3 Environmental Enforcement Actions
3.1 United States of America
3.1.1 Civil v. Criminal Liability
3.1.1.1 Mental State Requirement for Environmental Crimes
Considering the serious punishment like incarceration and the deterrent message set out
thereby, the purpose of criminal prosecution clearly is to address the most reckless, the
most polluting environmental crimes. Given that the focus on criminal law is on the
defendant’s culpable conduct and state of mind, the question remains whether ordinary
negligence or strict liability should generally ever result in criminal liability.64
Due to the Latin maxim “actus not facit reum nisi mens sit rea” (an act does not make one
guilty unless his mind is guilty) criminal prosecution requires besides actus reus (guilty act)
mens rea (guilty mind).65According to that view, BP or any other company involved in the
Deepwater Horizon Oil Spill would not face any criminal sanctions since none of them
deliberately discharged oil into the ocean.
Congress included criminal provisions in each of the major environmental laws when they
were enacted during the 1970s distinguishing between misdemeanors66 and felonies67. The
Clean Water Act prohibits any unpermitted discharge of pollutants into the water of the
United States under 33 U.S.C. § 1319(c)(1). If a prohibited discharge happens knowingly, a
felony occurs. If a prohibited discharge results from the defendant’s negligence, the conduct
is recognized as a misdemeanor. A defendant acts “knowingly” if s/he had knowledge of
what was being discharged, regardless of whether s/he knew the discharge was unlawful.68
For example, a defendant who discharged gasoline into a sewer system but thought it was
water does not act “knowingly”.69 Accordingly, “knowingly” means knowledge of the facts,
not knowledge of the law. To prove “negligently” the prosecutor has to show that the
discharge occurred because the defendant failed to exercise reasonable care.70 Both,