Evaporating Into Thin Air: The Prosecution of Air Pollution Crimes During the Trump Administration

Antagonistic to environmental regulation, the Trump Administration sought to significantly roll back federal clean air law enforcement. Yet, we know very little about the impact of the Administration on air pollution criminal enforcement. Through content analysis of all EPA criminal investigations leading to prosecution, we analyze patterns in charging and sentencing and draw out the broader themes in air pollution prosecutions during this period. Our results show a sizable drop in prosecutions compared to the Obama Administration. Although prosecutors managed to pursue serious crimes involving significant harm and criminal conduct and secure over $2.9 billion in monetary penalties, roughly 160 years of probation, and 146 years of incarceration at sentencing, many of these penalties result from a few prosecutions. Our conclusions focus on forward-facing solutions for the Biden Administration to make good on campaign promises to reduce environmental injustice through enhanced environmental criminal enforcement, community policing and engagement, and recognition of environmental justice communities as crime victims

Making Bad Decisions with Toxic Emissions: Exploring the Prosecution of Companies for Superfund Crimes

Marginalized communities in the United States bear the brunt of toxic pollution from Superfund sites. Criminal provisions in the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as Superfund, allow prosecutors to seek penalties for environmental crimes involving significant harm and/or culpable conduct, but we know little about how companies have been prosecuted for Superfund crimes. We utilize content analysis of 2,728 environmental crime prosecutions stemming from U.S. EPA criminal investigations from 1983-2021, and select cases of companies prosecuted for Superfund crimes. We found that across 41 prosecutions, 126 defendants were prosecuted, resulting in 68 years of probation and over $47 million in criminal penalties assessed at sentencing, but penalties are significantly impacted by a few large-penalty prosecutions. Fifty-one percent of prosecutions centered on hazardous waste crimes, followed by asbestos crimes (24 percent), chemical spill crimes (15 percent), and emissions crimes (10 percent). We conclude with a discussion of the value of Superfund criminal enforcement for deterring environmental crime and make suggestions for expanding Superfund criminal prosecutions

Green Crimes in the Empire State: Analyzing the Criminal Enforcement of Environmental Law in New York

Ensuring compliance with federal and state environmental laws and deterring future offenses can require the application of criminal enforcement tools. Yet we have a limited understanding of how the criminal enforcement of environmental laws has progressed historically in The Empire State. To explore this phenomenon, we undertake content analysis of federal prosecution summaries for all environmental crime prosecutions stemming from U.S. Environmental Protection Agency criminal investigations from 1983 to 2019. We explore which federal environmental laws were violated, determine which charging statutes were used, analyze sentencing patterns, and illustrate the broader themes that emerge in such prosecutions over 37 years. Our findings show that total penalties assessed to all defendants included some $264 million in monetary penalties, almost 7,000 months of probation, and 4,757 months of incarceration. We find that 26 percent of prosecutions center on air pollution crimes, 18 percent on water pollution crimes, 12 percent on hazardous waste crimes, and 18 percent on state-level offenses. We conclude with forward-looking ways to improve the criminal enforcement of environmental laws, including enhancing resources, community policing, and public salience

Toxic Criminals: Prosecuting Individuals for Hazardous Waste Crimes Under the United States Resource Conservation and Recovery Act

The U.S. Resource Conservation and Recovery Act (“RCRA”) contains criminal provisions which allow prosecutors to seek substantial penalties when individuals commit hazardous waste crimes involving significant harm or culpable conduct. However, our empirical understanding of enforcement outcomes is limited. We used content analysis of 2,728 criminal prosecutions derived from U.S. EPA criminal investigations from 1983 to 2021 and examined all prosecutions of individual defendants for RCRA violations. Our results show that 222 prosecutions were adjudicated, with over $72.9 million in monetary penalties, 755 years of probation, and 451 years of incarceration levied at sentencing. Seventeen percent of prosecutions centered on unlawful disposal of hazardous waste, sixteen percent unlawful storage, nine percent unlawful transport, and fifty-six percent a combination of these crimes. We conclude with recommendations to enhance criminal enforcement efforts via increased budgetary appropriations

Lone Star Crime: The Criminal Enforcement of Environmental Law in the State of Texas

Most transgressions of environmental law in the United States are remedied with civil or administrative tools. When crimes involve significant harm or culpable conduct, criminal enforcement tools may be applied. With the importance of environmental criminal enforcement for punishing offenders and deterring future offenses, we still have little empirical understanding of this phenomenon in Texas. We use content analysis of 2,588 federal environmental criminal prosecutions that result from EPA criminal investigations from 1983 to 2019 and select all prosecutions occurring in Texas. Our approach allows us to explore prosecution patterns over time, examine charging and sentencing trends, and draw out the broader themes of environmental crimes prosecuted in the state. Our findings show that across 122 adjudicated cases, prosecutors obtained over $371 million in monetary penalties, roughly 483 years of probation, and 125 years of incarceration at sentencing. We find that hazardous waste crimes comprise 29% of prosecutions; water pollution crimes comprise 24% of prosecutions; air pollution crimes comprise 22% of prosecutions; and state-level crimes comprise 19% of prosecutions. This Article concludes with suggestions for bolstering the criminal enforcement apparatus through greater resources, media salience, and community policing

Lone Star Crime: The Criminal Enforcement of Environmental Law in the State of Texas

Most transgressions of environmental law in the United States are remedied with civil or administrative tools. When crimes involve significant harm or culpable conduct, criminal enforcement tools may be applied. With the importance of environmental criminal enforcement for punishing offenders and deterring future offenses, we still have little empirical understanding of this phenomenon in Texas. We use content analysis of 2,588 federal environmental criminal prosecutions that result from EPA criminal investigations from 1983 to 2019 and select all prosecutions occurring in Texas. Our approach allows us to explore prosecution patterns over time, examine charging and sentencing trends, and draw out the broader themes of environmental crimes prosecuted in the state. Our findings show that across 122 adjudicated cases, prosecutors obtained over $371 million in monetary penalties, roughly 483 years of probation, and 125 years of incarceration at sentencing. We find that hazardous waste crimes comprise 29% of prosecutions; water pollution crimes comprise 24% of prosecutions; air pollution crimes comprise 22% of prosecutions; and state-level crimes comprise 19% of prosecutions. This Article concludes with suggestions for bolstering the criminal enforcement apparatus through greater resources, media salience, and community policing

Of Sex Crimes and Fencelines: How Recognition of Environmental Justice Communities as Crime Victims Under State and Federal Law Can Help Secure Environmental Justice

Environmental justice communities throughout the United States continue to face disproportionate health burdens from living near industrial sources of pollution. Such burdens were caused by historically racist public policies and continue to be perpetuated by inadequate regulatory responses at the federal and state level. State and federal law has increasingly recognized an emerging set of rights afforded to victims of crime in court proceedings. We argue that members of environmental justice communities should be viewed as crime victims and have the same rights applied as other victims of violent crime. Using case examples under the federal Crime Victims’ Rights Act (CVRA) and exploring significant amendments to state constitutions in the last few years due to the Marsy’s Law Movement, we argue for the emerging potential to apply these rights to environmental justice communities. We contend this move will open up a new path to reduce harm for environmental justice communities left by the failures of the regulatory state and begin to give them voice and make them whole

Politics and the Criminal Enforcement of The Toxic Substances Control Act

Environmental crimes related to chemical substances are governed under the Toxic Substances Control Act (TSCA). When these violations involve significant harm or culpable conduct they may be remedied through criminal prosecution. While Democratic and Republican presidents have offered historically varied support for criminal enforcement, we know very little about how politics affects TSCA enforcement outcomes or TSCA criminal enforcement generally. To address these issues, we performed a content analysis of 2,728 criminal prosecutions from 1983-2021 that derive from the United States Environmental Protection Agency (EPA) criminal investigations and select all TSCA prosecutions. Results show 75 prosecutions were adjudicated, involving 137 defendants who were assessed 161 years in prison, 277 years of probation and directed to pay over $170 million in monetary penalties. Prosecutions and penalties trend upward for Republican presidents, but the stronger trend is one of structural disinvestment in criminal enforcement over decades spanning both political parties

The Toxic Crusaders: Exploring the History of the Criminal Enforcement of the Toxic Substances Control Act

The criminal prosecution of defendants who violated federal laws governing chemical substances has been ongoing for roughly four decades. Yet we continue to have a poor understanding of how federal prosecutors use the U.S. Toxic Substances Control Act (TSCA) to charge and prosecute environmental criminals. Through content analysis of all the Environmental Protection Agency’s (EPA) criminal prosecution case summaries from 1983 to 2019, we analyze all TSCA-focused prosecutions for two purposes. First, to gain a better historical understanding of how federal prosecutors have used TSCA as a prosecutorial tool. Second, to understand outcomes of those prosecutions. Results show that 38% of prosecutions focus on PCB-related crimes, 34% on asbestos crimes, 24% on lead-based paint crimes, and 4% on chemical crimes. Cumulatively, defendants were assessed over $170 million in penalties, 3,200 months’ probation, and 1,900 months incarceration. We conclude with forward-facing solutions for improving the criminal enforcement of TSCA including enhanced public salience, resources, and community policing