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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
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-
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-
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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