Although most corporate attorneys take environmental laws as given, the crusade against environmental vice has begun to produce a backlash. Within the legal profession, at least, many people have begun to question whether criminal sanctions are appropriate for most environmental offenses.
Free-market public-interest law firms, such as the Pacific Legal Foundation and Washington Legal Foundation, are pushing to return environmental offenses to the traditional realms of administrative, civil, and criminal law. They have also taken up the cause of individuals accused of violating wetlands laws by moving dirt on their own property.
But challenges aren’t limited to free-market advocates. The Dingell inquiry, by infringing on the professional independence of federal prosecutors, has shocked even attorneys such as former Attorney General Civiletti who find nothing wrong, in theory, with wide-ranging environmental prosecutions.
The very mainstream California Lawyer magazine recently featured a special section on environmental law with lead articles titled "The Truth: ‘There Are No Environmental Crimes’," "Enforcement Laws Tilt in Favor of Prosecutors," and "Faulty ‘Priority’ Prosecutions: Federal Statutes Treat Mere Negligence as Crime." Wrote David P. Bancroft, a partner with Sideman & Bancroft in San Francisco, "When the criminalization of negligence is coupled with the criminal law doctrines of vicarious liability [roping in "responsible corporate officers" who knew nothing about the alleged crime], the results can be truly draconian."
For the moment, however, the trend is toward an everescalating war on environmental vice. The number of environmental prosecutions in the Clinton administration is expected to soar–after all, the feds have to keep all those new investigators busy. "Name a law-enforcement agency that’s ever put itself out of business," says former Environmental Crimes Section head Starr. Clinton may even decide that 250 criminal investigators at EPA are not enough.
And next year, the U.S. Sentencing Commission will hand down a new set of environmental guidelines. Among the commission’s advisers: Jonathan Turley, who says the current corporate sentences for environmental crimes aren’t tough enough. "Environmental criminal penalties punish individuals and corporations by correctly labeling them as criminals," Turley wrote recently in The Wall Street Journal. "Nothing serves to concentrate the business mind more than a potential prison stint, even a brief one."
Meanwhile, Rep. Schumer plans to reintroduce his own environmental crimes bill during this session of Congress. It would increase the penalties for violating five environmental statutes to fines as high as $1 million and prison terms as long as 15 years. Schumer’s bill would also permit the feds to award bounties of as much as $10,000 to citizens who turn in violators. And it would prohibit federal agencies from contracting with convicted companies. So, for example, a pharmaceutical company could lose the right to sell medicine at government hospitals.
The bill would also require courts to appoint independent "experts" to audit convicted companies. These experts, who could not be company employees or have any connection with the firm, would file reports with the courts listing what the company did wrong and recommend specific changes in manufacturing or disposal processes to fix the problem. The company couldn’t challenge the audit or its recommendations, even if the expert knew nothing about what the company did or how it makes its products.
Crusaders such as Turley, Schumer, and Dingell wrap themselves in the mantle of "law and order." They say they are simply seeking to prosecute criminals, to put bad guys behind bars. Countering this claim, challenging this latest vice sweep, therefore requires more than a piecemeal, case-by-case defense of particular individuals and companies. It requires a public reexamination of the purposes of both environmental statutes and criminal law–and a willingness to make distinctions environmentalists want to blur. It requires questioning the notion that matters of taste should be turned into felonies.
"The purpose of criminal sanctions is to protect persons and their property," says Roger Marzulla, who oversaw environmental prosecutions as an assistant attorney general in the Reagan administration. "With the environment, we’re protecting neither." Instead, "anything that is an affront to trees, rocks, and mountains can be considered a crime."
Traditional criminal and civil codes can deal with environmental threats to persons and property, such as toxic spills. That’s just what the law did before the recent spate of environmental prosecutions. Nor does traditional law require us to ignore unrealized threats. Legal scholar Peter Huber of the Manhattan Institute notes that a person who intentionally poisons a water supply but is captured by law-enforcement officials before he kills anyone can still be arrested for attempted murder. The entire body of law dealing with "inchoate" (incomplete) offenses has provisions to cover attempted murder, conspiracy, and other crimes that are planned but not consummated.
The traditional criminal code treats actions that cause different amounts of harm in different ways. That’s why the prison sentence for simple assault is lower than that for murder. Applying the same approach to environmental crimes means basing penalties on measurable damage, not on arbitrary dangers concocted by publicity-hungry prosecutors, legislators, and green activists. As Huber says, "There’s a difference between dumping a barrel of PCBs in the river and stuffing a kid in a barrel of PCBs."
Unless you "anchor the law to real events" and genuine risks, he argues, there’s a real danger of setting completely arbitrary penalties. Predicting future dangers, such as the latent effects of exposure to microscopic levels of chemicals, he says, is often "worse than guesswork. It’s more like witch hunting." And–as Charles Donahoo, Wayne Hage, Todd Ross Shumway, Rich Savwoir, Harvey Van Fossan, Bill Ellen, Robert Wells, Junior Goodner, and James A. and Mary Ann Moseley, among many others, can testify–witch hunts have a way of finding witches, regardless of guilt.
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