Favoritism is acceptable—even welcome—in sports. Not everyone, for example, must be a New York Yankees fan (although some might argue that everyone should). But favoritism becomes illegitimate cronyism when it is found in the law, particularly the criminal law. The government should not be free to use cronyism when making investigatory or charging decisions, prosecuting some while letting others off the hook for the same conduct, let alone conduct that is even more damaging or more heinous. Unless the government can establish a persuasive case, resting entirely on legitimate grounds, for treating like cases differently, selective investigation or prosecution legally transforms unsavory favoritism into unlawful discrimination.
Ironically, that problem has recently arisen with a vengeance. The Environmental Protection Agency (EPA) has admitted that its officials were responsible for polluting the Animas River with toxic metals from an abandoned mine. This Colorado state river serves as a source of drinking water for thousands of local individuals and feeds into the Colorado River, which provides the water supply for millions of people in New Mexico, Utah, Southern California, and elsewhere. The spill has contaminated water used for irrigation, drinking supplies, and recreation with heavy metals and other pollutants at levels far exceeding what is considered safe. It also poses a serious public policy conundrum for the EPA and the Department of Justice (DOJ).
EPA Officials’ August 2015 Pollution of the Animas River
Early in August 2015, officials from the EPA “grievously polluted” the Animas River in Colorado, one of the many upstream tributaries of the Colorado River. The Animas River is a source of drinking water for the 17,000 residents of Durango, Colorado, as well as people downstream, because the Animas River feeds into the Colorado River. The spill may contaminate nearby wells. The pollutant, which turned the river into a “mustard-colored muck,” consisted of 3 million gallons of water containing the toxic heavy metals arsenic, lead, cadmium, aluminum, and mercury, as well as other toxic and nontoxic chemicals. The chemical-laden water came from the Gold King Mine, one of the thousands of abandoned mines sprinkled across the West. Initial EPA test results “showed ‘scary’ levels of toxicity in the water”—arsenic peaked at 300 times the normal level; lead was 12,000 times higher than normal; mercury and beryllium, respectively, reached nearly 10 times and 33 times the EPA’s acceptable levels. The potential long-term environmental effects of the spill are unknown.
The mine apparently had been leaking toxic waste–filled water for some time. The EPA workers were on the site to identify the source of the leak and, ultimately, to stanch it. They were using a backhoe “to hack at loose material” when a “plug blew out releasing contaminated water behind the backfill”and “a surprise deluge of orange water ripped through.” The water spilled into Cement Creek, a tributary of the Animas River, and then into the Animas itself.
The EPA has admitted responsibility for the spill, “saying it accidentally breached a store of chemical-laced water.” “‘This is a huge tragedy,’ Dave Ostrander, EPA regional director of emergency preparedness, told residents. ‘We typically respond to emergencies; we don’t cause them.’” EPA Administrator Gina McCarthy echoed those comments: “‘We want to reassure everyone that the EPA does take full responsibility for the spill,’ which took place at the long-closed mine north of Durango, she said. ‘No agency could be more upset about this incident and more dedicated to doing our job and doing it right.’”[18 ]
Because the EPA has admitted responsibility for the spill, the principal legal issue is what the EPA and the Department of Justice will do next. EPA Administrator McCarthy and Regional Director Shaun McGrath have said that the agency has initiated some type of inquiry. The question is whether that inquiry will involve a criminal investigation.
That question is important because if the individuals responsible for the spill had been private parties, it is likely that the EPA would have opened a criminal investigation to determine whether they had violated the criminal provisions of the Clean Water Act (CWA). Among other things, the CWA, the principal federal statute addressing water pollution, requires a party to obtain a permit to discharge a “pollutant” into the “waters of the United States” and makes a permitless discharge a crime. The heavy metals that spilled into the Animas River—despite the EPA’s claim that they travelled “too fast to be an immediate health threat” and its “expect[ation]” that they will “dilute…before they pose a longer-term threat”—are pollutants, and the river itself is a “water of the United States.” The result is that both the government workers at the EPA who are responsible for the spill and their supervisory officials could be principals to a crime.
The federal government often seeks to apply principles of direct and vicarious individual and corporate criminal liability without ever stopping to ask this question: “Should the same rules that the government wants to apply to private parties also apply equally to government officials when they engage in misconduct?” If the government stops to answer that question fairly in this case, we would likely see one of two results: fewer, if any, criminal prosecutions brought against private parties, which traditionally have occurred, or more, perhaps many, similar criminal prosecutions against government officials, which have occurred only rarely.
Expansion of Federal Criminal Liability for Private Parties
The CWA provides for criminal enforcement, and the Justice Department has successfully prosecuted white-collar cases for negligent violations of federal law, which is seemingly what happened with respect to the Animas River spill. Consider the remarkably similar case of United States v. Hanousek.
Edward Hanousek, Jr., was an employee of the Pacific and Arctic Railway and Navigation Company, working as roadmaster of the White Pass and Yukon Railroad. He supervised a rock quarry project at a site on an embankment 200 feet above the Skagway River in Alaska. One day during rock removal operations—while Hanousek was off-duty and at home—a backhoe operator employed by an independent contractor retained before Hanousek was hired accidentally struck a petroleum pipeline near the railroad tracks. The operator’s error ruptured the pipeline and spilled 1,000 to 5,000 gallons of oil into the river. Hanousek was convicted under the CWA for negligently discharging oil into a navigable water of the United States. The district court and court of appeals rejected Hanousek’s argument that the CWA did not permit a party to be convicted for simple negligence and that the Due Process Clause of the Constitution prohibited him from being convicted for only simple negligence.
Given the facts of the Hanousek case, the facts of the Animas River spill, as reported in the media, would seem to justify opening a criminal investigation into what happened in Colorado. Moreover, Hanousek does not stand alone. In other cases, the government has persuaded the courts to adopt two different expansive interpretations of the criminal law.
First, the government has argued successfully that corporations, as well as corporate officers and managers, should be held liable not only for their own wrongdoing, but also for the misdeeds of personnel they supervise or others below them in the organizational chart even if those officers and managers had no hand in the illegal conduct. Corporations were artificial entities under the common law and could not be charged with a crime, although corporate directors, officers, and employees could be prosecuted as individuals for their own conduct. Over time, the Justice Department persuaded the courts to expand the reach of criminal liability to include the doctrine of respondeat superior—“let the master answer” for the acts of his employees. In the food and drug area, for instance, a senior corporate officer can now be held criminally responsible for violations of the federal Food, Drug, and Cosmetic Act committed by line personnel working at one of the company’s facilities. As a result, the criminal liability of some corporations and senior corporate officials can effectively parallel their tort liability.
Second, the government has persuaded courts to expand the criminal law even further via the “collective knowledge” doctrine. That doctrine attributes to a corporation the sum of the knowledge of its employees when they act within the scope of their responsibilities. The rule applies even when no one person knew all of the necessary facts.
The Government’s Unjustifiable Failure to Hold Its Officials to the Same Standard That It Requires of Private Parties
It appears that the Justice Department ordinarily does not stop to determine whether the same rules that it wants the federal courts to apply to private parties should also apply to government officials. The public is entitled to ask, “Why not?” If private parties are to be held criminally liable for negligent violations of the federal environmental laws, why not EPA employees? If a company president is to be held liable for the misdeeds of the firm’s low-level personnel, why not the EPA Administrator? The same rules should apply whether the responsible party works in the private sector or the public sector.
Even the EPA recognizes that it and its officials should be held to the same standards that the government applies to private parties. “We’re going to continue to work until this is cleaned up,” Regional Director Shaun McGrath told a local gathering of Colorado residents, “and hold ourselves to the same standards that we would anyone that would have created this situation.”
There are several possible arguments for treating government officials favorably when it comes to the application of the criminal provisions of the federal environmental laws. None of those arguments, however, is persuasive.
Argument 1: It is fundamentally unfair to hold the on-site EPA officials criminally liable for negligently doing their job. Any liability for negligence should be civil, not criminal.
That claim is true as a matter of policy but wrong as a matter of law. The Justice Department prosecuted Edward Hanousek, Jr., for negligently doing his job, and he was not even at the site when the spill occurred. Unless there is something special about being a federal employee—something that provides the responsible EPA workers or their supervisors with immunity for their actions—they should be no less subject to criminal prosecution than Hanousek was.
Argument 2: Federal officials should not be held criminally liable for carrying out their duties under federal law.
There is nothing special about being a federal official or employee that renders the officeholder immune from criminal liability. Said another way, a person’s status as a federal officer is not itself a general license to break the law. Even the President is subject to the criminal law. The Constitution grants members of the Senate and House of Representatives a limited immunity from criminal prosecution or civil liability—immunity that exists only for statements made on the floor of each chamber—and offers no other federal official in Articles I, II, or III any comparable amnesty.
Of course, here, as elsewhere in the criminal law, there are some additional, complicating factors. For example, lower-level government employees are entitled to rely on facially reasonable directions from senior officials without fear of incurring liability even if it turns out after the fact that what they have been ordered to do is in fact illegal. But that doctrine is not a special rule for federal officers. Any member of the public may rely on the legal opinion of federal officials that their particular conduct is lawful. Besides, no senior EPA officials ordered the site workers to be negligent.
Moreover, it is no argument that it is impossible for federal employees to change the conditions under which they must carry out orders from the supervisors because they cannot, for example, appropriate additional funds to complete a task, since that is a prerogative of Congress. The same is true of people in the private sector. They too must work within the parameters and financial limitations that their supervisors define. In any event, the criminal law authorizes a defendant to raise an impossibility defense, so there is no need to exempt all federal officials from any prosecution for their actions on the ground that it would have been impossible for a few of them to do their jobs within the law.
Argument 3: The government should not prosecute de minimis violations of the law, and the Animas River spill was a small-scale violation.
That argument is half right. Yes, the government should not use the criminal law for trivial violations. The doctrine de minimis non curat lex—“the law does not care for trifles”—should be as relevant in the criminal law as it is in the civil law. But this spill was not trivial. To date, the Animas River spill, according to the EPA’s own revised estimate, has resulted in 2,995,000 gallons of pollution greater than the amount spilled in the Hanousek case, and the government prosecuted Hanousek for negligence. The Animas River spill is not the first instance of pollution for which the federal government is or may be responsible. Accordingly, the EPA and DOJ should either begin criminal investigations into the Animas River spill or cease criminal investigations into negligent spills by private parties.
Argument 4: Senior federal officials should not be held criminally liable for crimes committed by their subordinates or agents.
This is a demand for special treatment that the federal government would never grant to senior corporate officials in the private sector. Accordingly, it should be no defense that senior EPA federal officials could not carry out the duties of their offices if they were forced to manage the day-to-day work of every subordinate EPA employee. The same is true of the president of a large corporation, and the federal government has been unwilling to excuse senior-level business officials on the theory that they cannot hold upper-level positions while doing a company’s lower-level work.
Even if proximate cause principles might render the EPA Administrator too remote from an actual violation to be held responsible, that conclusion would not apply to the director of the region because he or she has only one region to manage, not the entire nation. After all, a plant manager does not receive immunity from prosecution for the misdeeds of his employees even though he cannot monitor everything going on in his plant. If so, why should senior federal officials in a parallel position get off scot-free?
On a Sunday night after the EPA’s spill, EPA Regional Director Shaun McGrath held a public comment session in a local high school auditorium. David Moler, owner of a river-rafting company, asked McGrath “when can my business be open again?” and “what should I tell my employees?” It is an open question whether the public can rely on McGrath’s reply: The EPA will “hold [itself] to the same standards that [it] would anyone that would have created this situation.”
The point is not that the courts should be eager to hold senior federal officials vicariously liable for the criminal actions of subordinates; they shouldn’t. No one, whether a senior-level or lower-level private party or the EPA Administrator or an EPA Regional Director, should be held criminally liable for the crimes of their agents that they had no role in committing. The point is that private parties should receive the same treatment. The EPA should prosecute the subordinate and supervisory EPA officials in this case or stop bringing similar charges against private parties for their negligence. The latter scenario is preferable as a matter of fundamental fairness because somebody who is merely negligent has not acted with a “guilty mind,” and any harm he or she causes can and should be addressed through the civil or administrative justice system.
Accordingly, the government should be put to a choice: Either abandon criminal liability based on negligence, respondeat superior, and collective responsibility theories in the case of private parties or bring charges against the EPA officials at the scene and up through the responsible chain of command. Sauce for the goose ought to be sauce for the gander.
—Paul J. Larkin, Jr., is Senior Legal Research Fellow and John-Michael Seibler is a Visiting Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.