Eight years later, Christianson and Rivera pled guilty to destroying government property and were sentenced to two and three years of prison, respectively.  On appeal, Rivera challenged the district judge’s decision to apply the terrorism enhancement of the sentencing guidelines.  He argued that he was not a terrorist because his motivation was “the hope of saving our earth from destruction.”  The Seventh Circuit, however, rejected his argument and affirmed the sentence in United States v. Christianson (No. 09-1526) (Manion, J.). 

Following the application notes contained in the guidelines, the court relied on the definition of terrorism set forth in 18 U.S.C. § 2332b(g)(5)(B): the commission of a listed crime (including destruction of government property) ”calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.”  In light of that definition, it was not hard to conclude that Rivera qualified as a terrorist:

Here, the purpose behind defendants’ actions was to further ELF’s political agenda: the end to industrial society. . . . Because the defendants do not look the part of our current conception of a terrorist does not separate them from that company.  Indeed, it doesn’t matter why the defendants oppose capitalism and the United States government — if they use violence and intimidation to further their views, they are terrorists.

I agree there is little legal (or, I suppose, moral) basis to distinguish criminals who are motivated by extremist environmental views from criminals who are motivated by extremist religious views.  But I think it is an interesting question whether a passionate desire to reform society (on environmental, religious, or any other grounds) ought to be treated as an aggravating sentencing factor.

Imagine a hypothethetical variation on Christianson: Although Rivera was motivated by a desire to change government policy on genetic engineering, Christianson was only in it for the thrill of sneaking into a government facility in the middle of the night and destroying something.  Is it right that Rivera ought to be punished more severly than Christianson based on his motive?  At least he was seeking the greater good and not acting in a purely self-interested manner — arguably, his motives are mitigating, not aggravating, relative to hers.

Consensus has proved elusive on whether and how nonuse values should be considered in cost-benefit analysis of new environmental projects or regulations.  In economic terms, such valuation will have the positive effect of incentivizing people not to destroy the resource.  But economists have struggled to assign actual dollar values suitable for use in such a calculus.  One widely used but controversial method called “contingent valuation” involves the use of surveys to find out what individuals would pay to preserve environmental resources.  Survey results are then averaged and generalized across entire populations.  The design of the survey questions is controversial, and the results are often rigidly contested or even rejected out of hand.  One famous CV study estimated the nonuse harm of the Exxon Valdez disaster at between two and eight billion dollars. 

Quite apart from the raging debate over the validity of contingent valuation, other scholars are waging a separate struggle over whether it is harmful for society to “commodify” or “commoditize” certain things. 

Some have argued that environmental resources should not be commoditized because they are nonfungible – or, to extend the argument a bit, that those who assign dollars to nonuse values are improperly comparing apples to oranges.  They argue that the harm of commoditization is not easily quantifiable or verifiable; it is intrinsic, or even has a moral character. 

Most environmentalists would probably argue that nonuse values should be considered in cost-benefit analyses, but they might also believe that commoditization is an intrinsic environmental harm.  Thus, in my view, an unaddressed tension exists between appropriate consideration of environmental nonuse values, and unhealthy commoditization of those same features.  This tension, I believe, cannot easily be resolved.

Based on the economic conditions of the last couple of years, I am amazed that companies are willing to allow others to freely practice inventions which would otherwise generate licensing revenues.  However, some companies have done exactly that.

Obviously, the member companies are not pledging patents that cover core technologies that embody their flagship products.  However, the member companies are all patent savvy.  They invested resources to file applications covering the inventions and pursue the applications through prosecution and patent grant, whereby it is reasonable to assume that the companies found at least some value in the inventions.

The original member companies are IBM, Nokia, Pitney Bowes, and Sony, which collectively pledged 30 patents into the Eco-Patent Commons, at its inception.  Since then, five other companies have joined by pledging at least one patent and there are 95 patents held within the Eco-Patent Commons.

It will be interesting to see if the Eco-Patent Commons continues its growth in the near future.  Or, perhaps increases in “green technology” implementation will prove that these patents can be monetized and entice companies to aggressively seek potential licensees.

Many environmentalists are apt to bristle at the apparent demonstration that federal judges are “soft” on environmental crime.  Given how little the government must prove to get an environmental conviction, however — prosecutors need not show either harm to the environment or an intent to harm the environment — I am not convinced that judges really are devaluing the environment through their sentencing decisions.  Still, I think the data warrant a rethinking of the environmental guidelines in order to give them more credibility with judges.

Here is the abstract: 

The federal sentencing guidelines for environmental crimes bark loudly, calling for sentences of imprisonment for all but the most trivial of environmental offenses. Although the terms of imprisonment are not long, the prospect of even a short period of incarceration is doubtlessly capable of getting the attention of the white-collar professionals who typically commit environmental offenses. Research I conducted in 2004, however, indicated that the bark of the environmental guidelines was considerably worse than their bite. Judges “departed” below the applicable guidelines range in an unusually high percentage of environmental cases, barely one-third of convicted environmental defendants received prison sentences, and only about forty percent of prison sentences exceeded one year in length.

Although the data contained in my 2004 study were striking at the time, ensuing developments might appropriately raise questions as to their reliability today. For instance, the Supreme Court fundamentally restructured federal sentencing law through its 2005 decision in United States v. Booker, which changed the status of the federal sentencing guidelines from mandatory to advisory.

With Booker and other developments in mind, the present article updates the data from my earlier study, demonstrating a surprising level of continuity from the Clinton to the Bush eras, and from pre-Booker to post-Booker. Simply put, despite notable institutional and legal changes, the bark of the environmental guidelines remains considerably worse than their bite.

Finally, the article considers normative implications of the bark/bite gap. In light of the overarching purposes and premises of the federal sentencing system, the data provide important support for a fundamental redesign of the environmental guidelines. Failing such a redesign by the Sentencing Commission, the data should be regarded by the courts as providing some support for arguments by individual defendants that particular provisions of the environmental guidelines should not be applied to them.

I presented the paper at a fascinating conference on environmental crime at Utah Law School, which I posted about here.  The paper will be published in the Utah Law Review.

Some legal commentators in recent months have questioned whether the Obama Stimulus Package will truly create green jobs for the American economy. See, for example, Morriss et. al., Green Job Myths.

Here is some indication how to use those dollars so that they will actually create those jobs.  The following is a press release from the Center on Wisconsin Strategy (COWS), a nonprofit, nonpartisan “think-and-do tank,” dedicated to improving economic performance and living standards in the state of Wisconsin and nationally:

A new report from the Center on Wisconsin Strategy encourages the state to embrace the green-collar potential of a clean energy economy. Greening Wisconsin’s Workforce: Training, Recovery and the Clean Energy Economy looks at how Wisconsin might best use its Recovery Act dollars and first-rate technical college system to ensure that the emerging green economy benefits Wisconsin’s working families. 

“A greener Wisconsin economy can create and retain jobs,” said Sarah White, COWS Senior Associate and the report’s author. “To make real progress, we need to carefully target economic and workforce development, ensuring that “green jobs” are good jobs, and that both unemployed and low-income working adults can access training for them.”

Where are the green jobs? Some are atop wind towers or green rooftops. But more are hiding in plain sight. The vast majority, in fact, will be found in traditional occupations and industries fortified, in some cases, with new green skills. Green-collar workers are machinists, assemblers and truck drivers; pipefitters, insulators and carpenters; technicians, mechanics and maintenance workers; bookkeepers, receptionists, and customer service representatives.  And because most of them will  require more than a high school but less than a 4-year college degree, Wisconsin’s technical colleges will be a key training resource.

Greening Wisconsin’s Workforce offers a brief overview of clean energy training programs already in place at campuses across the state, related Recovery Act resources, and national best practices for green technical training initiatives. The report also urges Wisconsin to green its manufacturing base and includes an appendix of representative occupations in three green sectors:  wind turbine production, energy efficiency, and advanced biofuels.

Drawing on findings from COWS’ influential national report, Greener Pathways: Jobs and Workforce Development in the Clean Energy Economy, the new release makes specific policy recommendations for coordinated, demand-driven training at Wisconsin’s technical colleges and workforce agencies. An additional report examining the role of apprenticeship, apprenticeship prep, and community-based training programs will be released early this summer.

It’s an interesting and important read.  Here is the new report: Greening Wisconsin’s Workforce: Training, Recovery and the Clean Energy Economy.

In retrospect, it strikes me that the proportionality debate has a lot to do with how environmental criminal enforcement is framed: as an aspect of environmental law, or as an aspect of criminal law. 

The speakers who seemed most satisfied with the current state of the law were teachers of environmental law and environmental prosecutors.  From their perspective (to use a metaphor one of the prosecutors suggested), criminal enforcement is just the tip of the environmental enforcement pyramid, with civil and administrative enforcement used for a far greater percentage of environmental violations.  I suspect it is hard for them to see a proportionality issue in criminal enforcement because they see the criminal cases in relation to the civil and administrative cases, and they recognize various ways in which the criminal cases can be ranked as more severe than the noncriminal. 

By contrast, those who teach criminal law (like me) were less comfortable with the status quo.  We are less inclined to see the environmental criminal cases in relation to other environmental cases than to other criminal cases.  In this context — when you are thinking about rapes, robberies, assaults, and other “real” crime – it is hard to see the sense of proportionality in imprisoning a person for recordkeeping violations, or dumping a load of sand onto a wetland on one’s own property, or misunderstanding the notoriously complex hazardous waste disposal regulations — particularly when no actual harm to the environment has been demonstrated. 

I continue to think that the statutes and the sentencing guidelines should be more discriminating — I’ll have a paper focusing on the sentencing side of the equation on SSRN later this semester – but it is helpful for me now to have a better sense of where people with an opposing point of view are getting their sense of proportionality.

Many thanks to the organizers of the conference for facilitating such a lively and illuminating conversation!  Look for papers from the Conference to appear in the next volume of the Utah Law Review.

Playa Vista and Wetlands

As Matt relates in the abstract to his article, he finds the Playa Vista saga to be a hopeful one:

While many businesses are becoming greener, development corporations may have the greatest incentive to integrate environmental values into their everyday business practices. With the effects of urbanization, suburbanization, and sprawl, cities are increasingly requiring environmental mitigation measures for approval of new development. In response, some development corporations may become greenwashed to obtain discretionary land use approvals to build their proposed developments. Others may build greener developments to meet the market demand from environmentally conscious buyers. An increasing number of developers, however, adopt environmentally responsible business practices for, at least in significant part, altruistic reasons. A prime example of this phenomenon is Playa Vista, the more than 1000-acre development in Los Angeles that is currently the largest urban infill project in the country. Playa Vista serves as a useful case study for exploring how developers’ inclusion of various stakeholders–particularly environmentalists–may signal a paradigm shift in how development occurs.

By Matt’s description, Playa Vista does indeed seem a model of environmentally sensitive development, but I’m not so convinced by the characterization of the developers’ motives as altruistic. As Matt describes, a series of developers at Playa Vista were subject to considerable political pressure and hounded by lawsuits from environmental groups for many years before the project took on its present environmentally friendly form. While the current developers have exceeded minimal legal requirements, they have also used environmental consciousness as a marketing tool. This makes me wonder whether there really has been some underlying change in attitude among the developers toward environmental impacts, or whether modifications to the project have instead been motivated by a desire to respond to current, pro-environmental market preferences. There may not be much practical difference today between the two possibilities, but I do wonder how long consumers’ environmental consciousness will survive continued economic hard times. For instance, public resistance to new oil drilling in U.S. coastal areas seems to be melting away in the face of high gas prices. If the environmentalism of consumers is just a passing fad, I suspect that the environmentalism of corporations will prove to be the same.