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Michael Kouraba headshot

Giving a Pass to Corporate Polluters


Has there ever been a better time to be a corporation?  I doubt it.  Corporations might disagree, and we’re all familiar with corporate lamentations regarding the increasingly challenging web of federal regulations (Dodd-Frank; the FCPA) they supposedly struggle to navigate.  Yet, it’s hard to dispute that these are good times for big business, and “Exhibit A” could easily be the utter dearth of criminal prosecutions for corporations that are guilty of pollution.

Funding Woes.  According to a recent study published by the Crime Report (TCR), criminal prosecutions of corporate polluters are becoming less and less common by the day.  One explanation for this phenomenon is the dwindling funding allotted to the government entity responsible for the protecting the environment, the Environmental Protection Agency (EPA).

In case you missed it, Congress has made a recent habit of slashing EPA funding.  (Yes, this is the same do nothing Congress that is currently contemplating spending American tax dollars on a lawsuit against the President.)  Unsurprisingly, these cuts have come primarily at the hands of Congressional Republicans, whose most recent transgression has been the approval of a 9 percent decrease in EPA funding, but President Obama has done some damage as well (the President’s proposed 2015 budgetlowered EPA funding by some $300 million).  And this is not just a 2014 trend.  As Congressional Republicans boasted when the federal government nearly imploded (again) in January, they have successfully cut the EPA's funding by 20 percent since 2010.

One result of these money troubles is a serious lack of manpower.  For instance, the Department of Justice’s Environmental Crimes Section is equipped with just 38 prosecutors, and the EPA’s Environmental Crimes Section has just 200 agents.  These are the folks who are given primary responsibility for monitoring environmental violations across the country.  Yet, with such a pitifully understaffed roster, the federal government’s capacity to pursue America’s worst environmental offenders is seriously hampered.

The Civil Alternative.  Despite its dwindling resources, the EPA has significant authority to prosecute environmental crimes, thanks to the Clean AirClean Water, and Resource Conservation and Recovery Acts.  Yet, the EPA – much like its corollary in the financial sphere, the Securities and Exchange Commission – also has discretion to pursue civil, rather than criminal remedies.  How does the EPA choose to wield this discretionary power?  By significantly favoring civil cases to criminal ones, of course.   TCR nicely sums up the disparity between civil and criminal prosecutions this way:  “More than 64,000 facilities are currently listed in agency databases as being in violation of federal environmental laws, but in most years, fewer than one-half of one percent of violations trigger criminal investigations, according to EPA records” (my emphasis).

The reason behind the government’s preference or civil cases in the environmental context mirrors the reasoning behind the Department of Justice and SEC’s failure to bring criminal charges in cases stemming from the financial crisis – civil cases are cheaper to bring and easier to make.

Priorities and Politics.  Perhaps the most troubling element in all of this is that, despite the overwhelming evidence to the contrary, Congressional Republicans still think the EPA is overstepping.  According to Representative Ken Calvert (R-CA), “This year, there is a great deal of concern over the number of regulatory actions being pursued by the EPA in the absence of legislation and without clear congressional direction.”  In other words, there is anything but bipartisan agreement regarding the relative success and/or mandate of the EPA.

Compare the government’s relative reticence in the environmental context with its posture toward drug offenses.  One struggles to comprehend these statistics:

  •      As of 2012, the government had spent $20 billion to $25 billion a year on counter-narcotics efforts over the last decade.

  •      The more than $15 billion the federal government spent on the “drug war” in 2010 amounted to $500 per second.

  •      As of this second, state and federal spending on the drug war totaled $22,561,466,356 in 2014.

  •      Someone is arrested every 19 seconds for a drug-related offense.

  •      As of 2012, nearly one in five inmates in state prisons and half of those in federal prisons are doing time for drug offenses.

How can one explain this disparity?  And, more importantly, where do we go from here?  As I wrote last month, there are some encouraging developments in the realm of potential liability for corporate polluters.  Yet, unless our government decides to prioritize the prosecution of environmental crimes (over low-level and comparatively harmless drug offenses, for example), it seems unlikely that we will see any real uptick in criminal charges for environmental violations.  As TCR points out, the total number of investigations by the EPA’s Criminal Enforcement Division has steadily decreased since 2001, and it is not like we’re anywhere near political consensus on any environmental issue.  So, kudos to TCR and the Fund for Investigative Journalism – TCR’s partner in its recent efforts in this area – but we still have a lot of work to do.

Image credit: Flickr/Curran Kelleher

Michael Kourabas headshotMichael Kourabas

Trained as a lawyer, I now focus on legal business development, corporate social responsibility (CSR), and business & human rights. My past experience includes work on complex commercial litigation, international human rights advocacy, education policy, pro bono legal representation, and analysis of CSR challenges in both the private and public sectors.

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