Criminal Ambiguity: Redefining the Clean Water Act's Mens Rea Requirements

Abstract

Four decades ago, Congress passed the Clean Water Act, the most important legislation regulating water pollution in United States history. Surprisingly, attorneys, legal scholars, and judges still grapple with the level of criminal intent the Clean Water Act requires — the mens rea requirements — for a person to commit a Clean Water Act crime today. The prevailing “offense analysis” approach to assess the appropriate mens rea has produced inconsistent results in different courts for decades. Congress never considered whether to require proof that the defendant had actual knowledge that his or her conduct violated any Clean Water Act provisions. Meanwhile, over the decades, the case law has sharpened on what constitutes a public welfare offense, when Congress intends that one or more elements of an offense have no mens rea requirement. As a result, courts now use its language to deal with environmental circumstances and changed prosecutorial priorities that Congress could never have contemplated when it passed the Act.This Article reviews environmental changes since the Clean Water Act and explains why most mens rea analysis of Clean Water Act crimes is indeterminate, resulting in federal courts of appeal remaining deeply and persistently divided on which standard to apply. Against its general policies of resolving Circuit Court splits, the U.S. Supreme Court has denied judicial review — certiorari — time and time again.In this Article, I suggest that the U.S. Supreme Court continue to decline certiorari in a select group of important cases where it is unlikely that Congress and courts would be able to clarify the ambiguity. I suggest a legislative solution to the Clean Water Act’s mental state requirements. Congress, the political branch, should draft restyled criminal enforcement provisions that specify mens rea requirements for each individual element of the offense. It is the role of the legislature, not courts, to define priorities in enforcing current violations, deterring future violations, and protecting defendants’ due process rights. In this Article, I provide a new approach to help Congress achieve these goals. In doing so, Congress can make a fresh decision on how to balance enforcement and due process concerns.