How far can prosecutors go when charging corporate officials with the release of hazardous air pollutants? This case involves a criminal prosecution that used a definition of asbestos that is far broader than the long-standing definition in EPA's regulations, subjecting the defendants to potential jail time without due process. The NAM, American Chemistry Council and National Association of Criminal Defense Lawyers filed an amicus brief asking the Supreme Court to hear this appeal from a Ninth Circuit decision that had overturned the trial court's decision to exclude evidence about forms of asbestos that do not fall within EPA's definition.
The Ninth Circuit ruling threatens to treat defendants there more harshly than those elsewhere, using broad interpretations of hazardous materials, and refusing to recognize the rule of lenity, which requires that criminal statutes be clear and provide fair warning. It also undermines the requirement of mens rea, or guilty mind, when assessing blame, which will cause businesses to over-invest in regulatory compliance.
Companies and individuals who transgress an environmental statute -- even unknowingly -- may be guilty of a felony punishable by years of imprisonment. The increasing trend toward criminal prosecutions, coupled with loose interpretations of mens rea, create immense pressure on defendants to accept plea bargains. We argue that due process requires that defendants have fair warning of the conduct that can give rise to criminal liability, particularly in light of the thousands of criminal statutes and regulations that continue to proliferate. While a defendant's professional background may have some bearing on whether he should have known that a particular substance was a pollutant subject to regulation, it is irrelevant to a statute's or regulation's definition of what a pollutant is. Defendants without clear notice of what the law covers should be given the benefit of the doubt under the rule of lenity.
Regulatory crimes are wrongful not because of their intrinsic nature -- like murder, arson, or rape -- but rather because the law says they are. Acts are wrongful only by virtue of legislative or agency determinations. As a result, individuals are less likely to realize when their actions cross the line from permissible to criminal, particularly when laws are incredibly technical and complex. And now the requirement that a violation be "knowing" is eroding -- no longer must the defendant know he is breaking the law; it is enough that he had purposefully done the act, even if he had a permit. Moreover, even things like hot water, rock and sand are pollutants for which criminal liability may be imposed. We urged the Supreme Court to review this case and clarify the standards under which manufacturers may be prosecuted.
On June 23, 2008, the Court declined to review this case.