Any Port In A Storm Strategies For Defending Environmental Criminal Enforcement Actions
Anthony L. Cochran
Chilivis Cochran Larkins & Bever, LLP
3127 Maple Dr., N.E.
Atlanta, GA 30305
Leah J. Knowlton
Miller & Martin PLLC
1170 Peachtree Street, N.E.
Atlanta, GA 30309-7706
In fiscal year 2009, the U.S. Environmental Protection Agency (“EPA”) launched a record 387 new criminal investigations, the largest number of new criminal case initiations in five years. See “EPA’s Fiscal Year 2009 Enforcement & Compliance
Annual Results,” newsletters.agc.org. As a result of these investigations, over 200 defendants were charged with environmental crimes in 2009, 12% more than in 2008. Id. In 2010, EPA opened 346 new environmental criminal cases, 11% fewer than in 2009, but the second highest number of new cases since FY 2005. See “Compliance and Enforcement Annual Results 2010 Fiscal Year,” epa.gov (December 6, 2010). These investigations resulted in criminal charges against 289 defendants, representing a 45% increase over 2009 and the highest number since 2005. Id. Significantly, 87% of those 289 cases included charges against at least one individual defendant, as opposed to a business or corporation. As the EPA noted in its annual report, “[t]he charging of individuals, where warranted by the evidence, is important, because the possibility of being sentenced to jail for an environmental crime provides significant deterrent effect.” Id.
As the foregoing illustrates, although criminal prosecutions for violations of environmental laws were once rare, they are more frequently becoming a means of achieving environmental compliance. Because environmental crimes nearly always involve the risk of imprisonment – for example, the Clean Water Act (“CWA”) authorizes sentences of up to three years’ imprisonment for knowing violations, and up to one year for negligent violations – an early, proactive, and vigorous defense is essential. This means that counsel must, at the first sign of a criminal investigation, begin to gather key information and develop a defense strategy. Waiting to do this until the government has already completed its investigation may lead to disastrous results for your client.
DEVELOPING POTENTIAL DEFENSES
Lack of Mens Rea – Mistake of Fact Defense
Although environmental statutes generally impose strict liability for civil violations,criminal violations still require proof of mens rea. See Staples v. United States, 511 U.S. 600, 605, 114 S. Ct. 1793, 1797 (1994) (“the existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence”) (alterations, quotation marks, and citation omitted)); see also United States v. Ahmad, 101 F.3d 386, 391 (5th Cir. 1996) (criminal violations of CWA, which are felonies punishable by substantial terms of imprisonment, are not “public welfare offenses” for which no mens rea is required). To obtain a felony conviction under the CWA, the government must prove a knowingviolation, see 33 U.S.C. 1319(c)(2)(A), and the defendant’s knowledge must be proven with respect to each and every element of the offense, United States v. Wilson, 133 F.3d 251, 262 (4th Cir. 1997) (“[T]he Clean Water Act … requires the government to prove the defendant’s knowledge of facts meeting each essential element of the substantive offense.”); Ahmad, 101 F.3d at 391 (“With the exception of purely jurisdictional elements [of CWA violation], the mens rea of knowledge applies to each element of the crimes.”).
Thus, a conviction under the CWA for violation of Section 404 requires proof that:
- the defendant knew that he was discharging a substance, eliminating a prosecution for accidental discharges;
- the defendant correctly identified the substance he was discharging as a pollutant, not mistaking it for different, unprohibited substance;
- the defendant knew the method or instrumentality used to discharge the pollutant;
- the defendant knew the physical characteristics of property into which the pollutant was discharged that identify it as wetland, such as presence of water and water-loving vegetation;
- the defendant was aware of facts establishing the required significant nexus/link between wetland and waters of United States; and
- the defendant knew he did not have a permit.
See Wilson, 133 F.3d at 264.
Because the government must prove that a defendant “know[s] the facts that make his conduct illegal,” Staples, 511 U.S. at 605, 114 S. Ct. at 1797 (emphasis added), “[a] mistake of fact which negates the existence of the necessary criminal intent will constitute a defense.” United States v. Goodwin, 440 F.2d 1152, 1156 (3d Cir. 1971). A defendant may therefore demonstrate that he lacked the requisite mens rea “by showing that, under the circumstances, he reasonably believed the facts to be other than they were and that his actions would have been innocent had his belief been correct.” Id.
Ahmad, supra, involved a classic mistake of fact defense. In that case, Ahmad, a convenience store owner, had been convicted of CWA violations after he pumped out an underground gasoline storage tank into which water had leaked, discharging gasoline into city sewer systems and nearby creeks. At trial, Ahmad contended that he did not discharge gasoline “knowingly” because he thought he was discharging water, and requested that the jury be instructed that “the statutory mens rea – knowledge – was required as to each element of the offenses, rather than only with regard to discharge.”Ahmad, 101 F.3d at 388-89. The Fifth Circuit agreed that the government had to prove not only that Ahmad knew that something was discharged, but also that he knew that something was gasoline.Id. at 391. Reversing Ahmad’s conviction, the Fifth Circuit held that a defendant does not violate the CWA unless he or she acts knowingly with regard to each element of an offense.Id.
Defense counsel should investigate whether there are any possible mistake of fact defenses. For example, did the client reasonably believe that he had a permit to conduct the allegedly offending activity? See Wilson, 133 F.3d at 264 (noting that government must prove the defendant knew he did not have a permit because such a requirement “preserves the availability of a mistake of fact offense if the defendant has something he mistakenly believed to be a permit to make the discharges for which he is being prosecuted”). Did the client reasonably believe, based on advice from an environmental expert, that the area in which the prohibited activity (for example, the excavation of drainage ditches) occurred was a dry upland and not a “wetland”?
Although a defendant’s belief that his activity did not require a permit is a mistake of law that would not be a defense at trial, whether the client was acting in good faith reliance on the (erroneous) advice of legal counsel nevertheless should be explored. This is because the government, in deciding whether to refer your client’s case to the Department of Justice for criminal prosecution, will consider culpable conduct, including whether the violation wasdeliberate. See “The Exercise of Investigative Discretion,” January 12, 1994, www.epa.gov.
For example, suppose your client filled wetlands in order to maintain an existing railroad after his attorney, an experienced and competent railroad lawyer, advised him that such maintenance was subject to the exclusive jurisdiction of the Surface Transportation Board and, therefore, that no CWA permit was required. This evidence must be developed and presented to the government during the initial stages of the government’s investigation, as any facts tending to show that your client was not acting in deliberate disregard of the law may help to prevent an indictment, even if such facts would not provide a viable defense at trial.
Regulatory or Statutory Exemptions
In defending against environmental crimes, the attorney must examine whether any regulatory or statutory exemptions might apply.
For example, section 404(f)(1)(B) of the CWA exempts from regulation discharges of dredged or fill material “for the purpose of maintenance … of currently serviceable … transportation structures,” see June v. Town of Westfield, 370 F.3d 255 (2d Cir. 2004) (town’s fill activity done for the purpose of shoring up a road and its embankment, which together constituted a “transportation structure,” was exempt from section 404’s permit requirements), and section 404(f)(1)(C) exempts discharges “for … the maintenance of drainage ditches,” see Peconic Baykeeper, Inc. v. Suffolk County, 600 F.3d 180, 189 (2d Cir. 2010) (county’s dredging of its mosquito ditches, which were dug in the 1930s to drain water from wetlands in order to reduce mosquito breeding grounds, was exempt from CWA’s permit requirements under 33 U.S.C. 1344(f)(1)(C), because the ditches were “drainage ditches,” and there was no credible evidence that the county’s dredging activity created new mosquito ditches); United States v. Sargent County Water Resource Dist., 876 F. Supp. 1090 (D.N.D. 1994) (county’s cleaning out of maintenance ditch, about 70 years after ditch had been excavated, was “maintenance” within exception to permit requirement under Clean Water Act). Section 404(f)(1)(A) exempts discharges associated with normal farming, ranching, and forestry activities such as plowing, cultivating, minor drainage, and harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices. The CWA contains several other exemptions to the Section 404 permitting program.
Environmental criminal enforcement actions are unique because they are science-intensive, often involving complex disciplines such as toxicology, chemistry, hydrology, or geology. As some commentators have observed, “[t]he technical nature of environmental criminal cases often provides an area of cross-examination and rebuttal by defense counsel.” “Defending the Accused in Criminal Environmental Investigations,” Barry F. McNeil and Laurence K. Gustafson, texasals.org. It is therefore crucial that the defense hire outside experts to aid in the discovery process, which typically will include the gathering and testing of water, soil, chemicals, and other materials. In a Section 404 wetlands case, defense counsel should retain an expert to inspect the area and take soil samples to confirm whether the alleged discharge in fact took place in a “wetland.” To constitute a “wetland,” the discharge area must contain (1) hydrophytic plants, (2) hydrological conditions suited to such plants, and (3) hydric soils. United States v. Banks, 115 F.3d 915 (11th Cir. 1997). You should be prepared to challenge both the government’s methodology and its scientific evidence that the area meets these criteria.
For example, in United States v. Acquest Transit LLC, 2009 WL 2157005, *6 (W.D.N.Y. July 15, 2009), the court held that the government had “adequately demonstrated that [defendant’s] Property [was] wetlands” where EPA and COE, on three separate dates, sampled and inspected 46 locations on the Property to determine whether they satisfied the characteristics of wetland hydrology, hydric soils, and wetland vegetation and prepared a detailed 25-page report explaining the inspection team’s methodology, observations, analysis, and findings. Although the defendant’s challenge to the government’s scientific proof was ultimately unavailing, this case nevertheless reinforces the notion that the existence of wetlands is not presumed, but must be proven with reliable scientific evidence.
In environmental criminal cases, the best defense is an early defense. By developing a robust defense on all possible fronts at the outset, you will greatly increase your chances of persuading the government not to proceed criminally against your client. To do this, you must first know the statute – study it and its implementing regulations carefully so that you fully understand all the elements, the mens rea required for each element, and any exemptions. This will ensure that you know the right questions to ask as you conduct your investigation. Once you have a firm grasp on the legal landscape, you must engage in intensive fact-gathering, and enlist the aid of experienced and competent environmental experts so that you are prepared to challenge the government’s scientific evidence. Taking these steps will enable you to discover and develop all “ports in the storm,” both factual and legal, that may be presented to the government during the initial stages of the action in order to avoid an indictment.
 The CWA makes it unlawful for any person to discharge any substance classified as a pollutant from a point source into navigable waters without a permit. Section 404 of the CWA regulates the discharge of dredged or fill material into “waters of the United States,” which include wetlands. The CWA thus prohibits the discharge of dredged or fill material into wetlands without a Section 404 permit. While most CWA violations involve the discharge into surface waters of pollutants from point sources such as industrial facilities and municipal sewage treatment plants, this article focuses on wetlands violations under Section 404.
 See, e.g., General Elec. Co. v. Jackson, 610 F.3d 110, 114 (D.C. Cir. 2010) (recognizing strict liability under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”)); Pound v. Airosol Company, Inc., 498 F.3d 1089, 1097 (10th Cir. 2007) (recognizing strict liability under the Clean Air Act (“CAA”)); United States v. Ohio Edison Co., 725 F. Supp. 928 (N.D. Ohio 1989) (noting that the civil enforcement provisions of the CWA “do not require fault to support a penalty. Issues of fault and intent are relevant only on the question of the amount of penalty imposed.”).
 Other major environmental statutes, including the Clean Air Act (“CAA”), 42 U.S.C. 7413(c), the Recovery Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. 6928(d), and the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. 1361, also criminalize “knowing” violations.
 See also Flores-Figueroa v. United States, ___ U.S. ___, 129 S. Ct. 1886, 1891, 1894 (2009) (noting that “courts ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word ‘knowingly’ as applying that word to each element,” and holding that federal criminal statute prohibiting persons from “knowingly” transferring, possessing, or using a means of identification of another person requires proof of defendant’s knowledge with respect to each element); United States v. X-Citement Video, Inc., 513 U.S. 64, 78, 115 S. Ct. 464, 472 (1994) (“knowingly” as used in Protection of Children Against Sexual Exploitation Act applied to all elements of crime despite grammatical reading of Act); United States v. Heuer, 4 F.3d 723 (9th Cir. 1993) (RCRA’s mens rea requirement of knowledge extends to each element of the offense).