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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — March 1985


Criminal Prosecution and Defense of Environmental Wrongs

by Daniel Riesel

Editors' Summary: It is a sign of the maturity of environmental law that criminal enforcement is coming of age. Although federal and state pollution control agencies have long had criminal enforcement powers, those powers were rarely used. One explanation may have been a reluctance to saddle businessmen confronted with complex and confusing regulatory demands with the stigma of criminal indictments. Anotherr may have been convern that it would be difficult to prove that violations were accompanied by the requisite mental state—most of the statutes limit criminal sanctions to "knowing" violations. Whatever the reasons for past reluctance to prosecute violators of pollution control statutes, that reluctance has disappeared, perhaps reflecting a decision that the statutes have been around long enough to be familiar to all in the regulated community, making knowing violations truly criminal in nature. The author describes the current federal and state criminal enforcement initiatives, surveys the criminal provisions of federal environmental statutes, analyzes key questions of proof under those provisions, and offers suggestions for attorneys representing persons under investigation.


Reforming Environmental Law

by Phillip D. Reed

It is time we started to think seriously about environmental law reform. Environmental law has been with us for over 15 years and, although it is still a growing teenager,1 1985 is not too soon to plan for its maturity.Its intense energy and compulsion to accomplish everything at once without concern for the long-term consequences were understandable, probably essential, in its youth. It had to carve a place for itself in a world that, but for a relatively small number of idealists, was largely indifferent. Now, environmental law is strong and able to control much within its broad reach. It has achieved some of its idealistic goals and begun to see how hard it is to achieve them all. Without abandoning its goals, it must learn to function with minimal friction in an adult world of competing interests and compromise. Even though there are serious new problems to address, it is time to pay attention to reforming environmental law.

This does not mean it is time to prepare environmental law for the dotage of old age. Unlike some categories of federal regulatory initiatives, for example certain economic regulation, environmental law does not serve a need that can be mooted by changes in the economy. It serves a more enduring purpose by protecting the environment that sustains our very existence. Absent government intervention, the economic incentives to pollute are virtually irresistible. The damage a modern industrial economy can inflict on the environment can be fatal. In this context, deregulation is not, and probably never will be, constructive reform. But there is nothing sacred about our initial schemes for protecting the environment. They have flaws and could be reformed. Because it must last, environmental law must have the capacity to evolve continuously.