Senate committee hears bill to create tiered criminal penalties for environmental violations

Sen. Yasmine Trudeau, sponsor of ESSB 5360, told the Senate Environment & Energy Committee that the bill would strengthen criminal enforcement of Washington’s principal environmental laws and ensure “criminal polluters who violate our environmental laws pay the price of doing dirty business here in Washington state.”

The bill would create first-, second- and third-degree offenses under the Water Pollution Control Act, the Clean Air Act and the Hazardous Waste Management Act and apply those criminal standards to individuals and entities in some circumstances. Under the striking amendment described to the committee, a first-degree violation would be a Class B felony if someone “knowingly” violated the statute and knew the conduct placed another person in imminent danger of death or serious bodily harm; a second-degree violation would be a Class C felony for knowing or negligent conduct that nevertheless placed a person or property in imminent danger; and a third-degree violation would be a gross misdemeanor for negligent conduct that did not pose imminent danger and would carry a fine and up to 364 days in jail.

The bill as amended clarifies that compliance with a permit is not, by itself, a criminal violation; exempts certain agricultural odors and fugitive dust consistent with “good agricultural practices” and permitted outdoor burning from Clean Air Act criminalization; removes a broad definition of “entity” from the bill; and adds a severability clause. The amendment also raised the culpability standard for the third-degree offense from ordinary negligence to criminal negligence, the attorney general’s office said.

Supporters said the change is timely in light of a reported shift in federal enforcement priorities. “This bill provides sensible criminal enforcement tools to protect human health and the environment in Washington,” Brad Roberts, section chief in the Attorney General’s Office Environmental Protection Division, told the committee, adding the proposal creates a “sensible, consistent stair step system” for criminal enforcement.

Sen. Trudeau framed the bill by recounting local pollution incidents, including boat fires in Tacoma and a 2020 discharge of crumb rubber and other material into the Puyallup River, and said the measure would help deter repeat conduct by corporate actors who treat fines “as the cost of doing business.” She said the bill is not intended to criminalize accidents and that a stakeholder process produced many of the amendments now before the committee.

Opponents — including trade groups, ports, pulp and paper representatives, building industry groups, and local business organizations — urged caution and asked for more narrow language. They said the measure, as written, could expose individual workers, consultants and small contractors to criminal liability for mistakes that previously were handled administratively or through civil enforcement. Concerns raised at the hearing included the possibility that the statute could allow multiple counts for the same incident (the striking amendment as read permits each day of an ongoing violation to be treated as a separate offense), uncertainty about who could be charged for complex operational failures, and whether permitting compliance and corrective actions taken under permits might be swept into criminal exposure.

Several local and industry witnesses said Commerce, ports, and municipal partners have developed cooperative compliance programs and adaptive management plans for long-running watershed efforts; they warned that criminal liability could undermine the trust those programs rely on. “This bill, even in its amended form, unnecessarily criminalizes minor oversights and penalizes entities actively improving compliance through adaptive management practices,” said Jake Mason of Greater Spokane Incorporated.

Committee members questioned how the Attorney General’s Office would exercise prosecutorial discretion and weigh factors such as culpability, history of compliance and available remedial tools. Brad Roberts and the AG’s legislative director said the office intends to reserve criminal enforcement for the most serious, knowing, or grossly negligent conduct and pointed to prior prosecutions of large, egregious violations as precedent for that approach.

No formal vote was recorded at the hearing; the committee suspended the ESSB 5360 hearing after testimony and moved to other bills on the agenda.

Ending: Committee staff and the Attorney General’s Office indicated a continuing dialogue with stakeholders and some supporters said they would continue to refine the bill’s language before committee action.