The Environmental Protection Agency (“EPA”) is finalizing a rule that allows state criminal negligence enforcement programs approved under the Clean Water Act (“CWA”) to carry different mens rea requirements than those required for federal CWA enforcement.

 

The CWA provides EPA with enforcement authority to establish criminal misdemeanor liability for “negligent” violations and felony liability for “knowing” violations of the CWA.[1] Multiple Federal Circuit courts have held the CWA criminal negligence standard applicable to EPA to be “ordinary” or “simple” negligence.”[2] EPA’s new rule would “clarify” that the Administrator may approve state permit enforcement programs that carry a negligence standard that is greater than the ordinary negligence required for federal enforcement.[3]

 

The proposed rule was submitted after an EPA-approved state program carrying a gross negligence standard was struck down in federal court. In 2020, the Ninth Circuit held that EPA abused its discretion by approving Idaho’s state program because Idaho’s negligence standard required proof of more than ordinary negligence.[4] The court held that approving the program violated 40 C.F.R. § 123.27(b)(2), which requires “the degree of knowledge or intent required under State law for establishing violations. . . shall be no greater than the degree of knowledge or intent EPA must provide when it brings an action under the Act.”[5]

 

The proposed rule received seven comments during the comment period, mostly in favor of the rule. However, the few comments against the rule were comprehensive in their disapproval and concern. Idaho Conservation League (ICL)­­––the plaintiffs in the Ninth Circuit case striking down Idaho’s program––and Earth Justice are leading the charge among public interest groups in opposition. Both groups maintain that Congress has clearly spoken to the issue in the CWA, and ordinary negligence is the standard applicable to EPA and states alike.[6] Further, the groups use much of the same reasoning the Ninth Circuit employed to strike down Idaho’s program, particularly the relatively clear commands of 40 C.F.R. § 123.27(b)(2).

 

But the thrust of the critical comments against the rule are rooted in environmental justice. The rule was initially proposed by Trump-appointed EPA Administrator Andrew Wheeler following the Ninth Circuit opinion. Under the Biden administration, EPA has made clear its intention to help underserved communities tackle the most pressing environmental issues.[7] Critics of the new rule argue that by allowing states to have higher burdens of proof for negligent violations, polluters will be able to evade criminal liability more easily, and that vulnerable downstream communities will be disparately impacted by the activity of upstream states.[8]

 

Alternatively, proponents argue that the new rule is much needed clarification, and that EPA has approved numerous other state programs that require more than ordinary negligence.[9] Further, the rule’s defenders hone in on language employed in the Ninth Circuit opinion that “a state program need not mirror the burden of proof and degree of knowledge or intent EPA must meet to bring an enforcement action.”[10] The proponents focus on the CWA’s language itself, arguing that because states must have adequate authority “[t]o abate violations of the permit or the permit program including…ways and means of enforcement”[11] and the CWA does not specify mens rea standards for the state programs, the rule is a legally permissible interpretation of the statute and EPA’s existing regulations.[12]

 

However meritorious the legal arguments, the administrative stakes are high for EPA. If other federal appellate courts weigh in and follow the Ninth Circuit, EPA might have to reevaluate its approval of CWA permit enforcement programs for each non-compliant state.

 

No anticipated date for final publication has been announced. But given the previously successful legal challenges by public interest groups, publication of the rule is surely to be met with lawsuits challenging the rule’s validity.

 

 

[1] 33 U.S.C. § 1319(c).

[2] See U.S. v. Hanousek, 176 F.3d 1116, 1121 (9th Cir. 1999); U.S. v. Ortiz, 427 F.3d 1278, 1282 (10th Cir. 2005); U.S. v. Pruett, 681 F.3d 232, 242 (5th Cir. 2012); U.S. v. Maury, 695 F.3d 227. 259 (3d Cir. 2012).

[3] Criminal Negligence Standard for State Clean Water Act 402 and 404 Programs, 85 Fed. Reg. 80713 (Dec. 14, 2020) (to be codified 40 C.F.R. pts. 123, 233).

[4] Idaho Conserv. League v. EPA, 820 F. App’x 627 (9th Cir. 2020) (unpublished).

[5] Id.

[6] Earth Justice, Comments in Opposition to U.S. Environmental Protection Agency Proposed Rule regarding the Criminal Negligence Standard for State Clean Water Act 402 and 404 Programs (Jan. 13, 2021), https://www.regulations.gov/comment/EPA-HQ-OW-2020-0517-0008; Idaho Conservation League, Comments in Opposition to EPA’s Proposed Rule regarding the Criminal Negligence Standard for State Clean Water Act 402 and 404 Programs (Jan. 13, 2021), https://www.regulations.gov/comment/EPA-HQ-OW-2020-0517-0005.

[7] See Press Release, Env’t Prot. Agency, EPA Proposes to Add Environmental Justice, Climate Change, and PFAS to National Enforcement and Compliance Initiatives for FY 2024-2027 (Jan. 19, 2023), https://www.epa.gov/newsreleases/epa-proposes-add-environmental-justice-climate-change-and-pfas-national-enforcement.

[8] Earth Justice, supra note 6.

[9] J.R. Simplot Co., Comment Letter on Criminal Negligence Standard for State Clean Water Act 402 and 404 Programs (Jan. 12, 2021), https://www.regulations.gov/comment/EPA-HQ-OW-2020-0517-0003; Idaho Dept. of Env’t Quality, Comment Letter on Proposed Rule—Criminal Negligence Standard for State Clean Water Act 402 and 404 Programs (Jan. 13, 2021), https://www.regulations.gov/comment/EPA-HQ-OW-2020-0517-0004.

[10] Idaho Conserv. League, 820 F. App’x at 628; J.R. Simplot Co., supra note 8; Idaho Association of Commerce and Industry, Comment Letter on Criminal Negligence Standard for State Clean Water Act 402 and 404 Programs (Jan. 13, 2021), https://www.regulations.gov/comment/EPA-HQ-OW-2020-0517-0006; Criminal Negligence Standard for State Clean Water Act 402 and 404 Programs, 85 Fed. Reg. 80713, 80715 (Dec. 14, 2020) (to be codified 40 C.F.R. pts. 123, 233).

[11] 33 U.S.C. 1342(b)(7); 33 U.S.C. 1344(h)(1)(G).

[12] See Criminal Negligence Standard for State Clean Water Act 402 and 404 Programs, 85 Fed. Reg. 80713, 80714 (Dec. 14, 2020) (to be codified 40 C.F.R. pts. 123, 233).