*Associate Professor, Thomas Jefferson School of Law, San Diego.
An early version of this Article was presented at the Annual Meeting of the Law & Society Association held in Chicago, Illinois on May 27–30, 1999. Jessie Allen, Elizabeth Harris, and other attendees at that presentation provided useful comments. The readings of Suzette Brooks, Eve Cary, Marjorie Cohn, Jerry Wallingford, and Ellen Waldman also helped, as did that of Dr. Joan Esnayra. Although some of them disagreed with aspects of the Neurotoxicity Hypothesis and my take on its legal implications, their comments were uniformly helpful to me, and for that I am grateful. Joseph A. Tontodonato, Class of 2000, provided able research assistance. I am also grateful to Dean Kenneth Vandevelde and a Thomas Jefferson summer research grant for assistance in the preparation of this Article.
1 The Federal Bureau of Investigation (FBI) defines “violent” crimes as one of four types: murder, forcible rape, robbery, and aggravated assault. See Federal Bureau of Investigation, FBI 1998 Preliminary Annual Release, UNIFORM CRIME REP. (1999).
2 Mayor Rudolph W. Giuliani, Second Inaugural Address at City Hall in New York City, New York (Jan. 1, 1998), available at <http://www.ci.nyc.ny.us/html/om/html/secondi naug.html>.
3 For instance, in New York City alone, for the period 1993–97, officials reported that murders were down by 60.2%, armed robberies by 48.4%, and rapes by 13.5%. See Office of the Mayor of the City of New York, Press Release No. 006–97, available at <http:// www.ci.nyc.ny.us/html/om/html/98a/pr006–98/html>. Throughout the 1990s, similar reductions have been registered across the country. See, e.g., Michael Cooper, Homicides Decline Below 1964 Level in New York City, N.Y. Times, Dec. 24, 1998, at A1; John H. Cushman, Jr., Serious Crime Fell in U.S. For 6th Year in a Row in ’97, N.Y. Times, May 18, 1998, at A14; Ed Jahn, California’s Crime Rate Drops to 30-year Low, San Diego Union-Trib., June 16, 1998, at B2; Eric Lichtblau, Crime Rates Continue Record 7-Year Plunge, L.A. Times, May 17, 1999, at A1; Frank Main, Murders are Down Again in Chicago, Chi. Sun-Times, June 30, 1999, at 30 (reporting that the local murder rate is at a ten-year low); Major Crime Down in State Cities, L.A. Daily News, Feb. 24, 1999, at N3; Ruth L. McKinnie, Local Homicide Rates Continue to Drop, San Diego Union-Trib., Mar. 29, 1998, at B1; Miami Murder Rate Falls to a 20-Year Low, Agence-France Presse, Jan. 7, 1999, available in 1999 WL 2525156. But see Bill Bryan, City Ranks No. 1 in Crime Per Capita, FBI Reports Police Chief Disputes Findings for ’98: “Crime Has Been Going Down,” St. Louis Post-Dispatch, June 4, 1999, at A1 (reporting that, adjusting for population, St. Louis had the highest rates of crime nationally); Graham Rayman, Troubling Public Safety Report, Newsday, June 24, 1999, at A06 (noting increases in New York City homicide rates for the first half of 1999).
4 See, e.g., Fox Butterfield, Decline of Violent Crimes is Linked to Crack Market, N.Y. Times, Dec. 28, 1998, at 5 (citing the likely importance of decline in crack cocaine sales); Fox Butterfield, Many Cities in U.S. Show Sharp Drop in Homicide Rate, N.Y. Times, Aug. 13, 1995, at 1; Clifford Krauss, Mystery of New York, the Suddenly Safer City, N.Y. Times, July 23, 1995, § 4, at 1; Neal R. Peirce, The Prison Craze and the Crime Rate, San Diego Union-Trib., Jan. 5, 1999, at B9 (identifying possible explanations for declines in crime rates).
5 See infra Section I.
6 The most prominent of these is the Lead-Based Paint Poisoning Prevention Act, 42 U.S.C. §§ 4821–4846 (1999). Others include 15 U.S.C. §§ 2681–2692 (1999) (setting forth various measures to effect lead exposure reduction) (original provisions enacted in 1976 and amended in 1992); 42 U.S.C. § 7545 (1999) (regulation of fuel additives) (basic statutory provisions enacted in 1967); 42 U.S.C. § 4831 (1999) (lead-based housepaint). The manufacture of lead-based paint was prohibited in 1977 pursuant to a regulation promulgated by the Consumer Product Safety Commission. See 16 C.F.R. Pt. 1303 (West 2000). See generally statutes cited infra note 29; Colin Crawford, Trends in the Regulation of Lead, 2 Envtl. L. N.Y. 145 (1991).
7 See supra note 3; see also Ed Jahn, California Crime Rate Drops to 30-Year Low, San Diego Union-Trib., June 16, 1998, at B2 (crediting the “three-strikes law”); Rick Orlov & Phillip W. Browne, Valley Crime Plunges; Latest Statistics Reflect 6-Year Trend, L.A. Daily News, July 15, 1999, at N1 (quoting LAPD Commander Val Paniccia crediting the “three strikes” law and aggressive community policing for driving down crime); Vincent J. Schodolski, Experts Split Over Effect of “3 Strikes” Laws on Crime, Chi. Trib., Mar. 3, 1999, at 7 (reporting that statistics reflect a crime decrease and prison population increase in the twenty-four states that have adopted “three strikes” or other similar laws); John Strauss, Democrats, Peterson Ready to Make Run, Mayoral Candidate Wins Party Support and Calls for Collaborative Campaigning, Indianapolis Star, Feb. 18, 1999, at C01 (reporting that Mayor Stephen Goldsmith noted an overall decrease in crime in Indianapolis as a result of more funding for the police); Sue Weibezahl & Erik Kriss, Some Sad, Some Pleased by “Death;” Opponents Say Penalty Wrong, Post-Standard, Aug. 21, 1999, at A3 (quoting New York State Senator Dale Volker attributing drop in murder and crime rates to New York’s capital punishment law). But see Mike Kataoka, “Three Strikes” Law Not Working, Study Says But Prosecutors Dispute Institute’s Findings, Press Enterprise, Mar. 3, 1999, at A03 (evaluating the Justice Policy Institute’s findings and theorizing that an improved economy and the leveling off of the crack cocaine trade are reasons for the crime reduction); Scot Leigh & Frank Phillips, Views of Cellucci, Professor Characterize Death Penalty Issue, Boston Globe, Mar. 22, 1999, at B4 (stating that there is little public clamor for a capital punishment law because the crime rate of Massachusetts is down so significantly).
8 C. Ray Jeffery, Criminology and Criminal Law: Science Versus Policy and the Interaction of Science and Law, in Advances in Criminological Theory 3, 8 (1999) [hereinafter Criminology and Criminal Law]. See also C. Ray Jeffery, The Prevention of Juvenile Violence 3 (paper presented at the annual meeting of the Academy of Criminal Justice Sciences, Mar. 13, 1998) (unpublished paper, on file with author).
9 See Deborah W. Denno, Considering Lead Poisoning as a Criminal Defense, 20 Fordham Urb. L.J. 377, 385 (1993) (stating that “[e]ven in a racially and environmentally homogeneous sample of children, environmental factors predominated in predicting who would be a criminal”).
10 In related contexts, lawyers have begun to take note of the importance of biological knowledge to the law. See generally Deborah W. Denno, Biology and Violence: From Birth to Adulthood (1990) (reporting and analyzing the results of “the Biosocial Project,” a study of 1000 individuals in Philadelphia from birth to young adulthood); Deborah W. Denno, Gender, Crime, and the Criminal Law Defenses, 85 J. Crim. L. & Criminology 80 (1994); Deborah J. [sic] Denno, Neuropsychological and Early Environmental Correlates of Sex Differences in Crime, 23 Int’l J. Neuroscience 199 (1984); Deborah W. Denno, Sociological and Human Developmental Explanations of Crime: Conflict or Consensus?, 23 Criminology 711 (1985); E. Donald Elliott, Law and Biology: The New Synthesis?, 41 St. Louis U. L.J. 595 (1997); Owen D. Jones, Evolutionary Analysis in the Law: An Introduction and Application to Child Abuse, 75 N.C. L. Rev. 1117 (1997) (positing the value of biological approaches to legal analysis); Owen D. Jones, Law and Biology: Toward an Integrated Model of Human Behavior, 8 J. Contemp. Legal Issues 167 (1997) (arguing for more cross-disciplinary fertilization to develop a model of human behavior not rooted in traditional social science models); Owen D. Jones, Sex, Culture, and the Biology of Rape, 87 Cal. L. Rev. 827 (1999); Vicki Quade, Hair May Hold the Secret, 69 A.B.A. J. 1814 (1983) (reporting chemical imbalances as a possible cause of violent behavior).
11 See infra Section II.A.1.b.
12 The legal arguments outlined in Sections II and III, infra, do not rest solely upon the ultimate credence given what has been labeled “the Neurotoxicity Hypothesis.” On the contrary, the argument advanced in this Article is animated by the belief that if not this research, then other neurobiological and/or neurochemical research will force attention to the issues considered here. Samples of scientific and social scientific research that promise to demand legal consideration in coming years include, generally, Margaret Gruter, Law and the Mind: Biological Origins of Human Behavior (1991); Law, Biology & Culture (Margaret Gruter & Paul Bohannan eds., 1983); The Sense of Justice: Biological Foundations of Law (Roger D. Masters & Margaret Gruter eds., 1992); Sarnoff A. Mednick et al., The Causes of Crime: New Biological Approaches (1997); Adrian Raine, The Psychopathology of Crime (1993); Michael T. McGuire, Biochemical Screening to Predict Behavior, 65 S. Cal. L. Rev. 565 (1991).
For more popular reports on this research, see Pesticides and Aggression, Rachel’s Env’t and Health Weekly No. 648 (Apr. 29, 1999); Wray Herbert, Politics of Biology: How the Nature Vs. Nurture Debate Shapes Public Policy—and Our View of Ourselves, U.S. News & World Rep., Apr. 21, 1997, available in 1997 WL 8331924.
13 See, e.g., Roger D. Masters et al., Brain Biochemistry and Social Status: The Neurotoxicity Hypothesis, in Intelligence, Political Inequality and Public Policy 141 (1997) [hereinafter Brain Biochemistry]; Roger D. Masters et al., Brain Biochemistry and the Violence Epidemic: Toward a “Win-Win” Strategy for Reducing Crime, in Super-optimizing Examples Across Public Policy Problems (Stuart Nagel ed., forthcoming); Roger D. Masters et al., Environmental Pollution, Neurotoxicity and Criminal Violence, in Environmental Toxicology: Current Developments 13 (1998) (reviewing evidence linking lead and manganese neurotoxicity to aggressive behavior and crime for all 3141 U.S. counties); The Neurotransmitter Revolution: Serotonin, Social Behavior and the Law (Roger D. Masters & Michael T. McGuire eds., 1993) [hereinafter The Neurotransmitter Revolution]; Roger D. Masters, Environmental Pollution and Crime, 22 Vt. L. Rev. 359, 375 (1997) (arguing, inter alia, that “[b]oth crime prevention and effective sentencing need to consider a broader range of risk factors than has hitherto been customary.”); Roger D. Masters & Myron Coplan, Water Treatment with Silicofluorides and Lead Toxicity, in Int’l J. of Envtl. Studies (forthcoming 1999) (linking silicofluoride treatment of public water supplies with increased childhood lead uptake in Massachusetts towns).
14 See Masters et al., Brain Biochemistry, supra note 13, at 154.
15 See id. at 156.
16 Masters et al., Environmental Pollution, Neurotoxicity and Criminal Violence, supra note 13, at 18.
17 See Masters et al., Brain Biochemistry, supra note 13, at 154.
18 Id. at 155.
19 “Neurotransmitters may be defined as chemical messengers, which allow the transfer of information between neurons. . . . The neurotransmitters are of different types of molecules, including amino acids, neuropeptides, and the biogenic amines.” Dan J. Stein & Michael Stanley, Serotonin and Suicide, in The Neurotransmitter Revolution, supra note 13. See also Arthur Yuwiler et al., The Basics of Serotonin Neurochemistry, in The Neurotransmitter Revolution, supra note 13, at 37–46.
20 Masters et al., Brain Biochemistry, supra note 13, at 154.
21 See id. at 153–54.
22 Id. at 152.
23 This is the thrust of some of the unpublished work of William Walsh, of the Health Research Institute of Napierville, Illinois. Walsh conducted a study of twenty-four pairs of twins where one twin was either not violent or less violent than an extremely violent twin. The study revealed that the more violent twin had abnormal levels of trace heavy metals. Telephone Interview with William Walsh, Ph.D., Health Research Institute (June 1, 1998). Walsh’s Institute is dedicated to correcting behavioral disorders through biochemical means. See, e.g., William J. Walsh et al., Elevated Blood Copper/Zinc Ratios in Assaultive Young Males, 62 Physiology & Behavior 327 (1997); William J. Walsh, Biochemical Treatment and Behavior Outcomes (Aug. 1996) (unpublished manuscript on file with author); William J. Walsh, Biochemical Treatment of Mental Illness and Behavior Disorders, Address at the Minnesota Brain Bio Association (Nov. 17, 1997); William J. Walsh et al., Biochemical Treatment of Behavior Disorders (May 9, 1996) (unpublished materials presented at the 149th Annual Meeting of the American Psychiatric Association, New York, New York, on file with author); William J. Walsh, Zinc Deficiency, Metal Metabolism, and Behavior Disorders (Sept. 1994) (unpublished manuscript on file with author); see also H. Ron Isaacson et al., Autism: A Retrospective Outcome Study of Nutrient Therapy, 48 J. of Applied Nutrition No. 4 (1996) (describing the use of nutrient therapy to treat behavioral and learning disorders, depression, schizophrenia, and autism); Nutrition: A Deficiency Made Me Do It, 30 Psychol. Today 14, 14 (Nov./Dec. 1997).
24 See Sheldon M. Novick, Racial Images of the “Criminal”: A Cognitive Disorder, 22 Vt. L. Rev. 383 (1997) (questioning the underlying assumptions and implications of the work of, inter alia, Deborah Denno and Roger Masters); Joan Vogel, Biological Theories of Human Behavior: Admonitions of a Skeptic, 22 Vt. L. Rev. 425, 425 n.1 (1997) (citing extensive literature on “the uses and misuses of biological theories”). But see Denno, Biology and Violence, supra note 10, at 1–2 (noting the concern that biological explanations of behavior will fuel prejudices, but emphasizing that such criticisms are reductive); but see generally Roger D. Masters, Is Sociobiology Reactionary? The Political Implications of Inclusive-Fitness Theory, 57 Q. Rev. Biology 275 (1982) (concluding that biological explanations are not necessarily ideological in content). For a survey of some recent literature considering the kinds of racial disparities discussed by Novick, see Nicholas Lemann, Justice for Blacks?, N.Y. Rev. Books 25 (Mar. 5, 1998).
The typical concern raised in this context is that neurotoxicity research could be used to manage populations in pernicious ways, as in the infamous case of Buck v. Bell, involving Carrie Buck, a “feeble-minded white woman,” whose mother and child were also “feeble-minded.” See 274 U.S. 200, 205 (1927). The State of Virginia sought to sterilize Buck under a state statute. See id. Justice Holmes, declaring that “[t]hree generations of imbeciles are enough,” agreed with the State, and offered the following, chilling words in support of his view:
[w]e have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.
Id. at 207.
For a general overview of the social implications of new work in genetics, see generally Troy Duster, Backdoor to Eugenics (1990). See also generally Jared Diamond, Guns, Germs, and Steel: The Fates of Human Societies (1997). Among other things, Diamond looks at the way historical incidents have affected the development of different races and geographic regions. As such, Diamond’s argument could be viewed as an endorsement of research like that on the Neurotoxicity Hypothesis to anticipate harms by using the most recent advances in human knowledge. See generally id.
25 Masters, for example, notes that “all individuals are not equally vulnerable to ecological pathways of toxins.” Masters et al., Environmental Pollution, Neurotoxicity and Criminal Violence, supra note 13, at 31. He goes on to explain that the poor in the United States often suffer from dietary deficiencies, including vitamin D and calcium deficiencies. See id. He explains that these deficiencies are made worse when an individual also suffers from manganese exposure, because calcium can help reduce uptake of neurotoxic metals. See id.
26 See Masters et al., Brain Biochemistry, supra note 13, at 150–54.
27 On the concern with racial profiling as a result of this research, see, for example, Novick, supra note 24, at 390 (arguing that even the focus on “violent crime” is a social construction borne of inherently prejudicial racial stereotypes).
28 Masters et al., Brain Biochemistry, supra note 13, at 156 (noting that “[a]lthough some researchers argue that the behavioral consequences of toxic elements are reversible with individualized vitamin treatments, others have been critical of the research to date.”(citations omitted)).
29 Id. (citations omitted).
30 See id.
31 “Concern over the effect of lead on infant and child development is, of course, of long standing. Noted in antiquity by Hippocrates and two centuries ago by Benjamin Franklin, the danger of lead poisoning has been the subject of widespread scientific analysis.” Id. at 157.
32 See, e.g., Lead Paint Poisoning Prevention Act, 42 U.S.C. §§ 4821–4826 (1999); 15 U.S.C. §§ 2681–2692 (1999); 42 U.S.C. § 7545 (1999); 42 U.S.C. § 4831 (1999).
33 See Lead Exposure Reduction Act, 15 U.S.C. §§ 2681–2692 (1999); Residential Lead-Based Paint Poisoning Prevention Act of 1992, 42 U.S.C. §§ 4851–4856 (1999); Lead Contamination Control Act of 1988, 42 U.S.C. §§ 247b-1, 300j-21–300j-26 (1999); see generally Committee on Environmental Hazards, Statement on Childhood Lead Poisoning, 79 JAMA 457 (Mar. 1987). The dangers of lead continue to merit study and regulation. See, e.g., Management and Disposal of Lead-based Paint Debris, 63 Fed. Reg. 70,190 (Dec. 18, 1998) (to be codified at 40 C.F.R. pt. 745); Notice of the Revised Priority List of Hazardous Substances That Will be the Subject of Toxicological Profiles, 63 Fed. Reg. 61,332 (Nov. 17, 1997) (“This announcement provides notice that the agencies have developed and are making available a revised CERCLA Priority List of 275 Hazardous Substances, based on the most recent information available to ATSDR and EPA.”). Among the top twenty-five substances listed on the 1997 Priority List of Hazardous Substances, lead placed second while cadmium placed seventh. See 63 Fed. Reg. 70,190. See also, Herbert L. Needleman M.D. et al., Bone Lead Levels and Delinquent Behavior, 275 JAMA 363 (1996) (studying 850 boys ages seven to eleven and concluding that lead exposure increases the risk of antisocial and delinquent behavior). But see Letter from Henrietta K. Sachs, M.D., to the Editor, Journal of the American Medical Association, 275 JAMA 1725 (June 12, 1996) (challenging Dr. Needleman’s results); Steve La Rue, Lead Poisoning Continues to Plague Kids, San Diego Union-Trib., July 18, 1999, at B1 (noting continuing exposure to lead in various forms, including, inter alia, house paint, particularly among Hispanic- and African-Americans); Andrea Mandel-Campbell, Mexico Spotlight on Lead-Producing Companies, Fin. Times, Aug. 21, 1999, at 4; John O’Neil, Study Finds Lead Poisoning is Tied to Children’s Tooth Decay, N.Y. Times, June 23, 1999, at A14.
34 See Committee on Environmental Hazards, supra note 33, at 459 (noting that “[n]europsychologic dysfunction, characterized by reduction in intelligence and alteration in behavior, has been shown conclusively to occur in asymptomatic children with elevated blood lead levels.”). The report also noted that because of increased concerns in 1987 about the seriousness of excessive blood lead contamination, an Advisory Committee to the Centers for Disease Control determined that the level for excessive blood lead should be reduced by nearly twenty percent. See id.
35 See generally Masters et al., Brain Biochemistry, supra note 13, at 153 (“It has long been known that serious behavioral and cognitive deficits are caused by exposure to lead, especially during infancy and childhood. Subclinical lead poisoning has been correlated with learning disabilities, Attention Deficit Disorder, and other psychological abnormalities sometimes associated with deviant behavior.”); Stein & Stanley, Serotonin and Suicide, supra note 19; Yuwiler et al., The Basics of Serotonin Neurochemistry, supra note 19.
36 Masters et al., Brain Biochemistry, supra note 13, at 157.
37 Id. (citing Debra Brody et al., Blood Lead Levels in the U.S. Population, 272 JAMA 277–83 (1994); Derik Bryce-Smith, Lead Induced Disorder of Mentation in Children, 1 Nutrition & Health 179–94 (1983); Howard W. Mielke, Lead Dust-Contaminated Communities and Minority Health: A New Paradigm, in The National Minority Health Conference (1992)). It might have been more appropriate for Professor Masters and his co-authors to say that young black men between the ages of eighteen and thirty-five are more likely to be “arrested” for criminal activities than to “commit” them. Many argue that certain demographic groups, particularly young African-American men, commit more crimes per capita or are more likely to be arrested because of their skin color. For example, one criminal justice reform group has documented the fact that nearly one in three African-American males between the ages of twenty and twenty-nine is, on any given day, in prison or jail, or on probation or parole. The report questions whether that high percentage truly reflects a need to punish instead of a practice of targeting specific groups. See generally The Sentencing Project, Report Summary, Young Black Americans & the Criminal Justice System: Five Years Later (1995). Of course, if some demographic groups are arrested disproportionately as compared to those who actually commit crimes, it would be necessary for neurotoxicity research to take account of that fact, in part for some of the critical judgments leveled against neurotoxicity research by Novick. See generally Novick, supra note 24.
38 See Masters et al., Brain Biochemistry, supra note 13, at 158.
39 Id. As noted above, an especially important feature of neurotoxicity research is the contention that contamination from heavy metals can only be understood in connection with other empirical data. For instance, bottle-fed infants and those with diets low in calcium and essential vitamins appear to be “especially susceptible” to manganese uptake. Notably, African-American and Latino-American infants are more likely than other infants to be bottle-fed. What is more, the black and Latino poor appear to consume far less calcium and Vitamin D, which plays a central function in calcium uptake, than do whites. For example, African-American teenage males consume on average about two-thirds of the calcium of their white counterparts. See id. at 165. Once again, then, the Neurotoxicity Hypothesis points to the conclusion that certain demographic groups may, as a result of genetic predisposition, exposure to toxic heavy metals, and other factors like inadequate nutrition, be more likely to commit violent criminal acts.
40 Id. at 159.
41 See id.
42 See generally Needleman et al., supra note 33; Walsh et al., Elevated Blood Copper/Zinc Ratios in Assaultive Young Males, supra note 23; Walsh, Biochemical Treatment and Behavior Outcomes, supra note 23; Walsh, Biochemical Treatment of Mental Illness and Behavior Disorders, supra note 23; Walsh et al., Biochemical Treatment of Behavior Disorders, supra note 23; Walsh, Zinc Deficiency, Metal Metabolism, and Behavior Disorders, supra note 23.
43 See generally Roger D. Masters & Myron D. Coplan, Public Water Supplies and Lead Toxicity: The Role of Silicofluoridation Agents (1991) (unpublished manuscript on file with author); Roger D. Masters & Myron D. Coplan, The Triune Brain, the Environment, and Human Behavior: Homage to Paul MacLean (July 16, 1999) (paper presented at Festschrift in Honor of Paul MacLean, on file with author).
44 Masters & Coplan, Public Water Supplies and Lead Toxicity, supra note 43; see Masters & Coplan, The Triune Brain, the Environment, and Human Behavior, supra note 43.
45 See Masters & Coplan, Public Water Supplies and Lead Toxicity, supra note 43, at 6–7.
46 See id. at 10.
47 For example, the recent decision of the City of Los Angeles to fluoridate its public water supplies might have to be reversed. See Patrick McGreevy, Contract Clears Way for Fluoridation, L.A. Times, Jan. 20, 1999, at B7. The research on the neurotoxicity of silicofluorides has not yet documented possible correlations between those cities treating with the potentially harmful fluoridation agents, namely fluorosilicic acid or sodium chloride, although the researchers did note “in [this] context that more than a dozen large crime cities have been treating their water with these agents for between 20 and 40 years.” Masters & Coplan, Public Water Supplies and Lead Toxicity, supra note 43, at 10.
48 Masters et al., Environmental Pollution, supra note 13, at 19–20.
49 See Masters et al., Brain Biochemistry, supra note 13, at 166.
50 Id. at 164, 166 (citations omitted).
51 Id. at 160.
52 Id.
53 Id. at 159.
54 See Masters et al., Environmental Pollution, supra note 13, at 15–16, 32.
55 See id. at 16, 32. The TRI is produced annually by the EPA pursuant to Section 313 of the Emergency Planning and Community Right-to-Know Act of 1986, and Section 6607 of the Pollution Prevention Act of 1990. See 42 U.S.C. §§ 11023, 13106 (1999). The 1997 TRI, the most recent, was published in April 1999. See Office of Pollution Prevention and Toxics, U.S. Environmental Protection Agency, 1997 Toxics Release Inventory Public Data Release Report, available at http://www.epa.gov/optintr/tri/tri97/drhome.html.
56 See Masters et al., Environmental Pollution, supra note 13, at 16. The 242 counties reporting no incidence of violent or property crimes in that year were dropped from Masters’s comparison. See id. at 32.
One possible concern about the use of FBI data is that they may reflect, to a disproportionate degree, a bias from large urban centers, which may contain relatively more efficient information-collection systems. Local crime reports may therefore present a more reliable statistical base, although they are not easily obtained and such data might be difficult to standardize.
57 See id. It bears mentioning that Masters and his research colleagues also looked at levels of alcoholism as they may have related to violent crime. Suffice it to say that they also found a correlation between crime and alcoholism, a connection that is already a well-established feature of the criminology literature. See Masters et al., Brain Biochemistry, supra note 13, at 159. This Article avoids discussion of that issue since its focus is on environmental law and policy and not on each of the variables.
58 Masters et al., Brain Biochemistry, supra note 13, at 159
59 Masters et al., Environmental Pollution, supra note 13, at 32.
60 Concern about the ecological fallacy should be especially heightened among lawyers, in light of several well-publicized misuses of scientific data. See generally Marcia Angell, Science on Trial: The Clash of Medical Evidence and the Law in the Breast Implant Case (1996). Angell discusses the ecological fallacy—without using the term of art. See id. at 98.
61 “Although epidemiologists are increasingly aware of such synergistic interactions, most conventional models of violent crime have looked at individual variables rather than complex effects of ecological and lifestyle factors on brain chemistry and behavior.” Masters et al., Environmental Pollution, supra note 13, at 32.
62 Possibilities suggested by Michael McGuire, a professor of psychiatry and biobehavioral science at the University of California at Los Angeles, would be longitudinal studies or animal studies on non-human primates. Telephone Interview with Professor Michael McGuire, UCLA (June 3, 1998). Diana Fishbein, a criminologist and psychobiologist at the University of Maryland, offered that human control groups might be formed where the head hair of subjects was tested for possible toxic contamination, or to perform blood assays on a subject population. Telephone Interview with Diana Fishbein, Criminologist/Psychobiologist, University of Maryland (Mar. 25, 1998). Adrian Raine, a professor of clinical neuroscience, observed that this “very exciting [neurotoxicity] research” next needs “experimental intervention studies” to test the credibility of the findings. Telephone Interview with Professor Adrian Raine (Feb. 10, 1998) (notes on file with author).
63 Masters et al., Environmental Pollution, supra note 13, at 33.
64 Id.
65 Id.
66 Id. at 37.
67 Id.
68 For example, it may be important to correct calcium deficiencies, since calcium is key to blocking uptake of manganese. See Masters et al., Brain Biochemistry, supra note 13, at 172–73.
69 See id. at 171.
70 Id. at 171–72.
71 See id. at 172.
72 Id.
73 Masters et al., Brain Biochemistry, supra note 13, at 172.
74 See Masters, Environmental Pollution and Crime, supra note 13, at 359 & n.1 (citing source which concludes that, in addition to being the locus of neurochemical processes, the nature of the central nervous system is such that “moral and law abiding behavior needs to be seen as a skill”).
75 See Masters et al., Brain Biochemistry, supra note 13, at 171 (noting that “some people are particularly likely to engage in impulsive behavior after consuming alcohol or drugs. . . . If such a vulnerability can be reliably identified, we can hold such individuals responsible for avoiding alcoholic beverages and drugs, much as is now the case with repeat offenders for driving under the influence.”).
76 This refers, in particular, to general-intent offenses and offenses based upon Model Penal Code (MPC) standards of liability. See, e.g., Joshua Dressler, Understanding Criminal Law 305–07 (2d ed. 1995).
77 A major concern presented by such an argument is that such a prosecution would proceed on the assumption that such a defendant, who is likely to be poor and marginalized, would have the opportunity to learn about this research and any consequent obligations, and have the means to correct the problem.
78 See Masters, Environmental Pollution and Crime, supra note 13, at 359.
79 1 Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, 1916–1935, at 4–5 (Mark DeWolfe Howe ed., Harvard University Press 1953).
80 Clean Water Act, 33 U.S.C. §§ 1251–1377 (West 1999).
81 Clean Air Act, 42 U.S.C. §§ 7401–7671q (West 1999).
82 Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901–6992 (West 1999).
83 See generally Environmental Defense Fund, Legacy of Lead: America’s Continuing Epidemic of Childhood Lead Poisoning 19–20 (1990); Natural Resources Defense Council, The Lead Contamination Control Act: A Study in Non-Compliance (1991).
84 The delegation process is described in most standard environmental texts. Of course, state common law is also an important environmental enforcement tool. See, e.g., Robert V. Percival et al., Environmental Regulation: Law, Science and Policy 117–223 (2d ed. 1996).
85 See 33 U.S.C. § 1365.
86 BAT stands for “Best Available Technology Economically Achievable.” Olga L. Moya and Andrew L. Fono, Federal Environmental Law: The User’s Guide 356 (West).
87 See infra Section III.A.
88 Richard J. Lazarus, Mens Rea in Environmental Criminal Law: Reading Supreme Court Tea Leaves, 7 Fordham Envtl. L.J. 861, 879 (1996) (also citing the possibility of a liability standard confrontation under either RCRA or the CAA).
89 See 33 U.S.C. § 1319(c)(1).
90 See id. § 1319(c)(2).
91 See id. § 1319(c)(3). In addition, the CWA criminally punishes false statements, and “treatment of single operational upset.” Id. §§ 1319(c)(4), (5). This Article will not address these provisions since they are relatively less important than the others.
92 Id. § 1319(c)(1)(B).
93 See id. § 1319(c)(2).
94 See 33 U.S.C. § 1319(c)(2).
95 See generally United States v. Wilson, 133 F.3d 251 (4th Cir. 1997); United States v. Sinskey, 119 F.3d 712 (8th Cir. 1997).
96 See, e.g., Lazarus, supra note 88, at 864–67; see also Section II.A.1.b, infra.
97 33 U.S.C. § 1319(c)(3)(A). In each of the three statutes examined here, “serious bodily injury” is defined as “bodily injury which involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.” Id. § 1319(c)(3)(B)(iv); Resource Conservation and Recovery Act, 42 U.S.C. §§ 6928(f)(6), 7413(c)(5)(F) (West 1999).
98 See 33 U.S.C. § 1319 (c)(3)(B). Section 1319(c)(3)(B) provides, in relevant part:

[I]n determining whether a defendant who is an individual knew that his conduct placed another person in imminent danger of death or serious bodily injury—
(I) the person is responsible only for actual awareness or actual belief that he possessed; and
(II) knowledge possessed by a person other than the defendant but not by the defendant himself may not be attributed to the defendant;
Except that in proving the defendant’s possession of actual knowledge, circumstantial evidence may be used, including evidence that the defendant took affirmative steps to shield himself from relevant information. . . . [However] a defendant may establish an affirmative defense under this subparagraph by a preponderance of the evidence.
Id.
99 Id.
100 See id. § 1317(a) (authorizing EPA to publish a list of toxic pollutants subject to the CWA); see also 40 C.F.R. § 401.15 (West 1999) (setting forth the CWA’s list of toxic pollutants).
101 The kind of lawsuit envisioned here would be one using neurotoxicity data to prosecute facts similar to those establishing criminal liability in United States v. Wells Metal Finishing, Inc. See 922 F.2d 54, 56 (1st Cir. 1991). In Wells, a metal finishing plant was found to have released excess amounts of zinc and cyanide into a public sewer system, “vastly in excess of federal pretreatment limits.” Id. The appellate court refused to overturn defendant’s conviction in light of convincing evidence that “[t]oo much zinc and cyanide could kill beneficial microorganisms in the treatment plant and render its operations much less efficient and therefore much more costly.” Id. at 57. The First Circuit also noted that “excessive amounts of cyanide may mix with acidic sewer wastes to form highly lethal cyanide gas.” Id.
102 See supra notes 89–99 and accompanying text.
103 See generally Susan F. Mandiberg, The Dilemma of Mental State in Federal Regulatory Crimes: The Environmental Example, 25 Envtl. L. 1165 (1995) [hereinafter The Dilemma of Mental State]; Susan F. Mandiberg, Moral Issues in Environmental Crime, 7 Fordham Envtl. L.J. 881 (1996). See also generally Kevin A. Gaynor et al., Environmental Criminal Prosecutions: Simple Fixes for a Flawed System, 3 Vill. Envtl. L.J. 1, 4 (1992) (stating that “[g]iven the serious nature of the [environmental] crimes and penalties involved, the complexity of the laws, and the broad applicability of the federal environmental laws to American society; a higher level of culpability [than “knowing” violations] should be imposed, either as a matter of prosecutorial discretion or through statutory amendment.”); Richard J. Lazarus, Assimilating Environmental Protection Into Legal Rules and the Problem with Environmental Crime, 27 Loy. L.A. L. Rev. 867 (1994) [hereinafter Assimilating Environmental Protection]; Richard J. Lazarus, Meeting the Demands of Integration in the Evolution of Environmental Law: Reforming Environmental Criminal Law, 83 Geo. L.J. 2407 (1995) [hereinafter Meeting the Demands]; Lazarus, Mens Rea in Environmental Criminal Law: Reading Supreme Court Tea Leaves, supra note 88; Richard J. Lazarus, The Reality of Environmental Law in the Prosecution of Environmental Crimes: A Reply to the Department of Justice, 83 Geo. L.J. 2539 (1995); Lois J. Schiffer & James F. Simon, The Reality of Prosecuting Environmental Criminals: A Response to Professor Lazarus, 83 Geo. L.J. 2531 (1995).
104 Mandiberg, The Dilemma of Mental State, supra note 103, at 1167–68.
105 Id. at 1168.
106 See id. at 1205–06.
107 See id. at 1177–79.
108 See Lazarus, Meeting the Demands, supra note 103, at 2412. Lazarus is not alone in these concerns. See generally Michael Herz, Structures of Environmental Criminal Enforcement, 7 Fordham Envtl. L.J. 679 (1996) (examining differing enforcement priorities between the Department of Justice and the EPA).
109 See generally Mandiberg, The Dilemma of Mental State, supra note 103. One respect in which Lazarus may overstate his case is in his view of criminal law as essentially static, as when he observes that one of the fundamental differences between criminal and environmental law is that “[c]riminal law emphasizes settled norms, while environmental law constantly changes and aspires for fundamental and dramatic change.” Id. at 2445. See also Lazarus, Assimilating Environmental Protection, supra note 103, at 879–85. What Lazarus clearly overlooks, however, is that criminal law can be equally dynamic and unsettled. Examples of this include the criminalization of activities like “date rape,” “stalking,” and others that were not traditionally viewed as criminal behavior. For an overview of the emergence of activities not previously subject to criminal prosecution, see Sanford Kadish, Fifty Years of Criminal Law: An Opinionated Review, 87 Cal. L. Rev. 943, 975–78 (1999) (discussing the impact of feminism on the criminal law). Notable examples include the de-criminalization of consensual sodomy. See, e.g., Lesbians, Gay Men, and the Law 87–88 (1993) (noting that “[a]s of 1961, all fifty states in the United States still had some sort of sodomy laws on their books. Today, fewer than half the states do.”(citation omitted)). A more recent example is the effort to de-criminalize marijuana use for medical purposes. See, e.g., Ethan A. Nadelmann, New Approach to Drugs That’s Grounded Not in Ignorance or Fear But Common Sense, Chi. Trib., Oct. 10, 1999, at C23 (advocating decriminalization for medical marijuana). But see Reno Opposes Medical Marijuana Initiatives, The White House Bull., Oct. 7, 1999 (stating official White House view against such efforts, “until or unless scientists or medical experts find specific medicinal properties unique to marijuana”) (LEXIS, News Library, Curnws File).
110 In fact, congressional amendment may be understood to reflect the MPC’s conceptual clarifications. As the Eighth Circuit noted in United States v. Sinskey:
In 1987, Congress amended the act [33 U.S.C. Sec. 1319 (c)(2)(A)] in part to increase deterrence by strengthening the criminal sanctions for its violation. See, e.g., H.R. Conf. Rep. No. 99–1104, at 138 (1986) and S. Rep. No. 99–50, at 29–30 (1985). To that end, Congress changed the term “willfully” to “knowingly” in that section of the act dealing with intentional violations. See 133 Cong. Rec. H131 (daily ed. Jan. 7, 1987) (statement of Rep. J. Howard), reprinted in 1987 U.S.C.C.A.N. 5, 28, and 33 U.S.C. § 1319, historical and statutory notes, 1987 amendment, at 197 (West Supp. 1997). Although Congress did not explicitly discuss this change, it may logically be viewed as an effort to reduce the mens rea necessary for a conviction, as the word “willfully” generally connotes acting with the knowledge that one’s conduct violates the law, while the word “knowingly” normally means acting with an awareness of one’s actions.
119 F.3d 712, 716 (8th Cir. 1997).
Sanford Kadish recently called the promulgation of the MPC “[t]he event of looming significance this past half-century in the field of criminal law.” Sanford Kadish & Stephen Schulhofer, Criminal Law and its Processes: Cases and Materials 946, 947–53 (5th ed. 1989).
111 That is to say, for example, that while most would agree that the life-harming release of cadmium merits criminal conviction, few would support an end to manufacture of long-life cadmium batteries.
112 See Section III.A., infra.
113 See Lazarus, Meeting the Demands, supra note 103, at 2412; Mandiberg, The Dilemma of Mental State, supra note 103, at 1167–68.
114 See Mandiberg, The Dilemma of Mental State, supra note 103, at 1170–76 (discussing inconsistent approaches as to what might be proved to establish a scienter requirement under RCRA and the Migratory Bird Treaty Act, 16 U.S.C. §§ 703–712 (1994)).
115 See id. at 1201–02 (discussing Staples v. United States, 511 U.S. 600 (1994), a prosecution under the National Firearms Act, 26 U.S.C. §§ 5801–5872 (1988)). Like the CWA, the statute at issue in Staples did not speak to mental state (“[s]ilence on this point by itself does not necessarily suggest that Congress intended to dispense with a conventional mens rea element”). See Staples, 511 U.S. at 605.
116 Mandiberg, supra note 103, at 1203.
117 See id. at 1204–15.
118 See id.
119 Id. at 1206.
120 Kadish & Schulhofer, supra note 110, at 230.
121 Mandiberg, The Dilemma of Mental State, supra note 103, at 1206 (citing, inter alia, Kadish & Schulhofer, supra note 110; Dressler, supra note 76, at 109–10).
122 See, e.g., N.Y. Penal Law § 140.25 (West 1999); Cal. Penal Code §§ 459–460 (West 1999).
123 Dressler, supra note 76, at 118 (citations omitted) (ellipses and bracketed text in the original). See id. at 102–03 (quoting various authorities on the ambiguity of the term mens rea). See also supra note 67 and accompanying text.
124 Mandiberg, The Dilemma of Mental State, supra note 103, at 1210. “Perhaps” Mandiberg muses, “‘public welfare offenses’ are the ‘general intent’ crimes of the modern era.” Id.
125 Id. at 1220.
126 Id.
127 Cf. United States v. International Minerals & Chem. Corp., 402 U.S. 558 (1971) (transport of dangerous chemicals). As Mandiberg notes, the jurisprudential basis of the “uncommon” requirement is unclear. Her observation is accepted for purposes of this Article, although it merits further consideration. For a discussion of the requirement, see Mandiberg, The Dilemma of Mental State, supra note 103, at 1212–13.
128 Mandiberg, The Dilemma of Mental State, supra note 103, at 1215.
129 See generally 1 F.3d 1523 (9th Cir. 1993).
130 See, e.g., Kevin P. Cichetti, United States v. Weitzenhoff: Reading out the “Knowingly” from the “Knowingly Violates” in the Clean Water Act, 9 Admin. L.J. Am. U. 1, 183 (1996); Richard G. Cohn-Lee, Mens Rea and Permit Interpretation Under the Clean Water Act: United States v. Weitzenhoff, 24 Envtl. L. 1351, 1354-57 (1994) (arguing that Weitzenhoff correctly applied the CWA as a “general intent” statute by placing the burden to resolve permit ambiguities on the permittee); Katherine H. Setness, Statutory Interpretation of Clean Water Act Section 1319(c)(2)(A)’s Knowledge Requirement: Reconciling the Needs of Environmental and Criminal Law, 23 Ecology L.Q. 447, 450 (1996) (criticizing Weitzenhoff’s analysis) [hereinafter Statutory Interpretation of Clean Water Act Section 1319(c)(2)(A)’s Knowledge Requirement]; Kepten D. Carmichael, Note, Strict Criminal Liability for Environmental Violations: A Need for Judicial Restraint, 71 Ind. L.J. 729, 731, 748–52 (1996) (criticizing Weitzenhoff’s “public welfare” reading of the CWA as an example of de facto strict liability and its “intolerable implications” for environmental regulatory violations); Michael J. Penders, Innocents at Risk? The Rhetoric and Reality of Environmental Criminal Enforcement, 2 Envtl. L. 835, 841 (1996) (book review) (discussing the Weitzenhoff court’s interpretation of the CWA as a “public welfare” statute). See generally Ruth Ann Wendell et al., Erosion of Mens Rea in Environmental Criminal Prosecution, 21 Seton Hall L. Rev. 1100 (1991).
131 See 1 F.3d at 1527–28 n.1.
132 Id. at 1529.
133 Id. Curiously, the Ninth Circuit did not specify the “certain other criminal statutes” to which it referred. See id.
134 Id.
135 The Weitzenhoff court thus analogized the CWA to federal statutes concerning the transport of corrosive liquids, management of hazardous wastes, drug shipments, and use of firearms. The court thus cited, respectively, United States v. International Minerals & Chem. Corp., 402 U.S. 558 (1971) (dealing with the transport of corrosive liquids); United States v. Hoflin, 880 F.2d 1033 (9th Cir. 1989) (holding that knowledge of absence of a permit is not required for a RCRA violation); United States v. Dotterweich, 320 U.S. 277 (1943) (construing the Food, Drug and Cosmetic Act); and United States v. Sherbondy, 865 F.2d 996 (9th Cir. 1988) (stating that proof that defendant knew she/he was violating law was not required to establish violation of the Firearms Owners’ Protection Act). See Weitzenhoff, 1 F.3d at 1530. These public welfare cases are sometimes called “strict criminal liability” offenses. For a discussion of these cases, their history, and the development of criminal liability standards in the environmental law context, see Christopher Harris et al., Environmental Crimes §§ 5.03–.06 (1992).
It is central to the argument advanced in this Article to recognize that this “public welfare” reading has been applied not only in the context of the CWA, but in cases involving other federal environmental statutes as well. For instance, in the seminal RCRA case of United States v. Johnson & Towers, Inc., 741 F.2d 662 (3d Cir. 1984), the Third Circuit considered whether RCRA’s knowing violation section, 42 U.S.C. § 6928(d)(2)(A), “covers employees as well as owners and operators of a facility” that violated its RCRA permit. Johnson & Towers, 741 F.2d at 664. Examining both the statutory language and RCRA’s legislative history, the court held, however, that:
it is well established that criminal penalties attached to regulatory statutes intended to protect public health, in contrast to statutes based on common law crimes, are to be construed to effectuate the regulatory purpose. . . . It would undercut the purposes of the legislation to limit the class of potential defendants to owners and operators when others also bear responsibility for handling regulated materials.
Id. at 665–66 (emphasis added and citations omitted).
Although Johnson & Towers is a RCRA case, the similar structure of the “knowing” language means that this point applies with equal force to other federal environmental criminal provisions like that of the CWA.
136 See 35 F.3d 1275, 1282 (9th Cir. 1993).
137 See id.; see generally 471 U.S. 419 (1985).
138 See Liparota, 471 U.S. at 433.
139 Weitzenhoff, 1 F.3d at 1530 (citations to legislative history omitted).
140 Lazarus, Meeting the Demands, supra note 103, at 2529. But see Schiffer & Simon, supra note 103, at 2532; cf. Lazarus, The Reality of Environmental Law in the Prosecution of Environmental Crimes, supra note 103, at 2541–43.
141 Lazarus, Meeting the Demands, supra note 103, at 2472. For Lazarus’s critique of the application of the public welfare doctrine, see id. at 2472–84.
142 See, e.g., Gaynor et al., supra note 103, at 17–18 (“The government often tries to water down the knowledge standard by attempting to impose, through jury instructions, an objective standard on the mens rea requirement, that is, to hold the defendant liable for factual knowledge she should have had, rather than only for that she actually possessed. However, it has been generally held that when a statute penalizes an act performed ‘knowingly’ there must be actual knowledge of the circumstances. . . . [T]he government should not be able to argue that a person should have known for example, that the waste was hazardous, she should only be held liable if her subjective belief was that the waste was hazardous.”) (citing non-environmental cases; citations omitted); Setness, Statutory Interpretation of Clean Water Act Section 1319(c)(2)(A)’s Knowledge Requirement, supra note 130, at 459 (“Courts employ the [“public welfare” offense] doctrine to reduce or eliminate the criminal law’s general requirement of mens rea”).
143 See supra notes 100–01 and accompanying text.
144 Moreover, there is a solid basis for doing so in light of the more exacting standards applied by other federal environmental statutes. For example, “liability under CERCLA attaches regardless of the concentration of hazardous substances present in a defendant’s waste, so long as the defendant’s waste and/or contaminants in it are ‘listed hazardous substances’ pursuant to 40 C.F.R. § 302.4(a). Numerous courts have [so] held.” City of New York v. Exxon Corp., 744 F. Supp. 474, 483 (S.D.N.Y. 1990).
145 See generally Sheldon M. Novick, Racial Images of the “Criminal”: A Cognitive Disorder, 22 Vt. L. Rev. 383 (1997); Joan Vogel, Biological Theories of Human Behavior: Admonitions of a Skeptic, 22 Vt. L. Rev. 425 (1997). Dr. Peter Breggin, a leading opponent of the use of behavior-modifying psychotrophic drugs like Prozac and Ritalin, also opposes biological explanations for behavior, which he characterizes as borne of “a long tradition that is potentially racist, . . . disabling and humiliating to inner city youth.” Telephone Interview with Dr. Peter Breggin (Jan. 1, 1998).
146 The celebrated political scientist James Q. Wilson, after reviewing what he sees as the growing tension between science and law—or the conflict between explaining and identifying causation versus judging behavior—concludes as follows:
[I]t is important that we let neither science nor compassion decide legal precepts. We [social scientists] want to explain, the law seeks to judge; we want to see the world in shades of gray, the law defines it in black and white. We wish verdicts to encompass the full range of human circumstances, but the law can range only so widely before losing its power to focus our often diffuse sense of self-control. In extreme cases, where the law clearly does not fit, juries may nullify and judges may forgive, but only within the steady, lasting confines of a moral and legal order.
James Q. Wilson, Moral Judgment: Does the Abuse Excuse Threaten our Legal System? 112 (1997). See also Joel Best, Random Violence: How We Talk About Crimes and New Victims 93–141 (1990). A considerably less restrained examination of the culture of victimhood appears in Alan M. Dershowitz, The Abuse Excuse and Other Cop-Outs, Sob Stories, and Evasions of Responsibility (1994). C. Ray Jeffery criticizes traditional criminology for working on the basis of a medieval tradition of revenge and deterrence through punishment and prisons rather than incorporating biosocial evidence. See generally Jeffery, Criminology and Criminal Law, supra note 8.
147 This is not a problem, it again deserves emphasizing, limited to the CWA. The same concerns would arise with respect to RCRA. See, e.g., United States v. Hayes Int’l Corp., 786 F.2d 1499, 1503 (11th Cir. 1986) (stating that “in a prosecution under 42 U.S.C. Sec. 6928(d)(1) it would be no defense to claim no knowledge that the paint waste was a hazardous waste within the meaning of the regulations; nor would it be a defense to argue ignorance of the permit requirement”); United States v. Sellers, 926 F.2d 410, 416 (5th Cir. 1991) (noting that “when a person knowingly possesses an instrumentality which by its nature is potentially dangerous, he is imputed with the knowledge that it may be regulated by public health legislation [such as 42 U.S.C. Sec. 6928].”); United States v. Laughlin, 768 F. Supp. 957, 966 (N.D.N.Y. 1991) (stating that “based upon the overall structure of section 6928(d)(2), Congress’ objective in enacting RCRA of protecting public health and the environment, and applicable principles of statutory construction, the court holds that the government is not required to prove that defendants in this case knew that a permit was required by law nor that they knew that [defendant] did not have a permit in order to prove that defendants violated section 6928(d)(2)(A)”), aff’d, 10 F.3d 961, 963–64 (2d Cir. 1993). But cf. United States v. Speach, 968 F.2d 795, 797 (9th Cir., 1992) (holding that, in light of ambiguity of “knowing” requirement with respect to 42 U.S.C. section 6928(d)(1), finding mens rea “element conspicuously absent” with respect to transport of hazardous materials to an unpermitted facility).
148 See, e.g., 33 U.S.C. § 1319(b), (d) (West 1999). See also Natural Resources Defense Council v. Train, 8 ERC 2120, 6 Envtl. L. Rep. 20588 (D.D.C. 1976) (deciding a citizen suit against EPA for failure to implement technology-based effluent limitations for toxic substances led to requirement that EPA issue such limitations).
149 It seems likely that this could happen. For example, in early 1999, EPA sought to tighten the “reporting requirements for persistent bioaccumulative toxic [PBT] chemicals” and “lowering the threshold for certain PBT pollutants and adding others to the list of chemicals for which TRI reports must be filed.” Sara Thurin Rollin, Toxic Pollutants: Environmental Groups Call for Stricter Reporting to TRI for Persistent Chemicals, 29 Env’t Rep. (BNA) 2086 (1999) (noting also that “environmental advocates faulted EPA’s failure to include lead and cadmium on the list of PBT substances subject to reporting”).
For data gathered in support of the neurotoxicity hypothesis to have any bite would likely require revision of the effluent standards for each of the toxic heavy metals implicated by the hypothesis. At present, the permissible effluent limitations vary considerably, depending on the nature of the activity. Cf., e.g., 40 C.F.R. § 420.100 (West 1999) (allowing lead discharges into publicly-owned treatment works to as much as 0.000751 kg/kkg); 40 C.F.R. § 41.67(g) (West 1999) (stating that BPT [best practicable control technology] effluent limitations for hard lead refining slag granulation allows no lead discharge). These effluent limitations are arrived at, of course, only after often lengthy review and comment. The data supporting the neurotoxicity hypothesis suggest, however, that established effluent limitations do not prevent lead poisoning sufficient to remove a co-factor for violent behavior: “[a]lthough the effects of early exposure to low levels of lead are often described as subclinical, the evidence for serious cognitive defects is well established.” Masters et al., Brain Biochemistry, supra note 13, at 157. That is, “low” lead levels may still be toxic in combination with other variables such as poor diet and drug use. Thus, even though mean blood lead levels decreased seventy-seven percent between 1976 and 1991, “many thousands of children continue to have toxic lead burdens, especially in minority communities.” Needleman et al., supra note 30, at 363. In part, it is fair to assume, this is because lead has not been satisfactorily removed from public water supplies:
Although regulation of leaded gas and paint may have reduced exposure to solid or aerosol forms of lead, the presence of lead in water—a likely vector influencing neonates and infants in inner cities and aging housing—has not disappeared. . . . Even in modern multi-story buildings, water supplies in the upper floors may be particularly high in lead.
Masters et al., Brain Biochemistry, supra note 13, at 157–58 (references omitted). It is easy to imagine a lawsuit in which, for example, private interests would sue to compel the EPA to include subclinical levels of lead and other toxic, heavy metals to be listed as national effluent standards, requiring EPA to comply with its mandate under the CWA to protect the integrity of the nation’s waterways. The argument would be straightforward: these levels have demonstrably been shown to compromise human health and therefore require stricter regulation. Following revision of such standards, it is equally possible to imagine violations of the new standards and resulting lawsuits.
150 33 U.S.C. § 1319(b).
151 See generally Washington Pub. Interest Research Group v. Pendleton Woolen Mills, 11 F.3d 883 (9th Cir. 1993) (allowing a citizen suit even when EPA administrative compliance order had also been issued).
152 See United States v. Curtis, 988 F.2d 946, 948 (Alaska 1993).
153 See generally United States v. Brittain, 931 F.2d 1413 (10th Cir. 1991).
154 See generally United States v. Dee, 912 F.2d 741 (4th Cir. 1990). In Dee, the civilian employees of the U.S. Army, assigned to the Chemical Research, Development, and Engineering Center at the Aberdeen Proving Ground in Maryland were charged for non-compliance with certain RCRA waste reporting requirements. Defendants attempted to assert that, as government employees, they were protected by sovereign immunity. However, the Fourth Circuit held that “sovereign immunity does not attach to individual government employees so as to immunize them from prosecution for their criminal acts.” Id. at 744.
155 This approach contrasts, for example, with the approach of an otherwise quite similar statute, the CAA, which aims instead to control “a diversity of sources of air pollution within regional airsheds.” Robert W. Adler, Integrated Approaches to Water Pollution: Lessons from the Clean Air Act, 23 Harv. Envtl. L. Rev. 203, 207 (1999).
156 Cf. Thomas A. Cinti, Note, The Regulator’s Dilemma: Should Best Available Technology or Cost Benefit Analysis Be Used to Determine the Applicable Hazardous Waste Treatment, Storage, and Disposal Technology?, 16 Rutgers Computer & Tech. L.J. 145, 158–63 (1990) (cataloguing criticisms of BAT as inefficient); John D. Graham, The Failure of Agency-Forcing: The Regulation of Airborne Carcinogens Under Section 112 of the Clean Air Act, 1985 Duke L.J. 138–40 (1985) (criticizing BAT in the context of the CAA as inefficient). Graham argues that “[t]here is never really a ‘best’ available technology; there are only progressively more stringent and expensive abatement methods.” Graham, supra, at 138–40.
157 Remember that this is only true if citizen-plaintiffs allege “a state of continuous or intermittent violation—that is a reasonable likelihood that a past polluter will continue to pollute in the future.” In other words, “citizen suits for ‘wholly past violations’ are not permitted under [Section 505] of the [CWA].” Massachusetts Pub. Interest Group v. ICI Americas, Inc., 777 F. Supp. 1032, 1034 (D. Mass. 1991) (citations omitted) (quoting Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 57, 64 (1987)).
158 See generally 1999 WL 124473 (E.D. Pa. 1999) (slip op.). “L.E.A.D.” stands for Local Environmental Awareness Development.
159 See generally id.
160 See 504 U.S. 555, 560–61 (1992).
161 See id.; L.E.A.D., 1999 WL 124473, at *12.
162 See L.E.A.D., 1999 WL 124473, at *12.
163 The court continued: “[w]e hardly see the difference . . . [e]ven if such violations are episodic; they have continued and there is no guarantee that they will cease.” Id. at *19.
164 In support of this conclusion, the Court relied on the Powell Duffryn test, which provides that an organization may be sued so long as “(1) the organization’s members would have standing to sue on their own; (2) the interests that the organization seeks to protect are germane to its purpose; and (3) neither the claim asserted nor the relief requested requires individual participation by its members.” Id. at *20 (citing Public Interest Research Group of N.J., Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 70 (3d Cir. 1990)).
165 Model Penal Code § 2.02 (1980). Joshua Dressler observes that “[n]o aspect of the Model Penal Code has had greater influence on the direction of American criminal law” than this section. Dressler, supra note 76, at 120.
166 Dressler, supra note 76, at 103.
167 Id. (quotations without citations in original).
168 The others are “purposely,” “recklessly,” and “negligently.” See Model Penal Code § 2.02.
169 As of 1990, it does, however, define “knowing endangerment,” a separate criminal offense from “knowing violations.” See 33 U.S.C. § 1319(3)(B)(i) (West 1999).
170 Model Penal Code § 2.02(2)(b)(ii).
171 In the case of environmental lead, this would not be particularly difficult to establish. See supra notes 27–31 and accompanying text.
172 Model Penal Code § 2.02(2)(b)(i).
173 See Dressler, supra note 76, at 122.
174 See generally United States v. Weitzenhoff, 1 F.3d 1523 (9th Cir. 1993).
175 See Dressler, supra note 76, at 110.
176 Cf. id. at 109–10.
177 Id. at 110 (citing cases from the Fifth and Ninth federal circuits and from the Nebraska and North Carolina Supreme Courts); see also Eric A. Dubelier, Mens Rea Element in the Prosecution of Export Control Cases After Ratlaf v. United States, 733 PLI/Comm. 791, 817 (Practicing Law Inst., Oct. 2, 1995) (discussing Weitzenhoff, 1 F.3d at 1523).
178 See supra notes 104–06 and accompanying text.
179 See supra notes 108–09 and accompanying text.
180 See generally 929 F.2d 35 (1st Cir. 1991).
181 See id. at 37.
182 See id. at 38.
183 Id. at 39.
184 Id.
185 See Boldt, 929 F.2d at 40.
186 Model Penal Code § 2.02(2)(b)(ii) (1980).
187 Id. § 2.02(2)(b)(i).
188 See generally 931 F.2d 1413 (10th Cir. 1991).
189 See id. at 1418; see also Lazarus, Meeting the Demands, supra note 103, at 2454 (discussing the implications of a “willful” as opposed to a “knowing” environmental crime). But see Schiffer & Simon, supra note 103, at 2531, 2536 (questioning Lazarus’s view).
190 Brittain, 931 F.2d at 1418.
191 Model Penal Code § 2.02(2)(b)(ii).
192 Brittain, 931 F.2d at 1420.
193 That is, the key questions asked to determine if a defendant had the requisite “special” intent are removed.
194 See generally United States v. Weitzenhoff, 1 F.3d 1523 (9th Cir. 1993).
195 See generally 741 F.2d 662 (3d Cir. 1984). Although Johnson & Towers is a RCRA case, the similar structure of the “knowing” language means that this point applies with equal force to other federal environmental criminal provisions like that of the CWA. See generally id.
196 Id. at 670. It seems likely that mere position in an organization is likely not enough to infer knowledge; rather, some amount of intent probably need be shown. See, e.g., United States v. MacDonald & Watson Waste Oil Co., 933 F.2d 35, 40–56 (1st Cir. 1991); Harris et al., supra note 135, § 5.08.
197 See supra note 28 and accompanying text.
198 This is not to say that, even if federal environmental criminal liability standards are made less ambiguous, that no problems are likely to arise. This is likely to be especially true in instances in which convictions are sought despite the defendant’s lack of knowledge about having committed a legal violation. For example, in the above hypothetical, suppose that in light of increased contamination to a public waterway, the facility was ordered to cut its discharge of toxics-contaminated waste in half. Suppose that, as in the case of California Public Interest Research Group v. Shell Oil Co., 840 F. Supp. 712 (N.D. Cal. 1993) (which, it should be noted, involved only civil violations of the CWA), the EPA permit revised the facility’s discharge of combined lead and cadmium waste to ten pounds per day, such limits “intended to be a cap on current performance.” Further assume that the facility admits that it was in violation of the ten pounds per day standard, but claims that it cannot be liable for a knowing violation unless both the numeric standard and the “narrative” standard—meaning the language referring to the cap on current performance—are exceeded. This is because, the defendant facility maintains, the revised permit allows for liability “only if there is a change in its ‘current performance’ or operations.” Id. at 716. Notwithstanding the lawyerly quality of such a contention, it is fair to observe that, even under MPC standards, a defendant might well have doubted whether she/he was in violation of a permit so long as ambiguity existed in the terms of the permit, and therefore would maintain that no “knowing” violation occurred, despite knowing that the discharged substances were of concern as possible health threats. A solution to such a concern may be more careful drafting of unambiguous permits. The facts of Shell Oil suggest that this will be especially important as the neurotoxicity hypothesis is further supported, in light of the probability that it will result in increased criminal environmental prosecutions, or at least the possibility of them. See id.
199 See supra notes 24–27 and accompanying text.