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"Green Collar Criminals" and Wetlands Uncertainty: The Effect of Criminal Provisions in Public Welfare Statutes on Wetlands

December 2003

Citation: 33 ELR 10952

Issue: 12

Author: Sarah Beth Windham and Kristen Fletcher

Under the public welfare doctrine, certain regulatory crimes require no showing of the traditional mens rea, or "guilty mind," as a predicate to criminal liability. The doctrine has been used to relax intent requirements in criminal statutes when the public welfare is at stake and is predicated upon the fact that the defendant had notice that the dangerous activity is regulated. A majority of courts place the criminal provisions of the Clean Water Act (CWA) within the public welfare doctrine. In theory, therefore, prosecutors need not prove that a defendant acted with the requisite intent with respect to each element of the underlying statutory offense in order to convict.

The complexity of environmental statutes and the potential consequences of violating these laws have lead criminal defense attorneys to argue that the government should be required to prove that a defendant was aware of the illegality of his conduct. Such "green-collar" criminals would, in essence, claim ignorance of the law as a defense, an option generally denied persons accused of nonregulatory crimes, where "ignorance of the law is no defense." Courts are currently struggling with whether environmental criminal defendants should be segregated from other criminal defendants in such a manner.

The applicability of the public welfare doctrine to the criminal provisions of the CWA has not been clearly established by the courts. Regulatory ambiguity clouds the implementation of §404 of the CWA, the section permitting the otherwise prohibited discharge of dredge or fill material into a wetlands. The U.S. Army Corps of Engineers' (the Corps') jurisdiction over isolated wetlands was severely curtailed by the U.S. Supreme Court in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, and the Corps' "Tulloch rule" was recently overturned by the U.S. Court of Appeals for the District of Columbia (D.C.) Circuit. Questions of fairness have arisen regarding the application of the public welfare doctrine when great uncertainty surrounds the authority of the Corps to regulate the activity.

The first section of this Article discusses the public welfare doctrine's origins and what it means in environmental regulation. The second addresses how the public welfare doctrine intersects with the CWA. The current state of wetlands regulation is described, including the confusion in the courts surrounding the jurisdiction of the Corps. Finally, the current state of the law is described and options to clarify this area of law are proposed.

Sarah Beth Windham is an associate with the Jude Law Firm in Hattiesburg, Mississippi, specializing in toxic torts and insurance law. She received her B.S. from the University of Southern Mississippi (1998) and her J.D. at the University of Mississippi School of Law (2002), where she was a Research Associate with the National Sea Grant Law Center. Kristen M. Fletcher served as Director of the National Sea Grant Law Center until 2003. She is now Director of the Marine Affairs Institute at Roger Williams University School of Law and Director of the Rhode Island Sea Grant Legal Program. She received her LL.M. in Environmental and Natural Resources Law at Northwestern School of Law, Lewis and Clark College (1998), her J.D. at the University of Notre Dame Law School (1996), and her B.A. at Auburn University (1993). This Article is a result of research sponsored in part by the Center for Justice and the Rule of Law and Mississippi Law Research Institute at the University of Mississippi School of Law, and the National Oceanic and Atmospheric Administration, U.S. Department of Commerce under grant number NA16RG2258, and the Mississippi-Alabama Sea Grant Consortium. The views expressed in this Article are the authors' own. Significant editorial assistance was contributed by Stephanie E. Showalter, Research Counsel, National Sea Grant Law Center.

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