NCPA - National Center for Policy Analysis

Overreacting to Environmental Crimes

January 28, 2013

Overcriminalization, the act of making too many actions or behaviors illegal, is a problem that plagues Gulf Coast states struggling to stay on the right side of environmental law.  Indeed, nearly 1,000 laws have passed that criminalize various activities in the five states that border the Gulf of Mexico, say Marc Levin and Vikrant Reddy of the Texas Public Policy Foundation.

  • Environmental crimes can be defined as crimes that relate to air, water, waste, land use or other commercial activity involving natural resources. Many of the crimes on the books can lead to imprisonment.
  • Texas has 263 environmental crimes, Louisiana has 286, Mississippi has 94, Alabama has 185 and Florida has 107 environmental crimes.
  • Some crimes, like the improper disposal of hazardous waste in Texas, are felonies carrying stiff sentences of up to 10 years in prison.

In each state, the attorney general, a state agency or district attorneys are responsible for prosecuting the expanse of applicable environmental laws. Unlike many prosecutable crimes, many statutes in the Gulf Coast states do not require the perpetrator to act with mens rea, or a "guilty mind," meaning that violators could unknowingly wind up on the wrong side of the law.

Levin and Reddy consider the overcriminalization of environmental crimes a scourge that disproportionately punishes criminal infractions even if no human is harmed. In many instances criminal sanctions are not necessary.

  • To adjust current policies, Levin and Reddy suggest reviewing all environmental laws to ensure that the punishment matches the crime.
  • Strengthening the mens rea requirements of environmental statutes so that only those who are willingly and knowingly breaking the law are punished would increase justice and equity.
  • Eliminating provisions that delegate the power to criminalize an action by the rulemaking authority of an agency would reduce the glut of criminalized actions.
  • Implementing a "safe harbor" provision that allows violators to come into regulatory compliance and avoid prosecution would encourage citizens to obey the law.

Business owners in particular, many of whom run afoul of environmental laws, would benefit from implementing these suggestions. Without any reform, residents of the Gulf Coast states could continue to unknowingly commit felonies every day.

Source: Marc Levin and Vikrant Reddy, "Engulfed by Environmental Crimes: Overcriminalization on the Gulf Coast," Texas Public Policy Foundation, December 2012.


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