Environmental prosecutions: criminal liability without mens rea and exposure under the responsible corporate officer doctrine.

• Author: Brooks, Douglas S.

IN the context of environmental accidents, such as the deep-water drilling oil spill in the Gulf, corporations and individuals face exposure to prosecution under federal environmental statutes, including the Clean Water Act (CWA), which criminalize conduct that is typically associated only with notions of civil liability. As if the potential of strict and negligent criminal liability is not precarious enough for practitioners in the defense bar and those they represent, the government's utilization of the responsible corporate officer doctrine in environmental prosecutions can put corporate officers at risk for criminal prosecution (and place them on the hook personally for civil damages and penalties) based only on the conduct of other company personnel and the officer's position and role within the company. This is especially alarming in situations involving high-profile, large-scale environmental disasters, where by the time a criminal indictment is returned, it is likely that corporate representatives have already been asked to cooperate in congressional committee investigations, engineering studies and the like.

Moreover, relevant precedent reveals that one can expect federal prosecutors to test the permissible boundaries of their already potent power in this area. Lawyers advising both corporations and individuals whose business affairs might be regulated by environmental statutes like the CWA must understand the legal framework in this area, where mens rea is not a necessary element of criminal conduct, and where individuals can be liable to plaintiffs even where the factors usually necessary for piercing the corporate veil are missing. Such an understanding leads to the inevitable conclusion that in the environmental arena, the law understandably seeks to incentivize companies and individuals to implement preventative measures aimed at avoiding catastrophe. The failure to do so can itself be catastrophic for companies and their responsible officials.

1. Criminal Liability for Mere Negligent Conduct Under the Clean Water Act

   Section 309(c)(1) of the CWA, (1) makes it a crime to negligently violate a plethora of sections of the CWA. The statute itself does not define the applicable standard of negligence; that is, whether the statute criminalizes ordinary civil negligence, or only a heightened gross negligence standard, more consonant with typical requirements of criminal liability. The leading case on this issue is Unites States v. Hanousek. (2) The defendant in Hanousek was the roadmaster of the White Pass & Yukon Railroad, who was supervising a rockquarrying project which was designed to realign a sharp curve in the railroad. (3) Defendant's corporation hired a contracting company to provide the equipment and labor for the project. (4) At the site of the project, a high-pressure petroleum products pipeline ran parallel to the railroad within a few feet of the tracks. (5)

   One evening (when defendant was presumably at home in bed) a backhoe operator for the independent contractor struck the pipeline causing a rupture. An estimated 1,000 to 5,000 gallons of heating oil were discharged into an adjacent river. (6) Defendant was convicted under the CWA for negligently discharging a harmful quantity of oil into a navigable water of the United States. (7) He was sentenced to six months in prison, to be followed by six months in a halfway house. (8)

   On appeal, defendant argued, inter alia, that the CWA required that he act with "criminal negligence," which he defined as "a gross deviation from the standard of care that a reasonable person would observe in the situation," as opposed to ordinary negligence, the standard contained in the district court's jury instructions. (9) He also argued that, to the extent the CWA does criminalize mere ordinary negligence, it violates due process. (10) The court rejected both of these arguments, concluding that Congress intended that a person acting with ordinary negligence be subject to criminal liability under the CWA, and that because the CWA is a public welfare statute, "it may subject a person to criminal liability for his or her ordinary negligence without violating due process." (11) Notably, although defendant did not actually rupture the pipeline himself, he was convicted based only on his own negligence (apparently for not sufficiently protecting the pipeline during the construction project), not on a theory of vicarious liability due to any negligence of the backhoe operator. (12) Hanosuek petitioned the U.S. Supreme Court for a writ of certiorari, which was denied. (13)

   Subsequent to the Hanosuek decision, the Department of Justice has continued to prosecute companies and individuals using an ordinary negligence theory under the CWA in connection with accidental oil spills. For example, in April 2003, a tugboat owned and operated by Bouchard Transportation Company (BTC) was hauling a barge to a generating plant located on the Cape Cod Canal in Sandwich, Massachusetts. The barge was carrying approximately 4.1 million gallons of #6 oil. During its approach to Buzzards Bay Channel, the ship's mate left the wheelhouse and proceeded to the stern to pull in the tow wire. For approximately 15 minutes, there was no one in the wheelhouse, and the mate did not seek assistance from other crew members to serve as a lookout to ensure that the tugboat stayed on course. The tugboat veered outside of the marked channel, and the barge struck a rock outcropping at a speed of approximately six knots. As a result of this collision, approximately 98,000 gallons of #6 oil was released into Buzzards Bay.

   Both BTC and the tugboat's mate were charged and pled guilty under the negligence provision of the CWA, as well as the Migratory Bird Treaty Act, (14) as more than 450 federally-protected birds were recovered dead after coming into contact with the discharged oil.15 The mate was sentenced to five months imprisonment, and the company received a sentence...