Strict Criminal Liability for Environmental Violations: A Need for Judicial Restraint

Indiana Law Journal

Volumn 71, Issue 3, 1996, Pages 729-752

  Carmichael, Kepten D ^a,b  

^a INDIANA UNIVERSITY   (United States)

^b DEPAUW UNIVERSITY   (United States)

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EID: 0030531420     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (155)

1. United States v. Weitzenhoff, 1 F.3d 1523 (9th Cir. 1993), amended on denial of reh'g and reh'g en banc, 35 F.3d 1275 (9th Cir. 1994), cert. denied, 115 S. Ct. 939 (1995). Similarly, Robert Hopkins is currently spending 21 months of his life in a federal penitentiary following the Second Circuit Court of Appeals' recognition of this judicially created merger. United States v. Hopkins, 53 F.3d 533 (2d Cir. 1995).
2. Over the past 15 years, the Department of Justice ("DOJ") and the Environmental Protection Agency ("EPA") have increased their efforts in criminal prosecutions for violations of environmental statutes. In November, 1982, the DOJ had only three lawyers who concentrated exclusively on environmental crime cases. John F. Cooney et al., Criminal Enforcement of Environmental Laws: Part I, 25 Envtl. L. Rep. (Envtl. L. Inst.) 10,459, 10,462 (Sept. 1995). In May, 1987, the Department created an independent Environmental Crimes Section ("ECS") to prosecute environmental crimes. Id. By 1992, mis section had grown to 28 attorneys. The Federal Bureau of Investigation ("FBI") assigned 100 agents to assist the ECS in its investigation of environmental crimes. Id. The EPA's criminal investigation staff also grew dramatically between 1982 and 1992 from six to 62 criminal investigators. Id. As of the summer of 1995, the EPA had more than 160 criminal investigators in 32 field offices throughout the country. Criminal Enforcement of Environmental Laws, ALI-ABA COURSE OF STUDY FOR THE GOVERNMENT AND DEFENSE BARS (advertising circular for conference held November 2-3, 1995 in Washington, D.C.) [hereinafter ALI-ABA]. The Pollution Prevention Act of 1990, Pub. L. No. 101-593, §202, 104 Stat. 2962 (1990), established a goal that by October, 1995 the EPA would have 200 criminal investigators. Cooney, supra, at 10,462. With the increased number of investigators and prosecutors in the EPA, FBI, and DOJ came an increase in the number of indictments, pleas, and convictions. Between October, 1982, and April, 1995, the DOJ obtained indictments against 443 corporations and 1068 individuals. Three hundred thirty-four of those corporations and 740 of those individuals were convicted by plea or verdict. Id. In 1994 alone, the DOJ obtained 178 environmental crime indictments with 124 pleas and convictions. ALI-ABA, supra. These numbers represented a 40% increase over the number of environmental criminal charges brought in 1993. Thomas R. Bartman, High Criminal Intent Standard Needed for Complex Environmental Laws, LEGAL BACKGROUNDER, Sept. 15, 1995, at 4. The record high of 1994 is expected to have been surpassed in 1995. ALI-ABA, supra. Between 1982 and 1995, individuals convicted of environmental crimes have served a total of over 560 years in prison. Cooney, supra, at 10,462.
3. Over the past 15 years, the Department of Justice ("DOJ") and the Environmental Protection Agency ("EPA") have increased their efforts in criminal prosecutions for violations of environmental statutes. In November, 1982, the DOJ had only three lawyers who concentrated exclusively on environmental crime cases. John F. Cooney et al., Criminal Enforcement of Environmental Laws: Part I, 25 Envtl. L. Rep. (Envtl. L. Inst.) 10,459, 10,462 (Sept. 1995). In May, 1987, the Department created an independent Environmental Crimes Section ("ECS") to prosecute environmental crimes. Id. By 1992, mis section had grown to 28 attorneys. The Federal Bureau of Investigation ("FBI") assigned 100 agents to assist the ECS in its investigation of environmental crimes. Id. The EPA's criminal investigation staff also grew dramatically between 1982 and 1992 from six to 62 criminal investigators. Id. As of the summer of 1995, the EPA had more than 160 criminal investigators in 32 field offices throughout the country. Criminal Enforcement of Environmental Laws, ALI-ABA COURSE OF STUDY FOR THE GOVERNMENT AND DEFENSE BARS (advertising circular for conference held November 2-3, 1995 in Washington, D.C.) [hereinafter ALI-ABA]. The Pollution Prevention Act of 1990, Pub. L. No. 101-593, §202, 104 Stat. 2962 (1990), established a goal that by October, 1995 the EPA would have 200 criminal investigators. Cooney, supra, at 10,462. With the increased number of investigators and prosecutors in the EPA, FBI, and DOJ came an increase in the number of indictments, pleas, and convictions. Between October, 1982, and April, 1995, the DOJ obtained indictments against 443 corporations and 1068 individuals. Three hundred thirty-four of those corporations and 740 of those individuals were convicted by plea or verdict. Id. In 1994 alone, the DOJ obtained 178 environmental crime indictments with 124 pleas and convictions. ALI-ABA, supra. These numbers represented a 40% increase over the number of environmental criminal charges brought in 1993. Thomas R. Bartman, High Criminal Intent Standard Needed for Complex Environmental Laws, LEGAL BACKGROUNDER, Sept. 15, 1995, at 4. The record high of 1994 is expected to have been surpassed in 1995. ALI-ABA, supra. Between 1982 and 1995, individuals convicted of environmental crimes have served a total of over 560 years in prison. Cooney, supra, at 10,462.
4. 1 F.3d 1523.
5. 33 U.S.C. §§ 1251-1387 (1988 & Supp. V 1993).
6. Id. § 1319(c)(2)(A). Specifically, the section states: Any person who . . . knowingly violates [various sections of the Clean Water Act] or any permit condition . . . [commits a felony and] shall be punished by a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment for not more than 3 years, or by both. Id.
7. Weitzenhoff, 35 F.3d at 1282.
8. Id. at 1281.
9. Id. at 1296 (Kleinfeld, J., dissenting). The purpose of this Note is neither to defend nor condone the actions of the two defendants. Rather, this Note is critical of the precedent established by the Ninth Circuit's opinion, which unjustifiably removes any mens rea requirement from the elements of the offense, making it easier for the prosecution to obtain a conviction. It is possible that the defendants' action or character so frustrated the district and appellate courts that removing the mens rea requirement was justified to ensure that these defendants were punished. There is no indication in the record, however, that these violations were systemic or that any other particularly egregious factors led to the courts' frustration. The courts neither highlighted nor presented any such factors as justification for their holdings. In easing the prosecution's burden in this case by permitting a conviction with no proof of the requisite mens rea, Weitzenhoff has established dangerous precedent. The desire to punish two individuals is no justification for subjecting multitudes of future defendants to criminal sanctions without any proof of the requisite criminal intent.
10. Id. at 1287 (opinion of the court). In addition to establishing effluent discharge limitations, the NPDES permit at issue also regulated "bypass." Bypass is the intentional diversion of waste streams from any portion of the treatment facility. The permit generally prohibited bypass except to "prevent loss of life, personal injury, or severe property damage." Id. Weitzenhoff and Mariani asserted that the discharges were permissible bypasses essential for the maintenance of the plant. Id.
11. Id. at 1283.
12. Id. at 1283-86.
13. Id. at 1293 (Kleinfeld, J., dissenting).
14. Id.
15. 53 F.3d 533 (2d Cir. 1995).
16. The facts in Hopkins do not portray the defendant as a model environmental manager. The particular NPDES permit required Spirol International Corporation to take weekly samples of the manufacturing facility's wastewater and deliver the samples to an independent laboratory each Friday for testing. The defendant directed his employees to take samples early in the week and test them. If the tests showed that the wastewater exceeded the NPDES permit limits, the defendant directed the employees to retest the wastewater the next day. If the samples continued to exceed the NPDES permit limitations, the defendant ordered the employees to dilute the samples before sending them to the independent laboratory. Id. at 535-36. As mentioned previously, this Note neither condones nor defends the actions of Robert Hopkins or the Weitzenhoff defendants. It does, however, criticize the opinion for adopting an interpretation which unnecessarily eased the prosecution's path to conviction. In an effort to catch a small fish, the court, following the example set by the Ninth Circuit, has cast an overly broad net and set a precedent that will inevitably entangle a large number of morally innocent people.
17. Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980).
18. United States v. Hoflin, 880 F.2d 1033, 1040 (9th Cir. 1989) (interpreting § 1319(c)(1) of the CWA, relating to misdemeanor violations), cert. denied, 493 U.S. 1083 (1990).
19. Weitzenhoff, 35 F.3d at 1284.
20. 33 U.S.C. § 1319(c)(1)(A).
21. Id. § 1319(c)(1)(B).
22. Id. § 1319(c)(2)(A) (emphasis added).
23. Id. § 1319(c)(2)(B).
24. Id. § 1319(c)(3)(A).
25. Weitzenhoff, 35 F.3d at 1283 ("[I]t is not apparent from the face of the statute whether 'knowingly' means a knowing violation of the law or simply knowing conduct that is violative of the law.").
26. Id. at 1294 (Kleinfeld, J., dissenting) (quoting 1 GEORGE O. CURME, A GRAMMAR OF THE ENGLISH LANGUAGE 72 (1935)).
27. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2554 (3d ed. 1981).
28. Id.
29. In this hypothetical provision, the adverb "knowingly" is placed before "discharges" to explain its meaning more clearly, indicating that the defendant only needs to have knowledge of the discharge (not the violation) to be convicted.
30. Weitzenhoff, 35 F.3d at 1294 (Kleinfeld, J., dissenting).
31. United States v. Hopkins, 53 F.3d 533, 537 (2d Cir. 1995).
32. Id. at 537-38. For a detailed discussion on the development and characteristics of a public welfare offense, see infra part II.
33. Hopkins, 53 F.3d at 541.
34. The CWA provides that those convicted of "knowing endangerment" are subject to a fine of not more than $250,000 or imprisonment of not more than 15 years, or both. 33 U.S.C. § 1319(c)(3)(A).
35. It is interesting to note that the action the prosecution must prove to obtain a felony conviction is the same action that entitles the EPA to commence a civil action under 33 U.S.C. § 1319(b). This section authorizes the EPA "to commence a civil action for appropriate relief, including a permanent or temporary injunction, for any violation [of the CWA.]" Id. Obviously, the civil penalties permitted under § 1319(b) are substantially less than the penalties which attach to felony convictions. See id. The Weitzenhoff court's interpretation, however, enables the prosecution to obtain felony convictions (and the accompanying penalties) for CWA violations by proving no more than the same action which would result in mere civil penalties.
36. It is important to note that because the statutory language of the enforcement provisions in the CWA is clear and unambiguous, it is unnecessary and ill advised to probe into the legislative history in an effort to uncover the "true" intent of Congress. The Supreme Court has stated: "[W]e do not resort to legislative history to cloud a statutory text that is clear." Ratzlaf v. United States, 114 S. Ct. 655, 662 (1994). However, even if an examination of the legislative history is appropriate, the following discussion shows that such an examination would not support the conclusion reached in Weitzenhoff.
37. Pub. L. No. 100-4, §§ 312, 313(a)(1), 313(c), 314(a), 101 Stat. 42, 45, 46 (1987) (codified at 33 U.S.C. §§ 1319, 1319(c)(1)(A), 1319(d), 1319(g) (1988)). The amendments created the multitier penalty scheme. The new legislation contained penalties for negligent violations, replaced "willfully" with "knowingly," and created a penalty for "knowing endangerment."
38. See H.R. CONF. REP. NO. 1004, 99th Cong., 2d Sess. 138 (1986); S. REP. NO. 50, 99th Cong., 1st Sess. 29 (1985).
39. Weitzenhoff, 35 F.3d at 1284 (quoting S. REP. NO. 50, supra note 37, at 29).
40. Id.
41. 33 U.S.C. § 1319(c)(2)(B). The section states: Any person who . . . knowingly introduces into a sewer system or into a publicly owned treatment works any pollutant or hazardous substance which such person knew or reasonably should have known could cause personal injury or property damage or . . . which causes such treatment works to violate any effluent limitation or condition in a permit . . . [commits a felony.] Id. (emphases added).
42. See supra text accompanying note 21.
43. See United States v. Hopkins, 53 F.3d 533 (2d Cir. 1995).
44. H.R. REP. NO. 189, 99th Cong., 1st Sess. 31 (1985).
45. Morissette v. United States, 342 U.S. 246, 250 (1952).
46. 4 WILLIAM BLACKSTONE, COMMENTARIES *21.
47. Morissette, 342 U.S. at 252.
48. Francis B. Sayre, Public Welfare Offenses, 33 COLUM. L. REV. 55, 68 (1933).
49. One can see a parallel trend in civil common law developing during the same period. In the late 19th and early 20th centuries, the law witnessed the emergence of strict liability for certain abnormally dangerous activities. See, e.g., Enos Coal Mining Co. v. Schuchart, 188 N.E.2d 406 (Ind. 1963); Healey v. Citizens' Gas & Elec. Co., 201 N.W. 118 (Iowa 1924); Ball v. Nye, 99 Mass. 582 (1868); Cahill v. Eastman, 18 Minn. 324 (1872); Berg v. Reaction Motors Div., Thiokol Chem. Corp., 181 A.2d 487 (N.J. 1962); see also Rylands v. Fletcher, 3 L.R.-E. & I. App. 330 (1868).
50. Sayre, supra note 47, at 56.
51. 84 Mass. (2 Allen) 160 (1861).
52. Id. at 160.
53. Sayre, supra note 47, at 64-66.
54. Id. at 73.
55. Id. at 70.
56. United States v. United States Gypsum Co., 438 U.S. 422, 437 (1978).
57. Morissette v. United States, 342 U.S. 246, 263 (1952).
58. United States v. Dotterweich, 320 U.S. 277 (1943).
59. Id. at 281.
60. United States v. Park, 421 U.S. 658, 670 (1975).
61. Dotterweich, 320 U.S. at 280.
62. JAMES T. O'REILLY, FOOD AND DRUG ADMINISTRATION § 3.02, at 3-6 (2d ed. 1993). The propaganda of the day deserves much of the credit for the creation of the legislation. Propaganda helped the general public become more aware of the unsanitary conditions of the slaughterhouses and food warehouses. Literature such as Upton Sinclair's 1905 novel The Jungle presented information to the public regarding the appalling practices of the meat-packing industry. Heightened public awareness of conditions through publications such as Sinclair's novel helped produce a public mandate for federal regulation in this and similar industries to protect the public's welfare. Id. at 3-5.
63. Federal Food, Drug, and Cosmetic Act, ch. 675, 52 Stat. 1040 (1938) (codified as amended at 21 U.S.C. §§ 301-95 (1994)). The amendments changed the 1906 Act in several ways: First, the enforcement remedy of injunction was added to the existing seizure and criminal authorities. Second, standards of identity for all but a few foods were authorized in an expansion of the 1930 canned-food standardization statute. Third, nonstandardized foods with two or more ingredients were required to list all ingredients. Fourth, drugs were required to undergo prior screening by the [Food and Drug Administration ("FDA")] - a form of negative option power to reject proffered applications. Fifth, cosmetics and devices came under regulation for the first time. Finally, the FDA's enforcement power was generally enlarged as the number and type of offenses increased. O'REILLY, supra note 61, § 3.04, at 3-11.
64. S. REP. NO. 152, 75th Cong., 1st Sess., pt. 1, at 1 (1937). A House Committee expressed the same sentiment when it declared that the amendments "seek[] to set up effective provisions against abuses of consumer welfare growing out of inadequacies in the Food and Drugs Act of June 30, 1906." H. REP. NO. 2139, 75th Cong., 3d Sess., pt. 1, at 1 (1938).
65. David F. Cavers, The Food, Drug, and Cosmetic Act of 1938: Its Legislative History and Its Substantive Provisions, 6 LAW & CONTEMP. PROBS. 2, 20 (1939). The deaths occurred as a result of a fatal error by a developmental chemist for the Massengill Company. A new solvent for a drug had been tested for qualities such as flavor and fragrance but never for safety. The chemists never even performed tests on animals before Massengill marketed the drug for public consumption. More than 73 - perhaps over 90 - persons died after ingesting the new drug solvent. Id. 65. See supra note 62.
66. 33 U.S.C. § 1251(a) (1988).
67. This distinction, of course, does not diminish the importance of the CWA. The CWA is an extremely important tool which can help society preserve the earth's fragile environment for future generations. The distinction, however, leads one to question whether it is appropriate to include the CWA in a class of statutes primarily designed to prevent loss of human life and to increase public safety.
68. Because the argument in the context of the CWA is less compelling, one should refrain from applying the public welfare offense rationale to it without critically analyzing the other three characteristics.
69. 471 U.S. 419, 433 (1985).
70. 402 U.S. 558 (1971).
71. Id. at 565. The Supreme Court has not fully embraced the idea that all "dangerous" and "regulated" activity should be governed by the public welfare doctrine. The Court has been especially reluctant to apply the doctrine in situations where a violation could result in a prison term, as in Weitzenhoff. In Staples v. United States, 114 S. Ct. 1793 (1994), the Court deemed the following hypothetical unacceptable: Automobiles, for example, might also be termed "dangerous" devices and are highly regulated at both the state and federal levels. Congress might see fit to criminalize the violation of certain regulations concerning automobiles, and thus might make it a crime to operate a vehicle without a properly functioning emission control system. But we probably would hesitate to conclude on the basis of silence that Congress intended a prison term to apply to a car owner whose vehicle's emissions levels, wholly unbeknownst to him, began to exceed legal limits between regular inspection dates. Id. at 1801-02.
72. International Minerals, 402 U.S. at 564-65.
73. 33 U.S.C. § 1362(6) (1988).
74. Id.
75. Sayre, supra note 47, at 72.
76. See, e.g., United States v. Park, 421 U.S. 658, 671 (1975) (holding that when the statute under which defendants were prosecuted dispensed with "consciousness of wrongdoing," an omission or failure to act was deemed a sufficient basis for liability); United States v. Freed, 401 U.S. 601, 607 (1971) (holding that no element of scienter was necessary for conviction under a statute which made it unlawful "to receive or possess a firearm which is not registered"); United States v. Dotterweich, 320 U.S. 277, 281 (1943) (stating that the Federal Food, Drug, and Cosmetic Act did not require knowledge that the items were misbranded or adulterated); United States v. Balint, 258 U.S. 250 (1922) (holding that in order for the government to prove the defendant violated the Narcotic Act of 1914, which did not contain a mens rea requirement, it need only prove that the defendant knew that he was selling drugs, not that he knew the specific items he had sold were "narcotics"); People v. Sheffield Farms-Slawson-Decker Co., 225 N.Y. 25 (1918) (stating that convictions under the child labor laws could be obtained without proof that the defendant knew the children were under age because the statute did not require knowledge on the part of the defendant). But cf. International Minerals, 402 U.S. at 559 (holding that knowledge of the regulation is not required for conviction under a statute which states that whoever "knowingly violates any such regulation" shall be fined).
77. Chicago, B. & Q. Ry. v. United States, 220 U.S. 559, 578 (1910). Recently, in Staples v. United States, 114 S. Ct. 1793 (1994), the Court, in reaffirming its recognition of public welfare offenses, has understood Congress to impose a form of strict criminal liability through statutes that do not require the defendant to know the facts that make his conduct illegal. In construing such statutes, we have inferred from silence that Congress did not intend to require proof of mens rea to establish an offense. Id. at 1797.
78. 258 U.S. 250.
79. Id. at 253-54. The Narcotic Act provided, in part: That it shall be unlawful for any person to sell, barter, exchange, or give away any of the aforesaid drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue. Id. at 254 n.1.
80. Id. at 254.
81. 933 F.2d 35 (1st Cir. 1991).
82. 42 U.S.C. § 6928(d)(1) (1988 & Supp. V 1993).
83. Section 6928(d)(1) penalizes "[a]ny person who . . . knowingly transports or causes to be transported any hazardous waste identified or listed under the subchapter to a facility which does not have a permit."
84. MacDonald, 933 F.2d at 52. In reaching its holding, the court also noted that this "crime is a felony carrying possible imprisonment of five years and, for a second offense, ten." Id. For a more detailed comparison between the potential penalties under the traditional public welfare offenses and those requiring proof of the defendant's knowledge, see infra part II.E.
85. 114 S. Ct. 655 (1994).
86. Id. at 657. In the opinion, the Court criticized the Ninth Circuit for "treat[ing] . . . [the] 'willfulness' requirement essentially as surplusage - as words of no consequence." Id. at 659.
87. Id. at 663 (citations omitted).
88. 33 U.S.C. § 1319(c)(2)(A) (emphasis added). For a thorough discussion of the enforcement section of the CWA, see supra notes 19-29 and accompanying text.
89. See supra notes 75-80 and accompanying text.
90. This is exactly the course the Ninth Circuit took in Weitzenhoff. The court only required the government to prove that the defendants were aware of the behavior that caused the violation. The court did not require proof that the defendants knew their actions violated the permit. Weitzenhoff, 35 F.3d at 1284. The court's holding merely required the defendants to know that they were discharging pollutants into the ocean. As managers of a waste treatment plant, the two defendants knew the plant was discharging waste into the ocean daily. Therefore, each day the defendants came to work, this knowledge subjected them to the possibility of criminal liability. Eliminating the need for prosecutors to prove the defendants knew that the discharges violated the waste treatment plant's NPDES permit, in effect, subjects the defendants to strict liability for any permit violation at the plant.
91. See ROLLIN M. PERKINS, CRIMINAL LAW 793-98 (2d ed. 1969).
92. See, e.g., Commonwealth v. Raymond, 97 Mass. 567 (1867) (fine up to $200 or six months in jail, or both); Commonwealth v. Farren, 91 Mass. (9 Allen) 489 (1864) (small fine); People v. Snowburger, 71 N.W. 497 (Mich. 1897) (fine up to $500 or incarceration in county jail). But see, e.g., State v. Lindberg, 215 P. 41 (Wash. 1923) (applying the public welfare statute offense rationale to a felony).
93. Morissette v. United States, 342 U.S. 246, 256 (1952).
94. Sayre, supra note 47, at 70.
95. People v. Sheffield Farms-Slawson-Decker Co., 121 N.B. 474, 477 (N.Y. 1918).
96. See PERKINS, supra note 91, at 793-98 (suggesting that the penalty should be the starting point in determining whether a statute describes a public welfare offense); Sayre, supra note 47, at 72 ("Crimes punishable by prison sentences, therefore, ordinarily require proof of a guilty intent.").
97. Weitzenhoff, 35 F.3d at 1285-86.
98. Section 1319(c)(2) provides that violators of this section shall be punished by a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment for not more than 3 years, or by both. If the conviction of a person is for a violation committed after a first conviction of such person under this paragraph, punishment shall be a fine of not more than $100,000 per day of the violation, or by imprisonment of not more than 6 years, or by both. 33 U.S.C. § 1319(c)(2).
99. Staples v. United States, 114 S. Ct. 1793, 1803-04 (1994) (quoting Morissette v. United States, 342 U.S. 246, 260 (1952) (quoting 2 SIR FREDERIC POLLOCK & FREDERIC W. MAITLAND, HISTORY OF ENGLISH LAW 465 (2d ed.) (London, Cambridge Univ. 1898))).
100. See supra notes 66-68 and accompanying text. Unlike other traditional public welfare statutes, however, the CWA's primary objective is not to protect the public's health and safety. Arguably, almost all statutes that regulate individuals' actions seem to protect health and safety, although they may have another, primary purpose. Courts should not interpret all statutes as public welfare statutes, however, merely because they have this collateral purpose.
101. See supra notes 73-74 and accompanying text. The reader should also remember, however, that the CWA also regulates materials relatively harmless to humans such as rock, sand, and dirt. See supra note 74 and accompanying text.
102. See supra notes 88-90 and accompanying text.
103. See supra notes 97-99 and accompanying text.
104. See, e.g., Ratzlaf v. United States, 114 S. Ct. 655 (1994); United States v. MacDonald & Watson Waste Oil Co., 933 F.2d 35 (1st Cir. 1991); United States v. Hayes Int'l Corp., 786 F.2d 1499 (11th Cir. 1986); United States v. Johnson & Towers, Inc., 741 F.2d 662 (3d Cir. 1984).
105. 741 F.2d 662.
106. 42 U.S.C. §§ 6901-6989 (1988 & Supp. V 1993).
107. Id. § 6928(d)(2)(A).
108. Johnson & Towers, 741 F.2d at 668.
109. Id. at 665.
110. Id. at 667. The court determined that "no less than in the Food and Drugs Act, Congress endeavored to control hazards that, 'in the circumstances of modern industrialism, are largely beyond self-protection.'" Id. (quoting United States v. Dotterweich, 320 U.S. 277, 280 (1943)). The court also recognized that "it is well established that criminal penalties attached to regulatory statutes intended to protect public health, in contrast to statutes based on common law crimes, are to be construed to effectuate the regulatory purpose." Id. at 666 (citing United States v. Park, 421 U.S. 658, 672-73 (1975); Smith v. California, 361 U.S. 147, 152 (1959); Dotterweich, 320 U.S. at 280-81, 284-85; United States v. Balint, 258 U.S. 250, 251-52 (1922)).
111. Johnson & Towers, 741 F.2d at 668. It is interesting to note that although the court in Johnson & Towers concluded that RCRA was a public welfare statute, it still required proof that the defendant knew there had been no compliance with the permit requirement. Arguably, the CWA should not be classified as a public welfare statute. See supra part II.F. Unlike RCRA, which is a "cradle-to-grave" regulatory scheme for toxic materials, hazardous waste, and other noxious articles, the CWA regulates discharges of some harmless materials such as rock, sand, dirt, and hot water, and was not designed primarily to protect public health and safety. If the Johnson & Towers court considered RCRA to be a public welfare statute and still required proof of mens rea for a conviction, it would seem incongruous to remove the mens rea requirement from a statute which arguably is not a public welfare statute.
112. Johnson & Towers, F.2d at 668.
113. The Weitzenhoff court required the prosecution to prove only that the defendants were knowingly discharging pollutants, not that they also knew the discharges violated the permit. Weitzenhoff, 35 F.3d at 1283.
114. 880 F.2d 1033 (9th Cir. 1989).
115. Id. at 1038.
116. 42 U.S.C. § 6928(d)(2)(B) (emphasis added).
117. See supra note 21 and accompanying text.
118. Hoflin, 880 F.2d at 1038.
119. 786 F.2d 1499 (11th Cir. 1986).
120. 42 U.S.C. § 6928(d)(1).
121. Hayes Int'l Corp., 786 F.2d at 1504.
122. United States v. Weitzenhoff, 35 F.3d 1275, 1294 (9th Cir. 1994) (Kleinfeld, J., dissenting), cert. denied, 115 S. Ct. 939 (1995).
123. See, e.g., United States v. Laughlin, 10 F.3d 961, 965-66 (2d Cir. 1993) (construing § 6928(d)(2)(A) of RCRA), cert. denied, 114 S. Ct. 1649 (1994); United States v. Buckley, 934 F.2d 84, 88 (6th Cir. 1991) (interpreting the pre-1990 version of § 7413(c)(1)(C) of the Clean Air Act); United States v. Dee, 912 F.2d 741, 745 (4th Cir. 1990), cert. denied, 499 U.S. 919 (1991); United States v. Corbin Farm Serv., 444 F. Supp. 510, 519-20 (E.D. Cal.), aff'd, 578 F.2d 259 (9th Cir. 1978) (construing the Federal Insecticide, Fungicide and Rodenticide Act).
124. 402 U.S. 558 (1971).
125. Id. at 559 (construing 18 U.S.C. § 834(f) (1976), repealed by Pub. L. No. 96-129, § 216(b), 93 Stat. 1015 (1979)).
126. International Minerals, 402 U.S. at 559.
127. Id. at 565.
128. Id.
129. United States v. Hayes Int'l Corp., 786 F.2d 1499, 1504 (11th Cir. 1986).
130. United States v. United States Gypsum Co., 438 U.S. 422, 445 (1978) (quoting WAYNE R. LAFAVE & AUSTIN W. SCOTT, CRIMINAL LAW 196 (1972)); see also United States v. Bailey, 444 U.S. 394, 404 (1980).
131. United States v. Hopkins, 53 F.3d 533, 542 (2d Cir. 1995).
132. Id. (quoting United States v. Rodriguez, 983 F.2d 455, 458 (2d Cir. 1993)); see also United States v. Civelli, 883 F.2d 191, 194-95 (2d Cir.), cert. denied, 493 U.S. 966 (1989). In Hopkins, the court acknowledged that a conscious-avoidance instruction was applicable to its facts because both prerequisites for the instruction were present. Despite the appropriateness of this conclusion, however, it is inconsistent with its other conclusion regarding the knowledge requirement in the statute. With respect to mens rea, the court held that the prosecution need merely prove that the defendant had knowledge of his activity, not the violation. However, the court also acknowledged that the conscious-avoidance instruction would allow the jury to find that the defendant had the equivalent of knowledge of the violation. A more consistent approach would be for the court to both require the prosecution to prove the defendant had knowledge of the violation, and to instruct the jury that it may convict the defendant if it finds the defendant had the equivalent of this knowledge due to the defendant's conscious avoidance.
133. See, e.g., Chemical Mfrs. Ass'n v. Natural Resources Defense Council, 470 U.S. 116, 125 (1985) (granting "considerable deference" to the EPA in construing the Clean Water Act); Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 848 (1984) (noting complexity and detail of Clean Air Act amendments).
134. Bartman, supra note 2, at 3 (quoting New EPA "Common Sense" Approach Cautiously Welcomed by Industry, AIR WATER POLLUTION REP., July 25, 1994, at 30); accord Inland Steel Co. v. Environmental Protection Agency, 901 F.2d 1419, 1421 (7th Cir. 1990) (stating that RCRA is a "Statutory Cloud Cuckoo Land"); United States v. White, 766 F. Supp. 873, 882 (E.D. Wash. 1991) (stating that "RCRA is a regulatory cuckoo land of definition" and quoting Don R. Clay, former assistant administrator for the EPA Office of Solid Waste and Emergency Response).
135. Bartman, supra note 2, at 3.
136. Brief of Air Transport Association of America et al. as Amici Curiae in Support of Petitioners at 15, Mariani v. United States, 115 S. Ct. 939 (1995) (No. 94-6683); see 40 C.F.R. §§ 100-149, 400-503 (regulations implementing the CWA); id. §§ 50-99 (regulations implementing the Clean Air Act); id. §§ 240-299 (regulations implementing the RCRA).
137. Bartman, supra note 2, at 3.
138. For example, at a medium-size chemical processing plant in northern Indiana, 5400 worker hours are devoted to the testing and reporting requirements each year. Linda Lipp, Environmental Rules Keep Firms Busy: Staying Legal Means Work, FORT WAYNE J. & COURIER, Aug. 13, 1995, at E12.
139. Bartman, supra note 2, at 3; see also 40 C.F.R. §§ 401-424 (1995).
140. Brief of Air Transport Association of America et al. at 14, Mariani (No. 94-6683).
141. Bartman, supra note 2, at 3 (citing 47 Fed. Reg. 24,535 (1982)).
142. 320 U.S. 277, 278 (1943); see supra notes 57-58 and accompanying text.
143. Id. at 284.
144. Dotterweich, 320 U.S. at 281.
145. Id. at 285.
146. M. Diane Barber, Fair Warning: The Deterioration of Scienter Under Environmental Criminal Statutes, 26 LOY. L.A. L. REV. 105, 115 (1992).
147. 421 U.S. 658 (1975).
148. Id. at 673-76.
149. Barber, supra note 146, at 127.
150. Park, 421 U.S. at 672.
151. Weitzenhoff holds that no one has to have knowledge of a permit violation in order for criminal sanctions to apply. Under Weitzenhoff, it is possible that a corporate executive could be convicted of a felony and sentenced to three years in prison despite the fact that even the employee directly monitoring the discharges did not know the discharges were in violation of the NPDES permit. The violations could result from, among other things, mechanical failure or human error.
152. Park, 421 U.S. at 683 (Stewart, J., dissenting).
153. The convergence of the responsible corporate officer doctrine and prosecutions of "knowing violations" under the CWA has already begun to appear in the language of some court opinions. In United States v. Hopkins, 53 F.3d 533, 541 (2d Cir. 1995), the court noted that the defendant "had sole corporate responsibility for supervising the [corporation's] wastewater testing program throughout the relevant period." While the court did not rely on Hopkins' corporate position as the only reason for upholding his conviction, it did use that fact as evidence that Hopkins was aware of the permit requirements and of the corporation's environmental practices. Id. 154. One may argue that Weitzenhoff is not deterring activity, but rather encouraging a socially desirable behavior: 100% compliance with environmental regulations and permits. However, as indicated above, 100% compliance at all times is virtually impossible. See supra note 141 and accompanying text. It is unlikely that very many persons will be willing to subject themselves to strict criminal liability knowing that, despite an individual's best efforts, 100% compliance is not a possibility. A more appropriate way to encourage regulatory compliance without deterring qualified personnel from directing environmental management programs may be to apply a negligence standard. Under this standard, individuals could be prosecuted for permit violations if their diligence became deficient. However, they would not be subject to felony convictions or prison sentences should they inadvertently violate a permit. Fortunately, this alternative is already available to courts and prosecutors, since Congress included this enforcement scheme under § 1319(c)(1) of the CWA. Courts should apply this negligence standard and refrain from unjustifiably subjecting environmental managers to strict liability.
154. For example, these less qualified managers may be unable to accurately calculate the complicated permit requirements and limitations and may thus cause additional pollution to be released into the environment. The fact that they are later convicted of violating the permit and sentenced to years in prison does not remedy the harm to the environment - a harm that could have been avoided had more qualified individuals managed the corporation's environmental affairs.
155. United States v. Weitzenhoff, 35 F.3d 1275, 1293 (9th Cir. 1994) (Kleinfeld, J., dissenting), cert. denied, 115 S. Ct. 939 (1995).