Abstract
Both the U.S. Environmental Protection Agency ("EPA") and Department of Justice put forth significant resources to investigate and prosecute environmental crimes under the U.S. Clean Water Act ("CWA"). Criminal sanctions are used to raise the cost of violations relative to the benefits of criminal action to directly deter rational individuals and firms from offending and indirectly via the observation of other potential offenders. While many studies examine sanctioning in environmental law, little research explores the plausibility of any deterrent effects of criminal sanctions under the CWA. We use content analysis to explore all criminal prosecutions resulting from EPA criminal investigations, 1983-2019. Results show that while CWA prosecutions made up almost a third of all prosecutions over the last thirty-seven years, there was a relatively low probability of punishment We suggest there are likely some specific and general deterrence effects from these efforts in line with the design of the criminal enforcement apparatus. However, these effects are likely sub-optimal to act as any broader, substantive deterrent to environmental criminals. We conclude by proposing forward-facing solutions for enhancing the criminal enforcement regime to better deter future CWA crimes, including better funding, increasing the salience of criminal enforcement activities, and stronger community involvement.
First Page
159
Custom Citation
Joshua Ozymy & Melissa Jarrell Ozymy, Sub-Optimal Deterrence and Criminal Sanctioning under the U.S. Clean Water Act, 24 U. Denv. Water L. Rev. 159 (2021).