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Historical Development Of Environmental Criminal Law

ECS Blue History Blurb, Image by ENRD
Image by ENRD

In the late 1960s, serious efforts began in the United States to curtail the growing levels of pollution that were degrading America's air, water, and land. At first, the only effective tool available to federal officials for dealing with pollution of any kind was the Rivers and Harbors Act of 1899. This statute was enacted to protect the navigability of federal waters, and it held violators to a strict liability standard for certain kinds of dumping. Violations were punishable as misdemeanors. However, that late 19th Century statute was too simple to cover the pollutants and pollutant pathways of 20th Century industrial society.

Although the legal tools to control pollution were weak at the turn of the century, the mainstay for federal enforcement of illegal trade in wildlife was already on the books. Passed in 1900, the Lacey Act made it a federal offense to knowingly engage in interstate trade or transportation of wildlife taken in violation of State regulations. Although it has undergone several significant amendments, the Lacey Act was and is the cornerstone of federal criminal enforcement when plants or animals are illegally taken.

In 1970, authority to stop polluters got an important boost when the Clean Air Act became law. One of the most important features of the Act was the inclusion of criminal enforcement provisions as the ultimate weapons in the fight against polluters. Although the Act only provided misdemeanor sanctions for certain violations, it nevertheless signaled the willingness of Congress to take a more aggressive approach to enforcement.

In 1972, Congress passed additional environmental laws, including the Clean Water Act and the Ocean Dumping Act. While the regulatory systems of the environmental statutes varied, one consistent factor was that each of them included misdemeanor criminal enforcement provisions.

The inclusion of those provisions did not immediately lead to a criminal enforcement program. It took several years for agencies to implement the regulatory programs envisioned under the law. 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 on crimes with maximum punishments that exceed one year of imprisonment (which are known as “felonies”). Nevertheless, there were environmental crimes prosecuted during the 1970s. Often, these were situations where violations were so serious that they merited the substantial investment of federal law enforcement resources despite the relatively light punishments available. For example in 1975, when the Allied Chemical Corporation contaminated the James River in Virginia with the pesticide Kepone, both corporate and individual prosecutions followed. 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 cases, together with others, laid the foundation for a true federal environmental crimes program in the 1980s.

During the 1970s, the environmental movement also focused attention on how human actions in an ecosystem could kill and injure wildlife and even lead to extinction of entire species. In 1973, the Endangered Species Act was passed. And, in 1979, the Environment and Natural Resources Division recognized the need for specialized attorneys who emphasized wildlife protection. The Wildlife Section practiced both civil and criminal law toward this end. Notable early prosecutions involved illegally taken raptors and other birds of prey. That work grew and a cadre of prosecutors formed within what had been re-named the Wildlife and Marine Resources Section.

On the pollution side, 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 introduced felonies into the nation’s primary hazardous waste regulation statute. The effect of adding felonies to environmental statutes was to focus more attention and more resources – including those of the Federal Bureau of Investigation – on enforcement. Second, in 1982 the Environmental Protection Agency and the Department of Justice established units that were dedicated to investigating and prosecuting environmental crimes (see sidebar). Thus, criminal enforcement as part of environmental enforcement generally was better able to compete with other programs for resources.

Three more changes enhanced the environmental criminal enforcement program in 1987. First, felonies were added to the Clean Water Act, the statute under which most federal environmental crimes were brought. Second, the United States Sentencing Guidelines came into effect, and the mandatory guideline sentences associated with environmental violations helped establish the seriousness of those crimes across the country. Third, the Environmental Crimes Section became a fully independent Section within the Environmental and Natural Resources Division. With its own leadership, specialized attorneys, and resources, ECS expanded its work.

In April 2004, the Division’s wildlife prosecutors moved from the Wildlife and Marine Resources Section to ECS. This move created opportunities for all of the Division’s prosecutors to learn from each other, and has effectively increased the resources available to address all environmental crimes. ECS now has a substantial docket of both pollution and wildlife crimes. Today, ECS is well established, and one of its important roles is bringing the expertise its prosecutors have developed since 1982 to U.S. Attorneys’ Offices in the 94 federal judicial districts. Together with their investigative and prosecutorial partners, the prosecutors of the Environmental Crimes Section will continue to fight to protect our nation’s environmental heritage.

Updated September 12, 2023