The panel: Judges Bade, Bumatay, and Márquez (D. Ariz.), with Judge Bumatay writing for the majority and Judge Bade dissenting.Key highlight: “But like Russian nesting dolls, the statutory definitions keep going.”Background: James Philip Lucero was accused of charging construction companies to dump dirt and debris near the San Francisco Bay. 33 U.S.C. § 1319(c)(2)(A) makes it a crime to “knowingly violate[] section 1311.” Section 1311 uses a phrase defined elsewhere in the statute; in turn, phrases in that definition have their own statutory definitions.

The mens rea required for environmental crimes is far lower than many other types of crimes. Most environmental criminal statutes require only proof of general intent, or knowledge of the facts involved in the prohibited conduct, but not knowledge that the conduct was illegal.“Knowingly violating” the statute, regulations and/or permits is a felony under the Clean Water Act at 33 U.S.C. § 1319(c)(2), the Resource Conservation and Recovery Act, and a misdemeanor under the Endangered Species Act at 16 U.S.C. § 1540(b)(1). But federal courts—such as the U.S. Court of Appeals for the Second Circuit in a 2001 ruling in United States v. Weintraub—have made it clear that “the phrase ‘knowingly violates’ requires knowledge of facts and circumstances that comprise a violation of the statute, not specific knowledge that one’s conduct is illegal.Some environmental statutes set out strict liability offenses, where a defendant can be convicted without any showing that he knew the facts or law that make up the offense, such as the misdemeanor provision under the Refuse Act at 33 U.S.C. § 411. Other statutes criminalize negligent conduct, such as the Clean Water Act at 33 U.S.C. § 1319(c)(1).Even those environmental crimes that require proof that a defendant knew his conduct was illegal can be easy to prove against defendants who work in highly regulated industries.

Trump’s Justice Department had also issued a rule finalized in December 2020 that codified its ban on third-party payments; the new administration is reviewing that rule and likely will withdraw or revise it in the near future.Compare, e.g., 33 U.S.C. §1319(b) (authorizing EPA Administrator to “commence a civil action…for any [Clean Water Act] violation for which he is authorized to issue a compliance order,” without any mens rea requirement) withid. §1319(c) (authorizing criminal fines and imprisonment for “negligent” violations, and greater fines and imprisonment for “knowing” violations); 42 U.S.C. §7413(b) (authorizing EPA Administrator to commence a civil action where a party has violated a provision of the Clean Air Act, without any mens rea requirement) with id. §7413(c) (allowing for criminal fines and imprisonment for “knowing” violations, as well as for “negligent” violations in certain circumstances).

Under environmental laws, which protect the public welfare, company officials and employees are subject to criminal liability for negligent violations. See, e.g., 33 U.S.C. § 1319(c)(1) (criminal liability for negligent violations of the Clean Water Act); 33 U.S.C. § 1319(c)(6) (persons who may be criminally prosecuted under the Clean Water Act include “responsible corporate officers”); 42 U.S.C. § 7413(c)(4) (criminal liability for negligent violations of the Clean Air Act); 42 U.S.C. § 7413(c)(6) (persons who may be criminally prosecuted under the Clean Air Act include “responsible corporate officers”). Thus, no specific intent, or mens rea, is required to be found guilty.

on and yet may still affect the chemical, physical, or biological integrity of nearby navigable waters. It also led to pending cases such as Texas v. EPA, No. 3:23-CV-00017 (S.D. Tex., filed Jan. 18, 2023) and Kentucky Chamber of Com. v. EPA, No. 3:23-CV-00008-GFVT (E.D. Ky., filed Feb. 22, 2023), which are challenges to the 2023 regulations to be successful. Ultimately, Congress will need to step in to create a less ambiguous definition of WOTUS, and the Agencies will need to promulgate a set of consistent and unambiguous regulations, which will give clear direction to all interested parties and avoid extensive litigation.Pending either some action by Congress to clarify the statutory definition or further regulatory action consistent with the holding in Sackett, interpretation of the extent of the Agencies’ jurisdiction is in a state of limbo, and it is probable that there will be inconsistencies among the Corps' districts in their jurisdictional determinations. 33 U.S.C. § 1311(a). 33 U.S.C. § 1319. Clean Water Act § 502(12), 33 U.S.C. § 1362(12).Id. 33 U.S.C. 1362((7). 40 C.F.R. § 6.102 (1979). 33 C.F.R. § 328.3 (2015). 33 C.F.R. § 328.3 (2019). 33 C.F.R. § 328.3 (2023).American Farm Bureau Fed'n v. EPA, No. 3:23-CV-20 (S.D. Tex., filed Jan. 18, 2023); Kentucky Chamber of Com. v. EPA, No. 3:23-CV-00008-GFVT (E.D. Ky., filed Feb. 22, 2023).Kentucky v. EPA, No. 3:23-CV-00007 (E.D. Ky., filed Feb. 22, 2023); Texas v. EPA, No. 3:23-CV-00017 (S.D. Tex. Filed Jan. 18, 2023); W. Virginia v. EPA, No. 3:23-CV-00032-PDW-ARS (E.D.N.D., filed Feb. 16, 2023).Sackett v. EPA, 8 F.4th 1075, 1092-93 (9th Cir. 2021) rev'd 598 U.S. ___ (2023).Sackett v. EPA, 2023 U.S. LEXIS 2202 at *39.Id. at *37.Id.Sackett, at *39, citing Rapanos, 547 U.S. at 755. 33 C.F.R. § 328.3 (2020); 33 U.S.C. § 1251 et seq. 33 C.F.R. §328.3(a)(ii).

l District Court in Massachusetts recently made that clear in dismissing a citizen suit filed by the Conservation Law Foundation against the Massachusetts Water Resources Authority, which operates Boston’s Deer Island Sewage Treatment Plant, the second largest treatment plant in the country. (Full disclosure: I represented the MWRA in that suit.) The Court rejected CLF’s claims that the MWRA was required to take enforcement action against every industrial user that discharged to the MWRA’s sewer system in violation of pretreatment regulations.The Court rejected the Complaint on two grounds, but the first is likely to be more interesting and to potentially have broader effect nationwide. The Court ruled, on an issue of first impression, that only EPA and not private citizens can seek redress for alleged deficiencies in the way a POTW enforces its pretreatment regulations. This resulted from a careful analysis of the interplay between 33 U.S.C. §1365, which authorizes citizen suits, and 33 U.S.C. §1319(f), which specifically gives EPA the authority to take action if the POTW is not sufficiently enforcing its pretreatment regulations. Looking at the language of the statute and the policy considerations, the Court held:“Thus, while the role of the citizen as an adjunct to EPA’s primary enforcement power is estimable, it does not supplant the discretionary authority of the EPA Administrator, particularly in areas like the enforcement of an [Enforcement Response Plan], where consistency of purpose and predictability of result are the desirable outcomes.”As to the other ground, the Court found that the MWRA’s Enforcement Response Plan was discretionary and did not create mandatory obligations for enforcement. As a result, the Court found that the MWRA’s NPDES Permit did not require it to take enforcement action in each instance of noncompliance by an industrial user. The Court further found that the applicable pretreatment regulations “cannot be plausibly read to require a POTW to impose a

In fact, the CWA precludes a federal civil penalty action when a state (1) commences and is diligently prosecuting or (2) successfully pursues or is pursuing administrative action under state law “comparable” to the federal administrative penalty scheme. CWA § 309(g), 33 U.S.C. § 1319 (g). Strangely, however, the statutory deference to states does not apply to state civil judicial enforcement actions. Likewise, the CWA does not explicitly prevent the federal government from pursuing a subsequent administrative action even when civil judicial enforcement is precluded by the CWA.New DOJ PolicyRecognizing the incongruity of state action precluding a federal administrative action but not a federal judicial action for the same violations, DOJ recently adopted a revised enforcement policy.

State and federal agencies often partner to bring a case as co-plaintiffs, and in some cases the CWA requires state involvement in an enforcement action. E.g., 33 U.S.C. § 1319(e) (states must be joined as parties in any civil enforcement action against a municipality). In practice, states have been and will remain in the lead for most enforcement actions taken under delegated programs like the CWA’s NPDES (National Pollution Discharge Elimination System) permitregime.

[4] P. Hamburger, The Administrative Threat at 33-34 (Encounter Books 2017).[5] 33 U.S.C. § 1319(d).[6] Tull, 481 U.S.at 417.

Maximum penalties for violations of hazardous waste rules under the Resource Conservation and Recovery Act, 42 U.S.C. section 6928(g), increased from $37,500 to $70,117 per day per violation. Maximum penalties for violations of an effluent limit under the Clean Water Act, 33 U.S.C. section 1319(d), increased from $37,500 to $51,570 per day per violation. Maximum penalties for violations under the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. section 11045(b)(1)(A), and the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. section 9606(b)(1), for failure to comply with release reporting requirements increased from $37,500 to $53,907 per day per violation.