Judson W. Starr, Turbulent Times at Justice and EPA: The Origins of Environmental Criminal
Prosecutions and the Work that Remains, 59 Geo. Wash. L. Rev. 900, 913–14 (1991).
54 See Kathleen F. Brickey, The Rhetoric of Environmental Crime: Culpability, Discretion, and
Structural Reform, 84 Iowa L. Rev. 115, 127 (1998).
55 United States v. Dotterweich, 320 U.S. 277, 285 (1943) (relying on strict liability tethered to “the
good sense of prosecutors, the wise guidance of trial judges, and the ultimate judgment of juries”);
56 See Uhlmann, Environmental Crime Comes of Age, supra note 19, at 1246-52.
154 DAVID M. UHLMANN
one or more of these aggravating factors would preclude prosecution for technical
or de minimis violations and provide greater clarity about which environmental
violations might result in criminal charges. The presence of one or more of these
factors also would delineate an appropriate role for criminal prosecution in the
environmental regulatory scheme by limiting criminal prosecution to cases
involving substantial harm or risk of harm or to cases in which the conduct
involves the type of deliberate misconduct we consider criminal in other contexts
as well.
To determine whether the aggravating factors I identified as normatively
desirable were present in recent prosecutions, I reviewed all cases investigated by
EPA from 2005-2010 that involved pollution crime and were charged in federal
court (EPA also investigates some wildlife crimes, as well as cases charged in state
court, which I did not review). Over a three-year period, with assistance from 120
Michigan Law students, I reviewed court documents for over 600 cases involving
nearly 900 corporate and individuals defendants.
For the first aggravating factor, significant environmental harm or public
health effects, our study focused on five types of harm: (1) serious bodily injury or
death; (2) knowing or negligent endangerment; (3) animal deaths; (4) cleanup
costs; and (5) evacuations and emergency responses. Cases involving these harms
often receive attention from investigators and prosecutors because they are more
compelling for judges and juries.
For the second aggravating factor, deceptive or misleading conduct, our study
analyzed whether deceptive or misleading conduct occurred during (1) the
commission of the underlying offense (e.g., by using a bypass line to circumvent
pollution control equipment); (2) reporting or recordkeeping (e.g., falsifying
documents to conceal pollution control activity); or (3) a cover-up after the
violations occurred (e.g., lying to investigators and destroying evidence of a crime).
Deceptive or misleading conduct undermines the effectiveness of environmental
protection because it allows illegal pollution to go undetected, undermines the
self-policing required under the environmental laws in the United States, and
deprives regulators of accurate information about overall levels of pollution, which
they need to make informed decisions about what pollution to permit.
For the third aggravating factor, operating outside the regulatory system, our
study identified companies and individuals that completely and deliberately
avoided regulatory compliance, thereby gaining an unfair competitive advantage
and undermining the effectiveness of the regulatory system. We did not include
defendants who complied with most, but not all, of their environmental regulatory
requirements.
Protection of the environment through criminal law … 155
For the fourth aggravating factor, repetitive violations, our study focused on
the duration of non-compliance. Environmental violations can involve isolated
events – which may be more suitable for civil or administrative enforcement unless
they cause substantial harm – or they can be repeated over a longer period of time.
Our goal was to identify how often the behavior was repetitive and the duration of
the misconduct.
Based on our research, we determined that 96% of the defendants (828 out of
864 defendants) engaged in conduct involving at least one of the four aggravating
factors. The most prevalent aggravating factors were repetitive violations (78% or
679 defendants) and deceptive or misleading conduct (63% or 545 defendants). The
third most common factor was operating outside the regulatory scheme (33% or
287 defendants), followed by defendants who caused significant harm (17% or 144
defendants).
These findings are shown in Figure 1:
144
545
287
679
0
100
200
300
400
500
600
700
800
Signif icant
Environmenta l
Harm or
Public Health
Effects
Deceptive or
Misleading
Conduct
Operating
Outside the
Regulatory
Syste m
Repetitive
Violations
Number of Defe ndants Char ged
Figure 1. Pros ecutorial Discretion Factors
864
These results support two significant conclusions, both of which suggest that
criminal enforcement was reserved for culpable conduct under the environmental
laws in the United States from 2005-2010.
156 DAVID M. UHLMANN
First, one or more aggravating factors are present for nearly all defendants prosecuted
under the environmental laws in the United States. This is a significant finding in light
of over-criminalization claims, since it suggests that criminal enforcement is
reserved for conduct involving the aggravating factors that, under my normative
model, might warrant criminal prosecution. It also may help address randomness
claims about criminal enforcement, since it suggests that prosecutorial discretion
may follow a distinctive pattern by focusing on defendants who engage in conduct
involving one or more aggravating factors.
Second, it is unlikely that there will be a criminal prosecution in the United States if
no aggravating factor is present. We identified only a small number of defendants
(36) who engaged in conduct that did not involve one of the aggravating factors.
This finding suggests that prosecutors are unlikely to pursue criminal charges for
violations of the environmental laws that do not involve significant harm,
deceptive or misleading conduct, facilities operating outside the regulatory system,
or repetitive violations. It also may help mitigate concerns that prosecutors are
targeting technical violations and defendants who acted in good faith.
I also analyzed how often multiple aggravating factors were present and
considered the relationship between factors. Two or more aggravating factors were
present for 74% of the defendants (638 out of 864 defendants). The fact that such a
high percentage of defendants had multiple aggravating factors suggests a higher
level of egregiousness than would be present if most defendants had only a single
aggravating factor.
Our data regarding the number of aggravating factors is presented in Figure 2:
Protection of the environment through criminal law … 157
An analysis of these data supports three additional findings regarding the
aggravating factors in environmental crimes.
First, one of the first three factors (all factors other than repetitiveness) was present for
88% of the defendants (761 out of 864 defendants). In other words, most defendants
were charged for violations that involved harm, deceptive or misleading conduct,
or operating outside the regulatory scheme. These findings may suggest a further
refinement of my overall conclusions: (1) in most instances, prosecutors have
reserved criminal prosecution for defendants with one of the first three
aggravating factors; and (2) defendants who engage in conduct that does not
involve one of the first three factors are unlikely to face criminal charges.
Second, repetitiveness often is present when criminal charges are brought but rarely is
the sole aggravating factor. Repetitiveness was the most prevalent of the four factors,
accounting for 79% of the defendants (679 out of 864 defendants). Repetitiveness
was the sole aggravating factor, however, for only 10% of the defendants who
committed repetitive violations (67 out of 679 defendants), which is the lowest for
any aggravating factor.57 Stated differently, 90% of the defendants who committed
repetitive violations (612 out of 679 defendants) also had at least one other
aggravating factor. These findings suggest that, while prosecutors may prefer to
charge repetitive violations, repetitiveness alone may not be driving charging
decisions.
Third, more than 71% of defendants (612 out of 864 defendants) engaged in conduct
that involved one of the first three factors (significant harm, deceptive conduct, operating
outside the regulatory system) and repetitiveness. Since most environmental crimes
involve one of the first three aggravating factors (88% of all defendants) and most
environmental crimes involve repetitive violations (79% of all defendants), we
would expect to see one of the first three factors present along with repetitiveness
in a high percentage of cases. But the relationship was even stronger when we
looked at multi-factor defendants. Repetitiveness was present for 96% of the
defendants with two or more aggravating factors (612 out of 638 defendants). For
defendants with two factors, repetitiveness was present for 94% of the defendants
(443 out of 469 defendants).58 The pairing of repetitiveness with one or more of the
other aggravating factors was the most dominant multi-factor relationship when
57 Operating outside the regulatory system also is the sole aggravating factor in only 11% of the
cases where it is present (30 out of 281 defendants). In contrast, deceptive or misleading conduct is the
sole aggravating factor for 36% of the defendants who engaged in deceptive or misleading conduct
(136 out of 547 defendants).
58 Of course, most defendants in our dataset committed repetitive violations, so I would expect to
see a significant overlap between repetitive violations and other factors. Still, it is revealing that the
other three factors were present so often and that repetitiveness appeared by itself so infrequently.
158 DAVID M. UHLMANN
calculated as a percentage of all defendants (71% of all defendants).59 This finding
suggests that prosecutors often reserve criminal prosecution for violations that
involve both one of the first three factors and repetitiveness and are less likely to
bring criminal charges if that relationship is absent.
Our research does not mean that the aggravating factors I have identified will
trigger criminal prosecution. Declined cases are not public, so we do not have a
control group of cases where prosecutors decided not to pursue criminal charges.
Nor could we create a comparison group of civil matters, because civil cases
involve notice pleading and most are resolved by consent decrees that do not
identify whether there were aggravating factors. Indeed, I would expect that civil
and administrative cases also involve at least significant harm and repetitive
violations (deceptive or misleading conduct, in my experience, is likely to result in
a referral for criminal enforcement). Nonetheless, my findings that criminal
enforcement is reserved for cases involving at least one of these aggravating factors
helps clarify the role of environmental criminal enforcement and reduces
uncertainty in the regulated community about which environmental violations
might lead to criminal charges.
3. Both corporations and individuals should be held accountable for
environmental crime
Criminal enforcement of the environmental laws in the United States largely
focuses on corporate wrongdoing—and with it the prosecution of corporations and
responsible individuals within those companies. As explained in more detail
below, the most effective way to combat environmental crime is to prosecute both
the corporations and the individuals involved. Environmental crime has
pernicious effects in our communities that warrant the use of all available tools to
address egregious violations of the environmental laws.
Corporations in the United States are criminally liable for the acts of their
employees or agents, committed within the scope of the employment or agency,
for the benefit of the corporation.60 The corporation must act with the mental state
59 The combination of one of the first three factors and repetitiveness also is the most dominant
relationship as a percentage of all cases, accounting for 68% of all cases in the dataset (450 out of 664
cases).
60 N.Y. Cent. & Hudson River R.R. v. United States, 212 U.S. 481, 494 (1909). New York Central
requires the first two elements: (1) acts of employees or agents; and (2) committed within the scope of
the employment or agency. Subsequent decisions have added for the benefit of the corporation as a
way of ensuring that the conduct is within the scope of the employment or agency. See, e.g., United
States v. Potter, 463 F.3d 9, 25 (1st Cir. 2006). The employee or agent acts for the benefit of the
corporation even if the employee or agent acts for her own benefit, as long as the employee or agent
acts at least in part to benefit the corporation. United States v. Automated Med. Labs, Inc., 770 F.2d 399,
407 (4th Cir. 1985).
Protection of the environment through criminal law … 159
required by the statute in question, which involves imputing the mental state of
individual employees or agents to the corporation.61 In cases where no corporate
employee or agent possesses the requisite mental state, however, criminal liability
may be imposed based on the collective knowledge of the corporate employees or
agents.62 It is not a defense for a corporation to argue that the conduct was not
authorized by the board or officers of the corporation.63 Nor is it a defense to argue
that the conduct was prohibited by official policies of the corporation or
instructions of supervisors.64
From a theoretical perspective, there are retributive and utilitarian
justifications for imposing criminal liability on corporations for environmental
crime. I argue that corporations are moral actors, with the capacity to act
intentionally and to do good or evil, despite the fact that they do not have
consciences, beliefs, or desires like individuals.65 Environmental crimes betray our
moral obligation to be stewards of the habitat that sustains all life and, in the
process, can cause ecological harm and jeopardize public health. From a utilitarian
perspective, companies that break the environmental laws must be deterred and
cannot have a competitive advantage over companies that comply with the law.
Companies do not want to be labelled corporate criminals and therefore will have
more incentives to avoid criminal sanctions than civil sanctions.
Moreover, the expressive value of criminal prosecution—the statement that
society makes, the condemnation it conveys, and the differentiation between
lawful and unlawful conduct—is essential to upholding the rule of law and to
environmental protection efforts, even though the criminal penalties that are
imposed against corporations (fines, restitution, and compliance requirements)
also could be imposed in civil cases.66 The law confers significant benefits on
corporations with the expectation — indeed, the mandate — that corporations exist
for legal purposes alone. When a corporation exploits those benefits and violates
the public trust by engaging in illegal conduct, society must make clear that its
behavior is unacceptable and condemn its conduct as criminal. Second,
corporations have outsized power and influence in our society. When a
corporation abuses that power and influence by committing crimes, society must
61 United States v. Bank of New England, 821 F.2d 844, 856 (1st Cir. 1987) (citing Steere Tank Lines,
Inc. v. United States, 330 F.2d 719, 722 (5th Cir. 1964)).
62 Id. at 856.
63 United States v. Hilton Hotels, 467 F.2d 1000, 1004 (9th Cir. 1972) (citations omitted).
64 Id.
65 David M. Uhlmann, Deferred Prosecution and Non-Prosecution Agreements and the Erosion of
Corporate Criminal Liability, 72 Md. L. Rev. 1295, 1333-34 (2013); see Lawrence Friedman, In Defense of
Corporate Criminal Liability, 23 Harv. J.L. & Pub. Pol’y 833, 846-51 (2000) (examining how unique
viewpoints, attitudes and moral judgments are attributed to corporations).
66 Uhlmann, Erosion of Corporate Criminal Liability, supra note 65, at 1333.
160 DAVID M. UHLMANN
impose blame, require accountability, and insist upon acceptance of responsibility.
Third, corporations can neither be jailed nor have their individual liberties
restricted when they commit crimes. The distinctive feature of corporate criminal
prosecution is its ability to label corporate lawlessness as criminal, which is
qualitatively different than labeling misconduct as a civil or administrative
violation and critical to bringing corporate criminals to justice.
At the same time, the prosecution of corporations is not a substitute for the
prosecution of culpable individuals. When corporations commit environmental
crimes, prosecutors should make every effort to identify culpable individuals and,
if supported by the law and the facts, bring criminal charges against those
individuals. The possibility that corporate officials could be jailed for their
wrongdoing is the strongest deterrent for environmental crime. Corporate officials
will be reluctant to commit violations of the environmental laws if they believe that
they may be incarcerated for their wrongdoing, which involves a more personal
calculus than the abstract possibility that the corporation may be fined for its
misconduct.67
Given the potential harm and lawless conduct inherent in environmental
crime, both corporations and individuals should be held accountable when
environmental crime occurs. At a minimum, prosecutors and investigators should
have the ability to consider charges against both corporations and individuals, so
that the full range of enforcement options are available to address egregious
environmental violations. The United States Department of Justice recognizes this
principle, making clear in its guidance for prosecutors that there is no binary
choice to be made between prosecuting corporations and prosecuting individuals
for environmental crime and other corporate misconduct. “Prosecution of a
corporation is not a substitute for the prosecution of criminally culpable
individuals within or without the corporation.”68 There is no reason that we should
limit societal tools to fight environmental crime, in essence taking on the task with
one hand tied behind our backs.
The prosecution of both corporations and individuals offers benefits beyond
those conferred by using all available resources to combat environmental crime.
The prosecution of corporations addresses the wrongdoing of the corporation as a
whole; the prosecution of individuals addresses her contribution to the larger
corporate problem. The prosecution of the corporation seeks to change corporate
behavior in the future; the prosecution of the individual is directed at the
67 See David M. Uhlmann, After the Spill Is Gone: The Gulf of Mexico, Environmental Crime, and the
Criminal Law, 109 Mich. L. Rev. 1413, 1443 (2011) (“[c]orporate officials are more likely to comply with
the law when they fear that they may go to jail if their violations are discovered”).
68 United States Attorneys’ Manual§ 9-28.210.
Protection of the environment through criminal law … 161
employee’s behavior in the future. The prosecution of the corporation condemns
and assigns blame to the corporate culture and the misplaced corporate priorities
that led to criminal conduct by the employee; the prosecution of the individual
addresses the poor choices made by the individual corporate employee.
The only circumstance where I would suggest that prosecutors might be
expected to choose between the prosecution of a corporation and the prosecution of
an individual are cases involving small proprietorships. In those prosecutions,
where there is effectively an identity between the corporation and the individual, I
would prosecute the individual and decline to prosecute the corporation.69 I say so
because there is nothing to be gained in cases involving so-called “Mom and Pop”
companies and sole proprietorships — no retributive, utilitarian, or expressive
purpose — that is not already achieved by prosecuting the owner of the company.70
In cases involving larger corporations, the calculus shifts, because there is a
corporate entity that is larger and distinct from its individual members, with
influence over the conduct of corporate affairs that even a senior management
official is unlikely to possess. In the rare case where a larger corporation is the alter
ego of its board chairman or its chief executive officer — and where that person
carried out unlawful activity on behalf of the corporation — it theoretically might
be possible to satisfy the goals of criminal prosecution by charging only the
chairman or chief executive officer. In all other cases, however, I would argue that
charges must be brought against the corporation and responsible individuals.
Where senior officials are involved in environmental crime, it is appropriate to
charge both the company and the culpable individuals, because the culpability of the
corporation qua corporation is greatest; it would be incongruous to decline criminal
prosecution of the corporation when misconduct reached senior management. The
need for corporate prosecution may be even greater in cases where only lower-level
supervisors can be charged with wrongdoing. In cases where the only individuals
who can be charged are at low levels within the corporate hierarchy, the weight of
criminal prosecution falls on individuals who, while culpable, had no control over
the corporate policies that led to criminal activity.
69 Samuel W. Buell, The Blaming Function of Entity Criminal Liability, 81 IND. L.J. 473, 535 n.263
(2006) (“It is hard to see the justification for entity criminal liability in cases of sole or near-sole
proprietorships. Assuming that entity liability is implicated because of the owner's crime, the entity
effectively represents just another personal asset of the offender.”).
70 Accord Gerard E. Lynch, The Role of Criminal Law in Policing Corporate Misconduct, 60 Law &
Contemp. Probs. 23, 51 (19970 (small and closely-held corporations are “unlikely to be perceived by
the public as having any separate personality” from their individual owners and managers). Stated
differently, in Mom and Pop companies there is no corporate culture independent of the owners nor
corporate blameworthiness independent of the owners.
162 DAVID M. UHLMANN
The need for corporate prosecution may be greatest in the most criticized —
and most misunderstood — cases: prosecutions where no individuals are charged.
Prosecutors should not pursue corporate-only prosecutions in exchange for not
prosecuting individuals,71 which is a misuse of prosecutorial discretion and creates
the appearance that corporations can buy-off charges against corporate officials.
Nor should prosecutors resolve cases with corporate-only prosecutions because
they are unwilling to invest the time and effort required to prosecute individuals.
Likewise, prosecutors should not bring corporate-only charges based on weak
evidence that corporations might not contest because of the difficulty of defending
corporate cases or to avoid the scrutiny of a trial.
In my experience, however, most corporate-only prosecutions occur because,
while individuals could be charged, prosecution of those individuals is not
appropriate as a matter of prosecutorial discretion. As a threshold matter,
prosecutors only should consider criminal charges if there is sufficient evidence to
prove guilt beyond a reasonable doubt, and if they are confident that they can
address any legal issues and defenses that may be raised by the defendant.72 But the
decision to charge does not end with an evaluation of the evidence and possible
defenses. Prosecutors also must consider principles of fairness and justice to ensure
that charges are reserved for the conduct and defendants that are culpable.73
In the environmental crime context, significant violations could occur at a
company where the only individuals with sufficient knowledge to be charged
criminally are low-level employees — not even supervisors — who never received
sufficient training or the resources necessary to comply with the law. Their
supervisors, who might make better targets based on their higher status within the
company, may have had no better training and no more resources. Yet higher up the
corporate ladder, where responsibility for poor training and inadequate resources
resides, management officials may not have enough knowledge to be charged with
71 See Memorandum from Sally Q. Yates, Deputy Attorney Gen., U.S. Dep’t of Justice, Individual
Accountability for Corporate Wrongdoing (Sept. 9, 2015) at 5, available at http://www.justice.gov/
dag/file/769036.download (“Absent extraordinary circumstances, no corporate resolution will
provide protection from criminal or civil liability for any individuals.”). But see Brandon L. Garrett,
The Corporate Criminal as Scapegoat, 101 Va. L. Rev. 1789, 1795 (2015) (finding that, between 2001 and
2014, charges were brought against individuals in only 34 percent of deferred and non-prosecution
agreements).
72 See United States Attorneys’ Manual§ 9-27.220 (2008) (advising a prosecutor to initiate charges
only if “the admissible evidence will probably be sufficient to obtain and sustain a conviction”);
Uhlmann, Prosecutorial Discretion and Environmental Crime, supra note 14, at 164 (arguing that
“prosecutors should only bring charges if there is sufficient evidence to prove each element of the
offense beyond a reasonable doubt”).
73 Uhlmann, Prosecutorial Discretion, supra note 14, at 215 (“Prosecutors thus have reserved
criminal prosecution for culpable conduct and avoided charges based on technical violations or when
defendants acted in good faith.”).
Protection of the environment through criminal law … 163
crimes. In those cases, where crimes occurred and there is a need for accountability,
it may not be fair or just to charge the employees or even their immediate
supervisors.74 Instead, charges should be brought against the corporation that did
not provide the training or the resources that its employees needed.
Other corporate-only prosecutions occur because it is not possible to develop
sufficient evidence against individuals to charge them with wrongdoing.
Corporations compartmentalize knowledge and subdivide operational duties to
promote corporate efficiency.75 Where the corporate structure makes it impossible
to charge individuals, there still is a societal need to address the wrongdoing and
ensure accountability. In those cases, the only potential defendant is the
corporation.76 Prosecutors must choose between prosecuting the offending
corporation and refusing to bring criminal charges despite clear evidence of
corporate wrongdoing.
4. Conclusion
Criminal enforcement of environmental violations is an essential tool for
ensuring compliance with the environmental laws. In an optimal enforcement
scheme, regulators also have the option of pursuing civil or administrative
sanctions, so that criminal prosecution is reserved for violations that involve
aggravating factors that make the underlying conduct more egregious. Not every
environmental violation should be criminal but when criminal violations occur,
both corporations and individuals should be held accountable to protect the
environment and public health, uphold the rule of law, and bring environmental
criminal to justice.
74 Lynch, supra note 70, at 52 (stating that a corporate prosecution is appropriate “where the
individuals who can be punished are insufficiently important to bear the weight of stigma
appropriately attaching to the harmfulness or offensiveness of the wrong”).
75 United States v. Bank of New England, 821 F.3d 844, 856 (1987) (“Since the Bank had the
compartmentalized structure common to all large corporations, the court's collective knowledge
instruction was not only proper but necessary.”).
76 Lynch, supra note 70, at 52 (stating that a corporate prosecution is appropriate “when no
individual can be proven culpable”).
