According to Bellamy, the United States of America (U.S.A) is said to be one of the leading countries in the world that applies criminal sanctions to environmental degradation leading to crimes. This is because of the increased political pressure and awareness that has resulted in vigorous prosecution of environmental offences in the USA. The American approach has been successful in deference. Polluters from polluting the USA environment without due regards to the concept of sustainable development. Studies show that the United States Department of Justice has achieved 95% (ninety-five percent) conviction rate for all environmental prosecutions.276 Industries are heavily regulated,
276Aufhauser, D. (1990). Environmental Crimes, 1990 Annual Report, 1990 A.B.A. Statistics reported are from 1990. Retrieved
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especially in pollution control,277 when only monetary or majority fines are imposed for violations of pollution control laws became a mere ‗cost of doing businesses, It is noteworthy that any Executives and Managers who violate the environmental law were added to the American regulatory scheme. This position is similar to the Australian law with respect to the doctrine of lifting the veil of incorporation as aptly demonstrated in the notorious Salmon v Salmon278. That means, a company director or shareholder would not be exempted from criminal sanctions, including the company itself. This expansiness demonstrated the government‘s seriousness on maintaining clean environment by imposing criminal sanctions against erring perpetrators. Furthermore, the U.S courts came up with an approach known as the
―should have known‖ mensrea to environmental crimes.
It provides that corporate officers are expected to effectively monitor and exercise control of their operations. The approach makes convictions against corporate officers less difficult than crimes requiring from <http://scholarship.law.berkeley.edu/elq/vol14/iss1/4>.
Accessed 6th October 2019
277 Bellamy, J. M. (2002). Putting The Boss Behind Bars: Using Criminal Sanctions Against Executives Who Pollute-What China Could Learn From The United States. Retrieved from http://heinonline.org/HOL/LandingPage. Accessed 14th September 2018.
278 [1946]IAC
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specific knowledge. Studies reveal that in the USA sentences for environmental convictions in the past involved suspended sentences, probation, and community service.279 However, presently, the prosecutorial zeal, combined with strict adherence to the federal sentencing guidelines have led to higher fines and sentencing.
To further buttress the ―should have known‖ principle, the Supreme Court of the United States of America has indicated that there is generally a presumption of mensrea as held in United States v Balint 280 and Morissette v United States281 where Jackson J stated at 250 that, ‗The contention that an injury can amount to a crime only when Inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil‘.
Thus, whether the polluter had no intention to pollute
279Kurki, L. (2000). Restorative and community justice in the United States. Retrieved from
<http://www.journals.uchicago.edu/doi/abs/10.1086/652201>.
Accessed 7th October 2019
280(1922) 258 US 250 at 251.
281 (1952) 342 US 246
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the environment or not, he will be held liable where in certain cases where this presumption is not present strict liability may be applicable. In Morissette v United States,282 the Court stated that in ‗public welfare offences‘ the accused ‗if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities‘.283 The Court stated further that the criteria for delineating between crimes which require proof of mensrea and those which do not
‗is neither settled nor static‘,284 and held that mere omission from the provision under scrutiny of words indicating mensrea ‗will not be construed as eliminating that element from the crime‘.285 In United States v Dotterweich,286 while discussing on ‗public welfare‘
offences, the Court said: ‗such legislation dispenses with the conventional requirement for criminal conduct – awareness of some wrongdoing. In the interest of the larger good, it puts the burden of acting at hazard upon
282 342 US 246 (1952)
283 At 256
284 At 260
285 At 263
286 320 US 277 (1943)
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a person otherwise innocent but standing in responsible relation to a public danger‘.287 Subsequently, in Staples v United States,288 the Supreme Court held that it has essentially … relied on the nature of the statute and the particular character of items regulated to determine whether congressional silence concerning the mental element of the offense should be interpreted as dispensing with conventional mensrea requirements.
Whilst canvasing on the issue, the court raised the suggestion that ‗punishing a violation as a felony is simply incompatible with the theory of the public welfare offense. In this view, absence of a clear statement from Congress, that mensrea is not required, we should not apply the public welfare offense rationale to interpret any statute defining a felony offense as dispensing with mensrea.‘
In the above case, it became obvious; the Court reaffirmed that knowledge or intent were not required to be proved in prosecutions under the Act. Both these cases held corporate officers strictly liable for crimes
287 At 280-81
288 511 US 600 (1993).
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committed by their corporations,289 also, and primarily, corporations management are duty bound to implement measures that will ensure that violations will not occur‘.290
Similar position was held in the case of United States v Weitzenhoff,291 where the defendants were convicted for violating the Clean Water Act (CWA) which provides that any person who ‗knowingly violates‘
certain sections of the Act ‗or permit any condition or limitation implementing any such sections‘ is guilty of a felony.292 The defendants were both sentenced to significant terms of imprisonment.293 The defendants were managers of a sewage treatment plant in Hawaii and they had instructed employees to pump, under cover of darkness, ‗waste activated sludge‘ directly into the ocean. This effluent did not comply with the standards with which the plant had to comply. They had
289S Zipperman ‗The Park Doctrine – Application of strict criminal liability to corporate individuals for violation of environmental crimes‘ (10 UCLA J Environmental Law and Policy 1991) 123 at127-134
290Supra
291 1 F.3d 1523 (9th Cir 1993) amended on denial of rehearing and rehearing en banc 35 F.3d 1275 (9th Cir 1994) cert. Denied 115 S Ct 939, 1995
292 s. 1319(c)(2)(A
293Weitzenhoff was sentenced to 21 months and his co-defendant Mariani to 33 months
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instructed the employees who did the pumping not to say anything about the discharges, because if they all stuck together and did not reveal anything, ‗they [couldn‘t] do anything to us‘.294The Court of Appeals confirmed their convictions by holding that the word
‗knowingly‘ in the relevant section of the CWA merely required that the defendants knew that they were discharging pollutants, not that they knew that the discharges violated the relevant permit.295
The USA Court also award damages that would act as deterrence to offenders as demonstrated in USA v Shell Off shore Inc & Shell Exploration and producing Co.296
In the USA v Shell BP (the Gulf of Mexico) case of the Court and the company of USD 20 billion for the spill.
Furthermore in the United States v Central Industries et al 297 In this case millions of pounds of slaughter house waste were converted marketable fat which generation of 500,000 gallons per day of processed water which was discharged into a tributary of the Pearl river and damaged the drinking water supply for the city of Jackson Mississipi within 4 months in mid 1995. That the company committed violations
294Weitzenhoffat 1282.
295Weitzenhoffat 1283.
296 (2003) Civil Action No.CV 031458.2. Quoted in a Journal of Environment and Earth Science ISSN 2224-3216 Vol. 5 No. 18, 2015 by O V C Ikpeze, E Osaro and N G Ikpeze p. 150.
297 (1995)cited in environment crime by Clifford and Terry D Edwards (USA Jones & Bertlet Learning (2012)p 279.
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which was more than 1000 per unit exceeding the routine pollutant limitations. The company pleaded guilty in November 2000 to conspiracy to violate the CWA and 25 felony CWA violations. The company was ordered to pay $13 million criminal fine and $1 million in criminal restitution to the state.
Three high-ranking corporate officers and a board member and were ordered to pay between $25,000 = to $300,000 = This is really exemplary and deterrence focus.
Now can Nigeria Courts be convinced on the way to explore and focus criminality against the environment? The answer is the Time is now. Instructively in United States v Elias298. An employer Elias ordered two of his employees to climb into a cyanide tank containing waste cyanide to clean it. Elias failed to provide information to the emergency officers and the employee suffered permanent brain damage. The Employer was jailed 17 years and to pay $6 m to the family. The question is who dares repeat such a hernous crime. The answer in the USA is no on. Nigeria must and her Courts or special Courts must know this line of the polluters of Nigeria environment to desist from committing environmental crime which waste lives.