Crimes Against Nature

The new vice crusade is turning Justice upside down.

Rick Henderson from the December 1993 issue

(Page 2 of 5)

And no wonder. The 1990 Clean Air Act will eventually produce 60,000 to 80,000 pages of regulations, requiring even a single company to collect millions of pieces of data on air emissions. "Try arguing for 100 percent compliance with those kinds of numbers," Frank Friedman, a Los Angeles attorney and the author of a textbook on corporate environmental management, told National Law Journal. Not every regulatory infraction entails a crime, but the complexity of the regulations makes inadvertent criminal conduct more likely.

Under standards originally applied to misdemeanor healt-and-safety regulations, prosecutors in environmental cases don’t have to prove mens rea, or a "guilty mind," the intent traditionally required for criminal charges. In U.S. v. Freed (1971), the Supreme Court ruled that a defendant doesn’t need to have a "guilty mind" to be convicted of violating a law in "the expanding regulatory areas involving activities affecting public health, safety, and welfare."

To send someone to prison under such "strict-liability" laws, a prosecutor does not have to prove that a person meant to harm others or even that the actions caused any actual harm. Proof of technical violations is all the government needs. In a 1975 case, U.S. v. Park, the Supreme Court affrmed that an "individual is or could be liable under [the Food and Drug Act], even if he did not consciously do wrong."

The majority in Park also stated that a supervisor can be held responsible for the actions of lower-level employees, even if the supervisor doesn’t know what the employees are doing. (This is called the "responsible corporate officer" doctrine.) More recent decisions haven’t clearly stated when an individual could not be liable.

Violations of the Food and Drug Act, however, carry only misdemeanor penalties. In his dissent in Park, Justice Potter Stewart wrote, "A standardless [misdemeanor] conviction approved today can serve in another case tomorrow to support a felony conviction and a substantial prison sentence." Stewart’s warning has come to pass.

One oft-cited case involves environmental engineer Bill Ellen, who served a six-month prison sentence for moving dirt. In 1987, Chicago commodities trader Paul Tudor Jones II hired Ellen, who had once regulated wetlands for the Virginia Marine Resources Commission, to build duck ponds on Tudor Farms–a $7-million development on 3,200 acres Jones owns in Dorchester County on Maryland’s Eastern Shore.

The development included fresh-water duck ponds (whose water tables would be controlled by hidden pumps) and enough crops and ground cover to attract migratory birds for hunters. It was a big, disruptive project–the kind environmentalists hate. But Ellen argued that he followed environmental regulations to the letter, obtaining 38 separate development permits and hiring two former Maryland regulators who, when they had worked for the state, had helped draw maps that separated wetlands from uplands.

As construction on Tudor Farms proceeded, the Bush administration altered not only wetlands protection but also how wetlands were defined, adding millions of acres of private property to the nation’s wetlands inventory. The new, broader definition increased the amount of wetlands in Dorchester County from 84,000 acres to more than 259,000 acres–and now included, regulators argued, Tudor Farms.

Bill Ellen was caught in the bureaucratic shuffle. On March 5, 1989, a federal grand jury indicted Ellen. But the indictment also implicated Jones on the grounds that he was improperly supervising Ellen’s work. A number of people familiar with the case believe the government’s real target was multimillionaire Paul Tudor Jones, a flashy Gordon Gekko type. Indeed, Ellen said prosecutors offered to reduce the charges against him if he testified against Jones. Ellen refused, telling Insight, "I didn’t think we had done anything wrong."

In May 1990, Jones decided to cut a deal. He agreed to pay a $1-million fine and make a $1-million contribution to the National Fish and Wildlife Foundation; he also received 18 months of probation, during which he could not hunt birds. That same month, federal prosecutors charged Ellen with six counts of violating Section 404 of the Clean Water Act of 1972. Prosecutors claimed that Ellen had illegally altered a dozen acres of an 86 acre wetland; Ellen countered that he had obtained the permits to do that work, and had, in fact, created more than 50 acres of additional wetlands. So to convict Ellen, the government had to rely upon a technical violation: Ellen had defied a "cease and desist" order and let workers move two truckloads of dirt from one spot on the property to another. According to the federal wetlands manual, moving dirt can constitute illegally filling a wetland.

In January 1991, a Baltimore jury convicted Ellen on five of the six counts. Property-rights advocate Peggy Riegle, chairman of the Fairness to Land Owners Committee and a friend of Ellen’s, says that because Paul Tudor Jones agreed to pay a fine the jury believed somebody had to have committed a crime.

At his sentencing hearing in April 1992, Ellen argued that he had created wetlands that improved the local environment. Prosecutors disagreed. An article written by Assistant U.S. Attorney Jane Barrett in the Fall 1992 journal Environmental Law argues that Ellen’s actions "resulted in the illegal filling of many acres of very valuable and rapidly disappearing wetlands on Maryland’s Eastern Shore." Quite an accomplishment with only truckloads of dirt.

Bill Ellen is one of several individuals targeted in high-profile prosecutions because they altered wetlands without obtaining the necessary permits. Government officials have interpreted the Clean Water Act of 1972, which regulates "the navigable waters of the United States," to include control over "wetlands," which are not specifically mentioned in the act. (See "The Swamp Thing," April 1991.)

The Clean Water Act isn’t the only environmental 1aw that blurs traditional notions
of criminal liability and intent. So does the Resource Conservation and Recovery Act,
which regulates toxic wastes. The statute allows criminalpenalties for any person who "knowingly transports...any hazardous waste identified or listed [under this law] to a facility which does not have a permit." (See "A Hazardous Waste," October 1989.)

A 1989 U.S. Circuit Court of Appeals decision says a defendant doesn’t have to "know" he is transporting a listed hazerdous waste to be criminally liable. He merely must be aware that the material is "not an innocuous substance such as water." In standard criminal cases, says former Justice Department prosecutor Starr, "your defense is [based on] the mental state of you client. Your only out in an environmental case is proving absolute ignorance of reality."