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83 Geo L.J. 2539 (1994-1995)
The Reality of Environmental Law in the Prosecution of Environmental Crimes: A Reply to the Department of Justice

handle is hein.journals/glj83 and id is 2567 raw text is: The Reality of Environmental Law in the
Prosecution of Environmental Crimes: A Reply to
the Department of Justice
Presumably, the title of the Department of Justice's response to my
environmental crimes article'-The Reality of Prosecuting Environmental
Criminals: A Response to Professor Lazarus2-is intended to suggest that
the article is yet another example of academic commentary divorced from
the real world of criminal prosecutions. There are, however, real prob-
lems with the existing program, as defined by Congress, as implemented by
the executive branch, and as construed by the courts. The political contro-
versy that recently engulfed the Justice Department's environmental crimes
program was quite real, with substantial costs for the program's long term
viability and for the lives of individual career prosecutors who found
themselves swept into the imbroglio. The D.C. Circuit's recent ruling in
General Electric Co. v. EPA,3 suggesting judicially-imposed due process
limitations on federal environmental criminal prosecutions is unlikely to
be an aberration.
. Perhaps, as the Department maintains, the political controversy has now
subsided. But the Department would be mistaken to assume that the seeds
of that controversy have disappeared with a simple shift in personnel. For
the reasons described in my article, those seeds are deeply embedded in
the structure of environmental lawmaking and the competing features of
environmental and criminal law. The controversy will therefore likely
reoccur in the future, generated by either end of the political spectrum.
Such is the general pattern of the last twenty-five plus years of federal
1. Richard J. Lazarus, Meeting the Demands of Integration in the Evolution of Environmental
Law: Reforming Environmental Criminal Law, 83 GEO. L.J. 2407 (1995) [hereinafter Reform-
ing Environmental Criminal Law].
2. Lois J. Schiffer & James F. Simon, The Reality of Prosecuting Environmental Criminals: A
Response to Professor Lazarus, 83 GEO. L.J. 2531 (1995) [hereinafter Justice Response]. The
response cautions that [tihe views expressed in this response are the authors' and do not
necessarily reflect the views of the Department of Justice. Id. at 2531 n.*. Because the
article was coauthored by the Assistant Attorney General and Deputy Assistant Attorney
General of the Environment and Natural Resources Division, who were assisted by earlier
drafts written by the Chief of the Environmental Crimes Section and a senior trial attorney
in the Environmental Crimes Section, it seems fair to refer to the response as one prepared
by the Justice Department rather than merely by two persons who happen to work at the
Department. In so doing, however, I appreciate that the response does not necessarily
represent the Department's formal views.
3. 53 F.3d 1324 (D.C. Cir. 1995); see Reforming Environmental Criminal Law, supra note 1,
at 2528 & nn. 512-18.


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