Environmental Crime

Environmental Crime: Factors for Presecution in the United States

Where the law and evidence would otherwise be sufficient for prosecution, the Attorney for the Department should consider the factors contained herein [1], to the extent they are applicable, along with any other relevant factors, in determining whether and how to prosecute. It must be emphasized that these are examples of the types of factors which could be relevant. They do not constitute a definitive recipe or checklist of requirements. They merely illustrate some of the types of information which is relevant to our exercise of prosecutorial discretion. [2]

It is unlikely that any one factor will be dispositive in any given case. All relevant factors are considered and given the weight deemed appropriate in the particular case. See Federal Principles of Prosecution (U.S. Dept. of Justice, 1980), Comment to Part A.2; Part B.3.

Voluntary Disclosure Factor

The Attorney for the Department should consider whether the person made a voluntary, timely and complete disclosure of the matter under investigation. Consideration should be given to whether the person came forward promptly after discovering the noncompliance, and to the quantity and quality of information provided. Particular consideration should be given to whether the disclosure substantially aided the government’s investigatory process, and whether it occurred before a law enforcement or regulatory authority (federal, state or local authority) had already obtained knowledge regarding noncompliance. A disclosure is not considered to be “voluntary” if that disclosure is already specifically required by law, regulation, or permit.

Cooperation Factor

The attorney for the Department should consider the degree and timeliness of cooperation by the person. Full and prompt cooperation is essential, whether in the context of a voluntary disclosure or after the government has independently learned of a violation. Consideration should be given to the violator’s willingness to make all relevant information (including the complete results of any internal or external investigation and the names of all potential witnesses) available to government investigators and prosecutors. Consideration should also be given to the extent and quality of the violator’s assistance to the government’s investigation.

Preventative Measures and Compliance Programs

The attorney for the Department should consider the existence and scope of any regularized, intensive, and comprehensive environmental compliance program; such a program may include an environmental compliance or management audit. Particular consideration should be given to whether the compliance or audit program includes sufficient measures to identify and prevent future noncompliance, and whether the program was adopted in good faith in a timely manner.

Compliance programs may vary but the following questions should be asked in evaluating any program: Was there a strong institutional policy to comply with all environmental requirements? Had safeguards beyond those required by existing law been developed and implemented to prevent noncompliance from occurring? Were there regular procedures, including internal or external compliance and management audits, to evaluate, detect, prevent and remedy circumstances like those that led to the noncompliance? Were there procedures and safeguards to ensure the integrity of any audit conducted? Did the audit evaluate all sources of pollution (i.e., all media), including the possibility of cross-media transfers of pollutants? Were the auditor’s recommendations implemented in a timely fashion? Were adequate resources committed to the auditing program and to implementing its recommendations? was environmental compliance a standard by which employee and corporate departmental performance was judged?

Additional Factors Which May Relevant

Pervasiveness of Noncompliance

Pervasive noncompliance may indicate systemic or repeated participation in or condonation of criminal behavior. It may also indicate the lack of a meaningful compliance program. In evaluating this factor, the attorney for the Department should consider, among other things, the number and level of employees participating in the unlawful activities and the obviousness, seriousness, duration, history, and frequency of noncompliance.

Internal Disciplinary Action

Effective internal disciplinary action is crucial to any compliance program. The attorney for the Department should consider whether there was an effective system of discipline for employees who violated company environmental compliance policies. Did the disciplinary system establish an awareness in other employees that unlawful conduct would not be condoned?

Subsequent Compliance Efforts

The attorney for the Department should consider the extent of any efforts to remedy any ongoing noncompliance. The promptness and completeness of any action taken to remove the source of the noncompliance and to lessen the environmental harm resulting from the noncompliance should be considered.

Considerable weight should be given to prompt, good-faith efforts to reach environmental compliance agreements with federal or state authorities, or both. Full compliance with such agreements should be a factor in any decision whether to prosecute.[3]

International Legal Context

Outside of the United States, other countries have similar environmental agencies and domestic legislation. For example, the legal framework of Environment and Climate Change Canada (Canada’s environmental protection agency) includes the Canadian Environmental Protection Act (1999) and the Arctic Waters Pollution Prevention Act (1985), both dedicated to protecting ecosystems and people from pollution and potential harm. In the United Kingdom the Environment Agency is responsible for regulating and monitoring water quality, industry and waste, conservation and ecology. On a regional scale, countries within the European Union are required to comply with over 200 pieces of legislation dedicated to the protection of the environment, with member state compliance enforced by the European Court of Justice (EU, 2014).

In addition to the complex patchwork of environmental enforcement in the United States and other countries, international laws, treaties, and organizations are also relevant to environmental regulation. The United Nations (UN) is the primary international organization to facilitate these treaties. When international treaties are signed by a minimum number of countries, they are supposed to be implemented in those countries via domestic law (UN, 2012). In the United States, for example, if a president signs these treaties, new legislation has to be introduced as a bill, passed in the House and Senate, and signed by the president.

There are numerous international environmental treaties. In general these treaties regulate the emission and/or international trade of a specific category of pollutants. Some of the major treaties designed to control or reduce pollution include the Montreal Protocol on Substances that Deplete the Ozone Layer, the Basel Convention on Transboundary Shipments of Hazardous Waste, the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides, the Stockholm Convention on Persistent Organic Pollutants, the United Nations Framework Convention on Climate Change, the Kyoto Protocol, and the Marrakech Accords.

The Montreal Protocol is designed to protect the ozone layer by phasing out the production of ozone depleting substances (UNEP, Handbook for the Montreal Protocol on substances that deplete the ozone layer (9th ed.). United Nations Environment Program). It includes provisions to adjust the controls on chemical substances as scientific knowledge accumulates. The Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and their Disposal seeks to decrease the movement of hazardous waste between nations. Reducing the transfer of hazardous waste from developed to developing nations is of particular concern (UNEP, The Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and their Disposal, adopted 1989, into force 1992). The Rotterdam Convention focuses on another dimension of the hazardous waste trade; it requires exporters to use proper labeling and directions, and to inform purchasers of restrictions or bans on the substance (UNEP, The Rotterdam Convention. United Nations Environment Program/Food and Agriculture Organization of the United Nations (FAO). Adopted 1998, in force 2004. Rotterdam Convention Secretariat, Switzerland). In addition, signatory nations may ban the importation of listed chemicals. Exporting nations must also ensure that producers within their jurisdiction comply with the provisions of the Rotterdam Convention. At the manufacturing level, the Stockholm Convention (UNEP, Stockholm Convention on Persistent Organic Pollutants adopted 2001, into force 2004. The Secretariate of the Stockholm Convention, United Nations Industrial Development Organization/UNE) aims to restrict the production and use of persistent organic pollutants, which are chemicals that persist in the environment and bioaccumulate through the food web. Under this convention, developed countries must provide financial resources and take measures to eliminate the production of intentionally and unintentionally (when feasible) produced persistent organic pollutants, as well as manage and dispose of these wastes in an appropriate manner (UNEP, Stockholm Convention on Persistent Organic Pollutants adopted 2001, into force 2004. The Secretariate of the Stockholm Convention, United Nations Industrial Development Organization/UNE).

In addition to these treaties, a series of agreements have led to restrictions on greenhouse gas emissions responsible for global warming and climate change. The United Nations Framework Convention on Climate Change, the Kyoto Protocol (2005), and the Marrakech Accords have resulted in national caps on greenhouse gas emissions and a trading system (or market) in which credits for greenhouse gas emissions can be bought and sold. In other words, if countries emit more than their cap allows, they can purchase credits from other countries that emitted less than allowed. Member nations have implemented this cap and trade system by translating their caps to regulated companies through domestic legislation (Gibbs, Cassidy, & Rivers, 2013). These regulated entities may also engage in trading to achieve compliance. [4]

Typology of Environmental Crimes

Typology of Environmental Criminals

Resources

1. As used in this entry, the terms “person”and “violator”are intended to refer to business and nonprofit entities as well as individuals.
2. 2. For example, any person in charge of a vessel or of an on shore facility or an offshore facility is required to notify the appropriate agency of the United States Government of any discharge of oil or a hazardous substance into or upon inter alia the navigable waters of the United States.
3. Source: US Department of Justice
4. Environmental Crime, Carole Gibbs and Rachel Boratto

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