Enforcement of environmental laws through criminal prosecution will be one of the touchstones to tell us what the word “change” means as it applies to the Obama presidency. If the level of prosecutions and incarcerations or major fines goes way up, then it will appear that “change” means things ar different now. If these levels stay the same, or go down, then “change” will appear to mean “I’m in the other guy is out.”
The hardest part of any criminal prosecution is proving criminal intent. CEO’s don’t have any Sarbanes-Oxley compliance in the environmental area. They don’t have to sign any document indicating that they have read the document, and that it’s contents are true. If a warning is sent by the EPA to a major corporation, and then the company continues to violate the law and cause a lot of environmental damage, the CEO can always say, “I don’t open the mail at the company, and I didn’t happen to see that letter, you should be talking to someone else, that function is handled by Joe Blow, talk to him.
Given those facts, it would be prudent to issue administrative subpoenas to CEO’s, get them into the EPA’s offices, and then read the warning letters to them, while videotaping the entire meeting. The CEO would not be asked to say a single word. So there would be no issue of Fifth Amendment rights. This would simply be an exercise to establish a foundation for proving the fact of criminal intent. The videotape could be shown in Court. The jury would see that the CEO was not asleep, did get the oral reading of the letter, and did receive a hard copy with notice of its contents.
Big companies would simply change CEO’s, but that’s OK. It would cost them more to do that than it would cost the EPA to issue another administrative subpoena and go through same exercise with the new CEO. Eventually the companies would realize that there’s no escape from some very important person being personally responsible for compliance after getting a non-compliance warning letter.
This is a huge step in the right direction. About 90% of possible criminal prosecutions would be made unecessary if some multi-millionaire inside the company, at the top of the chain of command, thought they might actually do jailtime unless the company came into compliance with the specifications in the warning letter.
The other 10% (where prosecution simply could not be avoided), would be much cheaper, faster and easier to process. If the mens rea (criminal intent) issue is already mostly proved, there’s really only one defense – the law is unconstitutional or is being applied without due process or in an otherwise unconstitutional manner. This is a tough sell in a Federal Court. Most CEO’s would not want to roll the dice on the idea that the law itself was wrong. Since they are in charge, they are the “deciders” about whether the company chooses to defy the warning letter or comply with it.
That said, we already live in an overly litigitous society. Government prosecutions let off their leash can easily get way out of hand and do more harm than they prevent. So prosecutorial discretion becomes the pivot point upon which the success or failure of enviornmental enforcement through criminal charges turns.
Criminal cases should be brought when the harm to the environment is very large and continuing, and where the chance of getting jailtime is at least 75%, and the chance of getting a personal fine is at least 90%. Witchunts based on poorly prioritized procecutions, or political favoritism or payback are extremely damaging to the environment of business. They don’t deter only environmental harm, they also deter economic activity. People are loath to take responsibility for the management of a large firm where they might wind up going to jail if they don’t do their jobs in a manner that satisfies the EPA.
Good sense and skillful prosecutorial discretion is something that most U.S. Attorneys do very well. We don’t know what the attorneys within Obama’s EPA are going to be like. They might be very wise, or they might be green kids – hotheads – true believers on a prosecutorial crusade. In any case, the Justice Department gets to decide whether to go forward with any prosecution referred to it by the EPA. It would be prudent to make this decision after careful consultation with the local U.S. Attorney, so there’s a full spectrum of input – Environmental Protection Agency – Department of Justice Headquarters – and Local U.S. Attorney. Where there is adequate concurrance across this spectrum of viewpoints, the prosecution is warrranted, and will be vindicated in Court, and will do more good than harm. Long jail terms and big fines are good. Fines that must be paid by the CEO personally, and then other fines that are even bigger that must be paid by the Corporation, (and not their insurance company), and which come directly out of money that would otherwise be available for the payment of dividends to shareholders, are good as well.
Companies are never going to feel remorse for the environmental harm they criminally cause. But, they can be deterred from doing it again. If their stock value goes down to zero, close to zero, and if nobody wants to work for them in top management positions, and if their last CEO is in a Federal prison, they may not be around. There are no indispensable companies – that’s what the market teaches. Charles DeGaulle once said, “The cemetaries of the world are filled with “indispensable men”. The gap is soon filled in, and the market does learn, so the gap would be filled in by a more cautious, compliant, and possibly, ethical company.