Private-sector lawyers are at odds on the likely impact of a recent appellate decision that overturned a conviction for an alleged Clean Water Act (CWA) violation, with some attorneys raising concerns that it will chill CWA criminal enforcement and others saying the decision is so poorly written that other courts are unlikely to adopt its reasoning.
The attorneys also have different views on whether the U.S. Court of Appeals for the 9th Circuit’s March 4 decision in United States v. Lucero sets up a potential circuit split with an earlier 3rd Circuit decision that could lay the groundwork for eventual Supreme Court review of a future case if not this one.
In the majority opinion, 9th Circuit Judge Patrick J. Bumatay, writing for himself and District Court Judge Rosemary Márquez, sitting by designation, concludes that the CWA “requires the government to prove a defendant knew he was discharging material ‘into water.’”
But because the jury instructions at James Lucero’s trial for allegedly illegal discharges of fill material into wetlands failed to make this knowledge element clear, and the error was not harmless, the 9th Circuit reversed Lucero’s conviction and remanded for a new trial.
9th Circuit Judge Bridget S. Bade agreed with most of the majority opinion but dissented on the knowledge element, arguing that the jury instructions during the trial should have required the jury to find that the defendant knowingly discharged a pollutant into waters of the United States (WOTUS) rather than just “into water.”
Lawyers say the majority’s focus on the phrase “into water” is unusual, with Mark Ryan, a former EPA attorney now in private practice writing in a March 10 blog post on his firm’s website, “I've been reading CWA cases for more than 30 years, and I don't ever recall seeing the word ‘water’ in [CWA section] 502(6) elevated to prima facie case importance.”
Ryan finds the dissent’s discussion even stranger for raising concerns that heating water in a tea kettle could violate the CWA and that the knowledge requirement should be extended to WOTUS determinations. “That would likely put an end to criminal convictions under the CWA if the defendant had to know something met the definition of intermittent stream or adjacent wetland under” EPA’s WOTUS definition, whatever the current definition is, he adds.
Traditionally, the test for determining whether a CWA permit is necessary is if there is a discharge by a person of a pollutant from a point source to WOTUS, Ryan says in an earlier March 7 blog post discussing the Lucero ruling. But the majority opinion here appears to have added a sixth element of “to water,” he says.
“Do plaintiffs now need to show that ‘water’ was present even if the water body is jurisdictional? If so, will discharges to dry ditches and ephemeral or intermittent streams without a permit now be OK? Or will courts in civil cases read the 502(6) reference ‘to water’ the same as ‘WOTUS?’" Ryan asks.
“It's not clear, but I suspect this will ultimately be limited to criminal mens rea, and not be held to apply to civil CWA cases. But expect defendants to raise it.”
Jeffrey Porter, chair of the environmental law practice at Mintz, a Boston firm, also believes the ruling could reduce criminal prosecution of CWA violations. “To me the impact [of the Lucero ruling] is going to be if you’re a prosecutor, you’re going to have to think long and hard” about bringing a case, Porter tells Inside EPA, adding that his prediction is that the U.S. attorney’s office for northern California will opt against retrying the case.
Porter says both the majority and minority opinions are relying in part of the rule of lenity, a concept in criminal law that says if a statute is unclear, the court has to apply it narrowly in favor of the defendant, although they focus their discussions more on what they say were unclear jury instructions.
‘Circular’ Reasoning
But Kevin Minoli, a former EPA attorney who is now a partner with Alston & Bird, believes the Lucero ruling is unlikely to gain much traction in other courts.
“I don’t see this as becoming the prevailing opinion. I don’t see a lot of courts flocking to this,” Minoli tells Inside EPA, pointing to what he views as several flaws in the ruling, including the majority’s “circular” reasoning.
The jury instructions included four parts, with the first being that on or about the dates charged, Lucero knowingly discharged or caused to be discharged a pollutant, in this case, fill material. The second part was that the pollutant was discharged from a point source. The third part was that the discharge was to a WOTUS. And the fourth part was that Lucero had no permit from the Army Corps of Engineers to discharge the pollutant.
The majority opinion takes issue with the fact that only the first part contained a knowledge element, but Minoli says that if the issue is the lack of a knowledge element, then that concern would apply to all four parts of the jury instructions. The majority decision focuses on the fact that the third part did not include the word “knowingly,” but the second and fourth parts also do not have that word, he says.
Another flaw in the decision, according to Minoli, is that it says Lucero acknowledges he discharged a pollutant but then takes time to analyze the definition of a pollutant.
And Minoli says he finds it odd that the majority does not reference in a significant way the Supreme Court’s 2020 ruling in County of Maui v. Hawaii Wildlife Fund, which dealt with other CWA issues but discussed when CWA permits are necessary. The only mention of Maui in the majority Lucero decision is a brief citation of Justice Clarence Thomas’ dissent in Maui.
“I don’t think [Lucero] will withstand the rigors of other courts looking at it,” Minoli says.
Timothy Bishop, a partner in Mayer Brown’s Supreme Court and appellate litigation practice, tells Inside EPA that in his view the majority ruling cannot possibly be correct. “I don’t know how within the confines of due process or the plain statutory language a person can be criminally convicted under [CWA section 309(c)(2)(A)] for an unpermitted discharge into water that the defendant does not know is jurisdictional,” Bishop says.
“A knowing violation, on any reasonable reading of that statutory term, means a violation knowing that one is committing a violation, and therefore that the receiving water is WOTUS,” he continues. “You cannot push WOTUS into some ‘jurisdiction’ category separate from the predicates of the offense, as the majority did, when WOTUS is the key to the meaning of ‘violation’ in the term knowing violation.”
Porter also agrees that Bade is correct in saying that knowledge includes jurisdictional elements.
Bishop says that given Bade’s dissent on this point, the contrary view of the 3rd Circuit in its 1993 decision in United States v. Pozsgai, and the Supreme Court’s high level of interest in the CWA, the issue seems like an excellent candidate for Supreme Court review at some point, and that case could be Lucero itself if the defendant does not prevail at the new trial.
Minoli says he is not sure whether the issue will reach the Supreme Court, but says it has a better chance if other courts pick it up.
‘Better Clarity’
David Ross, who headed EPA’s water office during the Trump administration and is now a partner with Troutman Pepper, tells Inside EPA that his overall impression of the Lucero decision is that while he disagrees with certain aspects of the opinion, “it is clear the court was attempting to establish a workable middle ground given the heightened concern about imposing criminal liability within a fairly complicated legal framework. For that reason alone, setting aside whether one agrees or disagrees with the decision, I think other courts may be drawn to its reasoning.”
Ross believes the underlying facts and issue framing are sufficiently different between the Lucero and Pozsgai opinions that Supreme Court engagement based on a perceived circuit split is not likely. But he adds that the issues raised by Lucero about how WOTUS should be defined may be of interest to this particular Supreme Court, “as I suspect it will look for opportunities to provide better clarity in the ongoing debates regarding Clean Water Act jurisdiction.”
While criminal liability questions raise case profiles, the Supreme Court “is likely to have ample opportunity to wade into the WOTUS wars in the coming years and it is difficult to predict which case will draw its focused attention,” Ross says. -- Lara Beaven (lbeaven@iwpnews.com)
