LEGISLATION: Individuals Targeted in Environmental Lawsuits

Federal prosecutors pursue far more individuals than corporations for criminal violations of the nation's environmental laws, according to a Department of Justice (DOJ) report released in late November.

Nearly half of the 952 individuals, businesses and other organizations that were criminally investigated in 1997, the most recent year for this governmental data, were linked to alleged violations of water, air and waste disposal laws. These inquiries resulted in criminal charges against 446 individual defen-dants.

Eighty-five percent of the defendants in environmental law cases were convicted, and most defendants (more than 90 percent) pleaded guilty. About one out of four individuals convicted were sent to jail, and those imprisoned faced an average term of 21 months. Federal judges fined almost two-thirds of convicted environmental polluters, assessing these defendants, on average, nearly $125,000.

Because most federal pollution control laws provide for civil penalties, federal prosecutors can dispose of an environmental matter through civil litigation. Eleven percent of the criminal investigations were downgraded to civil actions in 1999, the DOJ report noted. Almost 200 civil actions were concluded in the federal courts, and more than half of these cases resulted in consent judgments. More than 25 percent of the civil cases were settled out of court.

"You can get higher penalties and a settlement more easily through civil litigation, particularly with big corporations," says John Scalia, a DOJ statistician. As a result of civil litigation, the federal government secured judgments averaging $2.5 million in the 74 cases with a reported monetary award or settlement, according to the report.

The U.S. Attorneys around the country appeared to give the benefit of the doubt more often to businesses than to individuals. Some 70 percent of the more than 200 federal investigations of businesses for air, water and waste infractions never went to court. Meanwhile, only 55 percent of 288 individual suspects escaped prosecution.

Prosecuting environmental crimes against businesses is often problematic and time consuming. As a result, federal prosecutors are devoting more time and resources to prominent companies in noteworthy cases.

"We want to focus on the cases with the maximum industry-wide impact," says Robert Bundy, who serves as U.S. Attorney for Alaska and heads an environmental subcommittee of the Attorney General's Advisory Committee. "These are bigger cases with a bigger impact in terms of environmental protection and deterrence. We're taking on bigger companies, and they fight back with a large number of lawyers."

Many federal investigations focus on small businesses that have been dissolved or have filed for bankruptcy. These targets are essentially judgment-proof, and so prosecutors take aim at the owners and managers. These individuals, whose conduct and activities are in the spotlight, tend to cooperate with enforcement officials.

Besides criminal and civil enforcement actions by federal prosecutors, private parties may bring environmental suits in federal district courts against violators of the Clean Air Act, the Clean Water Act and the Resource Conservation and Recovery Act (RCRA). Under RCRA, suits may be brought against owners and operators of treatment, storage or disposal facilities. Private environmental suits, or "citizens suits," increased from 576 cases in 1994 to 642 cases in 1997. Most of these suits (86 percent) involved hazardous substances or other environmental pollutants.

About one-third of private environmental suits resolved in 1997 were settled out of court. Fifteen percent were disposed of by a consent decree between the parties. Federal judges dismissed nearly 30 percent of the cases before trial without a finding against the defendant. A minuscule two percent of citizens suits actually went to trial.