Simple Negligence and Clean Water Act Criminal Liability: A Troublesome Mix

Congress and the Obama administration have plans to amend the Clean Water Act’s definition of “Waters of the United States” to provide more consistent protection of the nation’s waters. Most legal scholars would agree that the U.S. Supreme Court’s definition of “Waters of the United States” in Rapanos v. United States,
547 U.S. 715, 62 ERC 1481 (2006), is in need of a legislative fix. While Congress is at it, they may want to consider a “fix” to the negligence standard for criminal violations of the Clean Water Act, which is ambiguous at best, and at worst, criminalizes simple negligence. These two changes go hand-in-hand and should help alleviate the legal drama that has surrounded what should be a relatively straightforward environmental protection statute. If done properly, both changes would remove a great deal of uncertainty over what water bodies are regulated and what type of conduct will subject a person or company to criminal prosecution. If done properly, the act could serve as a model for other environmental statutes in need of reform. This article will leave the debate over the proper definition of “Waters of the United States” to other authors, and instead will focus on the need for a higher standard of negligence.

Under the Clean Water Act. any person whose negligence causes a discharge of pollutants from a point source into waters of the United States is subject to criminal prosecution and faces a fine of up to $25,000 per day of violation and imprisonment for one year. ¹33 U.S.C. §1319(c)(1). At least two federal appellate courts have interpreted the degree of negligence that triggers criminal liability as simple negligence, which can amount to no more than a plant manager’s switch of the wrong valve. The Environmental Protection Agency and Department of Justice have been judicious in their use of this criminal negligence provision and one might legitimately ask why elevate the negligence standard. The rationale is several fold:

1) Civil and administrative enforcement options more effectively punish simple negligence violations and equally protect the public health and the environment;

2) A higher negligence standard would reflect the greater degree of precision that the enforcement program currently employs and would allow for more efficient administration of justice;

3) None of the principles of criminal prosecution is effectively served by imposing criminal penalties for simple negligence violations, as the threat of jail time has no deterrent impact on those engaged in accidental, as opposed to intentional, knowing, or reckless conduct;

4) A simple negligence provision does more harm than good to the psyche of the vast majority of hard-working employees who may worry about going to jail because they made an honest mistake; and,

5) Retaining an antiquated simple negligence standard creates an unnecessary intrusion into the average citizen’s due process rights and has a grave potential for abuse.

Negligence Standard Under Clean Water Act

There is a distinct difference between the simple negligence that can lead to criminal liability under the Clean Water Act and gross negligence, which is the minimum level of negligence required for criminal liability under other statutes. ²The Clean Water Act does contain a provision that penalizes gross negligence, 33 U.S.C. §1321(b)(7)(D). This provision imposes civil penalties when the discharge of oil or hazardous substances into the navigable waters of the United States is the result of gross negligence or willful misconduct.Id. Like “negligently,” “gross negligence” is not defined in the Clean Water Act. Because the gross negligence provision imposes only civil penalties, it is not relevant to this article’s examination of criminally punishable negligence under the Clean Water Act. Simple negligence is “[t]he failure to exercise the standard of care that a reasonably prudent person would have exercised in the same situation.” ³

Black’s Law Dictionary 1061 (8th ed. 2004).

. Simple negligence is further defined as “[n]egligence in which the actor is not aware of the unreasonable risk that he or she is creating, but should have foreseen and avoided it.” ⁴Id. at 1063. Simple negligence also is termed “inadvertent negligence.” For purposes of this article we will only use the term “simple negligence.” In contrast, gross negligence requires the actor’s reckless disregard for the consequences of his or her actions, but does not reach the level of an intentional act. Specifically, gross negligence is “a conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to a party.” ⁵Id. at 1062. Gross negligence is also termed “culpable negligence” although some jurisdictions recognize a difference between the two. See, e.g., State v. Back, 775 N.W.2d 866, 869 (Minn. 2009) (stating that, in the criminal context, culpable negligence is “more than” gross negligence); Travelers Indem. Co. v. PCR Inc., 889 So. 2d 779, 793 n. 17 (Fla. 2004) (noting a difference between gross and culpable negligence) .

Courts have clarified that simple negligence and gross negligence differ in degree, not type. ⁶

Alspaugh v. Diggs, 77 S.E.2d 362, 364 (Va. 1953); Hastings v. Flaherty, 73 N.E.2d 601, 603 (Mass. 1946); see Deviner v. Electrolux Motor AB, 844 F.2d 769, 772 (11th Cir. 1988).

“Ordinary and gross negligence differ in degree of inattention, while both differ in kind from willful and intentional conduct, which is, or ought to be, known to have a tendency to injure.” ⁷

Alspaugh at 364

Thus, while gross negligence requires more than the lack of due care, it does not include the intent required for an intentional tort.

As mentioned above, at least two federal circuit courts have interpreted the Clean Water Act as penalizing conduct evincing a lack of due care, i.e., simple negligence. ⁸Most federal courts simply have not been confronted with the question of the appropriate negligence standard under the Clean Water Act. The Clean Water Act is one of only two federal environmental statutes that impose criminal penalties for negligent acts. ⁹The Clean Air Act also contains a provision that imposes criminal penalties for negligent acts: “(4) Any person who negligently releases into the ambient air any hazardous air pollutant listed pursuant to section 7412 of this title or any extremely hazardous substance listed pursuant to section 11002(a)(2) of this title that is not listed in section 7412 of this title, and who at the time negligently places another person in imminent danger of death or serious bodily injury shall, upon conviction, be punished by a fine under Title 18, or by imprisonment for not more than 1 year, or both.” 42 U.S.C.A. §7413(c)(4). Generally, simply negligent conduct is not subjected to criminal penalties. ¹⁰

See, e.g., Commonwealth v. Heck, 517 Pa. 192, 199-200 (Pa. 1987); State v. Hamilton, 388 So.2d 561, 563-64 (Fla. 1980).

For example, the Florida Supreme Court declared unconstitutional the portion of the Florida Air and Water Pollution Control Act that penalized “mere negligent conduct.” ¹¹

Hamilton, 388 So.2d at 563-64.

As the court reasoned, a statute that criminalizes simple negligence fails to provide “clearly ascertainable standards of guilt by which a citizen may gauge his conduct,” and is therefore unconstitutional. ¹²

Id..

Historically, there may have been a need to prosecute simple negligence pollution violations through the criminal court system, but as modern environmental law has developed, that need has diminished.

Civil, Administrative Enforcement Options

A. Early Enforcement of Pollution Statutes Resulted in Minimal Criminal Penalties

Modern day environmental enforcement now is entering its fourth decade. While the law is still maturing, there is an impressive body of case law that guides enforcement actions. Prior to the 1970s, this was not the case. What little environmental enforcement took place was on an ad hoc basis and depended on rudimentary doctrines that were ill-suited to the wide variety of environmental violations that occurred. In the absence of an administrative agency authorized to pursue violations through a civil or administrative process, the criminal court system was tasked with handling all levels of violations: strict liability, negligence, and intentional acts. This approach often resulted in penalties that were limited to fines with no imprisonment, reflecting a reticence to impose jail time for strict liability environmental crimes. Successful enforcement often relied upon courts broadly interpreting statutes and applying doctrines such as the public welfare offense to environmental violations.

For example, unlawful pollution of the nation’s waters was prosecuted primarily under the Rivers and Harbors Act of 1899. ¹³

33 U.S.C. §403 et seq.

. This statute, unlike the Clean Water Act, did not provide comprehensive protection of the nation’s waters. However, it did have the benefit of straightforward enforcement provisions that imposed strict liability upon any person who “throw[s], discharge[s], or deposit[s] … from or out of any ship, barge, or other floating craft of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description.” ¹⁴

33 U.S.C. §407.

The enforcement provision of 33 U.S.C. Section 407 did not differentiate based on the violator’s level of intent. All degrees of violations, i.e., strict liability, negligence, and knowing or intentional violations, were prosecuted as Class C misdemeanors under 33 U.S.C. Section 407 from the 1950s through the 1970s. ¹⁵

See, e.g., United States v. White Fuel Corp., 498 F.2d 619, 622, 6 ERC 1794 (1st Cir. 1974) (noting that “the Refuse Act has commonly been termed a strict liability statute”); United States v. Ballard Oil of Hartford, Inc., 195 F.2d 369, 371 (2d Cir. 1952) (upholding conviction under §407 when the discharge was negligent); United States v. U.S. Steel Corp., 328 F. Supp. 354, 356 (N.D. Ind. 1970) (denying motion to dismiss the information for failure to allege willful behavior because 33 U.S.C. §407 does not have a scienter requirement); United States v. Interlake Steel Corp., 297 F. Supp. 912, 915 (N.D. Ill. 1969) (same).

The Department of Justice prosecuted all violations in criminal courts because the Environmental Protection Agency did not yet exist and no other administrative agency was equipped to pursue violations through an administrative process.

In a series of early cases brought under the Rivers and Harbors Act, federal courts broadened the statute’s scope to address pollution incidents that might otherwise go unpunished. For example, in United States v. Alaska Southern Packing Co., 84 F.2d 444 (9th Cir. 1936), the U.S. Court of Appeals for the Ninth Circuit held that the River and Harbors Act’s prohibition on depositing “any refuse matter” into the navigable waters of the United States included the discharge of oil. ¹⁶

United States v. Alaska Southern Packing Co., 84 F.2d 444, at 445-446 (9th Cir. 1936)

Alaska Southern Packing argued the statute should be construed more narrowly, to prohibit only those discharges that impeded navigation. ¹⁷

Id. at 446.

In siding with the government, the Ninth Circuit noted that the statute unambiguously prohibited “the deposit of any refuse matter of any kind or description whatever … into any navigable water of the United States.” ¹⁸

Id.

Thirty years later, the Supreme Court concurred with the Ninth Circuit, holding “[t]he word ‘refuse’ includes all foreign substances and pollutants apart from those ‘flowing from streets and sewers and passing therefrom in a liquid state’ into the watercourse.” ¹⁹

United States v. Standard Oil Co., 384 U.S. 224, 230, 1 ERC 1033 (1966).

In reaching its decision in United States v. Standard Oil Co., the court relied on language from an earlier Rivers and Harbors Act case, United States v. Republic Steel Corp., 362 U.S. 482 (1906), noting that “the history of [the Rivers and Harbors Act] and of related legislation dealing with our free-flowing rivers ‘forbids a narrow, cramped reading’ of §13 [of the Rivers and Harbors Act ].” ²⁰

Standard Oil, 384 U.S. at 226 (quoting Republic Steel, 362 U.S. at 491).

The broad strict liability approach embodied in the Rivers and Harbors Act was consistent with another doctrine used for environmental enforcement in this period— the “public welfare doctrine.” Under laws deemed to be public welfare statutes, the usual requirement that a criminal defendant have knowledge of his wrongdoing is all but eliminated because the risk of harm to the public posed by a violation of the statute is so high. ²¹United States v. Staples, 511 U.S. 600, 606-07 (1994). Courts did not need to apply the public welfare doctrine to the Rivers and Harbors Act because that statute’s strict liability provision already gave the government the ability to prosecute no-fault violations through the criminal court system. In one of the seminal public welfare cases, United States v. Dotterweich, 320 U.S. 277 (1943), the defendant, a general manager of a food distribution company, was found guilty of violating the Federal Food, Drug, and Cosmetic Act (FFDCA) for his role in introducing misbranded drugs into interstate commerce. ²²

United States v. Dotterweich, 320 U.S. 277, 278 (1943).

The Supreme Court upheld Dotterweich’s conviction even though he was unaware of the misbranded nature of the product being sold. ²³

Id. at 279, 285.

The court explained that the FFDCA “dispenses with the conventional requirement for criminal conduct-awareness of some wrongdoing” because the regulated substances “touch phases of lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection.” ²⁴

Id. at 280-81.

In other words, because the public health risk posed by adulterated or misbranded food or drugs is so high, “the burden of acting at hazard [is placed] upon a person otherwise innocent but standing in responsible relation to a public danger.” ²⁵

Id. at 281.

The court invoked the public welfare doctrine in a later case, upholding the conviction of the president of a national food chain corporation for violations of sanitation requirements under the FFDCA because of his failure to promptly prevent or remedy the violations. ²⁶

United States v. Park, 421 U.S. 658, 661-66, 673 (1975).

In Park, the defendant was found guilty despite taking steps to contact his subordinates in charge of sanitation for the company because, prior to the discovery of the FFDCA violations, the defendant “was on notice that he could not rely on his system of delegation to subordinates to prevent or correct unsanitary conditions.” ²⁷

Id. at 678.

Notably, both Dotterweich and Park resulted in fines against the individual and/or the company, but not imprisonment. ²⁸

See United States v. Park, 499 F.2d 839, 840 (4th Cir. 1974) (fine of $250 imposed); United States v. Buffalo Pharmacal Co., Inc., 131 F.2d 500, 501 (2d Cir. 1942) (Dotterweich, the general manager of Buffalo Pharmacal Company, was fined $500 and sentenced to sixty days’ probation).

The lack of imprisonment suggests an unwritten policy that courts were willing to enforce criminal liability for public welfare offenses, but did not necessarily consider imprisonment a just punishment for strict liability, rather than intentional, offenses. This philosophy quite likely reflects the use of the public welfare doctrine to help regulatory agencies enforce important public safety laws through the court system at a time when these agencies either were nonexistent or ill-equipped to handle enforcement actions on their own.

The Supreme Court extended the public welfare doctrine to an environmental statute in United States v. International Minerals & Chemical Corp., 402 U.S. 558 (1971). In International Minerals, the court held the defendant violated 49 C.F.R. 173.427, which required a shipper to indicate the classification of any hazardous materials being transported. ²⁹

402 U.S. at 559.

The authorizing statute imposed criminal liability on any person who “knowingly violates any such regulation.” ³⁰

Id.

The defendant in International Minerals argued that, because the company lacked knowledge of the regulation, it could not be charged under the statute for transporting a corrosive liquid without the proper classification documents. ³¹

Id. at 561-62.

In rejecting the defendant’s argument, the Supreme Court relied on the principles of the public welfare doctrine, reasoning that given the dangerous and deleterious nature of the substance, the probability of regulation was so great that anyone who knew he possessed such substances must be presumed to know of the regulation. ³²

Id. at 565.

The “knowingly” language of the statute was thus construed to mean knowledge of the hazardous nature of the substance, not knowledge of the regulation. ³³

Id. at 563-64.

Also consistent with the public welfare doctrine were the penalties imposed for violation of the regulation; violators could be fined up to $1000 or imprisoned for up to a year, or both. ³⁴Id. at 565 (Stewart, J., dissenting). The Supreme Court observed in Staples that public welfare offenses were often characterized by small penalties that did “no grave damage to an offender’s reputation.” 511 U.S. at 617-18. The Court refrained from holding that a public welfare offense could be not be punished as felony, however. See id. at 618; United States v. Kelley Tech. Coatings, Inc., 157 F.3d 432, 439, 47 ERC 1257 (6th Cir. 1998) (noting that the Supreme Court’s discussion of minimal penalties for public welfare offenses was dicta). Thus, public welfare offenses may be characterized by low penalties, but they are not necessarily limited to minimal punishment.

The public welfare doctrine and strict liability approach seen in the Rivers adn Harbors Act allowed courts to enforce environmental laws, but the minimal penalties in those statutes limited the government’s ability to punish more serious intentional conduct. As discussed in the next section, the modern environmental statutes addressed many of these shortcomings.

B. Modern Laws Diminish Need to Punish Simple Negligence Through Criminal Court System

When modern day environmental laws and regulations were enacted, the government gained a new set of tools that allowed for a more robust and graduated approach to environmental enforcement. EPA and the states now had the ability to handle less serious environmental violations through an administrative or civil judicial process. The public welfare offense, as originally envisioned, had less significance in the environmental enforcement arena because EPA and the states gained a plethora of new tools to effect the statutes’ public health purpose. No longer limited to the strict liability penalties under the Rivers and Harbors Act, DOJ and EPA now had the flexibility to impose a range of penalties commensurate with the range of environmental violations.

The first attempt at this more graduated approach is evident in the original version of the 1972 Clean Water Act. In the act, Congress recognized that not all environmental violations were carried out with the same level of intent, and therefore they merit different levels of punishment. Violations involving no mens rea, i.e., strict liability offenses and certain negligence violations, were subject only to administrative or civil liability, while violations involving negligent or willful conduct were subject to criminal penalties. ³⁵

Federal Water Pollution Control Act Amendments of 1972, §309(a)(1)-(2), (c)(1) (1972).

Congress recognized the important deterrent effect that criminal penalties provide and included those penalties as the ultimate enforcement hammer of these statutes. These early criminal provisions, particularly in the case of the Clean Water Act, reflected some Congressional reticence about placing environmental crimes on par with other serious crimes, as the act’s penalty provisions for both negligent and knowing conduct were only misdemeanors. Nonetheless, Congress recognized that criminal sanctions for environmental violations now could be reserved for situations where the actor had some mens rea—either negligent or knowing conduct, and that EPA’s civil and administrative apparatus provided more appropriate punishment for strict liability violations.

C. 1987 Amendments to the Clean Water Act Reduced Need to Criminalize Simple Negligence

In 1987, Congress proposed amendments to the Clean Water Act, recognizing that misdemeanor penalties for intentional violations might not provide a sufficient disincentive for companies that intentionally violated environmental laws. For example, in the report for the proposed Clean Water Act amendments, the Senate Committee on Environment and Public Works remarked that stronger criminal sanctions were needed to deter “knowing violations of the Act [that] have caused serious environmental harm and millions of dollars of damage to private and public property.” ³⁶

99 Cong. Senate Report 50, 29 (May 14, 1985).

To provide stronger disincentives, the 1987 amendments bifurcated criminal penalties making “knowing” violations felonies and “negligent” violations misdemeanors.

In the years following the 1987 amendments, courts began interpreting the mens rea requirement for criminal violations of the Clean Water Act and other environmental statutes. The opinions focused almost exclusively on the definition of “knowingly,” and the definition of “negligence” was rarely if ever discussed. ³⁷

See, e.g., United States v. Wilson, 133 F.3d 251, 260-63, 45 ERC 1801 (4th Cir. 1997); United States v. Hopkins, 53 F.3d 533, 539-41, 40 ERC 1953 (2d Cir. 1995).

The few opinions that talked about negligence did so in the context of whether an indictment was duplicitous if it included both a negligence and intentional act charge in one count. ³⁸

E.g., United States v. Oxford Royal Mushroom Products, Inc., 487 F. Supp. 852, 856-58, 14 ERC 1321 (E.D. Pa. 1980).

A review of the reported cases reveals that the standard of negligence was rarely in issue as the prosecutors invariably had proof to support the more difficult intentional standard. ³⁹

See, e.g., Hopkins, 53 F.3d at 535, 541; United States v. Laughlin, 768 F. Supp. 957, 959 (N.D.N.Y. 1991).

There were, however, some important albeit unreported decisions on the negligence standard. Prosecutors in those early cases argued successfully that the standard as set forth in the amended statute was simple negligence. ⁴⁰

See, e.g., Government’s Trial Brief in United States v. Sea Gleaner Marine, Inc., CR86-129S at 14 (Aug. 7, 1986) (on file with author) (arguing that negligence under the Clean Water Act is the failure to use reasonable care).

As support for the argument that the negligence standard was simple negligence, the prosecutors pointed to the legislative history of the Clean Water Act and the public welfare doctrine.

An examination of the Clean Water Act’s legislative history reveals that there was not much forethought behind the negligence standard. The Congressional debates on the bill contain no real discussion of the degree of negligence intended or the potential consequences of a simple negligence standard. ⁴¹

See 92 Cong. Rec. 118, 9419-10746 (1972).

While the Clean Water Act was being drafted in committee, a Congressman moved to amend the committee bill to include language that anyone who “willfully or negligently” violated an order issued by the Administrator would be subject to criminal penalties. ⁴²

Id. at 10643.

Congressman Harsha opposed the language and stated,

I would like to call to the attention of my colleagues the fact that in this legislation we already can charge a man for simple negligence, we can charge him with a criminal violation under this bill for simple negligence. When a violation occurs, the Administrator or the State, whoever may be involved, can either file a criminal charge under this law if there is negligence or if there is a willful violation of the law. ⁴³

Id. at 10644 (emphasis added).

While that amendment ultimately was rejected, it reflects the uncertainty behind the drafting of criminal sanctions for negligent violations. The legislative history of the 1987 amendments similarly reveals little discussion of the negligence standard. Instead, commentary focused on the elevation of penalties for knowing violations and noted simply that misdemeanor penalties were “retained to address those negligent violations which merit lesser punishment.” ⁴⁴

99 Cong. Senate Report 50, 29.

As for the argument that the public welfare doctrine supported a simple negligence standard, prosecutors made a convincing case that the line of Supreme Court decisions starting with Dotterweich, Park, and International Minerals all supported such a standard. On the surface, these cases certainly reflect the view that courts needed to interpret the statutory penalty provision broadly to effect its public health purpose. However, as discussed, courts had to stretch the limits of the statutes in these early cases because adequate public health statutes and agencies were lacking. The advent of EPA and its administrative and civil regimes reduced the need for such stretching by courts. While the public welfare doctrine appeared to fit environmental crimes and prosecutors made a strong argument for its application in those cases, the Clean Water Act granted EPA broad public welfare power that could be exercised outside the criminal justice system. Thus, the courts and EPA no longer needed to rely on the public welfare doctrine to achieve the same results; simple negligence and strict liability violations charged previously in the criminal system could be handled through administrative or civil processes. ⁴⁵Judicial and prosecutorial support for application of the public welfare doctrine to the Clean Water Act may be waning. For example, in United States v. Ahmad, the U.S. Court of Appeals for the Fifth Circuit rejected the applicability of the public welfare doctrine to the Clean Water Act and refused to apply a lowered intent standard to knowing violations based on the public welfare doctrine. 101 F.3d 386, 391-92, 43 ERC 1641 (5th Cir. 1996). This holding contradicted other circuits, which had held that knowledge of the regulatory status of the discharged substance was not a requirement for conviction. See, e.g., United States v. Self, 2 F.3d 1071, 1091, 37 ERC 1437 (10th Cir. 1993).

More Efficient Administration of Justice

By the early 1990s, environmental crimes prosecutions had become a mainstay of the EPA’s enforcement program, and the role of the simple negligence standard in criminal environmental law was further diminished. This diminished role is clearly reflected in a 1994 memorandum by the then-Director of the EPA’s Office of Criminal Enforcement, Earl Devaney. ⁴⁶

See Devaney Memorandum, Jan. 12, 1994, available at http://ehscenter.bna.com/pic2/ehs.nsf/id/KFEN-6DJGQN?OpenDocument.

Devaney’s memorandum was a landmark moment in the development of DOJ’s and EPA’s criminal enforcement program. The memorandum was the first written policy that provided comprehensive guidance on the exercise of investigative discretion to agents and prosecutors. Until that time, the criminal case selection process had been shrouded in mystery and was not well understood or applied by DOJ or EPA. Devaney’s memorandum provided clear guidance in written form, which was much-needed as the program grew to 200 agents. The guidance in Devaney’s memorandum continues to be relevant and is still in use today.

Devaney’s memorandum established a policy of investigative discretion in criminal enforcement actions. ⁴⁷

Id. at 1.

Given the limited resources of the agency, Devaney made it clear that only the most significant and egregious violators should be targeted. ⁴⁸

Id.

Before a case would even be considered for prosecution, Devaney’s memorandum required that each case go through a multi-factor case selection process. ⁴⁹

Id. at 4-5.

The two most prominent factors were the significance of the environmental harm and the culpability of the conduct.

The stated emphasis on culpable conduct diminished the role of simple negligence in the criminal program. Although the government still advocated for a simple negligence standard, it was clear from this enforcement policy that a case based solely on simple negligence was rarely if ever to be pursued. As Steven Solow and Ronald Sarachan found in their study of criminal negligence prosecutions brought under the Clean Water Act, the cases that included a charge of simple negligence fell into four distinct categories:

•  Extraordinary harm cases;

•  Very serious harm and gross negligence;

•  Compromise cases where negligence charges serve as a means to achieve a plea agreement; and,

•  Combination cases in which simple negligence charges are combined with felony charges under environmental statutes and/or traditional title 18 charges. ⁵⁰

Solow and Sarachan, Criminal Negligence Prosecutions under the Federal Clean Water Act: A Statistical Analysis and an Evaluation of the Impact of Hanousek and Hong, 32 ELR 11153 at 11158 (Oct. 2002).

Thus, except in cases of extraordinary harm, Devaney’s memorandum envisioned prosecution of simple negligence cases only when the negligent conduct was combined with other more culpable conduct that warranted criminal prosecution. ⁵¹As discussed in more detail later in this article, the one rare exception to this rule, extraordinary harm simple negligence cases, are precisely the cases where investigative discretion has the greatest potential for abuse and where due process violations are most likely to occur. Adoption of a gross negligence standard would actually promote evenhanded negligence prosecutions under the Clean Water Act by insulating DOJ and EPA from public pressure to pursue simple negligence violations in extraordinary harm cases, but still allowing them where gross negligence was present. In this way, a gross negligence standard in the Clean Water Act is consistent with the principles in Devaney’s memorandum. The memorandum focused on factors that by definition would not apply to simple negligence violations, such as a history of repeated violations, failure to report discharges, and concealment of misconduct. Absent such additional culpable conduct, a simple negligence violation was unlikely to result in a criminal prosecution under the policy outlined in Devaney’s memorandum. This stated policy was no doubt influenced by the civil and administrative penalties readily available to EPA as an alternative to prosecuting simple negligence violations.

Principles of Federal Prosecution Not Served

Not only is a gross negligence standard consistent with EPA’s investigative discretion policy, it also consistent with DOJ’s Principles of Federal Prosecution. The United States Attorneys’ Manual states that prosecution should be declined when “[n]o substantial Federal interest would be served by prosecution; [t]he person is subject to effective prosecution in another jurisdiction; or [t]here exists an adequate non-criminal alternative to prosecution.” ⁵²

United States Attorneys’ Manual 9-27.220.

“Substantial Federal interests” include the nature and seriousness of the offense, the deterrent effect of prosecution, and the person’s culpability in connection with the offense. ⁵³

Id. at 9-27.230.

These same federal interests generally are reflected in Devaney’s memorandum. Agents were instructed to focus on those cases with a high degree of environmental harm and/or culpable conduct. The directives of Devaney’s memorandum thus dovetail with the principles of federal prosecution.

Simply put, pure simple negligence violations do not advance federal prosecution principles. The threat of prosecution cannot be a deterrent for accidental violations, and the level of culpability in a simple negligence case does not rise to a level of intent that is capable of being deterred through criminal prosecution. Even if simple negligence conduct could be deterred, the threat of criminal prosecution would be low on the list of factors that an actor would consider before engaging in simply negligent conduct. For example, in simple negligence cases, the sheer cost of a cleanup operation serves as a better deterrent for corporations than jail time. As the recent oil spill in the Gulf of Mexico demonstrates, the costs of a cleanup operation after a discharge can be enormous. As of September 1, 2010, BP already had spent approximately $6.1 billion on its Gulf of Mexico cleanup operations. ⁵⁴

Jennifer Dlouhy, Houston Chronicle, BP Ad Tally: Nearly $100 Million, available at http://www.chron.com/disp/story.mpl/business/7182730.html (Sept. 1, 2010). See also, “BP Well Permanently Killed, but Cleanup, Assessment of Damage Far From Over” (41 ER 2147, 9/24/10)

Whatever fine might be imposed in any ensuing criminal case will pale in comparison to these costs. For individuals, professional licensing and continued employment will likely be more prominent in their minds than the threat of criminal prosecution. Thus, in focusing prosecutors’ efforts on cases involving a higher degree of culpable conduct than simple negligence, the Principles of Federal Prosecution promote prosecution of those cases in which the prosecution could actually serve a deterrent effect.

Standard Does More Harm Than Good

Simply stated, criminal penalties for simple negligence acts do not serve as an effective deterrent because the punished behavior is by definition unintentional. The broad reach of the Clean Water Act’s simple negligence provision therefore serves to create anxiety for the vast majority of hard working employees performing ordinary tasks while failing to incentivize better behavior. Furthermore, criminalizing simple negligence can have the unintended consequence of paralyzing decisionmakers who may be afraid to act because of the threat of potential jail time. Ultimately, this hurts businesses by encouraging them to devote an inordinate amount of time and resources to ordinary decisions out of fear. These actors may fear jail time if they are perceived to have so much as failed to use ordinary care. The better course is to punish simple negligence through a civil or administrative process and restrict criminal prosecutions to grossly negligent violations or worse. This scheme would alleviate the anxieties of environmental managers and ensure that criminal prosecution is used when it can actually serve to deter the prosecuted conduct.

Outdated Standard Makes Potential for Abuse

Keeping an antiquated criminal simple negligence provision in the Clean Water Act creates a grave potential for abuse of due process. Four aspects of the provision demonstrate that potential. First, the CWA’s simple negligence provision requires the discharge of a “pollutant.” Pollutant is defined using a long list of substances and waste streams that are subject to regulation. The term includes: “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.” ⁵⁵

33 U.S.C. §1362(13).

As written, this term could include virtually any item that is placed into a water of the United States. This broad definition of “pollutants” is vastly different from most other environmental statutes that regulate substances such as hazardous waste (Resource Conservation and Recovery Act), hazardous substances (Comprehensive Environmental Response, Compensation, and Liability Act), or toxic substances (Toxic Substance Control Act). By their very nature, the substances regulated under these statutes put a person on notice of the probability of regulation. ⁵⁶

See International Minerals, 402 U.S. at 565.

In contrast, under the Clean Water Act’s broad definition of pollutant, the average citizen may not be on notice that the particular substance or waste stream he is depositing into waters of the United States is subject to regulation.

Second, simple negligence most often is defined as the failure to exercise the standard of care that a reasonably prudent person would have exercised in the same situation. ⁵⁷

See United States v. Ortiz, 427 F.3d 1278, 1282-83, 61 ERC 1521 (10th Cir. 2005); United States v. Hanousek, 176 F.3d 1116, 1120-21, (9th Cir. 1999).

This definition raises the question of what standard of care should apply; that of persons working in a heavily regulated industry or the average citizen doing ordinary work? The government may argue that the standard is really intended for those working in a heavily regulated industry that are on notice of the probability of regulation. Unfortunately, that is not how the statute is written and as it written it can just as easily be applied to the average citizen doing ordinary work.

Third, simple negligence is governed by civil common law concepts that are not well suited to determinations of guilt or innocence in criminal court. For example, many oil spills are the result of vessel collisions where the operator of one vessel or both may have caused the accident that resulted in the spill. Determining whose simple negligence was the cause in fact and proximate cause of the accident is a tort law concept that is ill suited for the criminal court system and adds to the due process concerns already in play.

Finally, the public welfare offense doctrine, which the government continues to invoke in Clean Water Act criminal negligence prosecutions, is subject to abuse. ⁵⁸

See Hanousek v. United States, 528 U.S. 1102 , 120 S. Ct. 860, 49 ERC 2023 (2000) (Thomas, J. dissenting).

If the Clean Water Act by virtue of its status as a public welfare statute, should be given its broadest application, the act’s simple negligence standard could approach a strict liability standard. ⁵⁹The DOJ implicitly acknowledged this concern about the public welfare doctrine in its brief in United States v. Hanousek. Rather than arguing in the main section of its brief that the public welfare doctrine provides support for application of a simple negligence standard under the Clean Water Act, DOJ relegated that argument to a footnote. United States v. Hanousek, Brief for the United States as Appellee, 1998 WL 34078917, at 16 n. 12. This soft-pedaling of the public welfare doctrine by DOJ may indicate that the government is concerned about how closely a public welfare offense can resemble a strict liability crime, and recognizes the accompanying potential for abuse. At the very least, DOJ appears to be wary of relying on the public welfare offense as a cornerstone of its argument for a simple negligence standard in the Clean Water Act. Such broad liability presents a trap for the average citizen who based on the above, may not know that his conduct is unlawful.

This is precisely the danger that Supreme Court Justice Clarence Thomas warned about in his in his dissent from the Supreme Court’s denial of certiorari in Hanousek v. United States. In Hanousek, the U.S. Court of Appeals for the Ninth Circuit upheld the federal district court’s simple negligence jury instruction, as opposed to the gross negligence instruction proposed by Hanousek. ⁶⁰

176 F.3d at 1120-21.

In dissenting from the Supreme Court’s denial of certiorari, Thomas expressed concern about what he interpreted as an unwarranted expansion of the public welfare doctrine, and warned that such an expansion of the doctrine could lead to “criminal liability for persons using standard equipment to engage in a broad range of ordinary industrial and commercial activities.” ⁶¹Hanousek, 120 S.Ct. at 861. Hanousek, and two other recently reported Clean Water Act simple negligence cases all support the proposition that simple negligence is unnecessary in modern day environmental criminal law. See Ortiz, 427 F.3d 1278; United States v. Hong, 242 F.3d 528, 51 ERC 2185 (4th Cir. 2001). The facts in Hanousek reflect that Hanousek and another railroad employee had attempted to cover up a heating oil spill into the Skagway River as a result of a backhoe operator’s puncture of an oil pipeline. 176 F.3d at 1119. The conduct surrounding the puncture of the pipeline was charged under the Clean Water Act’s simple negligence misdemeanor, while the conduct surrounding the attempted cover-up was charged under Title 18 felony statutes including conspiracy, false statement, and obstruction of justice. Id. Hanousek was not convicted of any felony conduct, and while his co-defendant was convicted on two charges, the co-defendant chose not to appeal those convictions with Hanousek. Thus, at first blush, the facts as presented in the Ninth Circuit decision could lead one to believe that Hanousek’s simple negligence charge was brought alone and not in connection with the more serious felony conduct. Absent the more serious felony conduct, the authors believe that Hanousek’s case would have been handled by a civil or more likely administrative process and not through the criminal courts. Similarly, in both Hong and Ortiz, the government presented evidence that each defendant had been put on notice that their conduct would be in violation of law before engaging in their unlawful conduct. Ortiz, 427 F.3d at 1280-81; Hong, 242 F.3d at 530, 532. The authors believe that if Hong or Ortiz had ceased their conduct after being put on notice, the violations would been handled through civil or administrative penalties, not criminal prosecution. Thus, these cases demonstrate that absent more serious felony conduct, simple negligence conduct alone is not pursued as a criminal offense.

Prosecutors and investigators understandably may be unwilling to see the simple negligence standard leave their arsenal of potential charges. However, DOJ’s and EPA’s enforcement priorities in this area are unlikely to change, and limited agency resources more than anything else will continue to restrict simple negligence prosecutions. ⁶²

See Solow and Sarachan, Criminal Negligence Prosecutions Under the Federal Clean Water Act, 11160.

Further, prosecutors still could pursue the overriding majority of the cases that meet the standards set out in the Devaney memorandum through gross negligence charges. The only category of simple negligence prosecutions that might be impacted is cases involving extraordinary environmental harm but only simple negligent conduct by a defendant. ⁶³

Id.

It is precisely that arena, extraordinary environmental harm, where the simple negligence standard has the most potential for injustice. Consider a release of a hazardous substance that causes a significant fish kill in a popular fishing venue. The anger and emotion that such an event generates in the community can easily create a lynch mob mentality that will put significant pressure on EPA investigators and DOJ prosecutors to seek scapegoats against whom they can seek the maximum penalty. A simple negligence standard used in conjunction with the public welfare offense doctrine or the responsible corporate officer doctrine would allow prosecutors to present charges against anyone remotely responsible for the release. Such charges have the grave potential to create a miscarriage of justice. As the adage goes, bad facts make bad law. Raising the bar from simple negligence to gross negligence in an extraordinary harm case would provide an element of protection against this potential injustice.

Conclusion

Enforcement of the laws protecting the waters of the United States has come a long way since the Rivers and Harbors Act of 1899. The Clean Water Act is a tremendous improvement over that statute, and punishments can now be calibrated to fit the crime. DOJ and EPA can seek severe criminal penalties for knowing conduct that leads to great environmental harm. However, as this article has demonstrated, the other end of the Clean Water Act culpability spectrum needs refinement. Replacing the simple negligence standard applied to criminal violations in several circuits with a clear, national gross negligence standard would be an important step in the right direction. Eliminating criminal penalties for simple negligence violations would ensure that the laws have an actual deterrent effect and incentivize the desired behavior. Heightening the negligence standard also removes simple negligence cases from an overburdened criminal justice system and redirects them to the civil and administrative arena, where they can be adequately addressed. Elimination of the simple negligence standard would align the statutory scheme with the EPA’s enforcement priorities, without impacting the EPA’s enforcement ability. It also would provide much needed protection from overzealous prosecutions in the very situation—the extraordinary harm case—where the potential for abuse is most ripe. Finally, it would allow the regulated community to make everyday business decisions without the fear that an honest mistake will land them in jail.