Development Of Law

Bison in winter at Old Faithful; Richard Lake; 1970 Courtesy of NPS.

In the late 1960s, serious efforts began in the United States to stem the growing levels of pollution that were affecting the air, water, and land. Initially, the only effective tool available to federal officials for dealing with pollution of any kind was the Rivers and Harbors Act of 1899, a statute originally enacted to protect the navigability of federal waters. That law provided near strict liability criminal sanctions for violators, but at only the misdemeanor level, that is, with a maximum imprisonment of no more than one year (and a maximum fine of $2,500). Plainly, that law was not sufficient to deal with the array of contaminants reaching the environment or the sophistication of modern industrial society.

Waste oil and chemical disposal near the Hudson River, May 1970. Courtesy of the National Archives.In 1970 the situation began to change when the first of the modern environmental protection statutes, the Clean Air Act, now 42 U.S.C. § 7401 et seq., became law. One of the most important features of that statute was the inclusion of criminal enforcement provisions as the ultimate weapons in the fight against environmental polluters. Although the Act provided no more than misdemeanor sanctions for certain violations, it nevertheless signaled a congressional willingness to take a more aggressive approach to enforcement.

The Clean Air Act soon was followed by other statutes, including in 1972 both the Federal Water Pollution Control Act, also known as the Clean Water Act, and the Ocean Dumping Act (ODA), 33 U.S.C. §§ 1251 et seq. and 1401 et seq., respectively. While the regulatory systems of those new statutes varied from one to another, one consistent factor was that each of them included criminal enforcement provisions, although all of the crimes remained misdemeanors.

The addition of environmental criminal provisions to the United States Code did not translate immediately into a criminal enforcement program. It took several years for the regulatory programs envisioned under the new statutes to be created and implemented. During this developmental period, there was little to enforce. Moreover, the misdemeanor level criminal sanctions set forth in the new statutes did not attract significant interest among federal law enforcement authorities, who historically have focused their limited resources chiefly upon felony offenses (i.e., crimes with maximum imprisonments of more than one year), with larger penalties which are regarded by the general public as being more serious. That did not mean, though, that there were no environmental crimes prosecuted during the 1970s. There were situations in which violations were so serious that they merited the substantial investment of federal law enforcement resources despite the fact that only misdemeanors were at stake. For example, when in 1975 Allied Chemical Corporation contaminated the James River in Virginia with the pesticide Kepone, both corporate and individual prosecutions ensued. When pesticide wastes contaminated the Louisville, Kentucky, sewer system in 1977, resulting in the discharge of raw sewage into the Ohio River, a company owner and two of his employees were prosecuted. These and a growing number of other criminal cases laid the foundation for the development in the 1980s of what became a true federal environmental crimes program.

Two important developments in the early 1980s altered the circumstances that had limited growth of the program during the preceding decade. First, the Resource Conservation and Recovery Act Amendments of 1980, 42 U.S.C. § 6901 et seq., introduced felonies into the nationç—´ primary hazardous waste regulation statute. Another set of amendments to that statute in 1984 increased both the number and the sanction levels of those felonies. The effect of adding felonies to environmental statutes was to focus more attention and more resources, including those of the FBI, upon their enforcement. Second, in 1982 both EPA and the Department of Justice established units within their organizations that were dedicated specifically to investigating and prosecuting environmental crimes cases; thus, criminal enforcement in that specific field was much better able to compete with other programs for resources.

Two more changes positively affected the environmental criminal enforcement program in 1987. First, the CWA, the statute most commonly criminally enforced under the federal program, was amended by the addition of felony sanctions, thereby bringing it to parity with RCRA. Second, the United States Sentencing Guidelines came into effect. Originally, it was mandatory that judges follow the Guidelines. Today, as a result of Supreme Court rulings, the Guidelines are advisory. The provisions of those guidelines that cover environmental crimes helped to ensure that many of the individual defendants convicted of those offenses are incarcerated, some for a number of years.

As a result of changes during the 1980s, the federal environmental crimes effort steadily grew into the mature, and still evolving, program it is today.

 

Updated May 7, 2015

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