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The criminalization of environmental harm: a
study of the most serious environmental offenses
prosecuted by the U.S. federal government,
Erik W. Johnson, Jennifer Schwartz & Alana R. Inlow
To cite this article: Erik W. Johnson, Jennifer Schwartz & Alana R. Inlow (2020) The
criminalization of environmental harm: a study of the most serious environmental offenses
prosecuted by the U.S. federal government, 1985-2010, Environmental Sociology, 6:3, 307-321,
To link to this article: https://doi.org/10.1080/23251042.2020.1748269
Published online: 14 Apr 2020.
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The criminalization of environmental harm: a study of the most serious
environmental offenses prosecuted by the U.S. federal government, 1985-
Erik W. Johnson, Jennifer Schwartz and Alana R. Inlow
Department of Sociology, Washington State University, Pullman, WA, USA
Over the past four decades, criminal, as opposed to civil or administrative, prosecutions have
assumed an increasingly visible role in US environmental law enforcement. There is little
understanding about the types of acts and defendants criminally prosecuted for pollution
offenses in the United States or the sanctions received. In this paper, a unique dataset on
virtually all federal criminal prosecutions of pollution-related offenses between 1985 and 2010
is used to assess aggregate trends in characteristics of pollution violations, offenders, and
sanctions. Prosecutions increase dramatically in number and diversity over time, drawing in
increasing numbers of low-level offenders. An early emphasis on hazardous waste violations is
now complemented by prosecution of a large variety of activities associated with pollution of
land, water and air, especially activities that pose direct threats to human health. Although
most serious criminal violations occur within formal-organizations, individual actors are
increasingly held criminally responsible, particularly low-level employees, with a trend away
from prosecuting top-executives and large corporations.
Received 27 August 2019
Accepted 25 March 2020
enforcement; air pollution;
water pollution; hazardous
waste; corporate crime
The regulation of environmental pollutants is an insti-
tutionalized function of nation states in the world
today (Longhofer et al. 2016; Meyer et al. 1997), with
the United States an early leader in building a national
regulatory infrastructure around pollution of air, water,
and land. This paper focuses on an important topic
within the literature on pollution regulation and enfor-
cement. Criminal prosecutions of environmental pollu-
tion laws and regulations have taken an increasingly
central role in federal enforcement efforts (Shover and
Routhe 2005; Starr and Kelly 1990), but are largely
unstudied within environmental criminology litera-
tures focused on definitional debates about what con-
stitutes criminal environmental activity (Brisman and
South 2019; Lynch and Stretsky 2003; Stretesky, Long,
and Lynch 2013; White 2013), the policing of interna-
tional wildlife trade and trafficking (Lemieux and
Clarke 2009; South and Wyatt 2011), and routine pol-
luting activity at industrial facilities for which data on
administrative and civil enforcements are readily avail-
able through sources such as the EPA maintained
ECHO website (Enforcement and Compliance History
Online) (Konisky and Schario 2010; Kremer 2016;
Lynch, Stretesky, and Burns 2004; Ringquist 1998).
Researchers have examined particularly egregious or
highly visible criminal pollution cases, such as the
Exxon Valdez and Deepwater Horizon oil spills (Gill,
Picou, and Ritchie 2010; Ruggiero and South 2013;
Spencer and Fitzgerald 2013), but we have limited
systematic understanding of what acts and actors fed-
eral enforcement agents focus on when pursuing crim-
inal violations of environmental pollution law (but see
Lynch 2017; Ozymy and Jarrell 2015; O’Hear 2004).
This article is intended as an empirical introduction
to the understudied world of criminal environmental
pollution enforcement. We first draw on criminological
literatures to elucidate the funnel of regulatory and
policing practices that result in identifying the most
serious pollution cases for criminal enforcement. We
then describe an unutilized, but publicly available,
source of raw data on criminal prosecutions that scho-
lars could draw upon to address important questions
in the criminalization of polluting behavior. We
extracted and coded case-relevant information on
1,690 cases, involving 2,288 individuals and 861 com-
panies between 1985 and 2010, a labor-intensive,
time-consuming task. This represents the largest and
most current database on serious federal offenses
against the environment. One positive feature of our
database is that we were able to collect rich details
about the statutes under which crimes were prose-
cuted, resulting punishments, the characteristics of
organizations involved, individual defendant’s com-
pany position, along with offense-specific information
about what acts were carried out and what harms were
We then draw on literatures from law and public
policy to briefly sketch the historical development of
CONTACT Erik W. Johnson [email protected]
2020, VOL. 6, NO. 3, 307–321
© 2020 Informa UK Limited, trading as Taylor & Francis Group
criminal pollution law and employ our data on federal
criminal prosecutions to illustrate change over time in
the extent and types of offenses prosecuted. Next, we
draw on criminological literatures and our data to
scope the types of offenders that are pursued by the
federal EPA, as well as the types of punishments that
are received. We conclude with a discussion of future
research directions that scholars could address with
these data, focusing on important questions about
the characteristics of cases that are selected for crim-
inal prosecution and explanations for various senten-
cing outcomes, again drawing out parallels from
broader criminological literatures.
The current research is not focused on hypothesis
testing or drawing global conclusions. Rather it lays
out the landscape of criminal pollution cases prose-
cuted and punished by the US federal government and
will serve, we hope, as a springboard for future
research into a wide variety of important and interest-
ing questions in this overlooked area of environmental
The changing definitional boundaries of
Crimes of environmental pollution, virtually unheard of
prior to the 1970s, are a common occurrence in the
United States today and pose significant threats to
human health and the natural world (Gibbs et al.
2009; Stretesky, Long, and Lynch 2013). By environ-
mental crime, we are referring to harmful or potentially
harmful acts of pollution that occur outside the rules of
federally permitted behavior. This legalistic definition
excludes a wide range of individual and corporate
behaviors that harm the environment. The focus on
pollution-based offenses also excludes the closely
allied fields of wildlife and natural resource crime,
both of which have extensive histories of their own.
Laws protecting natural resources from illegal logging
and wildcat mining, for example, are typically
anchored in long-standing property law, while wildlife
law traces back to at least the Lacey Act of 1900
(Dunlap 1988).1 When we talk about environmental
crime in this paper, we are referencing the distinctly
new area of criminal law that developed in the last half
of the 21st century and which focuses on environmen-
tal pollutants and human health effects of exposure to
Much of the federal regulatory and bureaucratic
framework for monitoring and controlling environ-
mental pollutants was established during the 1960s
and 70 s. The establishment of the EPA in 1970 com-
bined a myriad of existing federal agencies and pro-
grams within a single bureaucracy for administering
and enforcing the nation’s federal anti-pollution pol-
icy (Fiorino 1995). The EPA was initially organized
according to major media of pollution (air, water
and land) which map onto three major pieces of
legislation central to their policing efforts: the Clean
Air and Clean Water Acts (along with their various
amendments) and the Resource Conservation and
Recovery Act focused on solid wastes. Even as today’s
EPA tries to move towards a more holistic approach, it
remains organized by these three key media (Carole
and Simpson 2009).
The criminal enforcement capacity of the EPA
and basic capabilities to investigate criminal envir-
onmental acts was initially extremely limited. It was
not until the 1980s that the criminalization of envir-
onmental violations began in earnest. In 1982 the
EPA established an Office of Criminal Enforcement
to investigate and the federal Department of Justice
(DOJ) established an Environmental Crimes Unit to
prosecute environmental crimes (Adler and Lord
1991; USDOJ 2012). As per the general law and
order view of the time (Garland 2001), legislated
sanctions for violating major federal environmental
laws steadily increased. Over the course of the dec-
ade, major environmental legislation added felony
criminal sanctions to enhance deterrence efforts. Of
particular importance were the 1984 RCRA amend-
ments, the 1987 Clean Water Act amendments, and
the 1990 Clean Air Act amendments (Uhlmann
2009, 1227). The vast majority of EPA-initiated crim-
inal environmental cases are prosecuted under the
auspices of these three major pieces of legislation
The criminalization of environmental harm
A common metaphor for the US criminal justice system
is that of a funnel (Garland 2001). At the wide mouth of
the funnel are the large variety of criminal environ-
mental violations that occur, only a small fraction of
which comes to the attention of enforcement agents.
Of cases which come to the attention of authorities
and are subject to investigation, only a portion of those
is pursued for penalty by the EPA, usually through
administrative or civil routes, such that an even smaller
number of cases investigated by the EPA is referred to
the Department of Justice for criminal prosecution
(Lynch 2017; Lynch et al. 2016). The vast majority of
environmental violations go unpunished.2
Most investigations of environmental noncompli-
ance violations are dealt with administratively or civilly.
‘Administrative remedies are generally designed to
restrict (or require) certain future actions and may
also involve some compensation to the victim (which
is often the government). Although civil penalties
might be levied, they are often designed to take the
monetary gain away from offenders, and are not gen-
erally designed to punish’ (Cohen 1992, 1059). Criminal
enforcement actions go further in several ways (see
further discussion in conclusion section) and are
308 E. W. JOHNSON ET AL.
intended to communicate and demonstrate accepta-
ble bounds of behavior. The symbolic importance of
criminal prosecutions for environmental violations is
well understood, with prosecutors regularly referen-
cing this role in explaining the decision to proceed
with criminal charges (Hedman 1990; O’Hear 2004).
Prosecutors have considerable discretion in choos-
ing which environmental offenses to pursue as crim-
inal violations and those that become subject to
federal criminal sanctions represent unique outcomes
of this adjudication process. In a careful study of
exactly what differentiates criminal environmental pro-
secutions from civil and administrative cases, Uhlmann
(2009) finds that criminal environmental cases share
different combinations of four distinctive features:
intentionality, harm, chronic noncompliance, and fla-
grancy. First, intentionality is key: ‘[n]o factor is more
decisive than lying in making a criminal case out of
what might otherwise be a civil matter.’ Often, the ties
between misleading conduct and harm are clear, such
as in classic cases of midnight dumping, of which there
are a considerable number in our data, including the
case of an environmental cleanup contractor who
drove around with hidden discharge hoses to dispose
of hazardous wastes on roadways. Each of the major
pieces of environmental legislation, the Clean Air Act,
Clean Water Act, and RCRA, includes false-statement
provisions (Title 18 of the US Criminal Code).
‘Prosecutors frequently include Title 18 charges,
along with environmental charges, to highlight tradi-
tional badges of criminality. By emphasizing Title 18
charges, prosecutors emphasize the aspect of the vio-
lations that traditionally justifies criminal enforcement
(false statements, concealment, obstruction of justice,
fraud) and utilize charges that are most familiar (and
therefore acceptable) to federal district court judges.’
(1248). Criminal charges such as conspiracy also offer
procedural benefits for prosecutors and increased pun-
ishment options (Lynch 2017).
Second, significant harm to the environment or
human health is an important factor. Simply put,
when large-scale environmental disasters occur, the
federal government is more likely to pursue criminal
prosecutions. Large-scale harm is not a pre-requisite
for criminal prosecution, however, and in many cases
in our data it is difficult to discern the amount of actual
harm that resulted from actions such as document
falsification on the part of defendants or tampering
with required samples. Third, repetitive violations of
environmental laws are at heightened risk of criminal
prosecution. The EPA and other environmental enfor-
cement agencies typically apply a model of escalated
penalties to offenders. That is, they begin by trying to
work with offenders, but escalate enforcement actions
under conditions of obstinacy or chronic noncompli-
ance. Even the penalties offenders receive tend to
follow this escalated pattern: from warning letters, to
site visits, then judicial and/or civil orders. These alter-
native approaches are typically pursued before crim-
inal violations become an option under conditions of
Finally, deliberate efforts to operate entirely outside
the environmental regulatory system are also at a high
likelihood of receiving criminal prosecution, in order to
preserve the integrity of the regulatory system. One
such example are incidents relating to improper dis-
posal of hazardous waste (e.g. without a manifest or in
an unpermitted area). Indeed, work by Brickey (2001)
on the earliest years under observation (1986–1993)
suggests that most hazardous waste violations
charged by the federal government during this period
were for ‘rogue operators’ conducting unpermitted
handling, storing, transporting or disposing of hazar-
Yet, the application of criminal sanctions is flexible,
to some extent, and may increase to satisfy public
concern, in response to resources, or other subjective
elements beyond case-relevant factors (Schwartz,
Steffensmeier, and Feldmeyer 2009). It is useful to
recognize that: ‘The environmental criminal enforce-
ment system may sweep in low-culpability violators . . .
whose conduct is relatively blameless in light of such
considerations as harm, dangerousness, and intent . . .
the low-culpability violator is entirely at the mercy of
a judge[‘s] . . . discretion’ (O’Hear 2004, 137). For exam-
ple, efforts to enhance general deterrence by ‘widen-
ing the net’ of enforcement, to capture an increased
number of offenders (i.e. more at the wide mouth of
the funnel), will inevitably ensnare a higher proportion
of low-culpability offenders; this may be reflected in
more lenient case outcomes on the whole (Schwartz,
Steffensmeier, and Feldmeyer 2009).
A common conceptual framework for environmen-
tal regulatory enforcement is premised on deterrence
theory, which assumes rational actors are dissuaded
from illegal actions when punishments are perceived
to be sufficiently severe, certain, and swiftly meted out
(Simpson et al. 2014). Criminal law around environ-
mental pollution shapes opportunities for environ-
mental crime objectively, by defining unallowable
business practices, but also subjectively through con-
trol and sanctioning efforts that reduce positive per-
ceptions of certain illicit practices as viable and
profitable relative to estimated criminal justice penal-
ties, reputational consequences, and other costs versus
benefits (Benson and Simpson 2009).
In this rational actor-driven model both corpora-
tions as actors and their individual employees are less
likely to pursue nefarious behavior when the likelihood
of detection and sanctioning is higher. Individuals act-
ing within a complicit corporate culture often commit
environmental crimes for the benefit of the organiza-
tion’s bottom line, not merely for the personal enrich-
ment of the employee (Gunningham, Thornton, and
ENVIRONMENTAL SOCIOLOGY 309
Kagan 2005; Simpson and Piquero 2002). Holding indi-
vidual workers, but not the organizations or the execu-
tives which employ them, criminally culpable suggests
a willingness to pursue environmental enforcement
against ‘bad apples’ operating within organizations
rather than treating environmental offenses as the
result of systematic cultural or structural problems
within a firm or industry.
On the other hand, criminal prosecution of organiza-
tions requires additional resources on the part of EPA
and the DOJ, but it also sends a strong signal about the
potential costs to firms of willful or negligent noncom-
pliance (costs that may go significantly beyond those of
fines and restitution payments). Prosecuting organiza-
tions, rather than their employees, open the door to the
possible use of additional tools that make continued
violations less likely. Criminal convictions may subject
a firm to judicial supervision of future activities, harm
a firm’s reputation (as well as the reputations of upper
management), provide evidence that may be used for
civil and/or shareholder lawsuits, may have important
tax implications (criminal fines and restitution costs,
unlike civil fines, are not typically tax-deductible), and/
or result in the cancellation of government contracts
(Firestone 2003). Debates about whether punitive, reg-
ulatory, or blended approaches are most effective in
encouraging compliance by individuals and business
organizations more generally are long-running yet unre-
solved (Simpson 2013).
The inability of EPA to fight systematic nefarious
behavior on the part of corporate actors has been
a central tenet of the growing literature on green
criminology (Stretesky, Long, and Lynch 2013;
Simon 2000). Some argue that criminal prosecutions
of environmental pollution offenses remain too rare,
limiting the potential for deterrence (Lynch 2017;
Lynch et al. 2016). We believe that too little is
known about the extent to which criminal enforce-
ment of US federal environmental laws has grown
and the sorts of acts and actors that have been
subject to criminal sanctioning by federal agents,
including corporate versus individual actors, shifting
priorities or understanding of environmental protec-
tion, and case outcomes. Although in this study we
offer a systematic look at the types of cases defined
as criminal and prosecuted in the United States
over its history of criminal enforcement aimed to
curtail polluting activities, the extent to which the
US exemplifies approaches to environmental regula-
tion in other countries remains an open empirical
Across nation-states, the criminal enforcement of
routine pollution activities seems to be rare (White
and Heckenberg 2014, Chap. 12) and the study of how
criminal enforcement interacts with other enforcement
tools has been hampered by a lack of appropriate data
(Billiet, Earnhart, and Rousseau 2018; Shover and Routhe
2005, 327; Tosun 2012). Environmental governance has
undergone an extensive transition in recent decades,
particularly in the EU, from a focus on command and
control enforcement towards a variety of alternative
approaches emphasizing cooperation between govern-
ment regulators and industry (see Fernández, Font, and
Koutalakis 2010; Héritier 2002; Taylor et al. 2012). EU
member nations have generally proceeded further
down this path than the US, Australia and Canada,
which tend to be more inclined towards formal enforce-
ment measures for pollution offenses (e.g. Abbot 2009).
The ways in which criminal sanctioning of pollution
offenses fit into a nation’s toolbox of enforcement
actions are so variable as to defy simple comparison,
however. Civil enforcement of pollution laws plays
a central role in the US context, for example, but is not
a tool for prosecutors in Germany who thus may rely on
criminal sanctions to a much greater degree (Almer and
Goeschl 2010). In China, and even more so in develop-
ing nations, command and control approaches to envir-
onmental degradation have typically suffered from lack
of administrative capacity within environmental agen-
cies to conduct sufficient enforcement (Kostka 2016;
Zhan, Wing-Hung Lo, and Tang 2013).
To sum, there is no shortage of deliberate polluting
behaviors that can be construed and punished as
environmental crimes, but myriad factors prompt EPA
investigators to exercise selectivity in cases to pursue.
It is the intention of the current work to illuminate any
shifts in the sorts of environmental violations and enti-
ties that come to the attention of federal law enforce-
ment and are selected for prosecution. As no
systematic trend dataset existed to address such con-
cerns, we constructed one using publicly available raw
Our database derives primarily from a repository of
case summaries for all federal criminal environmental
prosecutions that result from concluded cases for-
warded to the Department of Justice by the EPA for
the years 1985 through 2010. The EPA becomes aware
of crimes through a variety of means, including on-line
reporting, when accidents occur, and whistle-blowing
(EPA 2011; Price 1985). Most commonly, however,
cases come to attention as a result of routine facility
inspections and scrutiny of self-reports. The vast major-
ity of pursued cases are dealt with administratively
within the EPA, but a small number of cases initiated
by EPA agents is diverted to criminal prosecution. The
criminally indicted ought to represent the most serious
environmental crimes or cases of gross misconduct.
Case summaries were downloaded in April 2015,
allowing a 5-year lag to ensure near-complete release
of yearly caseloads.3 Our databases include informa-
tion on 1,690 court cases involving 2,288 individual
310 E. W. JOHNSON ET AL.
and 861 organizational defendants. The case summa-
ries include names of indicted individuals and/or orga-
nizations, a brief description of the criminal events, and
information on case resolution for all those involved.
This information was subsequently hand-coded by the
authors and a team of undergraduate research assis-
tants, a time-consuming, multi-year process that
adopted a ‘hierarchy of hassles’ approach that uses
front-line coders to enter manifest information and
expert coders to focus on more problematic (less reli-
able) elements of the coding scheme (Baumgartner,
Jones, and MacLeod 1998). The approach is designed
to maximize resulting data quality and reliability.
The PIs examined a randomly selected subset of
cases to develop a coding scheme while relying on
a team of undergraduate research assistants (RAs) to
conduct coding. After an initial training period, RAs
entered data into Microsoft Access forms designed to
increase the ease of coding while minimizing imputa-
tion errors. All cases were double coded, assigned
according to a revolving set of paired matches so that
no two coders were consistently coding the same sets of
cases. With one notable exception, discussed below,
simple matching tests of reliability remained over 95%
and Cohen’s Kappa above.8 for all data elements. At
weekly project meetings, all coding discrepancies were
reviewed, discussed and resolved with the assistance of
the first and second authors (an environmental sociolo-
gist and criminologist, respectively). After several weeks,
the graduate RA (and third author) would indepen-
dently resolve discrepancies.
We assembled data into two linked datasets, one on
defendants and one organized according to case char-
acteristics. At the level of individual defendants, we
included both individuals and, when indicted, organiza-
tions. For individual defendants, we used case summa-
ries to code information on an individual’s position
based on the level of authority within an organization:
(1) Senior executive (business owner, CEO, president,
director or managing director), (2) manager or adminis-
trator, (3) employee (4) unrelated to business, or (5)
unknown. A set of variables representing the actual
indictment(s) against the defendant(s), and number of
charges per indictment were coded based upon the
United States Codes (USC) cited in the case summaries.
Finally, information on sentencing outcomes for all
defendants was also recorded into multiple variables:
the number of months the defendant was sentenced to
prison and/or probation (if any), the monetary amount
that each defendant was charged to pay in fees, fines,
restitution/remediation, and/or donations (if any), and/
or the number or hours the defendant was sentenced to
community service (if any).
At the case level, we aggregated individual-level
measures and coded a unique set of information from
the textual descriptions of offending activity. The name
of the company within which polluting activity took
place was recorded, even if that entity was not
a defendant. This ‘organizational context’ was classified
as being a (1) large corporation, (2) small to medium-
sized business, or (3) government entity (including mili-
tary) or non-profit organization. The determination of
which organizations was large, for-profit entities were
based upon whether it was listed at least once within
three years prior to case-initiation in Dun & Bradstreet’s
Million Dollar Directory, a directory published annually
since 1959 of public and private businesses with an
indicated worth of 1,000,000 USD or more.
At the top of our hierarchy of hassles was coding
a categorical measure to indicate the primary environ-
mental crime for which a case was prosecuted. During
the coding process, it quickly became apparent that
undergraduate RAs were not able to reliably code this
measure. To overcome this problem RAs wrote brief,
single sentence, descriptions summarizing the criminal
activity which led to prosecution. Subsequently, the PIs
independently coded each case according to crime
type as defined in the codebook, then met to resolve
all discrepancies, sometimes referring to the original
case material to resolve unclear instances. Our mea-
sure of the primary environmental offense committed
(crime type) includes eleven discreet categories: (1)
discharge of organic waste (including animal wastes,
discharge of fat/grease, untreated runoff or sewage
from waste water treatment plants); (2) discharge of
heavy metals, chemicals or other manufacturing waste;
(3) discharge from boats/vessels; (4) improper hazar-
dous waste transport/disposal/storage; (5) improper
asbestos removal; (6) selling unregistered pesticides
or using them illegally; (7) illegal dredging or filling of
waterways and wetlands; (8) violations of international
trade and import laws; (9) falsifying tests performed by
an environmental services firm; (10) falsification of
records at a polluting company itself; and (11)
a miscellaneous category including other actions like
venting refrigerant or pollution resulting from operat-
ing a methamphetamine laboratory. We now turn to
our analysis of the changing mix of environmental
crimes and entities that were the focus of EPA criminal
prosecutions for crimes against the environment.
The increased frequency of criminal prosecutions for
pollution offenses is shown graphically in Figure 1
which displays the number of cases successfully
referred for prosecution by the EPA since the inception
of its crime-fighting unit through 2010.4 Despite some-
times extreme year over year fluctuations, the overall
trend is linear and upward, increasing, on average, by
eight cases per year; by the 2000s, the EPA was typi-
cally referring for prosecution more than 100 cases
ENVIRONMENTAL SOCIOLOGY 311
per year. This signals the growing importance of crim-
inal prosecutions in federal enforcement of environ-
We next examine shifts over time in the types of
offenses forwarded by the EPA for criminal prosecu-
tion. To make these over-time trends more apparent,
we smooth yearly variations by employing 5-year roll-
ing averages in all subsequent figures.
Many environmental criminal cases are complex,
and criminal charges may span statutes (e.g. prosecu-
tion may include charges for both the pollution of
waterways and the illegal discharge of hazardous
waste) (see also O’Hear 2004). Figure 2, Panel A, dis-
plays information on the primary environmental viola-
tion prosecuted for each case, where primary violation
is determined by the number of counts assessed under
legal statutes pertaining especially to the Clean Air and
Clean Water Acts as well as the Resource Conservation
and Recovery Act. Notably, sometimes EPA violations
were not charged under environmental statutes at all,
but instead, criminal conspiracy, fraud or other Title 18
statutes were used to bring criminal charges, which we
label as white-collar offenses.
Violations of hazardous waste transport, disposal,
and storage (RCRA laws) occupied a central role in
criminal prosecutions early in the period. This is likely
tied, at least in part, to the high participation of orga-
nized crime in the waste industry early in the observa-
tion period (Szasz 1986). The share of prosecutions that
consisted primarily of RCRA (hazardous waste) charges
declines from around 45% of prosecuted cases in the
early 1990s to less than 15% by the end of the observa-
tion period. The greatest area of increase is in the
proportion of cases primarily charged under violations
of the Clean Air Act, from 5% to 8% early in the obser-
vation period to more than 15% by 2000 and one-fifth
of all cases in 2007–8. Violations of the Clean Water Act
experienced modest increases, from nearly a third of
prosecuted cases early in the observation period to
more than 40% of cases in the 2000s. Emphasizing
fraud and conspiracy in criminal enterprise more gen-
erally, prosecutions under Title 18 federal criminal sta-
tutes vacillated from 15% early on to 5% over the late
1990s, then rebounded to 20% of cases since the mid-
2000s. Finally, 5% to 10% of cases each year is primarily
charged under other statutes outside major environ-
mental legislation or federal criminal code.
Figure 2, Panel B, examines the more descriptive
‘offense conduct’ code we created through the use of
qualitative information contained in the case summary
files to assess the predominant behavior that was pro-
secuted. For a given case, this may be different than
the ‘primary violation’ measure, which simply adds
counts of charges by statute. Aggregate trends are
both reinforced and specified.
There is a large decrease in the proportion of cases
focused on hazardous waste offenses over time, primar-
ily due to the large increase in overall number of federal
prosecutions and the pursuit of more diverse offending
conduct. Although the absolute number of criminal
hazardous waste cases grew from about 13 to 20 over
the time period, federal attention to other offense types
grew even more. Qualitative coding of cases highlights
how a large portion of growth in prosecuting violations
of the Clean Air Act, shown in the previous panel, is
attributable to increased prosecutions for illegal/impro-
per asbestos removal. Asbestos, a well-known carcino-
gen, is a highly salient worker and public health issue.
Convictions in our database for hiring workers for the
removal and disposal of asbestos without proper train-
ing or protection and false tests and inspections for
asbestos grow consistently across the observation
Count of Cases Per Year
Figure 1. EPA Prosecutions of Environmental Crime Cases, 1983–2010.
312 E. W. JOHNSON ET AL.
period, from less than 5% of cases in 1989 to 18% of
prosecuted cases in 2008 (i.e. from few cases to
15–20 per year).
Increases in Clean Water Act violations look tied to
cases focused on the release of organic pollutants, often
into drinking water. The percentage grows from 5% in
the late 1980s to between 11% and 18% of all cases in the
2000s. These cases primarily include the discharge of
untreated human or animal waste into local waters (e.g.
raw sewage, fish parts, cow or chicken manure) and
actions taken by businesses and treatment facilities, to
bypass effluent controls, dumping untreated wastewater
containing high pH levels, fertilizers, fat or other organic
waste into waterways. Falsification of environmental
compliance records (charged in 5–13% of cases) very
often also involved behavior linked to testing water sam-
ples and tracking water quality. For example, employees
falsified log books or wastewater discharge monitoring
reports, manipulated samples to pass drinking water
tests, and diluted effluent samples or falsified bacteria
counts in water samples to comply with permit
Our data thus far demonstrate a strong linear
increase in the number of environmental prosecutions,
n = 1420; Note: Only state charges were filed in 239 cases; incomplete charge data excluded 31 cases.
Panel A: Primary Violation Charged in Environmental Crime Cases
Clean Air Act Clean Water Act
Resource Conservation and Recovery Act Other
White Collar Only (no env vio)
n = 1690; Note: Only the five most common categories are displayed
Panel B: Environmental Offense Conduct
Improper hazerdous waste transport/disposal/storage
Discharge of heavy metals, chemicals, or other manufacturing waste
Discharge of Organic Waste and Pollutants
Improper asbestos removal
Falsifying Compliance Records
Figure 2. Primary Environmental Violation Charged (Panel A) and Environmental Offense Conduct (Panel B), Percent of yearly total,
1985–2010 (5-yr moving averages).
ENVIRONMENTAL SOCIOLOGY 313
as well as an increased diversity in cases pursued.
Cases pertaining to human health risks, such as worker
exposure to asbestos and threats to community drink-
ing water, contribute to the diversification from the
early focus on hazardous waste pollution. Next, we
offer greater contextual details about the organiza-
tional and individual actors involved and the punish-
ments that result.
One of the interesting things about environmental
crimes is that they are very often committed by groups
of individuals operating within a bureaucratic-
organizational context. In this way, environmental
crimes may be white collar crimes of the ‘suites,’
instead of the street (Sutherland 1945; see review in
Simpson 2013). One implication of this perspective is
that, because these incidents may occur systematically
across organizations, they are often more consequen-
tial than individual actions. There is also some evi-
dence that larger and structurally more complex
organizations may be more likely to pollute and com-
mit environmental violations (e.g. Grant, Bergesen, and
Jones 2002; Prechel and Zheng 2012) and even to
participate in criminal environmental behavior
(Shover and Routhe 2005, 11). Despite the importance
of large industrial actors in producing pollutants, reg-
ulatory procedures and processes often disproportio-
nately affect smaller operators (Yeager 1987).
There are many reasons that large firms, and those
operating within large firms, may be less likely to be
prosecuted criminally for environmental offenses.
Larger corporations with access to greater resource
pools are more capable of adhering to environmental
regulations and of opting in to voluntary self-policing
programs that circumvent criminal prosecution for
environmental violations under specified conditions
(Stretesky 2006; Stretesky and Gabriel 2005). Staffing
specialized sustainability officer positions that can
focus on compliance and provide internal enforcement
reduces the chances of criminal prosecution. Thus,
there are likely very different ways in which established
firms and owner-operated enterprises interact with
authorities. As well, larger corporations often employ
extensive legal units that assist the firm in avoiding
prosecution in favor of less damaging outcomes. When
violations are discovered, larger firms also allow for
a diffusion of responsibility. When a small owner-
operator firm violates criminal environmental stan-
dards, there is relatively little doubt about the culpable
parties involved compared to a sprawling multi-
national conglomerate with layers of diffuse responsi-
bility and authority.
Figure 3, Panel A shows that the percentage of
prosecuted cases that occurred within different orga-
nizational contexts. The percentage of cases occurring
within very large for-profit firms declined from 15–20%
in the early 1990s to 10% in the late 1990s and beyond.
Prosecutions of individuals acting outside organiza-
tional contexts increase steadily and include cases
like operators of methamphetamine labs (see Cohen,
Sanyal, and Reed 2007 for more on this resource
crime); landowners who in-fill wetlands or allowed
the storage or disposal of hazardous waste on their
property without permits; farmers, ranchers, or land-
owners who use restricted pesticides, often killing
migratory birds and other wildlife or, on rare occasion,
humans; and a man who disposed of large amounts of
paint in a residential dumpster. Throughout the obser-
vation period, the bulk of prosecutions (57% overall)
occurred within small to mid-sized for-profit firms.
Figure 3, Panel B examines the types of offenders
subject to prosecution. Organizations in these figures
include only that subset indicted as defendants. The
increase in cases where only individuals are held crim-
inally liable is substantial, from roughly 40% in the
early 1990s to nearly 60% by the end of the observa-
tion period. This is offset by a declining percentage of
cases in which small to mid-sized and, especially, very
large corporate entities are criminally prosecuted. In
the early and mid-1990s, between 15 and 18% of
prosecuted cases included very large for-profit organi-
zations as criminally charged defendants. After the
mid-1990s, very large for-profits were held criminally
liable in only 7–9% of cases. The EPA’s focus has shifted
toward holding individuals within firms, rather than
firms themselves, criminally culpable.
Panel C of Figure 3 shows for criminal prosecutions
that occurred within an organizational context, the
highest-ranking official held criminally responsible:
senior-level executive, manager, or employee. The
express enforcement tactics and priorities of the EPA
Criminal Investigations Division have, over time, increas-
ingly favored holding individual actors criminally
responsible for environmental violations within pollut-
ing organizations. This approach is part of a broader
effort of deterrence designed to prevent reoffending by
the same company-officials and corporations and to
send a strong signal to others about the potential
costs of violating environmental law. As explained by
former EPA Assistant Administrator for enforcement,
James Strock, testifying in support of the Pollution
Prosecution Act of 1990, ‘While both corporations and
individuals pay penalties, only individuals can go to
prison – a sanction that no one can pass along to the
American consumer as just another cost of doing busi-
ness.’ The EPA’s criminal Enforcement Program has con-
tinued to message that it ‘emphasizes prosecution of
individual defendants as high up the corporate hierarchy
as the evidence permits. The reason for this focus on
individual liability is simple: corporate managers will
think twice about deliberately breaking the law if they
understand that they face incarceration and personal
314 E. W. JOHNSON ET AL.
Percent of cases
sesac f ot necr e P
Percent of cases
ENVIRONMENTAL SOCIOLOGY 315
criminal fines for criminal conduct, rather than conse-
quences that will be borne solely by the company’. For
that reason, we would expect an increase over time in
the prosecution of senior executives.
Instead, senior executives were held criminally liable
in 64–76% of cases through the early 2000s, but after
a precipitous decline starting in the mid-2000s, only
53% of prosecuted cases included a senior executive
as a listed defendant by 2010. In contrast, there is
a large increase over time in the percentage of cases
where regular employees are the highest-ranking offi-
cial prosecuted, increasing from 9% of cases in the late
1980s to 19% of cases at the end of the observation
period in 2010.
Our data cannot assess whether the EPA has pur-
posely targeted lower-level offenses that tend to be
less resource-intensive to investigate and prosecute
versus whether large corporations actually are com-
mitting fewer offenses, better able to navigate com-
plex environmental regulations, or just better able
to avoid serious penalties for such violations.
However, the Criminal Investigation Division of the
Criminal Enforcement Program at EPA grew from 45
agents in the late 1980s to 200 in 1997, after which
numbers were relatively stable across the observa-
tion period, 9–11). However, some of the most rapid
growth in number of cases being prosecuted on
a yearly basis occurs after 1997. The declining
share of cases involving large firms and high-level
executives might result from other sorts of con-
strained resources or reflect the need to establish
socio-legitimacy by producing ever higher numbers
of convictions as a measure of success. Given the
sometimes large time-lag between the initiation of
an investigation and conclusion of criminal proceed-
ings (and thus the time when a case enters our data),
the decline in criminal prosecutions of senior-level
officials occurs under the Presidency of George
W. Bush, a noted opponent of environmental enfor-
cement efforts at the EPA. It may be that, even if the
incidence of criminal prosecutions does not vary
significantly across Presidential administrations (see
Ozymy and Jarrell 2015), political administrations
influence the content of criminal prosecutions in
Figure 4, panel A shows the percent of cases where at
least one defendant was sentenced to (a) incarcera-
tion, (b) probation, (c) a fine, (d) restitution/remedia-
tion, (e) or community service; these represent the
most common sentences invoked. Categories are not
mutually exclusive; all but 39 cases have at least one
outcome recorded. The penalties imposed on con-
victed defendants, especially in terms of prison time,
are widely believed to have increased following
implementation of revised federal sentencing guide-
lines in 1987 (Starr and Kelly 1990) and 1991 (Shover
and Routhe 2005, 18). We find the prevalence of penal-
ties, including incarceration, probation, and/or finan-
cial restitution initially rose over the late 1990s to early
2000s, but those trends have flattened or started to
reverse, signaling a less punitive stance and/or
a declining focus on serious cases that would merit
incarceration and financial penalty.5 There are marked
declines in the prevalence of community service.
Criminal fines were a common outcome for cases
across the time period.
The overall pattern of growth and then decline in
use of incarceration and the steady use of fines held
across all environmental statutes (not shown).6 Panel
B shows case outcomes (incarceration, fines) by envir-
onmental statute. Less than half of white-collar, Clean
Air, and hazardous waste (RCRA) cases resulted in
a sentence of incarceration, but this was significantly
more than the share of Clean Water Act cases in which
anyone was incarcerated. However, CWA cases were
highly likely to receive a monetary fine, more so than
hazardous waste, white collar, or CAA cases.
Finally, for cases with sentences of fines and/or
incarceration, we probed for any changes in severity
of fine amount or length of sentence to provide
greater context and to assess declining seriousness of
cases and/or punitiveness of sanctions. Cumulative
fines and sentence length for environmental cases
are incredibly varied, reflecting seriousness (e.g. cer-
tainty/severity of threat of harm), culpability, mitigat-
ing circumstances, judicial application of or departure
from sentencing guidelines based on environmental
statute charged, and other factors relevant to adjudi-
cation. We present median values to avoid undue
influence of outliers common in federal environmental
cases (see also Lynch 2017). The sentencing data pro-
vide evidence of net-widening enforcement practices,
whereby the overall increase in number of environ-
mental cases comes largely from an influx of less ser-
ious offenses indicated by an increased share of cases
with more lenient sentences and lesser fines.
The typical incarceration sentence became consid-
erably shorter over time – as seen in panel C, the
median of nearly 3 years per case was reduced to little
more than 1 year of incarceration, on average, by the
end of the time period. Declining sentence length was
due to increases in short sentences of 1 year or less
(comprising 21% of incarceration-cases in 1985–1994
versus 35–39% since 1994, results now shown). By
contrast, longer duration prison sentences, greater
than 5 years, became decreasingly common, compris-
ing one-fifth of case-outcomes in 1985–1994, but just
over one-tenth of sentences thereafter.7
Similarly, fine amounts decreased markedly over the
25-year period to about one-third of what they once
were. Adjusted for inflation and represented in 2010
316 E. W. JOHNSON ET AL.
Percent of cases
Percent of Cases
Number of Months
ENVIRONMENTAL SOCIOLOGY 317
dollars, the typical (median) fine was 65,000 USD per
case between 1985 and 1995, 32,000 USD in the late-
1990s, and even lower in the 2000s, under 25,000 USD
(not shown). Categorizing case fine totals in the thou-
sands, tens of thousands, hundreds of thousands, or
millions of dollars, the share of cases with assessed
fines totaling less than 10,000 USD increased from
about one-fifth to 40% of all cases (Figure 4, panel D).
Meanwhile, the share of cases with much larger fines,
in the hundreds of thousands of dollars, decreased
from one-third to less than one-fifth. The ‘biggest’
(outlier) cases, with fines in the millions, comprised
a steady share of little more than 10%, although
doubled in absolute number over time (from ~3 to
In this paper, we discussed how the environmental
crime cases that constitute our dataset are the result
of a legalistic and subjective funneling process similar
to that which occurs in the prosecution of street crimes
or other types of white-collar offenses. We are limited
in analyzing only the narrow end of this funnel. While
we are able to draw on previous literatures describing
types of activities that are more likely to result in cases
proceeding to criminal trial (i.e. serious harm, operat-
ing outside the regulatory system, intentionally lying
to regulators, repetitive and intentional violations), we
are unable (nor was it our intent) to systematically
examine these characteristics of criminal behavior
and the (changing) characteristics of both offenders
and authorities that are associated with advancement
through different stages of the funneling process, from
inspection/investigation to prosecution and judgment
(e.g. Kluin 2014).
In particular, we are unable to assess the relative
seriousness of offenses that are committed, a crucial
element in explaining what gets prosecuted criminally
and how severely offenders are sentenced. Many prose-
cutions result from violations that have high potential
for harm but do not actually result in such (e.g. barrels of
waste that are stored and/or transported illegally but do
not leak). Diversity in our data, and often a lack of detail
on actual or threatened harm that may have occurred as
a result of defendant actions, make such an assessment
beyond our capability. Another limitation is our inability
to adjudicate the relative culpability of defendants
when multiple individuals and/or firms are convicted.
This is a common dilemma for those interested in under-
standing punishment patterns for environmental crimes
(see also Lynch 2017; Kremer 2016).
Our research raises several questions deserving
further study. Prominently, how do we explain the
changing mix of crime types, and characteristics of
defendants, that are prosecuted? For example, the
increased frequency of prosecutions for violations
under the Clean Air Act tied to improper asbestos
removal and disposal is noteworthy. While we are
unable to examine the cause of this prosecutorial
trend, it suggests some interesting research questions.
Does the prosecution of asbestos-related offenses
reflect an increasing willingness on the part of the US
EPA to apply environmental law in pursuit of worker
safety generally? Is it driven by EPA mandates to focus
on environmental inequalities or the efforts of envir-
onmental justice advocates pressuring EPA to attend
to health threats to workers and communities of color
(see Harrison 2019 for more on the mixed success of
such efforts)?8 A large portion of the asbestos-related
cases in our data represents cases of insufficient pro-
tection and/or training for asbestos removal tasks
being carried out by unskilled laborers and/or undo-
In terms of defendant characteristics, a better under-
standing of the reasons for the downward trend in
holding large corporate entities criminally responsible
seems important. The shift toward self-policing in the
mid-1990s, where corporations agreed to self-audit for
environmental compliance and to promptly report and
correct any discovered violations in exchange for
reduced penalties and avoidance of criminal (and civil)
prosecution, seems relevant. Larger and publicly owned
companies are more likely to participate in such volun-
tary environmental audit programs, which also has the
effect of reducing inspections in those facilities and,
perhaps, gaining favor with regulators (Stretesky 2006).
Thus, it is plausible that because of the audit program,
larger, for-profit firms were more likely to be diverted
from criminal to other administrative or civil enforce-
ment routes, either due to greater compliance or
enhanced ability to circumvent prosecution. However,
whereas the decline in prosecution of large, for-profit
firms coincides with adoption of self-regulation in the
mid-1990s, the decline over the 2000s in prosecutions
holding high-level executives directly accountable does
not. Similarly, the increased leniency with which envir-
onmental cases were being disposed as of the early
2000s also recommends entertaining alternate explana-
tions. The effect of these trends for deterrence (more
general deterrence, less severe sanctions) is also worth
exploring. Relatedly, future research ought to continue
to explore both why the EPA has increasingly targeted
individual employees for criminal prosecution rather
than the corporations in which they are embedded as
well as the utility of such an approach for deterring
Criminal prosecutions are an important, but understu-
died, component of US federal pollution enforcement
efforts. This paper systematically examines changing
trends in criminal environmental prosecutions over
318 E. W. JOHNSON ET AL.
time. These cases are, we argue, reflective of what the
EPA defines as the most serious acts deserving of
punishment. Our unique database of all federal envir-
onmental offenses and defendants over a 25-year per-
iod includes significant incidents, such as the Exxon
Valdez oil spill (1989), Rockwell International’s toxic
waste dumping into drinking water and other environ-
mental violations while managing the government-
owned nuclear weapons plant Rocky Flats (1990s),
and the BP Texas City refinery explosion that killed 15
workers (2005). Our data also include many more mun-
dane pollution cases.
We show that, in the United States, environmental
crime prosecutions increase in frequency over time, that
there is continual growth in the diversity of activities
which are prosecuted under environmental criminal
statutes, and that minor violators are increasingly
caught in the federal enforcement net. Large firms and
senior executives represent a declining share of criminal
defendants whereas low-level employees, and indivi-
duals operating outside an organizational context, are
increasingly charged as defendants. These trends sug-
gest net-widening federal enforcement practices that
may be capturing lower-culpability offenders and
offenses. Sanctioning trends provide further evidence
of net-widening enforcement practices (Schwartz,
Steffensmeier, and Feldmeyer 2009). Although the use
of fines remains prevalent, incarceration became less
common as a case outcome after the early 2000s and
sanctions became more lenient over time (fine severity,
1. Most wildlife and natural resource law violations are
generated from within the federal Department of
2. A 2009 New York Times investigation, for instance,
identified more than 506,000 violations of the Clean
Water Act over the prior 5 years, involving more
than 23,000 companies and other facilities. Roughly
60% of polluters was deemed in ‘significant non-
compliance’ and thus represented serious and/or
repeated violations, but less than 3% of these pol-
luters was subject to fines or other punishment
3. When piloting data collection we noted that recent
years were subject to frequent updates and changes,
including the addition of new cases.
4. We drop years 1983 and 1984 in subsequent analyses
due to the exceptionally low number of cases that
produced unstable estimates for the first several time
5. Notably though, from the early to late 1990s, sen-
tences of incarceration doubled for Clean Air viola-
tions (e.g. asbestos-related cases), from one-quarter
to one-half of CAA cases (not shown).
6. An exception, the Clean Air Act saw reductions over
time in the use of fines.
7. Incarceration length did not vary much by offense-
statute. Exceptions, cases charged primarily under
the Clean Water Act had a disproportionate share of
short sentences, a year or less in duration, whereas
hazardous waste (RCRA) and white-collar cases were
overrepresented among the longest incarceration sen-
tences (about one-fifth of RCRA & WCC sentences
exceeded 5 years in length, compared to under 10%
for CAA and CWA). For fines, exceptions are somewhat
converse – the CWA had the largest share of cases with
high fines in the millions, whereas white collar cases
had a disproportionate share with low fine amounts.
8. In 1994, Executive Order 12898 directed federal agen-
cies to attend to issues of environmental justice. The
White House Council on Environmental Quality fol-
lowed up in 1997 with six guiding principles of envir-
onmental justice. Today, the EPAs Office of
Environmental Justice (OEJ) works to integrate envir-
onmental justice across all EPA efforts. In short, envir-
onmental justice issues have become increasingly
salient across EPA operations since the mid-1990s.
Thank you to Petr Gaburak, Christina Hubbard, Lauren
LaBrosse, Lilas Mikinawe, Ashley Moncrieff, Megan Myers,
Melanie Page, Katrina Reid, and Julia Stong who helped
assemble data used herein.
No potential conflict of interest was reported by the authors.
Funding for this research comes from a Washington State
University College of Liberal Arts Meyer Development Grant
as well as the generosity of Gregory Hooks who held the
Boeing Distinguished Professorship in Environmental
Sociology at Washington State University from 2008–2011,
and whose seed funding initiated this project.
Notes on contributors
Erik W. Johnson is an associate professor of sociology at the
Washington State University. His research focuses on the
emergence, development and institutional outcomes of
environmental movements. Collaborative research projects
examine change over time in public environmental concern
and the developing field of environmental crime. Johnson’s
research has appeared in journals such as Social Forces,
Environmental Sociology, Mobilization, Environment and
Behavior, Nonprofit and Voluntary Sector Quarterly, and
Jennifer Schwartz is a Professor of Sociology at Washington
State University. Her research, which aims to identify and
explain patterns and trends in crime and punishment, is
published in journals like American Sociological Review,
Criminology, and Addictive Behaviors and supported by
National Institutes of Health, National Institute of Justice, and
others. In her work, Schwartz develops unique datasets to
study social factors underlying violence, substance abuse,
and white-collar/environmental crime.
Alana R. Inlow is a PhD candidate at Washington State
University. Their research and teaching interests include
ENVIRONMENTAL SOCIOLOGY 319
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Simpson, S. S., and N. L. Piquero. 2002. “. Low Self-control,
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Simpson, S. S., M. Rorie, M. Alper, and N. Schell-Busey. 2014.
“Corporate Crime Deterrence: A Systematic Review.”
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Spencer, D. C., and A. Fitzgerald. 2013. “Three Ecologies,
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Starr, J. W., and T. J. Kelly Jr. 1990. “Environmental Crimes and
the Sentencing Guidelines: The Time Has Come . . . and It Is
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Stretesky, P. B. 2006. “Corporate Self-Policing and the
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Stretesky, P. B., and J. Gabriel. 2005. “Self-policing and the
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ENVIRONMENTAL SOCIOLOGY 321
The changing definitional boundaries of environmental crime
The criminalization of environmental harm
Notes on contributors
1Truck Driver Misclassification: Climate, Labor, and Environmental Justice Impacts | Sam Appel and Carol Zabin
The next great challenge for California climate policy lies in the transportation sector. Vehicles
account for fully 40% of all greenhouse gas emissions in California, the most of any economic
sector in our state, and consistent and significant reductions in vehicle emissions remain elusive.
In the transportation sector, commercial trucking is a critical focus area for climate policy. Heavy-
duty vehicles emit a fifth of all transportation-related greenhouse gases. They also produce toxic
air pollutants that significantly increase risk of cancer and other severe health challenges for
California residents, particularly in low-income communities of color.
To meet these challenges, California has passed and continues to develop new policies designed
to accelerate the adoption of low- and zero-emissions vehicles in the commercial trucking
subsector. These policies set increasingly stringent emissions standards for commercial trucks
over time and provide incentives to buy down the cost of new vehicles and retrofits in advance of
This report analyzes a major barrier to successful implementation of new clean truck standards:
the common trucking industry practice of classifying (and often misclassifying) truck drivers as
independent contractors rather than employees.
Contracting out truck driving shifts the costs of truck ownership and operation from trucking
companies to individual truck drivers. Contract truck drivers, particularly misclassified contractors,
earn low incomes and face high capital costs. While regulatory compliance costs for large
trucking firms represent a small percent of total revenue, contract truck drivers face compliance
expenses far in excess of their yearly income. Under the contractor business model, truck drivers
least equipped financially to buy and maintain clean vehicles bear the financial burden of
attaining the state’s climate goals in this sector.
This report describes the fundamental misalignment of the contractor business model in trucking
with California’s climate goals. The report proceeds by discussing:
• California’s policies to reduce heavy-duty truck emissions.
• The environmental, public health, and environmental justice impacts of non-
compliance with emissions standards.
• The nature of the contractor business model, evidence of the widespread
misclassification of independent contractors, and the consequent low incomes of truck
• The direct link between low road industry practices and the failure to meet emissions
• Policy principles that can address the climate, economic justice, and environmental
justice challenges in the commercial trucking industry.
2Truck Driver Misclassification: Climate, Labor, and Environmental Justice Impacts | Sam Appel and Carol Zabin
Currently, the low road labor practice of misclassifying workers in the trucking industry
undermines climate action by shifting the costs of emission reductions to the most economically
vulnerable actors in the industry: contract truck drivers. Because drivers are unequipped to meet
emissions standards, communities impacted by truck pollution continue to suffer the effects.
With the correct policy levers in place, California policymakers have an opportunity to support a
trucking industry that complies with climate policy and that upholds employment and labor laws
for California workers.
This report documents the direct relationship between truck driver misclassification and climate
and clean air impacts. It also presents win-win policies to protect California’s climate, workers, and
pollution-burdened communities. This report makes the following key findings:
• Low road labor practices are widespread in trucking, particularly in the contractor
industry segment. Since trucking deregulation in the 1980s, a destructively competitive
market environment has forced companies to cut costs, including by reducing
compensation to truck drivers.
• High prevalence of truck driver misclassification is found in local freight trucking, local
pickup and delivery, and the long-haul trucking segments of the California trucking
• Drivers that meet the legal standard to be classified as employees but are misclassified
as independent contractors earn very low wages and must finance expensive vehicles
with high interest loans to comply with clean vehicle rules.
• As a result of the capital barriers contractors face, this segment of the trucking industry
has the lowest compliance rates with California’s current clean vehicle regulations, with
compliance rates of 61% with the landmark Truck and Bus Rule, compared to 83% for
large firms that directly employ truck drivers. Non-compliant trucks in the contractor
segment represent 44% of all non-compliant trucks, a significantly greater share than
their share of all operating trucks.
Contract trucking and misclassification impede compliance with California’s climate and clean air
goals. These low road labor practices drive up toxic pollution emissions, which disproportionately
affect health outcomes of low-income communities of color. Without further action, contracting
and misclassification will hinder the critical and imminent transition to zero-emissions trucks.
This report highlights the opportunity for California to build the high road to an equitable low-
carbon transition in the truck transportation sector.
3Truck Driver Misclassification: Climate, Labor, and Environmental Justice Impacts | Sam Appel and Carol Zabin
Statewide Clean Truck Policies: Progress and Impacts to Date
California heavy-duty on-road truck emissions are regulated by the Air Resources Board (CARB).
CARB classifies heavy-duty trucks as those with a gross vehicle weight rating (GVWR) of 14,000
pounds or more.2 CARB regulates emissions through a variety of regulatory mechanisms,
including requirements on vehicle operations, such as limits on the amount of time vehicles can
spend idling; and engine emission standards on fleets, or classes of vehicles, managed and in use
by operators, such as particulate matter (PM) emission requirements on commercial trucks.3
CARB’s fleet requirements are the most important of the policies affecting the heavy-duty sector,
as these drive the greatest reductions in air pollution.4 These policies will also be essential to
transitioning commercial vehicles to zero greenhouse gas emissions technology over the coming
years, as regulations move from sales and manufacturer requirements to fleet requirements. Fleet
requirements mandate specific emissions control measures from vehicle operators and are often
customized for industry segments. Rules include the Drayage Truck Regulation for port trucks, the
Innovative Clean Transit Rule for transit buses, and the Truck and Bus Regulation. All require the
periodic purchase or retrofit of vehicles to meet specified and increasingly stringent emissions
California’s most far reaching heavy-duty fleet requirement is the 2008 Truck and Bus Rule. The
rule is an engine and vehicle standard that applies to all privately and federally owned trucks
and buses over 14,000 pounds GVWR operating in California. It requires that owners or lessees
of trucks adopt newer trucks (with a progressively more recent Mile Year (MY) engine) or Diesel
Particulate Filters (or DPF, which filter PM exhaust before emission) by specific dates.5 Trucks are
considered out-of-compliance with the rule if they operate with engines older than the Mile Year
requirements, or without a functioning DPF.
The stated intent of the Truck and Bus Rule is to accelerate the replacement of “older, high-
emitting, heavy-duty trucks with long service lives” and thereby reduce pollution emissions
to levels that conform to Federal Clean Air Act requirements.6 The rule is a centerpiece of the
California State Implementation Plan (SIP)—the statewide strategy to achieve federal Clean Air
Act compliance, and is described by CARB as “one of the most…important tools to reduce smog-
forming and toxic emissions and protect public health in disadvantaged communities.”7
For the purposes of California fleet requirements, the owner or lessee of a vehicle registered with
the Department of Motor Vehicles (of California or any other state) is the entity regulated by
vehicle rules. If a vehicle is leased, the regulated entity is the lessee if the lease duration is longer
than one year, or the lender, if the lease duration is less than one year.8
When contract truck drivers own their truck or lease it, and possess Motor Carrier authority,
which is often the case among misclassified truck drivers as described below, they become the
responsible entity for maintaining insurance, ensuring environmental compliance, and other
4Truck Driver Misclassification: Climate, Labor, and Environmental Justice Impacts | Sam Appel and Carol Zabin
statutory requirements of commercial motor carriers.9 Conversely, for trucking companies that
employ their drivers and own vehicles in operation, the company becomes the regulated entity
for fleet rules.
(Non) Compliance: Environmental and Environmental Justice Outcomes
The Truck and Bus Rule has very successfully and significantly reduced emissions of key air
pollutants and sets a precedent for more comprehensive fleet rules in California. As shown in
Exhibit 1, current total statewide particulate matter emissions (PM 2.5) from vehicles subject to
the rule are approximately 70% lower than before the rule was implemented in 2010. Likewise,
statewide NOx emissions are approximately 50% lower now than before implementation.10
Comparable data are not available on the impact of this rule on greenhouse gas emissions,
because the rule addresses only toxic air pollutants. New rules will make explicit the goal of
greenhouse gas emissions reductions in addition to traditional air pollutants.
Exhibit 1. Emissions of Particulate Matter 2.5 and Diesel Rule Compliance
2010 2018 2023
Statewide PM2.5 Emissions from Vehicles Subject to Truck and Bus Rule
Emissions prior to Rule
No further action
Excess Emissions due
Full Compliance with
Truck and Bus Rule
Despite this significant progress for air quality, however, industry noncompliance still undermines
the potential benefits of a fully implemented Truck and Bus Rule. As shown in Exhibit 1,
CARB compliance data show that in December 2018, PM 2.5 emissions statewide were still
approximately double the amount expected if all covered trucks complied with the rule. And as of
July 2019, 182,176 trucks registered in California were out-of-compliance with the rule. Evidence
presented in this report suggests that contractors drive a significant share of non-compliant
The impact of non-compliance on air quality is significant. According to CARB, diesel particulate
matter emitted by vehicles subject to the Truck and Bus Rule accounts for 70% of cancer risk from
5Truck Driver Misclassification: Climate, Labor, and Environmental Justice Impacts | Sam Appel and Carol Zabin
toxic air contaminants in California. The medical burden of diesel PM-related illnesses costs the
state $29 billion annually in healthcare spending. This disproportionately harms low-income
communities of color.11
EPA research shows that environmental outcomes depend on both maintenance and operation of
cleaner trucks. This research estimates that inadequate maintenance and tampering causes 89%
greater PM emissions in internal combustion trucks than properly maintained vehicles, even in
newer model (cleaner) trucks that meet federal standards.12
Future Climate Policies: California’s Fleet Requirements
CARB and California lawmakers are considering several new fleet rules that, like the Truck and
Bus Rule, will require substantial industry changes to accelerate the adoption of zero-emission
and electric vehicles. The first set of these new fleet rules is already in place in the public sector.
CARB’s 2018 and 2019 Innovative Clean Transit Rule and Airport Shuttlebus Regulation have
established the foundation for industry transition. CARB’s Advanced Clean Trucks rulemaking and
Senate Bill 44, currently being considered by the State Senate, would require fleet transitions on
the scale of the Truck and Bus Rule beginning in the early 2020s.
Successful implementation of these new rules will require that the state address the underlying
barriers to adoption posed by the structure of the commercial trucking industry. If, for instance,
non-compliance rates in the new rules parallel Truck and Bus Rule non-compliance rates,
hundreds of thousands of trucks will not meet fleet electrification goals.
The Contractor Business Model and Employee
Misclassification in the Commercial Trucking Sector
Low road labor practices in the trucking industry impede compliance with clean truck standards.
The following sections document low road practices such as the prevalence of contracting in the
trucking industry, the persistent problems of misclassification, and the consequent low incomes
of misclassified contract truck drivers.
Origins and Role of Contracting in Trucking
The industry practice of truck driver misclassification began in the early 1980s, following the
passage of the 1980 federal Motor Carrier Act (MCA). The MCA deregulated the US trucking
industry, ending a 40-year period of trucking market oversight by the US Interstate Commerce
Commission and eliminating price controls and restrictions on market entrants.13 The competitive
forces unleashed by deregulation changed the industry dramatically, bankrupting thousands of
companies and forcing remaining and new companies to adopt cost-saving business strategies.14
The trucking firm practice of contracting with drivers for their services became a standard strategy
across many parts of the commercial trucking industry by the mid-1990s. Contracting allows
6Truck Driver Misclassification: Climate, Labor, and Environmental Justice Impacts | Sam Appel and Carol Zabin
companies in many instances to shift responsibility for equipment to truck drivers, reduce payroll
expenses such as employment taxes and employee fringe benefits, and retain the same effective
control over the transporting of loads.15 Some trucking firms transformed their business model
after deregulation entirely, becoming brokers by selling their trucks to former employee drivers
and leasing those drivers’ services on an exclusive basis. Other firms partially or mostly retained
their truck drivers as employees.16
Broadly speaking, deregulation led to significant deterioration of working conditions in the US
trucking industry. For twice as much measurable output today, long-haul truckers now make 40%
less in wages than they did in the late 1970s, when trucking was considered highly desirable blue-
collar work. Union bargaining power decline as a result of deregulation also contributed to wage
stagnation in the sector: whereas 57% of truck drivers were unionized in 1980, just over 10% were
unionized in 1997, the date of the most recent study of unionized workers.17
Misclassification of Contract Truck Drivers
Truck drivers that are contracted by trucking companies to transport loads may be legitimate
independent contractors or misclassified employees. The term “contract truck drivers” used here
describes drivers who lease or own their own truck and are paid by trucking firms as independent
contractors. The term includes both legitimate independent contractors and misclassified
Legitimate independent contractors constitute a significantly different population of truck
drivers from misclassified contract truck drivers. Legitimate independent contractors often work
in specialized segments of the trucking industry, handle specialized cargo, arrange their own
business with shippers, and work unaffiliated with one company on an exclusive basis.
The Transportation Research Board (TRB), a research unit of the National Academies of Sciences,
identifies the following traits that distinguish independent contractors from “dependent” contract
drivers in the commercial trucking industry:
While an independent contractor operates under its own authority18, locates its own
freight, and manages its own financial and operational affairs, a dependent contractor
operates under another motor carrier’s authority, hauls that motor carrier’s freight, and
that motor carrier manages its affairs to a significant degree.19
What TRB describes as a “dependent” contract truck driver corresponds to the definition of
misclassified workers under current California law. Misclassification is itself the predicate to a
violation of federal or state law (usually tax and employment laws) that occurs when an employer
classifies a worker as an independent contractor when the legal definition for employee status is
There is a history of jurisprudence on employee misclassification in federal and state courts
and regulatory agencies, notably in the California Court of Appeals Borello decision, the much
discussed California Supreme Court Dynamex decision, regional National Labor Relations Board
7Truck Driver Misclassification: Climate, Labor, and Environmental Justice Impacts | Sam Appel and Carol Zabin
decisions, and the California Department of Labor Standards Enforcement (DLSE) office.21 While
the test used by various agencies and courts varies, the main traits that confer legal status as an
employee rather than an independent contractor are: drivers lease their services to one company
over a significant period of time; they do not completely direct their own work; they do not
establish business relationships with shippers, control their workload, or the rates they are paid.
Legitimate independent contractors can be distinguished because they “operate under their own
legal authority to provide freight services to customers (which could include shippers, freight
brokers, or other motor carriers).”22
It is important to note that industry jargon including the terms ‘Independent Owner Operator’
and ‘dependent contractor’ are not legally definitive and can easily obscure the actual control
relationship between a truck driver and their employer. Independent contractors are either
legitimately engaged as such or they are misclassified employees.
When businesses willfully misclassify employees as independent contractors to avoid compliance
with labor standards and tax laws, they in turn place themselves in violation of many other
state and federal laws.23 Misclassified truck drivers work without any of the typical employment
rights to overtime pay, sick leave, workers compensation, disability benefits, and other rights
and benefits that employees are legally entitled to.24 Misclassified workers also may not seek
recourse through collective action to improve their employment conditions, since organizing and
bargaining by contractors may constitute violations of anti-trust laws.25
All told, illegally classifying employees as independent contractors allows trucking firms to evade
labor and employment laws and offload as much as 30% of payroll, equipment, and benefits costs
Misclassification by Industry Segment
Misclassification is concentrated in specific segments of the commercial trucking industry.
Trucking industry analysts typically segment the industry by major freight and service types,
including the ownership of the transported goods (private versus for-hire carriers); the distance
the load travels (local freight versus long-distance); and whether the load fills the whole truck or
whether partial loads are assembled to fill a truck (Truck Load versus Less than Truck Load).
Private carriers, who haul their own goods and whose primary business is not trucking, represent
approximately 40–50% of total trucking industry revenue and jobs, and misclassification is rare
in this segment.27 Private carriers include large retailers, manufacturers, distributors, agricultural
companies, and construction companies, as well as small retailers such as a locally owned florist
or laundry business.
By contrast, for-hire carriers are trucking companies that sell their services to other companies
and entities, and commonly use contract truck drivers.28 The for-hire segment includes both
long-haul trucking and short-haul trucking. Each of these sub-segments is plagued by significant
8Truck Driver Misclassification: Climate, Labor, and Environmental Justice Impacts | Sam Appel and Carol Zabin
Since misclassification is illegal, limited data exist on its extent, but it is clear that misclassification
is concentrated in segments where the use of contract truck drivers is prevalent. Using the
markers of misclassification described by courts and the Transportation Research Board (above),
the following are segments where misclassification is prevalent.29
Short-haul trucking carriers typically operate a dry van trailer within California state lines. The
primary lines of business in short-haul or local freight trucking include package delivery, port
trucking, and local delivery jobs ranging across a wide variety of assignments.30 More than 90% of
all local freight industry establishments in California are estimated to be contract truck drivers.31
Very low barriers to entry and relatively less need for reliability in local freight trucking create
especially competitive markets in this segment. These market forces, more than in any other
segment, push carriers towards independent contracting arrangements.32
In the package delivery segment of short-haul trucking, firms such as FedEx Ground, Amazon,
and XPO Logistics all use contract truck drivers, and studies and lawsuits have documented
evidence of widespread misclassification at these companies.33 However, it is important to note
that package delivery also includes some high road trucking companies such as package giants
UPS and USPS, which employ their workers, comply with labor and tax laws, and provide family-
supporting wages and benefits.34
In the port trucking segment, known as port drayage, industry analysts have documented the
most egregious record of misclassification in the trucking industry, along with other forms
of labor exploitation and human rights abuses.35 Monaco and Grober estimate that 85–90%
of port driving operations are carried out by contractors.36 A number of academic studies
analyzing ports across the country suggest that between 75% and 85% of workers likely meet
core misclassification criteria.37 Port drivers have filed more than 1,000 claims with the California
Division of Labor Standards Enforcement (DLSE) for violations related to misclassification. The
Labor Commissioner has issued 448 decisions in these cases and found drivers were owed more
than $50 million in damages collectively.38
Trucking industry analysts expect vehicle automation to fundamentally change work patterns
across the trucking industry; however for the short-haul trucking segment, automation is
expected to result in significant driver employment growth over the next 10 to 20 years, especially
in sub-segments that are prone to low road employment and misclassification.39
Long-haul trucking carriers typically carry loads farther than 450 miles and deliver loads across
states or across the country.40 Industry analysts have identified this segment as one with high
concentrations of misclassified truck drivers.41 A 2010 national study using a representative
sample of drivers by the National Institute on Occupational Safety and Health (NIOSH) found
that approximately 28% of long-haul drivers are leased contractors without their own operating
9Truck Driver Misclassification: Climate, Labor, and Environmental Justice Impacts | Sam Appel and Carol Zabin
authority.42 These drivers meet TRB-suggested criteria for “dependent contractors” who would
likely be considered misclassified under a number of legal tests, including current California law.
This 28% figure is similar to a 1998 survey by Belzer, and estimates by the North American Council
for Freight Efficiency.43
Income of Misclassified Drivers
Misclassified contract truck drivers earn exceedingly low incomes after expenses of truck loans
or leases, fuel, maintenance, repairs, and payment of self-employment taxes, and workers
compensation contributions are considered. Misclassified contract drivers in port trucking earn
gross incomes averaging $28,783 before taxes, while employee port drivers earn an average of
$35,000 annually.44 Median wages of long-haul employee drivers in the full Truck Load category
were slightly above $53,000 in 2018, while median wages for contractors in this segment were
$44,520. 45 Package delivery employees earned median wages of $35,610 in 2017, according to
BLS data, while an industry periodical estimates that in 2018 misclassified package deliverers at
one large national carrier earned approximately $40,000 annually before the cost of equipment,
fuel, maintenance, and other business costs.46 A 2007 study of the same national carrier found
that these business costs amount to approximately $10,000 per year.47
These figures do not provide data on the hourly rates earned by misclassified contractors. In many
segments, truck drivers work significantly more than 40 hours per week, and net hourly wages in
these cases are below California’s minimum wage.48
Environmental Consequences of Contracting and
The environmental consequences of low road labor practices in the trucking industry are
significant. Evidence suggests that non-compliance with clean truck standards is concentrated
in the contract driver segments of the industry, where several specific barriers to compliance are
Concentration of Non-Compliant Trucks in the Contractor Segment
Exhibit 2 presents Truck and Bus Rule compliance data from July 2019. Data are differentiated
by fleet size, which indicates the number of trucks operating under the ownership of a single
trucking establishment (as described in the section on ‘regulated entities’). Fleets with 1 to 3
trucks include contract truck drivers (both legitimate independent contractors and misclassified
employees) and very small private fleets.
10Truck Driver Misclassification: Climate, Labor, and Environmental Justice Impacts | Sam Appel and Carol Zabin
Exhibit 2: Truck and Bus Rule Compliance Statistics, July 2019
Fleet Size (# of Trucks) Total Non-Compliant Share of Non-Compliant Trucks
1 to 3 79884 44%
4 to 20 45143 25%
21 to 100 28227 15%
>100 28922 16%
Total 182176 —
CARB data provide clear evidence that non-compliance is concentrated in the contractor segment
of the commercial trucking industry. As shown in Exhibits 2 and 3, fleets with 1 to 3 trucks, where
contract truck drivers are found, boast the largest share of non-compliant trucks, with 44% of
all non-compliant trucks. 49 Although 1 to 3 truck fleets represent nearly half of non-compliant
trucks, they comprise only one fifth of total trucks in operation in California, and only a third
of the number of trucks operating for fleets of 100 trucks or more, according to most recently
available data.50 Exhibit 4 shows that fleets with 1 to 3 trucks have the lowest compliance rate
with the rule among all fleets, according to most recently available data.51
Exhibit 3: Total Truck and Bus Non-Compliant Trucks Operating in California by Fleet
1 to 3 4 to 20 21 to 100 >100
Total Non-Compliant Trucks by Fleet Size
11Truck Driver Misclassification: Climate, Labor, and Environmental Justice Impacts | Sam Appel and Carol Zabin
Barriers to Compliance are Largely Due to Capital Constraints of Contract
Studies published by the US Environmental Protection Agency, the International Council on Clean
Transportation, the US Department of Transportation, and METRANS all confirm that the capital
constraints faced by contract truck drivers create a structural barrier to adoption of clean vehicles
in the trucking industry.52 In a survey of the literature on clean vehicle adoption barriers, Klemick
et al. summarize that “limited access to capital for owner-operators combined with high upfront
costs…and lack of awareness about new technologies [create]…barriers to technology adoption.”
53 Giuliano et al. clarify the importance of the trucking company ownership structure to raising
capital and investing in clean vehicles:
The truck ownership model is important to understand when discussing new and
potentially costly technologies since owner operators typically work on slim margins and
cannot easily raise capital for replacement equipment.54
Low incomes in contract trucking, as described above, are the primary reason contract drivers lack
capital for clean vehicle investments. Natural gas trucks, diesel particulate filters, and especially
electric trucks add significant business costs for contract drivers.55 CARB estimates that a 2018
Mile Year diesel tractor trailer costs $134,000, and in 2024, when electric truck standards may take
effect, an electric tractor trailer will, CARB projects, cost $232,000.56 Clean-running diesel trucks
also cost approximately 70% more to maintain than conventional trucks.57
Exhibit 4: Truck and Bus Rule Compliance Rates by Fleet Size, 2017
1 to 3 4 to 20 21 to 100 >100
Truck and Bus Compliance Rate by Fleet Size
12Truck Driver Misclassification: Climate, Labor, and Environmental Justice Impacts | Sam Appel and Carol Zabin
Steep vehicle financing costs for contractors add greater dimension to the capital barrier. Interest
rates for private truck loans to large carriers average approximately 5%, according to a recent
CARB electric truck cost analysis.58 For contract drivers, interest rates are much higher. In fact,
CARB created a subsidized loan program for contract drivers in California that reduced standard
interest rates to 13.4%.59 Industry studies and investigative journalism have also uncovered
predatory lending by truck companies to their contract truck drivers.60
CARB’s Efforts at Improving Compliance Focus on Low-Income Contract
CARB regulatory actions to improve compliance from 2008 to 2019 have been focused on the
barriers discussed above and have clearly concentrated on the contract truck driver segment.
CARB vehicle subsidy assistance has been primarily aimed at fleets of 1 to 3 trucks because of the
inability of these fleets to meet vehicle standards and remain in business. For example, CARB has
permitted numerous extensions to the compliance deadlines for small fleets and created the $1.2
billion subsidized state-backed loan fund mentioned above, exclusively for small fleets.
Even so, this assistance has not completely solved the non-compliance problem, and CARB plans
to enforce compliance by de-registering 50,000 non-compliant California-registered trucks at the
end of 2019 as an enforcement backstop, most of which are in the 1 to 3 fleet size category.
Companies with Likely Misclassified Drivers Control Non-Compliant Trucks
While companies that misclassify are often smaller, under-the-radar operations, even very large
companies misclassify their workers. CARB compliance data show examples of non-compliant
trucks driven by likely misclassified contract truck drivers for major corporations. As discussed
above, contract truck drivers who operate under a larger company’s operating authority work
exclusively for that company; they, therefore, fit the profile of misclassified workers under various
legal tests. CARB compliance data show instances in which many Truck and Bus Rule non-
compliant trucks belong to contractors who operate under the federal Motor Carrier number of a
large trucking company.61
There will be many instances of non-compliant trucks driven by likely misclassified drivers without
the combination of indicators described above and presented below. We can safely assume,
for instance, that many non-compliant trucks operated by misclassified drivers are prevalent in
the short-haul segment. In this segment, federal operating authority may not be required and
yet many drivers are still misclassified. The data below should be treated as a snapshot and not
indicative of the full extent of misclassification among Truck and Bus Rule non-compliant entities.
Exhibit 5 shows the number of non-compliant trucks operated by contract truck drivers under
a number of large companies’ authority. The relative size of companies, in revenue terms, is
presented to offer a picture of the financial capacity of companies to achieve compliance.62
Company size is important because large trucking firms are better equipped to absorb the costs
of fleet transitions than low-income contract truck drivers. While the companies exhibited below
13Truck Driver Misclassification: Climate, Labor, and Environmental Justice Impacts | Sam Appel and Carol Zabin
report annual revenue in the hundreds of millions to billions of dollars, drivers face substantially
greater capital constraints to vehicle upgrades. A notable point of comparison within this data
snapshot is UPS, a high road company operating with employee drivers, which has only 9 trucks
that were out-of-compliance with the Truck and Bus Rule as of July 2019.
Exhibit 5: Large Companies with Truck and Bus Rule Non-Compliant Trucks Operated
by Likely Misclassified Contractors
Company Name Trucks out of Compliance
Rank, US Trucking
Companies by Revenue
Landstar Systems, Inc. 2027 $4.6B 7th
UniGroup Inc. 610 $1.8B 16th*
SIRVA, Inc. 499 $1.5B 23rd
FedEx Ground 462 $27.2B 2nd
Atlas Van Lines 416 $900M —
Mercer Transportation 403 $493M 50th
Bennett Motor Express 275 $612M 49th
HVH Transportation 236 — —
While the instances presented above show that even very large companies misclassify their
workers, small firms that misclassify proliferate in the highly fragmented trucking market
and regulatory landscape, particularly in local and port trucking sub-segments. Ultimately,
misclassification is less an episodic problem of misbehavior by large or small companies,
and instead a failure of public policy to create labor market conditions that incentivize fair
competition towards high road, environmentally accountable economic development.
Conclusion and Policy Recommendations
This report documents the significant problem of non-compliance with clean vehicle policies in
the commercial trucking industry. It presents evidence of the concentration of non-compliance in
the contract trucking sector, and the out-sized share of trucks driven by contract truck drivers that
are in violation of California’s clean truck regulations. It reviews research that highlights capital
constraints as a key barrier to compliance, particularly among contract truck drivers, and shows
that CARB’s regulatory responses to non-compliance are focused almost exclusively on fleets
with 1 to 3 trucks. The report also links contract trucking, where compliance is lowest, to evidence
of high prevalence of misclassification of truck drivers as contractors instead of employees. It
concludes that the low incomes of contract drivers, including misclassified truck drivers, are a key
obstacle to full compliance with clean truck standards.
14Truck Driver Misclassification: Climate, Labor, and Environmental Justice Impacts | Sam Appel and Carol Zabin
California policymakers and regulators should consider the following principles that can reduce
the social and environmental externalities associated with the contractor business model in
• Principle: Enforce Existing Labor and Employment Law
The California Labor and Workforce Development Agency should use its authority to enforce all
labor and employment laws and regulations that cover the commercial trucking sector and target
proactive enforcement activities in the segments of the trucking industry where there is evidence
of misclassification. The California Supreme Court’s recent Dynamex Decision identifies a clear set
of criteria for distinguishing between employees and contractors in business arrangements such
as trucking. Bordello, the previous precedent-setting decision with regard to California trucking
establishments, did so as well. Under both legal regimes, but especially under the Dynamex
ruling, California courts, enforcement agencies, and regulators are well positioned to eliminate
illegal independent contracting and reduce the impact of this practice on California’s climate
regulations. Assembly Bill 5 would codify the Dynamex decision as applied to wage orders and
expand it to the labor code and the unemployment insurance code.63
• Principle: Subsidize the High Road
The California Air Resources Board and other California public agencies, as participants in the
market via funding for incentives, subsidies and other financial assistance, can allocate financial
support that either enables low road employers, and perpetuates unfair competition, or that
supports and levels the playing field for high road employers. California agencies should take care
to not inadvertently subsidize trucking companies that willfully misclassify workers as contractors
and should avoid further enabling this unsustainable business model. In awarding subsidies,
agencies should require that companies identify their employment and contracting practices and
only award funds to companies that can document legal and responsible employment practices.
• Principle: Ensure Controlling Corporations are the Regulated Entity
At present, misclassified contract truck drivers bear the burden of clean vehicle adoption instead
of their employers. In designing future engine standards and fleet rules, CARB and the legislature
should clarify that the regulated entity for these rules is the company controlling the contractor, if
that driver operates for a larger company as a misclassified contractor.
California policies should support jointly meeting workforce, equity, and environmental goals
in a rapidly changing trucking industry. Implementation of these policy principles can help to
build a high road commercial trucking industry capable of making an equitable transition to
zero-emissions vehicles, providing family-supporting jobs for truck drivers, and easing the
pollution burden on low-income communities of color.
15Truck Driver Misclassification: Climate, Labor, and Environmental Justice Impacts | Sam Appel and Carol Zabin
“2017 Annual Enforcement Report.” California Air Resources Board, June 2018. https://ww3.arb.
“2018 Updates to the California State Implementation Plan.” California Air Resources Board,
October 25, 2018. https://ww3.arb.ca.gov/planning/sip/2018sipupdate/2018update.pdf.
“About—Truck and Bus Regulation.” Government. California Air Resources Board. Accessed August
5, 2019. https://ww2.arb.ca.gov/our-work/programs/truck-and-bus-regulation/about.
“Advanced Clean Trucks Total Cost of Ownership Discussion Document.” Preliminary Draft.
California Air Resources Board, February 22, 2019. https://ww2.arb.ca.gov/sites/default/
Bensman, D. “Port Trucking as a Test Case of Precarious Work in the Grey Zone of Work and
Employment.” Revue Interventions Economiques 58 (2017). https://journals.openedition.org/
Bensman, D., and Y. Bromberg. “Port Truckers Survey at New Jersey Ports.” New Brunswick, New
Jersey: Rutgers University, 2008.
Bonacich, Edna. “Pulling the Plug: Labor and the Global Supply Chain.” New Labor Forum 12, no. 2
(Summer 2003): 41–48.
Burks, S, M Belzer, and et al. “Trucking 101—An Industry Primer.” Transportation Research Circular.
Transportation Research Board of the National Academies, December 2010. http://onlinepubs.trb.
California Air Resources Board. “Tying Compliance with CARB’s Truck and Bus Regulation to DMV
Registration.” Informational Update, n.d. https://www.arb.ca.gov/board/books/2018/121318/18-
Carré, Françoise. “(In)Dependent Contractor Misclassification.” Briefing Paper. Economic
Policy Institute, June 8, 2015. https://www.epi.org/publication/independent-contractor-
Chen, Guang, Karl Sieber, and Jennifer Lincoln. “NIOSH National Survey of Long-Haul Truck
Drivers: Injury and Safety.” Accident Analysis & Prevention 85 (December 2015): 66–72.
Cummings, Scott. Blue and Green: The Drive for Justice at America’s Port. Urban and Industrial
Environments. MIT Press, 2018.
“Development of Emission Rates for Heavy-Duty Vehicles in the Motor Vehicle Emissions Simulator
MOVES2010.” Technical Report. US EPA, August 2012. https://nepis.epa.gov/Exe/ZyPDF.cgi/
16Truck Driver Misclassification: Climate, Labor, and Environmental Justice Impacts | Sam Appel and Carol Zabin
Giuliano, Genevieve, Lee White, and Sue Dexter. “Developing Markets for Zero-Emission Vehicles
in Goods Movement.” National Center for Sustainable Transportation and METRANS, March 2018.
“Glossary—‘Long Haul.’” Federal Motor Carrier Safety Administration. Accessed August 15, 2019.
Gonzalez, Lorena. Assembly Bill No. 5, Pub. L. No. 5, Business and Professions; Labor;
Unemployment Insurance (2019). https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_
Hanley, Caroline, and Michael Douglas. “High Road, Low Road, or Off Road? Economic
Development Strategies in the American States.” Economic Development Quarterly 28, no. 3
Harrison, Robert, Nathan Hutson, and Jason West. “Characteristics of Drayage Operations at
the Port of Houston, Texas.” Southwest Region University Transportation Center Center for
Transportation Research University of Texas at Austin, 2007. https://pdfs.semanticscholar.org/
“Independent Contractor Misclassification Imposes Huge Costs on Workers and Federal and State
Treasuries.” Factsheet. National Employment Law Project, July 2015. https://www.nelp.org/wp-
“Inequitable Exposure to Air Pollution from Vehicles in California.” Union of Concerned Scientists,
February 2019. https://www.ucsusa.org/sites/default/files/attach/2019/02/cv-air-pollution-CA-
Johanssen, Erin. “FedUp with FedEx: How FedEx Ground Tramples Workers’ Rights and Civil Rights.”
American Rights at Work, October 2007. http://www.jwj.org/wp-content/uploads/2013/12/
Klemick, Heather, Elizabeth Kopits, and Keith Sarget. “Heavy-Duty Trucking and the Energy
Efficiency Paradox.” Working Paper. NCEE Working Paper Series. U.S. Environmental Protection
Agency, January 2014. https://www.epa.gov/sites/production/files/2014-12/documents/heavy-
“Labor Commissioner Posts List of Port Trucking Companies with Unsatisfied Judgments for Labor
Violations.” News Release. California Department of Industrial Relations, January 2, 2019. https://
“Local Freight Trucking in California.” Market Research Report. IBISWorld, January 2019. https://
17Truck Driver Misclassification: Climate, Labor, and Environmental Justice Impacts | Sam Appel and Carol Zabin
Monaco, Kristen. “Incentivizing Truck Retrofitting in Port Drayage: A Study of Drivers at the Ports
of Los Angeles and Long Beach.” California State University Long Beach: METRANS, February
Monaco, Kristen, and Lisa Grobar. “A Study of Drayage at the Ports of Los Angeles and Long
Beach.” METRANS, December 15, 2004. https://www.metrans.org/sites/default/files/research-
“Motor Carrier Permit (MCP)—Frequently Asked Questions.” State of California Department
of Motor Vehicles. Accessed August 15, 2019. https://www.dmv.ca.gov/portal/dmv/detail/
Murphy, Brett. “Rigged: Forced into Debt. Worked Past Exhaustion. Left with Nothing.” USA
Today, June 2017. https://www.usatoday.com/pages/interactives/news/rigged-forced-into-debt-
“Occupational Employment and Wages, May 2018 53-3033 Light Truck or Delivery Services
Drivers.” Bureau of Labor Statistics Occupational Employment Statistics, May 2018. https://www.
Patel, Sejal. “From Clean to Clunker: The Economics of Emissions Control.” BlueGreen Alliance,
Los Angeles Alliance for a New Economy, Sierra Club, International Brotherhood of Teamsters,
April 15, 2010. https://web.archive.org/web/20111015172945/https://laane.org/downloads/
“Risk Reduction Plan to Reduce Particulate Matter Emissions from Diesel-Fueled Engines
and Vehicles.” California Air Resources Board, October 2000. https://ww3.arb.ca.gov/diesel/
Rittman et al v Amazon.com Inc et al, No. C16-1554- JCC (n.d.).
Roeth, Mike, Dave Kircher, and Joel Smith. “Barriers to the Increased Adoption of Fuel Efficiency
Technologies in the North American On-Road Freight Sector.” North American Council for Freight
Efficiency, July 2013. https://www.theicct.org/sites/default/files/publications/ICCT-NACFE-CSS_
Smith, Rebecca, Paul Marvy, and Jon Zerolnick. “The Big Rig Overhaul: Restoring Middle-Class
Jobs at America’s Ports Through Labor Law Enforcement.” National Employment Law Project,
Change to Win, Los Angeles Alliance for a New Economy, February 2014. https://www.nelp.org/
Soper, Spencer, and Thomas Black. “Amazon Thrives on FedEx Delivery Model, but Driver Pay
Challenges Persist.” Transport Topics, December 17, 2018. https://www.ttnews.com/articles/
“Special Report: Top 50 Trucking Companies.” The Journal of Commerce, April 16, 2018, 54–56.
“The Motor Carrier Efficiency Study 2007 Annual Report to Congress.” U.S. Department of
Transportation Federal Motor Carrier Safety Administration, March 2009. https://www.fmcsa.dot.
18Truck Driver Misclassification: Climate, Labor, and Environmental Justice Impacts | Sam Appel and Carol Zabin
Truck and Bus Regulation, Title 13 California Code of Regulations § 2025 (2008). https://ww3.arb.
“Updated: New Survey Data Reveals Increases in Driver Compensation.” American Trucking
Associations, March 27, 2018. https://www.trucking.org/article/New-Survey-Data-Reveals-
Viscelli, Steve. “Driverless? Autonomous Trucks and the Future of the American Trucker.” UC
Berkeley Center for Labor Research and Education and Working Partnerships USA, September
———. The Big Rig: Trucking and the Decline of the American Dream. UC Press, 2016.
19Truck Driver Misclassification: Climate, Labor, and Environmental Justice Impacts | Sam Appel and Carol Zabin
1 In state economic development policy, a “high road” approach to economic development
“emphasize(s) new job growth (as opposed to job poaching) and encourage local or regional
competitive advantages based on high-value economic products, not merely lower production
costs as in the low road approach.”; Hanley and Douglas, “High Road, Low Road, or Off Road?
Economic Development Strategies in the American States”, 221.
2 Truck and Bus Regulation, 1.
3 GVWR represents the maximum weight of a vehicle including engine, body, fuel, accessories,
and passengers when the vehicle is fully loaded.
4 “Risk Reduction Plan to Reduce Particulate Matter Emissions from Diesel-Fueled Engines and
5 Link to compliance table
6 “2018 Updates to the California State Implementation Plan”, 74.
7 “About—Truck and Bus Regulation.”
8 Truck and Bus Regulation, 8.
10 California Air Resources Board, “Tying Compliance with CARB’s Truck and Bus Regulation to
11 California Air Resources Board, “Tying Compliance with CARB’s Truck and Bus Regulation to
DMV Registration”; “Inequitable Exposure to Air Pollution from Vehicles in California”, 3.
12 “Development of Emission Rates for Heavy-Duty Vehicles in the Motor Vehicle Emissions Sim-
ulator MOVES2010”, 30.
13 Viscelli, The Big Rig: Trucking and the Decline of the American Dream, 11.
14 Belzer, Sweatshops on Wheels: Winners and Losers in Trucking Deregulation; Bensman, “Port
Trucking as a Test Case of Precarious Work in the Grey Zone of Work and Employment.”
15 Viscelli, The Big Rig: Trucking and the Decline of the American Dream, 110.
16 Bensman, “Port Trucking as a Test Case of Precarious Work in the Grey Zone of Work and
17 Viscelli, The Big Rig: Trucking and the Decline of the American Dream, 22.
18 Either corporations or sole proprietorships can possess “operating authority”, referred to here
as “authority”. The Motor Carrier Permit conveys operating authority to a trucking establishment
and ensures compliance with vehicle use laws and compliance with “statutory requirements to
20Truck Driver Misclassification: Climate, Labor, and Environmental Justice Impacts | Sam Appel and Carol Zabin
commercially operate motor vehicles on California’s highways”; “Motor Carrier Permit (MCP)—
Frequently Asked Questions.”
19 Burks, Belzer, et al., “Trucking 101—An Industry Primer”, 11.
20 Carré, “(In)Dependent Contractor Misclassification”, 3.
21 Cummings, Blue and Green: The Drive for Justice at America’s Port, 269.
22 Viscelli, “Driverless? Autonomous Trucks and the Future of the American Trucker”, xi.
23 Carré, “(In)Dependent Contractor Misclassification”, 4.
24 Carré, “(In)Dependent Contractor Misclassification”, 1.
25 Carré, “(In)Dependent Contractor Misclassification”, 8.
26 “Independent Contractor Misclassification Imposes Huge Costs on Workers and Federal and
State Treasuries”, 1.
27 Burks, Belzer, et al., “Trucking 101—An Industry Primer”, 18.
28 Burks, Belzer, et al., “Trucking 101—An Industry Primer”, 18–24.
29 Chen, Sieber, and Lincoln, “NIOSH National Survey of Long-Haul Truck Drivers: Injury and
30 Viscelli, “Driverless? Autonomous Trucks and the Future of the American Trucker”, ii.
31 “Local Freight Trucking in California.”
32 Viscelli, “Driverless? Autonomous Trucks and the Future of the American Trucker”, 43.
33 Carré, “(In)Dependent Contractor Misclassification”, 12; Viscelli, “Driverless? Autonomous
Trucks and the Future of the American Trucker”, 16; Cummings, Blue and Green: The Drive for
Justice at America’s Port, 244; Rittman et al v Amazon.com Inc et al.
34 Johanssen, “FedUp with FedEx: How FedEx Ground Tramples Workers’ Rights and Civil Rights”,
35 Bonacich, “Pulling the Plug: Labor and the Global Supply Chain”, 46.
36 Monaco and Grobar, “A Study of Drayage at the Ports of Los Angeles and Long Beach”, 7.
37 “Independent Contractor Misclassification Imposes Huge Costs on Workers and Federal and
State Treasuries”, 11; Bensman and Bromberg, “Port Truckers Survey at New Jersey Ports”; Smith,
Marvy, and Zerolnick, “The Big Rig Overhaul: Restoring Middle-Class Jobs at America’s Ports
Through Labor Law Enforcement”, 29.
38 “Labor Commissioner Posts List of Port Trucking Companies with Unsatisfied Judgments for
21Truck Driver Misclassification: Climate, Labor, and Environmental Justice Impacts | Sam Appel and Carol Zabin
39 Viscelli, “Driverless? Autonomous Trucks and the Future of the American Trucker”, 31.
40 “Glossary—‘Long Haul.’”
41 Viscelli, “Driverless? Autonomous Trucks and the Future of the American Trucker”, 7.
42 Chen, et al., “NIOSH National Survey of Long-Haul Truck Drivers: Injury and Safety”, 5.
43 Burks, Belzer, et al., “Trucking 101—An Industry Primer”, 10; Roeth, et al., “Barriers to the
Increased Adoption of Fuel Efficiency Technologies in the North American On-Road Freight
44 Viscelli, “Driverless? Autonomous Trucks and the Future of the American Trucker”, v.
45 “Updated: New Survey Data Reveals Increases in Driver Compensation.”; Calculated using
industry standard figure cited “Contractors earn 16% less than median company driver”; Viscelli,
The Big Rig: Trucking and the Decline of the American Dream, 145.
46 “Occupational Employment and Wages, May 2018 53-3033 Light Truck or Delivery Services
Drivers”; Soper and Black, “Amazon Thrives on FedEx Delivery Model, but Driver Pay Challenges
47 Johanssen, “Fed Up with FedEx: How FedEx Ground Tramples Workers’ Rights and Civil Rights”,
48 Monaco, “Incentivizing Truck Retrofitting in Port Drayage: A Study of Drivers at the Ports of
Los Angeles and Long Beach”, 18; Viscelli, The Big Rig: Trucking and the Decline of the American
49 On July 26, 2019 CARB staff for Truck and Bus Rule implementation provided the compliance
statistics for the rule in table format via email, as presented, current as of July 2019. These statis-
tics summarize Truck Regulation Upload and Compliance Reporting System (TRUCRS) database
compliance data. Data reported in the TRUCRS system reflect vehicles that intend to claim a flex-
ibility option offered within the Truck and Bus Regulation, which delays (on a specified schedule)
or removes the requirement to install emissions reduction technology. Any vehicle that already
meets Truck and Bus Regulation requirements may or may not be captured in TRUCRS. It is not
mandatory for trucks already in compliance with the rule to report in TRUCRS.
50 See CARB 2017 Enforcement Report Table I-4 on total truck populations operating in Califor-
nia by fleet size; “2017 Annual Enforcement Report”, I-4.
51 Ibid; the 2017 Enforcement Report is the most recent source for overall compliance data avail-
able at time of publication. Here, data from Table I-4 are aggregated across Registration Type
and Weight Class to indicate truck compliance rates differentiated by fleet size alone.
52 “The Motor Carrier Efficiency Study 2007 Annual Report to Congress”, 5.
53 Klemick et al., “Heavy-Duty Trucking and the Energy Efficiency Paradox”, 6, 19, 21, 27; Roeth,
et al., “Barriers to the Increased Adoption of Fuel Efficiency Technologies in the North American
On-Road Freight Sector”, 6.
22Truck Driver Misclassification: Climate, Labor, and Environmental Justice Impacts | Sam Appel and Carol Zabin
54 Giuliano, White, and Dexter, “Developing Markets for Zero-Emission Vehicles in Goods Move-
55 “Advanced Clean Trucks Total Cost of Ownership Discussion Document”, 7.
57 Patel, “From Clean to Clunker: The Economics of Emissions Control”, 5.
58 “Advanced Clean Trucks Total Cost of Ownership Discussion Document”, 7.
59 On April 17, 2019 the California Pollution Control Financing Authority provided a dataset
of loan data for all participants in the California Capital Access Program (CalCAP) On-Road
Heavy-Duty Vehicle Air Quality Loan Program. This loan program provides loans to trucking en-
tities with 10 or less trucks. Data included loan recipients number of trucks owned, loan amounts,
and loan interest rates. To identify the average interest rate for loans to contract drivers granted
through this program, average interest rate was calculated for all loan recipients since the incep-
tion of the program with 3 or less trucks in their fleet.
60 Murphy, “Rigged: Forced into Debt. Worked Past Exhaustion. Left with Nothing”; Viscelli, The
Big Rig: Trucking and the Decline of the American Dream, 148.
61 On June 14, 2019 CARB staff for Truck and Bus Rule implementation provided a dataset which
included compliance data for all California truck fleets with 1 to 3 vehicles in the Truck and Bus
compliance database (TRUCRS). Data for each fleet include compliance status (Yes/No), number
of trucks, and motor carrier numbers affiliated with the fleet. To identify contract truck drivers
operating under the Motor Carrier authority of a larger company, fleet data were hierarchized
first by federal Motor Carrier number, and then by company name and CA MC number. Where
multiple trucks under different company names and registered under different CA Motor Carrier
numbers were affiliated with the same federal Motor Carrier numbers, these trucks were consid-
ered to be operated by contract truck drivers under a larger company’s operating authority.
62 Revenues were compared to data presented in the Journal of Commerce on largest trucking
companies by revenue; “Special Report: Top 50 Trucking Companies.”
63 Gonzalez, Assembly Bill No. 5.
UC Berkeley Center for Labor
Research and Education
The Center for Labor Research and Education (Labor Center)
is a public service project of the UC Berkeley Institute for
Research on Labor and Employment that links academic
resources with working people. Since 1964, the Labor Center
has produced research, trainings, and curricula that deepen
understanding of employment conditions and
develop diverse new generations of leaders.
We specially acknowledge the following people for contributions to and review of this report:
Steve Viscelli, JB Tengco, Scott Cummings, Jessica Durrum, Mike Muñoz, Doug Bloch, Shane
Gusman, CARB Truck and Bus Rule Staff, Ken Jacobs, Goetz Wolff, Stephanie Tsai, Roxanne
Johnson, Zoe Lipman, Betony Jones, and Sara Hinkley.
Cover photo courtesy of International Brotherhood of Teamsters.
About the Authors
Sam Appel is California Policy Organizer at the BlueGreen Alliance. Carol Zabin, Ph.D., is the
director of the Green Economy Program at the UC Berkeley Center for Labor Research and
Appel, Sam and Carol Zabin. Truck Driver Misclassification: Climate, Labor, and Environmental
Justice Impacts. Center for Labor Research and Education, University of California, Berkeley.
August 2019. http://laborcenter.berkeley.edu/truck-driver-misclassification/.
Institute for Research on Labor and Employment
University of California, Berkeley
2521 Channing Way
Berkeley, CA 94720-5555
The analyses, interpretations, conclusions, and views expressed in this report are those of the authors and do not
necessarily represent the UC Berkeley Institute for Research on Labor and Employment, the UC Berkeley Center for
Labor Research and Education, the Regents of the University of California, the BlueGreen Alliance, or collaborating
organizations or funders.
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