Producers face a growing legal trend toward criminal prosecution in environmental law.

Ranchers and producers - watch out! Your odds of being charged with criminal action under environmental laws have skyrocketed in recent years. You can thank the government's new emphasis on criminal rather than civil action to prosecute violators, says John Copeland.

Copeland is a University of Arkansas professor at the Natural Center for Agricultural Law, Research and Information. He has been tracking this disturbing trend and warning producers about it.

"Under the Clean Water Act (CWA), you could go to jail for filling out a form incorrectly - something Environmental Protection Agency (EPA) officials think is wonderful," Copeland told Arkansas cattlemen recently. "Those of you raising livestock face increasing possibilities of criminal prosecution simply because of runoff from manure into bodies of water."

Record Fines And Jail Time In 1997, EPA officials pursued 2,000 criminal leads against environmental laws. They opened 551 criminal cases. Of these, 278 were referred to the Department of Justice (DOJ) for prosecution. For the first time in one year, record criminal fines ($169 million) exceeded civil fines ($99 million). Defendants were sentenced to a total of 195 years in jail (chart 1).

"That's pretty dramatic because the previous one-year record of criminal fines was somewhere round $78 million," Copeland says.

The 1997 record is far greater than the DOJ's criminal indictments against 911 corporations and individuals during the entire 1983 to 1993 period, Copeland notes. During that 10-year period, 686 guilty pleas and convictions were made with total criminal fines assessed at $212,408,903 and 388 years of imprisonment.

One area targeted is the Mississippi River valley where EPA filed 164 new cases, with 99 individuals and corporations prosecuted so far. "Violators have received 27 years of prison time and 62 years of probation so far," Copeland says.

He quotes this statement by Charles Grace, the attorney in charge: "The people who rely on the Mississippi River for their livelihood are the very ones with no respect for it, or unwilling to assureits continued viability. "

Copeland uses this example to point out the changing attitude by federal agencies regarding criminal action in environmental cases.

Why The Change In Attitude? It's more cost-effective, according to Copeland, who has served as legal advisor for the American Meat Institute and the National Pork Producers Council. "They are happy to file criminal action because it's cheaper than to file a civil action," he says. "They (EPA) have a certain amount of leverage they don't have in civil actions."

Anytime you deal with the DOJ or other agencies, you're dealing with true believers, Copeland insists.

"These people have a self-righteous attitude, believing they are always right and that 75 percent of the people will violate the law unless you take firm, decisive and, in some cases, extreme criminal actions," he says. "With this attitude, it gives you a pretty good insight of what you face whenever an action is filed against you."

Copeland quoted former U.S. Attorney General Richard Thornburg, who said in 1989, "The polluter is a criminal who has violated the rights and sanctity of the largest living organism in the universe - the earth's environment."

Another driving force toward criminalization is public attitude, Copeland says. It supports the government's position that these living organisms must be protected from polluters they claim are a major source of water pollution.

"Opinion poll after opinion poll shows that people view agriculture as a primary pollutant," Copeland says. "They no longer have the Norman Rockwell image of agriculture, painting it as mom and dad sitting around a table looking outside to see cows and chickens," he says. "They are removed from how they get meat to the table.

"And then you have extreme environment groups like the 'Environmental Working Group' composed mainly of doctors that put out a 1990 report called "Water Pollutants" blaming agriculture for poisoning the water supply in a number of cities," Copeland says.

Today's Laws Are Flawed The current environmental laws are extraordinarily flawed, Copeland believes. Those passed during the 1970s dealt primarily with chemical pollution by major industries, but also to agricultural operations regardless of size.

Today, there is no variation in these extremely complicated and complex laws, Copeland says. He quotes EPA Administrator Carol Browner who said, "The language of these laws is almost incomprehensible."

Copeland's observation: "But they are going to enforce the laws anyway."

He believes that part of the problem is Congressional mismanagement, in which some people in Congress are willing to pass laws that fit agency interpretation. The result is a constant expansion in the laws to suit these interpretations.

For example, the Clean Water Act doesn't say anything about wetlands. It's a term developed over the years by the courts, Copeland says.

"Do you know what wetlands are? My definition is 'anything that was ever wet, could be wet, might be wet or looks like it could be wet in the future or the past or any other time.' "

Copeland points to the Southview Dairy Farm case in New York State as an example of creativity by the courts. "It's one you should worry about," he says.

The case involves a modern dairy with 1,200 cows in a confined area with liquid manure stored in lagoons. Fertilizer is applied by center-pivot irrigation and conventional manure spreading equipment.

The Second Circuit Court of Appeals called Southview Farm a point source of pollution under the Clean Water Act, and by implication so are all other similar agricultural operations. Therefore, a NPDES (National Pollutant Discharge Elimination System) permit was not required, the U.S. District Court judge declared.

Legal problems began, however, when an area residents' group called Concerned Area Residents for the Environment (CARE) appealed the decision to the Second Circuit Court of Appeals. They claimed that manure leakage from Southview Farm's storage lagoon and runoff from its crop operation polluted the Genesee River, a navigablebody of water protected by the CWA.

The decision was reversed. "The judge declared a swale on the farm was a point source of pollution," says Copeland. "And, that every piece of equipment used to move the manure on the land was a point source of pollution. Since there were no permits, Southview Farms was in violation of the Clean Water Act. This has enormous implications for livestock growers."

"General Intent" Of The Law These environmental laws are also somewhat punitive, Copeland believes.

"Criminal sanctions require only general intent or general knowledge instead of specific intent," he adds. "In environmental law, we have an entirely different standard. Instead of specific intent, we have general intent or knowledge.

"This means that you intended to do something defined as criminal, even though you didn't intend to do anything criminal. You shoot at a deer and because you're a lousy shot, you hit an endangered species. You are a criminal because you had the general intent to fire the gun.

"The same is true in discharging pollutants. Let's say you discharge water, not knowing it has a toxic substance in it. You're a criminal because you had a general intent to discharge the water. That's all that's required in the environmental area," Copeland says.

The justification is that it's important to clean up the environment and protect the general public, even though it may be unfair to some people, Copeland says.

Sentencing Guidelines Federal sentencing guidelines list several categories dealing with environmental problems, according to Copeland. They include endangering human life, offenses involving toxic substances, other pollutants and conserving wildlife.

"Good faith is no defense," Copeland says. "Bad legal advice is no defense. Your past conduct is no defense except in some cases of mitigation."

Federal sentencing guidelines have four categories dealing with environmental violations:

* Knowingly discharging a hazardous waste that could endanger human life;

* Offenses involving hazardous or toxic substances;

* Offenses involving other pollutants, such as manure; and

* Conservation and wildlife.

There are points charged for each violation. Copeland explains, "For example, the man who dumped topsoil on one acre of land that was defined as wetlands - he got six points for discharging a pollutant without a permit, six for discharging the pollutant and four for not having a permit, for a total of 16 points.

"This is new math run amok," Copeland says. "He got the maximum - a total prison term of 27 months," he says. "That's a longer sentence than a first offender of burglary, car theft, embezzlement, larceny or escaping from the penitentiary."

While Copeland is critical of the trend toward criminalization in environmental laws, he doesn't condone those who willingly, knowingly and egregiously violate the nation's environmental laws, thereby endangering public health, safety and welfare.

"They are criminals and should be prosecuted accordingly," he says. "Nor do we denigrate government agencies and individuals responsible for enforcing federal and state environmental laws. Most are dedicated to getting prompt results, giving fair treatment and equitable solutions and penalties."

But, Copeland believes the growing number of environmental laws and regulations, along with their increased complexity, can entangle and punish people and businesses that wouldn't normally be characterized as criminals.

"When citizens are stigmatized as environmental criminals and subjected to fines and incarceration, their initial disbelief eventually turns into contempt for the law," he says.

Copeland urges judicial or legislative action to eliminate "diminished mens rea" in environmental laws (mens rea is criminal intent). "A distinction must be made between those who knowingly and willfully violate environmental laws, with specific intent to engage in criminal conduct, and those who lack that specific intent," he says.

Common law generally doesn't condemn acts as criminal unless the actor had "an evil purpose or mental culpability," Copeland explains. Also, an accused can only be convicted upon proof beyond a reasonable doubt that the accused acted with "specific intent" to violate the law.

Environmental offenses, however, require only "diminished mens rea." The U.S. Supreme Court and courts of appeal have generally held that the government can prove a defendant "knowingly violated" a particular environmental standard without proving either that he/she knew of the applicable legal standard and its violation or of all relative facts underlying its violation. The diminished mens rea is justified in environmental cases because the doctrine recognizes them as public welfare offenses.