Environmental Crime and Criminality

Theoretical and Practical Issues

Sally M. Edwards, Terry D. Edwards, Charles B. Fields, Sally M. Edwards, Terry D. Edwards, Charles B. Fields

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781135813031
• Edition: 1
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

First published in 1996. One of the primary goals of this series has been to explore new areas of criminology and criminal justice, topics that constitute the frontiers of the field. This work, edited by Sally Edwards, Terry Edwards and Charles Fields exemplifies that purpose in its coverage of environmental crime. While corporate and political crime developed slowly into mainstream criminology over the last half century, environmental crime, as an area of emphasis is still in its infancy. It is unusual to have many varied and informative perspectives early in a subject's development. This volume, however, demonstrates that many people are already examining environmental crime perhaps as an extension of both the greater environmental movement and the broadening of the popular parameters of crime.

Chapter One

An Essay on Environmental Criminality

Gerhard O. W. Mueller

“Hurt not the earth, Neither the sea, Nor the trees…”

Revelation 7: 3

Waste management and environmental protection are essential for survival. Instinctively, felines bury their body waste. Paleolithic man took drinking water upstream, bathed midstream, and disposed of waste downstream. The medieval city located the tanners’ quarter at the edge of the walled city where the stream that traversed it exited. Instinct? Consensus? Regulation? Penal proscription?

Roman private law had a highly developed set of rules concerned with environmental protection. The many petty annoyances which might cause injury or disease were highly regulated by imposition of civil liability, such as the property owner’s liability for objects thrown out of or falling from a building (Institutes, 4.5 Section 1). Indeed, from that time on, the concept of police was primarily associated with regulating the environment of the city and its citizens rather than with the prevention of common crime. Yet it seems environmental protection remained, at best, a matter of the social welfare policing function of the cities; perhaps because environmental destruction of potentially catastrophic consequences was generally unknown. Yet, already the Law of the Twelve Tables (451 B.C.) addressed itself to environmental crimes with potential catastrophic impact: the destruction of the crop apparently was made a capital offense; “Whoever enchants away crops …” 0law of the Twelve Tables VIII: 8a).

The common law of crimes did not deal with environmental problems resolutely. Pollution was regarded as a misdemeanor of the nuisance variety. In America especially, land, water, and air resources were vast, seemingly immune to any human depredation. Even the Industrial Revolution regarded natural resources as nondepletable or, in any event, viewed industry’s effluent as an affordable price of progress. Belching smokestacks were the gauges of prosperity. Developing countries still largely ascribe to this philosophy. Matters could not begin to change until a worldwide awareness would emerge that natural resources are depletable indeed and that environmental pollution does not respect international boundaries.

The event most responsible for the creation of a worldwide environmental consciousness and conscience undoubtedly was the United Nations’ World Congress on the Environment, held in Stockholm in 1972. The danger to human survival inherent in unbridled environmental exploitation and pollution was keenly recognized and measures for environmental protection assiduously debated. Persistent calls for the heavy guns of criminal law permeated the assembly, as they are always heard when humankind perceives a new danger which it does not know how to deal with in a civil manner. Yet it was the era of decriminalization, and Sweden had been in the forefront of the decriminalization movement. The International Association of Penal Law, one of the United Nations’ principal resources in crime prevention and criminal justice, warned against rushing into criminal legislation. We first had to know the facts; we then would have to research the potential effects of various possible measures before we could recommend or endorse one or another of a multitude of possible (including penal) measures to deal with the perceived danger of environmental endangerment.

It is now two decades later. World consciousness about the danger to the environment has indeed been created and maintained. The number of organizations concerned with environmental protection proliferates. The literature has become so vast that even specialists have difficulties keeping up with it. The number of periodicals keeps growing.

In most countries of the world, legislation dealing with the environment is in a constant state of growth and flux. International conventions are being drafted and ratified. The United Nations’ Environmental Program, a direct outgrowth of the Stockholm conference, has become one of the world’s busiest bureaucracies, and its periodic congresses contribute significantly to environmental protection worldwide. Unhappily, despite the warnings of 1972, legislatures have resorted to criminal sanctions without the cause and effect studies which were then advocated. Indeed, what is most astounding is that the two turbulent decades since Stockholm have produced very little in the nature of criminological research with respect to environmental control.

In the United States, at the federal level, the first environmental legislation, The Rivers and Harbors Act (now 33 U.S.C. Section 407) dates from 1899. Yet it was not until the 1960s that this act was interpreted as prohibiting the discharge of pollutants into navigable waters (See, United States v. Standard Oil, 384 U.S. 224 [1966]). Only in the 1970s did Congress enact pollution-specific civil and criminal legislation. These statutes can be conveniently grouped into three categories: hazardous waste, water pollution, and air pollution. Among the most important acts is the federal Resource Conservation and Recovery Act (RCRA) (42 U.S.C. Sections 6901-6992k), which, inter alia, imposed upon the states certain minimal requirements regarding criminal violations with respect to treatment and disposal of hazardous substances. This statute thus endeavored to achieve a certain degree of uniformity of state criminal legislation. Federal enforcement of federal environmental criminal provisions began in earnest with the passage of this act. Both the federal Environmental Protection Agency and the Department of Justice established prosecution guidelines and, in 1978, a Hazardous Waste Task Force. “Knowing” violations, anywhere from the source to the polluter, were targeted for prosecution.

Water pollution was attacked by the federal Water Pollution Control Act of 1972, amended by the Clean Water Act of 1977 (33 U.S.C. Sections 1251-1376) as well as the RCRA. These laws contain provisions for specific violations under a regulatory scheme that seeks to regulate discharges from point sources, such as industrial plants or municipal sewage treatment facilities, by imposing quality standards. The penalties for “knowing endangerment” are substantial—up to 15 years of imprisonment and/or a fine up to $250,000.00. Corporate offenders may be fined up to $1 million. The statutes also require minimum sanctions for state legislation.

In the sphere of air pollution, the ineffective Air Quality Act of 1967 (Pub. L. No. 90-148, 81 Stat. 485 [1967]) was substantially amended by the Clean Air Act Amendments of 1970 and 1977 (42 United States Code, Sections 7401-7671q). Under these laws the administrator of the Environmental Protection Agency is required to set national standards of air quality. It is up to the states to enforce these standards by state legislation and control. In addition, the legislation contains penal sanctions for “knowing” violations (113 (c)), with, inter alia, misdemeanor penalties up to 1 year of incarceration and of up to $25,000.00 in fines.

At the state level, the last two decades have seen a spectacular growth of regulatory and penal legislation. The federal aim of relative uniformity of state legislation has been accomplished only modestly. Many states merely enacted laws which comply with federal minimum standards, others have adopted more stringent requirements, and many fall in between, by threatening fines of up to $25,000.00 and incarceration up to one year for “knowing” (or, in some states, reckless) transportation, storage and disposal of hazardous waste in violation of standards. The situation is similar with respect to waste pollution, whereas in the case of air pollution only a few states have embodied the statutory language and enforcement provisions, including penalties, of section 113(c) of the Clean Air Act (deCicco & Bonano, 1988).

It appears, then, that in the United States there is a legal framework for combatting environmental pollution by means of criminal sanctions and that the framework has federal and state components which are not necessarily in harmony between and amongst themselves. This lack of coherence itself is the source of many problems, yet far more problems are inherent in the objective itself of dealing with environmental problems by means of the criminal sanction. To recognize such problems does not mean to yield to them. Rather, recognition is simply the first step toward designing solutions that are criminologically sound.

A decade ago, in an analysis of offenses against the environment and efforts at their prevention, from an international perspective, the problem clusters which made it difficult to deal with environmental questions and concern by invocation of criminal laws were isolated (Mueller, 1979: 56):

These were:

• The problems of qualification and quantification;
• The problem of strict liability;
• The problem of vicarious liability;
• The problem of corporate liability;
• The problem of proof;
• The problem of the abuse of power;
• The problem of inadequate enforcement;
• The problem of changing priorities;
• The problem of the countervailing trend towards decriminalization; and
• The problem arising from countervailing penalization policies.

In the following sections, these ten problems are reviewed in light of legislative and judicial developments and, particularly, on the basis of such empirical studies as have been conducted during the past decade (Chappell & Moore, 1989; Meinberg et al., 1988). Not surprisingly, criminological research in the area of environmental pollution is as new to criminologists as penal sanctions for environmental crimes were to criminal lawyers. Entering the sphere of environmental criminality, we are indeed entering unfamiliar territory, in which the police officers in blue or green uniforms, with silver badges on their chests, are conspicuous through their absence and where standard-setting and enforcement rests with anonymous bureaucrats, for the most part.

The Problem of Qualification

Traditional crimes are recognized, characterized, and grouped by the harm they create: harm against life, against property, etc. To the public these harms are clear and immediate. With crimes against ecology, the harm seems to lie somewhere between Greek mythology and the distant future. Individual contributions to harm creation seem microscopic and apparently incapable of endangering the cosmos. Disapprobation of pollution activities has been low. Even after the passage of the federal antipollution acts, many judges have viewed pollution as “merely” an economic crime, often committed involuntarily and thus not deserving of criminal disapprobation. Such offenses have been likened to the “public welfare offenses” which, traditionally, were only mala prohibit a, not mala in se, thus not morally delinquent acts (Kuruz, 1985: 93).

Unlike perpetrators of treason, murder and robbery, pollution offenders frequently have been rewarded by the state for “productivity and ingenuity,” rather than being prosecuted (Goldsmith & Bunyard, 1984: 138). In the Netherlands the media have even been criticized for rooting for the pollution defendant UNISER, in a case in which defendants received prison sentences up to 25 years (Brants & de Roos, 1984). We may wish to regard such cavalier attitudes toward ecological criminality as out of step with the growing public awareness of the danger which pollution poses to the environment. Over the last two decades, civic and political organizations concerned about the environment have made enormous strides in creating public awareness about the threatened environment. A variety of surveys found that the populace at large regards pollution offenses as serious criminality. Thus, a national survey by Marvin Wolfgang and his associates found that “knowing” factory water pollution which causes a single death, or twenty persons to become ill, is rated in severity between rape causing physical injury and smuggling heroin into the country (Wolfgang et al., 1985; Klaus & Kalish, 1984; Schrager & Short, 1980; Cullen et al., 1982; Cullen et al., 1983; and Dodd et al., 1977).

Even in the 1970s, a multi-country study conducted by the United Nations Social Defence Research Institute (now United Nations Interregional Crime and Justice Research Institute, UNICRI) had found that sample populations in the United States, India, Indonesia, Iran, Italy, and Yugoslavia regarded factory pollution as equally serious as some of the most severe street crimes (Newman, 1978). The crisis of non-recognition of the serious nature of environmental criminality appears to near its end. Policy makers and the populace begin to agree on the harm which ecological mismanagement entails. Indeed, a new ecology-conscious life-style is beginning to emerge, a life-style which is said to be necessary to avoid an environmental catastrophe (Estrin & Swaigen, 1978).

Alas, there is as yet a considerable amount of scientific uncertainty about the consequences of pollution. Environmental damage which at first appears catastrophic and permanent may turn out to be temporary and reversible. Scientific predictions often are tentative and conjectural but may be received with the greatest alarm by environmentconscious advocacy groups and politicians. The global warming issue, for example, which still divides scientists, has become the rallying ground for environmentalists who see doom around the comer. The long-range climatological consequences of the “greenhouse” effect are subject to many non-quantifiable factors that may counteract global warming trends. Yet, scientists who predict climate changes as severe as those for the last ice age, which resulted in the extinction of many species and the redistribution of land and sea masses, may well be right. Equally difficult is the measurement of the impact of countermeasures, such as reduction of carbon monoxides (Wright, 1991), and particularly the contribution to greenhouse avoidance which each person can make by using less aerosol spray. That is the root of the problem of harm recognition.

Obviously, not all spheres of environmental harm are as complicated as those of the greenhouse effect. Thus, the effect on the quality of life of a given neighborhood by industrial waste dumping is more easily recognizable than the greenhouse effect. River pollution is far better understood, and counteractable, than ocean pollution.

Turning from the recognition of environmental harm, in general, to the qualification of environmental harms in the various pieces of legislation, we encounter further problems. When is a harm to the environment serious enough to constitute a penal offense? Past Canadian legislation restricted itself to “serious [and intentional] acts of pollution,” a standard which provided little guidance and led to few prosecutions. More recent legislation extends to “serious and dramatic breaches,” a term which indicates that the legislator has all but given up on qualifying the criminal harm of pollution (Duncan, 1986). The essence of the Canadian crime of pollution, that of “substantial harm to the environment without any overriding social justification,” has been criticized as so vague as to stifle prosecution (Commentary, 1986). In the United States, the lack of standards and of clarity of standards encourages frustrating appeals. In one case, it lead to two reviews by the United States Supreme Court and three by the Court of Appeal...