United States v. Ward
Citation: 10 ELR 20477
No. No. 79-394, 448 U.S. 242/14 ERC 1673/(U.S., 06/27/1980) Rev'd
The Supreme Court holds that the penalty imposed under § 311(b)(6) of the Federal Water Pollution Control Act (FWPCA), for the unauthorized discharge of oil and hazardous substances into navigable waters, in civil rather than criminal in nature, and therefore the reporting requirements set out in § 311(b)(5) of the FWPCA do not violate the Fifth Amendment guarantee against self-incrimination. Reversing the Tenth Circuit, Justice Rehnquist rejects respondent's contention that the penalty that the Coast Guard assessed him after he had notified the Environmental Protection Agency that oil had escaped from his drilling facility violated his constitutional right against self-incrimination. First, since Congress explicitly addressed criminal sanctions in § 311(b)(5), the use of the term "civil" with reference to the § 311(b)(6) penalties indicates a clear legislative intent that the latter be civil in nature. Second, such an intent is not vitiated by the purpose or effect of the penalty. Although the behavior to which the penalty is to be applied was already designated a crime under § 13 of the Rivers and Harbors Act of 1899, which lends support to Ward's contention that the penalty was in fact a "criminal sanction," this argument is "diluted" by the fact that the criminal sanction was established 70 years prior to the civil penalty. Finally, the Court rejects the contention that the proceedings under the FWPCA are "quasi-criminal," triggering the Fifth Amendment protection against self-incrimination though not the remaining more narrowly-applied constitional safeguards that are granted in criminal proceedings. In light of overwhelming evidence that Congress intended to create a civil penalty, and finding only weak indications of a countervailing purpose or effect of the sanction, the Court concludes that § 311(b)(5) does not violate respondent's privilege against self-incrimination.
Concurring separately, Justice Blackmun, joined by Justice Marshall, observes that the monetary nature of the penalty and the fact that it is placed in a revolving fund used to defray the expense of cleanup operations are strong indications of its civil and compensatory thrust, noting that there is only a "remote likelihood" that the penalties would be excessive. In a dissenting opinion, Justice Stevens argues that the § 311(b)(6) penalties are criminal, since factors such as the degree of the operator's culpability, rather than his good faith, guide their imposition and that the compulsory reporting requirements of § 311(b)(5) violate the Fifth Amendment since they do not seem to serve a valid regulatory purpose independent of the assessment and collection of the penalties.
Counsel for Petitioner
Wade H. McCree Jr., Solicitor General; Edwin S. Kneedler, Ass't to the Solicitor General; James W. Moorman, Ass't Attorney General; Jacques B. Gelin, Michael A. McCord
Department of Justice, Washington DC 20530
Counsel for Respondent
Stephen Jones, David C. Butter, James Sears Bryant
Jones & Gungoll
1100 Broadway Tower, Enid OK 73701