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1、本科毕业论文外文翻译题 目论环境犯罪的立法完善专 业法 学系 别历史文化与法学系A Graduated Punishment Approach to Environmental CrimesSusan F. Mandiberg and Michael FaureI. INTRODUCTION Why do we have environmental crimes? What social harms are we addressing, and what interests are we vindicating through use of the criminal sanction? The

2、 answer to these questions is not found in traditional criminal law principles. This is because environmental interests and values do not enjoy an absolute protection in the law. Unlike theft or homicide, for example, which may cause personal benefits only to the criminal, most polluting activities

3、generate substantial societal benefits as well as environmental costs. Thus, environmental law in many countries is aimed largely at an administrative control of pollution, usually through licensing and permitting systems. Environmental criminal statutes largely function to help ensure that control.

4、 The interweaving of administrative and criminal law has been pronounced from the beginning of modern environmental crimes in the mid-twentieth century. Then, as now, environmental criminal law focused on punishing the lack of a permit or the violation of permit or other regulatory requirements and

5、conditions. However, although this administrative dependence of environmental criminal law may have been the general starting point, European commentators have increasingly pointed to serious weaknesses in this approach. For one thing, if the role of the criminal law is restricted to punishing admin

6、istrative disobedience, other types of pollution may go unpunished, thus limiting the ability of the criminal law to protect ecological values. In addition, unlike the situation with traditional crimes, administrators (not legislators) decide what is and is not criminal. This critique of the absolut

7、e administrative dependence of environmental criminal law has had its effects on European legislation and on international conventions.5 As a result, one can now increasingly notice the use of other models of environmental crimes, models that are less dependent on administrative law. The goal of thi

8、s paper is to examine and advocate for approaches to environmental crimes in addition to the punishment of disobedience to administrative rules and decisions. We acknowledge that an effective environmental criminal scheme must include administrative-disobedience crimes. For one thing, disobedience t

9、o at least some administrative decisions is a serious matter. For another, such offenses are easiest to prove6 and thus provide a mechanism for punishing some environmental malfeasance that cannot be otherwise addressed.7 Nevertheless, actual harm to the environmentand the threat of such harmis more

10、 serious than mere administrative disobedience. When the government can prove that someone has both acted unlawfully and has caused or threatened such harm, an effective system should have crimes in place to address the situation. In addition, in circumstances of extreme environmental harm, it is im

11、portant to include a crime that does not require the government to prove any disobedience to administrative rules and decisions. Finally, the authorized punishments for offenses on this continuum of environmental criminal statutes should be graduated according to the seriousness of the social harms

12、at issue. II. FOUR MODELS OF CRIMINALIZATION OF ENVIRONMENTAL HARM Criminal statutes address specific social harms. The act element of a criminal statute articulates the social harm at which the crime is directed. The mental-state element articulates the attitude a defendant must have had toward the

13、 social harm in order to be criminally culpable.13 While mental state is a crucial element in determining criminal liability, the analysis in this article focuses exclusively on the act element of environmental crimes. Focusing on the act element in a 1995 article, Michael Faure and Marjolein Visser

14、 proposed and examined four models of environmental crimes. First is Abstract Endangerment, a model criminalizing disobedience to administrative rules and requirements perse . Second is Concrete Endangerment Crimes with Administrative Predicates (“Concrete Endangerment”). Concrete Endangerment crime

15、s involve behavior that both violates regulatory law and poses a threat of harm to the environment; thus, on the surface, at least, these crimes target two social harms. Crimes in the third model, Serious Environmental Pollution, punish very serious environmental harm even if the activity at issue w

16、as not otherwise unlawful; these appear to be aimed at preventing or punishing only harm to the environment itself. The fourth model, Vague Statutes, covers statutes that establish a general duty of care. The present analysis explores the first three of these models in more detail, but it also expan

17、ds upon the framework. This is because, upon further consideration, we are convinced that it is useful to add an additional model for crimes that involve both an administrative predicate and actual environmental harm. We label this model Concrete Harm and refer to it as Model IV. We do not address t

18、he Vague Statutes Model. A. Model I: Abstract EndangermentOffenses following the Abstract Endangerment Model do not punish environmental pollution. Instead, their role is to enforce prior administrative decisions, and so they punish the failure of a regulated entity to adhere to administrative dicta

19、tes concerning environmental regulations. In essence, the Abstract Endangerment Model merely adds criminal law to the enforcement mechanisms available to ensure compliance with monitoring, paperwork, licensing, and other rules meant to regulate pollution producing activities. The criminal provision

20、normally contains a general statement that anyone who violates the provisions of the act or of the regulations, licenses, or permits issued to implement it will be punished with a specific sanction. Included in this group are statutes that make it a crime to engage in specified activities without a

21、required license or operating permit. The criminal law typically applies in these kinds of cases as soon as the administrative provision has been violated, even if no actual harm or threat of harm to the environment occurs. If the criminal provision requires or presumes environmental harm or the thr

22、eat of such harm, the statute is not of the Abstract Endangerment variety. Although Abstract Endangerment crimes focus on vindicating administrative values, punishing the administrative violation indirectly furthers ecological values in two ways. First, an entity that follows administrative rules is

23、 less likely to harm the environment. More to the point, if administrative rules are followed, the regulatory agency can monitor the entitys operations to ensure that harm is less likely to occur. Nevertheless, although environmental values are implicated by Abstract Endangerment crimes, the overlap

24、 with such values is incomplete. For one thing, an entity in compliance with all administrative rules can still cause environmental “harm.” Consider that, for each parameterair, water, soil the administrative agency will set a baseline of “acceptable” contact between a pollutant and the environment.

25、 This baseline will reflect a compromise among such considerations as the pollutants effect on the environment, societys need for the polluting activity, and the existence (and cost) of technology that can mitigate the damage. Thus, compliance with the baseline does not mean a lack of environmental

26、“harm.” However, the disconnect between administrative and environmental values can go the other way as well. That is, an entity that violates administrative rules may not be causing environmental harm. Take, for example, an entity that transports hazardous waste without the required paperwork. This

27、 violation harms administrative norms first and foremost. But there is no emission, and thus no environmental harm: as regards environmental values, the crime is inchoate. Regardless of which aspect of the disconnect one views, the failure of Abstract Endangerment crimes to focus on an activitys imp

28、act on the environment makes this model less than completely effective in protecting ecological values.B. Model II: Concrete Endangerment Crimes with Administrative Predicates The second model is that of Concrete Endangerment Crimes with Administrative Predicates (“Concrete Endangerment”). As with t

29、he first model, the activity in question must take place in an unlawful way by engaging in the activity without a required permit or other authorization or by violating conditions in a statute, regulation, or permit.51 However, the characteristic of unlawfulness may be integrated in different ways.

30、Some of the crimes in this model include as an element the fact of violating regulatory law. Others provide the defense that the activity was authorized.53 Even though the legal technique is different, the unlawfulness of the discharge remains a factor in criminality. C. Model III: Concrete Harm Cri

31、mes with Administrative PredicatesThe third model is Concrete Harm Crimes with Administrative Predicates (“Concrete Harm”). As noted above, this model has been added to Faures and Vissers original approach. Statutes fitting this model are similar to Concrete Endangerment crimes in that they require

32、proof that the actor violated an administrative rule. However, these crimes go beyond threats and require proof of actual environmental harm. The identification of crimes fitting Model III can be tricky, as it depends upon the definition of “environmental harm.” As we will show in Part 1 of this sec

33、tion, some statutory definitions focus on the environment directly, but others adopt an anthropocentric definition of “environmental harm.” These latter seem based on the premise that emissions or releases that threaten or harm human health, safety, or other interests must of necessity also harm the

34、 environment. To the extent that this interpretation is accurate, the “knowing endangerment” provisions of the CWA and RCRA are examples of Model III crimes. In addition, Europe provides a number of examples of Concrete Harm crimes.Because we are working toward a graduated punishment approach to env

35、ironmental crimes, it makes sense to us to differentiate Concrete Harm statutes from the crimes in Model II. Concrete Harm crimes require proof of actual harm, and so it is logical for such statutes to impose higher penalties than those requiring merely a threat of harm. When the government can prov

36、e both an administrative violation and actual environmental harm, the authorization and imposition of increased punishment would be expected to further the vindication of environmental values through increased deterrence and retribution.105 However, Concrete Harm statutes run into conceptual and pro

37、of problems that can frustrate these goals. For one thing, the concept of environmental “harm” is difficult to define. A second problem involves causation. We will explore these in turn. 1. Defining Environmental “Harm” A traditional way of measuring environmental harm is to look through the lens of

38、 harm to human beings instead of focusing on the environment itself. One variation focuses on threats to human health or safety. A second variation is to focus on harm to private property. A final way to look through the lens of harm to human beings is to measure financial costs other than damage to

39、 property itself. At first, it may not be clear that statutes such as these vindicate environmental values at all. After all, the threat or existence of environmental harm is not an element of the crimethese results are not even mentioned. And yet, these statutes are part of environmental protection

40、 schemes. Their placement within such schemes leads to the conclusion that harm to humans is used as a surrogate measure for harm to the environment: if the pollution is extreme enough to threaten human interests, the environment must of necessity also be threatened. There are drawbacks to this surr

41、ogate approach. One obvious problem is that environmental damage might occur far from populated areas and thus remain outside the scope of statutes that define harm in human terms. However, there is another, more serious drawback. Consider, for instance, the act of draining a wetland and filling it

42、with soil or rocks. Elimination of wetlands may endanger human health and safety in the long term, for example by changing hydrological patterns, contributing to flooding, and so forth. However, eliminating a wetland does not present the type of short-term danger that occurs, say, in a Bhopal-type s

43、ituation where toxic chemicals are emitted into the ambient air. If harm to human health, safety, and property is viewed only in the short term, the actor who fills the wetland cannot be prosecuted for a Concrete Harm or Serious Environmental Harm crime; even a Concrete Endangerment crime is off lim

44、its if the threat is viewed in the short term. But this result seems wrong. Environmental harm has, in fact, occurred, as eliminating the wetland certainly has dire short-term consequences for the flora and fauna in the ecosystem. If we are to use the criminal sanction to address this situation thro

45、ugh anything other than Abstract Endangerment crimes, we will have to articulate what we mean by harm to the environment without using human values as a surrogate. A legislature that wants to address a full spectrum of environmental harm must articulate a standard that reflects purely environmental

46、values. The statute must require proof of something more than mere contact between a pollutant and the environment; otherwise, it would be functionally no different from the “presumed harm” variety of the Concrete Endangerment Model. But whats more? And how can a legislature define what may be ineff

47、able without violating the principle of legality? Examples do exist of criminal statutes that attempt to go beyond an anthropocentric focus. Some speak in terms of environmental “harm” or “damage” or authorize differences in sanctions based on degrees of “harm.”Others require proof of “pollution.” S

48、till others punish negative changes to the existing environment. While such provisions are laudable for their focus on environmental values, they leave it to either the fact finder or appellate case law to make the notion of harm (or “damage,” “suitability,” “detriment,” or even “pollution”) more co

49、ncrete. The same problem may exist even in provisions that appear at first glance to be quite clear. One German statute, for instance, punishes any actor in a protected natural area who unlawfully “mines or extracts mineral resources or other soil components; makes excavations or heaps, creates, alt

50、ers or removes bodies of water; drains moors, swamps, marshes or other wetlands; clears a forest; or damages or removes plants of a specially protected species.”; however this provision adds that the activity must “thereby interfere not insubstantially” with the interest in question, making the defi

51、nition less useful than it might have been.Open-ended definitions of environmental harm may be attractive to legislators, but they also create problems. One problem arises if the statute allows the fact finder to equate “harm” with any negative change in the quality of water, air, or soil no matter

52、how minor. This is because any contact between a pollutant and the environment is likely to cause some minor negative change in the latter. Such an interpretation of “harm” conflates Model II, involving a threat of “harm” and Model III, which requires actual “harm.” A coherent environmental criminal

53、 scheme should guide fact finders in distinguishing between these degrees of seriousness. 2. The Issue of Causation Concrete harm crimes require the prosecution to prove that the defendants behavior caused environmental harm, however that is defined. Serious Environmental Harm crimessome of those in

54、 Model IV, to be discussed belowcarry the same requirement. Proving causation is not particularly difficult in the case of a single polluting event that results in clear damage. However, the requirement could present a challenge to prosecutors in other situations, reducing the number of cases in whi

55、ch these result-defined crimes are useful as tools of environmental protection. Causation problems are likely to be common in prosecutions requiring proof of actual harm. This is because in many situations a defendant may be able to show that one or more additional actors independently emitted pollu

56、tants into the same water, soil, or air, either previously, simultaneously, or subsequently to the defendants own actions. Of course, similar causation problems also arise in the context of traditional crimes with result elements, most notably in the prosecution of homicides. This being so, any juri

57、sdiction with a developed criminal law will have worked out solutions to at least the most common of these problems, and there is likely to be informative scholarly material on any issues still outstanding. The main challenge for pollution crimes is to translate the existing solutions from the vocab

58、ulary of homicide (or assault, or other more traditional result-defined crimes) to that of environmental harm. It is valid to ask whether there is really a need to undertake the task of developing a body of causation law in the context of environmental crimes. Why not be content to use Abstract and

59、Concrete Endangerment crimes, which do not require proof that the defendant caused a concrete result? The answer is related to our suggestion of a graduated punishment approach, discussed in Section III. Under such an approach, Concrete Harm crimes would be punished more severely than Abstract or Co

60、ncrete Endangerment crimes (and Serious Environmental Harm crimes might carry even more severe punishment). Where proof of causation is difficult or impossible, conviction for the lower offense would have to suffice. In cases in which such proof could be made out, however, the more serious crime mor

61、e accurately reflects the defendants behavior. Any scheme that lacks offenses requiring actual harm conflates the seriousness of different degrees of criminality. This section has addressed a model in which the government must prove both an administrative violation and actual harm to the environment

62、. While there are challenges involved in proving harm and causation, more severe punishment might accompany convictions in which these challenges have been met. But what if the government can prove both harm and causation but no administrative violation? Should compliance with administrative require

63、ments shield polluters from the worst types of environmental damage? The next section addresses that issue. D. Model IV: Serious Environmental Pollution: Eliminating the Administrative Link This model, which we will call “Serious Environmental Pollution” for ease of reference, aims to punish very se

64、rious pollution regardless of whether there is any underlying regulatory violation. In fact, statutes following this model impose criminal sanctions despite the defendant having obeyed license or permit conditions or other regulatory laws. To put it differently, in this model following the condition

65、s of a license cannot constitute a defense: the “permit shield” does not apply. Thus, this model differs from Model III. The administrative link is broken for a reason: crimes following this model are based on the assumption that the environmental harm at issue is of a magnitude beyond that contempl

66、ated by the administrative rules with which the entity complied. Crimes following this model are relatively rare. However, as the examples to come show, they do exist. The existing crimes vary in the way they eliminate the link to administrative rules. Some eliminate the “permit shield.” Others eliminate