According to well-settled legal principles and policies, criminal prosecution under our federal environmental laws traditionally was reserved for the most egregious and flagrant offenses, i.e., for those alleged offenses that constituted willful or knowing violations of the law or demonstrated reckless disregard for the law. Thus, a prosecutor was generally required to prove that the defendant understood that his or her actions ran afoul of the law and that the defendant intended to violate that law before the defendant could be convicted of a federal crime.¹ It also meant that the punishment typically seemed appropriate to the crime committed.

This approach to criminal enforcement made sense because, as the federal courts have long observed, not every wrong or perceived violation of moral standards should be treated as a criminal, let alone civil, violation of a legal duty, regardless of whether it is distasteful to a prosecutor or society as a whole.² Further, it was this measured approach to criminal prosecution under our federal environmental laws that the U.S. Environmental Protection Agency (EPA or the Agency) and the U.S. Department of Justice (DOJ or the Department) generally advocated until the mid-1990s.³