Statutory interpretation of clean water act section 1319(C)(2)(A)'s knowledge requirement: reconciling the needs of environmental and criminal law

Ecology Law Quarterly

Volumn 23, Issue 2, 1996, Pages 447-494

  Setness, Katherine H ^a  

^a Hartmann and Setness   (United States)

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EID: 33749083938     PISSN: 00461121     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (332)

1. Donald T. Hornstein, Lessons from Federal Pesticide Regulation on the Paradigms and Politics of Environmental Law Reform, 10 YALE J. ON REG. 369, 380-83 (1993).
2. See, e.g., Sierra Club v. Morton, 405 U.S. 727 (1972) (allowing destruction of scenery, natural and historic objects, and wildlife as a sufficient injury in fact to form a basis for standing under the Administrative Procedure Act).
3. See, e.g., United States v. Fleet Factors Corp., 901 F.2d 1550 (11th Cir. 1990) (broadly interpreting CERCLA liability which attaches through "participation in the management" to include the "capacity to influence" the treatment of hazardous waste).
4. See, e.g., In re Chateaugay Corp., 944 F.2d 997 (2d Cir. 1991) (holding that an injunctive remedy is not a dischargeable claim in bankruptcy).
5. See, e.g., United States v. Sharon Steel Corp., 681 F.Supp. 1492, 1496 (D. Utah 1987) (stating that CERCLA preempts state laws which have the effect of limiting the liability of those whom Congress intended to be responsible for cleanup costs).
6. See generally, Richard J. Lazarus, Assimilating Environmental Protection into Legal Rules and the Problem with Environmental Crime, 27 LOY. L.A. L. REV. 867, 887-89 (1994) (exploring the difficulty of assimilating environmental protection values into the rules of criminal law).
7. See infra part V.
8. See Lazarus, supra note 6, at 887-90.
9. See id.
10. Id.
11. 33 U.S.C. §§1251-1387 (1994).
12. 33 U.S.C. §1319(c)(2)(A) (1988).
13. United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993).
14. United States v. Hopkins, 53 F.3d 533 (2d Cir. 1995).
15. United States v. Weitzenhoff, 35 F.3d at 1283; United States v. Hopkins, 53 F.3d at 541.
16. United States v. Weitzenhoff, 35 F.3d at 1293.
17. Id.
18. "[L]egislatures and not courts should define criminal activity." United States v. Bass, 404 U.S. 336, 348 (1971). Unfortunately, the level of mens rea set by Congress is often ambiguous, and this permits the courts great leeway in their interpretation of congressional intent. See Kevin A. Gaynor et al, Environmental Criminal Prosecutions: Simple Fixes for a Flawed System, 3 VILL. ENVTL. L.J. 1, 5-10 (1992).
19. 42 U.S.C. §§6901-6986 (1988).
20. United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993).
21. United States v. Hopkins, 53 F.3d 533 (2nd Cir. 1995).
22. JOHN P. DWYER & MARIKA F. BERGSUND, FEDERAL ENVIRONMENTAL LAWS ANNOTATED 717 (1994-95).
23. 33 U.S.C. §1311(a) (1983). "Except as in compliance with this section and sections 1312, 1316,1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful." Id. "Much more ordinary, innocent, productive activity is regulated by this law than people not versed in environmental law might imagine." United States v. Weitzenhoff, 35 F.3d at 1293.
24. "Discharge" is defined as "any addition of any pollutant to navigable waters." 33 U.S.C. §1362(12) (1988).
25. "Pollution" is defined as "the man-made or man-induced alteration of the chemical, physical, biological and radiological integrity of water." 33 U.S.C. §1362(19) (1988).
26. "Person" is defined as "an individual, corporation, partnership, association, State, municipality, commission, or political subdivision of a State, or any interstate body." 33 U.S.C. §1362(5) (1988).
27. "Navigable waters" are denned as the "waters of the United States." 33 U.S.C. § 1362(7) (1988). The Environmental Protection Agency and the Army Corps of Engineers have construed "waters of the United States" to include "wetlands." 33 C.F.R. § 328.3(b) (1993) (Army Corps' definition); 40 C.F.R. §230.3 (t)(1993) (EPA definition). "Wetlands" are defined as "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions." 33 C.F.R. §328.3(a) (1993) (Army Corps' definition); 40 C.F.R. §230.3(s) (1993) (EPA definition). Wetlands generally include swamps, marshes, bogs, and similar areas. Thus, the Army Corps of Engineers' definition of "wetlands" encompasses "land that is not 'wet' in the ordinary sense of the word." United States v. Mills, 817 F. Supp. 1546,1553 (N.D. Fla. 1993). The federal courts have applied the Clean Water Act to waters with only a slight connection to navigable waters. See, e.g., West Virginia Coal Ass'n v. Reilly, 728 F. Supp. 1276, 1291 (S.D. W. Va. 1989), aff'd, 932 F.2d 964 (4th Cir. 1991) (CWA applied to instream fills and treatment ponds); United States v. Larkins, 657 F. Supp. 76,79 (W.D. Ky. 1987), aff'd, 852 F.2d 189 (6th Cir. 1988), cert, denied, 489 U.S. 1016 (1989) (CWA applied to wetlands adjacent to rivulets); Leslie Salt Co. v. Froehlke, 578 F.2d 742,756 (9th Cir. 1978) (CWA applied to water trapped behind company's dikes even though no longer subject to tidal fluctuations).
28. "Point source" is defined as "any discernible, confined and discrete conveyance . . . ." 33 U.S.C. §1362(14) (1988).
29. 33 U.S.C. §1311(a) (1988).
30. See 33 U.S.C. §1317(a) (1988).
31. See 33 U.S.C. §1319(c)(7) (1988).
32. See 42 U.S.C. §6901 (1988).
33. See United States v. Weitzenhoff, 35 F.3d 1275, 1284-85 (9th Cir. 1993).
34. Brief of National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Appellants' Petition for Rehearing at 3, United States v. Weitzenhoff, 35 F.3d 1275 (Nos. 92-10105 and 92-10108).
35. Section 1319(a) authorizes the EPA to issue compliance orders to any person in violation of EPA implementing rules or in violation of any condition or limitation of a permit. 33 U.S.C. §1319(a) (1988).
36. Section 1319(g) provides that any person who has violated any permit condition or limitation is subject to two classes of administrative penalties. 33 U.S.C. §1319(g) (1988).
37. Section 1319(d) provides that any person who violates any permit condition or limitation is subject to civil penalties of up to $25,000 per day through a civil action in federal district court. In determining the amount of the penalty, the court is directed to consider any good faith efforts by the violator to comply with the applicable requirements. 33 U.S.C. §1319(d) (1988).
38. Section 1319(c)(1) provides that any person who "negligently violates . . . any permit condition or limitation ... in a permit... shall be punished by a fine of not less than $2,500 nor more than $25,000 per day of violation, or by imprisonment for not more than 1 year, or by both . .. ." 33 U.S.C. §1319(c)(1) (1988).
39. Section 1319(c)(2) provides that any person who "knowingly violates ... any permit condition or limitation ... shall be punished by a fine of not less that $5,000 nor more than $50,000 per day of violation, or by imprisonment for not more than 3 years, or by both . . . ." 33 U.S.C. §1319(c)(2) (1988).
40. Section 1319(c)(3) allows a fine of not more than $250,000 or imprisonment for not more than 15 years, or both. 33 U.S.C. §1319(c)(3) (1988).
41. Brief of National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Appellants' Petition for Rehearing at 5, United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993) (Nos. 92-10105 and 92-10108).
42. Id.
43. Id.
44. 33 U.S.C. §1319(c)(2)(A) (1988). Subsection (B)-a completely new provision added in 1987 to close a regulatory loophole-has substantially different terms than the traditional definition found in all other enforcement provisions both prior to and after the 1987 Amendments. See 33 U.S.C. §1319(c)(2)(B) (1988). This subsection prohibits: "knowingly introduc[ing] [pollutants or hazardous substances) into a sewer system or into a publicly owned treatment works ("POTW") any pollutant or hazardous substance which [is known] or reasonably should have [been] known could cause personal injury or property damage or ... which causes [the POTW] to violate [its own permit]." Id. What distinguishes subsection (B) is that it is limited to violations which the actor knows, or reasonably should know, could cause either personal injury, property damage, or a violation of effluent limitations by a POTW.
45. 33 U.S.C. §1319(c)(2) (1988) (emphasis added).
46. See id.
47. United States v. Johnson & Towers, Inc., 741 F.2d 662, 669 (3d Cir. 1984).
48. The following hypothetical may sound as farfetched and absurd as a fact pattern on a law school exam. It is, however, loosely based on the facts of an actual Clean Water Act case: United States v. Liquid Sugars, Inc., 158 F.R.D. 466 (E.D. Cal. 1994). For a discussion of Liquid Sugars, see infra part IV.B.1.
49. "Sugar water" is not always the harmless substance it may seem. For example, the disposal of large amounts of "sugar water" by Hawaiian sugar mills has caused serious damage to local coral reefs. DAILY ENV'T NEWS, Feb. 25, 1994, at 26.
50. See 33 U.S.C. §§1251(a), 1311(b)(1)(c) (1988).
51. See infra part II.D.
52. For a general overview of the complexities of statutory interpretation, see William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321 (1990); T. Alexander Aleinikoff, Updating Statutory Interpretation, 87 MICH. L. REV. 20 (1988); David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 N.Y.U. L. REV. 921 (1992).
53. Jonathan R. Macey & Geoffrey P. Miller, The Canons of Statutory Construction and Judicial Preferences, 45 VAND. L. REV. 647, 649 (1992).
54. Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469,475 (1992) ("In a statutory construction case, the beginning point must be the language of the statute, and when a statute speaks with clarity to an issue judicial inquiry into the statute's meaning, in all but the most extraordinary circumstance, is finished.").
55. See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, 623 (1990).
56. Id.
57. Id.
58. See id.
59. United States v. Yermian, 468 U.S. 63 (1984).
60. Id. at 77.
61. Clark D. Cunningham et al., Plain Meaning and Hard Cases, 103 YALE L.J. 1561, 1571 (1994) (book review).
62. See Sarah Newland, The Mercy of Scalia: Statutory Construction and the Rule of Lenity, 29 HARV. C.R.-C.L. L. REV. 197, 198 (1994).
63. See id.
64. United States v. Witlberger, 18 U.S. (5 Wheat.) 76, 95 (Marshall, Circuit Justice 1820).
65. United States v. Brown, 333 U.S. 18, 25 (1948) (stating that the rule "is not an inexorable command to override common sense and evident statutory purpose.").
66. Newland, supra note 62, at 204.
67. Eskridge, supra note 55, at 630.
68. United States v. X-Citement Video, Inc., 115 S. Ct. 464,467-70 (1994) ("We do not impute to Congress an intent to pass legislation that is inconsistent with the Constitution as construed by this Court."); Yates v. United States, 354 U.S. 319,324 (1957) ("in [construing the statute] we should not assume that Congress chose to disregard a constitutional danger zone so clearly marked.").
69. See United States v. Cordoba-Hincapie, 825 F. Supp. 485, 515 (E.D.N.Y. 1993).
70. See Richard J. Lazarus, Meeting the Demands of Integration in the Evolution of Environmental Law: Reforming Environmental Criminal Law, 83 GEO. L.J. 2407, 2412-13 (1995);
71. John F. Cooney, Defenses to the Second Generation of Environmental Crimes, C964 ALI-ABA 39, 42 (Oct. 20, 1994)
72. . 71. See infra part III.A.
73. United States v. International Minerals & Chem. Corp., 402 U.S. 558, 565 (1971).
74. See United States v. Balint, 258 U.S. 250, 255 (1922).
75. See United States v. Dotterweich, 320 U.S. 277, 280-81 (1943).
76. Morissette v. United States, 342 U.S. 246, 254 (1952).
77. United States v. Cordoba-Hincapie, 825 F. Supp. 485, 503 (E.D.N.Y. 1993).
78. Former Harrison Anti-Narcotics Act of December 17,1914,38 Stat. 785, Ch. 1 §9 (1914).
79. United States v. Balint, 258 U.S. 250, 254 (1922).
80. United States v. Dotterweich, 320 U.S. 277 (1943).
81. Id. at 280.
82. Id. at 281. Although the Dotterweich Court did not define such a "responsible relationship," dicta from a later Supreme Court opinion stated that engaging in commercial activity which introduced items with the potential to cause harm into the stream of commerce would constitute such a responsible relationship. United States v. Park, 421 U.S. 658, 672 (1975).
83. United States v. Dotterweich, 320 U.S. at 280.
84. Id.
85. United States v. Freed, 401 U.S. 601 (1971).
86. 26 U.S.C. §5861(d) (1964 ed., Supp. V).
87. United States v. Freed, 401 U.S. at 609. The Court contrasted the registration of hand grenades with the statute struck down in Lambert v. California, 355 U.S. 225 (1957), which made it a crime for convicted felons to remain in Los Angeles for more than five days without registering. United States v. Freed, 401 U.S. at 609. "Being in Los Angeles is not per se blameworthy," and does not "alert the doer to the consequences of his deed." Lambert v. California, 355 U.S. at 228.
88. United States v. Freed, 401 U.S. at 608.
89. Id. Where there is no notice, and therefore no duty to inquire, an unknowing defendant may not be convicted consistently with due process. "Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community." Id.
90. Id. at 609. The Freed opinion expands the application of the public welfare offense doctrine from statutes regulating those engaged in commerce to statutes regulating private individuals handling inherently dangerous items. See id.
91. Id.
92. United States v. International Minerais & Chem. Corp., 402 U.S. 558 (1971).
93. 50 U.S.C. §§121-44 (1970).
94. United States v. International Minerais, 402 U.S. at 559. The "knowingly violates" requirement of the statute at issue in International Minerals closely parallels the language of the "knowingly violates" requirement of section 1319(c)(2)(A) of the Clean Water Act. Compare former 18 U.S.C. §834(f) (1979) with 33 U.S.C. §1319(c)(2)(A) (1988).
95. United States v. International Minerals & Chem. Corp., 402 U.S. at 559.
96. Id. at 562-64.
97. United States v. International Minerals & Chemical Corp., 402 U.S. at 564.
98. Id. at 563-64 ("A person thinking in good faith that he was shipping distilled water when in fact he was shipping some dangerous acid would not be covered [by the statute].").
99. Morissette v. United States, 342 U.S. 246, 250 (1952).
100. Id.
101. Id. at 270-71.
102. Id. at 271.
103. Id. It is not apparent how the defendant could have knowingly or intentionally converted property that he did not know could be converted. If someone does not know certain property belongs to the government, that person cannot know the property is being "converted": someone cannot "knowingly convert" property he believes to be abandoned.
104. Id. at 256.
105. Id.
106. Liparota v. United States, 471 U.S. 419 (1985).
107. Section 2024(b)(1) of the Food Stamp Act provides that "whoever knowingly uses, transfers, acquires, alters, or possesses coupons ... in any manner contrary to [the statute]" shall be guilty of a criminal offense. 7 U.S.C. §2024(b)(1) (1977).
108. Liparota v. United States, 471 U.S. at 433.
109. Id.
110. Id.
111. Id. at 426.
112. Id. at 425-27.
113. Id.
114. Id. Many commentators have been critical of this test. See Cooney, supra note 70, at 49.
115. See United States v. Freed, 401 U.S. 601, 604 (1971); Morissette v. United States, 342 U.S. 246, 250 (1952).
116. Liparota v. United States, 471 U.S. 419, 425 (1985).
117. 42 U.S.C. §§6901-6986 (1988).
118. See Posters 'N' Things, Ltd. v. United States, 114 S. Ct. 1747 (1994); Ratzlaf v. United States, 114 S. Ct. 655 (1994); Staples v. United States, 114 S. Ct. 1793 (1994); United States v. X-Citement Video, Inc., 115 S. Q. 464 (1994).
119. 42 U.S.C. §6928(d) (1988).
120. Id.
121. United States v. Bailey, 444 U.S. 394 (1980). "[I]t is clear that legislative drafters do not always operate with a high degree of linguistic precision." United States v. Laughlin, 768 F. Supp. 957, 960 (N.D.N.Y. 1991).
122. Congress itself declared that it has "not sought to define 'knowing' for offenses under subsection (d) [of the Resource Conservation and Recovery Act]; that process has been left to the courts under general principles." S. REP. No. 172, 96th Cong., 2d Sess. 39 (1980), reprinted in 1980 U.S.C.C.A.N. 5019, 5038.
123. United States v. Johnson & Towers, Inc., 741 F.2d 662 (3d Cir. 1984).
124. Id. at 669.
125. Id.
126. United States v. Hoflin, 880 F.2d 1033 (9th Cit. 1989), cert. denied, 493 U.S. 1038 (1990).
127. United States v. Johnson & Towers, Inc., 741 F.2d at 664.
128. United States v. Hoflin, 880 F.2d at 1038-40.
129. Id.
130. Id. at 1039.
131. United States v. Sellers, 926 F.2d 410 (5th Cir. 1991).
132. Id. at 416-17.
133. Id.
134. Id.; see also United States v. Hoflin, 880 F.2d at 1039.
135. United States v. Speach, 968 F.2d 795 (9th Cir. 1992).
136. Id. at 796.
137. Id. at 797.
138. Id. at 796.
139. See United States v. Hoflin, 880 F.2d 1033, 1038-40 (9th Cir. 1989), cert, denied, 493 U.S. 1038 (1990); United States v. Johnson & Towers, Inc., 741 F.2d 662, 669 (3rd Cir. 1984); Unites States v. Speach, 968 F.2d 795, 796 (9th Cir. 1992).
140. See 42 U.S.C. §§6901-86 (1988).
141. See 33 U.S.C. §§1251-1376 (1988).
142. Cooney, supra note 70, at 49.
143. United States v. X-Citement Video, Inc., 115 S. Ct. 464, 468 (1994).
144. Ratzlaf v. United States, 114 S. Ct. 655 (1994).
145. Id. at 659.
146. Id. at 663.
147. Money Laundering Control Act, Pub. L. No. 99-570, Tit. I, Subtit. H, §1354(a), 100 Stat. 3207-22 (1986).
148. Ratzlaf v. United States, 114 S. Ct. 655, 657 (1994).
149. See id.
150. See Cheek v. United States, 498 U.S. 192,199-200 (1991) (subjectively honest, yet unreasonable belief that pilot's pay was not included in definition of income for federal tax purposes failed to meet intent requirement for criminal tax evasion).
151. Ratzlaf v. United States, 114 S. Ct. at 663.
152. Id. The statute was enacted to deter circumvention of reporting requirements designed to prevent banks from acting as financial intermediaries for those involved in criminal activity. Id. at 658.
153. Id. at 660-61.
154. Id. Such evasive goals hardly seem benign when one considers that the purpose of an IRS audit is to prevent tax fraud, and that the enforcement of an order for child support might constitute a legitimate reason for learning of a former spouse's wealth.
155. Id. at 664 (Blackmun, J., dissenting).
156. Id. at 666 (Blackmun, J., Dissenting).
157. Posters 'N' Things, Ltd. v. United States, 114 S. Ct. 1747 (1994).
158. Mail Order Drug Paraphernalia Control Act, Pub. L. No. 99-570, Tit. I, §1822, 100 Stat. 3207-51 (1986) (formerly codified, as amended, at 21 U.S.C. §857) (repealed 1990).
159. Id.
160. Posters 'N' Things, Ltd. v. United States, 114 S. Ct. at 1753.
161. Id.
162. Id.
163. Staples v. United States, 114 S. Ct. 1793 (1994).
164. The National Firearms Act imposes strict registration requirements on statutorily defined "firearms," such as the fully automatic AR-15 assault rifle owned by Mr. Staples. See 26 U.S.C. §5861(d) (1968). While semi-automatic weapons are not included within the statutory definition of "firearms," the rifle owned by Mr. Staples had been modified by the substitution of M-16 selective fire components and the filing away of its metal receiver stop. Staples v. United States, 114 S. Ct. at 1796.
165. Staples v. United States, 114 S. Ct. at 1796-97.
166. Id. at 1794.
167. "[T]he court found that the mere dangerousness of an automatic rifle ... did not justify changing the default setting for the mental element, in view of the commonplace nature of innocent gun ownership .... [T]he fact that gun ownership is highly regulated does not in itself justify dispensing with proof of actual knowledge .... [P]rior decisions showed a strong reluctance to read a mens rea requirement out of felony provisions, absent explicit Congressional directions." Cooney, supra note 70, at 50.
168. See United States v. Hopkins, 53 F.3d 533, 538-40 (2d Cir. 1995); United States v. Johnson & Towers, Inc., 741 F.2d 662, 669 (3d Cir. 1984).
169. Justice Blackmun joined Justice Stevens' dissenting opinion. Staples v. United States, 114 S. Ct. 1793, 1806 (1994) (Stevens, J., dissenting).
170. Id. at 1809 (Stevens, J., dissenting).
171. Id. at 1800 (quoting United States v. International Minerals & Chem. Corp., 402 U.S. 558, 565 (1971)); see also United States v. Dotterweich, 320 U.S. 277, 281 (1943).
172. United States v. Freed, 401 U.S. 601 (1971).
173. Id. at 606.
174. United States v. Staples, 114 S. Ct. 1793, 1799 (1994) (citing Liparota v. United States, 471 U.S. 419, 426 (1985)).
175. Id. at 1800.
176. Id. at 1802 (citing with approval United States v. Anderson, 885 F.2d 1248, 1254 (5th Cir. 1989)).
177. Id.
178. Id. at 1801.
179. Id. at 1803.
180. Id. at 1804.
181. Id. See ROLLIN M. PERKINS, CRIMINAL LAW 793-98 (2d ed. 1969) (suggesting that the penalty should be the starting point in determining whether a statute describes a public welfare offense); but see, e.g., State v. Lindberg, 215 P. 41 (1923) (applying the public welfare offense rationale to a felony).
182. United States v. Staples, 114 S. Ct. 1793, 1805 (1994) (Ginsburg, J., concurring).
183. Id. at 1815 (Stevens, J., dissenting).
184. Id. at 1812 (Stevens, J., dissenting).
185. See, e.g., United States v. Hoflin, 880 F.2d 1033 (9th Cir. 1989), cert. denied, 493 U.S. 1038 (1990); United States v. Johnson & Towers, Inc., 741 F.2d 662 (3d Cir. 1984).
186. Staples v. United States, 114 S. Ct. 1793,1806-07 (1994) (Stevens, J., dissenting).
187. Id. at 1814 (Stevens, J., dissenting).
188. Id.
189. Id.
190. Id.
191. United States v. X-Citement Video, Inc., 115 S. Ct. 464 (1994) (reinstating the conviction of a Los Angeles retailer who sold sexually explicit videotapes of the thenunderage porn queen, Traci Lords).
192. 18 U.S.C. §2252 (Supp. V 1988).
193. 18 U.S.C. §2252(a) (Supp. V 1988).
194. United States v. X-Citement Video, Inc., 115 S. Ct. at 467.
195. See id.
196. Id. at 472.
197. Id. at 469.
198. Id.
199. Id.
200. Id. at 472.
201. Id.
202. Id. at 468-69. Justice Scalia points out in dissent that the pictures in question were not run-of-the-mill photographs, but depicted "sexually explicit conduct," defined as "sexual intercourse .. . between persons of the same or opposite sex, bestiality, masturbation, sadistic or masochistic abuse and lascivious exhibition of the genitals or pubic area." Id. at 475 (Scalia, J., dissenting).
203. Id. at 469.
204. Id. Violations of the Act are punishable by up to 10 years in prison as well as substantial fines. 18 U.S.C. §§2252(b), 2253, 2254 (1984).
205. United States v. X-Citement Video, Inc., 115 S. Ct. at 472 (Stevens, J. concurring). Justice Stevens supported this point by comparing the statute at issue in X-Citement, which requires "knowing" action, with the statute at issue in United States v. Staples, 114 S. Ct. 1793 (1994), which contained no express knowledge requirement. "Surely reading [the] provision to require proof of scienter for each fact that must be proved is far more reasonable than adding such a requirement to a statutory offense that contains no scienter requirement whatsoever." United States v. X-Citement Video, Inc., 115 S. Ct. at 474.
206. Id. at 475 (Scalia, J., dissenting).
207. Justice Scalia did not agree with the majority's constitutionality analysis. Rather, he believed that the statute was unconstitutional because it established a severe deterrent to fully-protected First Amendment activities and was not narrowly tailored to its purposes. Id.
208. Ratzlaf v. United States, 114 S. Ct. 655 (1994).
209. Posters 'N' Things, Ltd. v. United States, 114 S. Ct. 1747 (1994).
210. Staples v. United States, 114 S. Ct. 1793 (1994).
211. United States v. X-Citement Video, Inc., 115 S. Ct. 464 (1994).
212. See Posters 'N' Things, Ltd. v. United States, 114 S. Ct. at 1754; Ratzlaf v. United States, 114 S. Ct. at 663; Staples v. United States, 114 S. Ct. at 1801; United States v. X-Citement Video, Inc., 115 S. Ct. at 470.
213. Ratzlaf v. United States, 114 S. Ct. at 660-61.
214. Posters 'N' Things, Ltd. v. United States, 114 S. Ct. at 1754.
215. Staples v. United States, 114 S. Ct. at 1801.
216. United States v. X-Citement Video, Inc., 115 S. Ct. at 470.
217. See Ratzlaf v. United States, 114 S. Ct. at 662-63.
218. Staples v. United States, 114 S. Ct. at 1804 n.17.
219. United States v. X-Citement Video, Inc., 115 S. Ct. at 471.
220. United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993).
221. United States v. Hopkins, 53 F.3d 533 (2d Cir. 1995).
222. United States v. Weitzenhoff, 35 F.3d at 1281.
223. Id. at 1282.
224. Brief for the United States at 7, United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993).
225. 3 Trial Transcript at 23-41, United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993).
226. 2 id. at 55-56.
227. 2 id. at 55-57; 3 id. at 29.
228. United States v. Weitzenhoff, 35 F.3d at 1284.
229. Id. at 1294 (Kleinfeld, J., dissenting).
230. Id. at 1283.
231. Authority for this methodology was taken from Central Mont. Elec. Power Coop., Inc. v. Administrator of Bonneville Power Admin., 80 F.2d 1472 (9th Cir. 1988) (stating that "[i]n construing statutes in a case of first impression, we first look to the language of the controlling statutes, and second to legislative history."). United States v. Weitzenhoff, 35 F.3d at 1283.
232. Brief for the United States at 21 n.28, United States v. Weitzenhoff, 35 F.3d 1275 (1993) (conceding that the portion of legislative history quoted in the brief refers to language in subsection (B)). Section 1319(c)(2) is split into two subsections, with subsection (A) prohibiting "knowingly" violating any permit condition or limitation. 33 U.S.C. § 1319(c)(2)(A) (1988). Subsection (B), a completely new provision added in 1987, prohibits "knowingly" introducing pollutants or hazardous substances into sewer systems or Publicly Owned Treatment Works ("POTW") when the actor knew or should have known that personal injury or property damage would result, or when the discharge would cause the POTW to violate its own permit. Id. at §1319(c)(2)(B).
233. United States v. Weitzenhoff, 35 F.3d at 1284.
234. Id. at 1285.
235. Id. at 1286.
236. Ratzlaf v. United States, 114 S. Ct. 655 (1994).
237. Staples v. United States, 114 S. Ct. 1793 (1994).
238. United States v. Weitzenhoff, 35 F.3d at 1285-87.
239. Id. at 1275.
240. Id.
241. Id. at 1294.
242. Id.
243. Id.
244. Id. at 1295.
245. "Because construction of a criminal statute must be guided by the need for fair warning, it is rare that legislative history or statutory policies will support a construction of a statute broader than that clearly warranted by the text." Id. (citing Crandon v. United States, 494 U.S. 152, 160 (1990)).
246. United States v. Weitzenhoff, 35 F.3d at 1295.
247. Id. at 1293.
248. Id.
249. Id.
250. Id.
251. Id. at 1294.
252. Id.
253. Id. The sewage plant was licensed by the EPA to discharge 976 pounds of waste per day, or about 409,920 pounds over the fourteen months covered in the indictment. The overage was about six percent. Id.
254. Id.
255. United States v. Hopkins, 53 F.3d 533 (2d Cir. 1995).
256. Id. at 534-35.
257. Id. at 535.
258. Appellee's Brief at 3, United States v. Hopkins, 53 F.3d 533 (2d Cir. 1995).
259. Id. at 5.
260. Id. at 2.
261. United States v. Hopkins, 53 F.3d 533, 541 (2d. Cir. 1995).
262. See United States v. Weitzenhoff, 35 F.3d 1275, 1283-86 (9th Cir. 1993).
263. United States v. Hopkins, 53 F.3d at 537.
264. Id. at 537-38.
265. Id. at 539.
266. Id.
267. United States v. Hopkins, 53 F.3d at 536; United States v. Weitzenhoff, 35 F.3d 1275, 1284 (9th Cir. 1993).
268. United States v. Weitzenhoff, 35 F.3d at 1283.
269. U.S. v. Hopkins, 53 F.3d at 539-40.
270. Id.
271. See United States v. Weitzenhoff, 35 F.3d at 1279; United States v. Hopkins, 53 F.3d at 540.
272. United States v. International Minerais & Chem. Corp., 402 U.S. 558 (1971).
273. U.S. v. Hopkins, 53 F.3d at 539.
274. Staples v. United States, 114 S. Ct. 1793, 1805-06 n.3 (1994) (Ginsburg, J., concurring).
275. United States v. International Minerals & Chem. Corp., 402 U.S. at 561.
276. United States v. Hopkins, 53 F.3d at 540.
277. United States v. Laughlin, 10 F.3d 961, 967 (2d Cir. 1993).
278. To illustrate how differing definitions of knowledge can alter a prima facie case, consider what an assistant U.S. attorney prosecuting a worker at a plant that had discharged a quantity of effluent which exceeded its permit would have to prove under the following definitions: 1. "Knowledge of the Facts That Make Defendant's Conduct Illegal" a. Defendant knew he was engaging in some physical action; b. defendant knew the physical action resulted in the release of a substance; c. defendant knew the identity of the discharged substance; and d. defendant knew the quantity of the effluent released. 2. "Knowledge of the Nature of His Acts" a. defendant knew he was engaging in some physical action; b. defendant knew the physical action resulted in the release of a substance; and c. defendant knew the identity of the discharged substance. 3. "Knowledge That He Was Discharging Pollutants in Question" a. Defendant knew he was engaging in some physical action; and b. defendant knew the physical action resulted in the release of a substance. 4. "Aware of His Acts" a. Defendant knew he was engaging in some physical action.
279. Hornstein, supra note 1, at 380-83 (stating that environmental law may be subdivided into the two broad fields of pollution risk remediation and biodiversity protection).
280. The Clean Water Act is predominantly a pollution risk remediation statute, but through section 404 and regulations defining wetlands, it aims to protect biodiversity as well. See 33 U.S.C. §§1251-1376 (1988).
281. Interview with Jeffrey B. Setness, former Assistant U.S. Attorney, in Stockton, California (Nov. 22, 1994).
282. See Susan Hedman, Expressive Functions of Criminal Sanctions in Environmental Law, 59 GEO. WASH. L. REV. 889, 894 (1991) (describing the unique capacity of criminal law to condemn and to shame those who violate environmental laws).
283. See id. at 891.
284. Id. at 896.
285. But see STANTON WHEELER ET AL., SITTING IN JUDGMENT: THE SENTENCING OF WHITE-COLLAR CRIMINALS 127 (1988) (arguing that criminal sanctions should depend not on a moral judgment about the gravity of harm or the culpability of the offender, but on a strategic judgment about the amount of pain necessary to deter the criminal from seeking the profits of the crime).
286. Although it is often relatively easy to assign knowledge and blame to the low-level employee who dumped or buried hazardous waste, or to prove that a shift foreman or plant manager personally directed the employee's actions, it is much more difficult to climb up the corporate ladder and prove that a corporate executive had knowledge of an environmental violation. 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, 883 (1991).
287. GILBERT GEIS, ON WHITE-COLLAR CRIME 53 (1982).
288. Lazarus, supra note 6, at 880.
289. EPA Note to Correspondents, 1992 WL 245,701 (Sept. 3,1992) (quoting U.S. Attorney Albert Dabrowski).
290. See Lazarus, supra note 70, at 2496.
291. See Daniel Riesel, Criminal Enforcement and the Regulation of the Environment, C855 ALI-ABA 869, 875 (1993).
292. See Steven Grossman, Proportionality in Non-Capital Sentencing: The Supreme Court's Tortured Approach to Cruel and Unusual Punishment, 84 KY. L.J. 107,172 (199596);
293. WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW §1.5 (1995).
294. See generally, SANFORD H. RADISH, BLAME AND PUNISHMENT: ESSAYS IN THE CRIMINAL LAW (1987).
295. Morissette v. United States, 342 U.S. 246, 252 n.9 (1952).
296. KADISH, supra note 292, at 65.
297. OLIVER WENDELL HOLMES, THE COMMON LAW 3 (1881).
298. See id.
299. United States v. Weitzenhoff, 35 F.3d 1275, 1298 (9th Cir. 1993).
300. See United States v. Freed, 401 U.S. 601,608 (1971) ("where there is no notice, an unknowing defendant may not be convicted consistently with due process.").
301. Jonathan Weber, Corporate Crime of the 90s: Prosecutors Are Aiming for the Boardroom in a Growing Push Against Polluters, L.A. TIMES, Nov. 25,1989, at 1; see also Hedman, supra note 281, at 889 ("Over seventy percent of the American public favors the use of jail terms when companies are found guilty of deliberately violating pollution laws.").
302. See Lazarus, supra note 6, at 878.
303. See Indictment in the Matter of United States v. Alegre (E.D. Cal. 1994); United States v. Liquid Sugars, Inc., 158 F.R.D. 466 (E.D. Cal. 1994).
304. Indictment in the Matter of United States v. Alegre (E.D. Cal. 1994).
305. Id. at 2.
306. Id.
307. Id. at 3.
308. Id. at 2.
309. United States v. Liquid Sugars, Inc., 158 F.R.D. 466 (E.D. Cal. 1994).
310. Id. at 468.
311. Indictment in the Matter of United States v. Liquid Sugars, Inc., No. CR-S-93-302 DFL (E.D. Cal. 1993).
312. U.S. Department of Justice Press Release at 2, July 9, 1993. Liquid Sugars was able to sell its sweeteners to food processors by offering to accept wastewater that could not be legally discharged without treatment. The fact that Liquid Sugars' customers were unwilling to flush the wastewater down their own sanitation sewer systems suggests that Liquid Sugars should have known that disposal of the wastewater raised environmental issues, though the indictment appears carefully worded so as not to assert that connection. Indictment in the Matter of United States v. Liquid Sugars, Inc., No. CR-S-93-302 DFL (E.D. Cal. 1993).
313. United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993).
314. United States v. Hopkins, 53 F.3d 533 (2d Cir. 1995).
315. See discussion supra part III.B.3.
316. See discussion supra part III.B.4.
317. See discussion supra part III.B.5.
318. Staples v. U.S., 114 S. Ct. at 1800 (quoting U.S. v. International Minerals & Chemicals Corp., 402 U.S. 558, 565 (1971)).
319. Interview with Jeffrey B. Setness, former Assistant U.S. Attorney, in Stockton, California (Jan. 3, 1996).
320. See infra Appendix A.
321. Id.
322. See United States v. Liquid Sugars, Inc., 158 F.R.D. 466, 469 (E.D. Cal. 1994).
323. United States v. International Minerals & Chem. Corp., 402 U.S. 558 (1971).
324. See United States v. Hopkins, 53 F.3d at 541-42.
325. United States v. Littlefield, 840 F.2d 143,147 (1st Cir.), cert, denied, 488 U.S. 860 (1988).
326. Id.
327. EDWARD J. DEVITT ET AL., FEDERAL JURY PRACTICE AND INSTRUCTIONS §17.09 (1992).
328. See United States v. Liquid Sugars, Inc., 158 F.R.D. 466 (E.D. Cal. 1994).
329. United States v. Rothrock, 806 F.2d 318, 323 (1st Cir. 1986).
330. See, e.g., DEVITT ET AL., supra note 325, at §17.07 (proof of knowledge or intent).
331. See id. at §17.09.
332. 330. Id.