[*PG341]CRIMINAL PENALTIES FOR CREATING A TOXIC ENVIRONMENT: MENS REA, ENVIRONMENTAL CRIMINAL LIABILITY STANDARDS, AND THE NEUROTOXICITY HYPOTHESIS
Recent research in brain biochemistry examining the likely neurological effects of exposure to toxic contaminants continues to demand legal consideration. In this Article, Professor Crawford evaluates the possible consequences of recent neurobiological studies—labeled “The Neurotoxicity Hypothesis” by researchers—for lawyers and the legal system. After summarizing the research, Professor Crawford suggests that as this (or similar) neurobiological research gains increased scientific acceptance, it will be necessary to reduce dramatically the acceptable levels of these toxic elements that can be discharged into the environment. He then examines the implications of such a result for establishing criminal liability under federal environmental statutes, focusing on the criminal liability provisions of the Federal Water Pollution Control Act.
Throughout the 1990s, American politicians and bureaucrats engaged in a sustained and self-congratulatory celebration of the decline in the nation’s violent crime rate.1 New York’s mayor, Rudolph Giuliani, proudly declared upon his 1997 re-election that, as a result [*PG342]of his administration’s anti-crime efforts, “[m]illions have been liberated from the reality and fear of crime.”2 Mayor Giuliani is not alone in taking credit for the much ballyhooed reduction in the United States’s violent crime rates.3 Yet it is worth remembering that more sober assessments of the decline in crime rates have been uncertain as to the exact causes.4 Furthermore, new research suggests that Mayor Giuliani and his compatriots around the country may not deserve much of the credit they are taking for the decline in violent crime rates. This research, labeled “the Neurotoxicity Hypothesis” by its progenitors,5 suggests that the long-term benefits of more stringent environmental laws and regulations (and specifically the passage of the lead control laws of the early 1970s),6 may have played a key role [*PG343]in the reductions in violent criminal behavior that have been registered in this decade. Research into the Neurotoxicity Hypothesis further raises the possibility that the most trumpeted aspects of late 20th century criminal law enforcement—more beat cops, “three strikes” sentencing, and accelerated use of the death penalty—may not have the deterrent effects on criminal activity claimed by their advocates.7 On the contrary, if conclusively established, the Neurotoxicity Hypothesis will force reconsideration of the dominant causal explanations for violent crime.
Simply put, the hypothesis suggests that certain environmental stimulae should be viewed as significant co-factors that likely contribute to violent criminal behavior. The consequences of the hypothesis for regulation of criminal behavior are, however, anything but simple.
Prevailing notions of criminology tend to rely upon social development models that pay “a great deal of attention to social setting and social learning, with special attention to groups rather than individuals.”8 The Neurotoxicity Hypothesis complicates this picture considerably, and in at least two respects. First, the Neurotoxicity Hypothesis [*PG344]will require expanding the field of analysis. That is, although the hypothesis does not discount the importance of social setting and social learning, it does demand that the field of inquiry be broadened considerably, so that students of criminal behavior consider not merely social stimulae—such as poverty, poor nutrition, and unhealthy living conditions—but also neurological functions. Furthermore, integrating biochemical information into assessments of criminal behavior will require distinguishing between individuals rather than just looking at criminals as a group. It will also require lawyers to draw upon not merely sociological data, but also to learn from biology and neurochemistry.
This Article will identify areas of concern for lawyers and judges in light of the Neurotoxicity Hypothesis. It proceeds on the assumption that ongoing neuroscience research demands lawyers’ attention. As data supporting the Neurotoxicity Hypothesis continues to accumulate and gain wider acceptance, this research seems likely to affect the future content and administration not only of U.S. criminal law, but also of U.S. environmental law. Those better situated to do so have already begun to limn the outlines of an affirmative criminal defense in light of neurotoxic contamination.9 In what follows, my aim— as an environmental lawyer—is somewhat different. I offer a preliminary exploration of the consequences of the Neurotoxicity Hypothesis for U.S. environmental law.10 The Article is divided into three main [*PG345]parts. Part I will more fully describe the Neurotoxicity Hypothesis and related research in brain biochemistry. Part I will also emphasize aspects of the Neurotoxicity Hypothesis likely to prove relevant for U.S. law, focusing in particular on mens rea and standards of liability.
Part II is the heart of the Article and, as such, it merits discussion in outline form here. The law need not only consider the mens rea of individuals who commit violent crimes due to neurotoxicity, but also of those who create the toxic conditions that result in neurotoxicity. As a result, Part II concentrates on the criminal enforcement features of federal environmental statutes as they relate to the evidence in support of the Neurotoxicity Hypothesis. Part II will identify those respects in which the criminal provisions in federal environmental laws are ill-equipped to respond to the increasingly convincing evidence presented by the Neurotoxicity Hypothesis. This is especially true given continuing concern in the courts and among legal commentators that the standards used to enforce federal environmental laws, especially criminal provisions, are ambiguous. Part II argues that this is largely because courts and commentators continue to differ about the proper standard of liability for regulatory crimes.11
Part II further suggests that unless the liability standards in the major federal environmental law statutes are reconsidered in light of this neurotoxicity research, the credibility and widespread acceptance of criminal enforcement of U.S. environmental laws could be seriously compromised.12 Neurotoxicity research will, once further con-firmed, almost certainly compel the relevant environmental regulatory authority to lower, perhaps significantly, the acceptable levels of toxic metals able to be discharged into the environment. Presumably, [*PG346]therefore, ever larger numbers of individuals could become directly subject to possible criminal liability for violation of those statutes. Inasmuch as courts have widely divergent readings of the proper interpretation of the liability provisions of those statutes, wildly inconsistent results are not only possible but likely. Such a result would severely compromise the integrity of and erode confidence in the environmental enforcement arm of the legal system.
Part II briefly concludes by considering the implications of the Neurotoxicity Hypothesis for civil liability under federal environmental standards, and indicates the relevance of the interpretation of civil standards for criminal environmental liability. Part III looks to solutions, and will briefly outline ways in which U.S. laws—in particular federal criminal environmental laws—might be reformulated to take account of the research undertaken in light of the Neurotoxicity Hypothesis.
On its face, the Neurotoxicity Hypothesis is elegant in its simplicity. The Neurotoxicity Hypothesis holds that biochemical imbalances in heavy metals and other elemental toxins may contribute significantly to anti-social behavior by disrupting the normal functioning of a person’s brain biochemistry. In particular, research on the Neurotoxicity Hypothesis has focused on uptake of lead, manganese, cadmium and certain fluoride compounds.13 At the outset, however, it is crucial to understand that the Neurotoxicity Hypothesis is anything [*PG347]but reductive. That is, it does not contend that exposure to heavy metals single-handedly creates criminals. On the contrary, the hypothesis focuses on individual brain biochemistry, as influenced by both individual genetic makeup and environmental exposure, as well as other social conditions.14 Consequently, a key aspect of the Neurotoxicity Hypothesis is the recognition that factors such as diet, alcohol, and drug use play a role in permitting the speedier absorption of heavy metals into an individual’s system.15 In short, advocates of the hypothesis stress that neurotoxicity should not be understood as the determining variable for predicting violent behavior. Instead, they make it clear that neurotoxicity is just one among many causes, “at most functioning as a catalyst which, in addition to poverty, social stress, alcohol or drug abuse, individual character, and other social factors, increases the likelihood that an individual will commit a violent crime.”16
It is not the place of this Article to defend the science that undergirds the Neurotoxicity Hypothesis, but it is necessary to explain the basic premises underlying the hypothesis. Specifically, the Neurotoxicity Hypothesis looks at two kinds of environmental toxicity: direct and indirect. Direct toxicity refers to demonstrable exposure to a toxic element, with detectable (and undesirable) consequences. An example of direct toxicity would be childhood lead poisoning as a consequence of ingesting lead paint, with resulting abnormal brain development.17 By contrast, indirect—or subclinical—toxicity looks, for instance, at “[c]hanges in brain biochemistry that are not at first obviously associated with environmental pollution [but] can have significant effects on behavior.”18 Thus, for example, exposure to subclinical levels of certain toxic elements might disrupt normal neurotransmitter function.19 The neurotransmitters serotonin and dopa[*PG348]mine are essential to “impulse control and planning.”20 Evidence suggests that neurotoxic metals (notably manganese) can lower levels of these key neurotransmitters,21 thereby making it possible for an individual’s neurotoxic exposure to result in violent activity.
The hypothesis concludes “that ecological factors such as environmental pollution have effects that appear to be genetic (and, indeed, may be associated with a genetically based vulnerability to toxicity that is quite distinct from a gene for intelligence).”22 This might mean, for example, that twin children exposed to the same levels of environmental toxins from birth might be differently affected by that exposure, depending on their individual genetic makeup.23 This aspect of the hypothesis has raised concern regarding its potential use to support eugenic ends. Critics of this sort of research might contend, for example, that identification of a “gene” for toxicity vulnerability could be used to justify discrimination against such persons (or worse) if it was also shown that individuals with that vulnerability were more likely than others to commit violent crimes.24 This criticism is of [*PG349]special concern in light of neurotoxicity research suggesting that some racial and ethnic groups may, because of their diet and racially-linked characteristics, be more vulnerable than others to environmental toxins.25 The response of neurotoxicity researchers is that these differences highlight the need to act in light of evidence of neurotoxic contamination.26 Nonetheless, the concern that this will lead to profiling of particular social groups—and above all racial profiling—is sure to remain a flashpoint as the relevance of this research continues to be debated.27
[*PG350] Assuming that the Neurotoxicity Hypothesis correctly identifies a contributing factor to criminal behavior, it begs the question of solutions. In this respect, advocates of the hypothesis stress that potential solutions are relatively simple and inexpensive compared to the costs of other forms of criminal enforcement, such as incarceration. Neurotoxicity researchers conclude, for example, that health and nutrition are key in preventing violent, anti-social behavior. For instance, “[d]ietary deficiencies, especially in calcium and other basic vitamins and minerals, can be overcome,” possibly correcting the anti-social behavior caused by exposure to toxic elements.28
“To be plausible, the Neurotoxicity Hypothesis requires the identification of precise biochemical mechanisms underlying correlations between individual concentrations of toxic metals and violent behavior.”29 To date, neurotoxicity research has focused on the dangers presented by four toxic heavy metals in particular. Before exploring the legal implications of the hypothesis, it is useful to review the elemental toxins on which this research has concentrated.30
The knowledge of the toxicity of elemental lead is ancient and well-documented.31 Despite the fact that lead reduction must be recognized as one of this country’s greatest environmental regulatory successes,32 the presence of lead in water (from deteriorating plumbing), urban soil, and the wall paint of aging housing stock has not disappeared.33 Much of the research on lead poisoning, however, has [*PG351]focused on its adverse effects on the entire body—particularly on nervous system damage34—and not on brain lead levels in particular. Even at so-called subclinical levels, neurotoxicity research suggests, lead can have serious adverse consequences as a cause of violent behavior.35 Of particular seriousness is the fact that infants and children absorb lead at much higher levels than do adults, causing “neuronal damage during early development, resulting in lasting cognitive and behavioral deficits associated with prolonged exposure to even very low doses.”36 Moreover, “[t]he highest levels of lead uptake are reported for males and blacks—i.e. those who are most likely to commit violent crimes.”37
Manganese, the metal alloyed with steel to give it toughness and durability, can “produce highly complex toxic effects” such as lowering the brain levels of neurotransmitters essential to behavior control, such as serotonin, norepinephrine, and dopamine.38 Because “abnormal levels of the neurotransmitter serotonin are associated with mood disturbances, poor impulse control, and increases in aggressive behavior . . . it has been hypothesized that manganese uptake in the brain lowers the levels or activity of dopamine and serotonin, leading to loss of impulse control, violence, and even heart disease.”39
Insofar as scientists have documented the possibility that heavy metals like lead and manganese may disturb brain function, it seems likely that “hitherto unsuspected toxins may act in addition to or in combination with lead and manganese.”40 Of special concern are elements that may be associated with violent behavior, notably chromium, cadmium, and sodium.41 Neurotoxicity research has not yet focused on the possible contributions of these elements to violent be[*PG353]havior. However, neurotoxicity researchers have noted that the likely role of these elements needs to be pursued, especially in light of the strong correlations between lead and manganese and violent behavior.42
Recent neurotoxicity research points to an important “intervening variable” in lead uptake, namely chemical fluoridation agents.43 Specifically, “[e]levated levels of lead in water supplies are associated principally with systems that introduced the use of [the fluoridation agent] fluorosilicic acid after 1975, indicating that fluoridation procedures are probably a key factor” in lead uptake.44 Preliminary research looked at 350 Massachusetts communities, some of which used a fluoridation agent and some of which did not. In those communities that treated water with fluorosilicic acid, the lead levels were nearly double those of unfluoridated communities.45 As the research notes, this suggests a hitherto unsuspected possible cause of lead neurotoxicity.46 Once further established, this research will demand legal action. To the extent that the safety of water supplies are concerned, legal action will include amendment of environmental laws and regulatory standards.47 For purposes of this Article, this research need not be [*PG354]conclusively proven. Rather, it points to a rapidly evolving body of work that, as demonstrated in the remainder of this Article, will demand legal attention.
As stressed above, a key aspect of the Neurotoxicity Hypothesis is the multi-causal character of influences on violent behavior. Neurotoxicity researchers stress the interaction of several other factors along with toxic exposure. The most notable of these are “[d]ietary deficits in calcium, zinc, and essential vitamins or minerals [that] can result in greater absorption of lead, manganese, and other toxic metals from water supplies or food and uptake of such neurotoxic elements in brain cells.”48 Of particular importance in this connection may be the comparative infrequency of breast feeding among the urban poor. Studies indicate that black children are three times less likely than white children to be breast rather than bottle fed.49 Moreover, “National Nutritional Surveys show that black teenage males consume on average only two-thirds as much calcium as do whites; calcium intake among Hispanics was also below the white average.”50 Problems of calcium delivery are not limited only to teenagers, however. Hispanic and African-American infants are more likely to be bottle- than breast-fed, and “[i]nfants bottle-fed with cows’ milk formula absorb five times more manganese than those who are breast-fed.”51 In addition, infant formula is often mixed using water from pipes in aging water systems that “transmit lead and manganese, further increasing the risks.”52 Thus, black and Hispanic children may be more likely to suffer neurotoxic poisoning—and therefore may be more inclined to commit violent crimes later in life—because their diets are comparatively low in calcium.
For lawyers, this is important but complicating information. The information makes the lawyers’ task more difficult because it requires environmental policies to be formed in the context of a broad appreciation of public health and welfare strategies—that is, devising ways to combat potential environmental risks with comprehensive diet and health planning. Similarly, neurotoxicity research suggests that alco[*PG355]hol and drug use, both of which are “highly correlated with loss of impulse control and violence,” may increase “the cellular uptake of cadmium, another of the toxic metals implicated in behavior dysfunction and violence.”53 Again, therefore, the optimal legal response would be one that coordinated environmental and public health policy, combatting toxic heavy metal exposure simultaneously with the implementation of strategies to reduce alcohol and drug consumption.
To test the plausibility of the Neurotoxicity Hypothesis, Roger Masters, a Professor of Political Science at Dartmouth College, engaged with his research assistants in an exhaustive comparison of federal data on the distribution of environmental pollutants and crime.54 First, Masters used the U.S. Environmental Protection Agency’s (EPA) Toxics Release Inventory (TRI) for 1991.55 He focused particularly on lead and manganese exposure for all 3,141 U.S. counties. Masters then looked at Federal Bureau of Investigation (FBI) crime reports for those counties to measure the incidence of property and violent crimes against the TRI lead and manganese exposure data.56
Masters’ findings are highly suggestive of a likely crime-environmental contamination link. First, he noted that eighty percent of U.S. counties have no reported release of either compound.57 In [*PG356]those counties with no reported lead or manganese releases, “rates of violent crime are below average (216 per 100,000 compared to the national mean of 298).”58 Second, by contrast, “the 52 counties with toxic releases from both metals . . . have almost four times as much violent crime (920 per 100,000).”59
Clearly, such powerful correlations demand attention. Yet from the perspective of many scientists, trained in the methods of controlled clinical studies and multiple attempts to replicate the same results, such correlations are inherently suspect. The concern is that such correlations are subject to the “ecological fallacy,” that is, the notion that one should be wary of turning correlations into causes.60 Proponents of the hypothesis do not discount the possible relevance of the ecological fallacy, but insist that it cannot be used as a means to forestall serious consideration of their data. Inevitably, they argue, it is simply impossible to control for every conceivable variable. It would be unethical (if not practically impossible) to have a control group that was exposed to toxic contamination in order to test the reliability of the findings.61 It is possible, however, to imagine forms of control to demonstrate that Masters’ correlations are indeed causes.62
To correct for the possible relevance of the ecological fallacy, proponents of the hypothesis argue, it is essential constantly to antici[*PG357]pate potential problems with the data. To this end, Masters and his team further scrutinized their data, noting that “[t]he correlations between environmental pollution and crime interact significantly with population density.”63 Thus, for example, the researchers found that in densely-populated counties with lead and manganese pollution, there were “970 violent crimes per 100,000, or three times the national average, while the four low density counties with similar neurotoxicity have only 138 violent crimes per 100,000.”64 The evidence is highly suggestive that the “stress involved in urban living has neurochemical correlates that exacerbate the effects of neurotoxicity.”65 In short, toxic pollution seems likely to constitute a previously unsuspected risk factor that contributes, perhaps significantly, to geographic differences in violence. As Masters and his colleagues therefore conclude, their findings indicate that “urbanism, ethnicity and toxicity emerge as important correlates of violent crime.”66 As a result, “the traditional approaches to crime in the United States need to be reconsidered from an ecological point of view.”67
For Masters and his group, political scientists and neuroscientists by training, there are at least four important policy implications of the Neurotoxicity Hypothesis. Subject to further empirical confirmation, for example, they have suggested that, first, proof of the Neurotoxicity Hypothesis will result in increased individual responsibility for criminal behavior.68 That is, if we can reliably identify an individual’s biochem-ical susceptibility to impulsive behavior, it will be possible to hold an individual personally responsible for failing to take steps to control his behavior.69 Second, they project that improved educational performance will be possible as a result once the hypothesis is more conclusively proven and widely accepted. Because “[t]he link between dietary deficiency, neurotoxicity and violence has also been associated with low I.Q. and learning disabilities . . . nutritional components of Head Start, school lunch programs, and food stamps may be of great importance, provided they are monitored for necessary vitamins and [*PG358]minerals.”70 Third, Masters and his colleagues are hopeful that further proof of the Neurotoxicity Hypothesis will have economic benefits in the form of vitamin supplementation that, in the long term, would be far less costly than incarceration as a means of rehabilitating violent criminals.71 Fourth and finally, they speculate that proof that “violence is associated with abnormal brain biochemistry” will help screen violent criminals for biochemical imbalances and, thus, lead to further improvements in the administration of criminal justice.72 Masters and his collaborators are quick to note, however, that improving criminal justice administration should not become a means to react in an overly-punitive manner, adding that “it is also essential to consider the ethical and legal implications of our approaches to criminal violence.”73
Despite this admonition, Masters and his associates steadfastly maintain that, no matter how strong the connection between neurotoxic contamination and crime revealed by their research, the principle of mens rea should not be abandoned.74 Masters, in fact, believes that neurotoxicity data may heighten rather than diminish individual responsibility, since the effects of the contamination can be controlled to some extent through measures such as an improved diet.75 That a researcher documenting the likely influence of what are typically classified as “external” causes of crime should hew to the principle of mens rea, which typically looks to choices within an individual’s control, is a noteworthy feature of his research. In particular, if it is true that, as Masters’ research suggests, poorer members of certain racial minority groups are disproportionately affected by neurotoxic contamination, an unwavering insistence on the notion of mens rea could [*PG359]have volatile political implications. On one hand, the hypothesis seems to present data that would be most welcome to the political left since it offers an explanation for criminal action that focuses on larger social explanations for crime, rather than on some individual action. For example, evidence of neurotoxicity could become a new form of individual criminal defense like involuntary intoxication, which may result in acquittal for certain types of criminal offenses.76
On the other hand, however, an insistence on the application of mens rea—for the reasons mentioned above—also could provide grist to a conservative view of criminal behavior since it focuses attention back on the choice of the errant individual. That is, neurotoxicity could be used to make even more likely a finding of criminal liability for persons who failed to correct a toxic condition. A prosecutor thus might argue that because a defendant had been identified as having elevated blood lead and manganese levels, that individual was responsible to take steps to mitigate the effects of the contamination. If the defendant had not taken steps to correct those known levels and still committed a violent crime, neurotoxic contamination might be used to underline a case arguing malicious or, at a minimum, reckless behavior.77
Strikingly, the discussion of mens rea and neurotoxicity has focused almost exclusively on the kinds of possibilities sketched out above. That is, the discussion has concentrated on the mental state of violent individuals whose behavior may have been caused in some measure by exposure to neurotoxic heavy metals. Mens rea needs to be evaluated, however, with respect to any person whose behavior is implicated by neurotoxicity, including those responsible for discharges of neurotoxic materials into the environment. This Article now turns, therefore, to the question of the implications of neurotoxicity research for the understanding of mens rea as applied to the prosecution of federal environmental crimes.
[*PG360] As the federal environmental crime example makes clear, insisting on the inviolability of mens rea is much easier said than done. Masters’ insistence on not abandoning mens rea may be a way to ensure that the Neurotoxicity Hypothesis be given more serious consideration by criminologists and politicians.78 But the mere statement that mens rea should not be abandoned glosses over a host of extremely complicated questions. Mens rea is, famously, one of the most ill-defined concepts in Anglo-American criminal law. In Justice Holmes’ oft-quoted view, “most of the difficulties as to the mens rea [are] due to having no precise understanding [of] what the mens rea is.”79 In particular, as discussed below, a uniform notion of mens rea has not been consistently applied in cases of environmental crime, owing, at least in part, to some apparent moral ambivalence about holding people criminally liable for environmental harm. As explained in the next section, inconsistent application of a mens rea standard is likely to be exacerbated by the results of the neurotoxicity research described above. This Article now turns, therefore, to some of the legal implications of the Neurotoxicity Hypothesis—and above all, the implications for criminal intent standards.
The principal statute to be examined in this section is the Federal Water Pollution Control Act, more popularly known as the Clean Water Act (CWA),80 although reference will also be made to two other central environmental laws, namely the Clean Air Act (CAA),81 and the Resource Conservation and Recovery Act of 1976 (RCRA).82 With respect to the Neurotoxicity Hypothesis, these statutes could prove particularly important inasmuch as the majority of releases of toxic heavy metals occur by air, water, or through improperly-handled hazardous waste. Therefore, consideration of the civil and criminal enforcement provisions of these statutes provides an excellent opportunity to assess the potential responsiveness of federal environmental laws to the Neurotoxicity Hypothesis.
[*PG361] This Section will begin by examining the criminal and civil enforcement sections of the CWA in light of the Neurotoxicity Hypothesis. This is crucially important because neurotoxicity research will likely require the legal system to consider the mens rea of those who create toxic contamination leading to violent, neurotoxic-influenced behavior.
The CWA is a useful example for several reasons. First, waterborne exposures to heavy metals are not uncommon.83 Second, the CWA is a fairly typical environmental statute in structure; the CWA is supported by a complex regulatory apparatus and sets not only federal water quality standards but also many state standards through the delegation process.84 Third, like other principal environmental statutes, the CWA provides for citizen suits.85 All of these characteristics make it worth studying in view of the fact that wider publication of neurotoxicity research likely will result in lawsuits marshaling neurotoxicity data in support of claims under federal and state environmental statutes. This may lead, in turn, to criminal prosecutions. Fourth, the CWA traditionally has been enforced according to a best available treatment (BAT) standards model,86 in contrast to the CAA’s airshed management model. As discussed below, these different models could affect the outcome of lawsuits brought using evidence of neurotoxic contamination.87 Fifth, and perhaps most importantly in the context of the Neurotoxicity Hypothesis, “[t]he confrontation over mens rea in the [United States] Supreme Court is instead most likely to arise in a felony prosecution brought pursuant to the Clean Water Act.”88 Therefore, it is advisable to attempt to head off the possibility of such a confrontation sooner rather than later.
The most comprehensive criminal statutory scheme contained in any major federal environmental law appears in the CWA. As with many federal environmental laws, the CWA’s principal criminal enforcement sections have a tripartite structure. First, the statute creates penalties for negligent violations.89 Second, it penalizes knowing violations.90 Third, and finally, the CWA punishes knowing endangerment.91
In each case, these provisions focus on what a violator knew or reasonably should have known. Thus, for example, negligent violation of the CWA subjects a person to punishment, with fines of up to $25,000 per day of violation, and/or imprisonment of up to one year (with double penalties following first convictions under this subsection) when she either negligently violates the CWA’ s national effluent limitations, water quality, and treatment standards, or:
negligently introduces into a sewer system or into a publicly owned treatment works any pollutant or hazardous substance which such person knew or reasonably should have known could cause personal injury or property damage or, other than in compliance with all applicable Federal, State, or local requirements or permits, which causes such treatment works to violate any effluent limitation or condition in any permit issued to the treatment works.92
The provision for “knowing” violations tracks the above-quoted language exactly, excepting that the first word above—”negligently”—becomes “knowingly.”93 The penalties for knowing violations, however, are greater: up to $50,000 per day of violation and/or imprisonment for up to three years.94 Importantly, federal case law interpreting the [*PG363]“knowing” standard has consistently provided that the requisite knowledge needed to establish a violation is merely knowledge that the materials discharged into waterways are dangerous, and not that the discharge is illegal.95 This is in keeping with the ambitious aims of the statute, although commentators often point out that such a comparatively low threshold for a finding of criminal liability creates considerable enforceability problems.96
The knowing endangerment provision differs somewhat from the previous two in that they concern actions that place “another person in imminent danger of death or serious bodily injury,” with fines of “not more than $250,000 or imprisonment of not more than 15 years, or both.” 97 As with both negligent and knowing violations, violations after first convictions are subject to double fines and terms of imprisonment. Additionally, this section addresses problems of proof for purposes of determining whether an individual knowingly endangered the life or well-being of another. Circumstantial evidence that a defendant affirmatively attempted to shield herself from knowledge of potential harm may be submitted (although defendant has a statutory affirmative defense to such evidence).98
[*PG364] Additional affirmative defenses to this section include explanations that “the person endangered and that the danger and conduct charged were reasonably foreseeable hazards of . . . an occupation, a business or a profession,” or “medical treatment or medical or scientific experimentation.”99
In light of the neurotoxicity research described in Part I of this Article, the issue presented by CWA’s criminal liability standards is simple; subject to scientific confirmation of the Neurotoxicity Hypothesis (or similar neuroscientific research), EPA and/or state agencies will be compelled to lower the acceptable discharges of neurotoxic heavy metals into the environment. This, in turn, is sure to lead to increased CWA criminal prosecutions, under each of the criminal liability provisions described above. For example, under federal law, lead and cadmium are currently classified as “toxic pollutants” subject to national effluent discharge limitations under the CWA.100 Once the acceptable discharge thresholds are reduced, permit and other regulatory violations will be more prevalent, thereby expanding the field of criminal prosecution under the CWA.101 As described in the previous subsection, most observers already consider a determination of CWA criminal liability to be relatively easy.102 If, in addition, threshold levels for discharge of toxic heavy metals into the environment are dramatically lowered, criminal liability could become commonplace. This, in turn, could further exacerbate the inconsistent application of criminal liability provisions under federal environmental laws such as the CWA. In no respect is this inconsistency clearer than in the case of [*PG365]what is meant by the term “criminal intent” for purposes of an environmental crime.
Simply put, courts are confused as to what constitutes criminal intent for purposes of the federal environmental statutes. This confusion stems largely from disagreement as to whether common law “general” and “specific” intent categories should be used, or whether MPC categories should apply. This subsection will examine that confusion. Ultimately, the analysis indicates, the MPC standards are preferable because they employ a more objective test. No matter which set of categories is used to analyze criminal intent, however, data like that produced by the Neurotoxicity Hypothesis raises a serious possibility of increased criminal liability for environmental violations.
Susan Mandiberg has made the case that it is necessary to define a normative jurisprudence for environmental crimes in particular, and many regulatory crimes more generally.103 As Mandiberg notes, in the regulatory crime context there is considerable “confusion about mental state [that] results from the lack of a coherent jurisprudential framework for federal regulatory crimes,” a situation complicated by the fact that “the Supreme Court has increasingly interpreted regulatory crimes by reference to the traditional common-law notion of mens rea, which it treats as a normative concept.”104 As Mandiberg further explains, however, current analysis of federal regulatory crimes like those identified in the principal environmental statutes, “is not yet [*PG366]well suited to answering some of the thorny questions that regulatory crime statutes present.”105 In particular, she notes the Supreme Court has applied an analytical framework that, following a common law paradigm, applies “specific intent” principles to some regulatory crimes and “general intent” principles to others (notably to crimes deemed “public welfare offenses”).106
As Mandiberg argues, however, it is important to recognize that the common law categories, which will be discussed more fully below, have been applied in the prosecution of environmental crimes where the meaning of the relevant statutory standards is unsettled with respect to the requisite mens rea.107 By contrast, Richard Lazarus has vigorously argued that the “nonintegration” of criminal law standards and environmental law standards has created serious problems for the long-term success and credibility of the federal model of criminal environmental law.108 Mandiberg’s approach suggests, however, that the “nonintegration” that Lazarus identifies may be less serious a problem than it at first glance appears. Instead, her analysis suggests that although the application of common law mens rea standards to the prosecution of federal statutory environmental crimes may have made their enforcement confusing and inconsistent, it does not necessarily indicate fundamentally different ways of thinking about environmental and criminal law enforcement.109
[*PG367] The application of common law principles to federal statutory environmental crimes, in fact, may reflect a fundamental unwillingness to apply the existing, “knowing” statutory standards, standards rooted in the conceptual reforms of the MPC.110 It may be that resistance to the application of the statutory standards does not stem from a belief that environmental harms do not merit prosecution. Rather, it is possible that the resistance is due to the broad reach of those standards or because environmental malefactors, unlike many common law criminals, perform social services even as they commit acts for which criminal liability should be assessed.111
In addition, the ambiguity of federal environmental statutes may have forced courts to insert common law paradigms into the analysis of statutory standards. For example, although the CWA punishes “knowing” violations, it does not explain what a defendant is charged with knowing. Thus, case law has focused to an exceptional degree on questions such as whether a defendant charged with criminal liability under the CWA knew merely whether the materials discharged in ex[*PG368]cess of permitted levels were toxic, or whether the discharge was unpermitted.112
Because neurotoxicity research is likely to force a drastic reduction of acceptable levels of toxic materials that may be discharged into the environment, these problems in assessing federal environmental criminal liability are likely to become even more acute. In short, neurotoxicity research suggests that pollution may have even more devastating health consequences than previously thought. This may open the door to increased litigation. Moreover, whatever the nature of the underlying differences, if any, between environmental and criminal law, both Lazarus and Mandiberg agree that the analytical framework used to establish mens rea under federal environmental statutes is unsatisfactory.113
The reasons for this deserve consideration as they bear directly upon the potential challenges the Neurotoxicity Hypothesis presents for enforcement of federal environmental crimes. A difference between many environmental and common law crimes is that, for most statutory environmental crimes, a prosecutor is not required to prove a number of different elements in order to establish environmental criminal liability.114 However, this has not stopped courts—even the Supreme Court—from attempting to impose a classical common law mens rea framework onto the language of “knowing” environmental crimes, like violations of the CWA. This is true even where, as with the CWA, the statute is silent as to criminal intent.115
In her examination of Supreme Court regulatory crimes jurisprudence, Mandiberg concludes that a two-part structure has been developed “for interpreting mental state in ambiguous federal regulatory crime statutes.”116 That structure, she concludes, closely tracks common law crime distinctions.117
[*PG369] Specifically, Mandiberg notes that the Court classifies some regulatory crimes as “public welfare offenses,” using an analysis that closely parallels the common law category of “general intent” crimes.118 A general intent crime is one where culpability is “objectively assessed.”119 That is to say, “‘[g]eneral’ intent can mean a number of different things, but in this context it generally means that it is sufficient to convict when the defendant did what in ordinary speech we would call simply an intentional action.”120 A specific intent crime is one in which, by contrast, culpability “is subjectively assessed. The prosecution must prove that the defendant engaged in the actions ‘with some specified purpose in mind’ or that the defendant was subjectively aware ‘of some specific circumstance.’”121
For example, bigamy is a general intent crime, while burglary, which requires a breaking and entering under cover of night with the specific intent to commit a crime therein, is a specific intent crime.122 Without an intention to commit a crime such as theft therein, a defendant would only be guilty of criminal trespass. This distinction, however, is not one that lends itself to intellectual clarity. As Joshua Dressler notes:
[t]he terms ‘specific intent’ and ‘general intent’ are the bane of criminal law students and lawyers. This is because the terms are critical to understanding various common law rules of criminal responsibility, yet the concepts are so ‘notoriously difficult . . . to define and apply . . . [that] a number of text writers recommend that they be abandoned altogether.123
Nonetheless, Mandiberg observes that “general” and “specific intent” crimes “parallel . . . the Court’s regulatory crime categories. . . . The ‘public welfare offense’ category is at least superficially similar to ‘general intent’ in some striking ways,” notably “conduct-circumstance combinations that are so dangerous and uncommon [*PG370]that everyone should know they are regulated.”124 She further explains that “[t]here are even more compelling parallels between ‘innocent activity offenses’ and ‘specific intent’ crimes.”125 To be exact, “[i]n traditional ‘specific intent,’ the defendant is subjectively aware of a circumstance, goal, or motive that is immoral in the traditional sense. This may also be true in ‘innocent activity offenses’ when the ‘something extra’ is the defendant’s awareness of violating the law.”126 In the context of criminal clean water violations, a public welfare offense that is comparable to the common law “general intent” category would be any discharge of substances known to be toxic to humans, so long as such discharge is “uncommon.”127 By contrast, in the “innocent activity offense” context, a criminal clean water violation paralleling a common law “specific intent” crime might be the deliberate violation of a permitted discharge that had the effect of endangering the public.
Mandiberg concludes her comparison by observing that the Supreme Court has developed what she identifies as a two-step protocol for analyzing regulatory crimes. At a deep level, this protocol is informed by the common law of crimes and the “traditional normative jurisprudence” that the common law reflects. Specifically, she argues:
[i]f the Court can say that the situation is physically dangerous and uncommon enough to cause widespread community concern, the crime is a ‘public welfare offense.’ In those cases, mens rea consists of the defendant’s awareness of engaging in that conduct under those circumstances. For other statutes, the crime is an ‘innocent activity offense’; mens rea therefore consists of the defendant’s awareness of the conduct, the factual circumstances, and either the law or a probable unlawful consequence.128
[*PG371]These distinctions go to the heart of the difficulties courts and commentators have had with the assessment of criminal liability for environmental crimes. In no case is this contrast more clear than in United States v. Weitzenhoff.129
Perhaps more than any other CWA criminal prosecution, Weitzenhoff has occasioned both stern disapproval and widespread celebration for its reading of the CWA’s mens rea requirement.130 In Weitzenhoff, the managers of a sewage treatment plant on the Hawaiian island of Oahu were found guilty of conspiring to discharge pollutants into the ocean near a popular swimming and surfing beach.131 The case presented an issue of first impression before a federal Court of Appeals, namely whether the district court was correct in “construing ‘knowingly’ in section 1319(c)(2) [of the CWA] as requiring only that [defendants] were aware that they were discharging the pollutants in question, not that they knew they were violating the terms of the statute or permit.”132 The Court noted that “[a]s with certain other criminal statutes that employ the term ‘knowingly,’ it is not apparent from the face of the statute whether ‘knowingly’ means a knowing violation of the law or simply knowing conduct that is violative of the law.”133 After reviewing the legislative history for section 1319(c)(2), the Court concluded that “congressional explanations of the new penalty provisions strongly suggest that criminal sanctions are to be imposed on an individual who knowingly engages in conduct that re[*PG372]sults in a permit violation, regardless of whether the polluter is cognizant of the requirements or even the existence of the permit.”134 Moreover, the Court made clear that in so reading the statutory language of the CWA’s “knowing” violations, it viewed the CWA as a “public welfare” statute.135
Thus, to return to Mandiberg’s explanatory scheme, in Weitzenhoff the Court understood the CWA’s knowing violation provision much as it would a “general intent” crime in the sense that defendants intentionally authorized employees to discharge waste directly into the ocean.136 The opinion further makes clear, however, that the Court recognized the possible strength of an argument to the effect that the provision is more like a “specific” than a “general intent” crime. Specifically, the Court explicitly rejected defendant-appellants’ [*PG373]analogy to Liparota v. United States.137 In Liparota, the prosecution was required to demonstrate that a violation of a federal statute proscribing the unauthorized use of food stamps required proof of the defendant’s knowledge that he was violating the law.138 Unlike Liparota’s alleged abuse of food stamp regulations however, the Court in Weitzenhoff insisted that knowledge of the law was immaterial for a finding of liability: “[t]he criminal provisions of the CWA are clearly designed to protect the public at large from the potentially dire consequences of water pollution . . . and as such fall within the category of public welfare legislation.”139
The Weitzenhoff court’s brief colloquy on the mental state required by the CWA (and, by extension, comparable environmental statutes) goes to the heart of the discomfort many feel about finding criminal fault for violations of environmental statutes. Richard Lazarus’s concern is typical. Lazarus worries that, to the peril of the environmental cause, environmentalists have resisted “an argument in favor of accommodating the basic rights of those who violate the law—their right not to be incarcerated in the absence of violation of certain traditional norms of moral culpability.”140 Lazarus’s criticism sounds very much like a plea to transform the “general intent”-like public welfare crimes into “specific intent” crimes:
Does criminal culpability turn on the defendant’s awareness of facts with the level of precision actually determinative of the lawfulness of the defendant’s activity? Courts have addressed this issue in a variety of environmental law contexts. Their virtually uniform answer is that no such rigorous proof of the defendant’s knowledge is necessary—liability is not entirely strict. Yet, given the breadth and depth of relevant facts of which the government need not prove knowledge, liability for knowing violations could be fairly dubbed mostly strict (if such a characterization is not an oxymoron).141
[*PG374]Lazarus’s analysis may be faulted for failing to focus on the distinction between “general” and “specific intent” crimes, which is to say that what he sees as a flaw in the intent standards applied to environmental crimes may in fact reflect an interpretive choice with which he disagrees. Nonetheless, Lazarus is certainly not alone in his view, and the chorus of agreement with him in this respect makes clear that a formal reevaluation of criminal environmental intent standards is long overdue.142
What do standards of intent have to do with the powerful correlations between violent criminal behavior and environmental toxins suggested by the Neurotoxicity Hypothesis? Above all, this Article suggests that the kind of data currently being produced in support of the Neurotoxicity Hypothesis could well push the controversy regarding the required mental state in federal environmental criminal prosecutions to the breaking point. That is, lawsuits for criminal liability based on neurotoxicity data can only sharpen the concerns addressed in a case like Weitzenhoff as to the appropriate scope of criminal liability for environmental harms. Whether using a “general”- or a “specific intent”-like standard, neurotoxicity seems likely to produce even louder calls for clarification of the appropriate liability standard.
The reason for this is twofold. On the one hand, studies documenting the likely role of neurotoxic contamination as a significant co-factor contributing to violent criminal behavior are likely to increase the pressure to apply a “general intent”-like standard, as is presently the case with interpretation of the CWA as a “public welfare” statute. On the other hand, it is equally true that Lazarus’ and related concerns will, in light of neurotoxicity data, result in ever-louder demands to reform the usual intent standards that apply in criminal en[*PG375]vironmental statutes. The reason for this is simple: data supporting the Neurotoxicity Hypothesis is, as indicated previously,143 likely to require a downward revision of the acceptable discharges of certain toxic heavy metals like lead, cadmium, and manganese to levels currently deemed “sub-clinical.” Such a downward revision will likely result in increased criminal prosecution of the manufacturing processes using those metals.144 In addition, as evermore definite data is released, criticism of the Neurotoxicity Hypothesis is likely to mount, both from the left145 and right.146 To the extent that neurotoxicity data is used by government lawyers seeking to enforce a criminal environmental provision like that in the CWA (or by lawyers acting on behalf of clients or others pressuring the government to bring such claims), pressure likely will mount for an “innocent activity”/ “specific [*PG376]intent”-like reading of a criminal environmental provision like the CWA’s.
This is problematic, however, because such an approach would conflict with a plain meaning reading of the federal environmental statutory standards. As noted above, these standards proscribe any “knowing” violation. The possible result is widespread disagreement about or, at worst, disregard of, federal statutory language. Such a result has obvious negative implications for an environmental statutory regime founded on the rule of law.147
Therefore, it is essential to seek a possible solution for this likely crisis in statutory interpretation. An effort is required that will both accommodate new findings—such as neurotoxicity data—that bear on the goal of a cleaner environment and also reduce the doctrinal confusion over the appropriate standard of intent in criminal environmental law cases. Possible solutions are outlined in Section III below.
Although this Article focuses primarily on the implications of neurotoxicity research for criminal liability under federal environmental laws, it is useful to outline briefly the implications of neurotoxicity research for civil liability under those statutes. This is worthwhile inasmuch as criminal prosecutions will in most cases be brought simultaneously with civil actions.
Civil liability under the CWA (and the other principal federal environmental statutes) is expansive, and has been made even more so [*PG377]by case law interpreting the statutes.148 Although the statute’s history spans just over a full generation, it is full of examples of private efforts to force the EPA and state regulators to implement standards in compliance with its sweeping commands. In light of the historically broad reading of the CWA, the parties who would potentially be most affected by the Neurotoxicity Hypothesis would include government regulators, as well as officers and other employees of large corporations. Therefore, as evidence mounts in support of the hypothesis, private as well as public enforcement actions will likely increase.
It is again essential to repeat a key assumption underlying the argument advanced in this Article. To be exact, this Article proceeds on the assumption that as studies documenting the link between neurotoxic contamination and criminal behavior become more widely disseminated, the EPA and state environmental authorities will be compelled to lower the threshold for tolerable levels of discharged heavy metals. Thus, in light of neurotoxicity data, currently “subclinical” levels will likely be reclassified as threatening to human health.149 [*PG378]Release of such revised standards seem certain to result in increased private enforcement actions.
The plain language of the CWA gives authority for the EPA Administrator “to commence a civil action for appropriate relief, including a permanent or temporary injunction for any violation.”150 In addition, citizen suits have become widely-used tools of CWA enforcement.151 It is worth noting, as well, that the list of persons subject to prosecution under the CWA is broad. A federal employee acting “within the scope of [his] employment” is subject to prosecution for violation of the CWA.152 This has been applied, for instance, to the director of a public utility with supervisory authority responsible for a city waste water treatment plant153 and civilians employed by the armed forces.154
It is appropriate to discuss the applicability of the Neurotoxicity Hypothesis to civil liability under the CWA because of its focus “on implementation of technology-based standards applicable to individual point sources of water pollution—primarily industrial facilities and public sewage treatment plants.”155 In the context of the Neurotoxicity Hypothesis, this is relevant for at least three reasons. First, if effluent standards for toxic heavy metals like lead, manganese, and cadmium are revised in light of the hypothesis, industrial facilities and publicly-owned treatment works (POTWs) would be more likely to violate permit terms. Second, in the event of revised effluent levels, these same facilities would be likely targets of enforcement actions or lawsuits. Third, however, because CWA enforcement has concentrated on technology-forcing standards rather than watershed management, industry would likely claim that the technology required to remove heavy metals from point source discharges would be inefficient and/or that the cost of achieving such standards is economically prohibitive.156 Thus, although violations of permits would likely put such facilities at risk of non-compliance with revised effluent levels, the facilities would have possible grounds for objection.157
An example of the way neurotoxicity data could be used in a CWA lawsuit is provided by the case of L.E.A.D. Group of Berks v. Exide [*PG380]Corp.158 In L.E.A.D., individual and other private plaintiffs sought relief under the CWA, RCRA, and state hazardous waste and clean water laws for claimed violations of, among other things, CWA permits.159 The individual plaintiffs included people living near the manufacturing—including lead-battery making—facilities of defendants. They maintained that the unpermitted release of toxic substances included the toxic heavy metals antinomy, cadmium, lead, iron, copper, and silver. To advance such claims, the court required plaintiffs to satisfy the three-pronged constitutional standing test advanced in Lujan v. Defenders of Wildlife.160 Lujan requires a demonstration that a plaintiff (a) suffered an injury-in-fact, (b) which is fairly traceable to the challenged action of the defendant, and (c) that plaintiff’s injuries likely would be redressed by a favorable decision.161 The court concluded that the plaintiffs in this case did not satisfy the Lujan test, but for reasons unrelated to the discharge of the toxic heavy metals studied in connection with the Neurotoxicity Hypothesis.162 The court did find, however, that claims under, inter alia, the CWA, were “redressable by declaratory and injunctive relief,” even though the allegedly harmful discharges were “infrequent and episodic, rather than continuing and ongoing violations.”163 Moreover, the court affirmed that a local clean environment group (the named plaintiff) had standing to sue equivalent to that of any individual plaintiff. 164
In the context of the preceding discussion about CWA and other federal environmental criminal liability standards, the implications of a case like L.E.A.D. merit attention. Specifically, wider dissemination of neurotoxicity research is likely to be seized upon first by individuals seeking civil redress for environmental harms—individuals like those [*PG381]in the L.E.A.D. case. Such a push is likely to be especially acute with neurotoxicity research because of the highly negative behavioral consequences of the toxic exposure. The likelihood of such lawsuits will certainly lead to a demand for more stringent criminal prosecution of those involved in industries that pollute with toxic heavy metals.
If the liability standards used to enforce such prosecutions are not clarified, they will be subject to further inconsistent application. Following the Supreme Court’s lead in regulatory crime cases, some courts can be expected to apply a common law general- and specific-intent rubric. As in Weitzenhoff, however, other courts may continue to struggle with the ambiguous definition of “knowing” acts in the criminal liability provisions of the federal environmental statutes. Thus, civil prosecutions of the federal environmental laws, whether advanced by state officers or in private citizen suits, are likely to open the door to greater uncertainty regarding the scope of the federal criminal environmental standards. Even in the civil liability context, therefore, neurotoxicity research underscores the need to amend federal criminal environmental standards, in order to insure the long-term, popular credibility of environmental prosecutions.
A way out of this impasse is to rethink the criminal intent standards used in federal environmental enforcement. One possible option is to make clear that the intent categories contained in the MPC shall apply to the CWA’s statutory definitions for criminal intent. This approach has the advantage of discarding the common law analysis that, as described in the previous section, has consistently proven so nettlesome.
The common law categories of “general” and “specific intent” stand in contrast to the “General Requirements for Culpability” set forth in the MPC.165 In particular, the MPC takes what has been classified as an “elemental” approach to mens rea, meaning that a prosecutor need not establish culpability in the sense that the defendant’s actions demonstrated “his bad character, malevolence, or im[*PG382]morality.”166 Instead, an elemental approach requires only that the prosecution establish “the particular mental state provided for in the definition of the offense.”167 Conceptually, the MPC’s innovation requires more than proof of moral blameworthiness (a highly normative judgment); in addition, the MPC rejects the confusion of the common law distinction between “general” and “specific intent” crimes.
In their place, the MPC offers four statutory mens rea terms, including “knowingly,” the mental state that must be established for most federal environmental crimes.168 The MPC defines “knowingly” in two different ways, each of them with implications for the major federal environmental crimes, particularly because a statute like the CWA does not define “knowingly.”169
First, an actor “knowingly” causes a result if he “is aware that it is practically certain that his conduct will cause such a result.”170 Consider the example of a battery-manufacturing plant. In the context of a CWA criminal prosecution, a “knowing” release satisfying this standard would be one, for example, where a corporate officer performed or authorized the release of lead-contaminated sludge into a point source at levels in excess of permitted requirements, fully aware that the release was not permitted and that lead has deleterious effects on the nervous system and other vital functions.171 Alternately, one can be found to act “knowingly” under the MPC if one is “aware that his conduct is of that nature or that such [attendant] circumstances exist.”172
Awareness of the harmfulness of the conduct is central.173 Thus, in the example above, if the corporate officers in charge of discharges into the point source did not know that the lead-contaminated sludge contained lead in excess of permitted levels, they would not be guilty [*PG383]of a “knowing” crime. If decided under this standard, a number of environmental convictions may not have resulted in liability.174
Importantly, however, the MPC requires proof of each and every element of the crime, and conviction might still be possible under a MPC standard in those cases where “attendant circumstances” are established. Even if a person was unaware of the conduct that caused harm (the actual discharge in excess of permitted levels), it nonetheless might be possible to establish a “knowing” violation. For instance, if the corporate officers in the above example knew that there had been a problem at the facility with reducing the amount of lead in the sludge to permitted levels, and had not taken efforts to address it, a knowing violation might well be found.
Moreover, the MPC makes special provision for dealing with instances of “willful blindness.”175 Jurisdictions differ as to what can constitute willful blindness. In some jurisdictions, the MPC’s willful blindness proscription applies only if a person has “actual knowledge” or a “correct belief” of the harmful act. Thus, for example, if the corporate officers in the above hypothetical noticed that sludge discharges from their plant were colored or textured in a way typical of unpermitted lead discharges, they might be found to have personally observed its presence and therefore to have had “actual knowledge.” Similarly, they might thus be said to have a “correct belief,” even though they did not definitively know—or have had “actual knowledge”—of the unpermitted discharge.176
A number of other jurisdictions also allow a finding of knowledge “if the person is aware of a high probability of the existence of the fact in question, and he deliberately fails to investigate in order to avoid confirmation of the fact.”177 To again use the above hypothetical, willful blindness under the MPC would exist so as to establish a “knowing” violation if a corporate officer noticed unusual sludge discharges and failed to ask pertinent questions, while knowing full well that lead is a health danger (this last claim is clearly one that would easily be established for anyone in the industry).
[*PG384] Readers may be struck by the extent to which the CWA’s “knowing” standard is very much like the one applied in the vast majority of criminal environmental prosecutions. That is, despite the Supreme Court’s effort to apply the common law categories of “general” and “specific intent” in regulatory criminal prosecutions, as noted by Mandiberg,178 the lower courts, in fact, have applied a standard very much like that advocated in the MPC. Contrary to Lazarus’ suggestion,179 then, rather than crafting an ultimately unworkable standard in regulatory crimes cases, the lower courts have struggled to apply federal criminal environmental standards according to a well-established and manageable analytical protocol.
A couple of examples make this clear. United States v. Boldt involved the criminal prosecution of managers of a plant that used toxic metals to plate electronic circuit boards.180 In Boldt, the defendant was charged with a knowing criminal violation of the CWA when he permitted overflow from the company’s “inadequate” wastewater pretreatment facilities to be discharged into the city sewer system.181 The overflow was completely untreated and contained toxic heavy metals. The defendant insisted that he was not directly responsible for the discharge. In a separate count, the defendant was charged with directing a subordinate to manually add a caustic chemical to a pretreatment tank and, when this effort was unsuccessful, to dump a tankful of partially treated wastewater into the city sewer. With respect to these charges, the defendant intimated that he felt he had little alternative since the tanks were about to overflow and, in any case, that he was effectively prevented from stopping the discharge due to internal corporate pressures.182
The court disagreed, sustaining the defendant’s conviction. As for the defendant’s tolerance of the direct discharge of untreated toxic wastes, the court found that “the evidence showed that [defendant] was aware of the practice of bypassing the pollution control system and had condoned it on the occasion at issue.”183 Regarding the second charge that the defendant had ordered a subordinate to discharge partially treated toxic wastes, the court observed that “there is no dispute that [defendant] directly ordered his subordinate to dump [*PG385]the copper wastewater.”184 In other words, the court disagreed with the defendant’s claims that any other alternative was impossible, or that his actions were necessary.185
In the context of the argument advanced in this Article, what is especially striking about the Boldt analysis is the extent to which it applies the logic of the MPC for “knowing” criminal violations. In Boldt, the defendant clearly was “aware that it [was] practically certain that his conduct [would] cause” the result that led to his conviction, and so satisfied the first prong of the MPC’s analysis of “knowing” crimes.186 In addition, the defendant was “aware that his conduct [was] of that nature or that such [attendant] circumstances exist,” and therefore satisfied the awareness prong of the MPC’s analysis.187 Furthermore, under even the least generous of the willful blindness tests adopted pursuant to the MPC, the eponymous defendant in Boldt demonstrably had “actual knowledge” and a “correct belief” of the harmful act, even though he did not actually perform the act. In short, Boldt’s culpability was appropriately established under the CWA using an MPC analysis.
The same conclusion applies even where the facts are somewhat more problematic in terms of applying the MPC’s “knowing” standard. In United States v. Brittain, the defendant, a city public utilities director, was found guilty at a jury trial of a criminal misdemeanor violation of the CWA.188 In particular, he was charged with tolerating discharges of raw sewage into a point source, and then directing a subordinate not to report this permit violation to the EPA, as required by the terms of the permit. Viewed in light of the MPC categories and a “knowing” violation analysis, the facts of Brittain are problematic only because the CWA then applied a “willful” or “negligent” standard in the criminal section that today applies a “knowing” standard.189 Nonetheless, it is fair to conclude that although the defendant was found guilty under a negligence standard, he would almost certainly be found guilty if a “knowing” standard had been applied.
[*PG386] This can be seen by looking at the facts leading to the defendant’s conviction. The defendant was told that raw sewage was being discharged from a permitted outfall, and “physically observed two such discharges.”190 As in Boldt, therefore, even though the defendant did not personally perform actions that led to the discharge, he was “aware that it [was] practically certain that his conduct [would] cause” the result that led to his conviction and, again as in Boldt, demonstrated the awareness of the consequences of his conduct needed to establish a “knowing” CWA violation.191 The court further offered observations that left little doubt as to the defendant’s “knowing” violation under the CWA’s MPC-like analysis:
[D]efendant had primary operational responsibility for the treatment plant. . . . Defendant was informed that such illegal discharges were prone to occur during heavy rains and that he reviewed logs recording repeated illegal discharges. . . . It appears from the plant supervisor’s testimony that he discussed illegal discharges with defendant several times over a period of years and that the discharges were never reported.192
Given such facts, it is unnecessary to perform a “willful blindness” analysis; the defendant’s actions clearly satisfied the basic “knowing” violation elements.
The advantage of applying these MPC standards in the case of federal environmental criminal prosecutions—instead of the common law “general” and “specific intent” standards—is that they provide greater intellectual clarity. They do so in two ways. First, they remove the judgment as to the degree of harm a person causes to the public welfare. Second, demonstration of some additional malicious intent is not required.193 Thus, adoption of the MPC standards uses a more objective standard than does the common law of “general” and “specific intent.”
This distinction, in turn, would help resolve the central concern about environmental liability noted by the Weitzenhoff court, namely [*PG387]the question of whether “knowingly” means a knowing violation of the law or simply knowing conduct that is violative of the law.194
Ideally, to insure the continuing credibility of criminal prosecutions under the CWA and similar federal environmental statutes, congressional statutory amendment is desirable. Specifically, the “knowing” and “knowing endangerment” standards require explicit definition according to MPC standards. Thus, federal environmental statutes should clarify that in order to establish a “knowing” violation it is necessary either to demonstrate a defendant’s certainty that a result will follow from actions or, at a minimum, satisfy the Code’s concept of “willful blindness.”
Alternately, statutory amendment might clarify the approach taken in United States v. Johnson & Towers, Inc.195 In that case, the court concluded that a knowing environmental crime is one where defendants knew that the activity in which they were engaged required a permit but that they failed to obtain one. In addition, however, the court added that while this approach required prosecutors to demonstrate that all elements of the offense were “knowing,” “the district court may also instruct the jury that such knowledge may be inferred.”196 Such an approach is consistent with both the statutory language and a MPC-influenced reading of the statute that dispenses with “general” and “specific intent”-like readings, and would emphasize the need to know of an actual permit, thereby allowing for good faith errors. Thus, even in light of neurotoxicity-informed discharge standards, such an amendment would likely result in fewer prosecutions. The possibility of inferring knowledge, however—if, for example, a person’s job responsibilities suggest that they should have known that an activity was permitted—would target real malefactors. This approach would put a greater burden on regulators than on the regulated by focusing on the permit itself rather than on the nature of the harm.
This is not to suggest, however, that statutory amendments explicitly defining knowledge in terms of MPC standards would entirely resolve concerns about federal environmental criminal liability. While the more objective MPC standards represent an improvement over the common law criminal liability standards, they are far from perfect, since an inquiry into a defendant’s awareness may result in some degree of subjective assessment as to motive—sometimes based entirely on circumstantial evidence and inferences from that evidence.
Nonetheless, the MPC standards unquestionably represent an improvement over the use of liability standards derived from the common law. Imagine, for instance, facts similar to those in Boldt or Brittain but involving releases of lead, cadmium, or manganese at levels once classified as “sub-clinical” but, in light of evidence supporting the Neurotoxicity Hypothesis, were recently classified by the EPA as levels below which discharges are not permitted. Further imagine that, knowing of this recent reclassification but disagreeing with it, believing such reclassification to be an instance of unnecessary, over-zealous regulation, a lead battery manufacturing plant supervisor allowed discharge of toxic sludge into a point source at an unpermitted level. In that event, as Boldt and Brittain make clear, a criminal conviction under section 1319 of the CWA would be appropriate. Moreover, as the above analysis suggests, such a conviction would accord with the MPC definitions for the CWA’s statutory standards, although not with the common law regulatory protocol recently articulated by the Supreme Court.
Finally, another alternative raised by the Neurotoxicity Hypothesis is that criminal penalties for discharges should be reduced, provided that environmental statutes are correspondingly revised to increase civil penalties. For instance, as indicated previously, neuro-toxicity researchers posit that preventing neurotoxic contamination that may lead to violent criminal behavior may be relatively inexpensive.197
The above analysis confirms that further data validating the Neurotoxicity Hypothesis is likely to result in increased convictions under the CWA and other federal environmental statutes, assuming revised [*PG389]discharge standards. Such convictions, importantly, will occur because it will be possible to satisfy the MPC-influenced mental state requirements contained in the CWA’s principal criminal provision. Arguably, this is a fair result. On the one hand, the Neurotoxicity Hypothesis is likely to lead to a heightened degree of responsibility for industries that handle neurotoxic metals, at a risk of criminal prosecution. On the other hand, if such prosecutions proceed under federal statutes that clearly define “knowing” violations according to MPC mens rea standards, industries will not face the uncertain and highly subjective possibility of being classified as “public welfare” offenders. In the event that the volume of neurotoxicity-related prosecutions under the environmental statutes increases, violators could be forced to help pay for the costs of preventing future contamination by making significant contributions to nutrition and preventative medical programs, in addition to reducing discharges of toxic materials.
To the extent that neurotoxicity data remains controversial, for the reasons outlined above,198 an increase in such prosecutions could well lead to increased calls from industries that use any of these toxic elements in their production to amend the CWA and other federal environmental criminal laws; industry’s demand surely would be to make it much more difficult to secure convictions. It can only be [*PG390]hoped, however, that as the Neurotoxicity Hypothesis is more convincingly supported with hard evidence, the need for the very real threat of criminal prosecution—or some comparable civil deterrent—will continue to be recognized. The overwhelming social interest in maintaining the recent, celebrated declines in violent criminal behavior should never be forgotten.199
The data undergirding the Neurotoxicity Hypothesis mounts every month, and therefore demands the attention of lawyers and policymakers. At the very least, it will present real challenges to those who continue to insist upon the importance of the notion of mens rea as a—if not the—fundamental tenet of our system of criminal justice. That is, if violent criminals can establish significant evidence of childhood neurotoxic contamination, they will have powerful affirmative defenses to any charges brought against them. This will certainly be true at the sentencing stage, if less so at the conviction stage.
Similarly, the demonstrated link between neurotoxicity and crime likely will result in the increased conviction of those responsible for neurotoxic damage. This Article has outlined some of the ways in which this is so. It is hoped that the Article will also go some distance towards furthering the call for clarification of the liability standards contained in our nation’s federal environmental laws. Failure to do so risks calling the fundamental integrity (and successful application) of those laws into serious question.