SUPPOSE I was walking down the street and decided, for my own reasons, to pull out my handy spray can of garden poison and spray someone in the face. The cops would take me away, charged with assault.
Okay, now let's suppose I am flying an airplane. The airplane is equipped with spray tanks, filled with another garden poison, and I am spraying cotton fields or forests or some such in order to eradicate weeds. I make a few loose turns in my little crop duster and the poison falls on hundreds of houses. Actually, I spray an entire town of 660 people. Lots of dead weeds.
Now my little parable of law-and-order turns ugly. Six months later, the women who live in this town begin to deliver dead and deformed babies. Cleft palates and miscarriages. In all, 30 women in this small town become pregnant over a two-year period and only 11 of them have normal babies....
Something terrible happened to that little town, but my question is this: Did I commit a crime when I assaulted those helpless women with my aerial poison?
Apparently not, by today's legal mores. As you may have guessed, I borrowed these facts from a real episode in northern California, in which a small town was afflicted with an extraordinary number of miscarriages and deformities following an agricultural spraying of 2,4,5-T. People were outraged, but nobody went to jail. This is not unusual, of course. Environmental assault, usually in less dramatic and more complex circumstances, is an enduring element in modern life, but it is not usually regarded in its most elemental form - as a common-law crime.
That element is what's missing from Washington's continuing debate over government regulation, the ancient question of crime and punishment. The regulatory debate is dominated by economists whose narrow vision cannot take in what is so obvious to the victims. The economists count dollars in the marketplace, the benefits and costs, and presume that environmental regulation is mainly a function of "trade-offs" between competing desirable goals - clean air versus steel production, a drinkable river versus economic growth, good fishing versus jobs. $&(WORD ILLEGIBLE $&)See GRAIN, Page B4> $&(WORD ILLEGIBLE $&)GRAIN, From Page B1>
This line of reasoning seems opaque, even immoral, if one considers the criminal element implicit in environmental abuses. If I mug someone on the streets of Washington, the government does not pause to do a cost-benefit study. It prosecutes me.
Criminal law, of course, is perhaps the oldest, certainly the most honored form of government regulation over private behavior. Yet it seems harsh to many people, I know, to suggest that the best remedy for our confusion over environmental controls is jail sentences for plant managers when their factories spill illicit quantities of poison into our air or water or food. Juries have a hard time with that concept. So do many prosecutors. But this is an instance where the law must catch up with our new social sensibilities, where the cops must begin chasing a new variety of criminals.
Corporations are composed of people, after all, and the great challenge of our time is to discover mechanisms, reforms, new ideas which will give those people more control and more responsibility over corporate behavior. Sending a few executives to jail will work wonders in this direction and Congress should enact precise definitions of who in a company is responsible if the workmen dump poison illegally.
The idea of environmental crime does not require any new tenets of legal theory. It rests upon the old, old principle that if I do something with my life and property which damages your life and property, then you can use the courts to obtain redress. Sue me for damages. If my actions involve certain elements of wilfullness or negligence, reckless disregard for the consequences, then my actions may also be criminal. Prosecute me. Prove it in court and punish me.
I am one of those bleeding hearts who do not think that prisons are effective instruments of social policy, especially when those long sentences are handed out for routine offenders. But prison is the standard punishment our society prescribes, so our system of justice gives us daily examples of twisted values. A judge in Maryland recently sent a welfare mother to prison for five years for cheating the government out of $1,300. The corporate executives who destroyed an entire river in Virginia, costing $50 million to clean, threatening thousands of innocent people with bodily harm, were acquitted. Any ordinary citizen can see the injustice of that, even if lawyers cannot.
There ought to be a law. Actually, there already is. All of the landmark environmental laws enacted in the Seventies authorize criminal prosecutions, though the "crimes" are ranked only as misdemeanors. An infant movement to hold corporate managers personally responsible for environmental crimes is under way at the Justice Department. A Philadelphia hauler named Manfred Derewal went to jail for dumping refuse in a stream. The Frezzo brothers, who grow mushrooms in Chester County, Pa., got 30-day sentences for discharging polluted drainage without a permit.
These are the first criminal convictions under the Clean Water Act. They are small potatoes, to be sure, but the law must start with easy cases before it can win the tough ones. Last week in Buffalo, three Olin employes went on trial, accused of falsifying reports on how much mercury Olin was dumping into the Niagara River.
Maybe Congress can also revise the statute to raise these crimes to the level of felonies. Destroying a river is surely as serious as cheating on welfare checks. Don't worry about the businessmen - they will have the best defense lawyers that money can buy, and the stars of criminal courtrooms will become the new leaders of corporate law.
Angus MacBeth, chief of Justice's pollution-control section, says these are very difficult cases to investigate and prove, involving tangled stories like security fraud cases on Wall Street. But MacBeth predicts more cases as EPA develops its investigative capability. "You have much more impact through criminal action," MacBeth said. "It has more deterrent force."
Criminal prosecution, strangely enough, could work powerful reforms on the confusion of regulatory laws and straighten out many of the complicated "trade offs" that politicians and economists now try to resolve by horse-trading. Deterrence tends to decentralize the enforcement process - away from government bureaus and toward each corporate organization. Criminal liability makes each plant manager more responsible for his company's behavior while standard regulatory machinery tends to take responsibility away from him.
The Carter administration, except for that hardy band of forward-thinking prosecutors, is headed in the opposite direction - toward more centralized control over environmental decisions. It is trying to create a sort of "trade-off wizard" located in the White House who will decide, like King Solomon, how to divide the baby in half and make both mothers happy.
A well-intentioned recipe for scandal, I predict. The wizard will become, in time, the broker for contending political interests and, someday, he will be the fixer who takes the money and hands out the environmental exceptions to deserving industries. Thus, modern economists have reinvented that loathsome medieval practice which did so much to inspire the Protestant Reformation - the selling of papal indulgences. The wealthy and powerful are entitled to sin, if the price is right, if their economic objective seems compelling, if they are well wired into the White House.
It smells wrong, but why? Because the injuries and rewards involved in these environmental trade-offs are not equitably distributed. Some citizens get hurt and others make money. Ask the family that lives downstream from a cancer factory. Or the steelworker with a diseased kidney. Or the asthmatic child who cannot go outdoors on smoggy days. Somebody does get hurt and the government cannot pretend to be disinterested. Because government's function includes the pursuit of justice, it cannot presume to trade away one citizen's injury in favor of another citizen's profits.
A criminal trial, with its very demanding standards of proof, is actually a better forum for deciding many of these issues - who really gets hurt or doesn't get hurt - than a bargaining table in the Executive Office Building. Corporations claim, for instance, that the toughest emissions standards are wildly unrealistic, utterly unsupported by scientific evidence of real injury. If so, case dismissed. No injury, no crime. If the government can prove injury, plus negligence or fraud or other elements of criminal culpability, send them off to jail.
Environmental activists, because they know how ineffective the government enforcement really is, are included to see criminal deterrence as ultimately the best hope for a just society, not to mention a clean one. If we assume that corporate managers are at least as moral as the rest of us, the presence of criminal liability makes it easier for them to do the right thing, just as the occasional income-tax prosecutions make it easier for all of us to pay our taxes. The good will prosper; only scoundrels need hide from the light.
Bill Butler, general counsel for the Environmental Defense Fund, summarized it neatly: "There will never be enough federal inspectors to do the job. By and large, the only people who can clean up the act are the actors."