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.