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The criminalization of environmental harm: a study of the most serious environmental offenses prosecuted by the U.S. federal government, 1985-2010
Erik W. Johnson, Jennifer Schwartz & Alana R. Inlow
To cite this article: Erik W. Johnson, Jennifer Schwartz & Alana R. Inlow (2020) The criminalization of environmental harm: a study of the most serious environmental offenses prosecuted by the U.S. federal government, 1985-2010, Environmental Sociology, 6:3, 307-321, DOI: 10.1080/23251042.2020.1748269
To link to this article: https://doi.org/10.1080/23251042.2020.1748269
Published online: 14 Apr 2020.
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The criminalization of environmental harm: a study of the most serious environmental offenses prosecuted by the U.S. federal government, 1985- 2010 Erik W. Johnson, Jennifer Schwartz and Alana R. Inlow
Department of Sociology, Washington State University, Pullman, WA, USA
ABSTRACT Over the past four decades, criminal, as opposed to civil or administrative, prosecutions have assumed an increasingly visible role in US environmental law enforcement. There is little understanding about the types of acts and defendants criminally prosecuted for pollution offenses in the United States or the sanctions received. In this paper, a unique dataset on virtually all federal criminal prosecutions of pollution-related offenses between 1985 and 2010 is used to assess aggregate trends in characteristics of pollution violations, offenders, and sanctions. Prosecutions increase dramatically in number and diversity over time, drawing in increasing numbers of low-level offenders. An early emphasis on hazardous waste violations is now complemented by prosecution of a large variety of activities associated with pollution of land, water and air, especially activities that pose direct threats to human health. Although most serious criminal violations occur within formal-organizations, individual actors are increasingly held criminally responsible, particularly low-level employees, with a trend away from prosecuting top-executives and large corporations.
ARTICLE HISTORY Received 27 August 2019 Accepted 25 March 2020
KEYWORDS Environment; crime; enforcement; air pollution; water pollution; hazardous waste; corporate crime
The regulation of environmental pollutants is an insti- tutionalized function of nation states in the world today (Longhofer et al. 2016; Meyer et al. 1997), with the United States an early leader in building a national regulatory infrastructure around pollution of air, water, and land. This paper focuses on an important topic within the literature on pollution regulation and enfor- cement. Criminal prosecutions of environmental pollu- tion laws and regulations have taken an increasingly central role in federal enforcement efforts (Shover and Routhe 2005; Starr and Kelly 1990), but are largely unstudied within environmental criminology litera- tures focused on definitional debates about what con- stitutes criminal environmental activity (Brisman and South 2019; Lynch and Stretsky 2003; Stretesky, Long, and Lynch 2013; White 2013), the policing of interna- tional wildlife trade and trafficking (Lemieux and Clarke 2009; South and Wyatt 2011), and routine pol- luting activity at industrial facilities for which data on administrative and civil enforcements are readily avail- able through sources such as the EPA maintained ECHO website (Enforcement and Compliance History Online) (Konisky and Schario 2010; Kremer 2016; Lynch, Stretesky, and Burns 2004; Ringquist 1998). Researchers have examined particularly egregious or highly visible criminal pollution cases, such as the Exxon Valdez and Deepwater Horizon oil spills (Gill, Picou, and Ritchie 2010; Ruggiero and South 2013; Spencer and Fitzgerald 2013), but we have limited
systematic understanding of what acts and actors fed- eral enforcement agents focus on when pursuing crim- inal violations of environmental pollution law (but see Lynch 2017; Ozymy and Jarrell 2015; O’Hear 2004).
This article is intended as an empirical introduction to the understudied world of criminal environmental pollution enforcement. We first draw on criminological literatures to elucidate the funnel of regulatory and policing practices that result in identifying the most serious pollution cases for criminal enforcement. We then describe an unutilized, but publicly available, source of raw data on criminal prosecutions that scho- lars could draw upon to address important questions in the criminalization of polluting behavior. We extracted and coded case-relevant information on 1,690 cases, involving 2,288 individuals and 861 com- panies between 1985 and 2010, a labor-intensive, time-consuming task. This represents the largest and most current database on serious federal offenses against the environment. One positive feature of our database is that we were able to collect rich details about the statutes under which crimes were prose- cuted, resulting punishments, the characteristics of organizations involved, individual defendant’s com- pany position, along with offense-specific information about what acts were carried out and what harms were done.
We then draw on literatures from law and public policy to briefly sketch the historical development of
CONTACT Erik W. Johnson [email protected]
ENVIRONMENTAL SOCIOLOGY 2020, VOL. 6, NO. 3, 307–321 https://doi.org/10.1080/23251042.2020.1748269
© 2020 Informa UK Limited, trading as Taylor & Francis Group
criminal pollution law and employ our data on federal criminal prosecutions to illustrate change over time in the extent and types of offenses prosecuted. Next, we draw on criminological literatures and our data to scope the types of offenders that are pursued by the federal EPA, as well as the types of punishments that are received. We conclude with a discussion of future research directions that scholars could address with these data, focusing on important questions about the characteristics of cases that are selected for crim- inal prosecution and explanations for various senten- cing outcomes, again drawing out parallels from broader criminological literatures.
The current research is not focused on hypothesis testing or drawing global conclusions. Rather it lays out the landscape of criminal pollution cases prose- cuted and punished by the US federal government and will serve, we hope, as a springboard for future research into a wide variety of important and interest- ing questions in this overlooked area of environmental law enforcement.
The changing definitional boundaries of environmental crime
Crimes of environmental pollution, virtually unheard of prior to the 1970s, are a common occurrence in the United States today and pose significant threats to human health and the natural world (Gibbs et al. 2009; Stretesky, Long, and Lynch 2013). By environ- mental crime, we are referring to harmful or potentially harmful acts of pollution that occur outside the rules of federally permitted behavior. This legalistic definition excludes a wide range of individual and corporate behaviors that harm the environment. The focus on pollution-based offenses also excludes the closely allied fields of wildlife and natural resource crime, both of which have extensive histories of their own. Laws protecting natural resources from illegal logging and wildcat mining, for example, are typically anchored in long-standing property law, while wildlife law traces back to at least the Lacey Act of 1900 (Dunlap 1988).1 When we talk about environmental crime in this paper, we are referencing the distinctly new area of criminal law that developed in the last half of the 21st century and which focuses on environmen- tal pollutants and human health effects of exposure to pollutants.
Much of the federal regulatory and bureaucratic framework for monitoring and controlling environ- mental pollutants was established during the 1960s and 70 s. The establishment of the EPA in 1970 com- bined a myriad of existing federal agencies and pro- grams within a single bureaucracy for administering and enforcing the nation’s federal anti-pollution pol- icy (Fiorino 1995). The EPA was initially organized according to major media of pollution (air, water
and land) which map onto three major pieces of legislation central to their policing efforts: the Clean Air and Clean Water Acts (along with their various amendments) and the Resource Conservation and Recovery Act focused on solid wastes. Even as today’s EPA tries to move towards a more holistic approach, it remains organized by these three key media (Carole and Simpson 2009).
The criminal enforcement capacity of the EPA and basic capabilities to investigate criminal envir- onmental acts was initially extremely limited. It was not until the 1980s that the criminalization of envir- onmental violations began in earnest. In 1982 the EPA established an Office of Criminal Enforcement to investigate and the federal Department of Justice (DOJ) established an Environmental Crimes Unit to prosecute environmental crimes (Adler and Lord 1991; USDOJ 2012). As per the general law and order view of the time (Garland 2001), legislated sanctions for violating major federal environmental laws steadily increased. Over the course of the dec- ade, major environmental legislation added felony criminal sanctions to enhance deterrence efforts. Of particular importance were the 1984 RCRA amend- ments, the 1987 Clean Water Act amendments, and the 1990 Clean Air Act amendments (Uhlmann 2009, 1227). The vast majority of EPA-initiated crim- inal environmental cases are prosecuted under the auspices of these three major pieces of legislation (Lynch 2017).
The criminalization of environmental harm
A common metaphor for the US criminal justice system is that of a funnel (Garland 2001). At the wide mouth of the funnel are the large variety of criminal environ- mental violations that occur, only a small fraction of which comes to the attention of enforcement agents. Of cases which come to the attention of authorities and are subject to investigation, only a portion of those is pursued for penalty by the EPA, usually through administrative or civil routes, such that an even smaller number of cases investigated by the EPA is referred to the Department of Justice for criminal prosecution (Lynch 2017; Lynch et al. 2016). The vast majority of environmental violations go unpunished.2
Most investigations of environmental noncompli- ance violations are dealt with administratively or civilly. ‘Administrative remedies are generally designed to restrict (or require) certain future actions and may also involve some compensation to the victim (which is often the government). Although civil penalties might be levied, they are often designed to take the monetary gain away from offenders, and are not gen- erally designed to punish’ (Cohen 1992, 1059). Criminal enforcement actions go further in several ways (see further discussion in conclusion section) and are
308 E. W. JOHNSON ET AL.
intended to communicate and demonstrate accepta- ble bounds of behavior. The symbolic importance of criminal prosecutions for environmental violations is well understood, with prosecutors regularly referen- cing this role in explaining the decision to proceed with criminal charges (Hedman 1990; O’Hear 2004).
Prosecutors have considerable discretion in choos- ing which environmental offenses to pursue as crim- inal violations and those that become subject to federal criminal sanctions represent unique outcomes of this adjudication process. In a careful study of exactly what differentiates criminal environmental pro- secutions from civil and administrative cases, Uhlmann (2009) finds that criminal environmental cases share different combinations of four distinctive features: intentionality, harm, chronic noncompliance, and fla- grancy. First, intentionality is key: ‘[n]o factor is more decisive than lying in making a criminal case out of what might otherwise be a civil matter.’ Often, the ties between misleading conduct and harm are clear, such as in classic cases of midnight dumping, of which there are a considerable number in our data, including the case of an environmental cleanup contractor who drove around with hidden discharge hoses to dispose of hazardous wastes on roadways. Each of the major pieces of environmental legislation, the Clean Air Act, Clean Water Act, and RCRA, includes false-statement provisions (Title 18 of the US Criminal Code). ‘Prosecutors frequently include Title 18 charges, along with environmental charges, to highlight tradi- tional badges of criminality. By emphasizing Title 18 charges, prosecutors emphasize the aspect of the vio- lations that traditionally justifies criminal enforcement (false statements, concealment, obstruction of justice, fraud) and utilize charges that are most familiar (and therefore acceptable) to federal district court judges.’ (1248). Criminal charges such as conspiracy also offer procedural benefits for prosecutors and increased pun- ishment options (Lynch 2017).
Second, significant harm to the environment or human health is an important factor. Simply put, when large-scale environmental disasters occur, the federal government is more likely to pursue criminal prosecutions. Large-scale harm is not a pre-requisite for criminal prosecution, however, and in many cases in our data it is difficult to discern the amount of actual harm that resulted from actions such as document falsification on the part of defendants or tampering with required samples. Third, repetitive violations of environmental laws are at heightened risk of criminal prosecution. The EPA and other environmental enfor- cement agencies typically apply a model of escalated penalties to offenders. That is, they begin by trying to work with offenders, but escalate enforcement actions under conditions of obstinacy or chronic noncompli- ance. Even the penalties offenders receive tend to follow this escalated pattern: from warning letters, to
site visits, then judicial and/or civil orders. These alter- native approaches are typically pursued before crim- inal violations become an option under conditions of continued non-compliance.
Finally, deliberate efforts to operate entirely outside the environmental regulatory system are also at a high likelihood of receiving criminal prosecution, in order to preserve the integrity of the regulatory system. One such example are incidents relating to improper dis- posal of hazardous waste (e.g. without a manifest or in an unpermitted area). Indeed, work by Brickey (2001) on the earliest years under observation (1986–1993) suggests that most hazardous waste violations charged by the federal government during this period were for ‘rogue operators’ conducting unpermitted handling, storing, transporting or disposing of hazar- dous waste.
Yet, the application of criminal sanctions is flexible, to some extent, and may increase to satisfy public concern, in response to resources, or other subjective elements beyond case-relevant factors (Schwartz, Steffensmeier, and Feldmeyer 2009). It is useful to recognize that: ‘The environmental criminal enforce- ment system may sweep in low-culpability violators . . . whose conduct is relatively blameless in light of such considerations as harm, dangerousness, and intent . . . the low-culpability violator is entirely at the mercy of a judge[‘s] . . . discretion’ (O’Hear 2004, 137). For exam- ple, efforts to enhance general deterrence by ‘widen- ing the net’ of enforcement, to capture an increased number of offenders (i.e. more at the wide mouth of the funnel), will inevitably ensnare a higher proportion of low-culpability offenders; this may be reflected in more lenient case outcomes on the whole (Schwartz, Steffensmeier, and Feldmeyer 2009).
A common conceptual framework for environmen- tal regulatory enforcement is premised on deterrence theory, which assumes rational actors are dissuaded from illegal actions when punishments are perceived to be sufficiently severe, certain, and swiftly meted out (Simpson et al. 2014). Criminal law around environ- mental pollution shapes opportunities for environ- mental crime objectively, by defining unallowable business practices, but also subjectively through con- trol and sanctioning efforts that reduce positive per- ceptions of certain illicit practices as viable and profitable relative to estimated criminal justice penal- ties, reputational consequences, and other costs versus benefits (Benson and Simpson 2009).
In this rational actor-driven model both corpora- tions as actors and their individual employees are less likely to pursue nefarious behavior when the likelihood of detection and sanctioning is higher. Individuals act- ing within a complicit corporate culture often commit environmental crimes for the benefit of the organiza- tion’s bottom line, not merely for the personal enrich- ment of the employee (Gunningham, Thornton, and
ENVIRONMENTAL SOCIOLOGY 309
Kagan 2005; Simpson and Piquero 2002). Holding indi- vidual workers, but not the organizations or the execu- tives which employ them, criminally culpable suggests a willingness to pursue environmental enforcement against ‘bad apples’ operating within organizations rather than treating environmental offenses as the result of systematic cultural or structural problems within a firm or industry.
On the other hand, criminal prosecution of organiza- tions requires additional resources on the part of EPA and the DOJ, but it also sends a strong signal about the potential costs to firms of willful or negligent noncom- pliance (costs that may go significantly beyond those of fines and restitution payments). Prosecuting organiza- tions, rather than their employees, open the door to the possible use of additional tools that make continued violations less likely. Criminal convictions may subject a firm to judicial supervision of future activities, harm a firm’s reputation (as well as the reputations of upper management), provide evidence that may be used for civil and/or shareholder lawsuits, may have important tax implications (criminal fines and restitution costs, unlike civil fines, are not typically tax-deductible), and/ or result in the cancellation of government contracts (Firestone 2003). Debates about whether punitive, reg- ulatory, or blended approaches are most effective in encouraging compliance by individuals and business organizations more generally are long-running yet unre- solved (Simpson 2013).
The inability of EPA to fight systematic nefarious behavior on the part of corporate actors has been a central tenet of the growing literature on green criminology (Stretesky, Long, and Lynch 2013; Simon 2000). Some argue that criminal prosecutions of environmental pollution offenses remain too rare, limiting the potential for deterrence (Lynch 2017; Lynch et al. 2016). We believe that too little is known about the extent to which criminal enforce- ment of US federal environmental laws has grown and the sorts of acts and actors that have been subject to criminal sanctioning by federal agents, including corporate versus individual actors, shifting priorities or understanding of environmental protec- tion, and case outcomes. Although in this study we offer a systematic look at the types of cases defined as criminal and prosecuted in the United States over its history of criminal enforcement aimed to curtail polluting activities, the extent to which the US exemplifies approaches to environmental regula- tion in other countries remains an open empirical question.
Across nation-states, the criminal enforcement of routine pollution activities seems to be rare (White and Heckenberg 2014, Chap. 12) and the study of how criminal enforcement interacts with other enforcement tools has been hampered by a lack of appropriate data (Billiet, Earnhart, and Rousseau 2018; Shover and Routhe
2005, 327; Tosun 2012). Environmental governance has undergone an extensive transition in recent decades, particularly in the EU, from a focus on command and control enforcement towards a variety of alternative approaches emphasizing cooperation between govern- ment regulators and industry (see Fernández, Font, and Koutalakis 2010; Héritier 2002; Taylor et al. 2012). EU member nations have generally proceeded further down this path than the US, Australia and Canada, which tend to be more inclined towards formal enforce- ment measures for pollution offenses (e.g. Abbot 2009). The ways in which criminal sanctioning of pollution offenses fit into a nation’s toolbox of enforcement actions are so variable as to defy simple comparison, however. Civil enforcement of pollution laws plays a central role in the US context, for example, but is not a tool for prosecutors in Germany who thus may rely on criminal sanctions to a much greater degree (Almer and Goeschl 2010). In China, and even more so in develop- ing nations, command and control approaches to envir- onmental degradation have typically suffered from lack of administrative capacity within environmental agen- cies to conduct sufficient enforcement (Kostka 2016; Zhan, Wing-Hung Lo, and Tang 2013).
To sum, there is no shortage of deliberate polluting behaviors that can be construed and punished as environmental crimes, but myriad factors prompt EPA investigators to exercise selectivity in cases to pursue. It is the intention of the current work to illuminate any shifts in the sorts of environmental violations and enti- ties that come to the attention of federal law enforce- ment and are selected for prosecution. As no systematic trend dataset existed to address such con- cerns, we constructed one using publicly available raw data.
Our database derives primarily from a repository of case summaries for all federal criminal environmental prosecutions that result from concluded cases for- warded to the Department of Justice by the EPA for the years 1985 through 2010. The EPA becomes aware of crimes through a variety of means, including on-line reporting, when accidents occur, and whistle-blowing (EPA 2011; Price 1985). Most commonly, however, cases come to attention as a result of routine facility inspections and scrutiny of self-reports. The vast major- ity of pursued cases are dealt with administratively within the EPA, but a small number of cases initiated by EPA agents is diverted to criminal prosecution. The criminally indicted ought to represent the most serious environmental crimes or cases of gross misconduct.
Case summaries were downloaded in April 2015, allowing a 5-year lag to ensure near-complete release of yearly caseloads.3 Our databases include informa- tion on 1,690 court cases involving 2,288 individual
310 E. W. JOHNSON ET AL.
and 861 organizational defendants. The case summa- ries include names of indicted individuals and/or orga- nizations, a brief description of the criminal events, and information on case resolution for all those involved. This information was subsequently hand-coded by the authors and a team of undergraduate research assis- tants, a time-consuming, multi-year process that adopted a ‘hierarchy of hassles’ approach that uses front-line coders to enter manifest information and expert coders to focus on more problematic (less reli- able) elements of the coding scheme (Baumgartner, Jones, and MacLeod 1998). The approach is designed to maximize resulting data quality and reliability.
The PIs examined a randomly selected subset of cases to develop a coding scheme while relying on a team of undergraduate research assistants (RAs) to conduct coding. After an initial training period, RAs entered data into Microsoft Access forms designed to increase the ease of coding while minimizing imputa- tion errors. All cases were double coded, assigned according to a revolving set of paired matches so that no two coders were consistently coding the same sets of cases. With one notable exception, discussed below, simple matching tests of reliability remained over 95% and Cohen’s Kappa above.8 for all data elements. At weekly project meetings, all coding discrepancies were reviewed, discussed and resolved with the assistance of the first and second authors (an environmental sociolo- gist and criminologist, respectively). After several weeks, the graduate RA (and third author) would indepen- dently resolve discrepancies.
We assembled data into two linked datasets, one on defendants and one organized according to case char- acteristics. At the level of individual defendants, we included both individuals and, when indicted, organiza- tions. For individual defendants, we used case summa- ries to code information on an individual’s position based on the level of authority within an organization: (1) Senior executive (business owner, CEO, president, director or managing director), (2) manager or adminis- trator, (3) employee (4) unrelated to business, or (5) unknown. A set of variables representing the actual indictment(s) against the defendant(s), and number of charges per indictment were coded based upon the United States Codes (USC) cited in the case summaries. Finally, information on sentencing outcomes for all defendants was also recorded into multiple variables: the number of months the defendant was sentenced to prison and/or probation (if any), the monetary amount that each defendant was charged to pay in fees, fines, restitution/remediation, and/or donations (if any), and/ or the number or hours the defendant was sentenced to community service (if any).
At the case level, we aggregated individual-level measures and coded a unique set of information from the textual descriptions of offending activity. The name
of the company within which polluting activity took place was recorded, even if that entity was not a defendant. This ‘organizational context’ was classified as being a (1) large corporation, (2) small to medium- sized business, or (3) government entity (including mili- tary) or non-profit organization. The determination of which organizations was large, for-profit entities were based upon whether it was listed at least once within three years prior to case-initiation in Dun & Bradstreet’s Million Dollar Directory, a directory published annually since 1959 of public and private businesses with an indicated worth of 1,000,000 USD or more.
At the top of our hierarchy of hassles was coding a categorical measure to indicate the primary environ- mental crime for which a case was prosecuted. During the coding process, it quickly became apparent that undergraduate RAs were not able to reliably code this measure. To overcome this problem RAs wrote brief, single sentence, descriptions summarizing the criminal activity which led to prosecution. Subsequently, the PIs independently coded each case according to crime type as defined in the codebook, then met to resolve all discrepancies, sometimes referring to the original case material to resolve unclear instances. Our mea- sure of the primary environmental offense committed (crime type) includes eleven discreet categories: (1) discharge of organic waste (including animal wastes, discharge of fat/grease, untreated runoff or sewage from waste water treatment plants); (2) discharge of heavy metals, chemicals or other manufacturing waste; (3) discharge from boats/vessels; (4) improper hazar- dous waste transport/disposal/storage; (5) improper asbestos removal; (6) selling unregistered pesticides or using them illegally; (7) illegal dredging or filling of waterways and wetlands; (8) violations of international trade and import laws; (9) falsifying tests performed by an environmental services firm; (10) falsification of records at a polluting company itself; and (11) a miscellaneous category including other actions like venting refrigerant or pollution resulting from operat- ing a methamphetamine laboratory. We now turn to our analysis of the changing mix of environmental crimes and entities that were the focus of EPA criminal prosecutions for crimes against the environment.
The increased frequency of criminal prosecutions for pollution offenses is shown graphically in Figure 1 which displays the number of cases successfully referred for prosecution by the EPA since the inception of its crime-fighting unit through 2010.4 Despite some- times extreme year over