OVC Provider Forum Transcript

Responding to Victims of Environmental Crime
David Uhlmann  -  2011/8/10
Professor Uhlmann: As an Environmental Crimes Investigator I am aware of your accomplishments while serving as Chief of the U.S. Dept. of Justice, Environmental Crimes Section. In particular I recall several cases brought against laboratories that provided falisfied analytical testing results relative to water quality, etc. Do you believe that laboratory fraud is still pervasive in this country and if so what sort of risks does it pose to the general public
1.  David Uhlmann
 Thanks for your question and for your service as an EPA Special Agent. I am hopeful that our efforts to address laboratory fraud over the last decade have reduced the amount of illegal activity. I suspect, however, that there may always be some companies who do not follow the rules and are not honest about testing results, which is why the work that you do is so important.
What constitutes an environmental crime?
1.  David Uhlmann
 Federal and state environmental laws address a wide range of conduct. When violations of those laws occur with what prosecutors call criminal intent (which, in most cases means that the defendant knew what she was doing but not whether her conduct was a violation of the law), a crime could be charged. Examples include midnight dumping of hazardous waste, vessel pollution, illegal air pollution, and falsification of records to conceal substantive environmental violations.
How many cases of environmental crime have there been in which a victim (or victims) has/have been identified?
1.  David Uhlmann
 Every year, there are numerous cases where environmental violations occur that cause harm to an individual or a community. When that occurs, prosecutors are required to make sure that the concerns of the victims are addressed, to the extent that it is possible, and to keep the victims informed about the progress of the case.
Are there challenges in reaching victims identified in an environmental crime?
1.  David Uhlmann
 Thanks for your question. When there are identifiable victims, there are not usually issues reaching them or obtaining their cooperation. Crime victims put their faith in the criminal justice system and, in my experience, are good about helping the government. The challenge in environmental crimes is that sometimes the victims are not so easy to identify, because the harm is less immediate and the potential number of people affected is large.
any articles you would suggest reading that provide good examples of case law related to environmental crimes?
1.  David Uhlmann
 Thanks for your question, Cheryl. We have been prosecuting environmental crime in the United States for nearly 30 years, so there is not one article that covers all of the caselaw. There has been a lot written about the question of what conduct is criminal under the environmental laws and whether the mental state requirements for environmental crime are too lenient. I tried to address some of those arguments in an article that I wrote recently for the Utah Law Review, which is called Environmental Crime Comes of Age. It should be available on-line and might be helpful to you.
Who is responsible for prosecuting environmental crimes?
1.  David Uhlmann
 In the federal system, the U.S. Department of Justice prosecutes environmental crimes through the joint efforts of my old office, the Environmental Crimes Section, and the 93 United States Attorney's Offices throughout the country. The United States has the most advanced environmental crimes program in the world -- and the largest environmental crimes prosecution office in the world is our Environmental Crimes Section.
As a follow-up to a question just asked, who is considered a victim of an environmental crime?
1.  David Uhlmann
 Thanks for your follow-up question, Jennifer. Under federal law, a victim is a person who suffers physical injury or economic losses because of criminal activity. Environmental crimes can have victims that fit that legal definition. The challenge with environmental crimes is that sometimes the victims are the general public, in the sense that we are all harmed when the air we breathe and the water we drink is polluted -- but we may not suffer provable health effects or economic losses, so we may not be victims under federal law.
Any suggestions/comments on the difficulty of proving causation between exposure to hazardous chemicals and harm to victims of environmental crime when the harm may not manifest itself until some time in the future?
1.  David Uhlmann
 Monitoring of potential victims often is required as part of the sentence in criminal cases. For example, in cases involving illegal asbestos removal, courts have required monitoring of the workers exposed, since illnesses from asbestos exposure often do not occur for 20 or 30 years after the exposure.
2.  gibsoj
 Have courts generally require a finding of when the harm occurred to the victim? How have they addressed when exposure occurs over an extended period of time?
3.  Tom
 When direct injuries could lie dormant after exposure, perhaps the cost of medical monitoring is a cognizable harm if exposure can be shown in an environmental crime. It would seem to be comparable to credit monitoring after identity theft.
4.  David Uhlmann
 Thanks for your comment. One of the biggest difficulties we face in addressing environmental harm is proving causation. As you point out, often the harm takes many years to occur. When that happens, it often is past the time period when charges can be brought. Even if charges are still possible, it may be hard to show what caused the harm, because we are exposed to so many possible hazards in our lives. Fortunately, most of the environmental laws do not require the government to prove harm when it prosecutes environmental crime, but the concern you raise does limit the government's ability to advocate on behalf of victims of environmental crime.
What is currently being done or what can be done to educate and inform our communities on preventing environmental crimes and holding companies responsible?
1.  David Uhlmann
 This is a great question, Katie. At the Justice Department, the Office of Public Affairs works hard to publicize successful prosecutions, which is one way to ensure that our communities know more about environmental crime -- and to let companies know that they will be held accountable if they commit violations. The Office of Victims of Crime also arranges programs like this one to address concerns about criminal activity in our communities. Clearly, however, there is more that could be done to educate our communities and to hold corporations responsible.
You gave some examples of environmental crimes earlier ... what is the most common type of environmental crime that you've seen?
1.  David Uhlmann
 Historically, the biggest category of criminal violations of the environmental laws involved water pollution, by which I mean pollution of our rivers and streams. That may be changing, at least in part because the U.S. Supreme Court has raised questions about how much of the tributary system is covered by the Clean Water Act.
How might the services of victim advocates differ in cases of environmental crimes versus other types of crime such as homicide, sexual assault, etc?
1.  David Uhlmann
 Victims of environmental crime are no different than victims of other crime: they all have suffered physical injuries or economic losses; they all want to see the perpetrators of the crime brought to justice; and they all want to move on with their lives. So in a very real sense, the role of victim advocates is no different, although the laws and the harms may be different in an individual case.
Are victimologists including this population in their studies of victimology? Especially when they are conducting surveys of victims. This is the first discussion I have heard on this topic.
1.  David Uhlmann
 This is a great question also. I am not aware of any studies that have been done about victims of environmental crime. Public attention to environmental crime has increased in the last year, because the Gulf oil spill caused harm to so many victims. Hopefully, there will be greater attention to this problem in the future.
What kind of restorative justice are Victims of Environmental Crime experiencing? Are they basically bearing the burden of financing their own civil law suits?
1.  David Uhlmann
 When victims of environmental crime have physical injuries or suffer economic losses, they are entitled to restitution in the criminal case. That means it is not necessary to pursue civil lawsuits against the defendants, unless there are losses that cannot be covered by restitution in a criminal case. Even if a civil lawsuit is needed, most cases brought on behalf of victims involve contingency fees, where there are no up-front costs and the attorney is paid a percentage of the damage award.
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