Environmental Crime exam 3
Is the United States Over-Criminalizing Environmental Violations? (Con't)
A concern about using criminal law in certain environmental cases involves vicarious corporate liability.
International Environmental Problems and Social Movements
A social problem is a harmful condition people understand as both caused and correctable by human action. Social problems emerge when people create organized movements to bring the newly defined problems to the attention of the public and political decision makers.
International Agreements of Limited Scope
An environmental bilateral agreement is a legal agreement between two nation-states that promise to undertake specified actions to reduce some transborder environmental problem. An environmental multilateral agreement is a treaty among a number of nations seeking to alleviate some shared ecological problem.
The Problem of Prosecuting Federal Environmental Crimes
Article 3 of the U.S. Constitution prohibits any federal agency from prosecuting another. The EPA can prosecute responsible individuals within the DOE for not executing the law when they are aware that violations are occurring.
Importance of biodiversity for human life has been framed a number of ways:
As necessary for the general preservation of the global biosphere and the evolutionary process that sustains human life. As key to the preservation of the life ways of indigenous peoples and communities that depend upon biological resources for their subsistence. As essential for providing stock for future development of medicines, crops, including genetic engineering. As a critical component of the aesthetic and recreational value people derive from natural settings.
Rehabilitation
At the present time, rehabilitation has fallen out of favor within the criminal justice system as a punishment philosophy because the system has failed to demonstrate an ability to reform repeat criminal offenders.
A Clean Water Act
Congress passed the Clean Water Act over President Nixon's veto. The new law required that the PEA set standards for a wide variety of pollutants under the National Pollution Discharge Elimination System.
Four goals of punishment:
Deterrence Incapacitation Rehabilitation retribution
National Environmental Policy Act (NEPA):
Enacted by Congress in 1969, and singed into law on January 1, 1970, this federal law requires all federal agencies examine how their policy decisions affected the environment.
Federal Environmental Crimes
Federal agencies such as the EPA have been sued for failure to comply with clean air legislation and clean and safe drinking water legislation One of the most negligent areas of failure to adhere to federal legislation by federal agencies is in the history of nuclear weapons production.
Early Efforts
Federal environmental legislation goes back more than 100 years. The Rivers and Harbors Act of 1899 banned the dumping of refuse of any kind into waterways. The Insecticide Act of 1919 was designed to protect farmers from adulterated agricultural products.
Municipal Government Environmental Offenders (Con't)
Federal funds designed to help local municipalities update their equipment have been declining since the 1970s and 1980s when Congress distributed more than $60 billion to U.S. Cities. A lack of enforcement of water quality laws poses serious health concerns for U.S. Citizens.
The Dynamics of Change Affecting Grassroots Activism
From a law enforcement perspective, these groups and their leaders often are viewed as cranks, but by and large, they typically have a better understanding of the relevant regulations governing their areas of concern and a better understanding of what is going on in their community simply because they liver there and are hyper-focused on their grievances.
Global Agreements
Global environmental accords typically address problems from a system-wide and multidimensional perspective. Because global accords involve all the nations of the world, these agreements must accommodate many more conflicting and competing sets of interests than bilateral or multilateral treaties. Global accords frequently address long-term problems in which the causes and effects are separated spatially or temporally.
Two fundamental problems result from over-criminalizing:
Imposing punitive criminal penalties might result in over-deterrence. By criminalizing minor infractions, criminal law risks becoming trivialized.
Praxis: From Protest to Policy to Governance
In the long term, effective protest and policy models must fold into a governance model. The policy model often goes awry when people assume that now that they are in the room and new policy is on the books, no one needs to bang on the gates. A varied strategy would augment policy advocacy translating past successes into models of governance that wrest control of democracy from nonsentient entities.
State Government Environmental Offenders
Many federal environmental statutes entrust the states with devising their own strategies to meet federal pollution safety standards. Section 110 of the CAA requires that each state be responsible for devising state implementation plans.
Sentencing Options for Environmental Offenders
Monetary criminal fines and other monetary payments to government agencies or others affected by the firm's actions. To date the largest fine appears to have been levied against Exxon Corporation after the Valdez oil spill. Exxon paid a total of $25 million in criminal fines plus $100 million in restitution to the federal government and Alaska.
Municipal Government Environmental Offenders
Most municipal governments are entrusted with the responsibility of treating sewage, providing clean drinking water, and eliminating household and local industrial waste. Federal environmental laws regulate all three of theses tasks. Any facility, public or private, is required to have a permit issued by the National Pollution Discharge Elimination System operated by its state.
Corporate and Individual Offenders
One familiar type of environmental offender is the corporate offender. The frequency with which the corporate mismanagement of facilities ends up contaminating the environment should be cause for serious alarm. Some of the most notorious generators and illegal disposers of hazardous waste are chemical companies.
Corporate and Individual Offenders (Con't)
One of the worst cases of illegal dumping in United States history involves a Hooker Chemical plant operating in White Lake, Michigan. Chemical companies are not the only dumpers of illegal hazardous waste.
Resource Conservation and Recovery Act (RCRA):
Passed in 1976, RCRA outlines goals for hazardous waste management. The RCRA provisions include moving away from land disposal, establishing a manifest system, and regulation of treatment, storage and disposal facilities. Requiring an account for all chemicals from their creation through to their disposal, one of RCRA's most well known provision is the cradle-to-grave coverage of hazardous waste.
Development and Trade Versus Environmental Protection
Powerful forces running counter to the protection of the global environment: The continued demand for increased standards of living The growth and expansion of transnational corporations The increased expansion of the free-trade movement
EPA
President Nixon established the EPA by transferring authority over a vast array of federal laws to the EPA from a number of other federal organizations.
Federal Environmental Crimes (Con't)
Primary responsibility for regulating private contractors lay with the Department of Energy. Little is known about CAA violations because private contractors are responsible for reporting violations to the DOE. One of the most environmental crime cases in the United States involved the Rocky Flats DOE facility located just outside Denver, Colorado.
Incapacitation
Prison is an obvious means of incapacitation, because it takes criminals out of society and prevents them from committing other violations.
Sanctions for Environmental Criminals
Sentences handed down to environmental criminals have changed dramatically over time, and they continue to evolve as new crimes are defined and as public attitudes toward environmental offenses change.
Prosecutions of Municipal Governmental Offenders
State and EPA prosecutions of municipalities have been few in number. It is easier for the EPA to ignore violations because of the multitude of variables and legal considerations required to pursue simple civil charges, let alone criminal charges, in enforcing clean water legislation.
Virtually all environmental statues include criminal provisions that generally fall into two distinct categories:
Strict liability: does not require knowledge that an act constitutes a violation; all is needed is to show the violation occurred. Offenses requiring some degree of knowing, willful, or negligent conduct
Protecting Biodiversity
The Convention on Biological Diversity requires its signatories to take steps to limit activities that threaten species loss and ecosystem degradation within jurisdictions under their control. Framework Convention on Climate Control is designed to limit the emission of greenhouse gases worldwide.
Environmental Assessment (EA):
The EPA charges each federal agency with the orle of policing its own policy implementations through an internal Environmental Assessment to determine whether an Environmental Impact Statement is necessary to analyze the implications of a given federal agency policy action or decision.
Protecting Biodiversity (Con't)
The Kyoto Protocol is an international agreement between 37 industrialized countries and Europe that sets a binding target to reduce greenhouse gas emissions.
The Comprehensive Environmental Recovery, Cleanup, and Liability Act
The RCRA law was followed closely by the development of a concept of strict and several liability for hazardous waste disposal as citizens emerged in force near toxic waste sites around the country.
Prosecution of Corporate and Individual Offenders (Con't)
The bottom line is that far more corporate environmental crime exists than is detected and prosecuted. As long as the basic strategy for enforcement remains reactive, individuals, corporations, and the various levels of government will undoubtedly continue to ignore the environmental statutes.
Four issues associated with the creation and enforcement of global environmental issues:
The differing interests of developed and developing nations The potential for corporate-state conflicts The potential for government support for environmentally destructive but lucrative activities The need for government ratification and enforcement of environmental treaties
Deterrence
The first possible rationale for criminal enforcement of environmental laws is the failure of the regulatory agencies or of private citizens to adequately deter violators.
Institutional Change and Adaptation
The history of the EPA makes clear that the emergence of environmental regulation and criminal enforcement of environmental law is driven by citizen confrontation directed at corporate and government malfeasance, misfeasance, and failure.
Retribution
The idea behind retribution is that punishment is administered because the offender, as a result of his or her action, deserves to be punished.
Theory Elaboration: Elements of Environmental Crime
The institutional perspective of organizational theory holds some relevant concepts applicable to environmental regulation and crime. This body of theory suggests that the entire environmental regulatory system is highly institutionalized—infused with value beyond the technical requirements of the task at hand.
International Movements to Protect the Global Environment (Con't)
Three major issues areas are: Protecting biodiversity Global climate change Sustainable development
Transborder flow of Political-Economic Decisions
Transborder economic activities that rely on, or are facilitated by, the power of one or more governments. Transborder flows of political economic decisions accelerated rapidly in the years after World War II. Corporate decision makers are well aware of how differences between nations' pollution control standards will affect operating costs and profits.
Sentencing Guidelines
U.S. Sentencing Commission: formed in 1986 to write guidelines for sentencing federal offenders. The mandatory jail time for a person convicted of an "ongoing, continuous, or repetitive discharge, release of a pollutant into the environment ... without a permit or in violation of a permit" is 21 to 27 months. While judges are no longer required to follow the guidelines, prosecutors and probation officers use them in recommending sentences.
Protecting the Ozone Layer
Veinna Accord: a treaty signed in 1987 that formally recognized the threat of ozone depletion and called upon signatory nations to engage in systematic research to identify the sources and consequences of ozone-depleting chemicals and to work to control, limit, or prevent ozone-depleting activities within their boundaries.
Sentencing Options for Environmental Offenders (Con't)
While it appears that the 1987 sentencing guidelines increased the likelihood that an individual convicted of an environmental crime would be sent to prison, data compiled by the Sentencing Commission indicates that about 30 to 50 percent of offenders receive prison time, with an average length of prison being more than 1 year. Remedial action: an action intended to provide a long-term solution to the clean up of leaking sites.
Prosecution of Corporate and Individual Offenders
While most major pieces of environmental legislation contain criminal sanctions, they seldom are used to enforce compliance of environmental laws. One reason given for the lack of application of criminal sanctions is the agency capture argument alluded to early. Regulators often rely on industry expertise in enacting the laws that are supposed to regulate the industry.
Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space, and Under Water:
a United Nations multilateral treaty passed in 1963. From the 1960s onward, concern about the global dimensions of environmental damage and the movement for international environmental protection grew substantially.
Comprehensive Environmental Recovery, Cleanup, and Liability Act (CERCLA):
a United States federal law designed to clean up sites contaminated with hazardous substances.
Over-deterrence:
a concern that high penalties will deter individuals form engaging in socially productive activity or restrict activities that society does not wish to prohibit entirely.
Nongovernmental Organizations (NGO):
a formal community group not affiliated with any government organization. NGOs have played a significant role in the environmental movement, including groups such as Greenpeace.
Comprehensive Environmental Response, Compensation, and Liability Information System (CERCLIS):
a public access database mandated by the CERCLA.
Toxics Release Inventory (TRI):
a publically available database generated as a result of the Community Right to Know Act, which requires companies to annually disclose any releases of specific chemicals.
Dichloro-diphenyl-trichloroethane (DDT):
a synthetic pesticide, used in the U.S. Banned by federal law in the late 1960s after the publication of Silent Spring brought the issue into the public awareness.
Agency capture:
a term used to describe the working relationship that occurs between regulatory agencies and the subjects they are regulating.
Chlorofluorocarbons (CFCs):
an organic compound that contains carbon, chlorine, and fluorine, produced as a volatile derivative of methane and ethane.
Emergency Planning and Community Right to Know Act (EPCRKA):
commonly referred to as the Community Right to Know Act, this requires companies to annually disclose any release of specific chemicals into the environment.
National Pollution Discharge Elimination System
controls water pollution by regulating point sources that discharge pollutants into waters of the United States.
State implementation plans (SIP):
detailed control strategies for how AQCR is going to maintain its air quality or bring a nonattainment area into compliance.
Strict liability:
does not require knowledge that an act constitutes a violation; all is needed is to show the violation occurred.
Transborder flow of toxic substances:
occurs when pollutants that originate within one nation-state spread to neighboring or even distant countries, through natural ecological processes such as the movement of streams, rivers, air currents, and living organisms or through the deliberate transportation of substances such as hazardous waste. There are no political boundaries around ecosystems comparable to those around legal systems.
Sustainable use
production and consumption strategies that would promote a dignified continuation of human life on the planet while minimizing practices that degrade the environment. Human future depends on developing alternative systems: Utilize renewable energy sources Do not require extensive transportation of people Reduce overall levels of resource consumption Equalize disparities between rich and poor nations
Criminalization
the process or rationales as to why some behaviors are considered only unpleasant, immoral, or unethical. These theories are used to explain and clarify how behavior—first characterized as merely "bad" or unusual—later becomes a crime. There is considerable concern that criminalization has gone too far, especially questionable is the use of imprisonment for individual offenders who violate strict liability or negligence standards.
International law:
the term commonly used for referring to laws that govern the conduct of independent nations in their relationships with one another. The idea and practice of national sovereignty continues to pose barriers to establishing international rules to address global environmental threats.
Environmental criminology:
traditionally referred to studies in crime focused on situational crime prevention.
Environmental Impact Statement (EIS):
under the National Environmental Policy Act, all agencies of the federal government are required to assess the environmental impact of any proposed federal action by soliciting information from experts, outlining the positive and negative aspects, and formally addressing questions about the environmental impact of the project.
