Environmental Criminal Liability: Core Concepts and Pitfalls Tracy

Environmental Criminal Liability: Core Concepts and Pitfalls Tracy Hester Environmental Practicum March 25, 2019 Key Questions for Criminal Liability Arising from Environmental Violations What what crimes, specifically??

Who: Culpable Parties to an Environmental Crime Individuals and Corporate Officials Corporations Why: Criminal Intent Mens Rea Strict Liability Negligence Knowing Defenses

Whats the Crime? Never forget general crimes can apply in environmental contexts Assault, battery False statements, destruction of evidence (Yates v. U.S.) Misprision

Who committed the crime - Individuals Flip in priority for enforcement 80% of individuals prosecuted for environmental crimes = corporate officers and managers Key factor: direct action as individual, regardless of corporate role or authority to compel compliance (U.S. v. Johnson & Towers) Definitions of person, any person in charge

Who Corporate Officers Lack of action may still lead to personal liability Responsible Corporate Officer doctrine (U.S. v. Dotterweich) CWA and CAA specifically reference responsible corporate officer in definition of person Include federal governmental officers?

Who Corporations as Liable Parties Squarely within definition of person Liable for rogue employees? Scope of employment vs. contrary to corporate policy Constructive knowledge

from multiple employees Corporations as Criminally Liable Parties (contd) Parents can be held criminally liable for acts of subsidiaries if (i) acting as agent, or (ii) veil can be pierced. Why Criminal intent and mens rea

Common law requirement Long since superseded look to the statute Criminal Intent and Strict Liability for Environmental Crimes Federal: Rivers & Harbors Act, the Migratory Bird Treaty Act, the Endangered Species Act and other natural

resource statutes States: Texas Water Code, California Congressional silence? See if the statute imposes misdemeanor liability for a public welfare offense. Criminal Intent - Negligence Usually a matter for civil enforcement Can be criminally prosecuted when: Section 309(c)(1) of CWA: negligently violates

Section 113(c)(4) of CAA: negligently releases a hazardous air pollutant and negligently places another person in imminent danger U.S. v. Hanousek Ninth Circuits analysis U.S. certiorari U.S. v. Pruett (5th Circuit) Criminal Intent Knowing Violations

Separate doctrine from RCOD, public welfare and mens rea doctrines Again, creature of statute RCRA requires knowing violation Courts have interpreted knowing to mean aware of general nature of act, not status of regulatory requirement or of protected animal (Baytank, McKittrick)

Criminal Intent Knowing Violations (contd) The usual battleground: does knowing in one statutory clause carry through to the rest of the statutory section? U.S. v. Ahmad Inferring knowledge from circumstances: Corporate position and responsibility Information provided in earlier circumstances

Willful blindness Defenses to Environmental Crimes Overlap between civil and criminal prosecution: lying, cheating, stealing; cover-up crimes Defenses to environmental crimes: Proof of elements of crime: experts Affirmative defenses see statutes CAA and CWA consent defense

CWA bypass defense CERCLA federally permitted releases 103(a) ESA good-faith belief to protect self or others from bodily harm Thoughts, comments, or questions?