An Interview with David Uhlmann

David M. Uhlmann is the Jeffrey F. Liss Professor from Practice and the inaugural Director of the Environmental Law and Policy Program at the University of Michigan Law School. His research, writing, and advocacy interests include criminal and civil enforcement of environmental laws, Clean Water Act jurisprudence, worker endangerment, and efforts to address global climate change.
 Prior to joining the Michigan Law faculty, Professor Uhlmann served from 2000 to 2007 as the Chief of the Justice Department’s Environmental Crimes Section, which is the top environmental crimes prosecutor in the United States. Professor Uhlmann received a J.D. from Yale Law School and a B.A. in history with high honors from Swarthmore College.

The Politic: Firstly, what makes an environmental case criminal?

DU: An environmental case could be criminal whenever a violation of the environmental laws occurs with the mental state required by the governing statute, which in most cases is knowledge of the underlying facts (but not knowledge of the law). Many environmental violations occur with knowledge of the facts, however, so the Justice Department has broad discretion to determine which violations should be treated as criminal. While every case must be evaluated individually, the most relevant factors are the harm resulting from the offense, the presence of false or misleading conduct, whether the offender operated outside the regulatory system, and whether the offender has a history of violations.

The Politic: Moving to the BP oil spill, what are your views on how it is going to be resolved legally?

DU: The United States will bring criminal charges based on the Gulf oil spill. BP, Transocean, and Halliburton committed criminal violations of the Clean Water Act if the spill resulted from their negligence, which will not be difficult for prosecutors to prove in the Gulf oil spill. There also were violations of the Migratory Bird Treaty Act as soon as the oil from the spill coated migratory birds, and there may have been violations of the Seaman’s Manslaughter Statute, which makes it a crime to negligently cause the death of workers aboard a vessel, such as the Deepwater Horizon Rig. In addition, the Justice Department will look hard at whether BP and the other companies involved were honest with the government about conditions at the well in the weeks before and after the spill. In that regard, the question is whether corporate officials were forthright in their dealings with the government or if they spun the facts and withheld information about what happened.

The Politic: How does the responsible corporate officer doctrine apply to high-level BP management?

DU: Whether individuals will be charged for the Gulf oil spill is a difficult question. The same violations that may have been committed by BP, Transocean, and Halliburton could be charged against the individuals involved. But whether charges will be brought depends on whether there were individuals with enough personal involvement in the events leading up to the oil spill who were high enough up in the corporate chain of command to be appropriate targets for criminal prosecution. Theoretically, the government could charge low-level employees, but they are not likely to do so because those are not the people who made the decisions that led to this tragedy; they simply carried out orders from their supervisors.

So the question is whether the Justice Department, working with the EPA, F.B.I., and the Coast Guard, can identify responsible supervisory officials at the various companies with enough awareness about what was going on at the well to make them appropriate defendants. Under the responsible corporate officer doctrine, the government has the ability to go after higher-level officials within BP, Transocean, and Halliburton, if they knew about what was going on and failed to step in and prevent the negligence that led to the oil spill. The responsible corporate officer doctrine is a useful tool for prosecutors, but it remains unclear how much significance it will have in this case. It tends to be used more often in cases where there is longstanding misconduct and awareness among high-level officials about the misconduct, not a one-time event.

The Politic: What do you believe the ramifications of the spill will be in reshaping environmental law?

DU: The Gulf oil spill should be a wakeup call for us to become better stewards of the environment. For too long, we have treated the earth as a resource to be depleted, as opposed to a complex ecosystem that needs to be protected and preserved. The Gulf oil spill is a classic example of our shortsightedness: we developed the technology to drill miles beneath the floor of the ocean, without perfecting the technology to stop a spill like this if it occurred. What the future holds for environmental law is not clear, but we hopefully will see renewed efforts to balance resource use and habitat protection. We need to focus on sustainable use of the earth’s resources, which means that we must conduct drilling activities and other efforts that could be harmful to the environment in a way that protects the earth and prevents this kind of environmental damage in the future.

The Politic: Studies have shown that younger generations are more concerned about climate change and the environment. How do you see this shift affecting environment law?

DU: The generation of students in colleges and universities across the United States will have a profound influence on how we approach climate change and sustainability issues, if they remain as concerned as they are today about environmental protection. In the past, we have put more short-term economic interests ahead of long-term issues like environmental protection. That is not surprising; it is human nature to focus on our most immediate challenges. But we need to do a better job focusing on long-term issues like climate change. If we fail to take meaningful steps in the next 15 to 20 years to address climate change, the consequences could be catastrophic. At a minimum, we will see economic dislocation and a loss of biodiversity never before experienced in human history. So it is a moral and political imperative that we take steps now to address climate change. Students today are well focused on this need and hopefully will retain that commitment when they enter the workforce and eventually assume leadership positions.

The Politic: How would you rate President Bush and President Obama’s records on criminal enforcement for environmental violations?

DU: The Bush and Obama administrations have dramatically different environmental records. The Bush administration had one of the weakest environmental records of any modern presidency, while the Obama administration already has made important strides on a number of significant environmental issues, including efforts to address climate change. Yet in the area of criminal enforcement, there has not been a significant difference between the Obama and Bush administrations. Across both Democratic and Republican administrations, a consensus has emerged that the most egregious violations of our environmental laws should be criminally prosecuted. Different administrations may arrive at that conclusion for different reasons. But one of the positive developments in our environmental law system has been the emergence of a strong and well-integrated criminal enforcement program that enjoys support across administrations. This has made criminal enforcement what it should be – a nonpartisan effort that helps to ensure that companies across the United States meet their obligations under environmental laws.

The Politic: You have frequently argued for a carbon tax. What is your quick pitch here? Also, why has it been so difficult to get passed and do you think the “legislation landscape” looks promising for a carbon tax in the coming year?

DU: A carbon tax would be one of the most effective ways of addressing climate change in the near term, which is why it would be so valuable for the United States and other industrial nations to consider imposing a carbon tax as soon as possible. Carbon dioxide emissions are the primary cause of global climate change, yet it is cheaper to use carbon-rich fuels and engage in other activities that accelerate climate change than it is to pursue more sustainable practices. We could impose regulatory limits on carbon dioxide emissions, but those would take time to implement and, in the meantime, we need to send a price signal that takes into account the enormous harm from carbon dioxide emissions.

Climate change is one of the worst market failures in human history. The simplest way to address that market failure is to impose a tax on carbon dioxide emissions, thereby driving up the cost of the activity that is harming the environment, while simultaneously generating the revenue that we need to develop alternative energy. The problem for a carbon tax is that it is a tax. In the United States, we abhor taxes. It is extraordinarily difficult to enact any form of new taxes, let alone a broad-based tax that would affect all sectors of the economy, and particularly following a recession. So, while the case for a carbon tax is compelling, the prospects for a carbon tax in the United States are not good.

The Politic: What do you see happening in the near future in terms of changes to Environmental Protection legislation? What are going to be the biggest challenges to preserving the environment, and how must we combat these challenges from a legal perspective?

DU: A major challenge for environmental protection is that our system of environmental laws is 30 to 40 years old. All of the major environmental statues in the United States were passed in the 1970s and amended in the 1980s. The last major environmental legislation in our country was the Clean Air Act amendments of 1990. It has been 20 years since we have enacted any significant environmental legislation in the United States, even though, during that 20 year period, our environmental problems have changed dramatically.

The laws enacted during the 1970s and 1980s have help us clean up our rivers and streams, reduce the number of hazardous waste sites, and provide cleaner air in American cities. Those laws, however, were not designed to address the longer-term environmental protection and sustainability issues that have emerged over the last 20 years. So what we need in this country and the rest of the world is a renewed commitment to environmental stewardship. We must better reconcile economic concerns and environmental needs and recognize that if we fail to protect the environment, the economic problems we have had in the past will pale in comparison to those we will see in the future. To do so, we will need an enhanced and invigorated set of environmental laws that reflect the realities of the 21st century and the global and national environmental challenges that we face.

The Politic: What is the best way to ensure that private companies do more to comply with environmental laws? Must we increase punishment for violations, or must we work to educate more people about the ways in which environmental laws are traditionally violated, and the long-term ramifications of disobeying them?

DU: Most companies in America care about meeting their obligations under the environmental laws and make a concerted effort to do so. The problem is that there are always going to be some companies that do not play by the rules, either out of greed or arrogance, or just indifference. We need to have a strong enforcement system to deter those companies and to convince them that they, too, need to follow the law. We need to make sure that if they do not follow the law they are punished, so that the law-abiding companies do not suffer a competitive disadvantage, and so that the environment is not placed at risk. That said, a greater commitment to environmental protection is about more than just laws and the enforcement of those laws. It is fundamentally about values and about developing and upholding a business ethic that promotes sustainability and a healthy working environment alongside profit-making. It should be possible to be financially successful while pursuing sustainable practices and valuing employees. The key to long-term success in the environmental protection realm is including environmental values and a commitment to sustainability in the corporate ethos across all sectors of our economy.

The Politic: What is the connection between worker safety and environmental crimes?

DU: Companies that flout their obligations under the worker safety laws invariably do not do much better where environmental laws are concerned. For that reason, we began an initiative when I was at the Justice Department to target environmental violations that occurred in facilities that also were committing worker safety violations. In fact, many environmental violations put workers at risk, because they involved hazardous wastes or toxic materials, and because they generally occur in a workplace setting. In other words, environmental violations often endanger workers, even as environmental violations often occur alongside worker safety violations. The relationship between environmental violations and worker safety violations provides another example of how we need to do better in the United States and in promoting corporate values. We need to be effective stewards of the environment; we need to provide safe workplaces for all Americans. Everyone should be able to go to work in the morning knowing that they will be able to come home to their families safe and sound at the end of the day.

The Politic: You have been a major advocate for improving worker safety. What are your core recommendations for improving the Occupational Safety & Health Act?

DU: The Occupational Safety & Health Act was landmark legislation when it was passed in the 1970s, much like the environmental laws. Since that time, the Department of Labor has developed a comprehensive set of rules that govern workplace activity in the United States, just as EPA has developed rules under the environmental laws. Where the models break down, however, is on the enforcement side. We have a strong commitment to enforcement of the environmental laws, including an outstanding environmental crimes program and a superb civil enforcement program. As a result, we have a good record of environmental compliance in the United States. But in many companies, we do not see the same culture of compliance for worker safety, at least in part because we do not see the same type of enforcement activity under the worker safety laws.

The criminal provisions of the environmental laws are particularly weak: it is only a misdemeanor if a willful violation of our worker safety laws occurs and someone dies. It also is difficult to prosecute responsible officials within the company because the laws only apply to employers, and in large corporations the employer is the corporation, not the individuals who make the decisions that put workers at risk. So, we need a wholesale rewriting of the enforcement provisions of the Occupational Safety & Health Act to provide criminal enforcement tools that will promote compliance with the worker safety laws the way we see compliance under the environmental laws. There also might be ways that we could enhance our worker safety rules, but rules are not worth much if there is not a steep price for breaking the rules. Today, it does not cost much to break our worker safety laws, and that needs to change so that we can better protect America’s workers.

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