法学专业外文翻译--环境犯罪的分级惩罚模型构想(编辑修改稿)

法学专业外文翻译--环境犯罪的分级惩罚模型构想(编辑修改稿)内容摘要：

are working toward a graduated punishment approach to environmental 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 prove 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 However, Concrete Harm statutes run into conceptual and proof 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 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 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 crime—these results are not even mentioned. And yet, these statutes are part of environmental protection 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 environme nt must of necessity also be threatened. There are drawbacks to this surrogate approach. One obvious problem is that environmental damage might occur far from populated areas and thus remain outside the 4 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 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 shortterm danger that occurs, say, in a Bhopaltype situation 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 limits 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 shortterm consequences for the flora and fauna in the ecosystem. If we are to use the criminal sanction to address this situation through 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 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 what’s more? And how can a legislature define what may be ineffable 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.” Still 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 concrete. 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 ponents。 makes excavations or heaps, creates, alters 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 definition less useful than it might have been. Openended 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 negativ。