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Avoiding the Government's Tough New Criminal Enforcement of the Environmental Laws

Judson W. Starr, Proceedings of 38th Annual Rocky Mountain Mineral Law Institute (1992)

Over the past two decades, the proliferation of environmental laws and regulations has created new challenges for American businesses. Those challenges appear even greater today because of the potential consequences for violating environmental regulations. Punishment is no longer limited to penalties and fines. Instead, violations of environmental regulations can result in criminal sanctions against all levels of corporate employees, including supervisory officials who were far removed from the violations.2

The increasing role of criminal punishment results from the dramatic developments in the area of environmental criminal enforcement rather than a new wave of regulations. In fact, most environmental laws have always contained criminal provisions.3 Some of these environmental regulations provide for criminal prosecution for simply negligent or knowing behavior.4 In other instances, individuals may be susceptible to punishment, regardless of any negligence on their part, because of the position they maintain in the corporation and for what in hindsight that person was presumed to know.5 During the period since 1983, the Department of Justice (DOJ) Environmental and Natural Resources Division has made an increasing number of environmental criminal prosecutions, with many of those prosecuted being corporations or their management officials.6 In fact, in 1991 three-quart