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Environmental Sociology

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The criminalization of environmental harm: a study of the most serious environmental offenses prosecuted by the U.S. federal government, 1985-2010

Erik W. Johnson, Jennifer Schwartz & Alana R. Inlow

To cite this article: Erik W. Johnson, Jennifer Schwartz & Alana R. Inlow (2020) The criminalization of environmental harm: a study of the most serious environmental offenses prosecuted by the U.S. federal government, 1985-2010, Environmental Sociology, 6:3, 307-321, DOI: 10.1080/23251042.2020.1748269

To link to this article: https://doi.org/10.1080/23251042.2020.1748269

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ARTICLE

The criminalization of environmental harm: a study of the most serious environmental offenses prosecuted by the U.S. federal government, 1985- 2010 Erik W. Johnson, Jennifer Schwartz and Alana R. Inlow

Department of Sociology, Washington State University, Pullman, WA, USA

ABSTRACT Over the past four decades, criminal, as opposed to civil or administrative, prosecutions have assumed an increasingly visible role in US environmental law enforcement. There is little understanding about the types of acts and defendants criminally prosecuted for pollution offenses in the United States or the sanctions received. In this paper, a unique dataset on virtually all federal criminal prosecutions of pollution-related offenses between 1985 and 2010 is used to assess aggregate trends in characteristics of pollution violations, offenders, and sanctions. Prosecutions increase dramatically in number and diversity over time, drawing in increasing numbers of low-level offenders. An early emphasis on hazardous waste violations is now complemented by prosecution of a large variety of activities associated with pollution of land, water and air, especially activities that pose direct threats to human health. Although most serious criminal violations occur within formal-organizations, individual actors are increasingly held criminally responsible, particularly low-level employees, with a trend away from prosecuting top-executives and large corporations.

ARTICLE HISTORY Received 27 August 2019 Accepted 25 March 2020

KEYWORDS Environment; crime; enforcement; air pollution; water pollution; hazardous waste; corporate crime

The regulation of environmental pollutants is an insti- tutionalized function of nation states in the world today (Longhofer et al. 2016; Meyer et al. 1997), with the United States an early leader in building a national regulatory infrastructure around pollution of air, water, and land. This paper focuses on an important topic within the literature on pollution regulation and enfor- cement. Criminal prosecutions of environmental pollu- tion laws and regulations have taken an increasingly central role in federal enforcement efforts (Shover and Routhe 2005; Starr and Kelly 1990), but are largely unstudied within environmental criminology litera- tures focused on definitional debates about what con- stitutes criminal environmental activity (Brisman and South 2019; Lynch and Stretsky 2003; Stretesky, Long, and Lynch 2013; White 2013), the policing of interna- tional wildlife trade and trafficking (Lemieux and Clarke 2009; South and Wyatt 2011), and routine pol- luting activity at industrial facilities for which data on administrative and civil enforcements are readily avail- able through sources such as the EPA maintained ECHO website (Enforcement and Compliance History Online) (Konisky and Schario 2010; Kremer 2016; Lynch, Stretesky, and Burns 2004; Ringquist 1998). Researchers have examined particularly egregious or highly visible criminal pollution cases, such as the Exxon Valdez and Deepwater Horizon oil spills (Gill, Picou, and Ritchie 2010; Ruggiero and South 2013; Spencer and Fitzgerald 2013), but we have limited

systematic understanding of what acts and actors fed- eral enforcement agents focus on when pursuing crim- inal violations of environmental pollution law (but see Lynch 2017; Ozymy and Jarrell 2015; O’Hear 2004).

This article is intended as an empirical introduction to the understudied world of criminal environmental pollution enforcement. We first draw on criminological literatures to elucidate the funnel of regulatory and policing practices that result in identifying the most serious pollution cases for criminal enforcement. We then describe an unutilized, but publicly available, source of raw data on criminal prosecutions that scho- lars could draw upon to address important questions in the criminalization of polluting behavior. We extracted and coded case-relevant information on 1,690 cases, involving 2,288 individuals and 861 com- panies between 1985 and 2010, a labor-intensive, time-consuming task. This represents the largest and most current database on serious federal offenses against the environment. One positive feature of our database is that we were able to collect rich details about the statutes under which crimes were prose- cuted, resulting punishments, the characteristics of organizations involved, individual defendant’s com- pany position, along with offense-specific information about what acts were carried out and what harms were done.

We then draw on literatures from law and public policy to briefly sketch the historical development of

CONTACT Erik W. Johnson [email protected]

ENVIRONMENTAL SOCIOLOGY 2020, VOL. 6, NO. 3, 307–321 https://doi.org/10.1080/23251042.2020.1748269

© 2020 Informa UK Limited, trading as Taylor & Francis Group

criminal pollution law and employ our data on federal criminal prosecutions to illustrate change over time in the extent and types of offenses prosecuted. Next, we draw on criminological literatures and our data to scope the types of offenders that are pursued by the federal EPA, as well as the types of punishments that are received. We conclude with a discussion of future research directions that scholars could address with these data, focusing on important questions about the characteristics of cases that are selected for crim- inal prosecution and explanations for various senten- cing outcomes, again drawing out parallels from broader criminological literatures.

The current research is not focused on hypothesis testing or drawing global conclusions. Rather it lays out the landscape of criminal pollution cases prose- cuted and punished by the US federal government and will serve, we hope, as a springboard for future research into a wide variety of important and interest- ing questions in this overlooked area of environmental law enforcement.

The changing definitional boundaries of environmental crime

Crimes of environmental pollution, virtually unheard of prior to the 1970s, are a common occurrence in the United States today and pose significant threats to human health and the natural world (Gibbs et al. 2009; Stretesky, Long, and Lynch 2013). By environ- mental crime, we are referring to harmful or potentially harmful acts of pollution that occur outside the rules of federally permitted behavior. This legalistic definition excludes a wide range of individual and corporate behaviors that harm the environment. The focus on pollution-based offenses also excludes the closely allied fields of wildlife and natural resource crime, both of which have extensive histories of their own. Laws protecting natural resources from illegal logging and wildcat mining, for example, are typically anchored in long-standing property law, while wildlife law traces back to at least the Lacey Act of 1900 (Dunlap 1988).1 When we talk about environmental crime in this paper, we are referencing the distinctly new area of criminal law that developed in the last half of the 21st century and which focuses on environmen- tal pollutants and human health effects of exposure to pollutants.

Much of the federal regulatory and bureaucratic framework for monitoring and controlling environ- mental pollutants was established during the 1960s and 70 s. The establishment of the EPA in 1970 com- bined a myriad of existing federal agencies and pro- grams within a single bureaucracy for administering and enforcing the nation’s federal anti-pollution pol- icy (Fiorino 1995). The EPA was initially organized according to major media of pollution (air, water

and land) which map onto three major pieces of legislation central to their policing efforts: the Clean Air and Clean Water Acts (along with their various amendments) and the Resource Conservation and Recovery Act focused on solid wastes. Even as today’s EPA tries to move towards a more holistic approach, it remains organized by these three key media (Carole and Simpson 2009).

The criminal enforcement capacity of the EPA and basic capabilities to investigate criminal envir- onmental acts was initially extremely limited. It was not until the 1980s that the criminalization of envir- onmental violations began in earnest. In 1982 the EPA established an Office of Criminal Enforcement to investigate and the federal Department of Justice (DOJ) established an Environmental Crimes Unit to prosecute environmental crimes (Adler and Lord 1991; USDOJ 2012). As per the general law and order view of the time (Garland 2001), legislated sanctions for violating major federal environmental laws steadily increased. Over the course of the dec- ade, major environmental legislation added felony criminal sanctions to enhance deterrence efforts. Of particular importance were the 1984 RCRA amend- ments, the 1987 Clean Water Act amendments, and the 1990 Clean Air Act amendments (Uhlmann 2009, 1227). The vast majority of EPA-initiated crim- inal environmental cases are prosecuted under the auspices of these three major pieces of legislation (Lynch 2017).

The criminalization of environmental harm

A common metaphor for the US criminal justice system is that of a funnel (Garland 2001). At the wide mouth of the funnel are the large variety of criminal environ- mental violations that occur, only a small fraction of which comes to the attention of enforcement agents. Of cases which come to the attention of authorities and are subject to investigation, only a portion of those is pursued for penalty by the EPA, usually through administrative or civil routes, such that an even smaller number of cases investigated by the EPA is referred to the Department of Justice for criminal prosecution (Lynch 2017; Lynch et al. 2016). The vast majority of environmental violations go unpunished.2

Most investigations of environmental noncompli- ance violations are dealt with administratively or civilly. ‘Administrative remedies are generally designed to restrict (or require) certain future actions and may also involve some compensation to the victim (which is often the government). Although civil penalties might be levied, they are often designed to take the monetary gain away from offenders, and are not gen- erally designed to punish’ (Cohen 1992, 1059). Criminal enforcement actions go further in several ways (see further discussion in conclusion section) and are

308 E. W. JOHNSON ET AL.

intended to communicate and demonstrate accepta- ble bounds of behavior. The symbolic importance of criminal prosecutions for environmental violations is well understood, with prosecutors regularly referen- cing this role in explaining the decision to proceed with criminal charges (Hedman 1990; O’Hear 2004).

Prosecutors have considerable discretion in choos- ing which environmental offenses to pursue as crim- inal violations and those that become subject to federal criminal sanctions represent unique outcomes of this adjudication process. In a careful study of exactly what differentiates criminal environmental pro- secutions from civil and administrative cases, Uhlmann (2009) finds that criminal environmental cases share different combinations of four distinctive features: intentionality, harm, chronic noncompliance, and fla- grancy. First, intentionality is key: ‘[n]o factor is more decisive than lying in making a criminal case out of what might otherwise be a civil matter.’ Often, the ties between misleading conduct and harm are clear, such as in classic cases of midnight dumping, of which there are a considerable number in our data, including the case of an environmental cleanup contractor who drove around with hidden discharge hoses to dispose of hazardous wastes on roadways. Each of the major pieces of environmental legislation, the Clean Air Act, Clean Water Act, and RCRA, includes false-statement provisions (Title 18 of the US Criminal Code). ‘Prosecutors frequently include Title 18 charges, along with environmental charges, to highlight tradi- tional badges of criminality. By emphasizing Title 18 charges, prosecutors emphasize the aspect of the vio- lations that traditionally justifies criminal enforcement (false statements, concealment, obstruction of justice, fraud) and utilize charges that are most familiar (and therefore acceptable) to federal district court judges.’ (1248). Criminal charges such as conspiracy also offer procedural benefits for prosecutors and increased pun- ishment options (Lynch 2017).

Second, significant harm to the environment or human health is an important factor. Simply put, when large-scale environmental disasters occur, the federal government is more likely to pursue criminal prosecutions. Large-scale harm is not a pre-requisite for criminal prosecution, however, and in many cases in our data it is difficult to discern the amount of actual harm that resulted from actions such as document falsification on the part of defendants or tampering with required samples. Third, repetitive violations of environmental laws are at heightened risk of criminal prosecution. The EPA and other environmental enfor- cement agencies typically apply a model of escalated penalties to offenders. That is, they begin by trying to work with offenders, but escalate enforcement actions under conditions of obstinacy or chronic noncompli- ance. Even the penalties offenders receive tend to follow this escalated pattern: from warning letters, to

site visits, then judicial and/or civil orders. These alter- native approaches are typically pursued before crim- inal violations become an option under conditions of continued non-compliance.

Finally, deliberate efforts to operate entirely outside the environmental regulatory system are also at a high likelihood of receiving criminal prosecution, in order to preserve the integrity of the regulatory system. One such example are incidents relating to improper dis- posal of hazardous waste (e.g. without a manifest or in an unpermitted area). Indeed, work by Brickey (2001) on the earliest years under observation (1986–1993) suggests that most hazardous waste violations charged by the federal government during this period were for ‘rogue operators’ conducting unpermitted handling, storing, transporting or disposing of hazar- dous waste.

Yet, the application of criminal sanctions is flexible, to some extent, and may increase to satisfy public concern, in response to resources, or other subjective elements beyond case-relevant factors (Schwartz, Steffensmeier, and Feldmeyer 2009). It is useful to recognize that: ‘The environmental criminal enforce- ment system may sweep in low-culpability violators . . . whose conduct is relatively blameless in light of such considerations as harm, dangerousness, and intent . . . the low-culpability violator is entirely at the mercy of a judge[‘s] . . . discretion’ (O’Hear 2004, 137). For exam- ple, efforts to enhance general deterrence by ‘widen- ing the net’ of enforcement, to capture an increased number of offenders (i.e. more at the wide mouth of the funnel), will inevitably ensnare a higher proportion of low-culpability offenders; this may be reflected in more lenient case outcomes on the whole (Schwartz, Steffensmeier, and Feldmeyer 2009).

A common conceptual framework for environmen- tal regulatory enforcement is premised on deterrence theory, which assumes rational actors are dissuaded from illegal actions when punishments are perceived to be sufficiently severe, certain, and swiftly meted out (Simpson et al. 2014). Criminal law around environ- mental pollution shapes opportunities for environ- mental crime objectively, by defining unallowable business practices, but also subjectively through con- trol and sanctioning efforts that reduce positive per- ceptions of certain illicit practices as viable and profitable relative to estimated criminal justice penal- ties, reputational consequences, and other costs versus benefits (Benson and Simpson 2009).

In this rational actor-driven model both corpora- tions as actors and their individual employees are less likely to pursue nefarious behavior when the likelihood of detection and sanctioning is higher. Individuals act- ing within a complicit corporate culture often commit environmental crimes for the benefit of the organiza- tion’s bottom line, not merely for the personal enrich- ment of the employee (Gunningham, Thornton, and

ENVIRONMENTAL SOCIOLOGY 309

Kagan 2005; Simpson and Piquero 2002). Holding indi- vidual workers, but not the organizations or the execu- tives which employ them, criminally culpable suggests a willingness to pursue environmental enforcement against ‘bad apples’ operating within organizations rather than treating environmental offenses as the result of systematic cultural or structural problems within a firm or industry.

On the other hand, criminal prosecution of organiza- tions requires additional resources on the part of EPA and the DOJ, but it also sends a strong signal about the potential costs to firms of willful or negligent noncom- pliance (costs that may go significantly beyond those of fines and restitution payments). Prosecuting organiza- tions, rather than their employees, open the door to the possible use of additional tools that make continued violations less likely. Criminal convictions may subject a firm to judicial supervision of future activities, harm a firm’s reputation (as well as the reputations of upper management), provide evidence that may be used for civil and/or shareholder lawsuits, may have important tax implications (criminal fines and restitution costs, unlike civil fines, are not typically tax-deductible), and/ or result in the cancellation of government contracts (Firestone 2003). Debates about whether punitive, reg- ulatory, or blended approaches are most effective in encouraging compliance by individuals and business organizations more generally are long-running yet unre- solved (Simpson 2013).

The inability of EPA to fight systematic nefarious behavior on the part of corporate actors has been a central tenet of the growing literature on green criminology (Stretesky, Long, and Lynch 2013; Simon 2000). Some argue that criminal prosecutions of environmental pollution offenses remain too rare, limiting the potential for deterrence (Lynch 2017; Lynch et al. 2016). We believe that too little is known about the extent to which criminal enforce- ment of US federal environmental laws has grown and the sorts of acts and actors that have been subject to criminal sanctioning by federal agents, including corporate versus individual actors, shifting priorities or understanding of environmental protec- tion, and case outcomes. Although in this study we offer a systematic look at the types of cases defined as criminal and prosecuted in the United States over its history of criminal enforcement aimed to curtail polluting activities, the extent to which the US exemplifies approaches to environmental regula- tion in other countries remains an open empirical question.

Across nation-states, the criminal enforcement of routine pollution activities seems to be rare (White and Heckenberg 2014, Chap. 12) and the study of how criminal enforcement interacts with other enforcement tools has been hampered by a lack of appropriate data (Billiet, Earnhart, and Rousseau 2018; Shover and Routhe

2005, 327; Tosun 2012). Environmental governance has undergone an extensive transition in recent decades, particularly in the EU, from a focus on command and control enforcement towards a variety of alternative approaches emphasizing cooperation between govern- ment regulators and industry (see Fernández, Font, and Koutalakis 2010; Héritier 2002; Taylor et al. 2012). EU member nations have generally proceeded further down this path than the US, Australia and Canada, which tend to be more inclined towards formal enforce- ment measures for pollution offenses (e.g. Abbot 2009). The ways in which criminal sanctioning of pollution offenses fit into a nation’s toolbox of enforcement actions are so variable as to defy simple comparison, however. Civil enforcement of pollution laws plays a central role in the US context, for example, but is not a tool for prosecutors in Germany who thus may rely on criminal sanctions to a much greater degree (Almer and Goeschl 2010). In China, and even more so in develop- ing nations, command and control approaches to envir- onmental degradation have typically suffered from lack of administrative capacity within environmental agen- cies to conduct sufficient enforcement (Kostka 2016; Zhan, Wing-Hung Lo, and Tang 2013).

To sum, there is no shortage of deliberate polluting behaviors that can be construed and punished as environmental crimes, but myriad factors prompt EPA investigators to exercise selectivity in cases to pursue. It is the intention of the current work to illuminate any shifts in the sorts of environmental violations and enti- ties that come to the attention of federal law enforce- ment and are selected for prosecution. As no systematic trend dataset existed to address such con- cerns, we constructed one using publicly available raw data.

Data

Our database derives primarily from a repository of case summaries for all federal criminal environmental prosecutions that result from concluded cases for- warded to the Department of Justice by the EPA for the years 1985 through 2010. The EPA becomes aware of crimes through a variety of means, including on-line reporting, when accidents occur, and whistle-blowing (EPA 2011; Price 1985). Most commonly, however, cases come to attention as a result of routine facility inspections and scrutiny of self-reports. The vast major- ity of pursued cases are dealt with administratively within the EPA, but a small number of cases initiated by EPA agents is diverted to criminal prosecution. The criminally indicted ought to represent the most serious environmental crimes or cases of gross misconduct.

Case summaries were downloaded in April 2015, allowing a 5-year lag to ensure near-complete release of yearly caseloads.3 Our databases include informa- tion on 1,690 court cases involving 2,288 individual

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and 861 organizational defendants. The case summa- ries include names of indicted individuals and/or orga- nizations, a brief description of the criminal events, and information on case resolution for all those involved. This information was subsequently hand-coded by the authors and a team of undergraduate research assis- tants, a time-consuming, multi-year process that adopted a ‘hierarchy of hassles’ approach that uses front-line coders to enter manifest information and expert coders to focus on more problematic (less reli- able) elements of the coding scheme (Baumgartner, Jones, and MacLeod 1998). The approach is designed to maximize resulting data quality and reliability.

The PIs examined a randomly selected subset of cases to develop a coding scheme while relying on a team of undergraduate research assistants (RAs) to conduct coding. After an initial training period, RAs entered data into Microsoft Access forms designed to increase the ease of coding while minimizing imputa- tion errors. All cases were double coded, assigned according to a revolving set of paired matches so that no two coders were consistently coding the same sets of cases. With one notable exception, discussed below, simple matching tests of reliability remained over 95% and Cohen’s Kappa above.8 for all data elements. At weekly project meetings, all coding discrepancies were reviewed, discussed and resolved with the assistance of the first and second authors (an environmental sociolo- gist and criminologist, respectively). After several weeks, the graduate RA (and third author) would indepen- dently resolve discrepancies.

We assembled data into two linked datasets, one on defendants and one organized according to case char- acteristics. At the level of individual defendants, we included both individuals and, when indicted, organiza- tions. For individual defendants, we used case summa- ries to code information on an individual’s position based on the level of authority within an organization: (1) Senior executive (business owner, CEO, president, director or managing director), (2) manager or adminis- trator, (3) employee (4) unrelated to business, or (5) unknown. A set of variables representing the actual indictment(s) against the defendant(s), and number of charges per indictment were coded based upon the United States Codes (USC) cited in the case summaries. Finally, information on sentencing outcomes for all defendants was also recorded into multiple variables: the number of months the defendant was sentenced to prison and/or probation (if any), the monetary amount that each defendant was charged to pay in fees, fines, restitution/remediation, and/or donations (if any), and/ or the number or hours the defendant was sentenced to community service (if any).

At the case level, we aggregated individual-level measures and coded a unique set of information from the textual descriptions of offending activity. The name

of the company within which polluting activity took place was recorded, even if that entity was not a defendant. This ‘organizational context’ was classified as being a (1) large corporation, (2) small to medium- sized business, or (3) government entity (including mili- tary) or non-profit organization. The determination of which organizations was large, for-profit entities were based upon whether it was listed at least once within three years prior to case-initiation in Dun & Bradstreet’s Million Dollar Directory, a directory published annually since 1959 of public and private businesses with an indicated worth of 1,000,000 USD or more.

At the top of our hierarchy of hassles was coding a categorical measure to indicate the primary environ- mental crime for which a case was prosecuted. During the coding process, it quickly became apparent that undergraduate RAs were not able to reliably code this measure. To overcome this problem RAs wrote brief, single sentence, descriptions summarizing the criminal activity which led to prosecution. Subsequently, the PIs independently coded each case according to crime type as defined in the codebook, then met to resolve all discrepancies, sometimes referring to the original case material to resolve unclear instances. Our mea- sure of the primary environmental offense committed (crime type) includes eleven discreet categories: (1) discharge of organic waste (including animal wastes, discharge of fat/grease, untreated runoff or sewage from waste water treatment plants); (2) discharge of heavy metals, chemicals or other manufacturing waste; (3) discharge from boats/vessels; (4) improper hazar- dous waste transport/disposal/storage; (5) improper asbestos removal; (6) selling unregistered pesticides or using them illegally; (7) illegal dredging or filling of waterways and wetlands; (8) violations of international trade and import laws; (9) falsifying tests performed by an environmental services firm; (10) falsification of records at a polluting company itself; and (11) a miscellaneous category including other actions like venting refrigerant or pollution resulting from operat- ing a methamphetamine laboratory. We now turn to our analysis of the changing mix of environmental crimes and entities that were the focus of EPA criminal prosecutions for crimes against the environment.

Results

The increased frequency of criminal prosecutions for pollution offenses is shown graphically in Figure 1 which displays the number of cases successfully referred for prosecution by the EPA since the inception of its crime-fighting unit through 2010.4 Despite some- times extreme year over year fluctuations, the overall trend is linear and upward, increasing, on average, by eight cases per year; by the 2000s, the EPA was typi- cally referring for prosecution more than 100 cases

ENVIRONMENTAL SOCIOLOGY 311

per year. This signals the growing importance of crim- inal prosecutions in federal enforcement of environ- mental laws.

We next examine shifts over time in the types of offenses forwarded by the EPA for criminal prosecu- tion. To make these over-time trends more apparent, we smooth yearly variations by employing 5-year roll- ing averages in all subsequent figures.

Many environmental criminal cases are complex, and criminal charges may span statutes (e.g. prosecu- tion may include charges for both the pollution of waterways and the illegal discharge of hazardous waste) (see also O’Hear 2004). Figure 2, Panel A, dis- plays information on the primary environmental viola- tion prosecuted for each case, where primary violation is determined by the number of counts assessed under legal statutes pertaining especially to the Clean Air and Clean Water Acts as well as the Resource Conservation and Recovery Act. Notably, sometimes EPA violations were not charged under environmental statutes at all, but instead, criminal conspiracy, fraud or other Title 18 statutes were used to bring criminal charges, which we label as white-collar offenses.

Violations of hazardous waste transport, disposal, and storage (RCRA laws) occupied a central role in criminal prosecutions early in the period. This is likely tied, at least in part, to the high participation of orga- nized crime in the waste industry early in the observa- tion period (Szasz 1986). The share of prosecutions that consisted primarily of RCRA (hazardous waste) charges declines from around 45% of prosecuted cases in the early 1990s to less than 15% by the end of the observa- tion period. The greatest area of increase is in the proportion of cases primarily charged under violations of the Clean Air Act, from 5% to 8% early in the obser- vation period to more than 15% by 2000 and one-fifth

of all cases in 2007–8. Violations of the Clean Water Act experienced modest increases, from nearly a third of prosecuted cases early in the observation period to more than 40% of cases in the 2000s. Emphasizing fraud and conspiracy in criminal enterprise more gen- erally, prosecutions under Title 18 federal criminal sta- tutes vacillated from 15% early on to 5% over the late 1990s, then rebounded to 20% of cases since the mid- 2000s. Finally, 5% to 10% of cases each year is primarily charged under other statutes outside major environ- mental legislation or federal criminal code.

Figure 2, Panel B, examines the more descriptive ‘offense conduct’ code we created through the use of qualitative information contained in the case summary files to assess the predominant behavior that was pro- secuted. For a given case, this may be different than the ‘primary violation’ measure, which simply adds counts of charges by statute. Aggregate trends are both reinforced and specified.

There is a large decrease in the proportion of cases focused on hazardous waste offenses over time, primar- ily due to the large increase in overall number of federal prosecutions and the pursuit of more diverse offending conduct. Although the absolute number of criminal hazardous waste cases grew from about 13 to 20 over the time period, federal attention to other offense types grew even more. Qualitative coding of cases highlights how a large portion of growth in prosecuting violations of the Clean Air Act, shown in the previous panel, is attributable to increased prosecutions for illegal/impro- per asbestos removal. Asbestos, a well-known carcino- gen, is a highly salient worker and public health issue. Convictions in our database for hiring workers for the removal and disposal of asbestos without proper train- ing or protection and false tests and inspections for asbestos grow consistently across the observation

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Figure 1. EPA Prosecutions of Environmental Crime Cases, 1983–2010.

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period, from less than 5% of cases in 1989 to 18% of prosecuted cases in 2008 (i.e. from few cases to 15–20 per year).

Increases in Clean Water Act violations look tied to cases focused on the release of organic pollutants, often into drinking water. The percentage grows from 5% in the late 1980s to between 11% and 18% of all cases in the 2000s. These cases primarily include the discharge of untreated human or animal waste into local waters (e.g. raw sewage, fish parts, cow or chicken manure) and actions taken by businesses and treatment facilities, to bypass effluent controls, dumping untreated wastewater

containing high pH levels, fertilizers, fat or other organic waste into waterways. Falsification of environmental compliance records (charged in 5–13% of cases) very often also involved behavior linked to testing water sam- ples and tracking water quality. For example, employees falsified log books or wastewater discharge monitoring reports, manipulated samples to pass drinking water tests, and diluted effluent samples or falsified bacteria counts in water samples to comply with permit regulations.

Our data thus far demonstrate a strong linear increase in the number of environmental prosecutions,

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Figure 2. Primary Environmental Violation Charged (Panel A) and Environmental Offense Conduct (Panel B), Percent of yearly total, 1985–2010 (5-yr moving averages).

ENVIRONMENTAL SOCIOLOGY 313

as well as an increased diversity in cases pursued. Cases pertaining to human health risks, such as worker exposure to asbestos and threats to community drink- ing water, contribute to the diversification from the early focus on hazardous waste pollution. Next, we offer greater contextual details about the organiza- tional and individual actors involved and the punish- ments that result.

Offender characteristics

One of the interesting things about environmental crimes is that they are very often committed by groups of individuals operating within a bureaucratic- organizational context. In this way, environmental crimes may be white collar crimes of the ‘suites,’ instead of the street (Sutherland 1945; see review in Simpson 2013). One implication of this perspective is that, because these incidents may occur systematically across organizations, they are often more consequen- tial than individual actions. There is also some evi- dence that larger and structurally more complex organizations may be more likely to pollute and com- mit environmental violations (e.g. Grant, Bergesen, and Jones 2002; Prechel and Zheng 2012) and even to participate in criminal environmental behavior (Shover and Routhe 2005, 11). Despite the importance of large industrial actors in producing pollutants, reg- ulatory procedures and processes often disproportio- nately affect smaller operators (Yeager 1987).

There are many reasons that large firms, and those operating within large firms, may be less likely to be prosecuted criminally for environmental offenses. Larger corporations with access to greater resource pools are more capable of adhering to environmental regulations and of opting in to voluntary self-policing programs that circumvent criminal prosecution for environmental violations under specified conditions (Stretesky 2006; Stretesky and Gabriel 2005). Staffing specialized sustainability officer positions that can focus on compliance and provide internal enforcement reduces the chances of criminal prosecution. Thus, there are likely very different ways in which established firms and owner-operated enterprises interact with authorities. As well, larger corporations often employ extensive legal units that assist the firm in avoiding prosecution in favor of less damaging outcomes. When violations are discovered, larger firms also allow for a diffusion of responsibility. When a small owner- operator firm violates criminal environmental stan- dards, there is relatively little doubt about the culpable parties involved compared to a sprawling multi- national conglomerate with layers of diffuse responsi- bility and authority.

Figure 3, Panel A shows that the percentage of prosecuted cases that occurred within different orga- nizational contexts. The percentage of cases occurring

within very large for-profit firms declined from 15–20% in the early 1990s to 10% in the late 1990s and beyond. Prosecutions of individuals acting outside organiza- tional contexts increase steadily and include cases like operators of methamphetamine labs (see Cohen, Sanyal, and Reed 2007 for more on this resource crime); landowners who in-fill wetlands or allowed the storage or disposal of hazardous waste on their property without permits; farmers, ranchers, or land- owners who use restricted pesticides, often killing migratory birds and other wildlife or, on rare occasion, humans; and a man who disposed of large amounts of paint in a residential dumpster. Throughout the obser- vation period, the bulk of prosecutions (57% overall) occurred within small to mid-sized for-profit firms.

Figure 3, Panel B examines the types of offenders subject to prosecution. Organizations in these figures include only that subset indicted as defendants. The increase in cases where only individuals are held crim- inally liable is substantial, from roughly 40% in the early 1990s to nearly 60% by the end of the observa- tion period. This is offset by a declining percentage of cases in which small to mid-sized and, especially, very large corporate entities are criminally prosecuted. In the early and mid-1990s, between 15 and 18% of prosecuted cases included very large for-profit organi- zations as criminally charged defendants. After the mid-1990s, very large for-profits were held criminally liable in only 7–9% of cases. The EPA’s focus has shifted toward holding individuals within firms, rather than firms themselves, criminally culpable.

Panel C of Figure 3 shows for criminal prosecutions that occurred within an organizational context, the highest-ranking official held criminally responsible: senior-level executive, manager, or employee. The express enforcement tactics and priorities of the EPA Criminal Investigations Division have, over time, increas- ingly favored holding individual actors criminally responsible for environmental violations within pollut- ing organizations. This approach is part of a broader effort of deterrence designed to prevent reoffending by the same company-officials and corporations and to send a strong signal to others about the potential costs of violating environmental law. As explained by former EPA Assistant Administrator for enforcement, James Strock, testifying in support of the Pollution Prosecution Act of 1990, ‘While both corporations and individuals pay penalties, only individuals can go to prison – a sanction that no one can pass along to the American consumer as just another cost of doing busi- ness.’ The EPA’s criminal Enforcement Program has con- tinued to message that it ‘emphasizes prosecution of individual defendants as high up the corporate hierarchy as the evidence permits. The reason for this focus on individual liability is simple: corporate managers will think twice about deliberately breaking the law if they understand that they face incarceration and personal

314 E. W. JOHNSON ET AL.

01020304050607080 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010

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ENVIRONMENTAL SOCIOLOGY 315

criminal fines for criminal conduct, rather than conse- quences that will be borne solely by the company’. For that reason, we would expect an increase over time in the prosecution of senior executives.

Instead, senior executives were held criminally liable in 64–76% of cases through the early 2000s, but after a precipitous decline starting in the mid-2000s, only 53% of prosecuted cases included a senior executive as a listed defendant by 2010. In contrast, there is a large increase over time in the percentage of cases where regular employees are the highest-ranking offi- cial prosecuted, increasing from 9% of cases in the late 1980s to 19% of cases at the end of the observation period in 2010.

Our data cannot assess whether the EPA has pur- posely targeted lower-level offenses that tend to be less resource-intensive to investigate and prosecute versus whether large corporations actually are com- mitting fewer offenses, better able to navigate com- plex environmental regulations, or just better able to avoid serious penalties for such violations. However, the Criminal Investigation Division of the Criminal Enforcement Program at EPA grew from 45 agents in the late 1980s to 200 in 1997, after which numbers were relatively stable across the observa- tion period, 9–11). However, some of the most rapid growth in number of cases being prosecuted on a yearly basis occurs after 1997. The declining share of cases involving large firms and high-level executives might result from other sorts of con- strained resources or reflect the need to establish socio-legitimacy by producing ever higher numbers of convictions as a measure of success. Given the sometimes large time-lag between the initiation of an investigation and conclusion of criminal proceed- ings (and thus the time when a case enters our data), the decline in criminal prosecutions of senior-level officials occurs under the Presidency of George W. Bush, a noted opponent of environmental enfor- cement efforts at the EPA. It may be that, even if the incidence of criminal prosecutions does not vary significantly across Presidential administrations (see Ozymy and Jarrell 2015), political administrations influence the content of criminal prosecutions in other ways.

Sanctions

Figure 4, panel A shows the percent of cases where at least one defendant was sentenced to (a) incarcera- tion, (b) probation, (c) a fine, (d) restitution/remedia- tion, (e) or community service; these represent the most common sentences invoked. Categories are not mutually exclusive; all but 39 cases have at least one outcome recorded. The penalties imposed on con- victed defendants, especially in terms of prison time, are widely believed to have increased following

implementation of revised federal sentencing guide- lines in 1987 (Starr and Kelly 1990) and 1991 (Shover and Routhe 2005, 18). We find the prevalence of penal- ties, including incarceration, probation, and/or finan- cial restitution initially rose over the late 1990s to early 2000s, but those trends have flattened or started to reverse, signaling a less punitive stance and/or a declining focus on serious cases that would merit incarceration and financial penalty.5 There are marked declines in the prevalence of community service. Criminal fines were a common outcome for cases across the time period.

The overall pattern of growth and then decline in use of incarceration and the steady use of fines held across all environmental statutes (not shown).6 Panel B shows case outcomes (incarceration, fines) by envir- onmental statute. Less than half of white-collar, Clean Air, and hazardous waste (RCRA) cases resulted in a sentence of incarceration, but this was significantly more than the share of Clean Water Act cases in which anyone was incarcerated. However, CWA cases were highly likely to receive a monetary fine, more so than hazardous waste, white collar, or CAA cases.

Finally, for cases with sentences of fines and/or incarceration, we probed for any changes in severity of fine amount or length of sentence to provide greater context and to assess declining seriousness of cases and/or punitiveness of sanctions. Cumulative fines and sentence length for environmental cases are incredibly varied, reflecting seriousness (e.g. cer- tainty/severity of threat of harm), culpability, mitigat- ing circumstances, judicial application of or departure from sentencing guidelines based on environmental statute charged, and other factors relevant to adjudi- cation. We present median values to avoid undue influence of outliers common in federal environmental cases (see also Lynch 2017). The sentencing data pro- vide evidence of net-widening enforcement practices, whereby the overall increase in number of environ- mental cases comes largely from an influx of less ser- ious offenses indicated by an increased share of cases with more lenient sentences and lesser fines.

The typical incarceration sentence became consid- erably shorter over time – as seen in panel C, the median of nearly 3 years per case was reduced to little more than 1 year of incarceration, on average, by the end of the time period. Declining sentence length was due to increases in short sentences of 1 year or less (comprising 21% of incarceration-cases in 1985–1994 versus 35–39% since 1994, results now shown). By contrast, longer duration prison sentences, greater than 5 years, became decreasingly common, compris- ing one-fifth of case-outcomes in 1985–1994, but just over one-tenth of sentences thereafter.7

Similarly, fine amounts decreased markedly over the 25-year period to about one-third of what they once were. Adjusted for inflation and represented in 2010

316 E. W. JOHNSON ET AL.

0 %

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ENVIRONMENTAL SOCIOLOGY 317

dollars, the typical (median) fine was 65,000 USD per case between 1985 and 1995, 32,000 USD in the late- 1990s, and even lower in the 2000s, under 25,000 USD (not shown). Categorizing case fine totals in the thou- sands, tens of thousands, hundreds of thousands, or millions of dollars, the share of cases with assessed fines totaling less than 10,000 USD increased from about one-fifth to 40% of all cases (Figure 4, panel D). Meanwhile, the share of cases with much larger fines, in the hundreds of thousands of dollars, decreased from one-third to less than one-fifth. The ‘biggest’ (outlier) cases, with fines in the millions, comprised a steady share of little more than 10%, although doubled in absolute number over time (from ~3 to ~6 cases/year).

Discussion

In this paper, we discussed how the environmental crime cases that constitute our dataset are the result of a legalistic and subjective funneling process similar to that which occurs in the prosecution of street crimes or other types of white-collar offenses. We are limited in analyzing only the narrow end of this funnel. While we are able to draw on previous literatures describing types of activities that are more likely to result in cases proceeding to criminal trial (i.e. serious harm, operat- ing outside the regulatory system, intentionally lying to regulators, repetitive and intentional violations), we are unable (nor was it our intent) to systematically examine these characteristics of criminal behavior and the (changing) characteristics of both offenders and authorities that are associated with advancement through different stages of the funneling process, from inspection/investigation to prosecution and judgment (e.g. Kluin 2014).

In particular, we are unable to assess the relative seriousness of offenses that are committed, a crucial element in explaining what gets prosecuted criminally and how severely offenders are sentenced. Many prose- cutions result from violations that have high potential for harm but do not actually result in such (e.g. barrels of waste that are stored and/or transported illegally but do not leak). Diversity in our data, and often a lack of detail on actual or threatened harm that may have occurred as a result of defendant actions, make such an assessment beyond our capability. Another limitation is our inability to adjudicate the relative culpability of defendants when multiple individuals and/or firms are convicted. This is a common dilemma for those interested in under- standing punishment patterns for environmental crimes (see also Lynch 2017; Kremer 2016).

Our research raises several questions deserving further study. Prominently, how do we explain the changing mix of crime types, and characteristics of defendants, that are prosecuted? For example, the increased frequency of prosecutions for violations

under the Clean Air Act tied to improper asbestos removal and disposal is noteworthy. While we are unable to examine the cause of this prosecutorial trend, it suggests some interesting research questions. Does the prosecution of asbestos-related offenses reflect an increasing willingness on the part of the US EPA to apply environmental law in pursuit of worker safety generally? Is it driven by EPA mandates to focus on environmental inequalities or the efforts of envir- onmental justice advocates pressuring EPA to attend to health threats to workers and communities of color (see Harrison 2019 for more on the mixed success of such efforts)?8 A large portion of the asbestos-related cases in our data represents cases of insufficient pro- tection and/or training for asbestos removal tasks being carried out by unskilled laborers and/or undo- cumented immigrants.

In terms of defendant characteristics, a better under- standing of the reasons for the downward trend in holding large corporate entities criminally responsible seems important. The shift toward self-policing in the mid-1990s, where corporations agreed to self-audit for environmental compliance and to promptly report and correct any discovered violations in exchange for reduced penalties and avoidance of criminal (and civil) prosecution, seems relevant. Larger and publicly owned companies are more likely to participate in such volun- tary environmental audit programs, which also has the effect of reducing inspections in those facilities and, perhaps, gaining favor with regulators (Stretesky 2006). Thus, it is plausible that because of the audit program, larger, for-profit firms were more likely to be diverted from criminal to other administrative or civil enforce- ment routes, either due to greater compliance or enhanced ability to circumvent prosecution. However, whereas the decline in prosecution of large, for-profit firms coincides with adoption of self-regulation in the mid-1990s, the decline over the 2000s in prosecutions holding high-level executives directly accountable does not. Similarly, the increased leniency with which envir- onmental cases were being disposed as of the early 2000s also recommends entertaining alternate explana- tions. The effect of these trends for deterrence (more general deterrence, less severe sanctions) is also worth exploring. Relatedly, future research ought to continue to explore both why the EPA has increasingly targeted individual employees for criminal prosecution rather than the corporations in which they are embedded as well as the utility of such an approach for deterring environmental harm.

Conclusion

Criminal prosecutions are an important, but understu- died, component of US federal pollution enforcement efforts. This paper systematically examines changing trends in criminal environmental prosecutions over

318 E. W. JOHNSON ET AL.

time. These cases are, we argue, reflective of what the EPA defines as the most serious acts deserving of punishment. Our unique database of all federal envir- onmental offenses and defendants over a 25-year per- iod includes significant incidents, such as the Exxon Valdez oil spill (1989), Rockwell International’s toxic waste dumping into drinking water and other environ- mental violations while managing the government- owned nuclear weapons plant Rocky Flats (1990s), and the BP Texas City refinery explosion that killed 15 workers (2005). Our data also include many more mun- dane pollution cases.

We show that, in the United States, environmental crime prosecutions increase in frequency over time, that there is continual growth in the diversity of activities which are prosecuted under environmental criminal statutes, and that minor violators are increasingly caught in the federal enforcement net. Large firms and senior executives represent a declining share of criminal defendants whereas low-level employees, and indivi- duals operating outside an organizational context, are increasingly charged as defendants. These trends sug- gest net-widening federal enforcement practices that may be capturing lower-culpability offenders and offenses. Sanctioning trends provide further evidence of net-widening enforcement practices (Schwartz, Steffensmeier, and Feldmeyer 2009). Although the use of fines remains prevalent, incarceration became less common as a case outcome after the early 2000s and sanctions became more lenient over time (fine severity, incarceration length).

Notes

1. Most wildlife and natural resource law violations are generated from within the federal Department of Interior.

2. A 2009 New York Times investigation, for instance, identified more than 506,000 violations of the Clean Water Act over the prior 5 years, involving more than 23,000 companies and other facilities. Roughly 60% of polluters was deemed in ‘significant non- compliance’ and thus represented serious and/or repeated violations, but less than 3% of these pol- luters was subject to fines or other punishment (Duhigg 2009).

3. When piloting data collection we noted that recent years were subject to frequent updates and changes, including the addition of new cases.

4. We drop years 1983 and 1984 in subsequent analyses due to the exceptionally low number of cases that produced unstable estimates for the first several time intervals.

5. Notably though, from the early to late 1990s, sen- tences of incarceration doubled for Clean Air viola- tions (e.g. asbestos-related cases), from one-quarter to one-half of CAA cases (not shown).

6. An exception, the Clean Air Act saw reductions over time in the use of fines.

7. Incarceration length did not vary much by offense- statute. Exceptions, cases charged primarily under

the Clean Water Act had a disproportionate share of short sentences, a year or less in duration, whereas hazardous waste (RCRA) and white-collar cases were overrepresented among the longest incarceration sen- tences (about one-fifth of RCRA & WCC sentences exceeded 5 years in length, compared to under 10% for CAA and CWA). For fines, exceptions are somewhat converse – the CWA had the largest share of cases with high fines in the millions, whereas white collar cases had a disproportionate share with low fine amounts.

8. In 1994, Executive Order 12898 directed federal agen- cies to attend to issues of environmental justice. The White House Council on Environmental Quality fol- lowed up in 1997 with six guiding principles of envir- onmental justice. Today, the EPAs Office of Environmental Justice (OEJ) works to integrate envir- onmental justice across all EPA efforts. In short, envir- onmental justice issues have become increasingly salient across EPA operations since the mid-1990s.

Acknowlegdements

Thank you to Petr Gaburak, Christina Hubbard, Lauren LaBrosse, Lilas Mikinawe, Ashley Moncrieff, Megan Myers, Melanie Page, Katrina Reid, and Julia Stong who helped assemble data used herein.

Disclosure statement

No potential conflict of interest was reported by the authors.

Funding

Funding for this research comes from a Washington State University College of Liberal Arts Meyer Development Grant as well as the generosity of Gregory Hooks who held the Boeing Distinguished Professorship in Environmental Sociology at Washington State University from 2008–2011, and whose seed funding initiated this project.

Notes on contributors

Erik W. Johnson is an associate professor of sociology at the Washington State University. His research focuses on the emergence, development and institutional outcomes of environmental movements. Collaborative research projects examine change over time in public environmental concern and the developing field of environmental crime. Johnson’s research has appeared in journals such as Social Forces, Environmental Sociology, Mobilization, Environment and Behavior, Nonprofit and Voluntary Sector Quarterly, and Social Problems.

Jennifer Schwartz is a Professor of Sociology at Washington State University. Her research, which aims to identify and explain patterns and trends in crime and punishment, is published in journals like American Sociological Review, Criminology, and Addictive Behaviors and supported by National Institutes of Health, National Institute of Justice, and others. In her work, Schwartz develops unique datasets to study social factors underlying violence, substance abuse, and white-collar/environmental crime.

Alana R. Inlow is a PhD candidate at Washington State University. Their research and teaching interests include

ENVIRONMENTAL SOCIOLOGY 319

crime and inequality, the built environment, critical crimin- ology, and spatialmethods.

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