Jump to Navigation
Jump to Content

Criminal Negligence Prosecutions Under the Federal Clean Water Act: A Statistical Analysis and an Evaluation of the Impact of Hanousek and Hong

October 2002

Citation: ELR 11153

Author: Steven P. Solow and Ronald A. Sarachan

What can we learn about the use of the criminal negligence provisions of the federal Clean Water Act (CWA) by reviewing prior environmental crimes cases brought by the federal government? In an effort to answer that question, the authors have completed the first ever statistical analysis of all federal criminal negligence prosecutions brought since the CWA Amendments of 1987 created separate felony and negligence provisions. The results of that analysis are described below. It reveals clear patterns to past charging decisions of federal prosecutors, and suggests likely future trends.

Virtually all federal pollution control statutes contain criminal enforcement provisions.1 Generally, the mental state that the government must prove for a conviction is that the defendant acted "knowingly," that is, the violative acts must be voluntary and intentional and not the result of an accident or mistake of fact.2 However, in addition to crimes based on knowing conduct, the CWA also makes certain violations a crime if committed negligently.3 The potential reach of these criminal negligence provisions is extremely broad.4 For example, any violation of a national pollutant discharge elimination system (NPDES) permit, or spill of a pollutant into waters of the United States attributable to negligent operation, training, or supervision, may theoretically meet the elements of the crime. The government has not applied these provisions that broadly, and the question therefore becomes: why are certain negligent violations of the CWA selected for criminal prosecution and others not?

Steven P. Solow is a partner at Hunton & Williams, practicing in the Environment and Business Crimes Defense groups. Ronald A. Sarachan is a partner at Ballard Spahr Andrews & Ingersoll, L.L.P., practicing in the Government Enforcement White Collar Crime Group and the Environmental Group. The authors are two former chiefs of the U.S. Department of Justice Environmental Crimes Section. The prosecution of United States v. Hanousek, discussed in this Article, occurred during their tenures. The authors wish to thank the University of Maryland School of Law for providing critical research support for this Article during the time that Mr. Solow was a Visiting Professor. The authors also wish to thank Susan Ausborn for her outstanding research assistance. Portions of this Article were presented as part of the ALI-ABA Course of Study on the Criminal Enforcement of Environmental Laws in November 2001, and as a faculty forum at the University of Maryland School of Law in December 2001. The authors express their appreciation for the helpful responses provided by the attendees of both presentations.

You must be a News & Analysis subscriber to download the full article.

You are not logged in. To access this content: