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7 Crim. Just. 28 (1992-1993)
Lowered Intent Requirements in Environmental Crimes Cases: What You Don't Know Can Hurt You

handle is hein.journals/cjust7 and id is 88 raw text is: By GARY S. LINCENBERG Lowered Intent Reqluirements in Envronmental Crimes Cases What you don't know can hurt you he twentieth century has been marked by central- ization of responsibility for public safety. Every American must rely on others to test and cleanse our drinking water, supply our food and fuels, and control the spread of germs and toxic materials. Because wrongful conduct by a single hu- man being can have a devastating effect on the public at large, Con- gress has enacted various statutes to protect the safety, health, and well-being of the community. These public welfare statutes re- quire those responsible for the public safety to exercise a high standard of care. The statutes es- tablish this duty of care in large part by criminalizing certain conduct and by lowering the level of intent or knowledge that must be estab- lished to support a conviction. This article analyzes three differ- ent levels of lowered intent re- quirements in environmental cases. First, in so-called general-intent cases the government must prove that the defendant knowingly did the act, but it need not prove that the defendant knew the act was forbidden. These cases are referred to here as knowledge of the act cases. Second, in certain cases a showing of deliberate ignorance is sufficient to satisfy the knowledge requirement. And third, in certain other cases it is not necessary to prove the defendant's actual knowledge of the act if he or she was a responsible corporate offi- cer. These three categories of low- ered intent have been challenged by defendants as being too re- laxed. Knowledge of the act. Most fel- ony environmental crimes fall into the category of knowledge-of-the- act cases. Rather than requiring proof of willfulness, the statutes simply require proof that the de- fendant knowingly committed the act-for example, knowingly stored wastes. These statutes generally do not require a showing that the de- fendant knew the act was unlawful. That is, the government is not re- quired to prove that the defendant stored waste knowing that he or she lacked a permit. This minimal intent requirement in knowledge-of-the-act cases has been challenged in several prose- cutions brought under the Re- source Conservation and Recovery Act (RCRA), 42 U.S.C. § 6928(d)(1 )- (2). Congress enacted RCRA in 1976 as a cradle-to-grave regulatory scheme to provide protection against the dangers of improper handling of hazardous materials. RCRA governs the transportation, storage, treatment, and disposal of hazardous waste, setting forth criminal and civil penalties for vio- lations of the regulatory require- ments. Defendants have claimed that the RCRA criminal provisions penalize otherwise innocent conduct with- out even requiring the government to prove the defendant's knowl- edge of the absence of a permit. These challenges have met with mixed results. In a stroke of judicial activism, some circuits have added a second knowledge require- ment-one that requires proof of knowledge of the lack of a permit. Other circuits have denied the de- fense challenges based on the plain meaning of the statute. This article analyzes the split between the cir- cuits and argues that judicial inser- tion of additional knowledge requirements contravenes both the plain wording of the statute and congressional intent. Deliberate ignorance. In the sec- ond category of cases, those that involve proof of deliberate igno- rance, courts have upheld jury in- structions that state that if the defendant deliberately ignored facts that would have given notice that a crime was occurring, the de- fendant can be found to have had constructive knowledge of the criminal act. As is more fully dis- cussed below, these jury instruc- tions, which have their genesis in other areas of the law, should be more widely available in environ- mental cases. Responsible corporate officer. In the third category of cases, proof that a defendant was a responsible corporate officer is sufficient to convict, even without proof of knowledge. The government need prove only that the defendant stood in a responsible relationship to the unlawful conduct and failed to ex- ercise the requisite care to prevent it. This doctrine involves the most relaxed level of intent: For failing to exercise requisite care, the respon- sible corporate officer is held strictly liable for the criminal acts of his or her subordinates. This article advocates a simple, bright-line test to determine when the responsible corporate officer doctrine should be followed: The doctrine should apply only to mis- demeanor offenses. Restricting the doctrine's application to misde- meanors will provide fairer notice Criminal Justice Mi2 8

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