Ounces of Prevention and Pounds of Cure: Developing Sound Policies for Environmental Compliance Programs

In the 1990s, when criminal enforcement of American environmental statutes became more widespread, and the consequences of violations potentially more severe, the creation of effective environmental compliance programs became a priority for the regulated community. In previous years, creation of such programs could have been viewed merely as a responsible option to assist corporations in achieving or maintaining reputations as good corporate citizens.However, when the 1990s ushered in increased criminal prosecution of environmental violators, the stakes were raised significantly and the motives for creating environmental compliance plans changed. Such plans became important not only as a way to prevent the occurrence of environmental harm, but also as a method of decreasing the criminal consequences of future occurrences.Unfortunately, however, while much attention has been paid to the beneficial legal consequences of compliance plans for those who implement them, the more crucial question has received less attention: What is the actual impact of compliance plans on the avoidance of harmful environmental consequences? While it would be naive at best, and foolhardy at worst, to discount the legitimate legal benefits for creating a compliance plan, these rewards should not be the exclusive reason for doing so. The policies created to encourage such compliance should be carefully evaluated to ensure that they include adequate incentives not merely to comply with the law, but also to benefit the environment.This Article examines the federal policies currently in place to benefit organizations that adopt compliance plans. Parts I and II will explore those benefits at two stages of an environmental criminal action: case selection and sentencing. Parts III and IV will then postulate that while these policies are the beginning of a good effort to promote compliance plans they must be refocused. To gain the most environmental benefit, the policies creating incentives for environmental compliance must center on the goal of preventing environmental harm. American environmental policy has been moving from a command-and-control enforcement philosophy toward one that focuses more heavily on encouraging legal compliance. This is a wise move, but it must continue to shift the emphasis from mere legal compliance to real pollution prevention and outcome-oriented environmental improvement. The Article will conclude by suggesting that this goal can be achieved only if the concept of a “compliance plan” is broadened to emphasize and reward initiatives with a direct positive impact on the environment.Although 15 years have passed from the publication of this article, the conflicting public policy issues it tackled continue to challenge environmental enforcement experts to this day