Environmental criminal liability: what federal officials know can hurt them - or should know

Air Force Law Review, Wntr, 2004 by Joseph E. Cole

I. INTRODUCTION

The concept of holding a corporate officer or federal official liable for an environmental crime based on their position of authority over the violating activity is known as the Responsible Corporate Officer (RCO) doctrine. (1) While individual criminal liability for corporate officials is not a new concept in environmental law, (2) the application of the RCO doctrine, especially in concert with the Public Welfare Offense doctrine, (3) is an unsettled area of law. This article addresses criminal liability under environmental statutes, basic principles of corporate and officer liability, the genesis and current state of the RCO and Public Welfare Offense doctrines, their impact on the litigation of environmental crimes, and their applicability to federal officials.

II. FUNDAMENTAL CRIMINAL ELEMENTS

American criminal law fundamentally concerns itself with whether the accused has committed a prohibited act (actus reus), and if so, whether the act was committed with a guilty mind (mens rea).

A. Actus Reus

Before determining one's mens rea, it is necessary to determine that one committed a prohibited or criminal act. (4) While such acts often consist of one's own affirmative conduct, they can also be of other types.

1. Omission (Failure to Act)

The imposition of criminal liability may arise where an individual fails to perform a required act. Such liability derives from the common law notion of a duty to act. However, a person generally does not have a legal duty to act.

The following are examples of conditions giving rise to a duty to act: a duty based on relationship, a contract, and most importantly from the environmental perspective, a duty based upon statute. (5) An example of an environmental statute creating a duty to act is found in the Comprehensive Environmental Response, Compensation and Liability Act's (CERCLA's) (6) requirement that certain reports be made. (7)

2. Vicarious Liability

Vicarious liability occurs "where the defendant, generally one conducting a business, is made liable (though without personal fault) for the bad conduct of someone else, generally his employee." (8) Vicarious liability does away with "personal actus reus," (9) rendering one liable for the acts of subordinates or agents.

3. Derivative Liability

A corporate officer may stand liable not only for the acts of those subordinate to him, but also for the acts of the corporation. When a corporation commits an offense, it is the principal. Corporate officers in positions of authority who fail to exercise that authority in preventing/remedying violations can be said to aid and abet those violations. This is the derivative approach to liability. (10) When applied to strict liability offenses, the derivative approach treats the aider and abettor as standing "in the shoes of the principal," thereby obviating the need for a culpable mental state on the part of the corporate official.

B. Mens Rea (11)

There are differing approaches to determining the degree of criminality exhibited by the alleged criminal to complete the commission of the crime. That is, what was the extent of the guiltiness of his state of mind? Generally, these approaches can be separated into four categories of crimes; (1) those that require the intent to commit the act or bring about the result; (2) those requiring knowledge of the act; (3) those requiring recklessness or disregard in taking an action or causing its result; and (4) those requiring negligence in taking the action or causing the result. In addition, a crime may be one of strict liability, requiring no determination of the criminal's state of mind. (12) As the Supreme Court has observed, however, "It]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." (13)

It is important to pay particular attention to the language of the environmental statute as well as the legislative intent evinced by Congress as to what the knowledge requirement is for culpability in the criminal activity. (14) Typically, criminal statutes contain words of criminality to delineate the requisite intent required for the commission of the offense. That is, words such as "intentionally," "knowingly," "willfully," and "recklessly" are used to describe the mens rea required for the crime. This article will emphasize the "knowingly" mens rea since that is most often the standard of wrongful purpose required in environmental statutes. (15)

Constructive Knowledge/Willful Blindness

The law requires notice that certain conduct is prohibited; "[w]ere it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community." (16) Nonetheless, it is also equally fundamental to our common law jurisprudence that ignorance of the law is no excuse.

"Willful blindness" is a well-known evidentiary principle involving the concept of transferred intent. The doctrine allows the factfinder to infer knowledge from proof that a defendant shielded himself from knowledge of an illegal act. (17) Deliberately remaining ignorant of facts that are otherwise apparent creates an inference that the defendant avoided the facts because of knowledge of the wrongfulness of the conduct. (18)