Administration Set to Crack Down on ‘Attempted Environmental Crimes’

Published October 1, 1997

In a bid to broaden the scope of the Federal government’s approach to environmental enforcement, President Clinton and some Members of Congress want to outlaw “attempted environmental crimes.” The far-reaching implications of the administration’s new policy are explored in “‘Attempted’ Environmental Crimes: A Flawed Concept,” a new Alexis de Tocqueville Institution study written by C. Boyden Gray, Roger J. Marzulla, and me.

While attempted larceny and murder can and should be criminally prosecuted, the “attempted” crime model used in such cases simply does not fit this country’s complex and strict environmental liability scheme–described by EPA Administrator Carol Browner as “a complex and unwieldy system of laws and regulations.”

Nevertheless, EPA officials support the President’s proposal, saying it would allow stings against “midnight dumpers,” making it possible to apprehend and punish them before they do any environmental damage by catching them in the act.

In most crimes against persons or property, the criminal’s intent has significant bearing on the crime charged. Thus, an inadvertent killing of another might be manslaughter, negligence, or an unfortunate mistake; an intentional killing is murder. Under the nation’s environmental laws, by contrast, inadvertent discharge of a pollutant gives rise to criminal liability regardless of the state of mind or intent of the discharger.

The president’s plan to outlaw “attempted” environmental crimes would create murky legal concepts and enforcement problems that will be difficult, if not impossible, to resolve. The “attempt” provision does not appear in any other Federal statute, and as proposed it is far more expansive than traditional attempt provisions (which focus on culpability). It would permit the criminal prosecution of a new class of individuals: those who in good faith plan to take actions they are unaware would constitute a violation of the regulations that fill thousands of pages in the Federal Register. The proposed law would thus force well-meaning individuals who have done no environmental damage and have violated no other law to rely solely on prosecutorial discretion for their freedom.

PF: The new Alexis de Tocqueville Institution study, “‘Attempted’ Environmental Crimes: A Flawed Concept,” is available through PolicyFax. Call 847/202-4888 and request document #????????