Roger J. Marzulla*
[Testimony of Roger J. Marzulla Before the Judiciary Committee
of the House of Representatives Subcommittee on Commercial and Administrative
Law May 7, 1998]
Mr. Chairman and Members of the Subcommittee:
Thank you for the opportunity of addressing the need for congressional
leadership in connection with criminal prosecution of regulatory
offenses.(1) Each year government agencies publish more than 65,000
pages of new regulations many of them complicated, unclear
and conflicting with which we are all expected to comply.
Combine this with the myriad of statutes (Clean Air Act, Clean Water
Act, Resource Conservation and Recovery Act, Forest Management Act,
Endangered Species Act) which provide criminal penalties for violation
of those regulations, and the fact that courts generally defer to
an agency's interpretation of its own regulations, and it is little
wonder that thousands of Americans find themselves behind bars for
crimes defined not by Congress, but by the agencies that prosecute
I previously served as Assistant Attorney General in charge of
the Environment and Natural Resources Division of the U.S. Justice
Department, where I was responsible for all environmental litigation
on behalf of the United States, both civil and criminal. I have
worked extensively with all of the major environmental regimes,
including the prosecution of civil and criminal actions on behalf
of EPA, the Interior Department, NOAA [National Oceanic and Atmospheric
Administration], the Corps of Engineers and the Forest Service,
among others, to enforce our nation's environmental laws and regulations.
Thus, I have seen regulatory criminal enforcement from the perspective
both of prosecutor and defense counsel.
Today I will address three issues:
Congress has given away to administrative agencies the power to
define regulatory crimes, as well as to enforce them. This, as four
justices of the Supreme Court said not long ago, constitutes a threat
to liberty and democracy and is probably unconstitutional.
The Chevron doctrine, which allows agencies to promulgate ambiguous
regulations, then "interpret" them for the court, dangerously
concentrates both the judicial and prosecutorial power in the hands
of the agency.
Finally, by reading the "knowing" requirement out of
many regulatory crimes statutes, the courts have created a strict
liability scheme under which regulated entities and individuals
who acted in good-faith compliance with what they thought the law
was end up in federal prison despite the best of intentions. Mr.
Chairman, I am not talking about hardened criminals and lawbreakers.
My concern is for the ordinary, upstanding Americanssmall businessmen,
farmers, merchants and contractors, who are suddenly and unjustly
thrown into the criminal courts (and often federal prison) through
no fault of their own and despite their best intentions. This is
a shameful injustice which Congress has the power and the duty to
I. CONGRESS HAS GIVEN AWAY ITS
POWER TO DEFINE WHAT IS A REGULATORY CRIME.
In far too many instances, Congress has passed statutes which allow
criminal prosecution for virtually any violation of regulations
adopted by a federal agency. Examples of these include the Clean
Water Act(2), the Clean Air Act(3), the Resource Conservation and
Recovery Act(4), the Endangered Species Act(5), and the Forest Management
Act.(6) As a result, agency rulemaking has become the functional
equivalent of congressional lawmaking and, as agencies pump out
tens of thousands of new regulations each year, they simultaneously
are creating thousands of new federal felonies which can be (and
often are) prosecuted with the full force of the criminal law. Since
Congress rarely conducts oversight of these regulatory criminal
programs, the initial statutory authorization (generally enacted
decades ago) amounts to a blank check for the agency to create as
many new federal felonies as it wishes without any accountability.
The unchecked power to legislate crimes and then prosecute their
violation constitutes the precise excessive concentration of power
in one branch of government, which the Founding Fathers sought to
avoid by separating our government into three branches, and assigning
limited powers to each.
Not surprisingly, federal agencies have eagerly grasped the intoxicating
power to imprison those who do not adequately observe their various
regulatory regimesas the agencies interpret them. Agencies
like EPA, Fish and Wildlife, NOAA, the Corps of Engineers, and the
Forest Service (to choose examples within my personal experience)
can hardly be blamed for utilizing this potent weapon in the difficult
job of implementing their congressionally mandated programs. Indeed,
having been given this enormous power by Congress, regulatory agencies
may reasonably assume that they are intended to use criminal prosecution
as a routine part of their regulatory programs. Add to this prosecutorial
blank check a dash of excessive zeal, and Congress has created a
recipe for agency oppression of the kind glimpsed in the recent
hearings on Internal Revenue Service's enforcement abuses by another
Committee of this House. Congress's abandonment of its criminal
lawmaking power to the regulatory agencies is wrongheadedand
Respect for the law and agency programs is destroyed when even
minor regulatory violations (such as paperwork, reporting, signposting
and similar technical violations), which are unintentional (and
often unavoidable) are prosecuted just like intentional crimes that
endanger person, health, property, or safety;
Agencies are encouraged to play "gotcha" with regulated
entities in order to prove their zeal in racking up large numbers
of criminal violations, rather than assisting businesses and individuals
to understand and comply with reasonable regulations.
Businessespecially small businessis forced into a defensive,
"checklist" approach to regulatory compliance, in which
the goal is just to avoid prosecutionat the expense of economic
vigor and the liberties and blessings of our free market system;
and Constitutional principles of separating lawmaking and criminal
prosecution, to avoid tyranny by one individual or group, are violated.
I will now discuss each of these points in turn.
First, our system of law is built on a hierarchy of penalties for
legal infractions of various degrees of moral or social culpability.
The law reflects society's determination that a parking ticket should
not be punished the same as murder in the first degree; murder is
more culpable, and it therefore requires a much more severe penalty.
Prioritization of these penaltiesand thus the determination
of what legal violations the law deems most serious has been entrusted
to our elected representatives in Congress. To commit a federal
felony ought to be a very grave matter indeed, punishable by severe
penalties and societal disapproval.
Federal agencies, on the other hand, do not have this point of
view, nor do they have the responsibility for safeguarding the integrity
of the federal legal system. EPA is charged with environmental protection,
Fish and Wildlife with protecting endangered species, the Corps
of Engineers with wetland protection, OSHA with worker protection,
the Office of Surface Mining with mineland protection, etc. For
each such agency, its regulatory program is its topif not
its onlypriority. Little wonder, then, that these agencies
rank violation of their regulations as the highest priority criminal
offense, giving little or no thought to the relationship between
penalties imposed by that agency and rest of the criminal law regime.
After all, it is the job of Congress to strike a balance between
regulatory and other criminal or civil penalties by passing laws
appropriately penalizing legal infractions.
But when an individual faces the same federal prison time, for
improperly filling out a required form, that a rapist or drug dealer
receives, he is justified in questioning the legal system which
criminalizes his relatively benign actions. Unjust imprisonmenta
staple of repressive governments and police statesmay engender
fear of the law, but not respect for it. Yet today in the United
States the ordinary, lawabiding citizen runs the risk of violating
one of thousands of complicated (and even conflicting) regulatory
requirements, with federal prison as the consequence. This is simply
unAmerican and unacceptable to anyone who believes in the true purpose
and genius of the law as an expression of our noblest societal and
Second, regulatory agencies are encouraged to seek the publicity
and budgetary rewards which flow from headlines like "Agency
Indicts Corporation for Federal Felony." Ironically, EPA and
other regulatory agencies trumpet annual increases in the number
of criminal indictments as though we should be proud that there
are more and more environmental (or other regulatory) criminals.
Imagine a police force congratulating itself on the fact that prosecutions
for rape, murder or drug dealing are at record rates. The dramatic
increase in federal regulatory prosecutions in this country either
means that Americans are becoming increasingly more lawless (causing
us to question our current approach to regulatory enforcement),
or to conclude (rightly, I believe) that we have more and more prosecutors
and investigators chasing more marginal cases in order to justify
their increasing agency enforcement budgets.
At a minimum, Congress should inquire carefully into the kinds
of regulatory crimes being prosecuted in order to answer this question.
Agencies should be required to explain their choice of cases to
prosecute and the penalties sought. Congress, in short, must become
reinvolved in our nation's regulatory criminal justice system; it
cannot be left solely to the agencies to determine what is criminal,
and what is not.
Third, it is not surprising that a repressive regime of apparently
arbitrary and unjust federal regulatory prosecutions has lead businessmen
and individual citizens to operate defensively in their dealings
with agencies. The compliance officer for environment, safety and
health in many corporations is referred to (only half jokingly)
as the "designated felon" because he must sign the myriad
reports and applications that must be submitted almost daily to
federal agencies. He knows that a single mistake on one such document
can land him in federal prison. The result is the focusing of enormous
resources on the technical details of compliance with paperwork
and similar requirementsoften at the expense of huge possible
gains in productivity, worker safety, and public health which could
otherwise be achieved. A frightened, defensive company is not the
model of our dynamic system, which has brought this nation the highest
standard of living in the world. We are drowning in regulatory requirements,
backed up by overzealous criminal enforcement, costing us more than
moneycosting us our liberty and boundless optimism in the
future of the United States.
Finally, Congress may not hand over to the prosecuting agency the
power to create and define those crimes which it then prosecutes
without running afoul of the constitutional principle of separation
of powers. The Framers rightly determined that those who hold the
power to imprison should not also be entrusted with the power to
create and define the offenses for which imprisonment may be imposed.
The risk they sought to avoid was the inevitable risk that the prosecutor
could first choose the individual or group he sought to punish,
then define the law so as to insure a conviction. Thus, Congress
is forbidden from passing a bill of attainder, determining culpability
for a violation of law. Similarly, executive branch agencies may
not be delegated lawmaking power, since lawmaking is the province
of duly elected officials. Thus, guilt may not be determined by
popular vote, and laws may not be made by unelected government officials.
Yet a statute which makes any regulatory offense punishable as
a crime fuses the lawmaking and prosecuting authority in a single
agency. A regulation is, after all, simply a law that was not passed
by Congress. Although administrative penalties may be imposed for
regulatory violations without infringing on constitutional prohibitions,
when the criminal law is invoked the constitutional limitations
come into highest resolution.
II. IMPRISONING CITIZENS FOR INFRACTIONS
OF AMBIGUOUS REGULATORY REQUIREMENTS VIOLATES TRADITIONAL CONCEPTS
OFFAIRNESSANDTHE CONSTITUTIONALLY PROTECTED DUE PROCESS RIGHTS OF
It is a wellestablished principle of due process that a regulated
entity cannot be held liable for penalties when it did not receive
"fair notice" of what conduct was prohibited or mandated.
The Fifth Amendment of the Constitution provides "nor shall
any person be deprived of life, liberty, or property, without due
process of law." Fundamentally, due process requires that federal
agencies make clear what is expected of regulated entities before
seeking to impose penalties for alleged violations of their regulations.
All too often, regulatory agencies take advantage of the Chevron
doctrine to declare their own regulations ambiguous, then announce
an interpretation (to which the court must defer) which puts the
citizen in federal prison for failing to guess what that interpretation
In 1994 Justice Thomas, in dissent, unmasked the danger in allowing
an agency to declare its own regulation ambiguous under the Chevron
doctrine, then "interpret" it into a new rule:
"It is perfectly understandable, of course, for an agency
to issue vague regulations because to do so maximized agency power
and allows the agency greater latitude to make laws through adjudication
rather than through the more cumbersome rulemaking process. Nonetheless,
agency rules should be clear and definite so that affected parties
might have adequate notice concerning the agency's understanding
of the law. . . . An agency whose powers are not limited either
through meaningful statutory standards or . . . rules poses a serious
potential threat to liberty and democracy." (7)
As the Supreme Court explained in Daniels v. Williams,(8) the purpose
of the Due Process Clause is to prevent government from abusing
its power or employing it for purposes of oppression. The Due Process
Clause, quite simply, forbids all deprivations of property by government
action that is arbitrary, unreasonable or violative of fundamental
principles of fairness.(9)
Judge Patricia Wald of the U.S. Court of Appeals for the District
of Columbia Circuit commented recently in a major speech that enforcement
of unclear and ambiguous regulations at the expense of a company's
due process rights is an increasingly serious problem, particularly
because of the increasing complexity of regulations. She said, "legislators
and rulemakers would do well to proceed in the immediate future
with even greater caution than in the past in insuring that their
rules give fair notice of what is expected of the regulated and
fair procedures for disputing alleged violations."(10)
Agency officials have successfully pressed this point in citizens'
suits against them. Agency officials may be held liable for violating
the law only when applicable legal requirements are "clearly
established at the time of the conduct at issue."(11) Why should
federal agency officials be immune from liability when they cannot
determine what is expected of them under regulations which are "voluminous,
ambiguous, and contradictory,"(12) while ordinary citizens
may be sent to prison on the basis of that same federal official's
interpretation of those same regulations? Yet, as I discuss later
in this testimony, many Americans have been prosecuted and even
imprisoned on the basis of just such ambiguous, voluminous, and
contradictory regulationsas interpreted by the very agency
which is prosecuting them.
III. CRIMINAL PROSECUTION OF PERSONS
WHO HAD NO INTENTION OF VIOLATING AGENCY REGULATIONS VIOLATES CONSTITUTIONALLY
PROTECTED DUE PROCESS RIGHTS AND DETERS COMPLIANCE EFFORTS.
Most nonregulatory crimes include an element of criminal or specific
intent, also known as a mens rea requirement. Specific intent is
a mental state above and beyond that which is required to do the
actus reus or prohibited conduct. Courts normally require this guilty-knowledge
element because criminal laws are meant to punish people for and
deter them from committing harmful acts.
However, there is a category of crimes called "public welfare
offenses," in which courts have severely diminished, if not
abrogated, the mens rea element. The sale of adulterated drugs under
the Federal Food, Drug and Cosmetic Act ("FDCA") is often
cited as a "public welfare offense" in that it seriously
threatens the community's health or safety. A "public welfare
offense" is a crime in which the proscribed activity is so
dangerous that the actor should presume the activity is likely to
be regulated. To convict a person of violating the FDCA or other
"public welfare offense" statutes, prosecutors need not
prove that she had knowledge that her behavior was unlawful.
To what extent are other regulatory crimes characterized as "public
welfare offenses?" In United States v. Weitzenhoff(13) the
Ninth Circuit concluded that violations under the Clean Water Act
("CWA") and many other environmental laws are "public
welfare offenses," and held that knowledge of the law is not
an element of a CWA violation. Although it is debatable whether
regulatory crimes that do not threaten human health should be considered
"public welfare offenses," most regulatory crimes are
categorized as such.
In light of the "public welfare offense" doctrine, to
what extent is any intent required for conviction of a regulatory
crime under most environmental laws? Are environmental crimes pure
strict liability crimes in that no intent is needed at all? Many
courts have characterized CWA permit violations as strict liability
crimes. However, a "knowing" violation should require
that one knows something. Indeed, a "knowing" violation
ordinarily requires the general intent to carry out the proscribed
The following scenarios illustrate some "knowing" violations:
A hypothetical nuclear power plant has a CWA permit that requires
that no more than 10,000 gallons per day of hot water be discharged
into a nearby river. On a certain day, the hot water discharge from
the plant's cooling processes amounted to 9,995 gallons.
(a) Late that night, the Defendant decided to take a hot shower
in the power plant's locker room. He knew that the CWA permit limits
the plant's daily hot water discharge. He had checked the plant's
output immediately before his shower and learned that the plant
had discharged 9,995 gallons of hot water that day. He also knew
that his shower would cause more than five gallons of hot water
to be discharged from the plant. Nonetheless, he showered and caused
the discharge of six gallons of hot water.
(b) Late that night, the Defendant decided to take a hot shower.
He knew about the plant's permit restrictions for hot water, but
did not know whether the plant's output was close to the limit that
night. His shower caused the discharge of six gallons of hot water.
(c) Late that night, the Defendant, who had no knowledge of hot
water limitations, washed the shower floor and meant to rinse away
the soap with cold water from the shower. By mistake, he turned
the hot water knob and caused the discharge of six gallons of hot
(d) Late that night, the Defendant, who had no knowledge of hot
water limitations, ran through the showers and accidentally bumped
into and turned on the hot water knob. He caused the discharge of
six gallons of hot water.
As noted above, "knowing" violations of CWA permit requirements
are criminal offenses. The accidental bump in (d) should not lead
to criminal liability. The Defendant did not intend even to turn
on the shower, thus he had no general intent to take the action.
In (a), the Defendant had the intent to take a hot shower plus the
guilty knowledge that his conduct was unlawful, circumstances which
far exceed the elements for a "knowing" violation.
Lack of knowledge, seen in (b), is unavailable as a defense for
a CWA violation. Mistakeoffact, like that made in (c), is generally
not a valid defense to a CWA permit violation, either. The Defendant
in (c) is likely to be found guilty of a "knowing" violation
because he had the general intent to turn the hot water knob. Even
though the Defendants in (b) and (c) were arguably guilty of mere
negligence, they still can be found criminally liable for "knowingly"
violating the CWA because they had the general intent to turn the
With the exception of involuntary action, environmental crimes
and many other regulatory violations based on "knowing"
violations are strict liability crimes. No guilty mind is needed
Although the preceding scenario is oversimplified and involves a
relatively harmless pollutant, some reallife examples show that
regulatory prosecution can be just as harsh.
IV. CASE STUDIES IN REGULATORY
What type of people are prosecutors targeting under the current
regulatory crimes regime? Consider the following stories of Benjamin
Lacy, Tuang MingLin, Ocie and Carey Mills, James Wilson, and Ray
Britton, and ask yourself if the word "felon" immediately
comes to mind.
Benjamin Lacy makes nonalcoholic sparkling apple cider. He was
convicted in September 1995 of altering records to hide the discharge
of treated wastewater from two bathrooms and apple juice runoff
into Manassas Run, a tributary of the Shenandoah River. The federal
agents prosecuted Lacy for CWA permit violations even though they
could not find any environmental damage from the pollution. Lacy,
a felon at age 74, faced up to 24 years in jail and up to $2,000,000
in fines. The Judge, citing Lacy"s old age and lifelong service
to his country, sentenced him to a $10,000 fine and three years
probation. His cider company was fined $25,000.32.
In February 1994, Tuang MingLin, an immigrant from Taiwan, was
accused of killing five kangaroo rats in violation of the Endangered
Species Act while plowing his farm near Los Angeles. Twenty armed
federal and state agents seized his tractor and threatened him with
a $300,000 fine and a claim for 363 acres of his 720acre farm. The
prosecution lasted for more than a year before Tuang MingLin agreed
to a settlement, in which he "donated" $5,000 to a local
habitat conservation fund.
In 1989, Ocie and Carey Mills were found guilty of adding clean
fill dirt to a wetland without a permit and unlawfully excavating
a drainage ditch, in violation of the CWA. As first time offenders,
each was fined $5,000, and sentenced to 21 months incarceration,
followed by one year of supervised release. Their sentence was upheld
on appeal even though a federal judge had found that their land
likely was not a wetland at the time they added the dirt. Unfortunately,
this finding was made during an evidentiary hearing that took place
after their convictions were confirmed by the Eleventh Circuit Court
Small businessman Ray Britton took a community eyesore and turned
it into an attractive townhome that anyone could be proud of. For
his efforts, he faces fines of up to $125,000 for alleged environmental
violations he remedied several years ago. The bayside Chincoteage
Island (Virginia) property owned by William and Mary Hammond, an
elderly couple surviving mainly on Social Security benefits, had
become an unofficial dumping ground for island residents. It was
littered with old sofas, washers, and other bulk trash. After being
cited by the town for this nuisance, the Hammonds contracted Mr.
Britton to clean up the lot in 1989.
In 1990, the U.S. Army Corps of Engineers issued a cease and desist
order to Mr. Britton and the Hammonds, citing that the improvements
to the property constituted the illegal "filling" of a
wetland. Mr. Britton had never placed fill on the property.
To resolve the wetlands violation, Mr. Britton came to an agreement
with the Army Corps to create wetlands elsewhere. He then proceeded
to build three luxury townhomes on the lot. In 1994, he was slapped
with another violation that was based on the very same facts as
the 1990 violation. This time, however, it came from the Environmental
Protection Agency (EPA). Now, despite his prior resolution with
the Corps, the EPA is seeking to impose the maximum fine allowed
under law$125,000against Britton and the Hammonds.
In February 1996, James Wilson, was convicted on four felony counts
charging them with knowingly discharging fill material and excavated
dirt into wetlands without a permit, in violation of the Clean Water
Act. Wilson faced 21 months in prison and a $1 million fine, as
well as $5 million in fines against his contracting business. The
crime Wilson committed was "sidecasting"allowing
dirt to fall to the side while digging ditches across the property.
Fortunately for Wilson, the Fourth Circuit threw out his conviction
on the grounds that the government had failed to prove its case.
Unfortunately, the U.S. Attorney in Baltimore has chosen to reprosecute
him for the same offense.
Congress has effectively issued a "blank check" to federal
agencies, allowing them to write, interpret, and enforce rules which
effectively create new federal crimes. This unchecked power violates
the constitutional notion of separation of powers, and allows the
agencies to violate constitutional requirements of due process.
Citizens remain subject to tens of thousands of unclear and inconsistently
implemented and enforced regulations, with potential exposure to
millions of dollars in penalties and hundreds of years in federal
prison for unwitting violations. Congress has just begun, through
this hearing and others, to peer under the rock of regulatory zeal.
Soon Congress must decide how to handle what it has found underneath.
Congress cannot shirk its duty as the primary lawgiver, especially
where the criminal law is concerned. Agencies need to know the limits
on their rulemaking authority. They need to know what, how, and
when to prosecute. Most importantly, the public needs to know these
things as wellwhat activity is illegal, what is the possible
penalty, and what actions must they take to comply with the law.
I congratulate the Subcommittee for addressing this important issue,
and I would be pleased to answer any questions you may have concerning
* Roger Marzulla, the new Chairman of the Environmental Law &
Property Rights Practice Group, is a partner in the Washington,
D.C. law firm of Marzulla & Marzulla, specializing in environmental
and natural resource law. He previously served as Assistant Attorney
General in charge of the Environment and Natural Resources Division
of the U.S. Justice Department.
- Pursuant to House Rule XI, clause 2(g)(4).I,
Roger J. Marzulla, hereby certify that neither I nor Marzulla
and Marzulla have received any federal grants, contracts, or subcontracts
in the current law and two preceding fiscal years.
- 33 U.S.C. Section 1319.
- 42 U.S.C. Section 7413.
- 42 U.S.C. Section 6928.
- 16 U.S.C. Section 1540.
- 16 U.S.C. Section 551
- Thomas Jefferson Univ. v. Shalala, 512 U.S.
- 474 U.S. 327, 331 (1986)
- See id. See also Tenneco Oil Co. v. Federal
Energy Admin. 613 F .2d 298, 303 (Temp. Emer. Ct. App. 1980) (when
penalties are involved "fundamental fairness requires that
the regulation be so clear that men of common intelligence need
not guess at the meaning and differ as to the application").
- P. Wald, Environmental Postcards From the
Edge: The Year That Was and the Year That Might Be. 26 ELR 10182,
10187 (News & Analysis April 1996).
- Davis v. Scherer, 468 U.S. 183, 197 (1984).
See also C. Chadd & J. Bowman, Agencies' Enforcement of Ambiguous
Regulations Don't Deserve Judicial Deference, 13 (Washington Legal
- Id. at 196.
- 1 F.3d 1523 (9th Cir. 1993),[amended and superseded
on denial of r'hg by 35 F.3d 1275 (9th Cir. 1993), cert. denied
sub nom. Mariani v. U.S., 513 U.S. 1128 (1995)].