Environmental Crimes In This Issue Introduction to the Environmental Crimes Issue of the USA Bulletin . .1 By Ignacia S. Moreno July 2011 Environmental Justice in the Context of Environmental Crimes . .3 Volume 59 By Kris Dighe and Lana Pettus Number 4 United States Post Flores-Figueroa: The Impact on the Knowing Mental State in Department of Justice Executive Office for Environmental Prosecutions . .15 United States Attorneys Washington, DC By Linda S. Kato and Patricia W. Davies 20530 H. Marshall Jarrett Director An Accident Waiting to Happen? Prosecuting Negligence-Based Environmental Crimes . 33 Contributors' opinions and statements should not be By Stacey P. Geis considered an endorsement by EOUSA for any policy, program, or service. Prosecuting Criminal Violations of the Endangered Species Act . .46 The United States Attorneys' Bulletin is published pursuant to 28 By Marshall Silverberg and Ethan Carson Eddy CFR § 0.22(b). The United States Attorneys' Achieving Worker Safety Through Environmental Crimes Prosecutions .58 Bulletin is published bimonthly by the Executive Office for By Deborah L. Harris United States Attorneys, Office of Legal Education, 1620 Pendleton Street, Columbia, South Carolina 29201. Prosecuting Industrial Takings of Protected Avian Wildlife . 65 By Robert S. Anderson and Jill Birchell Managing Editor Jim Donovan The Soothsayer, Julius Caesar, and Modern Day Ides: Why You Should Law Clerk Carmel Matin Prosecute FIFRA Cases . .84 Internet Address By Jared C. Bennett www.usdoj.gov/usao/ reading_room/foiamanuals. html The Lacey Act Amendments of 2008: Curbing International Trafficking Send article submissions and address changes to Managing in Illegal Timber . .91 Editor, United States Attorneys' Bulletin, By Elinor Colbourn and Thomas W. Swegle National Advocacy Center, Office of Legal Education, 1620 Pendleton Street, Columbia, SC 29201. Introduction to the Environmental Crimes Issue of the USABulletin Ignacia S. Moreno Assistant Attorney General Environment and Natural Resources Division United States Department of Justice As the Assistant Attorney General of the Environment and Natural Resources Division, I am pleased to introduce this issue of the U.S. Attorneys' Bulletin on environmental crimes. I am proud of the collaborative relationship that the Environment Division enjoys with U.S. Attorneys' offices nationwide and the progress that we have made during the Obama Administration to enhance and sustain that relationship. The focus on environmental crimes in this Bulletin could not be more timely. The articles in this Bulletin focus on law and policy relating to the criminal prosecution of environmental, wildlife and natural resource cases, and related offenses. They touch on the emerging issues in our practice, including the propriety of applying environmental justice principles to criminal enforcement, the use of the environmental laws to help protect our Nation's workers, and the recent amendments to the Lacey Act to combat illegal logging. Other articles consider difficult questions, such as when a prosecution for strict liability or negligence is appropriate. The remainder of the articles survey selected environmental crimes statutes and highlight general criminal law issues that environmental crimes prosecutors are likely to encounter. I commend the authors for sharing their insights and experiences with us. The Environment Division handles some of the Nation's most pressing environmental issues. A core mission of the Division, and a priority of the Obama Administration and the Department of Justice, is strong enforcement of civil and criminal environmental laws to protect our Nation's air, land, water, and natural resources. The Division's mission also includes vigorous defense of environmental, wildlife and natural resources laws and agency actions; effective stewardship of our public lands and natural resources; and careful and respectful management of the United States' trust obligations to Native Americans. In all of the work that we do, we are mindful of the goals of environmental justice: to ensure that all communities enjoy the benefit of a fair and even-handed application of environmental laws and that affected communities have a meaningful opportunity for input in the consideration of appropriate remedies for the violations of the law. During my tenure, I have traveled to many of your districts to meet with you. Each of your districts presents unique opportunities and challenges in enforcing the Nation's environmental, wildlife and natural resources laws. I have seen your commitment to environmental protection and the communities that you serve. Many of you have reached out to us to explore ways in which we may collaborate and leverage our resources. In November 2010, nearly all ninety-three U.S. Attorneys attended the first ever U.S. Attorneys' Environmental Crimes and Enforcement Conference in Washington, D.C. We have continued to work closely with U.S. Attorney Michael Cotter, the Chair of the Environmental Issues Subcommittee of the Attorney General's Advisory Committee, and other U.S. Attorneys nationwide. Together, we have launched task forces, generated referrals to your districts, conducted listening sessions with communities and tribes, provided training, and established mechanisms JULY 2011 UNITED STATES ATTORNEYS' BULLETIN 1 to share points of contact and important information. We are encouraged by the vigor of your interest in joint enforcement efforts. You are the face of the Department in your communities, and by working together we can make our work enduring. The Division welcomes and encourages your interest in our work, and we always like hearing from you. Please feel free to contact me. You may also contact Crystal Brown, Counsel to the Assistant Attorney General, who works on a range of matters involving U.S. Attorneys, at 202-514-2701 or [email protected], or Stacey Mitchell, Chief of the Environmental Crimes Section, at 202-305- 0363 or [email protected]. Ignacia S. Moreno Assistant Attorney General Environment and Natural Resources Division United States Department of Justice 2 UNITED STATES ATTORNEYS' BULLETIN JULY 2011 Environmental Justice in the Context of Environmental Crimes Kris Dighe Assistant Chief Environmental Crimes Section Lana Pettus Trial Attorney Environmental Crimes Section I. Introduction Environmental crimes are committed in many communities across the nation and occur in a variety of settings. Nevertheless, anecdotal evidence strongly suggests that a disproportionately high percentage of environmental crimes takes place in communities that lack adequate resources to prevent these crimes or simply do not have effective means to provide redress for the violations that occur. Ensuring that all communities enjoy the benefit of a fair and even-handed application of the law and that affected communities have a meaningful opportunity for input in the consideration of appropriate remedies for violations of environmental laws commonly falls under the rubric of “environmental justice.” No formula exists for addressing environmental justice in the context of environmental crimes prosecutions. This article proposes a number of methods to incorporate environmental justice into the prosecution of environmental crimes using traditional prosecutorial tools and approaches. These methods are by no means exhaustive, nor will every method be appropriate or feasible in every case with environmental justice implications. However, the suggestions in this article, coupled with increased understanding and awareness of environmental justice principles, may trigger further exploration and discussion regarding how the Department of Justice (DOJ) and its attorneys can effectively exercise criminal enforcement powers for the benefit of all citizens. II. What is “environmental justice”? Understanding what environmental justice is constitutes an important precursor to understanding how to use prosecutorial tools to address environmental justice concerns. The phrase “environmental justice” means different things to different people. The United States Environmental Protection Agency's (EPA) working definition of environmental justice is “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” ENVIRONMENTAL JUSTICE, http://www.epa.gov/environmentaljustice. The key elements of EPA's definition are “fair treatment” and “meaningful involvement.” The definition focuses on the context of making, applying, and enforcing laws. Other advocates may define environmental justice much more broadly and include issues such as social transformation, economic equality, and political empowerment. See, e.g., Richard Hofrichter, Toxic Struggles: The Theory and Practice of Environmental Justice, University of Utah Press, Introduction, 4 (2002); KARL GROSSMAN, JULY 2011 UNITED STATES ATTORNEYS' BULLETIN 3 UNEQUAL PROTECTION 271 (Robert Bullard ed., 1994). EPA's definition, however, is well-suited for purposes of discussing environmental justice in the context of criminal enforcement. The concept of “environmental justice” first received widespread publicity in 1982 when residents of Warren County, North Carolina and civil rights activists staged protests over the siting of a landfill for the disposal of waste electrical transformer oil contaminated with polychlorinated biphenyls (PCBs). The county's