Courts rule more intent to commit a crime must be proven in environmental cases.

After a year when the Environmental Protection Agency (EPA) experienced a record number of prosecutions for environmental crimes, agriculture sees a slight reprieve ahead.

Last year, EPA used what it calls its "biggest stick" and pursued 2,000 criminal leads for environmental crimes. It opened 551 cases from those leads. More than half of the cases were then referred for prosecution.

As a result of the prosecutions, the government assessed a total of $169 million in fines and sentenced defendants to a total of 195 years of incarceration.

Unfortunately, the government may become even more aggressive in filing criminal actions. EPA administrator Carol M. Browner advocates increasing criminal penalties for environmental violations because she believes that environmental criminals should be treated forcefully, like drug dealers.

Representative Charles Schumer of New York has proposed an environmental crimes bill that would raise criminal fines for individuals to $1 million, increase jail time up to 20 years for some offenses, and permit the prejudgment seizure of assets.

Two recent federal appellate decisions from the Fifth and Fourth Circuits, however, give hope to farmers for reducing their criminal liability exposure in environmental crimes. In the past, the government only had to prove a person knowingly committed environmental crimes. Now the government must prove a person knew all aspects of the crime. This is explained in the discussions below.

Guilty Mind Concept The government has successfully pursued environmental violations as criminal acts largely because of the "diminished mens rea" requirement applied by the courts to environmental crimes. "Mens rea" refers to a defendant's guilty mind. Under the common law, a defendant can be convicted of a crime only upon proof beyond a reasonable doubt that the defendant acted with the specific intent to violate the law.

In comparison, environmental offenses require only a general intent or "diminished mens rea." The government can prove that the defendant "knowingly violated" a particular environmental standard without proving that the defendant knew of the applicable environmental standard, or its violation, or of all the relevant facts underlying its violation.

For example, a deer hunter who shoots at a deer, misses and accidentally kills an endangered species can be prosecuted under the Endangered Species Act (ESA). Although the hunter did not have the specific intent to violate the ESA or to kill an endangered species, he had the general intent to discharge his firearm.

An example of applying the "diminished mens rea" standard to a swine producer's conduct would be in the over application of nutrients from a lagoon to cropland. If excess nutrients ran off the field into a stream and killed fish, the producer would be vulnerable to criminal prosecution under the Clean Water Act. Although the producer did not specifically intend to pollute the stream or to kill the fish, he had the general intent to apply nutrients to the field.

This lesser standard for prosecuting environmental criminal cases is justified by the courts under the doctrine that environmental crimes are public welfare offenses.

Using this lesser standard of criminal intent, the government has successfully prosecuted farmers, ranchers, and others, for violations of the Clean Water Act, Endangered Species Act, and many other environmental statutes.

Court Eases Liability The two new federal appellate decisions, however, give hope to ending the diminished mens rea standard for environmental crimes. Although neither case involved farmers, both cases directly affect the criminal liability exposure of farmers, at least in the Fifth and Fourth Circuits.

In late 1997, the U.S. Court of Appeals for the Fourth Circuit ordered a retrial for an individual and two partnerships convicted of Clean Water Act (CWA) wetlands violations in connection with a Maryland residential development. In U.S. vs. Wilson, the trial court had convicted the defendants of felony violations of the CWA for knowingly discharging fill and excavated material into wetlands without a permit from the U.S. Army Corps of Engineers.

A 21-month jail term was imposed on the developer. He was ordered to pay a $1 million fine. The two partnerships in which the developer participated were fined $3 million and were placed on probation for five years. The partnerships were also ordered to restore the affected areas and prepare a plan to prevent violations from recurring.

Reversing the conviction, the Fourth Circuit held that the trial court erred in failing to require mens rea with respect to each element of a CWA offense. The appellate court held that the criminal intent element required the government to prove:

(1) That the defendant knew he was discharging a substance;

(2) The defendant knew the substance he was discharging was a pollutant;

(3) The defendant knew the method used to discharge the pollutant;

(4) The defendant knew the physical characteristics of the property into which the pollutant was discharged and that the land was a wetland;

(5) The defendant was aware of facts establishing the required length between a wetland and waters of the United States; and

(6) The defendant knew he did not have a permit for such a discharge.

The appellate court found that the lower court's jury instructions did not adequately impose on the government the burden of proving knowledge with regard to each statutory element.

Similarly, a swine producer accused of a wetlands violation from the excavation of land to construct a lagoon could be criminally prosecuted only if the government could prove beyond a reasonable doubt that he/she knew he/she were excavating wetlands.

It is important to note, however, that feigned ignorance is no excuse. A landowner who willfully ignores the property's physical characteristics as a wetlands cannot successfully defend with an argument that the government had not previously designated the property to be wetlands.

Second Case Overturned In the 1996 Fifth Circuit case of U.S. vs. Ahmad, the defendant, a convenience store owner, was convicted of illegally dumping gasoline from underground storage tanks in violation of the Clean Water Act. Holes in the defendant's gasoline storage tanks caused the tanks to collect water. In attempting to remove the water, the defendant discharged over 5,000 gallons of gasoline down the main street of Conroe, TX, and into a manhole.

The defendant was indicted for two felonies of knowingly discharging a point source pollutant without a permit and of knowingly operating a point source in violation of pre-treatment standards.

At trial, the defendant contended that he did not knowingly discharge a pollutant. He thought that only water was being pumped out of the tanks. In addition, he contended that he could not have knowingly violated the Clean Water Act because he did not actually operate the pumps. The defendant argued that he was only guilty of negligently leaving the pumping operation to incompetent employees.

The federal district court judge, however, refused to submit the negligence issue to the jury. In addition, the judge instructed the jury under the diminished mens rea requirement. The jurors were told that the government did not have to prove that the defendant knew he was discharging a pollutant when he pumped out his tanks. The government only had to prove that the defendant knowingly discharged a substance which turned out to be a pollutant.

On appeal, the Fifth Circuit reversed the case and remanded the defendant's two CWA convictions on grounds that the statutory language imposing penalties for a "knowing violation" of the law require the government to prove the defendant's knowledge as to each actual element of a crime.

In other words, the government had to prove that the defendant Ahmad knowingly discharged a substance and that he knew the substance was a pollutant. The court noted that, even as to the heinous crime of child pornography, the government is required to prove each element of the offense. The court could find no basis for using a lesser standard as to environmental violations.

Returning to the example of the swine producer who accidentally pollutes a stream and causes a fish kill, under Wilson's specific criminal intent standard, the producer could escape criminal prosecution because he did not knowingly pollute the stream or kill the fish. At most, the producer would be liable for the negligent over application of nutrients to the field.

Penalties Too Harsh As to the government's contention that the diminished mens rea standard was justified under the public welfare offense doctrine, the Fifth Circuit held that the doctrine was inconsistent with the harsh CWA felony sanctions of years in federal prison. Citing other public welfare offense cases, the court noted that public welfare offenses have virtually always been crimes punishable by relatively light penalties, such as fines or short jail sentences, rather than substantial terms of imprisonment.

The Fifth Circuit also ruled that the district court had erred in not submitting the negligence issue to the jury. The appellate court found negligence to be a lesser included offense of a "knowing violation" and that the jury could have rationally concluded that the defendant's conduct was merely negligent.

Besides requiring the specific intent standard for environmental crimes, the Ahmad case is important because the appellate court held that the lower court erred in not permitting the accused to raise a negligence defense. The accused contended that his employees violated the Clean Water Act and that he was merely negligent in letting them pump out the storage tanks without proper supervision. Often, an employer's liability arises out of an employee's misconduct. If a swine producer's employee violates pollution laws by knowingly and willfully dumping animal waste into a stream, or by destroying wetlands, it is the producer who may be prosecuted by the government. This is regardless of the producer's lack of knowledge of the employee's conduct as a defense, so long as the employee did not act with the employer's knowledge or consent.

Ahmad and Wilson may signal the end of the unfair diminished mens rea standard for defendants accused of environmental crimes.

The Eighth Circuit Court of Appeals is currently reviewing the standard and may also set it aside.

At the very least, the split among the federal circuits as to the appropriate standard to apply may force the U.S. Supreme Court to finally decide the diminished mens rea issue, which it has refused to do in the past.