Recent Cases Further Defining Mental Intent for Clean Air Act/Asbestos Prosecutions

Craig A. Benedict

This synopsis was authored by Craig A. Benedict. Mr. Benedict is an Assistant U.S. Attorney in the Northern District of New York and is a vice-chair of the Section’s Environmental Crimes and Enforcement Committee. The views of expressed herein are his own and are not necessarily those of the United States Department of Justice.

While the mental intent standard applicable to RCRA and Clean Water Act prosecutions is well established, until recently asbestos cases brought pursuant to the Clean Air Act have had to rely upon a single 1991 appellate court decision. In United States v. Buckley, 934 F.2d 84, 87-88 (6th Cir. 1991) the Court approved the following legal instruction on mens rea:

All the government must prove is that the defendant knew the general nature of the asbestos material on pipes or other facility components being demolished. The government does not have to show the defendant knew the legal status of the asbestos material or that he was violating the law. **** The government is not required to prove a wrongful intent of awareness of wrong-doing. The question whether the defendant acted in good faith is not material. It is the responsibility of persons who voluntarily associate themselves with asbestos demolition operations as supervisors or persons in charge to comply with the law.

In the absence of additional Clean Air Act appellate decisions, some attorneys began to question whether the general intent standard applied in other types of environmental prosecutions would be followed for asbestos cases. Recently, however, a Ninth Circuit decision seems to reconfirm the continued validity of the general intent standard for asbestos cases.

In United States v. Tomlinson, 1999 WL 511496 (9th Cir.) the Court approved the following jury instruction in an asbestos prosecution:

It is not necessary for the United States to prove that the defendant knew he was acting in violation of law, or that he knew of the regulatory requirements. Ignorance of the law is not an excuse. It is also not a defense that the person charged believes that the regulated type of asbestos substance was not dangerous or was less dangerous than some other types of asbestos.

This general principal was also adhered to in an asbestos prosecution in the Eastern District of New York. In United States v. Itzkowitz, 1998 WL 812573 (E.D.N.Y), aff’d, 1999 WL 43643, 172 F.3d 39 (2d Cir. 1999) the District Court, in denying post-trial Fed. R. Crim. P. 29 and 33 motions, held the government was not required to prove the defendant had knowledge that his conduct violated the law in order to prove the underlying substantive offense. Rather, the government was required to prove only that: (1) the defendant knew the insulation at issue contained asbestos, and (2) the defendant knew the manner in which the asbestos was removed.

The holdings of Buckley, Tomlinson, and Itzkowitz are consistent with the legislative history of the 1990 Amendments to the Clean Air Act in which most crimes were made felonies. The "Chaffe-Backus Statement of Senate Managers," S.1630, for the Clean Air Act Amendments of 1990, 136 Cong. Rec. S. 36084 (Oct. 27, 1990) support the decisions discussed above:

In particular, it is not our intention that – with the exception only of the crimes of knowing and negligent endangerment – crimes under these new criminal provisions shall be crimes of general intent, rather than crimes of specific intent.

Readers interested in mental intent issues generally may wish to review Bryan v. United States, 118 S.Ct. 1934 (1998). Bryan broadly explores the nature of mens rea and provides specific instructions regarding how the terms "willfully violates" and "knowingly violates" should be construed in criminal prosecutions. In Bryan, a case involving the illegal sale of firearms without a license, the Court rejected the contention that the term "willfully violates," when used in a criminal context, requires proof of knowledge of the specific law violated. Id. at 1944-45. Rather, the Court held that knowledge of unlawfulness generally is all that is required. Thereafter, juxtaposing the terms "willfully violates" and "knowingly violates" in the contest of criminal prosecutions generally, the Court concludes that unless the text of a particular statute dictates a different result, the latter term merely requires proof of knowledge of the facts that constitute the offense. Id. at 1946.

Based upon the above, recent judicial decisions interpreting mens rea appear to continue the trend in environmental prosecutions that knowledge of fact rather than of law will control the outcome of a given case.