A Complicated Environment: The Problemwith Extending Victims' Rights to Victimsof Environmental Crimes

I. IntroductionRape. Murder. Kidnapping. Robbery. These are the types of crimes that people generally think of when they picture a crime victim. Several television shows are based around these victims, their stories, and the criminal justice system designed to protect both them and the communities they live in.1 Since as early as 1704, victims have had their cases prosecuted in court by a local public prosecutor.2 In Berger v. United States,3 the Court said that the prosecutor is the "representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all."4 This quote highlights the role of prosecutor as the State 's representative, not the victim's. For nearly three centuries, this adversarial style of criminal prosecution reigned supreme, oftentimes leaving victims on the outside looking in.5 To remedy this situation, Congress passed a series of laws over the last three decades, culminating with the Crime Victims' Rights Act (CVRA)6 in 2004, which sought to provide crime victims with greater rights to ensure that they were not shut out of the criminal proceedings of their aggressors. When Congress passed these laws, legislators and victims' rights advocates were mainly concerned with victims of violent crimes, such as rape, murder, kidnapping, and robbery. In all likelihood, advocates of these laws had no idea that this legislation would have much more far-reaching consequences than originally intended.Increasingly, the CVRA is being used by victims to participate in the trials of corporate defendants accused of committing environmental crimes.7 Victims' rights advocates assert that this new development is a natural progression to ensure the protection of victims of environmental crimes.8 This development has drawn the ire of many corporate defense attorneys, who question whether this was the Act's intended purpose and lament its unintended consequences on the prosecution of environmental criminals.9 While only a few cases have dealt with the issue, it is evident that the application of the CVRA to victims of environmental crimes will have far-reaching implications for the prosecution of environmental crimes and the ability of defense attorneys and prosecutors to plea bargain.10 Nowhere is this more apparent than with the fallout of the recent BP oil spill. Millions of gallons of oil spilled into the Gulf of Mexico and impacted millions of people across the five gulf states: Texas, Louisiana, Mississippi, Alabama, and Florida.11This Note considers the question of whether or not Congress intended for the CVRA to grant broad rights to victims of environmental crimes and whether anything should be done to remedy the problems that have arisen as a result of this interpretation. Part II of this Note surveys the history and complexities surrounding environmental crimes and the particular features that distinguish it from other disciplines of criminal law. Part III focuses on how the Crime Victims' Rights Movement unfolded and how its history influenced the development and goals of the CVRA. Part IV then turns to the text of the CVRA itself and looks to case law to examine how courts have interpreted the Act. Finally, Part V examines the numerous practical problems created by the assertion of these expansive rights and concludes that Congress should amend the CVRA to exclude victims of environmental crimes.II. Environmental CrimesA. History of Environmental Criminal Prosecution in the United StatesWhen Congress enacted major environmental statutes in the 1970s, such as the Clean Air Act (CAA), Clean Water Act (CWA), and Toxic Substances Control Act (TSCA), Congress sought to achieve its pollutionreducing goals primarily through the use of civil law penalties.12 This changed in 1982 with the establishment of the Department of Justice's (DOJ) Environmental Crimes Unit, which focused exclusively on the prosecution of environmental criminals who violated the environmental criminal programs established by Congress. …