In a December 1992 interview, Neil Cartusciello, who has run the Environmental Crimes Section since May 1991, was somewhat amused by the allegation that he’s soft on crime. As an assistant U.S. attorney in New York, he prosecuted the Princeton/Newport securities fraud case. His aggressive use of pretrial asset forfeiture and racketeering charges drew the wrath of, among others, The Wall Street Journal’s editorial-page editors. "I believe the term they used to describe me was overzealous," he said.
Cartusciello is obviously miffed by the Turley report’s charges. For instance, the report disapprovingly notes that the "number of indictments against corporate officers is clearly reduced by the enhanced use of plea agreements at the ECS." What’s the problem with that? Cartusciello asks. There are plenty of times when a plea bargain is the best the government can do.
Someone accused of an environmental crime is supposed to receive the same constitutional protections as any other criminal suspect. The government "cannot bring a prosecution," says Cartusciello, "when there’s not proof beyond a reasonable doubt that someone has committed a crime." Given the weaker burden of proof in civil suits, the government will often go that route. "Environmental laws have a full range of sanctions," including fines or other administrative penalties, he says. "If every case of pollution were [treated as] a criminal case there’s hardly any need for these other remedies."
During last fall’s presidential campaign, then-Sen. Gore said Turley’s report proved that "George Bush and Dan Quayle are protecting their rich friends who own the smokestacks and pollute our environment." Bill Clinton and Al Gore may have won the election, but Schumer and Dingell still aren’t satisfied.
In May, Attorney General Janet Reno announced an $11 million civil fine against Louisiana Pacific Co. The company had filed inaccurate emissions reports that violated the Clean Air Act In addition to the fine, the company agreed to install $70 million in pollution equipment at plants in nine states.
Despite the enormous fine, environmental activists grumble because none of Louisiana Pacific’s corporate officers went jail. In a New York Times interview, Turley said, "To allow Lousiana Pacific to simply internalize [the fine] and not face criminal liability sends a message to industry that environmental violations remain simply the cost of doing business."
Soon after the fine was announced, Dingell’s subcommitee voted in secret to subpoena environmental prosecutors and compel testimony from them about any political pressures they may have received. And this spring, Congress authorized the use of subpoenas to compel the testimony of line prosecutors. Setting what many current and former prosecutors regard as a dangerous precedent, Reno will let Dingell’s crew interview as many as 15 people in the Environmental Crimes Section on their handling of 20 different cases. This step opens the supposedly independent Department of Justice to political micromanagement and violates the separation of powers between Congress and the executive branch.
Speaking at the Heritage Foundation in August, Carter administration Attorney General Benjamin Civiletti roundly condemned the action. He cited a hypothetical case in which "an individual is targeted for investigation into alleged violation of federal criminal law." The potential defendant believes he is innocent and tries to persuade the prosecutor not to seek an indictment."
"Now imagine," Civiletti continued, "that our hapless individual, to be heard by the prosecutor, has to shout over the loud protestations of members of Congress urging indictment of this very individual; or that members of Congress are standing ready to chastise the prosecutor if no indictment is brought. To imagine such a scenario is to understand why congressional involvement in prosecutorial decisions can be perilous to civil liberty." But, as the escalation of the drug war has shown, civil liberties take a back seat to political symbolism once a new type of vice crime captures the public imagination.
Environmental lawyers have benefited personally from the rapid ex pansion of civil
and criminal penalties–two-thirds of the companies surveyed by National Law Journal had hired law firms specifically to handle environmental issues in the last year. But many corporate lawyers are frustrated. Said one survey respondent: "Stop treating us all like thieves in the night. We are trying to do the right thing–it may take us longer than some would like, but we will get there. Self- appointed protectors of the public welfare have never tried to run a billion-dollar facility with hundreds of employees, to make a quality product at a decent profit while contending with environmental rules (and the thousands of other rules and regulations that OSHA or IRS or the state also think are important)."
Already, the prospect of a jail sentence may discourage companies from reporting accidents that could be cleaned up before they cause harm. Under civil law, when an environmental accident occurs, a corporation can reduce its liability by reporting the accident and fully disclosing what substances were released. Businesses train their environmental compliance of ficers and attorneys to cooperate with government of ficials.
But a cooperative officer may be cutting his own throat. Donald Hensel, head of environmental compliance at the American Newspaper Publishers Association, told attendees at ANPA’s 1991 convention, "Government regulators may not be interested in working with the industry to achieve compliance. They may use a jail sentence as a mechanism to enforce compliance."
"The primary goal of any criminal enforcement is to identify, prosecute, convict, and, ultimately, send some responsible official to jail," reports a Legal Times environmental supplement. When criminal penalties are possible, it continues, "an unduly cooperative approach may sacrifice the legal rights of the company and its employees."
Many corporate environmental lawyers even caution that internal company audits to track environmental compliance can turn into smoking guns in court if they identify problem areas that managers need to correct. "Companies are in effect being asked to plead guilty before being charged," said one respondent to the National Law Journal survey. A third of the lawyers sur veyed said they feared internal audits might be used in prosecuting their companies.
Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time.
nfl jerseys|11.26.10 @ 8:06PM|#
zgz