Ignorance of the law excuses no man. Not that all men know the law, but because ‘tis an excuse every man will plead, and no man can tell how to refute him.
That sentiment, expressed by John Selden, a 16th Century English judge, still holds true today. However, with all due respect to our country’s forbearers, we operate under a more complicated set of laws than the English did in the 1500s. With a few exceptions, most activities that were crimes in the Old World, such as theft, are still considered criminal today. However, in our modern society, the spectrum of activities that can result in criminal liability has expanded well beyond anything Mr. Selden ever contemplated. This is especially true in the area of environmental crimes.
Livestock operators should be aware that EPA is stepping up its criminal enforcement activities against Concentrated Animal Feeding Operations (CAFOs). Just this month, EPA released a Criminal Enforcement Alert announcing that it was targeting CAFOs for criminal enforcement if the CAFOs discharge without a permit. In the bulletin, EPA announces that it will criminally prosecute CAFO owners for knowing and negligent discharges of pollutants from their operation.
Criminal Enforcement under the Clean Water Act
EPA is authorized to seek criminal penalties for illegal discharges under Section 309(c) of the Clean Water Act. Criminal penalties, in the form of severe fines and the loss of liberty, are intended to serve as a strong deterrent to violations of the Clean Water Act. Section 309(c) criminalizes "negligent" discharges, allowing up to one year of imprisonment for first-time violators and up to two years for subsequent negligent discharges. "Knowingly" discharging pollutants from a CAFO can result in imprisonment for up to three years for first-time violators; repeat violators are subject to six years in prison.
Congress was well-intentioned when it provided EPA and states with the option to criminally prosecute illegal discharges perpetrated by bad actors. However, EPA’s sometimes-zealous enforcement and some federal court interpretations have set the bar for criminal liability for Clean Water Act violations relatively low.
Lowered "Intent" Requirements
With few exceptions, an individual cannot be found guilty of a crime without the requisite mens rea (Latin for "guilty mind"). Typically, you must know, or at least should know, that what you are doing is wrong (even if you don’t know what law you are breaking) before you can be held criminally liable. The necessary mens rea is easy to ascertain in the area of theft. If you know you are taking something that does not belong to you, you have a guilty mind, and can be held liable for whatever particular form of theft you committed. In contrast to theft, environmental crimes are a much newer concept and can be more nuanced. This makes a mens rea determination much more complicated and prosecution-friendly.
One federal case that best illustrates this nuance is United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993). In Weitzenhoff, EPA prosecuted the managers of a sewage treatment plant for "knowingly discharging" pollutants into the Pacific Ocean in violation of the Clean Water Act. The defendants acknowledged that they knew they were discharging sewage into the ocean, but they denied that they knew that what they were doing was wrong or in violation of the plant’s NPDES permit or the Clean Water Act. Nonetheless, the Weitzenhoff court upheld their criminal convictions on the basis that they knowingly engaged in conduct that violated the law, even if they didn’t know that a violation of the law occurred. This interpretation lowers the standard that prosecutors must meet to prove that a defendant has knowingly violated the law because the government is not required to show that you knew your conduct violated the law.
EPA’s Enforcement Actions
Twenty years later, the legacy of Weitzenhoff lives on. As noted in their CAFO Criminal Enforcement Alert, EPA is zealously pursuing criminal violations against owners and operators of CAFOs for "knowing" and "negligent" illegal discharges. In the Alert, EPA counts its successes by the amount of jail time and fines levied against CAFO operators that it has prosecuted.
In fairness, some of the farms EPA has prosecuted have engaged in clearly illegal conduct, such as pumping out lagoons directly into waterways. These operators give all of us in agriculture a bad name and fuel the fire of activists opposed to modern agriculture.
However, EPA has also criminally prosecuted operations for "negligent" discharges such as applying manure in excess of a farm’s Nutrient Management Plan. These prosecutions have targeted operators for mistakes resulting from oversight or carelessness on the part of employees and contractors.
Criminal enforcement against agriculture is a rising trend that we cannot expect will go away anytime soon. Many of EPA’s efforts to regulate CAFOs by requiring NPDES permits have been thwarted because CAFOs are designed to not discharge. Because of this, EPA has gotten more creative in interpreting what constitutes a discharge. Unfortunately, without a change in the law, producers may face imprisonment for mistakes or miscalculations that result in an illegal discharge.
John Dillard is an attorney with Olsson Frank Weeda Terman Matz P.C. (OFW Law), a Washington, DC-based firm that serves agricultural clients and clients with issues before federal and state courts, EPA, FDA, USDA, and OSHA. John focuses his practice on agricultural and environmental law. He occasionally tweets at @DCAgLawyer.