Environmental Crime

The Criminal Justice System's Role in Protecting the Environment

Yingyi Situ-Liu, David Emmons

• Publisher: SAGE Publications, Inc
• Year: 1999
• ISBN:
  9781506338682
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

After defining environmental crime and discussing the extent of the environmental crisis, this book explores the causes, investigation, prosecution and prevention of all types of environmental crime.

CHAPTER 1

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Introduction

We and our environment are at risk. Air, water, and soil pollution; hazardous waste disposal; global warming; acid rain; and reduction of the ozone layer threaten the natural environment and endanger people’s health.

Researchers have documented these disturbing trends with accelerating alarm, at least since the publication in 1962 of Rachel Carson’s Silent Spring. Government and industry heeded the environmental movement’s call in the early 1970s and began with uncertain commitment and only partial success to slow further damage to the environment and to repair the worst damage already done. Administrative regulations and technology have been the chief weapons in these efforts.

Since the late 1980s, however, the procedures and perspectives of criminal justice have been applied to the environmental crisis. Environmental violations have been defined as crimes, and violators viewed as criminals; criminal prosecution of the accused and criminal sanctions against the convicted have accelerated. We are witnessing for the first time the criminalization of environmental wrongdoing. This book examines this new development.

Approaches to Defining Crime

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The human assault on the natural environment reaches back to prehistory when our predecessors first burned wood for food, warmth, and light. But the first serious human threat to the environment and public health arose from the Industrial Revolution. Industry began to consume enormous quantities of hydrocarbon fuels and manufacture a vast array of products from raw materials, leaving in their wake hazardous waste and pollution. Although the Industrial Revolution created modern civilization, it became capable of destroying that civilization (Gore, 1993).

Until the 1970s, in the United States, the prevailing view held that the environmental harm from industrial production was the unavoidable price for economic progress. As this view was challenged with increasing frequency in the 1970s and 1980s, the perception grew that damages to the environment and individuals were not inevitable costs but punishable crimes. If pollution and hazardous waste were controllable, then corporations and persons could be held responsible for their offending behavior—and some of this misbehavior could be considered crime. If disasters were not natural “acts of God” but human catastrophes, then the persons who make them may be committing crimes. The enormity of such highly publicized man-made catastrophes as Love Canal has only deepened this view.

This shift in perspective illustrates the key assertion of labeling theory: that an act is not criminal by virtue of its inherent quality but by virtue of definitions assigned to it by culture and society. These definitions can change over time, as the government’s shifting view of drug use demonstrates. Opium, morphine, and other mind-altering drugs were legally available in the early 1900s to consumers. Growing concern about addiction led in 1914 to passage of the Harrison Act, designed to regulate the domestic use, sale, and transfer of opium and coca products. The Marijuana Tax Act of 1937 placed a prohibitive tax of $100 an ounce on the drug. Not until the 1970s, however, did a law—the Drug Abuse Prevention, Treatment, and Rehabilitation Act (1972)—define drug abuse as a crime and prescribe criminal sanctions.

Although all societies have a concept of murder, few share the same one. The killing of a spouse’s lover by her enraged husband is murder in some societies but not even an indictable offense in others. Killing in a war may be celebrated as heroism, whereas the same killing at home may be condemned as mass murder. The question of what constitutes crime, then, does not yield straightforward answers. Criminologists are divided into two schools on this question: the strict legalist perspective and the social legalist perspective.

The strict legalist perspective emphasizes that crime is whatever the criminal code says it is. Many works in criminology define crime as behavior that is prohibited by the criminal code and criminals as persons who have behaved in some way prohibited by the criminal law (Schmalleger, 1995). Thus, crime is self-evident in the sense that the criminal code defines it. The strict legalist perspective on crime can be traced to a fundamental principle of English common law of the 12th century: nullum crime sine lege, nulla poena sine lege (no crime without law, no punishment without law).

The social legalist perspective argues that some acts, especially by corporations, may not violate the criminal law yet are so violent in their expression or harmful in their effects to merit definition as crimes. This view originates with Edwin Sutherland, a leading theorist of modern criminology, and is shared by many contemporary advocates (Clinard & Yeager, 1980; Frank & Lynch, 1992; Lynch, 1990; Reiman, 1979). Sutherland (1940) observed in his classic study on white-collar crime that the harmful acts of large U.S. corporations were often treated as mere regulatory violations or civil offenses. They carried neither criminal stigma nor the typical sanction of imprisonment. Sutherland attributed this exemption to the ability of the corporate elite and their powerful allies to turn the spotlight of criminal law away from their misdeeds. He advocated a much stronger role for criminal justice in the adjudication of corporate wrongdoing.

These perspectives are more complementary than conflicting. The social legalist approach focuses on the construction of crime definitions by various segments of society and the political process by which some gain ascendancy, becoming embodied in the law. The strict legalist approach, without denying this dynamic, emphasizes these final legal definitions of crime as the starting point of any analysis because they bind and guide the justice system in its work. This book adopts the strict legalist approach, for the most part, because our chief interest is in analyzing the growing number of environmental offenses that are being defined as crimes by the legal system and in assessing the effectiveness of criminal justice techniques in environmental protection.

A Definition of Environmental Crime

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We adopt the following definition in this book: An environmental crime is an unauthorized act or omission that violates the law and is therefore subject to criminal prosecution and criminal sanctions. This offense harms or endangers people’s physical safety or health as well as the environment itself. It serves the interests of either organizations—typically corporations—or individuals. This definition stresses three features of environmental crime.

First, environmental crime violates existing environmental laws. Behavior, however egregious or offensive, that does not violate the law is not crime. Environmental crime, in other words, is the creation of environmental law. For instance, hazardous waste dumping was not prohibited until enactment of the federal Resource Conservation and Recovery Act of 1976. This environmental law defined the act of hazardous waste dumping as a felony, subject to a maximum fine of $50,000 and/or 5 years of imprisonment.

Second, environmental crime has two real victims—people and the environment—whereas the victims of street crime are usually persons. Moreover, when one street crime occurs, generally one victim at that moment is produced. An environmental crime, in contrast, typically has many victims—sometimes the population of an entire region. Their victimization may also be gradual and silent, going undetected for years. The environment that is victim is often public property (e.g., a state park) or resources on which there is no private claim (e.g., the air), whereas the property that street crime harms is usually private.

Third, although corporations are the chief environmental offenders, other organizations (e.g., criminal combines or government agencies) as well as individuals can also commit environmental crimes. For example, organized crime has infiltrated the waste disposal industry and illegally dumped hazardous contaminants. Local governments have shipped solid waste to prohibited sites. Individuals have contributed to the destruction of protected forests and wildlife. Vendors have sold contaminated meat and seafood to the public.

The Extent of the Environmental Crisis

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Criminal justice’s role in environmental regulation expands as the environmental crisis grows. The crisis is both the context and stimulus for heightened interest in criminal justice remedies. Consequently, the scope of the crisis merits review before examining how the criminal justice system may—or may not—help abate the crisis.

Charting the extent of the crisis is not easy. The illegal disposal of hazardous waste illustrates the difficulties. Estimates of the number of hazardous waste sites range from 4,000 to 50,000 (Day, 1989; Rosenbaum, 1991). Consensus is also lacking on the amount of hazardous waste generated annually. Although several widely cited studies from the mid-1980s claim that the United States produces 245 to 275 million metric tons per year, these figures are subject to dispute (Gourlay, 1992; McCarthy & Reisch, 1987). No single definition of hazardous waste prevails. Problems persist in identifying the universe of hazardous waste generators and treatment, storage, and disposal facilities (McCarthy & Reisch, 1987). Although the crisis cannot be quantified with precision, its broad dimensions can be sketched. We focus here on selected indicators that point to a surge in environmental crime.

Toxic Waste

Toxic emissions by U.S. industry, largely unchecked, pose the most serious current threat to the environment. Underreporting and the absence of data from small firms make official estimates suspect. The reported level of 10 million tons per year may be underestimated by a factor of 20 (Commoner, 1990).

Pollution Violators

The U.S. Environmental Protection Agency, Office of Solid Waste and Emergency Response, reported in 1990 that 211,000 industrial generators of hazardous waste were in violation of the Resource Conservation and Recovery Act, a ninefold increase over the number in 1980. Most of this noncompliance, several studies suggest, may lie with small-quantity generators (SQGs). As many as half of New Jersey SQGs, for example, have failed to use required hazardous waste manifests, whereas in the San Francisco Bay area, 57% of SQGs illegally disposed of at least some of their hazardous waste (Russell & Meiorin, 1985). A survey of SQGs in 42 Florida counties revealed that they illegally disposed of approximately half their waste (Schwartz et al., 1987). Thus, although precise national figures on the extent of illegal handling and disposal of hazardous waste are unknown, surveys of scattered sites suggest that illegal practices are not unusual. Indeed, according to one estimate, one of every seven firms generating toxic wastes may have illegally dumped during the first half of the 1980s, to cite one period (Meier, 1985).

Water Quality

About half of the U.S. population (97% in rural areas) relies on underground sources of water—groundwater—for drinking and other personal uses. Today, landfill and chemical storage leaks, hazardous waste, and fertilizer runoff are contaminating underground aquifers. For example, a 1982 U.S. Environmental Protection Agency (EPA) survey found 45% of large public water systems supplied by underground aquifers to be contaminated with organic chemicals. In New Jersey, every major aquifer is compromised by chemical pollutants. In California, pesticides contaminate the drinking water of more than 1 million residents. Underground aquifers near almost all the nation’s nuclear fuel plants have been contaminated by radioactivity (Null, 1990). According to one estimate, it would take 3,000 years, starting tomorrow, for pollutants to bleed out of Long Island’s water table, the region’s only source of freshwater (Day, 1989). Day comments, “As New York has some of the strongest legislation in America to control water pollution, it is frightening to imagine what the water pollution rate must be in less well-protected industrial areas” (p. 239).

Air Pollution

Air pollution has become a growing threat to the nation’s health and welfare because of the ever increasing emission of contaminants into the atmosphere. Nationwide emissions of carbon monoxide reached 109 million tons in 1992 (Erickson, 1992). In the 1970s, in contrast, cleaner air seemed one of the few, albeit partial, victories in the war to save the environment. The decade began with passage of the Clean Air Act (1970). Other, tougher standards on particulate emissions were enacted at the state and local levels. Emission control devices became standard issue on cars and smokestacks across America. But 60% of the U.S. population lived in areas in which air quality failed the standards set by the Clean Air Act, and the air inversions of the summer of 1988 reminded the nation that “the air has been so bad that it again needs a warning label: caution, breathing may be hazardous to your health,” as one science writer put it (Begley, 1988, p. 47). She notes,

Seventy-six cities registered ozone readings at least 25 percent above EPA’s limit of 120 parts per billion. Atlanta has topped the standard 21 times, New York 27 times. In July, 1988, Chicago suffered its first “yellow alert” in a decade: Illinois EPA asked 34 industries to shut down some operations for the day to keep the air breathable. New England’s ozone levels are almost triple those of 1986. . . . Seventy-five million urbanites live where ozone regularly exceeds federal limits and 41.4 million live where carbon monoxide (CO) is too high. (p. 48)

Impacts of the Environmental Crisis

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Human Impact

The environmental crisis causes substantially more illness, injury, and death than street crime does. Polluted water is the single greatest cause of human illness and death through disease (Day, 1989). Almost half of Americans regularly consume tainted drinking water. Countless toxic agents threaten water safety. Many specialize in their victims. Lead, a common and highly toxic pollutant, is especially dangerous to children and pregnant women; it can delay growth in babies and cause mental impairment in children. Lead also poses risks of nerve system damage, hearing loss, anemia, and kidney damage. The U.S. Centers for Disease Control and Prevention estimate that 10.4 million children have been exposed to excess amounts of lead in their drinking water (Null, 1990). Pollutants in water have also been linked to cancer. The Council on Environmental Quality (1981) concludes that the widespread practice of chlorinating public drinking water appears to have increased the risk of gastrointestinal cancer through an individual’s lifetime by 50% to 100%.

In the United States, approximately 53,000 persons a year die prematurely of lung ailments brought on by air pollution. Air pollution caused by toxic agents in the workplace annually kills about 100,000 workers and results in 400,000 cases of disease (Nelkin & Brown, 1984). A somewhat overlapping estimate is that particulate emissions kill 100,000 persons annually, about one and a quarter times the number of U.S. soldiers killed in battle in each year of World War II (DiSilvestro, 1991). Cancer death rates are highest in areas close to petrochemical plants, steel mills, and metal refineries (Berry, 1988; Whelan, 1985). New Jersey, to cite the worst example, harbors the country’s highest mortality rates from cancer—up to two and a half times above normal in the counties with the heaviest levels of petrochemical waste (Morton, 1990).

Solid waste dumps pose threats of miscarriage, birth defects, cancer, chromosome damage, skin rashes, headaches, nervous disorders, and other ailments to residents who live in their vicinity. These dangers were etched on public consciousness by the environmental catastrophe at Love Canal in Niagara Falls, New York, where Hooker Chemical and Plastics Company had disposed of 27,000 tons of toxic waste. The dump site and surrounding area were developed into suburban tract housing in the 1950s. By 1976, residents had endured a variety of calamities. After several years of unusually heavy...

Table of contents

• Cover page
• Title
• Copyright
• Dedication
• Contents
• Preface
• 1. INTRODUCTION
• 2. CRIMINAL LAW AND THE ENVIRONMENT
• 3. CORPORATE ENVIRONMENTAL CRIME
• 4. ORGANIZED CRIME AGAINST THE ENVIRONMENT
• 5. ENVIRONMENTAL CRIME BY THE GOVERNMENT
• 6. PERSONAL ENVIRONMENTAL CRIME
• 7. COMBATING ENVIRONMENTAL CRIME: ENFORCEMENT
• 8. COMBATING ENVIRONMENTAL CRIME: PROSECUTION
• 9. THE GLOBAL ENVIRONMENTAL CRISIS
• References
• Index
• About the Authors