AN ASSESSMENT OF THE DISCRETION AND THE CRIMINALIZATION OF ENVIRONMENTAL LAW

ABSTRACT
Enforcement of federal environmental law is complex. Central to the
efficacy of enforcement is the role of prosecutors and judges in exercising their discretion over which violations to prosecute and what sanctions to impose. In the context of the Clean Water Act (“CWA”), discretion is exercised in an institutional framework of marginal deterrence,
criminal sanctions, broad prosecutorial discretion, and judicial discretion
constrained by the Federal Sentencing Guidelines. After a description of
the CWA institutional framework for enforcement, a review of legal,
economic, and criminal justice dimensions of exercising discretion is
provided. It is concluded that while broad prosecutorial discretion is justified on economic efficiency grounds, extending criminal sanctions to
outcomes lacking violator intent or control is likely to result in the overcriminalization of environmental law. Equally troubling, if judicial discretion is used to impose significant downward departures from the Federal Sentencing Guidelines, the trivialization of CWA enforcement is inevitable. Thus, overzealous prosecution runs the risk of creating over deterrence and stripping criminal sanctions of their moral stigma, while
lax criminal sanctioning undermines deterrence objectives and minimizes
the importance of violating federal environmental law itself. Policy implications of recent sanctioning trends, as well as future research needs,
are also explored.

I. INTRODUCTION
Discretion exists wherever the law leaves a public official free to
make a choice. 1 Put another way, to the extent that discretion exists, legal
outcomes are underdetermined by the letter of the law. Discretion may
therefore be thought of as the “wiggle room” that the system leaves for the
disparate or individualized treatment of parties before the law. The law
may expressly delegate discretionary authority or it may exist de facto, due
to a lack of review.
While we aspire to an objective system of “laws not men,” some
measure of discretion is inevitable; The absolute and automatic enforcement of the law is practically impossible and would, in any case, be both
unconscionably harsh and prohibitively expensive. Discretion allows room
for judgment. Of course, wherever there is room for judgment, there is
room for bias. Discretion therefore remains a persistent chink in the law’s
armor; A chink that invites attack by anyone who seeks to call the objectivity of the law into question.
So much of the legal system is discretionary that some critics have
gone as far as to conclude that the law amounts to no more than a “ritual
dance,”2
the performance of which may be manipulated by prosecutors and
courts to produce any substantive outcome they desire. The solemn observance of the dance’s formalities, they hold, serves merely to consecrate the
“myth of due process.”3
Although this radical critique is directed at the legal system as a whole, similar (though somewhat less stringent) charges
have recently been leveled against the enforcement of environmental crime,
specifically.
While it is not immediately clear that these criticisms have merit, it is
easy to see why environmental law is particularly susceptible to them. Environmental crimes are relatively new to the American legal landscape and
attitudes toward them are still far from uniform. While many believe criminal law to be an uncommonly effective means of environmental regulation,
society has yet to reach any consensus about the seriousness of environmental offenses. Some feel that harms to the environment lack the moral
weight of crimes committed against human beings, and should therefore be
addressed only through regulatory sanctions like compliance orders, injunctions and money damages. At the other end of the spectrum are those who

judge the scale of environmental damage so large and its consequences so
grave that even accidental violations may merit prison time.
Given the general disagreement, the broad language of the statutes,
and the short history of environmental criminal law, prosecutors and judges
will inevitably differ in their approaches to the prosecution, conviction, and
sentencing of environmental offenders. Commentators on both sides of the
environmental law debate have warned that there is too much discretion in
the system, allowing (and perhaps even forcing) public officials to impute
their own values. They caution that the law as it stands leaves a dangerously wide gap for variance in the charges, settlements, and plea bargains
sought by the government. They fear that this gap allows two identical acts
of environmental harm to be dealt with quite differently.

A. Prosecutorial Discretion
Indisputably, no consensus exists among regulators, enforcers, prosecutors or within the general public on how federal and state enforcement
authorities should respond to environmental violations . . . infractions
addressed by one agency with the proverbial “slap on the wrist” . . . will
be handled by a different agency in another locale by seeking to prosecute the alleged violator under a felony criminal statute.

In the United States, environmental administrators and the prosecutors
to whom they refer criminal cases together enjoy very broad prosecutorial
discretion,9
limited primarily by the Constitution and the rules of prosecutorial ethics.10 Although this discretion11 encompasses countless interpretations, judgments and decisions made at both the Environmental Protection
Agency (“EPA”) and the Department of Justice (“DOJ”), 12 for our purposes, it may be usefully reduced to a few discrete decisions.