Unleashing the rule of lenity: environmental enforcers beware!

• Author: Filippi, David E.

1. INTRODUCTION

   The rule of lenity has long provided American courts with a means for resolving ambiguity in criminal statutes. With its origin in the common law, the rule protects criminal defendants by requiring courts to strictly construe ambiguous statutory and regulatory provisions in a manner most favorable to defendants.(1) While criminal prosecutions have not traditionally played a significant role in the overall effort to enforce environmental laws and regulations, recent congressional enhancements of the criminal penalty provisions of the major federal environmental statutes have opened the way for more vigorous criminal prosecution efforts.(2) As criminal prosecutions for violations of the nation's environmental laws become more prominent, defendants likely will look more and more to the rule of lenity as a complete shield from criminal liability.(3) Whether the rule of lenity should provide such a shield for defendants charged with violations of the nation's environmental laws is the focus of this Note.

   Contemporary state and federal environmental statutes designed to regulate private conduct consistently include both civil and criminal penalty provisions.(4) As a general rule, the criminal penalty provisions require some proof that regulatory violations are committed "knowingly" or "will fully,"(5) while the civil penalty provisions simply require proof of violation.(6) Although this dualistic approach to penalty provides prosecutors engaged in environmental enforcement with broad flexibility in deciding how to approach alleged statutory violators, it is often quite difficult for prosecutors to establish a "knowing" or "willful" violation. Aside from the difficulty associated with merely proving a defendant's requisite mental state, prosecutors seeking to fulfill the mens rea requirements of environmental statutes are often left wondering what exactly it is that they must prove.

   For example, under the criminal penalty provisions of the Resource Conservation and Recovery Act (RCRA),(7) "[a]ny person who ... knowingly treats, stores, or disposes of any hazardous wastes identified or listed under this subchapter ... without a permit" is susceptible to criminal prosecution.(8) Whether a prosecutor must prove that a defendant 1) knowingly handled waste, 2) knowingly handled waste and knew of the waste's status as identified or listed, or 3) knowingly handled waste, knew of the waste's status, and knew that the handling lacked the proper permit, is an issue often left to the courts to resolve.(9) If a court were to conclude that RCRA's "knowingly" language is ambiguous, then the rule of lenity could provide the court with a potential solution to resolve the ambiguity.

   In addition to frequent difficulties surrounding the interpretation of mens rea elements, environmental statutes contain numerous ambiguities that go toward the actus reus elements of a criminal charge as well. For example, courts often struggle with the term "waste" under RCRA.(10) Again, the rule of lenity could provide a perplexed court with a way of resolving the ambiguity.

   But should the rule of lenity be allowed to blindly override the public welfare concerns of an environmental statute? Stated more pointedly, in the case of an ambiguous environmental statutory provision, are the interests of protecting human health and the environment subservient to the interests of protecting individual defendants from potentially insufficient notice that their conduct is criminal?

   At least one circuit court thinks so. In United States v. Plaza Heath Laboratories, Inc.,(11) the Second Circuit, facing what it found to be ambiguous statutory language applicable to the criminal penalty provisions of the Clean Water Act (CWA),(12) flatly rejected the notion that the rule of lenity should take a back seat to environmental or public welfare concerns. While such an approach seemingly runs directly contrary to recent signals from the U.S. Supreme Court,(13) the Second Circuit's decision in Plaza Health sets a dangerous precedent for dispelling ambiguity in environmental statutes in a manner that unduly favors criminal defendants. Given the recent tendency of courts to apply the rule of lenity in certain civil penalty settings even when no criminal penalties have been sought, refuting the Second Circuit's reliance on the rule of lenity in Plaza Health is essential to prevent the rule from eroding the effectiveness of both civil and criminal penalty provisions in environmental statutes.

   This Note examines the use of the rule of lenity and its role in resolving ambiguities in environmental statutes. Part II focuses on the Plaza Health decision and describes the Second Circuit's reliance on the rule of lenity to overcome an alleged ambiguity in the meaning of the term "point source" as set forth in the CWA.(14) Part III traces the evolution of the rule of lenity and explores a recent conceptual expansion of the rule by the U.S. Supreme Court. Although the Court has never directly addressed the availability of the rule to resolve ambiguities in environmental statutes, Part IV scrutinizes three Supreme Court decisions that provide clues as to the Court's orientation toward the use of the rule of lenity in environmental contexts. Finally, by comparing various approaches by the circuit courts to the rule of lenity in environmental contexts, Part V argues that the Second Circuit's reliance on the rule of lenity to resolve ambiguity in Plaza Health is unfounded.

2. UNITED STATES v. PLAZA HEALTH LABORATORIES, INC.

   1. Facts

      On May 26, 1988, during a school field trip to the Alice Austin House, a museum in Staten Island, New York, a group of Staten Island eighth-grade students discovered a number of glass vials containing human blood.(15) The vials were found along Pebble Beach(16) near the Verrazano Narrows Bridge, the bridge that links Staten Island with Brooklyn at the mouth of the Hudson River. Although some of the vials were cracked, many remained sealed with stoppers, secured inside zip-lock bags or solid-plastic containers.(17) In all, approximately seventy vials were recovered, with tests revealing that five of the vials contained blood contaminated with the hepatitis B virus.(18)

      Four months later, on September 25, 1988, a maintenance worker at the Admirals Walk Condominium in Edgewater, New Jersey, discovered several glass vials containing human blood among the rocks of the bulkhead separating the condominium complex from the Hudson River.(19) Authorities eventually recovered at least one hundred vials from the bulkhead site, and of the fifty-five vials tested for contamination, five tested positive for hepatitis B.(20) Identification numbers on the vials recovered from both sites enabled authorities to trace all of the vials to Plaza Health Laboratories, a Brooklyn, New York blood-testing laboratory.(21)

      A jury eventually determined that on two separate occasions between April and September 1988, Geronimo Villegas, Plaza Health's co-owner and vice president for marketing,(22) transported glass vials containing human blood in his personal automobile from the laboratory to his home at the Admirals Walk Condominium in Edgewater, New Jersey. Once home, Villegas removed the vials from his automobile and carried them to the Hudson River's edge. On at least one of the two occasions, Villegas wedged solid-plastic containers holding blood-filled vials into crevices between the rocks making up the bulkhead during the Hudson River's low tide.

      Based on the two separate disposal incidents, the jury found Villegas guilty on four counts of violating the criminal provisions of the Clean Water Act (CWA).(23) The judge dismissed two of the counts, both based on section 309(c)(3),(24) for failing to provide proper jury instructions as to the interpretation of "knowing endangerment."(25) However, the two counts based on section 309(c)(2)(26) for knowingly discharging pollutants without a permit from a point source were allowed to stand.(27)

   2. Majority Opinion of the Second Circuit

      The CWA places a flat prohibition on the discharge of any pollutant from a point source without a permit.(28) Villegas claimed on appeal to the Second Circuit that he, as the source of the pollution in question, did not fall within the meaning of "point source" as defined in the Act.(29) The specific question before the court, then, was whether a human being could be considered a "point source" under the Act. To shed light on the scope of the term "point source," the court proceeded by examining 1) the language and structure of the CWA, 2) the legislative history and context of the CWA, 3) prior case law that had attempted to interpret the term "point source," and 4) the Environmental Protection Agency's (EPA) regulatory structure.(30)

      Regarding the language and structure of the CWA, the court initially observed that human beings were not among the enumerated items listed in the Act that would fulfill the meaning of point source.(31) While recognizing that the enumerated items were not intended as an all-inclusive list, the majority opinion reasoned that human beings were not analogous to any of the items mentioned in the Act's definition because these items all tended to conjure up "images of physical structures and instrumentalities that systematically act as a means of conveying pollutants from an industrial source to navigable waterways."(32) Thus, the Second Circuit rejected any reading that would include "human beings" within the definition of point source, concluding that the CWA only intended to regulate industrial and municipal sources of pollution.(33)

      The court then examined the legislative history and context of the CWA with regard to the meaning of point source.(34) Although fully cognizant of the Act's broad remedial purpose to protect the integrity of the nation's navigable waterways,(35) the majority nevertheless only found confirmation for its prior conclusion based on...