The Rhetoric of Environmental Crime: Culpability, Discretion, and Structural Reform

Iowa Law Review

Volumn 84, Issue 1, 1998, Pages

  Brickey, Kathleen F ^a  

^a WASHINGTON UNIVERSITY   (United States)

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EID: 0542394683     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (183)

1. See, e.g., Donald A. Carr, Preface, in ENVIRONMENTAL CRIMINAL LIABILITY: AVOIDING AND DEFENDING ENFORCEMENT ACTIONS, at v, v (Donald A. Carr ed., 1995) (finding troublesome prosecutors' reliance on unfair but legally plausible prosecution theories); Kevin A. Gaynor et al., Environmental Criminal Prosecutions: Simple Fixes For A Flawed System, 3 VILL. ENVTL. L.J. 1, 11 (1992) (arguing that minimal culpability standards foster unprincipled and unpredictable applications of the law and allow treatment of virtually any environmental violation as a crime); Richard J. Lazarus, Meeting The Demands of Integration in the Evolution of Environmental Law: Reforming Environmental Criminal Law, 83 GEO. L.J. 2407, 2453-55, 2479-80, 2486-89, 2515 (1995) (asserting that in light of the scope and complexity of the regulations and the current culpability requirements, it may be unfair to impose felony penalties for environmental crimes). My earlier Article on the intersection of environmental and criminal law theory explains why this indiscriminate claim is unwarranted. See generally Kathleen F. Brickey, Environmental Crime at the Crossroads: The Intersection of Environmental and Criminal Law Theory, 71 TUL. L. REV. 487 (1996).
2. See, e.g., Donald A. Carr, Preface, in ENVIRONMENTAL CRIMINAL LIABILITY: AVOIDING AND DEFENDING ENFORCEMENT ACTIONS, at v, v (Donald A. Carr ed., 1995) (finding troublesome prosecutors' reliance on unfair but legally plausible prosecution theories); Kevin A. Gaynor et al., Environmental Criminal Prosecutions: Simple Fixes For A Flawed System, 3 VILL. ENVTL. L.J. 1, 11 (1992) (arguing that minimal culpability standards foster unprincipled and unpredictable applications of the law and allow treatment of virtually any environmental violation as a crime); Richard J. Lazarus, Meeting The Demands of Integration in the Evolution of Environmental Law: Reforming Environmental Criminal Law, 83 GEO. L.J. 2407, 2453-55, 2479-80, 2486-89, 2515 (1995) (asserting that in light of the scope and complexity of the regulations and the current culpability requirements, it may be unfair to impose felony penalties for environmental crimes). My earlier Article on the intersection of environmental and criminal law theory explains why this indiscriminate claim is unwarranted. See generally Kathleen F. Brickey, Environmental Crime at the Crossroads: The Intersection of Environmental and Criminal Law Theory, 71 TUL. L. REV. 487 (1996).
3. See, e.g., Donald A. Carr, Preface, in ENVIRONMENTAL CRIMINAL LIABILITY: AVOIDING AND DEFENDING ENFORCEMENT ACTIONS, at v, v (Donald A. Carr ed., 1995) (finding troublesome prosecutors' reliance on unfair but legally plausible prosecution theories); Kevin A. Gaynor et al., Environmental Criminal Prosecutions: Simple Fixes For A Flawed System, 3 VILL. ENVTL. L.J. 1, 11 (1992) (arguing that minimal culpability standards foster unprincipled and unpredictable applications of the law and allow treatment of virtually any environmental violation as a crime); Richard J. Lazarus, Meeting The Demands of Integration in the Evolution of Environmental Law: Reforming Environmental Criminal Law, 83 GEO. L.J. 2407, 2453-55, 2479-80, 2486-89, 2515 (1995) (asserting that in light of the scope and complexity of the regulations and the current culpability requirements, it may be unfair to impose felony penalties for environmental crimes). My earlier Article on the intersection of environmental and criminal law theory explains why this indiscriminate claim is unwarranted. See generally Kathleen F. Brickey, Environmental Crime at the Crossroads: The Intersection of Environmental and Criminal Law Theory, 71 TUL. L. REV. 487 (1996).
4. See, e.g., Donald A. Carr, Preface, in ENVIRONMENTAL CRIMINAL LIABILITY: AVOIDING AND DEFENDING ENFORCEMENT ACTIONS, at v, v (Donald A. Carr ed., 1995) (finding troublesome prosecutors' reliance on unfair but legally plausible prosecution theories); Kevin A. Gaynor et al., Environmental Criminal Prosecutions: Simple Fixes For A Flawed System, 3 VILL. ENVTL. L.J. 1, 11 (1992) (arguing that minimal culpability standards foster unprincipled and unpredictable applications of the law and allow treatment of virtually any environmental violation as a crime); Richard J. Lazarus, Meeting The Demands of Integration in the Evolution of Environmental Law: Reforming Environmental Criminal Law, 83 GEO. L.J. 2407, 2453-55, 2479-80, 2486-89, 2515 (1995) (asserting that in light of the scope and complexity of the regulations and the current culpability requirements, it may be unfair to impose felony penalties for environmental crimes). My earlier Article on the intersection of environmental and criminal law theory explains why this indiscriminate claim is unwarranted. See generally Kathleen F. Brickey, Environmental Crime at the Crossroads: The Intersection of Environmental and Criminal Law Theory, 71 TUL. L. REV. 487 (1996).
5. See, e.g., Gaynor et al., supra note 1, at 11 (stating that current culpability standards allow prosecutors to treat basically any violation as a crime); Robert A. Kagan, Regulatory Enforcement, in HANDBOOK OF REGULATION AND ADMINISTRATIVE LAW 383, 408 (David H. Rosenbloom & Richard D. Schwartz eds., 1994) (suggesting that for many, discretion "raises the specter of inconsistency, arbitrary treatment, bias, and corruption"); Lazarus, supra note 1, at 2487-89 (criticizing blind reliance on prosecutorial discretion as a mechanism to ensure that only the truly culpable are prosecuted).
6. See, e.g., Gaynor et al., supra note 1, at 11, 31 (stating that the decision to treat a violation criminally, civilly or administratively should not be made "on the whim of an Assistant U.S. Attorney"); Lazarus, supra note 1, at 2512 (stating that critical policy matters "should not be left to judicial speculation or to the whim of a single federal prosecutor").
7. See, e.g., Lazarus, supra note 1, at 2453-55, 2510-17 (calling for reform of environmental mens rea requirements to encompass only violators who are morally culpable); R. Christopher Locke, Environmental Crimes: The Absence of "Intent" and the Complexities of Compliance, 16 COLUM. J. ENVTL. L. 311, 313, 320-21 (1991) (characterizing the current culpability standards as minimal and a deviation from traditional mens rea requirements); Judson W. Starr et al., Protecting the Heavens and The Earth, LEGAL TIMES, May 31, 1993, at 6 (decrying the deceptively low threshold for environmental criminal liability).
8. See, e.g., Lazarus, supra note 1, at 2453-55, 2510-17 (calling for reform of environmental mens rea requirements to encompass only violators who are morally culpable); R. Christopher Locke, Environmental Crimes: The Absence of "Intent" and the Complexities of Compliance, 16 COLUM. J. ENVTL. L. 311, 313, 320-21 (1991) (characterizing the current culpability standards as minimal and a deviation from traditional mens rea requirements); Judson W. Starr et al., Protecting the Heavens and The Earth, LEGAL TIMES, May 31, 1993, at 6 (decrying the deceptively low threshold for environmental criminal liability).
9. See, e.g., David S. Krakoff & Fred R. Wagner, Advising Clients in the Post-Weitzenhoff Era, CRIM. JUST., Fall 1995, at 10, 14 (predicting that the decision in United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993), will subject innocent conduct to criminal penalties); Lazarus, supra note 1, at 2487 (cautioning that it is unwise to blindly trust prosecutors to refrain from prosecuting those who are morally innocent but who technically fall within the environmental criminal provisions); Kevin Phillip Cichetti, Note, United States v. Weitzenhoff: Reading Out the "Knowingly" from "Knowingly Violates" in the Clean Water Act, 18 U.S.C. § 1319(c)(2)(A), 9 ADMIN. L.J. 1183, 1185-87 (1996) (arguing that the mens rea requirements should be changed so that innocent conduct will not be punished).
10. See, e.g., David S. Krakoff & Fred R. Wagner, Advising Clients in the Post-Weitzenhoff Era, CRIM. JUST., Fall 1995, at 10, 14 (predicting that the decision in United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993), will subject innocent conduct to criminal penalties); Lazarus, supra note 1, at 2487 (cautioning that it is unwise to blindly trust prosecutors to refrain from prosecuting those who are morally innocent but who technically fall within the environmental criminal provisions); Kevin Phillip Cichetti, Note, United States v. Weitzenhoff: Reading Out the "Knowingly" from "Knowingly Violates" in the Clean Water Act, 18 U.S.C. § 1319(c)(2)(A), 9 ADMIN. L.J. 1183, 1185-87 (1996) (arguing that the mens rea requirements should be changed so that innocent conduct will not be punished).
11. See Gaynor et al., supra note 1, at 12 (calling courts' construction of the knowledge requirement a deviation from traditional criminal law); Locke, supra note 4, at 313, 320 (stating that proof of traditional criminal intent is not required for environmental crimes).
12. See Kenneth Berlin, Criminal Liability of Corporate Officers, Directors, and Employees Under U.S. Environmental Laws, in ENVIRONMENTAL CRIMINAL LIABILITY, supra note 1, at 112, 133 (stating that courts have lowered the burden of proof by accepting the public welfare offense analogy and the responsible corporate officer doctrine); Locke, supra note 4, at 321 (stating that courts have relaxed the standards for proving scienter).
13. See Joseph G. Block, The Government's Decision to Initiate an Investigation, in ENVIRONMENTAL CRIMINAL LIABILITY, supra note 1, at 21, 27 (suggesting that discretion regarding the decision to proceed civilly or criminally raises questions of fairness in the context of cases that fall short of midnight dumping).
14. Robert L. Rabin, Agency Criminal Referrals in the Federal System: An Empirical Study of Prosecutorial Discretion, 24 STAN. L. REV. 1036, 1037 (1972) (referring to prosecutorial discretion).
15. JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW § 13.02[B][1] (2d ed. 1995); WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL LAW § 5.1(a), (d) (2d ed. 1986).
16. See DRESSLER, supra note 10, § 13.02[D], at 154 (discussing the role of ignorance or mistake in negating mens rea); LAFAVE & SCOTT, supra note 10, § 5.1(b), at 407 (same). A homeowner who removes substantial quantities of friable asbestos during a home renovation project without first obtaining a required permit has violated the prohibition against knowingly removing asbestos without a permit, even if he was ignorant of the permit requirement or had mistakenly concluded that it applied only to commercial demolition work. If the owner was unaware that asbestos was present, however, that factual mistake would negate the requisite knowledge.
17. See Gaynor et al., supra note 1, at 12 (asserting that the deviation derives from cases holding that public welfare offenses require "neither knowledge of the law nor a specific intent to violate the law"); cf. Kasturi Bagchi, Application of the Rule of Lenity: The Specter of the Midnight Dumper Returns, 8 TUL. ENVTL. L.J. 265, 274-75 (1994) (stating that in the context of public welfare offenses, the government only needs to show that the defendant intended to commit the act, not that he had specific intent to violate the law); C. Boyden Gray et al., "Attempted" Environmental Crimes: A Flawed Concept, 14 J.L. & POL'Y 363, 364, 369 (1998) (claiming that unlike common-law crimes such as murder, for which courts require proof of guilty knowledge, environmental crimes do not require specific intent to commit a criminal act).
18. See Gaynor et al., supra note 1, at 12 (asserting that the deviation derives from cases holding that public welfare offenses require "neither knowledge of the law nor a specific intent to violate the law"); cf. Kasturi Bagchi, Application of the Rule of Lenity: The Specter of the Midnight Dumper Returns, 8 TUL. ENVTL. L.J. 265, 274-75 (1994) (stating that in the context of public welfare offenses, the government only needs to show that the defendant intended to commit the act, not that he had specific intent to violate the law); C. Boyden Gray et al., "Attempted" Environmental Crimes: A Flawed Concept, 14 J.L. & POL'Y 363, 364, 369 (1998) (claiming that unlike common-law crimes such as murder, for which courts require proof of guilty knowledge, environmental crimes do not require specific intent to commit a criminal act).
19. See Berlin, supra note 7, at 133-34 (claiming that courts are receptive to a "reduced" standard of knowledge); Carol E. Dinkins, Criminal Enforcement of Environmental Regulations: The Genesis of Environmental Enforcement Through Criminal Sanctions, in ENVIRONMENTAL CRIMINAL LIABILITY, supra note 1, at 1, 25 (asserting that case law has progressively lowered the level of scienter needed to convict); Krakoff & Wagner, supra note 5, at 55 (calling the Ninth Circuit's standard for finding the requisite knowledge "relaxed"); Keith A. Onsdorff & James M. Mesnard, The Responsible Corporate Officer Doctrine in RCRA Criminal Enforcement: What You Don't Know Can Hurt You, 22 Envtl. L. Rep. (Envtl. L. Inst.) 10,099, 10,102 (Feb. 1992) (claiming that case law has "incrementally reduced" the level of knowledge required to convict).
20. See Berlin, supra note 7, at 133-34 (claiming that courts are receptive to a "reduced" standard of knowledge); Carol E. Dinkins, Criminal Enforcement of Environmental Regulations: The Genesis of Environmental Enforcement Through Criminal Sanctions, in ENVIRONMENTAL CRIMINAL LIABILITY, supra note 1, at 1, 25 (asserting that case law has progressively lowered the level of scienter needed to convict); Krakoff & Wagner, supra note 5, at 55 (calling the Ninth Circuit's standard for finding the requisite knowledge "relaxed"); Keith A. Onsdorff & James M. Mesnard, The Responsible Corporate Officer Doctrine in RCRA Criminal Enforcement: What You Don't Know Can Hurt You, 22 Envtl. L. Rep. (Envtl. L. Inst.) 10,099, 10,102 (Feb. 1992) (claiming that case law has "incrementally reduced" the level of knowledge required to convict).
21. See Cichetti, supra note 5, at 1205 ("[F]ailing to require knowledge of illegality is undesirable because it treats the scienter term as mere surplusage."); cf. Lazarus, supra note 1, at 2468 (noting that the environmental criminal provisions provide some textual support for requiring that the defendant must know that an external standard governs the conduct and that the conduct violates the standard, even though the defendant may not know the conduct is illegal).
22. Comments of Former Justice Department and EPA Officials on Draft Environmental Guidelines Prepared by Advisory Working Group on Environmental Sanctions, IN ENVIRONMENTAL CRIMINAL LIABILITY, supra note 1, at 375, 378. Most courts confronted with the argument that knowledge of illegality should be required analogize environmental crimes to public welfare offenses. See, e.g., United States v. Hopkins, 53 F.3d 533, 538-45 (2d Cir. 1995); United States v. Wagner, 29 F.3d 264, 265 (7th Cir. 1994); United States v. Laughlin, 10 F.3d 961, 965-66 (2d Cir. 1993); United States v. Weitzenhoff, 35 F.3d 1275, 1286 (9th Cir. 1993); United States v. Dean, 969 F.2d 187, 191 (6th Cir. 1992); United States v. Buckley, 934 F.2d 84, 88 (6th Cir. 1991); United States v. MacDonald & Watson Oil Co., 933 F.2d 35, 46 (1st Cir. 1991); United States v. Sellers, 926 F.2d 410, 415-16 (5th Cir. 1991); United States v. Dee, 912 F.2d 741, 745 (4th Cir. 1990); United States v. Hoflin, 880 F.2d 1033, 1036 (9th Cir. 1989); United States v. Hayes Int'l Corp., 786 F.2d 1499, 1503 (11th Cir. 1986); Wyckoff Co. v. EPA, 796 F.2d 1197, 1198 (9th Cir. 1986); United States v. Johnson & Towers, Inc., 741 F.2d 662, 667 (3d Cir. 1984); United States v. Corbin Farm Serv., 444 F. Supp. 510, 535-36 (E.D. Cal.), aff'd in part, 578 F.2d 259 (9th Cir. 1978). Relying on United States v. International Minerals & Chemical Corporation, 402 U.S. 558 (1971) (holding that transporters of corrosive liquids are chargeable with knowledge that their conduct is regulated), courts routinely reject the argument that failure to require knowledge of illegality results in punishing wholly innocent conduct. As in International Minerals, courts considering the culpability requirements in environmental statutes find that those who choose to work with asbestos, to treat or store hazardous waste, or to operate a sewage treatment plant are on notice that they are functioning in a highly regulated environment. Critics maintain that this reliance on the public welfare offense analogy eliminates the mens rea requirement and imposes a species of strict liability. See, e.g., Krakoff & Wagner, supra note 5, at 12; Lazarus, supra note 1, at 2472, 2476-80; Kepten D. Carmichael, Note, Strict Criminal Liability for Environmental Violations: A Need for Judicial Restraint, 71 IND. L.J. 729, 742-43 (1996). United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993), rekindled this controversy by expressly extending the public welfare offense rationale to the terms of a Clean Water Act permit. Accord United States v. Hopkins, 53 F.3d 533 (2d Cir. 1995). Weitzenhoff held that managers of a sewage treatment plant who knowingly pumped partially treated sewage directly into the ocean would be liable even if they mistakenly believed the permit authorized the discharges. The court thus rejected the dubious claim that a good faith misunderstanding of the terms of the permit should constitute a defense. Weitzenhoff quickly became a rallying point for members of the environmental defense bar and other critics, who denounced the decision for blindly following the public welfare offense model and thus imposing a species of strict liability that subjects innocent parties to criminal penalties. See, e.g., Krakoff & Wagner, supra note 5, at 12, 14; Carmichael, supra note 15, at 748, 752; Cichetti, supra note 5, at 1185-86, 1211-12; Patrick W. Ward, Comment, The Criminal Provisions of the Clean Water Act as Interpreted by the Judiciary and the Resulting Response from the Legislature, 5 DICK. J. ENVTL. L. & POL'Y 399, 400 (1996); Judson W. Starr & John F. Cooney, Criminal Enforcement in a Decentralized Environment, N.L.R.I. News (Nat. Resources L. Inst.), Summer 1996, at 1, 4;. cf. Susan F. Mandiberg, The Dilemma of Mental State in Federal Regulatory Crimes: The Environmental Example, 25 ENVTL. LAW 1165, 1222 (1995) (questioning the appropriateness of attaching the moral stigma of a felony conviction to one who is unaware of the legal requirements governing his conduct); Michael Vitiello, Does Culpability Matter?: Statutory Construction Under 42 U.S.C. § 6928, 6 TUL. ENVTL. L.J. 187, 225 (1993) (suggesting that one who knowingly disposes of hazardous waste in the good faith reasonable belief that the permit allows such disposal is not blameworthy). Notwithstanding the widespread assumption to the contrary, the public welfare offense doctrine was not crucial to the holding in Weitzenhoff. The issues before the court were whether the trial judge erred by: (1) instructing the jury that the government need not prove the defendants knew their conduct was unlawful; and (2) refusing to instruct that if the managers mistakenly believed the permit authorized the dumping, that would constitute a defense. Weitzenhoff, 35 F.3d at 1283.
23. Comments of Former Justice Department and EPA Officials on Draft Environmental Guidelines Prepared by Advisory Working Group on Environmental Sanctions, IN ENVIRONMENTAL CRIMINAL LIABILITY, supra note 1, at 375, 378. Most courts confronted with the argument that knowledge of illegality should be required analogize environmental crimes to public welfare offenses. See, e.g., United States v. Hopkins, 53 F.3d 533, 538-45 (2d Cir. 1995); United States v. Wagner, 29 F.3d 264, 265 (7th Cir. 1994); United States v. Laughlin, 10 F.3d 961, 965-66 (2d Cir. 1993); United States v. Weitzenhoff, 35 F.3d 1275, 1286 (9th Cir. 1993); United States v. Dean, 969 F.2d 187, 191 (6th Cir. 1992); United States v. Buckley, 934 F.2d 84, 88 (6th Cir. 1991); United States v. MacDonald & Watson Oil Co., 933 F.2d 35, 46 (1st Cir. 1991); United States v. Sellers, 926 F.2d 410, 415-16 (5th Cir. 1991); United States v. Dee, 912 F.2d 741, 745 (4th Cir. 1990); United States v. Hoflin, 880 F.2d 1033, 1036 (9th Cir. 1989); United States v. Hayes Int'l Corp., 786 F.2d 1499, 1503 (11th Cir. 1986); Wyckoff Co. v. EPA, 796 F.2d 1197, 1198 (9th Cir. 1986); United States v. Johnson & Towers, Inc., 741 F.2d 662, 667 (3d Cir. 1984); United States v. Corbin Farm Serv., 444 F. Supp. 510, 535-36 (E.D. Cal.), aff'd in part, 578 F.2d 259 (9th Cir. 1978). Relying on United States v. International Minerals & Chemical Corporation, 402 U.S. 558 (1971) (holding that transporters of corrosive liquids are chargeable with knowledge that their conduct is regulated), courts routinely reject the argument that failure to require knowledge of illegality results in punishing wholly innocent conduct. As in International Minerals, courts considering the culpability requirements in environmental statutes find that those who choose to work with asbestos, to treat or store hazardous waste, or to operate a sewage treatment plant are on notice that they are functioning in a highly regulated environment. Critics maintain that this reliance on the public welfare offense analogy eliminates the mens rea requirement and imposes a species of strict liability. See, e.g., Krakoff & Wagner, supra note 5, at 12; Lazarus, supra note 1, at 2472, 2476-80; Kepten D. Carmichael, Note, Strict Criminal Liability for Environmental Violations: A Need for Judicial Restraint, 71 IND. L.J. 729, 742-43 (1996). United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993), rekindled this controversy by expressly extending the public welfare offense rationale to the terms of a Clean Water Act permit. Accord United States v. Hopkins, 53 F.3d 533 (2d Cir. 1995). Weitzenhoff held that managers of a sewage treatment plant who knowingly pumped partially treated sewage directly into the ocean would be liable even if they mistakenly believed the permit authorized the discharges. The court thus rejected the dubious claim that a good faith misunderstanding of the terms of the permit should constitute a defense. Weitzenhoff quickly became a rallying point for members of the environmental defense bar and other critics, who denounced the decision for blindly following the public welfare offense model and thus imposing a species of strict liability that subjects innocent parties to criminal penalties. See, e.g., Krakoff & Wagner, supra note 5, at 12, 14; Carmichael, supra note 15, at 748, 752; Cichetti, supra note 5, at 1185-86, 1211-12; Patrick W. Ward, Comment, The Criminal Provisions of the Clean Water Act as Interpreted by the Judiciary and the Resulting Response from the Legislature, 5 DICK. J. ENVTL. L. & POL'Y 399, 400 (1996); Judson W. Starr & John F. Cooney, Criminal Enforcement in a Decentralized Environment, N.L.R.I. News (Nat. Resources L. Inst.), Summer 1996, at 1, 4;. cf. Susan F. Mandiberg, The Dilemma of Mental State in Federal Regulatory Crimes: The Environmental Example, 25 ENVTL. LAW 1165, 1222 (1995) (questioning the appropriateness of attaching the moral stigma of a felony conviction to one who is unaware of the legal requirements governing his conduct); Michael Vitiello, Does Culpability Matter?: Statutory Construction Under 42 U.S.C. § 6928, 6 TUL. ENVTL. L.J. 187, 225 (1993) (suggesting that one who knowingly disposes of hazardous waste in the good faith reasonable belief that the permit allows such disposal is not blameworthy). Notwithstanding the widespread assumption to the contrary, the public welfare offense doctrine was not crucial to the holding in Weitzenhoff. The issues before the court were whether the trial judge erred by: (1) instructing the jury that the government need not prove the defendants knew their conduct was unlawful; and (2) refusing to instruct that if the managers mistakenly believed the permit authorized the dumping, that would constitute a defense. Weitzenhoff, 35 F.3d at 1283.
24. Comments of Former Justice Department and EPA Officials on Draft Environmental Guidelines Prepared by Advisory Working Group on Environmental Sanctions, IN ENVIRONMENTAL CRIMINAL LIABILITY, supra note 1, at 375, 378. Most courts confronted with the argument that knowledge of illegality should be required analogize environmental crimes to public welfare offenses. See, e.g., United States v. Hopkins, 53 F.3d 533, 538-45 (2d Cir. 1995); United States v. Wagner, 29 F.3d 264, 265 (7th Cir. 1994); United States v. Laughlin, 10 F.3d 961, 965-66 (2d Cir. 1993); United States v. Weitzenhoff, 35 F.3d 1275, 1286 (9th Cir. 1993); United States v. Dean, 969 F.2d 187, 191 (6th Cir. 1992); United States v. Buckley, 934 F.2d 84, 88 (6th Cir. 1991); United States v. MacDonald & Watson Oil Co., 933 F.2d 35, 46 (1st Cir. 1991); United States v. Sellers, 926 F.2d 410, 415-16 (5th Cir. 1991); United States v. Dee, 912 F.2d 741, 745 (4th Cir. 1990); United States v. Hoflin, 880 F.2d 1033, 1036 (9th Cir. 1989); United States v. Hayes Int'l Corp., 786 F.2d 1499, 1503 (11th Cir. 1986); Wyckoff Co. v. EPA, 796 F.2d 1197, 1198 (9th Cir. 1986); United States v. Johnson & Towers, Inc., 741 F.2d 662, 667 (3d Cir. 1984); United States v. Corbin Farm Serv., 444 F. Supp. 510, 535-36 (E.D. Cal.), aff'd in part, 578 F.2d 259 (9th Cir. 1978). Relying on United States v. International Minerals & Chemical Corporation, 402 U.S. 558 (1971) (holding that transporters of corrosive liquids are chargeable with knowledge that their conduct is regulated), courts routinely reject the argument that failure to require knowledge of illegality results in punishing wholly innocent conduct. As in International Minerals, courts considering the culpability requirements in environmental statutes find that those who choose to work with asbestos, to treat or store hazardous waste, or to operate a sewage treatment plant are on notice that they are functioning in a highly regulated environment. Critics maintain that this reliance on the public welfare offense analogy eliminates the mens rea requirement and imposes a species of strict liability. See, e.g., Krakoff & Wagner, supra note 5, at 12; Lazarus, supra note 1, at 2472, 2476-80; Kepten D. Carmichael, Note, Strict Criminal Liability for Environmental Violations: A Need for Judicial Restraint, 71 IND. L.J. 729, 742-43 (1996). United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993), rekindled this controversy by expressly extending the public welfare offense rationale to the terms of a Clean Water Act permit. Accord United States v. Hopkins, 53 F.3d 533 (2d Cir. 1995). Weitzenhoff held that managers of a sewage treatment plant who knowingly pumped partially treated sewage directly into the ocean would be liable even if they mistakenly believed the permit authorized the discharges. The court thus rejected the dubious claim that a good faith misunderstanding of the terms of the permit should constitute a defense. Weitzenhoff quickly became a rallying point for members of the environmental defense bar and other critics, who denounced the decision for blindly following the public welfare offense model and thus imposing a species of strict liability that subjects innocent parties to criminal penalties. See, e.g., Krakoff & Wagner, supra note 5, at 12, 14; Carmichael, supra note 15, at 748, 752; Cichetti, supra note 5, at 1185-86, 1211-12; Patrick W. Ward, Comment, The Criminal Provisions of the Clean Water Act as Interpreted by the Judiciary and the Resulting Response from the Legislature, 5 DICK. J. ENVTL. L. & POL'Y 399, 400 (1996); Judson W. Starr & John F. Cooney, Criminal Enforcement in a Decentralized Environment, N.L.R.I. News (Nat. Resources L. Inst.), Summer 1996, at 1, 4;. cf. Susan F. Mandiberg, The Dilemma of Mental State in Federal Regulatory Crimes: The Environmental Example, 25 ENVTL. LAW 1165, 1222 (1995) (questioning the appropriateness of attaching the moral stigma of a felony conviction to one who is unaware of the legal requirements governing his conduct); Michael Vitiello, Does Culpability Matter?: Statutory Construction Under 42 U.S.C. § 6928, 6 TUL. ENVTL. L.J. 187, 225 (1993) (suggesting that one who knowingly disposes of hazardous waste in the good faith reasonable belief that the permit allows such disposal is not blameworthy). Notwithstanding the widespread assumption to the contrary, the public welfare offense doctrine was not crucial to the holding in Weitzenhoff. The issues before the court were whether the trial judge erred by: (1) instructing the jury that the government need not prove the defendants knew their conduct was unlawful; and (2) refusing to instruct that if the managers mistakenly believed the permit authorized the dumping, that would constitute a defense. Weitzenhoff, 35 F.3d at 1283.
25. Comments of Former Justice Department and EPA Officials on Draft Environmental Guidelines Prepared by Advisory Working Group on Environmental Sanctions, IN ENVIRONMENTAL CRIMINAL LIABILITY, supra note 1, at 375, 378. Most courts confronted with the argument that knowledge of illegality should be required analogize environmental crimes to public welfare offenses. See, e.g., United States v. Hopkins, 53 F.3d 533, 538-45 (2d Cir. 1995); United States v. Wagner, 29 F.3d 264, 265 (7th Cir. 1994); United States v. Laughlin, 10 F.3d 961, 965-66 (2d Cir. 1993); United States v. Weitzenhoff, 35 F.3d 1275, 1286 (9th Cir. 1993); United States v. Dean, 969 F.2d 187, 191 (6th Cir. 1992); United States v. Buckley, 934 F.2d 84, 88 (6th Cir. 1991); United States v. MacDonald & Watson Oil Co., 933 F.2d 35, 46 (1st Cir. 1991); United States v. Sellers, 926 F.2d 410, 415-16 (5th Cir. 1991); United States v. Dee, 912 F.2d 741, 745 (4th Cir. 1990); United States v. Hoflin, 880 F.2d 1033, 1036 (9th Cir. 1989); United States v. Hayes Int'l Corp., 786 F.2d 1499, 1503 (11th Cir. 1986); Wyckoff Co. v. EPA, 796 F.2d 1197, 1198 (9th Cir. 1986); United States v. Johnson & Towers, Inc., 741 F.2d 662, 667 (3d Cir. 1984); United States v. Corbin Farm Serv., 444 F. Supp. 510, 535-36 (E.D. Cal.), aff'd in part, 578 F.2d 259 (9th Cir. 1978). Relying on United States v. International Minerals & Chemical Corporation, 402 U.S. 558 (1971) (holding that transporters of corrosive liquids are chargeable with knowledge that their conduct is regulated), courts routinely reject the argument that failure to require knowledge of illegality results in punishing wholly innocent conduct. As in International Minerals, courts considering the culpability requirements in environmental statutes find that those who choose to work with asbestos, to treat or store hazardous waste, or to operate a sewage treatment plant are on notice that they are functioning in a highly regulated environment. Critics maintain that this reliance on the public welfare offense analogy eliminates the mens rea requirement and imposes a species of strict liability. See, e.g., Krakoff & Wagner, supra note 5, at 12; Lazarus, supra note 1, at 2472, 2476-80; Kepten D. Carmichael, Note, Strict Criminal Liability for Environmental Violations: A Need for Judicial Restraint, 71 IND. L.J. 729, 742-43 (1996). United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993), rekindled this controversy by expressly extending the public welfare offense rationale to the terms of a Clean Water Act permit. Accord United States v. Hopkins, 53 F.3d 533 (2d Cir. 1995). Weitzenhoff held that managers of a sewage treatment plant who knowingly pumped partially treated sewage directly into the ocean would be liable even if they mistakenly believed the permit authorized the discharges. The court thus rejected the dubious claim that a good faith misunderstanding of the terms of the permit should constitute a defense. Weitzenhoff quickly became a rallying point for members of the environmental defense bar and other critics, who denounced the decision for blindly following the public welfare offense model and thus imposing a species of strict liability that subjects innocent parties to criminal penalties. See, e.g., Krakoff & Wagner, supra note 5, at 12, 14; Carmichael, supra note 15, at 748, 752; Cichetti, supra note 5, at 1185-86, 1211-12; Patrick W. Ward, Comment, The Criminal Provisions of the Clean Water Act as Interpreted by the Judiciary and the Resulting Response from the Legislature, 5 DICK. J. ENVTL. L. & POL'Y 399, 400 (1996); Judson W. Starr & John F. Cooney, Criminal Enforcement in a Decentralized Environment, N.L.R.I. News (Nat. Resources L. Inst.), Summer 1996, at 1, 4;. cf. Susan F. Mandiberg, The Dilemma of Mental State in Federal Regulatory Crimes: The Environmental Example, 25 ENVTL. LAW 1165, 1222 (1995) (questioning the appropriateness of attaching the moral stigma of a felony conviction to one who is unaware of the legal requirements governing his conduct); Michael Vitiello, Does Culpability Matter?: Statutory Construction Under 42 U.S.C. § 6928, 6 TUL. ENVTL. L.J. 187, 225 (1993) (suggesting that one who knowingly disposes of hazardous waste in the good faith reasonable belief that the permit allows such disposal is not blameworthy). Notwithstanding the widespread assumption to the contrary, the public welfare offense doctrine was not crucial to the holding in Weitzenhoff. The issues before the court were whether the trial judge erred by: (1) instructing the jury that the government need not prove the defendants knew their conduct was unlawful; and (2) refusing to instruct that if the managers mistakenly believed the permit authorized the dumping, that would constitute a defense. Weitzenhoff, 35 F.3d at 1283.
26. Comments of Former Justice Department and EPA Officials on Draft Environmental Guidelines Prepared by Advisory Working Group on Environmental Sanctions, IN ENVIRONMENTAL CRIMINAL LIABILITY, supra note 1, at 375, 378. Most courts confronted with the argument that knowledge of illegality should be required analogize environmental crimes to public welfare offenses. See, e.g., United States v. Hopkins, 53 F.3d 533, 538-45 (2d Cir. 1995); United States v. Wagner, 29 F.3d 264, 265 (7th Cir. 1994); United States v. Laughlin, 10 F.3d 961, 965-66 (2d Cir. 1993); United States v. Weitzenhoff, 35 F.3d 1275, 1286 (9th Cir. 1993); United States v. Dean, 969 F.2d 187, 191 (6th Cir. 1992); United States v. Buckley, 934 F.2d 84, 88 (6th Cir. 1991); United States v. MacDonald & Watson Oil Co., 933 F.2d 35, 46 (1st Cir. 1991); United States v. Sellers, 926 F.2d 410, 415-16 (5th Cir. 1991); United States v. Dee, 912 F.2d 741, 745 (4th Cir. 1990); United States v. Hoflin, 880 F.2d 1033, 1036 (9th Cir. 1989); United States v. Hayes Int'l Corp., 786 F.2d 1499, 1503 (11th Cir. 1986); Wyckoff Co. v. EPA, 796 F.2d 1197, 1198 (9th Cir. 1986); United States v. Johnson & Towers, Inc., 741 F.2d 662, 667 (3d Cir. 1984); United States v. Corbin Farm Serv., 444 F. Supp. 510, 535-36 (E.D. Cal.), aff'd in part, 578 F.2d 259 (9th Cir. 1978). Relying on United States v. International Minerals & Chemical Corporation, 402 U.S. 558 (1971) (holding that transporters of corrosive liquids are chargeable with knowledge that their conduct is regulated), courts routinely reject the argument that failure to require knowledge of illegality results in punishing wholly innocent conduct. As in International Minerals, courts considering the culpability requirements in environmental statutes find that those who choose to work with asbestos, to treat or store hazardous waste, or to operate a sewage treatment plant are on notice that they are functioning in a highly regulated environment. Critics maintain that this reliance on the public welfare offense analogy eliminates the mens rea requirement and imposes a species of strict liability. See, e.g., Krakoff & Wagner, supra note 5, at 12; Lazarus, supra note 1, at 2472, 2476-80; Kepten D. Carmichael, Note, Strict Criminal Liability for Environmental Violations: A Need for Judicial Restraint, 71 IND. L.J. 729, 742-43 (1996). United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993), rekindled this controversy by expressly extending the public welfare offense rationale to the terms of a Clean Water Act permit. Accord United States v. Hopkins, 53 F.3d 533 (2d Cir. 1995). Weitzenhoff held that managers of a sewage treatment plant who knowingly pumped partially treated sewage directly into the ocean would be liable even if they mistakenly believed the permit authorized the discharges. The court thus rejected the dubious claim that a good faith misunderstanding of the terms of the permit should constitute a defense. Weitzenhoff quickly became a rallying point for members of the environmental defense bar and other critics, who denounced the decision for blindly following the public welfare offense model and thus imposing a species of strict liability that subjects innocent parties to criminal penalties. See, e.g., Krakoff & Wagner, supra note 5, at 12, 14; Carmichael, supra note 15, at 748, 752; Cichetti, supra note 5, at 1185-86, 1211-12; Patrick W. Ward, Comment, The Criminal Provisions of the Clean Water Act as Interpreted by the Judiciary and the Resulting Response from the Legislature, 5 DICK. J. ENVTL. L. & POL'Y 399, 400 (1996); Judson W. Starr & John F. Cooney, Criminal Enforcement in a Decentralized Environment, N.L.R.I. News (Nat. Resources L. Inst.), Summer 1996, at 1, 4;. cf. Susan F. Mandiberg, The Dilemma of Mental State in Federal Regulatory Crimes: The Environmental Example, 25 ENVTL. LAW 1165, 1222 (1995) (questioning the appropriateness of attaching the moral stigma of a felony conviction to one who is unaware of the legal requirements governing his conduct); Michael Vitiello, Does Culpability Matter?: Statutory Construction Under 42 U.S.C. § 6928, 6 TUL. ENVTL. L.J. 187, 225 (1993) (suggesting that one who knowingly disposes of hazardous waste in the good faith reasonable belief that the permit allows such disposal is not blameworthy). Notwithstanding the widespread assumption to the contrary, the public welfare offense doctrine was not crucial to the holding in Weitzenhoff. The issues before the court were whether the trial judge erred by: (1) instructing the jury that the government need not prove the defendants knew their conduct was unlawful; and (2) refusing to instruct that if the managers mistakenly believed the permit authorized the dumping, that would constitute a defense. Weitzenhoff, 35 F.3d at 1283.
27. Comments of Former Justice Department and EPA Officials on Draft Environmental Guidelines Prepared by Advisory Working Group on Environmental Sanctions, IN ENVIRONMENTAL CRIMINAL LIABILITY, supra note 1, at 375, 378. Most courts confronted with the argument that knowledge of illegality should be required analogize environmental crimes to public welfare offenses. See, e.g., United States v. Hopkins, 53 F.3d 533, 538-45 (2d Cir. 1995); United States v. Wagner, 29 F.3d 264, 265 (7th Cir. 1994); United States v. Laughlin, 10 F.3d 961, 965-66 (2d Cir. 1993); United States v. Weitzenhoff, 35 F.3d 1275, 1286 (9th Cir. 1993); United States v. Dean, 969 F.2d 187, 191 (6th Cir. 1992); United States v. Buckley, 934 F.2d 84, 88 (6th Cir. 1991); United States v. MacDonald & Watson Oil Co., 933 F.2d 35, 46 (1st Cir. 1991); United States v. Sellers, 926 F.2d 410, 415-16 (5th Cir. 1991); United States v. Dee, 912 F.2d 741, 745 (4th Cir. 1990); United States v. Hoflin, 880 F.2d 1033, 1036 (9th Cir. 1989); United States v. Hayes Int'l Corp., 786 F.2d 1499, 1503 (11th Cir. 1986); Wyckoff Co. v. EPA, 796 F.2d 1197, 1198 (9th Cir. 1986); United States v. Johnson & Towers, Inc., 741 F.2d 662, 667 (3d Cir. 1984); United States v. Corbin Farm Serv., 444 F. Supp. 510, 535-36 (E.D. Cal.), aff'd in part, 578 F.2d 259 (9th Cir. 1978). Relying on United States v. International Minerals & Chemical Corporation, 402 U.S. 558 (1971) (holding that transporters of corrosive liquids are chargeable with knowledge that their conduct is regulated), courts routinely reject the argument that failure to require knowledge of illegality results in punishing wholly innocent conduct. As in International Minerals, courts considering the culpability requirements in environmental statutes find that those who choose to work with asbestos, to treat or store hazardous waste, or to operate a sewage treatment plant are on notice that they are functioning in a highly regulated environment. Critics maintain that this reliance on the public welfare offense analogy eliminates the mens rea requirement and imposes a species of strict liability. See, e.g., Krakoff & Wagner, supra note 5, at 12; Lazarus, supra note 1, at 2472, 2476-80; Kepten D. Carmichael, Note, Strict Criminal Liability for Environmental Violations: A Need for Judicial Restraint, 71 IND. L.J. 729, 742-43 (1996). United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993), rekindled this controversy by expressly extending the public welfare offense rationale to the terms of a Clean Water Act permit. Accord United States v. Hopkins, 53 F.3d 533 (2d Cir. 1995). Weitzenhoff held that managers of a sewage treatment plant who knowingly pumped partially treated sewage directly into the ocean would be liable even if they mistakenly believed the permit authorized the discharges. The court thus rejected the dubious claim that a good faith misunderstanding of the terms of the permit should constitute a defense. Weitzenhoff quickly became a rallying point for members of the environmental defense bar and other critics, who denounced the decision for blindly following the public welfare offense model and thus imposing a species of strict liability that subjects innocent parties to criminal penalties. See, e.g., Krakoff & Wagner, supra note 5, at 12, 14; Carmichael, supra note 15, at 748, 752; Cichetti, supra note 5, at 1185-86, 1211-12; Patrick W. Ward, Comment, The Criminal Provisions of the Clean Water Act as Interpreted by the Judiciary and the Resulting Response from the Legislature, 5 DICK. J. ENVTL. L. & POL'Y 399, 400 (1996); Judson W. Starr & John F. Cooney, Criminal Enforcement in a Decentralized Environment, N.L.R.I. News (Nat. Resources L. Inst.), Summer 1996, at 1, 4;. cf. Susan F. Mandiberg, The Dilemma of Mental State in Federal Regulatory Crimes: The Environmental Example, 25 ENVTL. LAW 1165, 1222 (1995) (questioning the appropriateness of attaching the moral stigma of a felony conviction to one who is unaware of the legal requirements governing his conduct); Michael Vitiello, Does Culpability Matter?: Statutory Construction Under 42 U.S.C. § 6928, 6 TUL. ENVTL. L.J. 187, 225 (1993) (suggesting that one who knowingly disposes of hazardous waste in the good faith reasonable belief that the permit allows such disposal is not blameworthy). Notwithstanding the widespread assumption to the contrary, the public welfare offense doctrine was not crucial to the holding in Weitzenhoff. The issues before the court were whether the trial judge erred by: (1) instructing the jury that the government need not prove the defendants knew their conduct was unlawful; and (2) refusing to instruct that if the managers mistakenly believed the permit authorized the dumping, that would constitute a defense. Weitzenhoff, 35 F.3d at 1283.
28. Finally, the government has been successful in obtaining jury instructions in many environmental criminal cases which do not require the government to show that the defendant knew it was violating a particular statute or regulation in order to obtain a conviction. This results in a greater range of possible mental states among convicted defendants than is the case in many other areas of white collar crime. Comments on Draft Guidelines, supra note 15, at 378.
29. The major environmental statutes proscribe knowingly engaging in designated conduct in violation of permit or other regulatory requirements, see, e.g., Clean Water Act, 33 U.S.C. § 1319(2) (1994); Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6928(d) (1994); Clean Air Act, 42 U.S.C. § 7413(c) (1994); prohibit the knowing endangerment of others, see, e.g., Clean Water Act, 33 U.S.C. § 1319(c)(3); RCRA, 42 U.S.C. § 6928(e) (1994); Clean Air Act, 42 U.S.C. § 7413(c)(5)(A); require the reporting of known releases of hazardous substances, see, e.g., Clean Air Act, 42 U.S.C. § 7413(c)(2)(B); Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") 42 U.S.C. § 9603 (1994); and forbid knowingly engaging in a host of practices whose natural effect is to defeat the regulatory scheme at hand. See infra note 31 and accompanying text. A few environmental criminal provisions require willfulness, see, e.g., Toxic Substances Control Act, 15 U.S.C. § 2615(b) (1994); Ports and Waterways Safety Act, 33 U.S.C. § 1232(b)(1)-(2); Safe Drinking Water Act, 42 U.S.C. § 300h-2(b)(2) (1994); and a few others require only negligence, see, e.g., Clean Water Act, 33 U.S.C. § 1319(c)(1), (c)(1)(B), Clean Air Act, 42 U.S.C. § 7413(c)(4).
30. Starr et al., supra note 4, at 6.
31. Locke, supra note 4, at 320.
32. Kevin A. Gaynor & Thomas R. Bartman, Significant Environmental Enforcement Developments - 1995 Update, 8 MD. J. CONTEMP. LEGAL ISSUES 73, 85 (1995-97).
33. Onsdorff & Mesnard, supra note 13, at 10,102.
34. LAW OF ENVIRONMENTAL PROTECTION § 8.01[9][c], 8-122.11 (Sheldon M. Novick ed., 1996).
35. Kevin A. Gaynor et al., Improving Fairness in Environmental Enforcement (Part II), Toxics L. Rep. (BNA) 1029, 1031 (Feb. 3, 1993).
36. Locke, supra note 4, at 325.
37. Ruth Ann Weidel et al., The Erosion of Mens Rea in Environmental Criminal Prosecutions, 21 SETON HALL L. REV. 1100, 1105 (1991).
38. Gaynor & Bartman, supra note 20, at 85.
39. Locke, supra note 4, at 313, 320; cf. Frederick W. Addison, III & Elizabeth E. Mack, Creating an Environmental Ethic in Corporate America: The Big Stick of Jail Time, 44 SW. L.J. 1434, 1438 (1991) (stating that intent requirement has been virtually eliminated).
40. Gaynor et al., supra note 1, at 11.
41. Carr, supra note 1, at vi (emphasis added); cf. Gray et al., supra note 12, at 371 (claiming that "environmental crimes based on 'knowing' violations are strict liability crimes" that require no showing of a "guilty mind").
42. See infra notes 31-38 and accompanying text. But cf. Carmichael, supra note 15, at 734 (arguing that because one who knows he is discharging pollutants can be liable even if he does not know that the discharge violates the permit, felony violations are easier to prove than misdemeanors; to prove a misdemeanor violation, the government must prove negligence, but to prove a felony violation it need only prove "action").
43. See, e.g., Toxic Substances Control Act, 15 U.S.C. § 2614 and § 2615(b) (1994) (failure or refusal to establish or maintain records or to submit reports, notices or other information); Clean Water Act, 32 U.S.C. § 1319(c)(4) (1994) (making a false statement in any application, record or other document required to be filed or maintained; falsifying or tampering with a monitoring device); RCRA, 42 U.S.C. § 6928(d)(3) (1994) (making false statements or representations in compliance documents); Clean Air Act, 42 U.S.C. § 7413(c)(2) (1995) (making a false statement in any application, record or other document required to be filed or maintained; falsifying or tampering with a monitoring device); RCRA, 42 U.S.C. § 6928(d)(4) (1994) (failure to file required compliance documents); CERCLA, 42 U.S.C. § 9603(b) (1994) (making false statements or representations in compliance documents); CERCLA, 42 U.S.C. § 9603(d) (1994) (destroying, altering or concealing required records); 40 C.F.R. § 70.5 (1994) (submitting a false permit application); Brickey, supra note 1, at 514-17 (discussing environmental crimes that contain elements of concealment).
44. Cf. Michael J. Penders, Innocents at Risk?: The Rhetoric and Reality of Environmental Criminal Enforcement, 2 ENVTL. L. 835, 844-47 (1996) (noting that there is a continuum of mental states that at the low end reflects only a civil or administrative matter and at the high end reflects serious crimes).
45. Model Penal Code § 2.02(2) (Official Draft and Revised Commentaries, 1985).
46. The National Commission on Reform of Federal Criminal Laws, Study Draft of a New Federal Criminal Code § 302(1)(a)-(d) (1970) [hereinafter Study Draft]; see also id. at 26, cmt. (noting that "[i]ntentionally imports only purpose, not motive"). The Commission identified more than 75 different formulations of culpability in Title 18 of the Federal Code. See 1 Working Papers of The National Commission on Reform of Federal Criminal Laws 119-20 (1970) [hereinafter Working Papers].
47. Working Papers, supra note , at 124.
48. Id. at 123.
49. Id. at 127.
50. See, e.g., Ala. Code § 13A-2-1(6) 1994); Alaska Stat. § 11.81.900(b)(11) (Michie 1996); Ariz. Rev. Stat. Ann. § 13-105(9) (West 1989); Ark. Code Ann. § 5-2-202 (Michie 1993); Conn. Gen. Stat. Ann. § 53a-5 (West 1994); Del Code Ann. tit. 11, § 231 (1987); Haw. Rev. Stat. § 702-204 (1985); 720 Ill. Comp. Stat. Ann. § 5/4-3(a), 5/4-4, 5/4-5, 5/4-6, 5/4-7 (West 1993); Mo. Ann. Stat. § 562.016(1) (West 1979); N.J. Stat. Ann. § 2C:2-2 (1995); N.Y. Penal Law §§ 15.00(6), 15.05 (McKinney 1987); Baldwin's Ohio Rev. Code Ann. § 2901.22 (West 1993); Or. Rev. Stat. § 161.085 (1995); 18 Pa. Cons. Stat. § 302 (1983); Tenn. Code Ann. § 39-11-301(a)(1) (1991); Tex. Penal Code Ann. § 6.02 (West 1994); Utah Code Ann. § 76-2-101 (1990); Wash. Rev. Code Ann. § 9A.08.010 (West 1988).
51. See Study Draft, supra note 34, at § 302(1)(a) (adopting the term "intentionally"); Model Penal Code § 2.02(2)(a) (adopting the term "purposely"). Thus, not even the highest level of culpability requires intent to violate the law.
52. See Study Draft, supra note at § 302(1)(b); Model Penal Code § 2.02(2)(b).
53. Model Penal Code § 2.02, cmt. 3; accord Working Papers, supra note 34, at 124 (stating that because both those who act intentionally and those who act knowingly consciously engage in conduct the law prohibits, there is little reason to distinguish the two mental states in many contexts).
54. Working Papers, supra note 34, at 124; see also Model Penal Code § 2.02, cmt 3 (agreeing that the distinction is inconsequential for most purposes).
55. See Working Papers, supra note 34, at 124 (describing situations in which it is reasonable for the law to distinguish between offenders who act knowingly and those who act intentionally). A sailor who opens a valve to release oil from a ship's bilge in violation of the captain's order intentionally discharges oil, a pollutant, into the water. The captain who sees oil gushing from the ship and who stands idly by is responsible for a knowing discharge. He is aware of the spill and has the power and authority to control it. Like the sailor who opened the valve, the captain consciously did what the law forbids. The sole difference between their respective levels of culpability is that while the sailor willed the result, the captain was simply willing to let it occur. The only way the captain could have displayed a higher degree of culpability would have been to order the sailor to drain the bilge or to personally open the valve.
56. See Carr, supra note 1, at vi (stating that the government need prove little more than that the unpermitted release occurred).
57. See Onsdorff & Mesnard, supra note 13, at 10,100 (stating that the government has lowered the burden of proof through the responsible corporate officer doctrine and by analogizing environmental crimes to public welfare offenses); Judith Ianelli, Note, Lessening the Mens Rea Requirement for Hazardous Waste Violations, 16 Vt.. L. Rev. 419, 434 (1991) (stating that courts have made it easier to convict by reducing the burden of proof).
58. See supra text accompanying notes 13,18-29.
59. Locke, supra note 4, at 326.
60. Addison & Mack, supra note 27, at 1435 (asserting that courts have reduced the government's burden of proof to require a showing of no more than general intent); see also Onsdorff & Mesnard, supra note 13, at 10,102 (claiming that courts have incrementally reduced the amount of knowledge the government must prove); Ianelli, supra note 45, at 434 (stating that courts have reduced the government's burden of proof and made it easier to convict by allowing the jury to infer defendant's knowledge of hazardous waste regulations).
61. Addison & Mack, supra note 27, at 1443 (speculating that the government's diminished burden of proof contributes to high conviction rates).
62. John F. Seymour, Civil and Criminal Liability of Corporate Officers Under Federal Environmental Laws, [May 1989-Apr. 1990] 20 Env't Rep. (BNA) 337, 341-43 (June 9, 1989) (stating that courts often minimize the burden of proof by allowing the jury to infer knowledge based on a corporate officer's position within the organization).
63. Dinkins, supra note 13, at 25 (stating that courts have progressively lowered the standard for proving scienter); see also Bagchi, supra note 12, at 278 (claiming that courts have lowered the threshold of proof needed to establish culpability).
64. Berlin, supra note 7, at 132 (stating that courts have lowered the burden of proof by accepting the public welfare offense analogy and the responsible corporate officer doctrine).
65. See supra notes 45-52 and accompanying text.
66. Ianelli, supra note 45, at 434 (asserting that courts only pay lip service to the actual knowledge requirement); see also Robert A. Milne, The Mens Rea Requirements of the Federal Environmental Statutes: Strict Criminal Liability in Substance But Not Form, 37 Buff. L. Rev. 307, 332 (1988-1989) (stating that the responsible corporate officer doctrine relieves the government of the need to prove actual knowledge); Onsdorff & Mesnard, supra note 13, at 10,100 (claiming that by allowing proof of scienter by circumstantial evidence, courts have relieved the government of the burden of proving actual knowledge).
67. Onsdorff & Mesnard, supra note 13, at 10,100.
68. Berlin, supra note 7, at 132; see also id. at 133.
69. Cf. United States v. Yermian, 468 U.S. 63, 76 (Rehnquist, J., dissenting) (castigating the majority for its "remarkable display of leftfootedness" in neither determining what culpable mental state is required to violate 18 U.S.C. § 1001 nor deciding whether the jury was properly instructed).
70. See Addison & Mack, supra note 27, at 1438 (claiming that because the responsible corporate officer doctrine allows the jury to infer knowledge of the violation from circumstantial evidence, environmental decisions recognizing the doctrine may lead to prosecution for "reckless, negligent or even inopportune decisions by a corporate officer"); Berlin, supra note 7, at 133 (stating that the responsible corporate officer doctrine reduces the burden of proving knowledge "by allowing it to be proved circumstantially"); Locke, supra note 4, at 320 (stating that "since "knowledge' may be inferred from circumstantial evidence, criminal prosecution can be based on virtually any environmental violation"); Milne, supra note 54, at 331 ("By allowing juries to infer knowledge on the basis of position within the corporate hierarchy, the defendant's actual knowledge becomes irrelevant."); Ianelli, supra note 45, at 434 (suggesting that courts have made it easier to convict "by not requiring the prosecutor to prove knowledge or by allowing the jury to infer" knowledge of the applicable regulations); Onsdorff & Mesnard, supra note 13, at 10,103-04 (casting one decision as "troubling" because it dispensed with the requirement of direct evidence of knowledge, and criticizing another because it implicitly applied the responsible corporate officer doctrine "under the guise of circumstantial evidence"); Seymour, supra note 50, at 341-43 (stating that courts often minimize the burden of proving scienter by allowing knowledge to be inferred from circumstantial evidence).
71. "Intent may, and generally must, be proved circumstantially." United States v. Jackson, 513 F.2d 456, 461 (D.C. Cir. 1975); see also Committee on Pattern Criminal Jury Instructions, District Judges Association, Sixth Circuit, Pattern Criminal Jury Instructions, Instruction 2.08 Inferring Required Mental State (1991); Edward J. Devitt et al., 1 Federal Jury Practice and Instructions, § 17.07 (4th ed. 1992).
72. Holland v. United States, 348 U.S. 121, 140 (1954).
73. Committee on Pattern Criminal Jury Instructions, District Judges Association, Eleventh Circuit, Pattern Jury Instructions Criminal Cases: with Annotations and Comments, Instruction 4.1 Evidence - Direct and Circumstantial (1985); Devitt et al., supra note 59, § 12.04. While circumstantial evidence can sometimes lend itself to the wrong conclusion, that is equally true of eyewitness testimony. Holland, 348 U.S. at 140. "In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference." Id. Indeed, circumstantial evidence can be "more certain, satisfying and persuasive than direct evidence." Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330 (1960); accord United States v. Andrino, 501 F.2d 1373, 1378 (9th Cir. 1974) (stating that circumstantial evidence can be more reliable than direct evidence). Experimental research on eyewitness testimony reveals many variables that can affect the reliability of such testimony. See, e.g., Adult Eyewitness Testimony, Current Trends and Developments (D.F. Ross, J.D. Read & M.R. Toglia eds. 1994); Brian L. Cutler & Stephen D. Penrod, Mistaken Identification: The Eyewitness, Psychology, and the Law (1995); Eyewitness Testimony: Psychological Perspectives (Gary L. Wells & Elizabeth F. Loftus eds. 1984); S.M.A. Lloyd-Bostock & B.R. Clifford, Evaluating Witness Evidence: Recent Research and New Perspectives (1983).
74. Holland, 348 U.S. at 140.
75. See supra note 61. They are also embodied in methods of proof, long approved by the Supreme Court, that go beyond "the ordinary use of circumstantial evidence in the usual criminal case" and allow the government to establish every element of a complex tax prosecution - including the element of willfulness - by circumstantial evidence. See Holland, 348 U.S. at 124 (upholding the validity of the net worth method of proof).
76. "[D]iscretion raises the specter of inconsistency, arbitrary treatment, bias, and corruption." Lazarus, supra note 1, at 2488 (quoting Robert A. Kagan, Regulatory Enforcement, in Handbook of Regulation and Administrative Law 383, 408 (David H. Rosenbloom & Richard D. Schwartz eds., 1994)).
77. Block, supra note 8, 27.
78. Krakoff &Wagner, supra note 5, at 11-12; Ward, supra note 15, at 400, 416.
79. Gaynor et al., supra note 1, at 11, 31 (stating that decisions to prosecute should be principled and predictable applications of the law, rather than products of a prosecutor's "whim").
80. Lazarus, supra note 1, at 2487.
81. Kevin A. Gaynor, A System Spinning Out of Control, The Envtl. F., May-June 1990, at 28, 28.
82. Lazarus, supra note 1, at 2487.
83. Id.; see also Addison & Mack, supra note 27, at 1443 (stating that the government's diminished burden of proof contributes to high conviction rates); Berlin, supra note 7, at 132-34 (stating that the lowered standard for proving knowledge is generally easy to satisfy); Ianelli, supra note 45, at 434 (stating that reduced evidentiary burdens make it easier to convict).
84. See Environmental Crimes at the Rocky Flats Nuclear Weapons Facility: Staff Interviews Before the Subcomm. on Investigations and Oversight of the House Comm. on Science, Space, & Technology, 103d Cong. 408-09 (1990) (statement of David Margolis, Acting Deputy Assistant Attorney General, Criminal Division, U.S. Dept. of Justice) (underscoring the importance of resisting political and public pressure to initiate unwise or inappropriate prosecutions); Memorandum from Mark H. Dubester, Acting Chief, Public Corruption/Government Fraud Section of the United States Attorney's Office for the District of Columbia, and Stevan E. Bunnell, Assistant United States Attorney, United States Attorney's Office for the District of Columbia to Webster L. Hubbell, Associate Attorney General 86-88 (Apr. 8, 1994) (describing how congressional scrutiny of prosecutorial decisions undermines the decisionmaking process) (on file with the author); cf. Richard J. Lazarus, Assimilating Environmental Protection Into Legal Rules and the Problem with Environmental Crime, 27 Loy. L.A. L. Rev. 867, 878 (1994) (noting that during the Bush administration, the Justice Department's embattled Environment Division was unable to dispel perceptions of politically motivated prosecutorial decisions).
85. See Environmental Crimes at the Rocky Flats Nuclear Weapons Facility: Staff Interviews Before the Subcomm. on Investigations and Oversight of the House Comm. on Science, Space, & Technology, 103d Cong. 408-09 (1990) (statement of David Margolis, Acting Deputy Assistant Attorney General, Criminal Division, U.S. Dept. of Justice) (underscoring the importance of resisting political and public pressure to initiate unwise or inappropriate prosecutions); Memorandum from Mark H. Dubester, Acting Chief, Public Corruption/Government Fraud Section of the United States Attorney's Office for the District of Columbia, and Stevan E. Bunnell, Assistant United States Attorney, United States Attorney's Office for the District of Columbia to Webster L. Hubbell, Associate Attorney General 86-88 (Apr. 8, 1994) (describing how congressional scrutiny of prosecutorial decisions undermines the decisionmaking process) (on file with the author); cf. Richard J. Lazarus, Assimilating Environmental Protection Into Legal Rules and the Problem with Environmental Crime, 27 Loy. L.A. L. Rev. 867, 878 (1994) (noting that during the Bush administration, the Justice Department's embattled Environment Division was unable to dispel perceptions of politically motivated prosecutorial decisions).
86. Katherine H. Setness, Statutory Interpretation of Clean Water Act Section 1319(c)(2)(A)'s Knowledge Requirement: Reconciling the Needs of Environmental and Criminal Law, 23 Ecology L.Q. 447, 487 (1996). Critics contend that media attention, community activism, and other similar factors also encourage overzealous prosecutions. Locke, supra note 4, at 326.
87. See, e.g., Addison & Mack, supra note 27, at 1438; Lazarus, supra note 1, at 2487; Locke, supra note 4, at 320-21; Carmichael, supra note 15, at 748-49, 752.
88. Krakoff & Wagner, supra note 5, at 14; Lazarus, supra note 1, at 2487-88; see also Jane F. Barrett & Veronica M. Clarke, Perspectives on the Knowledge Requirement of Section 6928(d) of RCRA After United States v. Dee, 59 Geo. Wash. L. Rev. 862, 881 (1991) (noting that some convictions have sparked panic among environmental managers, who fear that overly zealous prosecutors will prosecute corporate executives who have no knowledge of or involvement in the violation).
89. There are more than 3,000 federal crimes on the books today. W. John Moore, The High Price of Good Intentions, Nat'l L.J., May 8, 1993, at 1140.
90. See, e.g., 18 U.S.C. § 659 (1994) (theft from an interstate carrier).
91. See, e.g., 18 U.S.C. § 1962 (1994) (participating in the conduct of an enterprise through a pattern of racketeering activity).
92. A few examples that arise in the context of three frequently invoked fraud statutes amply illustrate the point. In the context of mail fraud prosecutions, the Court has had to decide what constitutes "fraud," Carpenter v. United States, 484 U.S. 19, 25 (1987); McNally v. United States, 483 U.S. 350, 352 (1987), and when a mailing is "in furtherance of" the fraud, Schmuck v. United States, 489 U.S. 705, 711 (1989). In the context of securities fraud prosecutions, the Court recently considered what constitutes "fraud" under the securities laws and when the fraud is "in connection with" the purchase or sale of securities. United States v. O'Hagan, 117 S. Ct. 2199 (1997). And in the context of the false statements statute, the Court has considered whether a simple exculpatory denial of guilt constitutes a false statement, Brogan v. United States, 118 S. Ct. 805, 807 (1998), when a false statement is within the "jurisdiction" of a federal agency, United States v. Rodgers, 466 U.S. 475, 483 n.4 (1984), and what constitutes a "department or agency of the United States," Hubbard v. United States, 514 U.S. 695, 699-704 (1995).
93. The mail fraud statute, 18 U.S.C. § 1341 (1994 & Supp. I), was first enacted in 1872. See United States v. Maze, 414 U.S. 395, 399 n.4 (1974) (Burger, C.J., dissenting). The false statements statute, 18 U.S.C. § 1001 (1994 & Supp. I), dates back to 1863. See United States v. Bramblett, 348 U.S. 503, 504-06 (1955). Recent Supreme Court decisions construing fundamental elements of these venerable crimes are noted supra note 79.
94. See, e.g., Ratzlaff v. United States, 510 U.S. 135, 138 (1994) (holding that knowledge that structuring currency transactions is illegal is required under Currency and Foreign Transactions Act); Cheek v. United States, 498 U.S. 192, 201 (1991) (holding that honest but unreasonable belief that wages are not income precludes finding of willful failure to file tax returns); United States v. Yermian, 468 U.S. 63, 68-70 (1984) (holding that false statements statute does not require knowledge that statement is within jurisdiction of federal department or agency).
95. The meaning of these terms depends on the statutory context in which they appear. Consider the Supreme Court's well-known disquisition on the meaning of the term "willfully:" The word often denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. But when used in a criminal statute it generally means an act done with a bad purpose; without justifiable excuse, stubbornly, obstinately, perversely. The word is also employed to characterize a thing done without ground for believing it is lawful, or conduct marked by careless disregard whether or not one has the right so to act. United States v. Murdock, 290 U.S. 389, 394-95 (1933). That "willfully" could legitimately have different meanings in different statutory contexts belies some critics' assumptions that elevated culpability standards would create bright-line distinctions between civil and criminal environmental violations. See Gaynor et al., supra note 1, at 4-5.
96. See, e.g., United States v. Eidson, 108 F.3d 1336, 1340 (11th Cir. 1997) (charging defendant with Clean Water Act violation and mail fraud); United States v. Dean, 969 F.2d 187, 189 (6th Cir. 1992) (charging defendant with RCRA violation and conspiracy); United States v. Brittain, 931 F.2d 1413, 1414 (10th Cir. 1991) (charging defendant with Clean Water Act violation and with making false statements); United States v. Louisiana Pac. Corp., 908 F. Supp. 835, 838 (D. Colo. 1995) (charging defendant with Clean Air Act violation, conspiracy, and making false statements); see infra notes 125-136 and accompanying text (discussing the use of nonenvironmental criminal charges in tandem with environmental charges).
97. Criminal statutes tend to be written at "a level of generality that would make literal enforcement unjust." Rabin, supra note 9, at 1073.
98. 28 U.S.C. § 547(1) (1994) (emphasis added).
99. See Rabin, supra note 9, at 1072-73 (discussing the legitimacy of prosecutorial discretion). "The process of selecting which of the guilty are to be charged is perhaps the most important part of the decision to charge." Frank W. Miller, Prosecution: The Decision to Charge a Suspect with a Crime 5 (1970).
100. It is commonly understood that not all guilty individuals are, or should be, prosecuted. Miller, supra note 86, at 5-6.
101. Cf. United States v. Weitzenhoff, 35 F.3d 1275, 1293, 1295, 1299 (9th Cir. 1993) (as amended) (Dissenting Opinion from Order Rejecting Suggestion for Rehearing En Banc) (predicting that expansive reading of Clean Water Act culpability requirements will deter people from working in sewage treatment plants and decrease the availability of valuable social services).
102. Penders, supra note 32, at 838. See Memorandum, The Exercise of Investigative Discretion, from Earl E. Devaney, Director, Office of Criminal Enforcement, United States Environmental Protection Agency, to All EPA Employees Working in or in Support of the Criminal Enforcement Program (June, 1994) (articulating specific offense characteristics that distinguish cases warranting criminal investigation from those that should be handled civilly or administratively) (on file with the author); see also Block, supra note 7, at 22 n.5, 23-24 (stating that EPA priorities have remained relatively constant in reliance on DOJ's Principles of Federal Prosecution).
103. See generally U.S. Dept. of Justice, Factors in Decisions on Criminal Prosecutions for Environmental Violations in the Context of Significant Voluntary Compliance or Disclosure Efforts by the Violator (July 1, 1991) (explaining the factors to be considered in criminal prosecutions for environmental violations, including voluntary disclosure, cooperation, preventative measures, compliance programs, and other similar factors); U.S. Dept. of Justice, Principles of Federal Prosecution (1980) (outlining and explaining general principles to be applied in federal prosecutions). See also Robert I. McMurray & Stephen D. Ramsey, Environmental Crime: The Use of Criminal Sanctions in Enforcing Environmental Laws, 19 Loy. L.A. L. Rev. 1133, 1161-62 (1986) (discussing factors that guide prosecutorial discretion); Thomas L. Weisenbeck & Ritaelena M. Casavechia, Guidelines for Prosecution of Environmental Violations: The Tension Between Self-Reporting and Self-Auditing, 22 Env't Rep. (BNA) 2481, 2481-82 (March 6, 1992) (same). But see Locke, supra note 4, at 326-28 (stating that existing guidelines provide inadequate direction to prosecutors).
104. See generally U.S. Dept. of Justice, Factors in Decisions on Criminal Prosecutions for Environmental Violations in the Context of Significant Voluntary Compliance or Disclosure Efforts by the Violator (July 1, 1991) (explaining the factors to be considered in criminal prosecutions for environmental violations, including voluntary disclosure, cooperation, preventative measures, compliance programs, and other similar factors); U.S. Dept. of Justice, Principles of Federal Prosecution (1980) (outlining and explaining general principles to be applied in federal prosecutions). See also Robert I. McMurray & Stephen D. Ramsey, Environmental Crime: The Use of Criminal Sanctions in Enforcing Environmental Laws, 19 Loy. L.A. L. Rev. 1133, 1161-62 (1986) (discussing factors that guide prosecutorial discretion); Thomas L. Weisenbeck & Ritaelena M. Casavechia, Guidelines for Prosecution of Environmental Violations: The Tension Between Self-Reporting and Self-Auditing, 22 Env't Rep. (BNA) 2481, 2481-82 (March 6, 1992) (same). But see Locke, supra note 4, at 326-28 (stating that existing guidelines provide inadequate direction to prosecutors).
105. See generally U.S. Dept. of Justice, Factors in Decisions on Criminal Prosecutions for Environmental Violations in the Context of Significant Voluntary Compliance or Disclosure Efforts by the Violator (July 1, 1991) (explaining the factors to be considered in criminal prosecutions for environmental violations, including voluntary disclosure, cooperation, preventative measures, compliance programs, and other similar factors); U.S. Dept. of Justice, Principles of Federal Prosecution (1980) (outlining and explaining general principles to be applied in federal prosecutions). See also Robert I. McMurray & Stephen D. Ramsey, Environmental Crime: The Use of Criminal Sanctions in Enforcing Environmental Laws, 19 Loy. L.A. L. Rev. 1133, 1161-62 (1986) (discussing factors that guide prosecutorial discretion); Thomas L. Weisenbeck & Ritaelena M. Casavechia, Guidelines for Prosecution of Environmental Violations: The Tension Between Self-Reporting and Self-Auditing, 22 Env't Rep. (BNA) 2481, 2481-82 (March 6, 1992) (same). But see Locke, supra note 4, at 326-28 (stating that existing guidelines provide inadequate direction to prosecutors).
106. See generally U.S. Dept. of Justice, Factors in Decisions on Criminal Prosecutions for Environmental Violations in the Context of Significant Voluntary Compliance or Disclosure Efforts by the Violator (July 1, 1991) (explaining the factors to be considered in criminal prosecutions for environmental violations, including voluntary disclosure, cooperation, preventative measures, compliance programs, and other similar factors); U.S. Dept. of Justice, Principles of Federal Prosecution (1980) (outlining and explaining general principles to be applied in federal prosecutions). See also Robert I. McMurray & Stephen D. Ramsey, Environmental Crime: The Use of Criminal Sanctions in Enforcing Environmental Laws, 19 Loy. L.A. L. Rev. 1133, 1161-62 (1986) (discussing factors that guide prosecutorial discretion); Thomas L. Weisenbeck & Ritaelena M. Casavechia, Guidelines for Prosecution of Environmental Violations: The Tension Between Self-Reporting and Self-Auditing, 22 Env't Rep. (BNA) 2481, 2481-82 (March 6, 1992) (same). But see Locke, supra note 4, at 326-28 (stating that existing guidelines provide inadequate direction to prosecutors).
107. Even after the charging decision is made, of course, there are other points of administrative and judicial review before the case will go to trial. See generally Miller, supra note 86 (explaining the process of judicial involvement in and review of the decision to charge).
108. Penders, supra note 32, at 839. Michael Penders is Special Counsel with the United States Environmental Protection Agency's Office of Criminal Enforcement, Forensics, and Training, and has also served as Special Assistant to the EPA Assistant Administrator for Enforcement. Id. at 835 n.*.
109. Hearing Before the Subcomm. on Oversight and Investigations of the House Comm. on Energy and Commerce, 102d Cong. 9 (1992) (briefing memorandum dated September 9, 1992) [hereinafter 1992 Hearing]. Indeed, centralized decision-making for environmental prosecutions has been a source of highly publicized friction between line United States Attorneys and Main Justice. Friction between the two culminated in full blown hearings by the House Energy and Commerce Committee's Subcommittee on Oversight and Investigations in 1992, see id., and in 1993. Hearing Before the Subcomm. on Oversight and Investigations of the House Comm. on Energy and Commerce, 103d Cong. (1993) [hereinafter 1993 Hearing]; see also William J. Corcoran et al., U.S. Dep't of Justice, Internal Review of the Department of Justice Environmental Crimes Program (1994); Jonathon Turley, Criminal Environmental Prosecution by the United States Department of Justice - Preliminary Report (1992). This confrontation resulted in some reduction of oversight responsibility at Main Justice. See Lazarus, supra note 1, at 2524 n.501.
110. The criminal enforcement program has clearly experienced a troubled and controversial period marked by unusually public acrimony. See 1992 Hearing and 1993 Hearing, supra note 93.
111. See, e.g., Gaynor et al., supra note 1, at 4-5, 27-28 (advocating that, as a matter of prosecutorial discretion or statutory rule, higher culpability standards should be imposed to create a bright line distinction between civil and criminal violations); Lazarus, supra note 1, at 2512-13 (exploring the ramifications of a heightened mens rea element); Cichetti, supra note 5, at 1212-13 (urging that a more explicit and unambiguous mental state should be required to ensure that innocent conduct is not punished).
112. See, e.g., Lazarus, supra note 1, at 2513-14 (weighing the merits of a limited defense of mistake of law and a modified mistake of fact defense); Setness, supra note 73, at 494 (proposing a model jury instruction that would exonerate defendants who actually believed their conduct was permissible); Cichetti, supra note 5, at 1208-09 (stating that complexity of environmental law justifies adopting the tax law principle that ignorance of law is an excuse).
113. See, e.g., Setness, supra note 73, at 490-91 (advocating that government should have to prove that defendant, in light of his position, was aware that the conduct was regulated or that it was potentially harmful to others or the environment).
114. Cf. Penders, supra note 32, at 840, 843 (stating that commentators seldom consider what types of knowing violations are prosecuted; a high percentage involve deception and other deliberate misconduct, and many defendants have an established history of prior violations).
115. Cf. Gaynor et. al., supra note 1, at 25-26 (stating that neighborhood auto repair shops and dry cleaners that discharge waste byproducts into the sewer are subject to CWA requirements, and speculating that unsuspecting business employees and landowners might be criminally prosecuted; asserting, without documenting, that contrary to statements in RCRA's legislative history, many of those prosecuted are first time offenders).
116. Cf. Krakoff & Wagner, supra note 5, at 11-12 (arguing that prosecutors have "unfettered discretion" to prosecute unavoidable technical violations); Lazarus, supra note 1, at 2488 (suggesting that "legitimate, unavoidable activities" may lead to criminal prosecution).
117. But see Gaynor, supra note 1, at 28-29 (describing a state hazardous waste prosecution in which defendant's violation was allegedly committed in response to an emergency); Paul D. Kamenar, The Environmental Sentencing Guidelines are Fatally Flawed and Unreasonable, 8 Md. J. Contemp. Legal Issues 97, 98-101 (1996-97) (offering examples of cases treated as criminal matters that the author believed could have been handled just as well through civil or administrative proceedings).
118. See, e.g., Addison & Mack, supra note 27, at 1438 (stating that people have been and will continue to be convicted of crimes of which they are unaware); Carr, supra note 1, at vi (stating that case law gives prosecutors an undue advantage and ratifies "a scheme that unfairly produces false positives"); Kamenar, supra note 101, at 98 (stating that there is no rational explanation for why prosecutors pursue some violations as criminal matters and others as civil or administrative matters); Carmichael, supra note 15, at 749 (stating that it is probable that environmental managers will be prosecuted for "inadvertent, unintentional, and unknown technical permit violations").
119. See Penders, supra note 32, at 847 (stating that charging decisions regarding environmental crimes may be made with more certainty than decisions about vehicular manslaughter charges because of the level of "administrative and policy review" environmental investigations and prosecutions receive).
120. See id. at 838-39 (noting that the assertion that innocents are at risk ignores the high level of administrative review that environmental investigations receive and fails to seriously consider whether environmental defendants are at appreciably greater risk than defendants in other criminal enforcement contexts).
121. See, e.g., Carr, supra note 1, at vi-vii (suggesting that under current standards, innocent conduct is subject to criminal prosecution); Lazarus, supra note 1, at 2487 (stating that prosecutors should not be trusted to refrain from prosecuting those who are morally innocent but who technically violate the law); Carmichael, supra note 15, at 749, 752 (arguing that innocent people are subject to felony penalties for unintentional technical violations of the law).
122. U.S. Dep't of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 1995, at 465 tbl. 5.16 (1995) [hereinafter 1995 Justice Statistics].
123. U.S. General Accounting Office, Environmental Crime, Issues Related to Justice's Criminal Prosecution of Environmental Offenses, Testimony before the Subcommittee on Oversight and Investigations in the House of Representatives, 10, 17 tbl. II.1, 18 tbl. II.3 (1993) [hereinafter GAO Study].
124. The Justice Department statistics cited in the text at note 106 are based on the number of putative defendants who were not prosecuted. The GAO figures cited in the text at note 107 are based on the number of cases that were not prosecuted after investigation. The comparison of cases and defendants is nonetheless useful because each case in which prosecution was declined had at least one putative defendant. See infra note 109.
125. The GAO study reported an average of 2.2 defendants per environmental prosecution between 1988 and 1993. GAO Study, supra note 107, at 20 tbl III.1. In federal criminal prosecutions generally, the average number of defendants per prosecution is 1.4. Administrative Office of the U.S. Courts, Federal Offenders in the U.S. Courts 1986-1990, at 6. Since Justice Department figures reflect the total percentage of individual defendants the Department investigated but declined to prosecute, see supra note 108, and GAO figures reflect the percentage of environmental cases (regardless of the number of defendants per case) the Department declined to prosecute, the GAO study's declination rate probably understates the difference since it is not adjusted to reflect the presumably greater number of environmental defendants who were investigated but not prosecuted.
126. Lazarus posits that "[t]he mere perception of prosecutorial abuse in environmental law, regardless of whether that perception is true," is reason to curtail it. Lazarus, supra note 1, at 2489. The implications of this view are disturbing. It implies that if unsubstantiated claims are made long enough and loud enough to become part of the lore, the law should respond as if the claims are true regardless of the merits.
127. Reported conviction rates represent the percentage of environmental prosecutions in which convictions were obtained through trials, guilty pleas, and pleas of nolo contendere. They are calculated as a percentage of the total number of environmental prosecutions, including not only those resulting in acquittals, but those that are dismissed for any reason as well.
128. GAO Study, supra note 107, at 13. Criminal justice statistics are both a blessing and a bane. They are a blessing because hundreds of local, state and federal agencies - including the Justice Department, the EPA, and the Administrative Office of the Courts - systematically collect and report them. The statistics are a bane because methodological differences in data collection and reporting, see supra note 108, produce data that may not be directly comparable. The data reported by one agency may also be wildly at odds with data reported by another due to differences in underlying definitions, data sources, and the like. Tabulation of EPA raw data on the number of defendants charged and the number convicted of environmental crimes over a ten year reporting period produces conviction rates that are generally lower than the rates reported in the GAO study, for example. See 1995 Justice Statistics, supra note 106, at 533 tbl. 5.94. One possible explanation for the disparity is that the EPA data reflects the enforcement activities of just ten regional offices, while Justice Department figures reflect the enforcement activities of ninety-three United States Attorneys offices. It is unclear whether the EPA figures include all environmental prosecutions or only those that EPA initiated and/or prosecuted, and to what extent U.S. Attorneys and EPA regional offices coordinate or share information about their respective criminal enforcement activities.
129. 1995 Justice Statistics, supra note 106, at 533 tbl. 5.94. The conviction rate for environmental crimes is boosted by an exceptionally high corporate conviction rate. During the period studied, the conviction rate for corporate defendants in environmental prosecutions was 95.6%, as compared with an 88.7% conviction rate for individuals. GAO Study, supra note 107, at 14-15. Procedurally, environmental prosecutions can be handled in one of three ways. They can be handled singly by the Justice Department's Environmental Crimes Section [ECS] or by United States Attorneys offices, or they can be joint endeavors of the ECS and U.S. Attorney. Between 1988 and 1993, ECS corporate prosecutions achieved a 100% conviction rate, and U.S. Attorney prosecutions resulted in conviction of nearly 98% of corporate defendants. GAO Study, supra note 107, at 14-15. Joint prosecutions resulted in the lowest corporate and individual conviction rates. Id. at 14-15, 23 app. V. Because about half of the convicted defendants were corporations, the impact of this figure is not inconsiderable. GAO Study, supra note 107, at 23 app. V.
130. Ambrose Bierce, Devil's Dictionary 25 (1911).
131. See Brickey, supra note 1, at 495-97.
132. See Memorandum from Peggy Hutchings, Paralegal, U.S. Dep't of Justice, to Neil Cartusciello, Chief, Environmental Crimes Section, U.S. Dep't of Justice (May 27, 1992) (on file with the author). From this data some observers would suggest that criminal enforcement of environmental laws "is on the verge of spinning out of control," Gaynor, supra note 69, at 28, while others would counter that the increasing numbers of environmental prosecutions are "a natural consequence of the measured growth" of the criminal enforcement program. Jane F. Barrett, "Green Collar" Criminals: Why Should They Receive Special Treatment?, 8 Md. J. Cont. L. Issues 107, 113 (1996-97).
133. The database of published and unpublished judicial opinions was generated by searching the LEXIS Genfed courts file and the WESTLAW ALLFEDS file. The LEXIS searches used the following search terms: 16 pre/5 707 /5 (a); 16 pre/5 707 /5 (b) /5 (2); 33 pre/5 407 & CONVICT!; 33 pre/5 1311 & CRIMINAL & PROSECUT! & CONVICT!; 33 pre/5 1319 /5 (c) /5 (1); 33 pre/5 1319 /5 (c) /5 (2); 33 pre/5 1319 /5 (c) /5 (3); 33 pre/5 1321 /5 (b) /5 (5); 33 pre/5 1411 /5 (a); 42 pre/5 6928 /5 (d) /5 (1); 42 pre/5 6928 /5 (d) /5 (2); 42 pre/5 6928 /5 (d) /5 (3); 42 pre/5 6928 /5 (d) /5 (4); 42 pre/5 6928 /5 (d) /5 (5); 42 pre/5 6928 /5 (e); 42 pre/5 7413 /5 (c); 42 pre/5 9603 /5 (b); 42 pre/5 9603 /5 (c); 42 pre/5 9603 /5 (d). The WESTLAW searches used the following search terms: 16 /1 U.S.C.* /1 707(A); 16 /1 U.S.C.* /1 707(B)(2) & CONVICT! PROSECUT! & TI(UNITED STATES); 33 /1 U.S.C.* /1 407 & CONVICT!; 33 /1 U.S.C.* /1 1311 & CONVICT! PROSECUT! & TI(UNITED STATES); 33 /1 U.S.C.* /1 1319(C)(1) & CRIM!; 33 /1 U.S.C.* /1 1319(C)(2); 33 /1 U.S.C.* /1 1319(C)(3); 33 /1 U.S.C.* /1 1321(B)(5); 33 /1 U.S.C.* /1 1411(A); 42 /1 U.S.C. /1 6928(D)(1); 42 /1 U.S.C. /1 6928(D)(2); 42 /1 U.S.C. /1 6928(D)(3); 42 /1 U.S.C. /1 6928(D)(4); 42 /1 U.S.C. /1 6928(D)(5); 42 /1 U.S.C. /1 6928(E)/ 42 /1 U.S.C. /1 7413(C)/ 42 /1 U.S.C. /1 9603(B); 42 /1 U.S.C. /1 9603(C); 42 /1 U.S.C. /1 9603(D). The following statute searches were conducted in LEXIS Genfed courts file: 7 pre/5 (136 or @136 or 1361 or @1361) w/5 USC* or U.S.C! or U S C or code or section; 15 pre/5 (2613 or @2613 or 2614 or @2614 or 2615 or @2615) w/5 USC* or U.S.C! or U S C or code or section; 16 pre/5 (703 or @703 or 707 or @707) w/5 USC* or U.S.C! or U S C or code or section 33 pre/5 (407 or @407 or 408 or @408 or 409 or @409 or 1232 or @1232) w/5 USC* or U.S.C! or U S C or code or section; 33 pre/5 (1311 or @1311 or 1312 or @1312 or 1316 or @1316 or 1317 or @1317 or 1318 or @1318 or 1319 or @1319 or 1321 or @1321 or 1328 or @1328 or 1345 or @1345) w/5 USC* or U.S.C! or U S C or code or section; 33 pre/5 (1411 or @1411 or 1414 or @1414 or 1415 or @1415) w/5 USC* or U.S.C! or U S C or code or section; 42 pre/5 (300 or @300 or 301 or @301 or 302 or @302 or 6921 or @6921 or 6924 or @6924) w/5 USC* or U.S.C! or U S C or code or section; 42 pre/5 ( 7412 or @7412 or 7413 or @7413 or 7414 or @7414 or 7429 or @7429 or 7475 or @7475 or 7603 or @7603 or 7661 or @7661) w/5 USC* or U.S.C! or U S C or code or section; 42 pre/5 (9602 or @9602 or 9603 or @9603 or 9612 or @9612 or 11002 or @11002 or 11042 or @11042 or 11045 or @11045) w/5 USC* or U.S.C! or U S C or code or section; 49 pre/5 (5104 or @5104 w/3 b) w/5 USC* or U.S.C! or U S C or code or section. The following statute searches were conducted in WESTLAW ALLFEDS file: 7 +1 U.S.C.* /3 136 1361; 15 +1 U.S.C.* /3 2613 2614 2615; 16 +1 U.S.C.* /3 703 707(a) 707(b)(1-2); 33 +1 U.S.C.* /3 407 408 409 411 1232(b)(1) 1232(b)(2); 33 +1 U.S.C.* /3 1311 1312 1316 1317 1318 1319(c)(1-4) 1321(b)(3) 1321(b)(5) 1328 1345; 33 +1 U.S.C.* /3 1411(a) 1414(b) 1415; 42 +1 U.S.C.* /3 300h-2(b)(2) 300i-1(a) 300i-1(b) 300j-23(b) 6921 6924; 42 +1 U.S.C.* /3 6928(d)(1-7) 6928(e); 42 +1 U.S.C.* /3 7412 7413(c)(1-5) 7414 7429 7475(a) 7603 7661; 42 +1 U.S.C.* /3 9602 9603(b-d) 9612 11002(a)(2) 11042 11045; 49 +1 U.S.C.* /3 5104(b). The database excludes Migratory Bird Treaty Act (MBTA) cases for several reasons. First, most of the critiques are leveled at prosecutions instituted under four major environmental acts - the Clean Water Act, the Clean Air Act, RCRA and CERCLA. Few seem to be concerned about hunters who inadvertently shoot migratory birds, scoundrels who traffic in bird parts, or landowners who bait their own property. But see Kamenar, supra note 101, at 98-99 (describing United States v. Fassen, 899 F.2d 636 (7th Cir. 1990), in which the U.S. Attorney prosecuted a farmer under the MBTA for poisoning blackbirds the city had deemed a nuisance). Until 1986, moreover, felony violations of the MBTA were strict liability crimes. The felony provision was amended in 1986 to require a culpable mental state, but misdemeanor violations are still strict liability offenses. For similar reasons, the database also excludes Endangered Species Act cases.
134. Cases decided before 1970 were not included in the database because they predate not only formal criminal enforcement efforts, but all of the modern environmental criminal provisions as well.
135. Notably, many of the appeals do not raise issues relating to how the environmental criminal provisions should be construed. Instead, they focus on procedural and evidentiary issues, sentencing, and interpretation of other statutes.
136. The database includes only unpublished opinions that are available on LEXIS and Westlaw as of mid-June, 1998. See supra note 117 for the exact searches used.
137. The universe of unpublished district court opinions is likewise limited to those available on LEXIS and Westlaw as of mid-June, 1998. See supra note 117 for the exact searches used. Trial and appellate opinions were selected on the basis of whether they yielded useful information about offense or offender characteristics, culpability issues, charging practices, or legal issues related to the violations the defendant was charged with committing. The one hundred thirty-two opinions that met the selection criteria arose out of a total of one hundred twenty-six prosecutions.
138. I am currently developing a more comprehensive database that includes data on approximately three hundred environmental prosecutions initiated over a ten year period.
139. Although most of the nonenvironmental crimes charged in these prosecutions are defined in the federal criminal code, which is codified in Title 18 of the United States Code, a few are defined in other parts of the Code. See infra notes 129 & 131.
140. The federal criminal code is codified as Title 18 of the United States Code. To illustrate, a defendant who causes industrial wastewater to bypass a pretreatment system designed to reduce pollutants to levels allowed by the plant's Clean Water Act permit could be prosecuted: (1) exclusively under the Clean Water Act on the theory that he violated permit conditions by failing to pretreat the waste water and by discharging excessive levels of pollution into the river; (2) under the same Clean Water Act provisions in tandem with violations of the federal false statements statute on the theory that he submitted inaccurate reports regarding the amount of pollution discharged by the plant or that he lied to an investigator about the plant's pretreatment procedures; or (3) exclusively under the federal false statements statute.
141. For present purposes, pure Title 18 prosecutions are the least important. Since the search strategy was to locate prosecutions for violating environmental criminal provisions, the database includes only nine pure Title 18 prosecutions. See United States v. Henry, 136 F.3d 12 (1st Cir. 1998) (conspiracy to transport hazardous waste to a facility that had no permit to receive such waste); United States v. Cyphers, 130 F.3d 1361 (9th Cir. 1997) (false statements prosecution for filing false reports concerning required clean up of environmental contamination); United States v. Blum, 62 F.3d 63 (2d Cir. 1995) (prosecution for obstructing and conspiring to obstruct EPA investigation and for making false statements); United States v. Wright, 988 F.2d 1036 (10th Cir. 1993) (false statements prosecution for filing false drinking water reports required under the Safe Drinking Water Act); United States v. Mitchell, 966 F.2d 92 (2d Cir. 1992) (conspiracy and false statements prosecution for falsifying test samples required under the Safe Drinking Water Act); United States v. Paccione, 949 F.2d 1183 (2d Cir. 1991) (RICO and mail fraud prosecution for illegally operating a hazardous garbage dump in violation of RCRA); United States v. Gardner, 894 F.2d 708 (5th Cir. 1990) (false statements prosecution for concealing nonconformity of imported automobiles with requirements of Clean Air Act); United States v. Pandozzi, 878 F.2d 1526 (1st Cir. 1989) (perjury prosecution for lying to grand jury about disposal of liquid wastes in storm drains); United States v. Consolidated Edison, No. 93 CR. 1062 (JSM) 1994 WL 414407 (S.D.N.Y. Aug. 5, 1994) (false statements prosecution for lying to environmental investigator regarding the presence of asbestos at explosion site; explosion was a reportable event under CERCLA) (unpublished).
142. Although there are thirty-one hybrid prosecutions, two of the cases each generated two separate judicial opinions. Thus, the analysis of hybrid prosecutions is based on information gleaned from thirty-three published and unpublished opinions.
143. 18 U.S.C. § 371 (1994) (making it a crime to conspire to commit an offense against the United States or to defraud the United States). Violations of the conspiracy statute were charged in fifteen cases.
144. 18 U.S.C. § 1001 (1994) (making it a crime to knowingly make a false statement concerning a matter within the jurisdiction of a United States Department or Agency). Violations of § 1001 were charged in ten cases.
145. 18 U.S.C. § 1341 (1994) (making it a crime to use the mails or an interstate carrier in furtherance of a scheme to defraud). Mail fraud violations were charged in nine cases. Two cases also charged violation of the wire fraud statute. See 18 U.S.C. § 1343 (1994) (making it a crime to use interstate wire transmissions in furtherance of a scheme to defraud). There were three instances in which defendants were charged with perjury and single instances in which the charged offenses included obstruction of justice, bribery, bankruptcy fraud, tax fraud, racketeering, and arson.
146. Clean Water Act violations were charged in fifteen cases, RCRA in twelve, Clean Air Act in six, CERCLA in three, Ocean Dumping Act in two, and Toxic Substances Control Act in one. In six of the hybrid cases, the defendants were charged with violating more than one of these Acts.
147. In one aberrant case, United States v. Newsome, 998 F.2d 1571 (11th Cir. 1993), the environmental charge was ancillary to the other charges. In that case, members of a drug trafficking conspiracy unlawfully manufactured methamphetamine, and one of their number dumped toxic liquid waste from the operation onto the ground. In addition to conspiracy and drug offenses, the dumper was charged and convicted of disposing of hazardous waste without a permit in violation of RCRA.
148. See, e.g., United States v. Brittain, 931 F.2d 1413 (10th Cir. 1991).
149. See, e.g., United States v. Blue Ridge Plating Co., 7 F.3d 226 No. 92-5441 1993 WL 358780 (4th Cir. Sept. 14, 1993) (unpublished table decision).
150. See, e.g., United States v. Eidson, 108 F.3d 1336 (11th Cir. 1997) (finding a scheme to defraud customers by falsely representing that wastewater would be properly disposed of).
151. See, e.g., United States v. Heuer, 4 F.3d 723 (9th Cir. 1993).
152. See, e.g., United States v. Asrar, 67 F.3d 309, Nos. 93-50610, 93-50623 1995 WL 579646 (9th Cir. Oct. 3, 1995) (unpublished table decision).
153. Defendants in six cases were charged as aiders and abettors. See 18 U.S.C. § 2 (1994) (making one who aids, counsels or procures another to commit a crime punishable as a principal).
154. See, e.g., Blue Ridge Plating, 7 F. 3d 226 (unpublished table decision) (4th Cir. 1993) (affirming conviction of owner/chief operating officer); United States v. Self, 2 F.3d 1071 (10th Cir. 1993) (affirming some counts and reversing other counts of part-owner/president's conviction); United States v. Rutana, 932 F.2d 1155 (6th Cir. 1991) (remanding part-owner/CEO's conviction for resentencing); United States v. Louisiana Pac. Corp., 908 F. Supp. 835 (D. Colo. 1995) (holding that court lacked jurisdiction over government's appeal of dismissal of some counts of owners' indictment); United States v. Pasquariello, No. 89-6196-Cr-Ungaro-Benages, 1994 U.S. Dist. LEXIS 20924 (S.D. Fla. Apr. 19, 1994) (finding owner/shareholder guilty).
155. See, e.g., United States v. Hopkins, 53 F.3d 533 (2d Cir. 1995) (affirming conviction of vice-president of manufacturing); United States v. MacDonald & Watson Waste Oil Co., 933 F.2d 35 (1st Cir. 1991) (affirming convictions of president and employee but reversing conviction of manager); United States v. Liquid Sugars Inc., No. Cr S-93-0302 DFL 1994 U.S. Dist. LEXIS 19581 (E.D. Ca. Sept. 21, 1994) (granting discovery motions of corporation and its vice-president/general manager).
156. See, e.g., Heuer, 4 F.3d 723 (9th Cir. 1993) (affirming conviction of vice-president of operations but reversing one count of conviction of facility manager and remanding for resentencing); United States v. Dean, 969 F.2d 187 (6th Cir. 1992) (affirming conviction of production manager).
157. See, e.g., United States v. Brittain, 931 F.2d 1413 (10th Cir. 1991) (affirming conviction of public utilities director with supervisory authority over waste water treatment plant); United States v. Bogas, 920 F.2d 363 (6th Cir. 1990) (affirming conviction of airport commissioner with day-to-day operational responsibility); United States v. Hoflin, 880 F.2d 1033 (9th Cir. 1989) (affirming conviction of city public works director).
158. It was not possible to identify the status of all of the individual defendants in all cases for a variety of reasons. Some of the opinions were rulings on motions or appeals made by only one of the defendants, for example, while others provided too sketchy a description of the facts. In most cases, however, it was possible to identify the status, job title or job responsibility of each defendant. Corporate entities were defendants or co-defendants in about a third of the hybrid prosecutions.
159. As was true of hybrid prosecutions, the charges in pure environmental prosecutions were brought (in descending order of frequency) under the Clean Water Act, RCRA, CERCLA, the Clean Air Act, and the Toxic Substances Control Act. In more than half of the CERCLA cases the government charged violations of two or more of these Acts. I say that it appears that only environmental criminal provisions are invoked in these cases because the decisions do not always provide a complete recitation of charges brought against each defendant (or for that matter brought against the defendant whose motion or appeal is under consideration). Anecdotal checks made against the larger database that I am developing confirmed that the opinions do not always reflect the true parameters of the indictments or convictions.
160. James J.S. Johnson et al., Bogged Down Trying to Define Federal Wetlands, 2 Tex. Wesleyan L. Rev. 481, 482-84 (1996). Manuals used by different governmental agencies have not always been consistent with one another. Id. at 484-87.
161. Lazarus, supra note 1, at 2471; see also 2 William H. Rodgers, Jr., Environmental Law: Air and Water § 4.12, at 198-99 (1986) (illustrating the difficulty of classifying "navigable waters").
162. The LEXIS and Westlaw searches yielded a few additional wetlands cases that were brought under the Wildlife Refuge Preservation Act. Since this study made no systematic effort to identify prosecutions under that Act, they are not included in the database.
163. The other three opinions related solely to sentencing issues and yielded little information about offense characteristics. In a more comprehensive study of the dynamics of wetlands prosecutions, I identified a total of twenty-one Clean Water Act prosecutions for wetlands violations. My findings were consistent with the data in this study. Although the facts of a few cases were too sketchy to evaluate, virtually all of the defendants had ignored warnings that their conduct was illegal, and many made conscious efforts to conceal their unlawful acts. See Kathleen F. Brickey, Wetlands Reform and the Criminal Enforcement Record: A Cautionary Tale, 76 Wash. U.L.Q. 71 (1998).
164. United States v. Ellen, 961 F.2d 462, 463 (4th Cir. 1992).
165. United States v. Pozsgai, 757 F. Supp. 21 (E.D. Pa. 1991).
166. See United States v. Pasquariello, No. 89-6196-CR-Ungaro-Benages, 1994 U.S. Dist. LEXIS 20924 at *16 (S.D. Fla. Apr. 19, 1994) (reporting that the defendant ringed the lake with huge tanks to conceal his dumping and used filling methods designed to keep floating objects submerged).
167. United States v. Holland, 874 F.2d 1470 (11th Cir. 1989).
168. Lazarus, supra note 1, at 2471; see also John-Mark Stensvaag, The Not So Fine Print of Environmental Law, 27 Loy. L.A. L. Rev. 1093, 1093 (1994) (observing that hazardous waste regulations are so complex that they "defy the comprehension of any one person").
169. Lazarus, supra note 1, at 2471-72. To know the waste was hazardous, for example, "the defendant would have to know what industrial processes produced the material, what its boiling point was under one set of prescribed physical conditions, what concentration of toxic constituents would leach out under a second set of prescribed physical conditions, and how the material would chemically react with other specific substances under yet another set of prescribed physical conditions. . . ." Id.
170. Id. at 2470-71.
171. See United States v. Goldsmith, 978 F.2d 643, 645 (11th Cir. 1992) (per curiam); United States v. Baytank, 934 F.2d 599, 611-13 (5th Cir. 1991).
172. Lazarus, supra note 1, at 2473.
173. Id. at 2472.
174. See supra text accompanying notes 127-142.
175. See, e.g., United States v. Sellers, 926 F.2d 410 (5th Cir. 1991).
176. See, e.g., United States v. St. Angelo, 993 F.2d 229, No. 92-5430 1993 WL 142064 (4th Cir. May 5, 1993) (unpublished table decision).
177. See, e.g., United States v. Dee, 912 F.2d 741, 748 (4th Cir. 1990) (affirming conviction of chemical engineer and two superiors for unlawfully storing and disposing of chemicals used in chemical warfare systems).
178. See United States v. Goodner Brothers Aircraft, Inc., 966 F.2d 380, 382 (8th Cir. 1992) (noting that defendants had previously received several warnings from environmental agencies); United States v. Dee, 912 F.2d 741, 746 (4th Cir. 1990) (stating that defendants had been warned by safety inspectors and employees of potentially hazardous waste spills); United States v. Greer, 850 F.2d 1447, 1450 (11th Cir. 1988) (noting that co-workers had informed defendant of lack of storage space for hazardous waste and had questioned dumping it on the ground); United States v. Gratz, Crim No. 92-141, 1993 WL 19733, at *3-4 (E.D. Pa. Jan. 25, 1993) (noting that defendant had been warned by a manager, a disposal company, and a state environmental agency that chemicals required proper disposal). One of these defendants testified that he knew the dumping was improper. Greer, 850 F.2d at 1450. The defendant in another case admitted that the dumping was part of a scheme to conceal violations in anticipation of a health department inspection. United States v. Ferrin, 994 F.2d 658, 661 (9th Cir. 1993).
179. See United States v. Freeman, 30 F.3d 1040, 1041 (8th Cir. 1994) (stating that drums were leaking onto floor of storage facility); United States v. Baytank, 934 F.2d 599, 614 (5th Cir. 1991) (finding that leakages occurred as a result of dented, rusted drums); United States v. Dee, 912 F.2d 741, 746 (4th Cir. 1990) (noting that canisters of chemicals used in chemical weapons were leaking).
180. This recitation excludes several defendants with other supervisory responsibilities, a government official, a chemical engineer, and at least one defendant engaged in a wholly illicit operation. The pattern found in these cases is not inconsistent with prosecutorial practices in other categories of environmental prosecutions. At least three quarters of the individual defendants in the database were business owners, officers, managers or engineers or held titles that suggest some significant operational responsibility in the business where the violation occurred.
181. Cf. Berlin, supra note 7, at 115 (arguing that prosecutors' insistence that they do not pursue technical violations begs the question because there is no bright line distinction between civil and criminal violations).
182. See supra note 110. There are, of course, legitimate reasons for retaining current mens rea requirements and denying defendants special defenses. See Penders, supra note 32, at 847; Christine L. Wettach, Mens Rea and the "Heightened Criminal Liability" Imposed on Violators of the Clean Water Act, 15 Stan. Envtl. L.J. 377, 399 (1996).
183. Other complex and indeterminate criminal regulatory regimes in which technical issues abound include tax and securities laws, see Brickey, supra note 1; supra notes 79-81; and health care law, see Tamsen Douglass Love, Note, Toward a Fair and Practical Definition of "Willfully" in the Medicare/Medicaid Anti-Kickback Statute, 50 VAND. L. REV. 1029, 1043-49 (1997) (observing that lack of clarity regarding what conduct is legal under the anti-kickback statute creates anxiety among those in the regulated community and requires reliance on prosecutorial discretion as a safeguard against uncertain applications of the law).