I just got back from a couple days at the University of Utah, where I was participating in a national conference on environmental crimes at the S.J. Quinney School of Law. It was a terrific conference, and I was honored to be included among the many distinguished speakers. But it was also among the more contentious academic conferences I have attended, with a marked divide among speakers and audience members as to whether the criminal liability provisions of the major federal environmental statutes have grown too expansive. The basic critique — roundly rejected by some in attendance — was that the statutes (and the federal environmental sentencing guidelines) do not recognize important distinctions among environmental violations, but, rather, lump together offenses of greatly varying culpability. The debate thus centered on the question of whether environmental criminal law respects the principle of proportionality in punishment.
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.