Reflections upon American environmental enforcement experience as it may relate to Post-Hampton developments in England and Wales

Journal of Environmental Law

Volumn 19, Issue 2, 2007, Pages 201-226

  Mushal, Raymond W ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL LEGISLATION; ENVIRONMENTAL POLICY; ENVIRONMENTAL PROTECTION;

ENGLAND; EURASIA; EUROPE; UNITED KINGDOM; WALES; WESTERN EUROPE;

EID: 34447538302     PISSN: 09528873     EISSN: 1464374X     Source Type: Journal    
DOI: 10.1093/jel/eqm008     Document Type: Article

References (46)

1. Reducing Administrative Burdens: Effective Inspection and Enforcement, HM Treasury, March 2005 at: .
2. See author affiliation.
3. 33 USC s 401 ff, specifically, ss 13 (commonly known as the Refuse Act) and 16 of that law, 33 USC ss 407 and 411 and ss 10 and 12, 33 USC ss 403 and 406. Availabe at: , , >http://www.law.cornell.edu/uscode/33/ usc_sec_33_00000411-000-.html>, and , respectively. The first two prohibit the discharge of refuse into navigable waters without a permit, while the latter two ban the unpermitted alteration of the navigable capacity of waters under federal jurisdiction.
4. Note that the three-level approach of administrative-civil-criminal enforcement is replicated in the pollution enforcement programs of some of the individual states.
5. Now 42 USC s 7401 ff. Available at:
6. 33 USC s 1319(a)-(g). Available at:
7. 33 USC s 1319(a) and (g).
8. 33 USC s 1319(b) and (d).
9. 33 USC s 1319(c).
10. A major factor in the writer's own decision to move from the civil to the criminal program was the fact that civil enforcement did not have the impact upon polluters that is available in criminal prosecutions. Federal civil enforcement in the United States does not reach the people responsible for the decision making (or lack thereof) that results in violations of the law. When the only targets are corporations, impact too easily is dissipated within the organisation and absorbed as little more than a cost of doing business. The corporate attitude toward civil enforcement efforts was brought home to the writer in a case against a major steel company in the late 1970s when a senior representative of the company told him that the government should be happy with the settlement agreement that had just been reached because it gave EPA enforcement officials 'another piece of paper to wave around'.
11. 33 USC s 1319(c) (1) and (2), respectively.
12. 33 USC s 1319(c) (3).
13. 42 USC a 6928(e) and 7413(c)(5). Available at: and .
14. http://www.law.cornell.edu/rules/frcrmp/Rule6.htm.
15. See UK Environment Agency Enforcement and Prosecution Policy, para 23. at: .
16. EPA is the largest contributor to the ECS case load, but it is only one of the federal agencies with which ECS deals. Other agencies that are involved in environmental crimes cases include the Coast Guard, the Army Corps of Engineers and the Fish and Wildlife Service.
17. Despite these efforts to screen cases and properly direct them, though, no doubt there still are some that remain in one track or another simply because that is where they began life. It happens, although the American defense bar exaggerates its frequency in criminal cases - at the same time ignoring the occasions when misdirection benefits their clients, that is, when a case appropriate for criminal prosecution slips through the screen and remains on a civil or administrative enforcement track.
18. RJ 2005 para 1.10.
19. United States Attorneys Manual, s 5-11.114, http://www.usdoj.gov/usao/ eousa/foia_reading_room/usam/title5/11menv.htm#5-11.114.
20. Criminal liability of responsible corporate officers is specifically provided in the major air and water pollution statutes, 42 USC s 7413(c)(6) and 33 USC s 1319(c)(6);
21. however, it is a doctrine that can be drawn upon regardless of its articulation in a given statute. Under a 'knowing' mental state standard, it has three criteria: (1) the person knew of the violation; (2) he had the authority to stop it; and (3) he failed to exercise that authority. See United States v. Iverson, 162 F.3d 1015 (9th Cir. 1998) at: .
22. The role of individual criminal liability in both individual and organisational deterrence does not receive specific attention in the Final Report. It merits special consideration if the UK decides to go forward with up-grading its regulatory enforcement effort.
23. RJ 2005 para 3.7.
24. USSG s 1A1.1.,3;
25. http://www.ussc.gov/2005guid/tabcono5_1.htm.
26. See, particularly, USSG Part 2Q for the environmental crimes guidelines for individual offenders.
27. USSG s 8C2.1
28. United States v. Booker, 543 US 220 (2005) at: .
29. A clear position on the importance of punishment for criminal wrong-doing is missing from the Final Report's Six Penalties Principles, at 35.
30. USC s 3571. Available at: http://www.cornell.edu/uscode/18/ usc_sec_18_00003571-000-.html.
31. A major factor in the decision not to include environmental crimes within the operation of the organisational guideline fine provision was that the formula in the initial version of those guidelines would have severely undervalued crimes that posed substantial environmental threats, but that fortuitously did not ripen into actual harm.
32. See RJ 2005 para 3.33.
33. USSG s 8C2.9.
34. Final Report, at 74-75.
35. Final Report, Box 4.1.
36. See 18 USC ss 3563 (b) (2), 3663 and 3663A. Available at: , and , respectively.
37. USSG ss 5E1.1 (c) and 8B1.1 (c).
38. The United States Sentencing Guidelines provide for the monitoring of corporations that are on probation following sentencing, but the relevant provision, USSG s 8D1.4(c)(4), has a significant hole in it. It provides for the examination of books and records, and the interrogation of knowledgeable individuals in order to assess compliance, but those conditions would not be adequate for the effective monitoring of many environmental (and similar) criminals. Books, records and individuals will tell only part of the story of compliance or non-compliance, and they very easily can be made to be misleading. Absolutely critical for monitoring that is truly effective is the authority to go on the premises of the party, with or without prior notice, and inspect the physical property, taking appropriate samples, if necessary. In USSG s 8D1.3(c), there is a general default provision for additional probation conditions, but prosecutors and regulators would be in a much stronger position if the inspection and sampling authority were spelled out in specific terms.
39. USSG s 8B1.3.
40. Id., Commentary.
41. Final Report, at 80.
42. See 42 USC s 10601. Available at: and www.ovc.gov. Except for several specifically identified situations in which fines are directed to oil spill cleanups, for example, all fines from federal crimes go to the Crime Victims Fund. Monies from that fund are applied to activities that include the Victim Witness Coordinator positions in USAOs and the FBI, victim notification, improving services for the benefit of crime victims, direct reimbursements for victims (e.g. for medical, counseling or funeral expenses), victims of terrorism, victims of crimes against the elderly, safe houses and shelters for battered women and children, abused (especially sexually abused) Native American children, college campus victims and drug-endangered children found in methamphetamine houses.
43. Final Report, at 69-73.
44. Final Report, Para 4.44.
45. RJ 2005 para 1.4.
46. Keeping track of ultimate results is a critical factor that often is omitted from enforcement recordkeeping. Without it over-all program effectiveness cannot be usefully measured. See Final Report, Characteristic 2, at 32.