Overcriminalization is rampant in environmental law

This week, the Daily Caller published my article on the overcriminalization of environmental law.

Recently, the Department of Justice announced that it would not prosecute the EPA officials responsible for the Animas River spill. As you may recall, EPA employees accidentally spilled several million gallons of toxin-laced water into the Animas River when attempting to open an abandoned mine. The spill turned the river bright orange, photos of which quickly went viral on social media.

As I discuss in the article, DOJ’s announcement has fairly been criticized as hypocritical.

The decision, made by prosecutors who wouldn’t hesitate to throw the book at ordinary people, was immediately criticized as hypocritical. “[T]here is one set of rules for private citizens and another for the federal government,” a letter from several Republican Congressmen noted.

Although true, we shouldn’t allow the hypocrisy to distract us from the more important issue—overcriminalization. The EPA officials shouldn’t face criminal charges for this accident, since they had no criminal intent, but neither should ordinary people who find themselves in similar situations. Unfortunately, federal prosecutors are not so forgiving when it comes to the rest of us.

I’m defending a federal case in Arizona that could make this problem even worse. WildEarth Guardians has sued federal prosecutors claiming they are not prosecuting enough people under the Endangered Species Act. The group contends that anyone who accidentally violates the statute’s broad “take” prohibition, which forbids essentially any activity that affects a member of a listed species or its habitat, even if they didn’t know their actions would case the take of a particular species.

In this recent law review article, I explain why the statute forecloses this argument. Congress wisely limited criminal prosecutions to cases where someone “knowingly” committed take. Under Supreme Court precedent, this knowledge requirement applies to every element of the criminal offense, including that take would result and what species would be taken.

Eroding this mens rea requirement could significantly undermine the rule of law and exacerbate overcriminalization. Without it, any of us could go to jail for just about anything we do—including driving, jogging, or using private property—if we have the bad luck to affect a listed species. With thousands of listed species, and the prospect of hundreds more being added over the next few years, preserving the statute’s mens rea requirement is incredibly important.

The lack of criminal intent properly protected the EPA officials responsible for the Animas River spill. It should protect the rest of us as well. As I conclude my Daily Caller article:

[T]he government’s hypocrisy should be noted – but it shouldn’t blind us to the more basic problem.  It’s not that EPA officials won’t face criminal charges. It’s that, too often, ordinary people do.

Update: I have more on this issue here, here, and here.