Fair notice of the law is a basic principle that separates liberal democracies like the United States from more authoritarian governments. Fair notice is an especially critical due-process check against government’s power to criminally prosecute. Government must not only prove that a person did the unlawful act, but also that he intentionally engaged in wrongful conduct or knew the conduct was illegal—that it, that he had a guilty mind. So why, then, is the Obama Administration and other elected representatives opposing reforms to ensure that federal criminal laws include a clear criminal-intent standard?
The idea being advanced seems far from revolutionary or controversial, which may explain why politicians and interest groups of every ideological stripe support it: Federal laws with criminal provisions must require prosecutors to prove that the accused possessed the mens rea, or culpable mental state, to commit a crime. If a law lacks such language, then a default intent provision will apply, such as showing that the defendant acted “willfully” or “recklessly.” Continue reading
Featured Expert Column – Environmental Law and Policy
by Samuel B. Boxerman, Sidley Austin LLP
with Ben Tannen, Sidley Austin LLP
On January 22, 2016, the U.S. Department of Interior’s (“DOI”) Bureau of Land Management (“BLM”) issued a proposed rule governing oil and natural gas production on onshore Federal and Tribal lands. Bureau of Land Management, Pre-Publication Proposed Rule, Waste Prevention, Production Subject to Royalties, and Resource Conservation (Jan. 22, 2016) (“Proposed Rule”). Coming on the heels of U.S. EPA’s proposed regulation of emissions from certain new and modified oil and gas sources, the BLM proposal represents a further expansion of the federal government’s regulation of the oil and gas business. Continue reading
Barry M. Hartman, K&L Gates LLP*
Editor’s Note: This is the sixth in a series of guest commentary posts that address the six distinct topic areas covered in Washington Legal Foundation’s recently released Timeline: Federal Erosion of Business Civil Liberties. To read the other posts in this series, click here.
The WLF Timeline notes that in 2005, the Environmental Protection Agency (EPA) started co-locating its civil and criminal offices; it turns out this was just the tip of the iceberg. There has been a long pattern of convergence of criminal and civil environmental enforcement at EPA, jointly with the Department of Justice’s (DOJ) Environmental Division. When the difference between a criminal and regulatory offense—the “knowledge” or “scienter” requirement—was clear, a company knew what the stakes were if it was being investigated civilly. But over the last 25 years, the continuing relaxation of the “scienter” requirement in the environmental arena has blurred that distinction, so that the only articulation an EPA or DOJ lawyer will typically give to that standard is, “I know it when I see it,” allowing the government to use criminal sanctions where administrative or civil penalties would be more appropriate. Continue reading
Ed. Note: This morning at a press conference (the video on-demand for which can be accessed here), Washington Legal Foundation released the third edition of its Timeline: Federal Erosion of Business Civil Liberties. Joining the author of this post, WLF General Counsel Mark Chenoweth, at the briefing were former Associate Attorney General of the U.S. Jay Stephens and National Association of Criminal Defense Lawyers’ Executive Director Norman Reimer. Over the next six days, the WLF Legal Pulse will be featuring commentary by leading white-collar criminal law voices on each of the six topics covered in the Timeline.
Overcriminalization is a term that came into vogue about ten or so years ago as a catch-all phrase to describe several interrelated legal policy problems. Washington Legal Foundation (WLF) has been at the forefront of the debate on overcriminalization, helping to popularize the term and offering thought leadership to policymakers, judges, and other participants in the criminal justice system. One concrete manifestation of this leadership is the new third edition of WLF’s Overcriminalization Timeline, which tracks the federal erosion of business civil liberties. Continue reading
by Chelsie Kidd, a 2015 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law.
On June 4, 2015 the Environmental Protection Agency (EPA) released a much anticipated draft assessment of the potential impacts of hydraulic fracturing on drinking water resources. The draft assessment was conducted in response to Congress’s request to study the relationship between hydraulic fracturing and drinking water resources.
For decades, the oil and gas industry has utilized hydraulic fracturing, also called “fracing” or “fracking,” to increase oil and gas production from shale formations that could not otherwise be profitably mined. Opponents to hydraulic fracturing have focused on the actual process, when the mixture of water and proppant (commonly sand), and a small amount of chemicals, is injected underground. Fracturing’s purported impact on potable water has figured prominently in activists’ demonization campaigns. When he’s not busy playing an angst-ridden scientist with anger issues, actor Mark Ruffalo is writing unscientifically about how fracturing makes our water flammable. Propaganda film Gasland included a since-debunked image of tap water being set on fire. Opponents have advocated for cities and states to ban hydraulic fracturing outright. As a result, two states with natural gas resources—New York and Maryland—have respectively banned the practice and put in place a fracking moratorium. In California, a lawsuit has even been filed against the state under anti-discrimination law for allowing fracturing in a manner that supposedly has a disparate impact on minority children. Continue reading
Featured Expert Column – Environmental Law and Policy
by Samuel B. Boxerman, Sidley Austin LLP with Ben Tannen, Sidley Austin LLP
On June 29, in Michigan v. EPA, the U.S. Supreme Court reversed and remanded EPA’s Mercury and Air Toxics Standards (“MATS”) rule to the D.C. Circuit, holding the agency should have considered costs when determining whether or not to regulate emissions of hazardous air pollutants from power plants. The MATS rule, promulgated in 2012, had set standards for emissions of toxic air pollutants such as mercury from new and existing coal and oil-fired power plants.
This decision is a significant victory for industry on the legal interpretation of Section 112 of the Clean Air Act (“CAA”). However, it raises major uncertainties with regard to the steps the D.C. Circuit and EPA will take towards emissions of mercury and other air toxics from power plants going forward, as well as with regard to anticipated litigation surrounding EPA’s soon to be promulgated “Clean Power Plan” regulations. Continue reading
In one of our first WLF Legal Pulse posts five years ago, we wrote about efforts at the Environmental Protection Agency (EPA) to revitalize “environmental justice” (EJ), which had essentially laid dormant since the Clinton Administration. The EJ movement’s influence has gradually spread, with EPA citing “EJ concerns” among its reasons for opposing the Keystone XL pipeline, and activists utilizing EJ to successfully oppose express toll lanes in Arlington, Virginia and agitate for severe development limits in the Los Angeles area.
Several recent developments at EPA aim to inject the environmental justice movement even further into federal regulatory policy-making. Continue reading