IN the context of environmental accidents, such as the deep-water drilling oil spill in the Gulf, corporations and individuals face exposure to prosecution under federal environmental statutes, including the Clean Water Act (CWA), which criminalize conduct that is typically associated only with notions of civil liability. As if the potential of strict and negligent criminal liability is not precarious enough for practitioners in the defense bar and those they represent, the government's utilization of the responsible corporate officer doctrine in environmental prosecutions can put corporate officers at risk for criminal prosecution (and place them on the hook personally for civil damages and penalties) based only on the conduct of other company personnel and the officer's position and role within the company. This is especially alarming in situations involving high-profile, large-scale environmental disasters, where by the time a criminal indictment is returned, it is likely that corporate representatives have already been asked to cooperate in congressional committee investigations, engineering studies and the like.
Moreover, relevant precedent reveals that one can expect federal prosecutors to test the permissible boundaries of their already potent power in this area. Lawyers advising both corporations and individuals whose business affairs might be regulated by environmental statutes like the CWA must understand the legal framework in this area, where mens rea is not a necessary element of criminal conduct, and where individuals can be liable to plaintiffs even where the factors usually necessary for piercing the corporate veil are missing. Such an understanding leads to the inevitable conclusion that in the environmental arena, the law understandably seeks to incentivize companies and individuals to implement preventative measures aimed at avoiding catastrophe. The failure to do so can itself be catastrophic for companies and their responsible officials.
I. Criminal Liability for Mere Negligent Conduct Under the Clean Water Act
Section 309(c)(1) of the CWA, (1) makes it a crime to negligently violate a plethora of sections of the CWA. The statute itself does not define the applicable standard of negligence; that is, whether the statute criminalizes ordinary civil negligence, or only a heightened gross negligence standard, more consonant with typical requirements of criminal liability. The leading case on this issue is Unites States v. Hanousek. (2) The defendant in Hanousek was the roadmaster of the White Pass & Yukon Railroad, who was supervising a rockquarrying project which was designed to realign a sharp curve in the railroad. (3) Defendant's corporation hired a contracting company to provide the equipment and labor for the project. (4) At the site of the project, a high-pressure petroleum products pipeline ran parallel to the railroad within a few feet of the tracks. (5)
One evening (when defendant was presumably at home in bed) a backhoe operator for the independent contractor struck the pipeline causing a rupture. An estimated 1,000 to 5,000 gallons of heating oil were discharged into an adjacent river. (6) Defendant was convicted under the CWA for negligently discharging a harmful quantity of oil into a navigable water of the United States. (7) He was sentenced to six months in prison, to be followed by six months in a halfway house. (8)
On appeal, defendant argued, inter alia, that the CWA required that he act with "criminal negligence," which he defined as "a gross deviation from the standard of care that a reasonable person would observe in the situation," as opposed to ordinary negligence, the standard contained in the district court's jury instructions. (9) He also argued that, to the extent the CWA does criminalize mere ordinary negligence, it violates due process. (10) The court rejected both of these arguments, concluding that Congress intended that a person acting with ordinary negligence be subject to criminal liability under the CWA, and that because the CWA is a public welfare statute, "it may subject a person to criminal liability for his or her ordinary negligence without violating due …