2.1.3 Criminalization of Environmental Violations
With the enactment of the federal Clean Air Act, the Clean Water Act, the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA), and the Resource
Conservation and Recovery Act (RCRA) during the 1970s and 1980s, the storage or disposal
of hazardous waste without a permit or the discharge of pollutants into waters of the United
States without a permit, was considered a felony under the federal law for the first time.26
Forthwith, both, prosecutor and offender were exposed to a situation of criminalizing
conducts that had been legal before. Thereupon, companies were restricted in their way of
doing business, such as waste management practices and safety instructions.
Environmental statutes generally include both civil and criminal enforcement. Prior to 1981,
the U.S. government’s approach was to almost exclusively seek civil judicial enforcement,
based on two reasons. First, while in a criminal trial the prosecutor has to prove the
defendant’s guilt “beyond a reasonable doubt”27, the standard of proof in a civil context is
lowered to “preponderance of the evidence”
28 standard. Since negligence is easier to prove
the chance of conviction is higher making it simpler to interpret the meaning of new
regulations, especially during the first few years. Second, considering the seriousness of
criminal punishment and, therefore potential fairness issues, enforcers wanted to give the
community some time to adapt to the new crimes.
2.1.3 Criminalization of Environmental ViolationsWith the enactment of the federal Clean Air Act, the Clean Water Act, the ComprehensiveEnvironmental Response, Compensation, and Liability Act (CERCLA), and the ResourceConservation and Recovery Act (RCRA) during the 1970s and 1980s, the storage or disposalof hazardous waste without a permit or the discharge of pollutants into waters of the UnitedStates without a permit, was considered a felony under the federal law for the first time.26Forthwith, both, prosecutor and offender were exposed to a situation of criminalizingconducts that had been legal before. Thereupon, companies were restricted in their way ofdoing business, such as waste management practices and safety instructions.Environmental statutes generally include both civil and criminal enforcement. Prior to 1981,the U.S. government’s approach was to almost exclusively seek civil judicial enforcement,based on two reasons. First, while in a criminal trial the prosecutor has to prove thedefendant’s guilt “beyond a reasonable doubt”27, the standard of proof in a civil context islowered to “preponderance of the evidence”28 standard. Since negligence is easier to provethe chance of conviction is higher making it simpler to interpret the meaning of newregulations, especially during the first few years. Second, considering the seriousness ofcriminal punishment and, therefore potential fairness issues, enforcers wanted to give thecommunity some time to adapt to the new crimes.
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