The expanding criminalization of environmental laws: the recent decisions in Hanousek, Hong and Hansen.

• Author: Whitley, Joe D.

The criminalization of environmental law continues to be one of the fastest growing components of the U.S. Environmental Protection Agency's enforcement program. During fiscal year 2001, the EPA initiated 482 criminal cases and referred 256 of them to the U.S. Department of Justice for prosecution. (1) With a total of 372 defendants charged, those prosecutions resulted in nearly $95 million in fines and restitution, and 256 years of imprisonment for those convicted--more than a 75 percent increase in jail time from fiscal year 2000. The Bush administration has continued this emphasis on environmental criminal enforcement and has stated that the prosecution of crimes will be a primary focus of its environmental enforcement policy. (2)

An investigation can be triggered by information supplied by current or former (and often disgruntled) employees, competitors, neighbors, or public interest groups, as well as by environmental regulators or other government employees. While the government obviously believes that significant imprisonment and large fines are appropriate penalties for "environmental criminals," another objective is the deterrent effect of an environmental criminal case on other companies and individuals. Many government officials and agents believe that the harsh penalties associated with environmental crimes positively affect environmentally related business decisions and, consequently, promote greater compliance with environmental laws.

This article discusses three recent federal appellate decisions that highlight the importance and implications of the increasingly aggressive criminal enforcement of environmental laws: United States v. Hanousek, 176 F.3d 1116 (9th Cir. 1999), cert. denied, 528 U.S. 1102 (2000); United States v. Hong, 242 F.3d 528 (4th Cir. 2001); and United States v. Hansen, 262 F.3d 1217 (11th Cir. 2001). These decisions not only confirm the government's continued interest in pursuing criminal enforcement of environmental laws, but also demonstrate the steadily decreasing proof required for conviction. In light of these cases and the enforcement climate they typify, individuals and entities facing a criminal environmental investigation should engage experienced defense counsel early in the process to conduct an appropriate internal investigation and properly defend their interests.

United States v. Hanousek

In United States v. Hanousek, a roadmaster for an Alaskan railroad company was convicted under the misdemeanor provision of the federal Clean Water Act for negligently discharging a harmful quantity of oil into a navigable water. (3) The applicable provision of the Clean Water Act, 33 U.S.C. [section 1319(c)(1)(A), makes it a crime to "negligently" violate certain provisions of the act, including 33 U.S.C. [section 1321(b)(3), which prohibits the discharge of oil into or upon the navigable waters of the U.S. or adjoining shorelines. (4) The discharge at issue in Hanousek resulted from a backhoe operator's accidental rupture of an oil pipeline; however, the defendant was off duty and at home when the accident occurred. (5) On appeal, Hanousek contended that the trial court erred in failing to instruct the jury that 33 U.S.C. [section 1319(c)(1)(A) required the government to prove that he acted with "criminal" as opposed to "ordinary" negligence. (6) Hanousek also argued that, to the extent 33 U.S.C. [section 1319(c)(1)(A) permitted a criminal conviction for ordinary negligence, the provision violated his due process rights. (7)

The Ninth Circuit flatly rejected Hanousek's arguments. The court first held that the plain language of the misdemeanor provisions of the Clean Water Act allow for the imposition of criminal liability based on "ordinary" negligence--the "failure to use such care as a reasonably prudent and careful person would use under similar circumstances." (8) Second, construing the Clean Water Act as public welfare legislation "designed to protect the public from potentially harmful or injurious items," the court rejected Hanousek's argument that the statute, as interpreted by the trial court, violated due process: "It is well-established that a public welfare statute may subject a person to criminal liability for his or her ordinary negligence without violating due process. (9) The court found significant Hanousek's failure to dispute "that he was aware that a high-pressure petroleum products pipeline ... ran close to the surface next to the railroad tracks" and his failure to contend "that he was unaware of the dangers a break or puncture of the pipeline by a piece of heavy machinery would pose." (10) Consequently, the court concluded that Hanousek "should have been alerted to the probability of strict regulation." (11)

The Hanousek decision appears to be an extreme example of criminal prosecution for negligence where a defendant was wholly unaware of the underlying activities giving rise to the criminal charges. While the Clean Water Act punishes such crimes as misdemeanors and provides for up to one year of imprisonment, sentences may be aggregated for a conviction involving multiple counts. (12) As a result, jail time for multiple negligent violations of the Clean Water Act can be substantial. (13) Indeed, while the U.S. Supreme Court declined to review the Ninth Circuit's decision in Hanousek, in a rare dissenting opinion to a denial of certiorari, Justices Thomas and O'Connor expressed their disfavor with the appellate court's reliance on the public welfare doctrine:

Although provisions of the CWA regulate certain dangerous substances, this case illustrates that the CWA also imposes criminal liability for persons using standard equipment to engage in a broad range of ordinary industrial and commercial activities. This fact strongly militates against concluding that the public welfare doctrine applies ... I think we should be hesitant to expose countless numbers of construction workers and contractors to heightened criminal liability for using ordinary devices to engage in normal industrial operations. (14)

United States v. Hong

Like Hanousek, the U.S. Court of Appeals for the Fourth Circuit's decision in United States v. Hong involved a prosecution under the Clean Water Act, 33 U.S.C. [section] 1319(c)(1)(A). (15) There, James Hong, the sole shareholder of Avion Environmental, appealed his conviction on 13 counts of negligently violating pretreatment requirements under the Clean Water Act. (16) The government successfully prosecuted Hong on each count under the "responsible corporate officer" doctrine, which provides that "all who had `a responsible share' in the criminal conduct" can be held accountable for corporate violations of the law. (17)

On appeal, Hong argued that the government could not rely on the responsible corporate officer doctrine because 1) "the government failed to prove that he was a formally designated officer of Avion," and, alternatively, 2) "the...