The dilemma of mental state in federal regulatory crimes: the environmental example.

• Author: Mandiberg, Susan F.

1. Introduction

   Federal courts have encountered difficulties in interpreting the mental state requirements of many environmental and other regulatory crime statutes.(2) Although the statutes often make it clear that the prosecutor must prove some "knowledge" on the part of the defendant, courts have been unable to agree about what, precisely, the defendant had to "know."(3) Recourse to legislative history and Supreme Court precedent(4) has not aided in resolving the dilemma, and commentators are just as confused about the issue as the courts.(5) However, as the use of regulatory criminal enforcement continues to grow exponentially,(6) it is becoming more essential to solve the problem of mental state requirements.(7)

   The promise of this Article is that the current confusion about mental state results from the lack of a coherent jurisprudential framework for federal regulatory crimes. As the cases reviewed below indicate,(8) Since the middle of this century, the Supreme Court has increasingly interpreted regulatory crimes by reference to the traditional common-law notion of mens rea,(9) which it treats as a normative concept.(10) However, the Court's approach has had limited success in resolving the problem of mental state. Lower courts often fail to use the Supreme Court's approach,(11) and the approach itself is not yet well suited to answering some of the thorny questions that regulatory crime statutes present.(12)

   This Article explores the issues first, in Part II, by using two environmental crimes statutes as examples of the types of mental-state problems that may arise. Part III describes the development of the Court's normative approach and places that approach in the context of traditional common law jurisprudence. The analysis concludes that some regulatory crimes are merely an application of traditional " specific intent" principles; others, which the Court terms "public welfare offenses,"(13) are best seen as modem versions of "general intent" crimes. Applying this expanded understanding to three environmental crimes statutes, Part IV reveals that current case law does not adequately take the Court's analytical paradigm into account. In addition, difficulties still exist with the Court's approach itself. While the approach resolves some problems, it has failed to give adequate attention to others: statutes regulating different types of activities; mistakes about the existence of permission; and application to statutes drafted from a "descriptive"(14) point of view. Some of these problems reveal possible disagreements between the Court's approach and the intent of Congress, and thus Part V of the Article addresses the issue of whether, and under what circumstances, the Court has the power to insert its interpretation into regulatory crime statutes.

2. Illustration of the Problem: RCRA and the MBTA

   1. The Resource Conservation and Recovery Act

      The Resource Conservation and Recovery Act (RCRA)(15) is an environmental protection statute that regulates the creation, storage, transportation, and disposal of hazardous waste.(16) Specifically, it identifies wastes as hazardous; requires written documentation of all waste shipments; and provides "certification, through a permit system, that performance standards for safe treatment, storage, and disposal are being met."(17) Section 3008(d) sets out the general criminal enforcement provisions of RCRA(18) in numerous subsections.(19) All require the government to prove that the defendant acted "knowingly." Two of these subsections--(d)(1) and (d)(2)(20)--have generated a great deal of litigation concerning just what knowledge the prosecution must prove.

      In general, courts agree that the prosecution must prove the defendant's knowledge of two facts. First, the defendant had to be aware of engaging in the physical activity of handling a substance in the described manner.(21) Second, the defendant had to know the contents of the substance being handled(22) or the fact that the substance was "hazardous waste" in the colloquial, or nonlegal, sense of the term.(23) Most Courts also agree that the prosecution is not required to prove the defendant's awareness of the law, including the permit requirement.(24) Finally, there is consensus that the government must prove knowledge of the fact of permit status when it prosecutes under section 6928(d)(1),(25) and this interpretation also seems to apply to subsection (d)(2)(b) prosecutions.(26)

      The fighting issue is whether the government, when it prosecutes under subsection (d)(2)(a), must prove knowledge that the facility in fact lacked a permit. The Third Circuit, for example, has held that the government must prove this; it based its conclusion on ambiguous statutory language, logic, and fairness.(27) In contrast, the Ninth Circuit concluded that statutory language, logic, and fairness reject such a knowledge requirement.(28)

      It is a challenge to determine which of these approaches is correct. Both circuits use some combination of precedent, legislative history, logic, and statutory interpretation; however, in reaching opposite conclusions they place emphasis and priority on different aspects. Additionally, neither court discussed the broad sweep of Supreme Court precedent in regulatory crimes or offered a general jurisprudential context for resolving the tensions.

   2. The Migratory Bird Treaty Act

      The Migratory Bird Treaty Act (MBTA)(29) represents another example of the problems encountered in determining the mental state requirements of federal regulatory crimes. The MBTA prohibits a broad range of activities affecting migratory birds(30) but allows the National Fish & Wildlife Service to permit some of these activities under specific circumstances.(31) Section 707 under title 16 of the United States Code sets forth the criminal penalties under the MBTA: It is a felony to sell, barter, or offer protected birds or items or to take birds "by any manner whatsoever" with an intent to do so; a felon can receive up to two years in prison and a $2000 fine.(32) Any other violation is a misdemeanor with a maximum sentence of six months in prison and a $500 fine.(33)

      As originally enacted, neither the substantive nor the penalty provisions of the Act contained words denoting a mental state requirement.(34) Consequently, the mental state requirement of the statute remained ambiguous, a problem reflected in a large number of opinions discussing prosecutions under section 703 and its accompanying regulations.(35)

      These mental state cases arose in three contexts. First were cases in which the defendants had hunted in areas where someone had spread grain or decoys to bait the birds.(36) Second were the agriculture cases. In most of these cases, the defendant was a worker responsible for putting pesticide in fields in which migratory birds fed;(37) the birds were considered "taken" because they died from eating the pesticide.(38) Finally, there were cases in which the defendant sold bird parts or possessed bird parts for sale.(39)

      These MBTA cases approached the mental state issue differently from the RCRA cases discussed in the previous section. RCRA contained the term "knowingly"(40) so it Was logical to ask what the defendant had to "know." Since the MBTA had no mental state words,(41) the courts asked whether the prosecutor had to prove scienter,(42) which most defined as awareness of whatever fact made it unlawful to "take" a bird.(43) However, the courts disagreed on whether the MBTA required scienter. A small group of courts(44) and judges(45) read a scienter requirement into the MBTA, but most courts did not.(46) Some of these courts that found no scienter requirement addressed the constitutionality of such a statute, and most upheld it.(47) However, one circuit court opinion--United States v. Wulff--found the MBTA to be unconstitutional absent a scienter requirement.(48)

      Reacting to the Wulff opinion, in 1986 Congress amended the felony provision of the statute to include the mental state "knowingly"(49) thereby intending to add a "scienter" requirement to the Act.(50) According to the Senate report, the amendment would require the prosecution to prove "that the defendant knew (1) that his actions constituted a taking, sale, barter, or offer to sell or barter, as the case may be, and (2) that the item so taken, sold, or bartered was a bird or a portion thereof"(51) However, Congress did not mean to require proof of the defendant's knowledge that his actions violated the subchapter or "that the particular bird was listed in the various international treaties implemented by this act."(52) The Senate report did not address whether Congress intended the government to prove the fact that made the "taking" unlawful, the element that had been the focus of the pre-amendment case law.(53)

      There are no reported felony prosecutions since the statute was amended.(54) Thus, it is difficult to know whether the courts would find that the "knowledge" requirement includes only those factors listed in the Senate report or also includes the factors in the pre-amendment judicial opinions. There is also no way to know whether the courts agree that Congress has succeeded in adding a scienter requirement to the MBTA.

3. THE JURISPRUDENTIAL CONTEXT FOR INTERPRETING THE MENTAL STATE OF FEDERAL REGULATORY CRIMES

   1. The Jurisprudential Challenge of Regulatory Crimes

      The problems illustrated by RCRA and the MBTA are merely recent examples of over one hundred years of judicial confusion on the subject of mens rea in regulatory crimes. To understand the nature of the problem and the attempts to resolve it, it is useful to explore the source of the confusion.

      The traditional concept of "mens rea" reflects normative, or moral, notions.(55) Mens rea, the "evil-meaning mind," exists when a person consciously chooses to do wrong in the moral sense of the term.(56) Applying this concept to traditional crimes presents challenges,(57) but they have...