I wish I didn’t know now what I didn’t know then — Toby Keith 

It is an axiom of criminal law – punishment is meted out to punish wrongdoers when they consciously engage in wrongful conduct.

In the white collar context, an action becomes criminal when the actor possesses the requisite state of mind, i.e. the actor knows what he or she is doing is “illegal.”  The controversy surrounding criminal prosecutions in this situation usually centers on whether the actor had knowledge of the law and/or the facts.

One of the more controversial criminal enforcement programs – even more than the FCPA – is prosecution of environmental crimes.  Some argue that criminal enforcement of environmental laws has turned into the prosecution of strict liability offenses, while others defend such prosecutions because of the “general welfare” impact of environmental crimes on society.  Critics have raised concerns about criminal prosecutions for violations of statutes and regulations which are complex, subject to change with political winds, and difficult to apply to a number of factual scenarios.  Supporters of such prosecutions have responded by pointing to prosecutorial discretion as the fail safe protection against unfair prosecutions against companies or individuals who acted without the requisite intent.

The criminal enforcement of environmental laws is relatively new – starting in the 1970s and maturing in the 1990s, and then expanding significantly in the last ten years.  Misdemeanor criminal violations were included in the founding environmental laws – federal Clean Air Act, the Clean Water Act, the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), and the Resource Conservation and Recovery Act (“RCRA”).  In time the misdemeanor offenses were upgraded to felony offenses, while the requisite intent was always a “knowing” standard.

As practitioners in this area say – there is a big difference between “knowing” in the metaphysical sense and “knowing” for purposes of criminal liability.  It is often hard to decipher what makes an environmental case criminal versus civil — often the conduct at issue looks very similar. Courts have wrestled with defining the term “knowingly” when it comes to violation of environmental laws.  The government has been successfully in carrying the banner that criminal culpability does not require “knowledge” of the law – that is, the actor need not know that his or her conduct violates the law, they only need to know that they have engaged in the conduct itself.  The courts have, for the most part, agreed with the government. 

The prosecution of environmental crimes has become even more controversial through the use of the “responsible corporate officer” doctrine.  The responsible corporate officer doctrine originated in two Supreme Court cases, United States v. Dotterweich and United States v. Park.   In Park, the Court held corporate officers liable stating that the officers have “a positive duty to seek out and remedy violations when they occur but also, and primarily, a duty to implement measures that will insure that violations will not occur.”  This doctrine was explicitly included by Congress in the Clean Air Act and Clean Water Act.  Thus, responsible corporate officers can be held criminally liable for a failure to act, or a failure to prevent a violation.  But the responsible corporate officer has to act “knowingly,” meaning that the officer knows the conduct is occurring, has the authority to prevent or correct the conduct and fails to act. 

The government contends that it does not prosecute officers under this doctrine based on their position within a company but only where there is evidence that the officer knew that the conduct, or failure to act, was occurring.  Relying on prosecutorial discretion in this situation raises very significant concerns about distinguishing between criminal and non-criminal acts or failures to act.  Discretion in the hands of prosecutors could lead to real abuses.