# Amicus Curiae Brief — Hanousek v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 1102

## Text

| Supreme Cour, U.S.
FILED

4 ) OCT 22 0

No. 99-323

CLERK

IN THE
SUPREME COURT OF THE UNITED STATES

EDWARD HANOUSEK, JR.,
Petitioner,
v.

UNITED STATES OF AMERICA,
Respondent.

On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF
THE WASHINGTON LEGAL FOUNDATION
IN SUPPORT OF PETITIONER

DANIEL J. POPEO PETER L. GRAY
PAUL D. KAMENAR LAWRENCE S. EBNER*
WASHINGTON LEGAL ROBERT A. MATTHEWS
FOUNDATION LAWRENCE J. JOSEPH
2009 Massachusetts Ave.. NW MCKENNA & CUNEO, L.L.P.
Washington, D.C. 20036 1900 K Street, NW
(202) 588-0302 Washington, D.C. 20006
(202) 496-7500
*Counsel of Record

Date: October 22, 1999

TABLE OF CONTENTS
TABLE OP ALTTISORIT IS ecsesscsesssessccesescoscecsssssccssccccsersess i
INTEREST OF AMICUS CURIAE ........scccseccssersccesscesocseseess l
INTRODUCTION AND STATEMENT
Se ee ND seesetascssieDidavepincainsicesiiibielinidieniciidliiaditbdapesiiiideas 2
SUMMARY OF ARGUMENT ............:csscccssscsssssosseseseserooees 4
REASONS FOR GRANTING THE WRIT ...............:ecec00e 6
I. THE CLEAN WATER ACT IS NOT
“PUBLIC WELFARE” LEGISLATION ....................006. 6
A. The Public Welfare Doctrine Always
Has Been Limited to Inherently
Dangerous Activities For Which the
Py a cisiusisinsintucdebitlbiniiinibisianssonanininignssinainaa 6
B. The Ninth Circuit Misapplied The
Public Welfare Doctrine To The Clean
PRUE IEE nasecschnindivisinisuterhncatitiaiiabiinilindipanniaianiasibiinindadisaltete 8
1. Punishment for negligent discharges
Te cincnieccinciniititinittpanbiliigsintienininnditaniieinibidten 9
2. The conduct proscribed by the Clean
Water Act is not apparent to the
ID inicesitnttditenesattiiipiacinstancesiinieuniiinn 9

3. The Ninth Circuit's interpretation of
“negligently” is not appropriate in the
Ce ED vicictniccciiccciictenetcintsnrsnintitaennisitan

Il. THE IMPLICATIONS OF THE NINTH
CIRCUIT’S DECISION REACH BEYOND
TEES COBLAN WATER ACT cnccccccsessssesessossessesesccsccsceses 14

A. The Clean Air Act Has A Similar Criminal
RET ARE 14

B. The Ninth Circuit’s Decision Will Have
a Negative Impact on Environmental
ita ni cesinctiiscombinenedimnodenens 14

UTTENIIIIIITT Ansedbilididithameidsnunetsnceminercvnsctsnenevertevtoiocintuneiaan 15

ill
TABLE OF AUTHORITIES

Cases

Morissette v. United States, 342 U.S. 246 (1952) oo... 8
Nve & Nissen v. United States, 336 U.S. 613 (1949) .......... 13
Regina v. Woodrow, 15 M. & W. 404 (Exch. 1846) ............. 7
Staples v. United States, 511 U.S. 600 (1994)... 5,8
United States v. Balint, 258 U.S. 250 (1922) .o.........cccccceee 7
United States v. Dotterweich, 320 U.S. 277 (1943) ....0000.... 12

United States v. Hanousek, 176 F.3d 1116
EE ITED eiieciresicvnicictnedncentinaniiananinenciningsadmantensens passim

United States v. Hitachi America, Ltd., 172 F.3d
ee 13

United States v. International Minerals & Chem.
TR, 8, 11

United States v. Mills, 817 F. Supp. 1546, 1548
(N.D. Fla. 1993), aff'd, 904 F.2d 713 (11"
Se )

Weitzenhoff v. United States, 35 F.3d 1275
(9" Cir. 1993), cert. denied sub nom.,
Mariani v. United States, 513 U.S. 1128
RES a eae ee 1,5, 11,14

iv

Statutes

SOA OIE vnicctitenintinadidamanel 10, 11
SO UIOE: 6 CUI acetic 13
SD ODE: 6 NII iccctticicisintitritinnicinginieliada 13
SD ChB. © CODD Sctcicseetrsinaniiicetaillliiecs 4,9, 13
SD UBL: © CRUD pisctretctseceniicsiniciniteeetiaticiecisabii 13
SB CRE 6 DD iiciccciinesiniiitenibaiilienaiaibll 13
SB ORI: Oise cccienstiishicnliciiielschaaniilialeniai 13
SO UBL: 0 I i nitnnintsisntnbiabiiidial 13
33 U.S.C. § 1321 (0)(3) ccccccccccsccssssesessessvsssveeesencennessseee 4,9, 11
50 CG OI reece liciniaabenneiens 13
90 COE 0 CRD civics i
SOO BOE i cctenisisitnediaiael 10
eves 1 ae 6, 14
Regulations

SCPE CUED ccidnitaedh ented 10
Pt | nen re oo 10

QDI IR. © BID IOD aceeccreenceneeneressecereeensensenesenssnemsmnssitnen 10

v
ae Oh ee Fee CR receccectctesttcreninenicsemennnee 11
Miscellaneous
U.S. Army Corps of Engineers, Wetlands Delineation
STENT citcnsitsesnnisiisiahpinisiapaiibaniiimtabbidigteeamaiieciismunen 10

U.S. Environmental Protection Agency, Wetland
Identification and Delineation Manual (1988) .............. 11

United States Sentencing Guidelines, § 2Q1.2
re 9

INTEREST OF AMICUS CURIAE'

The Washington Legal Foundation (“WLF’) is a
national non-profit public interest law and policy center
based in Washington, D.C., with supporters nationwide.
WLF devotes substantial resources to litigating cases and
filing amicus curiae briefs in "his and other federal courts
promoting a limited and accountable government, and
opposing overreaching by those administrative agencies and
courts which act contrary to the plain meaning of the
language chosen by Congress in the substantive statutes at
issue.

WLF has participated as amicus curiae in numerous
environmental cases, including those involving criminal
application of the Clean Water Act (“CWA”). See, e.g.,
Weitzenhoff v. United States, 35 F.3d 1275 (9" Cir. 1993),
cert. denied sub nom., Mariani v. United States, 513 U.S.
1128 (1995); United States v. Ahmad, 101 F.3d 386 (5" Cir.
1996). WLF vigorously opposes the arbitrary use of criminal
prosecution, especiall’ where administrative and civil
remedies are available to resolve alleged regulatory
infractions.

WLF is able to bring a broader perspective to this
case than the parties and presents additional reasons why this
Court should grant the Petition, including the important issue
of whether the Government must prove a defendant’s
criminal intent to convict the defendant of “negligently
violating” the Clean Water Act.

! Pursuant to S. Ct. R. 37.6, WLF hereby affirms that no counsel for
either party authored any part of this brief, and that no person or entity
other than WLF and its counsel provided financial support for preparation
or submission of this brief.

2

This brief is being filed with the consent of all the
parties. Letters of consent are on file with the Clerk of this
Court.

INTRODUCTION AND STATEMENT OF THE CASE?

Edward Hanousek, Jr. has petitioned this Court to
review his criminal conviction under the Clean Water Act for
which he received the maximum sentence -- twelve months
imprisonment (six months incarceration and six months
confinement in a halfway house) and an additional six
months of supervised release. WLF urges this Court to grant
certiorari, not simply because the conviction and sentence are
unconscionable, but because the Ninth Circuit, in affirming
Mr. Hanousek’s conviction, has set a precedent which
violates due process.

In 1994, Mr. Hanousek’s employer, the Pacific &
Arctic Railway Company (“PARN”’) hired an independent
contractor, Hunz & Hunz (“H&H”), to straighten a 1000-foot
section of track on the White Pass & Yukon Railroad line.
The operation involved removal of rock outcroppings and
disposal of the resulting debris. H&H employees used
backhoes to load debris from the operation into rail cars for
transport off-site. A petroleum pipeline, not owned or
operated by either PARN or H&H, runs adjacent to this
section of track. To prevent damage to the pipeline, H&H
placed a protective cover (consisting of railroad ties, sand and

2 The facts set forth herein were extracted from the Ninth Circuit's
opinion in United Stated v. Hanousek, the Petition for Certiorari, and the
Petitioner's Opening Brief filed in the Ninth Circuit. Although WLF
concurs with Petitioner's Statement of the Case, certain facts merit
additional emphasis.

3

ballast material) over a 300-foot section of the pipeline. In
addition, H&H created a work platform of sand and gravel
from which the backhoe was operated. According to one of
the H&H backhoe operators, the project never required the
backhoe to leave the work: platform.

Sometime after H&H had commenced working on the
project, PARN hired Mr. Hanousek as a “roadmaster’”’ for the
White Pass & Yukon Railroad. In this position, one of Mr.
Hanousek’s responsibilities was overseeing the work being
performed by H&H. Hanousek directed what work was to be
done by H&H, but he did not direct how it was to be done.
As an independent contractor, it was H&H’s responsibility to
perform the work in a professional manner.

One evening, an H&H backhoe operator noticed a few
rocks laying alongside the track near the pipeline
approximately 100 yards from the active work site area.
Instead of walking over on foot to move the rocks by hand,
the backhoe operator apparently decided it would be easier to
move the rocks with the backhoe. Accordingly, the H&H
employee drove the baekhoe off of the work platform,
rumbled 100 yards to the location of the debris, and
attempted to sweep the rocks away from the tracks with the
backhoe bucket. Unfortunately, the backhoe bucket
accidentally struck and cracked an unprotected section of the
pipeline, causing a leak. The backhoe operator immediately
radioed the pipeline’s pump station, and the pipeline was shut
down within a few minutes. Nevertheless, witnesses reported
seeing a sheen of oil on a nearby Skagway River after the
accident.

The H&H backhoe operator did not tell Hanousek
about the rock debris, nor ask for guidance on how to clear
such debris. Hanousek was not even in the area when the
accident occurred. Rather, he was off duty and at home.

4

Nevertheless, Hanousek was convicted of “negligently”
violating the Clean Water Act’s prohibition on discharging
oil in harmful quantities to “navigable waters,”
33 U.S.C. §§ 1319(c)(1 (A) & 1321(b)(3) (1994).

The district court instructed the jury that to find
Hanousek guilty, they need only conclude that the discharge
was caused by Hanousek’s negligent conduct -- defined by
the district court as the failure to use reasonable care. It is
not clear from the Ninth Circuit’s opinion what Hanousek
did -- or did not do -- that constituted the negligent act. WLF
does not intend to dwell on that troubling question. Rather,
WLF’s focus is the Ninth Circuit ruling that the Government
need only prove ordinary negligence, rather than criminal
negligence, to convict Hanousek because the Clean Water
Act is “public welfare legislation.” United States v.
Hanousek, 176 F.3d 1116, 1121 (9" Cir. 1999).

SUMMARY OF ARGUMENT

The general rule is that to obtain a cnminal
conviction, the Government must prove beyond a reasonable
doubt that the defendant possessed a criminal state of
mind -- mens rea. But, as the Ninth Circuit notes, the “public
welfare doctrine” creates the following exception to this rule:
The Government need not prove mens rea as an element of a
crime where a defendant is involved in an activity which the
defendant should know may result in severe damage or injury
to public welfare.

Due process, however, must operate as a “governor”
of the public welfare doctrine. A fundamental axiom of due
process is that ordinary citizens must be given fair warning of
what constitutes a criminal offense. Such fair warning is
lacking in the case of the Clean Water Act’s “negligence”
provision. Ordinary citizens do not possess the specialized

5

knowledge necessary to distinguish lawful from unlawful
discharges under the Clean Water Act’s complex regulatory
framework. Such complexity alone conflicts with the
rationale for applying the “public welfare” doctrine -- i.e., the
presumption that the actor should know his activity poses a
danger to society and is heavily regulated -- and instead
warrants application of the general rule that the Government
must prove a defendant’s criminal intent to sustain a criminal
conviction.

The due process limitation on the public welfare
doctrine is brought into sharp relief in cases like the present
one, where successive acts by independent actors combine to
cause the violation. According to the Ninth Circuit,
Mr. Hanousek “negligently violated” the Clean Water Act
prohibition against discharging oil to navigable waters,
notwithstanding that an H&H employee, not Mr. Hanousek,
was the party that accidentally discharged the oil. Not only
does this holding conflict with the plain language of the
Clean Water Act’s criminal provision (which applies to the
person discharging the oil), but it also runs roughshod over a
fundamental tenet of the public welfare doctrine, namely, that
mens rea may be eliminated only where the defendant stands
in a position that “places him in responsible relation to a
public danger, such that he should be alerted to the
probability of strict regulation.” Staples v. United States, 511
U.S. 600, 607 (1994). Mr. Hanousek -- a “roadmaster” in
charge of railroad tracks -- is not an environmental manager
for the pipeline company, nor one whose position even
arguably includes environmental responsibilities.

The Court was last presented with the question of
whether the Clean Water Act is public welfare legislation in
1994 when the Ninth Circuit’s decision in Weitzenhoff v.
United States, 35 F.3d 1275, was the subject of a petition for
writ of certioran. The Court declined to review the Ninth

6

Circuit decision affirming a Clean Water Act ccnviction of
the defendant for “knowing” violation without a showing of
criminal intent to violate the law. 513 U.S. 1128 (1995) (sub
nom., Mariani v. United States). Since that time, confusion
over whether the Clean Water Act is a public welfare statute
has become pronounced. As the petitioner states, the circuits
are divided on the issue.

There is now a compelling need for guidance from the
Supreme Court. This need is magnified by the fact that
similar criminal provisions are found in other, equally
far-reaching statutes, such as the Clean Ajir Act,
42 U.S.C. § 7413(c). Without the Court’s guidance, we risk
criminalizing conduct that, to the average citizen, would not
be perceived as criminal. One need not conjure up a parade
of horribles to illustrate the danger. It cannot get much worse
than the facts of this case.

REASONS FOR GRANTING THE WRIT

I. THE CLEAN WATER ACT IS NOT “PUBLIC
WELFARE” LEGISLATION

A. The Public Welfare Doctrine Always Has
Been Limited to Inherently Dangerous
Activities For Which the Penalty is Light

The antecedents of the public welfare doctrine are
interwoven with the mse of the industrial age, which
transformed a primarily agrarian society into one dominated
increasingly by mechanization and dependence on care
expected of third parties. That transformation had benefits,
but also costs. Society faced new dangers, which the laws
were ill equipped to prevent --tainted foods could be
packaged and quickly delivered to a large number of people;

i

)

7

water poisoned with ecoli bacteria could be piped to an
unsuspecting public.

The earliest cases to articulate the public welfare
doctrine come from the English courts. For example, in
Regina v. Woodrow, 15 M. & W. 404 (Exch. 1846), a
criminal action was brought against a tobacco dealer to
enforce a forfeiture of £200 for possessing adulterated
tobacco. The Court of Exchequer held the respondent liable
even though he proved that he had purchased the tobacco as
genuine, and “had no knowledge or cause to suspect” that it
was not so. “It is very true,” said Baron Parke, “that it may
produce mischief because an innocent man may suffer from
his want of care in not examining the tobacco he has
received, and not taking a warranty but the public
inconvenience would be much greater, if in every case the
officers were obliged to prove knowledge. They would be
very seldom able to do so.” The penalty in Regina v.
Woodrow involved no possibility of imprisonment, the
prohibited conduct caused a very direct and widespread
public annoyance, and the existence of a mens rea was
peculiarly difficult if not impossible for the state to prove.

Seventy-six years later, this Court carved out the same
exception to the otherwise applicable rule that proof of
criminal intent is a prerequisite to criminal conviction. In
United States v. Balint, 258 U.S. 250 (1922), the Court held
that the Government did not have to prove men rea to convict
a defendant of selling opium without a registration required
under the Narcotics Act of 1917: “{W]here one deals with
others and his mere negligence may be dangerous to them, as
in selling diseased food or poison, the policy of the law may,
in order io stimulate proper care, require the punishment of
the negligent person though he be ignorant of the noxious
character of what he sells.” Jd. at 252-53.

8

This Court’s articulation of the doctrine has not
materially changed since that time, except to clarify that a
defining characteristic of public welfare legislation is that the
criminal offense typically involves little or no imprisonment.
See, e.g. Morissette v. United States, 342 U.S. at 256 (1952)
(“[P]enalties commonly are relatively small, and conviction
does no grave damage to an offender’s reputation”); Staples
v. United States, 511 U.S. 600, 616, 618 (1994) (“[T]he cases
that first defined the concept of the public welfare offense
almost uniformly involved statutes that provided for only
light penalties or short jail sentences. ... [A] severe penalty
is a further factor tending to suggest that Congress did not
intend to eliminate a mens rea requirement”). See also
United States v. Int'l Minerals & Chem. Corp., 402 U.S. 558
(1971).

B. The Ninth Circuit Misapplied The Public
Welfare Doctrine To The Clean Water Act

The “negligent violation” provision of the Clean
Water Act does not fit the profile of public welfare
legislation. The potential punishment for criminal violations
is anything but light; and the materials and activities subject
to regulation are not of a nature that one should be presumed
to be aware. More fundamentally, the public welfare
doctrine’s rationale for eliminating the mens rea requirement
does not apply to the present case where the defendant is not
the party handling a dangerous substance or engaging in a
dangerous activity. Under such circumstances, it is
indefensible to presume the requisite intent on the part of this
defendant.

9

1. Punishment for negligent discharges is
not light.

Under the criminal enforcement provisions, a first
offender who “negligently violates” any of the many
substantive requirements of the Clean Water Act may be
fined $25,000 per day per violation and imprisoned for up to
one year. 33 U.S.C. § 1319(c)(1). For second violations, the
maximum penalty is $50,000 per day and up to three years
imprisonment. Thus, with felony-length sentences possible,
one could hardly characterize the punishment for violations

as light.

The possibility of a lengthy sentence for a minor
violation of the Clean Water Act is not merely theoretical.
Under the United States Sentencing Guidelines, § 2Q1.2 and
§ 2Q1.3, first offenders are routinely sentenced to lengthy
prison terms for minor regulatory offenses that do not
perceptibly threaten human health. For example, in United
States v. Mills, a father and son were sentenced to prison for
21 months for placing clean building sand on a quarter-acre
lot that EPA deemed to constitute a wetland. 817 F. Supp.
1546, 1548 (N.D. Fla. 1993), aff'd, 904 F.2d 713 (11" Cir.
1994). In short, by any standard the punishments meted out
under the Clean Water Act are severe in proportion to the
harm caused by the offense and the culpability of the
defendant.

2. The conduct proscribed by the Clean
Water Act is not apparent to the
average citizen.

The reach of the Clean Water Act is so broad that
only an environmental expert could be expected to
distinguish between lawful and unlawful discharges. Two
CWA requirements subject to criminai punishment illustrate

10

the point, specifically: (1) the prohibition against the
discharge of “pollutants” to “navigable waters’ without a
CWA permit (33 U.S.C. § 1311); and (2) the prohibition
against the discharge of oil and “hazardous substances” to
“navigable waters” (33 U.S.C. § 1321(b)(3)) (the provision
allegedly violated by Mr. Hanousek). The seemingly simple
phrases used in these two CWA prohibitions belie a complex,
ever-changing maze of regulation that has created decades of
work for thousands of environmental lawyers and
consultants.

Under the Clean Water Act, “navigable waters” are
defined as “waters of the United States, including the
territorial seas.” 33 U.S.C. § 1362(7). EPA and the United
States Army Corps of Engineers (the “Corps”), which share
regulatory authority under the Clean Water Act, each have
promulgated regulations broadly defining “waters of the
United States” to include “intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats,
wetlands, sloughs, prairie potholes, wet meadows, playa
lakes, or natural ponds the use, degradation or destruction of
which would affect or could affect interstate or foreign
commerce.” See 40 C.F.R. § 122.2 (EPA definition);
33 C.F.R. § 328.3 (Corps definition).

Many of the terms used in the EPA/Corps definition
of “waters of the United States” also have been defined
expansively, such as the term “wetland.” Under EPA and
Corps regulations, the term “wetland” encompasses dry land
that supports “vegetation typically adapted for life in
saturated soil conditions” (“hydrophytic vegetation”).
See 40 C.F.R. § 230.3(t); 33 C.F.R. § 328.3(b). Identifying
“hydrophytic vegetation” is so complicated that in 1987 the
Corps published a severail-hundred page manual to “ensure

ll

consistent regulation of wetlands.”’ One year later, EPA
published its own procedures for identifying and delineating
wetlands.*

Similar complexities abound in identifying the
“pollutants” for which one must obtain a permit before
discharging to “navigable waters” (33 U.S.C. § 1311). The
“pollutants” that one may not discharge without a permit
include far more than simply “obnoxious waste materials”
(quoting from /nt'l Minerals, supra) that pose patent dangers
to water quality. Indeed, the term “pollutant” is defined so
broadly that virtually anything one discharges to “waters of
the United States” requires a permit.’ As the five dissenting
judges in United States v. Weitzenhoff observed, one could
violate the Clean Water Act prohibition on unpermitted
discharges of “pollutants” simply by “skipping a stone into a
lake” or “pouring hot stale coffee down the drain.” 35 F.3d
at 1298.

It is no easier to identify “hazardous substances” the
discharge of which is_ absolutely prohibited
(33 U.S.C. § 1321(b)(3)). The list of “hazardous substances”
subject to the absolute discharge prohibition under the Clean
Water Act is populated with substances that few would
regard as inherently dangerous or hazardous -- e.g., copper

3 US. Army Corps of Engineers, Wetlands Delineation Manual (1987).

4 EPA, Wetland Identification and Delineation Manual (1988).

> The term “pollutant” means “dredged spoil, solid waste, incinerator
residue, sewage, garbage, sewage sludge, munitions, chemical wastes,
biological materials, radioactive materials, heat, wrecked or discarded
equipment, rock sand, cellar dirt and industrial, municipal, and
agricultural waste discharged into water.” 33 U.S.C. § 1362(6).

12

and nickel. See 40 C.F.R. §302.4, Appendix A.
Complicating matters further, EPA has amended the list
countless times. Environmental professionals spend
considerable time tracking such changes and modifying
corporate compliance procedures as appropriate.

Not even an environmental professional could be
expected to know all of the nuances of the Clean Water Act,
much less a layman like Mr. Hanousek.

3. The Ninth Circuit's interpretation of
“negligently” is not appropriate in the
criminal context.

Perhaps the most troubling aspect of the Ninth
Circuit’s decision is the notion that an individual can be
criminally prosecuted for “negligently” discharging a
regulated substance where the individual is not the party that
discharged or directed the discharge of the substance. Rather,
under the Ninth Circuit holding, anyone can be imprisoned
for a negligent act or omission which, in combination with
another’s subsequent negligent act, causes a discharge of a
regulated substance. That means that someone like
Mr. Hanousek, a “roadmaster” who is far removed the world
of “hazardous substances,” “pollutants,” and “navigable
waters,” goes to jail if he makes a mistake which is ruled to
be a proximate cause of a prohibited discharge. Such a
construction impermissibly cleaves apart the criminal
act -- “negligently violates” -- from the actor (“Any person
who”) in a way that Congress could not have intended.

In previous cases where this Court has held an
individual criminally liable for an offense in which the
individual did not directly participate (e.g., shipping or
labeling adulterated drugs), the Court relied on the theory that
one who aids and abets a violation is as guilty as the

13

principal. See United States v. Dotterweich, 320 U.S. 277,
281, 284 (1943) (holding corporate officer liable for aiding
and abetting a violation). Negligent supervision of a
subcontractor whose subsequent negligence violates the
Clean Water Act does not constitute “aiding and abetting” the
violation. See Nye & Nissen v. United States, 336 U.S. 613,
618-19 (1949) (“[T]o aid and abet another to commit a crime,
it is necessary that a defendant must ‘participate in it as in
something he wishes to bring about, that he seek by his action
to make it succeed’’’) (citations omitted). See also United
States v. Hitachi America, Ltd., 172 F.3d 1319, 1337 (Fed.
Cir. 1999) (holding that one cannot negligently aid and abet a
negligent violation through mere contributory negligence).

In sum, the Ninth Circuit’s application of the “public
welfare doctrine” to the Clean Water Act “negligent
violation” provision violates due process. The Government
must prove more than ordinary negligence on the part of a
defendant to obtain a criminal conviction.®

© Lest there be any concer that polluters will run rampant without the
threat of criminal conviction based on an ordinary negligence standard,
the Clean Water Act's elaborate civil enforcement scheme forecloses that
scenario. EPA may prosecute CWA violators through any of three
possible mechanisms: (1) EPA may seek administrative penalties of up to
$10,000 per day per violation in a hearing before an administrative law
judge (33 U.S.C. §§ 1319%(g) and 1321(c)(6)); (2) EPA may seek civil
penalties of up to $25,000 per day per violation in federal district court
(33 U.S.C. §§ 1319%(d) and 1321(c\7)); and (3) EPA may issue
administrative orders (“cease and desist orders”) or pursue injunctive
relief in federal district court (33 U.S.C. §§ 1319(a), (6) and 1321(e)).

14

II. THE IMPLICATIONS OF THE NINTH
CIRCUIT’S DECISION REACH BEYOND THE
CLEAN WATER ACT

A. The Clean Air Act Has A Similar Criminal
Provision

The implications of United Stated v. Hanousek are not
limited to the Clean Water Act. The Clean Air Act also
contains criminal enforcement provisions, which punish
individuals for negligent conduct. Specifically, any person
who “negligently releases into the ambient air any hazardous
air pollutant” and thereby “negligently places another person
in imminent danger’ may be imprisoned for up to one year.
For second offenses, the maximum punishment is two years.
See 42 U.S.C. § 7413(c)(4).

Cnminalizing ordinary negligence under the Clean
Air Act would violate due process for the same reasons that
criminalizing ordinary negligence under the Clean Water Act
violates due process -- namely, the penalties are severe, the
conduct proscribed is not readily understood by the average
citizen, and one need not even be the “releaser” to be guilty.

B. The Ninth Circuit’s Decision Will Have a
Negative Impact on Environmental
Protection

In addition to incorrectly presuming knowledge of a
complex regulatory scheme by an individual whose position
does not “place him in responsible relation to a public
danger” (i.e., environmental damage), the Hanousek decision
sends a troubling message to those charged with
environmental management.

The pervasiveness and complexity of environmental
regulation has created an expression among the

15

environmental managers whose job is to ensure their
employer complies with those regulations: “Be a manager,
go to jail.” If United States v. Hanousek is allowed to stand,
this gallows humor comes frighteningly close to being the
truth. To paraphrase the dissent in United States vy.
Weitzenhoff, it would impose on these vitally important
protectors of the environment a massive legal risk, unjustified
by law or precedent. 35 F.3d at 1298. Do we enhance
environmental protection by incarcerating citizens for a
simple error in judgment? Or does such a prosecution
actually undermine environmental protection by setting the
threshold for criminal conduct so low that we will discourage
people from serving in a corporate environmental capacity?

CONCLUSION
For the foregoing reasons, and those discussed in the
Petition for a Wnt of Certiorari, the Court should grant

review.

Respectfully submitted,

DANIEL J. POPEO PETER L. GRAY
PAUL D. KAMENAR LAWRENCE S. EBNER*
WASHINGTON LEGAL ROBERT A. MATTHEWS
FOUNDATION LAWRENCE J. JOSEPH
2009 Massachusetts Ave... NW MCKENNA & CUNEO, L.L.P.
Washington, D.C. 20036 1900 K Street, NW
(202) 588-0302 Washington, D.C. 20006
(202) 496-7500
*Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0332%3A5. Public record. Not legal advice.