General Principles of Criminal Liability
| Author | Judson W. Starr/Amy J. McMaster/John F. Cooney/Joseph G. (Jerry) Block/David G. Dickman |
| Pages | 37-55 |
Page 37
Part Two: Legal Theory and Strategy
Chapter 4:
General Principles of Criminal Liability
I. Mens Rea
Historically, mens rea (latin for “guilty mind”) has been a necessary element in establishing criminal
liability. “Mens rea is the rule of, rather than the exception to, the principles of Anglo-A merican criminal
jurisprudence.”1 us, although one might be civilly liable in tort for an “innocent” act that injured others,
criminal liabilit y generally may not be established without showing some culpability or intent. Exceptions
to the mens rea requirement have been rare, because of the signicant consequences of criminal liability
and issues of due process and equity. Exceptions typically involve areas where the general public interest is
concerned and “ dangerous” or “deleterious” substances a re involved. Such “public welfa re oenses” have
included the sale of narcotics and contaminated food.2
During the 20th century, however, the explosion of regulatory law in the United States contributed to a
gradual erosion of the mens rea requirement in criminal jurisprudence and an expansion of the concept of
public welfare oenses and the public welfare doctrine. is trend has been particularly evident in the evo-
lution of criminal prosecutions for violations of environmental laws. Federal courts have expressly labeled
the Clean Air Act (CA A), the Clean Water Act (CWA), and the Resource Conservation and Recovery Act
(RCRA) as public welfa re oenses.3 us, although the statutes criminalize “k nowing” violations of the
law, the courts have not required any showing of criminal intent to obtain a conviction. is lower stan-
dard of proof means that the distinction between civil and criminal ca ses has become blurred to the point
that virtually every environmental violation is theoretically subject to criminal prosecution rega rdless of
the subjective mind of the accused, e ven if that mind is “objectively” reasonable. is results in potential
criminal liability for e ven the most environmentally responsible companies which, in turn, ra ises impor-
tant questions about whether a lower standard of proof is appropriate or eective.
Since United States v. International Minerals & Chem. Corp.,4 federal courts have applied the public
welfare doctrine in environmental crimes cases, i.e., requiring only a showing of general intent, rather than
specic intent, for conviction. Consequently, many courts have held that the government may obtain a
conviction upon showing that the defendant was aware of his conduct, not that he was aware the conduct
was unlawful. Environmental ca se law has imposed a new species of strict liability criminalizing conduct
that may not have been negligent, much less knowing.5 e government will almost always be able to meet
this lower mens rea standard for facilities that have obtained environmental permits for their operations as
they are “aware” of their regulated activities.
1. United States v. U.S. Gypsum Co., 438 U.S. 422, 436 (1978), appeal after remand, cert. denied, 444 U.S. 884 (1979).
2. See, e.g., United States v. Dotterweich, 320 U.S. 277 (1943) (misbranded drugs), rehearing denied, United States v. Dotterweich, 320 U.S. 815
(1943).
3. Respectively, United States v. Alghazouli, 517 F.3d 1179 (9th Cir. 2008), cert. denied, 555 U.S. 904 (2008); United States v. Weitzenho, 35
F.3d 1275, 1283-84 (9th Cir. 1993), cert. denied sub nom; and United States v. Laughlin, 10 F.3d 961, 24 ELR 20221 (2d Cir. 1993).
4. 402 U.S. 558 (1971).
5. As Justice Clarence omas pointed out in Staples v. United States, use of the term “strict liability” is technically a misnomer. 511 U.S. 600,
607 n.3 (1994). Although courts have eliminated the requirement of mens rea, they do require that the defendant knows that he is dealing
with a “dangerous or deleterious substance.” Id.
Page 38 Environmental Crimes Deskbook 2nd Edition
ree environmental statutes— CWA, CAA, and RCR A—establish criminal liability for “negligent”
as well as “knowing” violations.6 Under t he mens rea standards in these statutes, the government need
not prove knowledge of al l the operative facts, or premeditation, or intent to violate the law. Courts have
interpreted the term “knowingly” to require only genera l awareness that the defendant was dea ling with a
substance likely to be regulated. is has raised signicant constitutional questions of due process regard-
ing notice and whether it is equitable to convict individuals who are unaware their conduct is criminal.
e risk of criminal liability for environmental violations is exacerbated by the complexity and technical
nature of environmental statutes and regulations and the fact that some statutes, such as the CAA and the
CWA, criminalize virtually all obligations under the statute. Under the CAA, for example, it is a felony to
violate any permit provision or regulation, including detailed reporting requirements. Conicting or vague
permit and regulatory provisions mean that mistakes and errors in reporting are not uncommon. Further,
state and federa l regulations can contain aspirational la nguage rega rding how a permit program must be
implemented, but the permits themselves may not incorporate these provisions.
A. Statutory “Intent”
During the 1980s, the U.S. Congress amended several environmental laws to include felony provisions, and
Congress also amended cer tain statutes’ mens rea requirements. For example, in 1987, Congress amended
the CWA to change the mens rea requirement for misdemeanors from “willfully or negligently” to “negli-
gently” and made “knowingly” the mens rea for felony oenses. e CAA Amendments of 1990 also added
felony oenses for “k nowing” violations and introduced “negligently” as the mens rea for misdemeanors.
In United States v. Frezzo Bros.,7 t he U.S. Court of Appeals for the ird Circuit considered the original
mens rea element of the CWA and armed the district cour t’s holding that proof of specic intent was
not required in order to sust ain a CWA conviction for “will fully or negligently” dumping pollutants into
navigable waters without a permit.8
Most federal environmental laws9 prohibit “knowing” violations of their provisions, without further
dening that term. e legislative history of environmental statutes rarely contains guidance as to what
conduct the term “knowingly” covers.10 Consequently, court s have had to dene the term on a case-by-
case basis. What is meant by the term “knowingly” has thus become the most frequently litigated issue in
6. See discussion infra Sections D & E.
7. 703 F.2d 62, 13 ELR 20584 (3d Cir. 1983).
8. United States v. Baytank (Houston), Inc., 934 F.2d 599, 618-19 (5th Cir. 1991), reached the same conclusion, nding that the use of the word
“negligently” eliminated the need for specic intent.
9. ere are two pure strict liability statutes that have been, and continue to be, used by DOJ prosecutors in environmental cases: the Refuse
Act and the Migratory Bird Treaty Act (MBTA). See 33 U.S.C. §411; 16 U.S.C. §703 et seq. Under strict liability, a person can be convicted
without any proof of intent or mens rea—proof that the person merely did the act prohibited is all that is required for a conviction. See, e.g.,
United States v. American Cyanimid Co.,, 480 F.2d 1132, 1134 (2d Cir. 1973) (interpreting the Refuse Act broadly such that the court upheld
convictions without requiring proof that the refuse (in this instance, overow from a storage tank) had reached navigable waters). e Refuse
Act, originally enacted in 1899, and provides that it is unlawful to “throw, discharge, or deposit, or cause, suer, or procure to be thrown,
discharged, or deposited, . . . any refuse matter of any kind or description . . . into any navigable water of the United States.” 33 U.S.C. §407.
e Refuse Act was the basis for the prosecution of the Exxon Valdez oil spill. See United States v. Exxon Corp., 2 Oil Spill Litig. New (Litig.
Reporting Serv.) 1048 (D. Alaska Feb. 27, 1990). is was prior to the revision of the CWA in 1990, which until that time did not include
criminal sanctions for discharges of oil or hazardous substances into navigable waters. Despite the fact that the CWA now does provide for
criminal sanctions for knowing and negligent discharges of oil, prosecutors have on occasion utilized the strict liability of the Refuse Act to
address discharges into navigable waters, primarily in vessel pollution cases, and prosecution of such discharges under the Refuse Act remains
an option. See, e.g., United States v. IMC Shipping Co. Pte. Ltd., No. 3:07-CR-00096 (D. Alaska, Aug. 22, 2007) in which the owner of the
Motor Vessel Seledang Ayu, which ran aground and broke up on Unalaska Island in the Bering Sea in 2004, pleaded guilty to two Refuse Act
violations and one violation of the MBTA for spilling approximately 340,000 gallons of bunker fuel, as well as several thousand tons of soy
beans, into the Bering Sea in the Alaska Maritime National Wildlife Refuge in the Aleutian Islands, resulting in the deaths of several thousand
migratory birds. e company was sentenced to pay a $10 million criminal penalty. e MBTA was originally enacted in 1918 to implement
a treaty between the United States and several other countries. In general, the MBTA proscribes the hunting, capture, possession, and sale of
more than eight hundred species of birds. 16 U.S.C. §703. Again, criminal liability under the MBTA does not require proof that the defendant
had specic intent or guilty knowledge, or was negligent, but only proof that the proscribed action has occurred. For a detailed discussion of
criminal enforcement under the MBTA, see Chapter 9, Section VIII infra. Prosecutions under the MBTA are more frequent than under the
Refuse Act, and occur most frequently in oil discharge cases. See, e.g., IMC Shipping Co., supra note 159; BP Exploration & Prod., supra note
69.
10. See United States v. Weitzenho, 35 F.3d 1275, 1283-84, 1295-96, 24 ELR 21504 (9th Cir. 1993), cert. denied sub nom. Mariani v. United
States, 513 U.S. 1128 (1995). e exception is the Ocean Dumping Act, 33 U.S.C. §1411(a), where the U.S. Senate Report provides that
the term “refers to a conscious act or conscious omission . . . which amounts to a violation of law, regulation or permit.” S. R. N. 451,
92d Cong. (1971), reprinted in 1972 U.S.C.C.A.N. 4234, 4249. On this basis, courts have held that the Ocean Dumping Act requires mere
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