Morris Manning & Martin, LLP

Criminal Liability for Environmental Crimes

Criminal enforcement of the environmental laws has dramatically increased since the passage of the Superfund law in 1980. Corporate officers, managers and employees are often prime targets for prosecutors seeking quick results in environmental prosecutions. The reality is that corporate officials are going to jail under harsh mandatory sentencing guidelines.

The number of criminal indictments and convictions for environmental crimes increased sharply in the late 1980s and continue to rise. The Department of Justice and the Environmental Protection Agency (EPA) have found they can obtain results more rapidly by using criminal sanctions for environmental violations than by becoming bogged down in the morass of a civil lawsuit. Furthermore, sending corporate officials to jail is a penalty which prosecutors view as the ultimate deterrent.

Unlike most criminal offenses, environmental crimes often do not require specific knowledge on the part of the person ultimately held responsible for the crime. In offenses where knowledge is required, some courts have imputed the knowledge of the persons committing the wrongful act to their bosses or supervisors.

The corporate official's liability results from the "responsible corporate official" doctrine which holds that if there is a "responsible relationship" between the corporate official and the illegal activity, then such official can be liable without being personally involved in or knowledgeable about the illegal activity. Guilt is affixed and jail time can be imposed without either personal involvement or knowledge.

One reason more jail sentences are being served by corporate officials is the new sentencing guidelines recently issued by the U.S. Sentencing Commission. These guidelines mandate fixed sentences based on the nature of the illegal act instead of the status of the offender. Therefore, factors such as age, family, community service and education are not considered in determining sentences. On average, under these sentencing guidelines, a first time violator stands to serve a projected sentence of 12 months to 16 months in jail without parole.

Another reason conviction of corporate officials is on the rise is the increase of prosecutorial budgets and staffing. During the 1980s, there was a dramatic increase in the number of special agents and investigators assigned to pursue environmental crimes. There is current legislation pending which would further increase the number of investigators.

What can corporate officials do to avoid indictment? The most important step is to become informed. Corporate officials should perform routine, periodic legal and engineering audits of their company's operations to ensure full environmental compliance. The audits can help reveal problematic activities and enable remedial action to be taken.

In addition, corporations should establish written protocols and policies for ensuring environmental compliance. They should assign responsibility to designated qualified individuals. This protocol should contain rules for storing, using, cataloging and handling of hazardous materials and for discharging reporting requirements. It should address how and when to report problems and possible noncompliance, identify the structure for the management of environmental and safety items, describe the training activities required for all employees and identify resources for answering questions. To implement such policy, an organizational structure must be in place which allows for proper communication and establishes clear environmental responsibility.

For corporate officials, audits, policies and other preventive measures cannot be viewed as a panacea. Corporate officials are being convicted for environmental violations by subordinates if they have the authority to control such activity. Keeping one's own hands clean or one's own head in the sand is not enough to prevent being prosecuted. Nevertheless, such procedures can lessen the chance of indictment and conviction.

Over the last decade, the public has become acutely aware of society's growing environmental problems and the need to do something about.them. The increased efforts of the Department of Justice and the EPA to indict and prosecute environmental criminals is a manifestation of this awareness. The reality is that midlevel and senior corporate officials are being held responsible for criminal acts which they do not personally commit, but which the courts reason they have the authority and duty to prevent. A failure to actively address and aggressively discharge this newly imposed responsibility can result not only in bad times, but hard time.