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The Clean Air Act (CAA), and the Clean Water Act (CWA) each contain two novel provisions that may significantly lower the bar for criminal prosecution of corporations and their employees for conduct not traditionally considered criminal. First, both statutes provide criminal penalties for negligent violations of the statutes. Under such provisions, the United States has, for example, obtained the conviction of a railroad construction manager who was off duty at the time an independent contractor punctured a pipeline, resulting in the discharge of oil into the Skagway River in Alaska. See United States v. Hanousek, 176 F.3d 1116 (9th Cir. 1999). The CAA and CWA also both define the term "person" to include "any responsible corporate officer" for purposes of criminal violations. These provisions taise the possibility that high-level corporate officers may face criminal prosecution for "knowing" violations of the CAA and CWA, regardless of actual knowledge of the violation.
This article ptovides an overview of the responsible corporate officet doctrine, from its early roots in cases under the Federal Food, Drug, and Cosmetic Act, (FFDCA), through its modern application in the context of criminal environmental enforcement. The article then offers a synopsis of the provisions of the CAA and CWA providing for prosecution of negligent conduct. Lastly, it provides a survey and discussion of relevant developments in case law in both areas.
The responsible corporate officer doctrine has its origins in two cases arising undet the FFDCA. In United States v. Dotterweich, 320 U.S. 277 (1943), the U.S. Supreme Court addressed the criminal culpability of corporate officers under the FFDCA. Joseph Dotterweich, president and general managet of a pharmaceutical company, was convicted of three misdemeanor counts of violating the FFDCA by misbranding drugs and shipping adulterated drugs in interstate commerce. Id. at 278. The Second Circuit Court of Appeals reversed the conviction on the grounds that only the corporation, not Dotterweich individually, could be held liable for violating the statute, id. at 279. The Supreme Court reversed, finding that a corporate officer could be criminally liable under the Act even absent consciousness of wrongdoing. Id. at 284- The Court held that in the absence of a mens rea requirement the prosecution was not required to prove knowledge on the part of the corporate...