Fault Lines in the Clean Water Act: Criminal Enforcement, Continuing Violations, and Mental State
Mandiberg, Susan F., Environmental Law
I. INTRODUCTION II. CHOICE OF INTERPRETIVE CANONS III. CONTINUING DISCHARGES A. Statute of Limitations B. Sentencing: Fines and Incarceration C. Concluding Observations on "Continuing Violations" IV. MENTAL STATE REQUIREMENTS V. ANALYSIS AND RECOMMENDATIONS VI. CONCLUSION APPENDIX
In the thirty years of their existence, the criminal provisions of the Clean Water Act (CWA) (1) have generated slightly more than one hundred judicial opinions, both reported and unreported but available online. (2) Virtually none of these opinions deals with issues unique to criminal enforcement of the CWA. (3) Instead, each case addresses problems that arise in civil enforcement of the CWA or in criminal cases generally. Either criminal enforcement of the CWA raises few unique issues, or litigants are not raising them.
In either event, CWA criminal enforcement cases do highlight some issues that are important to criminal enforcement of pollution control statutes in general. These statutes are basically administrative and civil regulatory schemes, with criminal enforcement tacked on almost as an afterthought. (4) Because criminal law follows rules and philosophies quite different from administrative and civil law, this dynamic creates the potential for significant tension within these statutes. Because of the nature of the differences, many of the issues resonate more fully in the CWA than in the other pollution control statutes, with potential fault lines especially noticeable in the context of wetlands protection.
Many of the tensions created by the juxtaposition of civil and criminal enforcement arise from ambiguities in the CWA. These tensions are troublesome and should be resolved. This Article begins by reviewing the differences between canons of statutory construction used in civil and criminal cases and how these affect the overlap between civil and criminal enforcement of the CWA. Part III applies these differences to the issue of "continuing violations" in the wetlands context. Part IV considers how the conflicting canons affect the requirement that violations must be "knowing" to qualify for felony criminal sanctions, again in the wetlands context. Finally, Part V analyzes the results of these comparisons and suggests ways to resolve the tensions.
II. CHOICE OF INTERPRETIVE CANONS
When a statute is ambiguous, courts attempt to resolve the ambiguity through some combination of analyzing the statute's "plain meaning" (analysis of grammar, syntax, structure, and so forth), legislative history, and use of canons of statutory interpretation. However, resort to such canons may raise problems, because the protocols used in criminal cases differ greatly from the protocols used in civil cases.
In criminal cases courts generally apply the rule of lenity. (5) Application of the rule results in the court construing the law narrowly, resolving any ambiguity in favor of the defendant. (6) This is so whether the ambiguous provision is a statutory term, a mental-state requirement, or a sentencing provision. (7) The rule of lenity is closely tied to notions of justice, especially in respect to adequate notice of what activity is prohibited. (8)
In civil cases dealing with regulatory statutes, federal courts often use canons requiring deference to the administrating agency's interpretation of the statute. (9) Similar doctrines frequently require courts to defer to an agency's interpretation of its own regulations and permits. (10) Because challenges to an agency's interpretation often arise when a regulated entity seeks freedom from a requirement, the agency's interpretation is often a broad, rather than narrow, reading of the statute. (11)
A third interpretive protocol is historically "civil," although it has lately seeped into some criminal analysis. This canon calls for giving remedial statutes a broad construction to effect the regulatory purpose. …