Environmental Crimes and the Knowledge Requirement

Corporate officers and employees can be held liable if they knew or should have known that their acts were a violation of a statute. As a general rule, the government does not have to prove that a defendant specifically intended to violate the law. Environmental statutes establish crimes of general intent where the burden is limited to demonstrating that an act took place with the knowledge of the defendant and that the act is prohibited by law.

The Fifth Circuit has recently held that mens rea requirements should apply to every element of a crime under the RCRA. The Fifth Circuit considers two criteria important when examining regulatory crimes: (1) whether the offense falls within the “public welfare offense” exception, and (2) the seriousness of the penalty imposed for the violation. First, the Court noted, “public welfare offenses” customarily involve “potentially harmful or injurious items” and embrace a diminishment or elimination of mens rea.

The problem with this diminution of mens rea is that the mistake-of-fact defense may be eliminated; for example, a person who reasonably believes that he is discharging water may be guilty of a CWA offense “if the substance turns out to be something else.”

Secondly, public welfare offenses are normally associated with fines or short jail sentences; substantial jail sentences, such as are associated with Serious Felonies, are considered outside the public welfare offenses exception.

The Fifth Circuit charges that Congress should make a “clear statement … that mens rea is not required” when creating strict liability regulatory crimes. The rationale supporting the increase of criminal prosecution of individuals is that “the threat of criminal prosecution and jail time is more likely to make an individual, and consequently his company, obey the law.”

Concerning the criminal prosecution of an individual, the EPA contends as follows:

A facility manager fears being caught in noncompliance by an inspection and suffering the consequences. The manager may fear that the company will lose money through a penalty or fine, that bad publicity will harm the company’s sales, or that company managers will have to serve a prison sentence. The manager also may fear a salary cut or loss of his or her job as a result of an enforcement action. Enforcement enhances these influences; lack of enforcement eliminates them.

The EPA’s rationale is especially true given that most would-be environmental criminals do not exhibit the typical characteristics and traits of a common criminal and, therefore, are more responsive to the mere threat of incarceration, not to mention the imposition of criminal monetary fines.

Bearing the EPA’s rationale in mind, from October 1983 until September 1991, the Environmental Crimes Section of the Department of Justice recorded indictments against 828 defendants (564 individuals and 204 corporations) and 613 pleas and convictions. Similarly, in excess of $74,583,348 in fines and more than 362 years of jail time have been imposed against defendants. Quite obviously, the threat of criminal prosecution for environmental violations is very real.

Another alarming trend that is responsible in part for the rise in criminal prosecution is the emerging acceptance of the responsible corporate officer doctrine as a basis for establishing the intent required to show criminal violations by corporate officers of the various environmental statutes. The responsible corporate officer doctrine holds a corporate officer liable for the acts of company employees and permits jurors to infer the requisite intent for environmental violations based upon the officer’s position of authority and responsibility in a company. This doctrine is being used more frequently by the government where there is evidence of an officer or director who bears responsibility for environmental compliance, but who nevertheless ignores illegal and potentially harmful activities falling within his or her area of responsibility. Under the doctrine, no mental state is required, and liability is based on corporate status and the occurrence of an act done by officers. Commentators agree that the doctrine diminishes a prosecutor’s burden to prove intentional and knowing conduct.

The apparent rationale behind the emerging acceptance of the doctrine is that the violation of environmental statutes constitutes offenses against the public welfare and the public welfare objectives outweigh any “hardships suffered by ‘responsible corporate officers’ who are held Criminally Liable in spite of their lack of conscious wrongdoing.”

Statutory interpretation may be expanded to include environmental offenses. In United States v. Rivera, 46 U.S.C.A. § 10908 was used to convict a defendant for causing an oil spill. Under § 10908, it is a crime to endanger an individual’s life by sending them to sea in an unseaworthy vessel. The First Circuit said that this included being aware of the poor condition of a tow wire, which failed and caused an oil barge to run aground. The dissent argued that this interpretation exceeded the scope of 46 U.S.C.A. § 10908, and that it could “convert untold numbers of unsuspecting persons into prospective criminals.”

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