Control of Environmental Risk Through the Application of Criminal Sanctions: Legal and Economic Considerations Under the Clean Water Act

Abstract

Public Enforcement of the Clean Water Act has been characterized by the increased use of criminal sanctions over the past decade. This sanctioning trend has developed in direct response to the passage of the Sentencing Reform Act (SRA) as part of the Comprehensive Crime Control Act of 1984. New sentencing guidelines were established in 1987 under which courts were required to impose sentences which reflect the seriousness of the offense, provide just punishment for the offense, and afford adequate deterrence to criminal conduct. Legal trends are documented for both industrial and agricultural violations as a result of applying the new federal sentencing guidelines to CW A cases. The efficiency implications of the SRA are evaluated in the context of a model of the public enforcement of environmental law. It is concluded that fault-based standards of liability and the use of mixed fine/incarceration sanctions are appropriate for agricultural violations of the CW A.