Abstract
Efforts to achieve compliance with environmental law most often focus on a strong enforcement policy. As in many other areas of the criminal justice system, the almost unavoidable conclusion is that laws do not function smoothly because of a weak or nonexistent enforcement approach. Not enough violators are identified; when identified, not enough are sanctioned; and when they are sanctioned, penalties are insufficiently severe to communicate the fact that violations will not be tolerated.
During our trial... our attorney asked to bring in a cross-section of the community which we were affiliated with, as character references.
We could have brought two busloads. We brought in approximately 50. They were... firemen, policemen, other growers and just personal friends. This impressed the judge in the case so much he reduced the fines and sentence considerably... just on this.1
I am writing to express my astonishment and indignation over the Board of Public Works’ withdrawal of a $105,000 fine imposed on Culligan Deionized Water Service, Inc.
I cannot believe that such a fine would “put the company out of business.” Indeed if The Times article (July 22) is accurate Culligan accepted between $5 million and $25 million from its clients before dumping the untreated waste into the city sewage system (with virtually no overhead but the cost of running a truck to the nearest sewer). If anything, the fine should have been much higher.
I also cannot believe that the remaining penalty—jail for the Culligan president—will effectively deter such violations in the future. Serving 90 days in a minimum-security country club with other white-collar criminals seems a small price to pay for endangering the health of sanitation workers and the general public (especially when the profits of such crime continue to draw interest in the bank).
A punishment that better fits the crime might be to sentence [the executive] to spend 90 days personally cleaning up the sewers that his company contaminated.
—L. M. Dryden
San Gabriel 2
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References
Interview with James Frezzo, December 28, 1981.
Letter to the Editor, Los Angeles Times, July 29, 1983, Metro Section, at 4, col. 4.
Survey enforcers discussed in Chap. 2, p. 36.
The South Coast Air Quality Management District: A Progress Report, 1977–1983, p. 36.
Interview F. (To maintain anonymity respondents are referred to here by letter only.)
Interview A.
Interview X.
Marc G. Kurzman and Judd Golden, “Formaldehyde Litigation: A Beginning,” Trial 19 (January, 1983), at 82–85; “Insurance Law and Asbestosis—When Is Coverage of a Progressive Disease Triggered?” Washington Law Review 58 (1982), at 63; Anderson, Warshauer, and Coffin, “Asbestos Health Hazards Compensation Act: A Legislative Solution to a Litigation Crisis,” Journal of Legislation 10 (1983), at 25.
The appropriateness of civil law because of its aim of correction, rather than punishment, was also noted by a few respondents to the enforcer survey (as discussed in Chap. 2, p. 36).
Interview X.
Duquesne Light Co. v. EPA, 698 F. 2d 456, at 463. For more on NCP, see Chapter 3.
Interview B.
Inside EPA, Feb. 11, 1983, at 14.
Duquesne Light Co. v. EPA, 698 F. 2d 456, at 486.
Interview E.
Ira Reiner, Los Angeles Times, May 26, 1982.
Personal communication from John T. Scholz, June 19, 1984.
The Register (Santa Ana, California), December, 1983, at Al, col. 2.
State ex rel. Brown v. Dayton Malleable, Inc. 438 N.E. 2d 120 (Ohio).
Interview E.
Interview E.
Interview C.
Interview H.
Ira Reiner, Los Angeles Times, May 26, 1982.
Interview D.
United States v. Oxford Royal Mushroom (see Appendix for complete citation).
One example involved a large chemical company after government had acted civilly against seven of its plants. A spokesman concluded: “There’s a heightened awareness (of environmental matters) within the company.” The Wall Street Journal, Sept. 29, 1981 at 48, col. 1.
Interview B.
Interviews A, B. See also The Wall Street Journal, June 6, 1982, at 1, 25: “... domestic automakers complain that it is inequitable that the foreign car makers get off so lightly,” at 25.
Interview X.
Interview Y.
Interview D.
Interview Z.
Los Angeles Times, Aug. 31, 1982, Part II, at 1, cols. 5–6.
Interview (interviewee not indicated to preserve confidentiality).
United States v. Chrysler Corporation No. 76–1800 (D.D.C., filed Sept. 27, 1976).
Interview C.
Interview E.
Interview C; 42% of the surveyed enforcers, discussed in Chapter 2, p. 36, who are authorized to employ both civil and criminal sanctions reported that they were most satisfied with resolution of cases when a combination of criminal and civil sanctions was pursued as compared to 8% when criminal sanctions only were pursued and 25% when civil sanctions only were pursued.
602 F.2d 1123, 1126(1979).
602 F.2d 1123, 1126(1979).
602 F.2d 1123, 1126(1979).
Interview B.
Interview C.
Interview D. See Frezzo’s similar complaint in Chapter 1.
Interviews C and B.
In July, 1984, DO J temporarily deputized EPA agents as U.S. marshals. Wall Street Journal, Jan. 7, 1985 at 14, col. 1.
The New York Times, Oct. 26, 1983, cols. 5–6.
Interview H.
The Wall Street Journal, June 29, 1984.
The Wall Street Journal, June 29, 1984.
The Wall Street Journal, Jan. 7, 1985 at l col. 6.
Interview with Bruce Chasan Jan. 8, 1985.
Inside EPA February 26, 1982, at p.8.
Inside EPA, Nov. 13, 1981, at p. 12.
Inside EPA, Oct. 29, 1982, at p. 12.
Eliot Marshall, “The Politics of Lead,” Science 216 (April 1982), 496.
Ibid.
“EPA, Citing State Deferrals, Asks Justice to Drop 49 Enforcement Cases,” Inside EPA, Nov. 13, 1981, at p. 14.
Los Angeles Times, Aug. 8, 1983, Part II, at 3, col. 2.
Quoted in Inside E.P.A., Sept. 24, 1982, at 3–4. The EPA’s reasonable efforts program is of interest here. The program, not authorized by legislation, addresses EPA treatment of nonattain-ment areas where compliance with the 1987 Clean Air Act standards is considered impossible. Under the program, rather then bringing enforcement actions, the agency will review the control measures proposed by nonattainment air quality districts. The agency will share information about innovative control strategies used in other districts, and it will assist the nonattainment district to adopt rules which will move toward attainment in the long term. EPA will then undertake cooperative audits to determine if control measures are being implemented. Among the program aims is the avoidance of sanctions where reasonable efforts are being made to achieve air quality results. The program is controversial. See Chap. 6, pp. 117–118.
South Coast Air Quality Management District Advisory Council meeting, January 23, 1985.
Cal Pub. Res. Code §§ 210001 et seq.
Mich. Comp. Law Ann §§ 691.1201-. 1207 (Supp. 1973).
Precise statistics are not available. These estimates come from Sax and DiMento (1974); telephone conversation with attorney in enforcement division of Environmental Analysis group, State of Michigan Department of Natural Resources, October 27, 1983; and with W. Dickson, Legal Clerk, California Resources Agency, October 27, 1983.
United States v. Oxford Royal Mushroom (see Appendix for complete citation).
Oxford Royal Mushroom, Defendants Response to Motion to Quash Subpoena, at 3.
A-Z Decasing (see Appendix for complete citation).
Capri (see Appendix for complete citation).
Los Angeles Times, Aug. 21, 1982, Part II, at 7, col. 1.
Los Angeles Times, Apr. 3, 1982.
Inmont (see Appendix for complete citation).
Inside EPA, Apr. 9, 1982, at 8.
See “Sullivan: Civil Cases, Penalties Cut, State, Criminal Actions Stressed,” Inside EPA, Nov. 13, 1981, at 13, 14; and “Perry Shifts Policy to Give EPA Regions Power to Issue Superfund Orders,” Inside EPA Oct. 22, 1982 at 1, 9.
Inside EPA, Apr. 30, 1982, at 11, 12.
Testimony by James Moorman before the Senate Subcommittee on Environmental Pollution, May 24, 1979, quoted in N. Tennille, Jr., Remarks to ABA Natural Resources Law Section “Criminal Liability Under Federal Environmental and Energy Laws: The House Counsel’s Perspective,” Denver, Colorado, Mar. 24, 1982, at 2.
Gilbert Geis has offered an alternative view of the effects on compliance of inconsistency in policy under certain conditions. Absence of consistency prevents a firm from behaving in a rational and self-protective manner. In a sense, a target is forced to be on guard constantly, making compliance much more risky. This phenomenon may be more relevant for companies prone to avoid regulations in stable regulatory environments. Personal correspondence, May 20, 1985. And Sax has argued: We must put aside the dominating idea that the legal system is to be designed essentially to institutionalize stability and security. Probably nothing is more urgently required in environmental management than institutions for controlled instability.... The old idea of a stable and predictable regulatory agency, patiently negotiating solutions that will then be fixed and unquestionable for years, or even decades, is hopelessly outdated. A mixture of legal techniques—designed to destabilize arrangements that have become too secure—is precisely what is needed for a milieu in which rapid change is the central feature. (J. L. Sax, A General Survey of the Problem, in Science for Better Environment, Ed., Science Council of Japan, 1976, pp. 753, 755–756. Quoted in Anderson, Mandelker, and Tarlock, Environmental Protection: Law and Policy (Boston: Little, Brown, 1984).
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DiMento, J.F. (1986). “They Treated Me Like a Criminal”. In: Environmental Law and American Business. Environment, Development, and Public Policy. Springer, Boston, MA. https://doi.org/10.1007/978-1-4899-0565-9_5
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DOI: https://doi.org/10.1007/978-1-4899-0565-9_5
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