Environmental Criminal Prosecution: Essential Tool Or Government Overreaching?: Environmental Crime Comes of Age: The Evolution of Criminal Enforcement in the Environmental Regulatory Scheme

I. Introduction The Rivers and Harbors Act of 1899 often is considered the first environmental criminal statute because it contains strict liability provisions that make it a misdemeanor to discharge refuse into navigable waters of the United States without a permit. 1 When Congress passed the Rivers and Harbors Act, however, it was far more concerned with preventing interference with interstate commerce than environmental protection. For practical purposes, the environmental crimes program in the United States dates to the development of the modern environmental regulatory system during the 1970s, and amendments to the environmental laws during the 1980s, which upgraded criminal violations of the environmental laws from misdemeanors to felonies. 2 The enactment and amendments 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 brought more than the birth of the environmental crimes program in the United States. 3 For the first time, storage or disposal of hazardous waste without a permit or the discharge of pollutants into waters of the United States without a permit was a felony under federal law. 4 Waste management practices that had been legal for decades, and which were standard operating procedures for businesses across America, suddenly could give rise to felony prosecution if committed "knowingly" by corporations and their employees. As a result, the 1980s brought a series of "firsts" for environmental criminal enforcement: ...