Fault lines in the Clean Water Act: criminal enforcement, continuing violations, and mental state.

• Author: Mandiberg, Susan F.

1. INTRODUCTION II. CHOICE OF INTERPRETIVE CANONS III. CONTINUING DISCHARGES A. Statute of Limitations B. Sentencing: Fines and Incarceration C. Concluding Observations on "Continuing Violations" IV. MENTAL STATE REQUIREMENTS V. ANALYSIS AND RECOMMENDATIONS VI. CONCLUSION APPENDIX I. INTRODUCTION

   In the thirty years of their existence, the criminal provisions of the Clean Water Act (CWA) (1) have generated slightly more than one hundred judicial opinions, both reported and unreported but available online. (2) Virtually none of these opinions deals with issues unique to criminal enforcement of the CWA. (3) Instead, each case addresses problems that arise in civil enforcement of the CWA or in criminal cases generally. Either criminal enforcement of the CWA raises few unique issues, or litigants are not raising them.

   In either event, CWA criminal enforcement cases do highlight some issues that are important to criminal enforcement of pollution control statutes in general. These statutes are basically administrative and civil regulatory schemes, with criminal enforcement tacked on almost as an afterthought. (4) Because criminal law follows rules and philosophies quite different from administrative and civil law, this dynamic creates the potential for significant tension within these statutes. Because of the nature of the differences, many of the issues resonate more fully in the CWA than in the other pollution control statutes, with potential fault lines especially noticeable in the context of wetlands protection.

   Many of the tensions created by the juxtaposition of civil and criminal enforcement arise from ambiguities in the CWA. These tensions are troublesome and should be resolved. This Article begins by reviewing the differences between canons of statutory construction used in civil and criminal cases and how these affect the overlap between civil and criminal enforcement of the CWA. Part III applies these differences to the issue of "continuing violations" in the wetlands context. Part IV considers how the conflicting canons affect the requirement that violations must be "knowing" to qualify for felony criminal sanctions, again in the wetlands context. Finally, Part V analyzes the results of these comparisons and suggests ways to resolve the tensions.

2. CHOICE OF INTERPRETIVE CANONS

   When a statute is ambiguous, courts attempt to resolve the ambiguity through some combination of analyzing the statute's "plain meaning" (analysis of grammar, syntax, structure, and so forth), legislative history, and use of canons of statutory interpretation. However, resort to such canons may raise problems, because the protocols used in criminal cases differ greatly from the protocols used in civil cases.

   In criminal cases courts generally apply the rule of lenity. (5) Application of the rule results in the court construing the law narrowly, resolving any ambiguity in favor of the defendant. (6) This is so whether the ambiguous provision is a statutory term, a mental-state requirement, or a sentencing provision. (7) The rule of lenity is closely tied to notions of justice, especially in respect to adequate notice of what activity is prohibited. (8)

   In civil cases dealing with regulatory statutes, federal courts often use canons requiring deference to the administrating agency's interpretation of the statute. (9) Similar doctrines frequently require courts to defer to an agency's interpretation of its own regulations and permits. (10) Because challenges to an agency's interpretation often arise when a regulated entity seeks freedom from a requirement, the agency's interpretation is often a broad, rather than narrow, reading of the statute. (11)

   A third interpretive protocol is historically "civil," although it has lately seeped into some criminal analysis. This canon calls for giving remedial statutes a broad construction to effect the regulatory purpose. The Third Circuit relied on this canon in United States v. Johnson & Towers, Inc. (12) to determine whether employees are "persons" subject to criminal penalties under the Resource Conservation and Recovery Act of 1976 (RCRA). (13) In deciding that the government can bring criminal charges against employees, the court first examined the language of the statute. (14) The court announced: "Finally, though the result may appear harsh, it is well established that criminal penalties attached to regulatory statutes intended to protect public health, in contrast to statutes based on common law crimes, are to be construed to effectuate the regulatory purpose." (15) In support of this "well established" canon, the Third Circuit cited four Supreme Court opinions. Only one actually announced anything like a doctrine or canon of construction. In United States v. Dotterweich (16) the Court interpreted the criminal provisions of the Federal Food, Drug, and Cosmetic Act (17) to include a duty on the part of corporate officers to seek out and prevent violations of the statute. In rejecting the lower court's more limited interpretation of the Act, the Supreme Court said:

   The purposes of this legislation thus touch phases of the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection. Regard for these purposes should infuse construction of the legislation if it is to be treated as a working instrument of government and not merely as a collection of English words. The prosecution to which Dotterweich was subjected is based on a now familiar type of legislation whereby penalties serve as effective means of regulation. (18) The other cases cited by the Third Circuit are slim support for a "well established" doctrine of broad interpretation of all regulatory public-health crime statutes. (19) Nevertheless, seven years after Johnson & Towers, the First Circuit, citing only Johnson & Towers, made use of the canon in interpreting criminal provisions of RCRA. (20)

   The "broad construction" canon might be "well established" if it had been extensively used in criminal cases prior to Dotterweich. However, this is not the case. The two supporting cases cited in Dotterweich itself both use the canon to resolve non-criminal issues. (21) In addition, the lack of criminal precedent holds if we go beyond the Dotterweich cites to earlier cases. (22)

   In fact, the broad construction doctrine appears to be civil in origin. In civil cases, the canon is often phrased as requiring broad construction of statutes to effect their remedial (as opposed to regulatory or "public welfare") purpose. (23) Throughout the nineteenth century, parties urged the Supreme Court to use this approach in a number of civil disputes. (24) The Court itself first relied on the doctrine in 1851 in a federal suit to collect a debt. (25) The Supreme Court made the jump to applying broad construction to a criminal statute in United States v. Balint, (26) which dealt with a regulatory crime rather than one the Court considered a "true" crime. (27) As discussed below, (28) in the 1980s when the Court started treating regulatory crimes as true crimes, it stopped applying the broad construction canon. (29) The approach continues, however, to be used in civil cases, (30) and at least one prominent commentator considers it a civil canon. (31) At the very least, the broad construction canon is not regularly used in the criminal context today.

   The tension between criminal and civil interpretive canons creates a problem for Clean Water Act litigation in three different contexts. First, in many ways the civil and criminal enforcement provisions of the CWA completely overlap because the administrative, civil, and criminal enforcement provisions all incorporate the same group of substantive CWA provisions. For example, the definition of the term "point source" underlies regulatory enforcement, civil judicial enforcement, citizen suits, and criminal prosecutions. (32) In United States v. Plaza Health Laboratories, Inc. (33) the Second Circuit used the rule of lenity to determine that a human being is not a point source. Had this been a civil enforcement case, the court might have felt free to adopt a broader definition (34) because human beings are certainly capable of throwing dangerous pollutants into the waters of the United States. A broad interpretation of point source would further the CWA's purpose of protecting the nation's water. (35) However, because the first case to raise the issue was criminal and the court used the rule of lenity, this goal is frustrated.

   The other two contexts in which tensions arise are less obvious. One involves the fact that civil and criminal enforcement often raise similar issues, such as interpreting when a violation occurs for purposes of the statute of limitations. (36) Finally, tensions arise in an area that is unique to criminal enforcement--the issue of mental state. (37) In this context, courts are often swayed by the essentially regulatory nature of the CWA and forgo the criminal interpretive canon in an attempt to fulfill the statute's regulatory functions. (38)

   In all of these contexts, the interpretation is made more difficult by the lack of any overarching rule that tells courts which canon of construction to adopt when more than one might apply. (39) However, the choices are limited. Until Congress amends the CWA to eliminate ambiguous provisions--or to direct use of a particular canon--courts have four ways to achieve uniform interpretation. First, criminal charges are frequently possible for CWA violations; thus, courts might require the role of lenity in all CWA enforcement cases. Alternatively, the government more commonly uses administrative and civil enforcement mechanisms for CWA violations; thus, courts might reject the rule of lenity in all CWA criminal enforcement cases in favor of civil-administrative canons. As a third option, courts might use the rule arising in the first case to address the substantive issue--in a criminal...