Not everything should be a crime

October 27, 2016 | By JONATHAN WOOD

Animas River spill 2015-08-06.JPGOver at The Daily Caller, I have an editorial discussing how the federal government’s hypocritical decision against prosecuting the EPA officials responsible for the Animas River spill highlights the urgent need to address overcriminalization.

The decision, made by prosecutors who wouldn’t hesitate to throw the book at ordinary people, was immediately criticized as hypocritical. “[T]here is one set of rules for private citizens and another for the federal government,” a letter from several Republican Congressmen noted.

The government treats its own differently from how it treats the rest of us. But we shouldn’t let that hypocrisy distract us from the bigger issue, which is that accidents shouldn’t lead to criminal charges regardless of who’s responsible.

As you probably know, EPA employees accidentally caused the spill when attempting to drain an abandoned mine to clean the toxin-laced water contained within it. Unfortunately, the cap on the mine burst, causing millions of gallons of water containing high levels of lead and arsenic to rush into a nearby stream, turning it bright orange. It was a terrible accident, but federal prosecutors correctly recognized that the EPA officials had no criminal intent. Unfortunately, as I explain in more detail in the editorial, federal prosecutors prosecute ordinary people for far less significant accidents, despite their lack of criminal intent.

Regular readers will know that PLF is currently defending against an environmental group’s attempt to make the overcriminalization problem even worse. In WildEarth Guardians v. Department of Justice, we represent several agricultural organizations defending against a radical environmental groups extreme interpretation of the Endangered Species Act. According to WildEarth Guardians, criminal punishment should result from accidental violations of the statute’s incredibly broad “take” prohibition, which essentially forbids any activity that has any affect on a single member of a protected species or its habitat. Thus, in its view, you should go to jail if you accidentally hit a protected species that unexpectedly darts into the road in front of your car.

That’s insane. Congress didn’t embrace such an absurd result. The Endangered Species Act makes this clear by providing that only “knowing” violations can be criminally punished. Under Supreme Court precedent, this knowledge requirement extends to all of the elements of the crime, including that take would result from your actions and the species affected. As in the Animas River spill case, this means that you shouldn’t be prosecuted unless you had the requisite criminal intent.

It would be a shame to let the focus on the federal government’s hypocrisy in the Animas River spill distract from the bigger issue. As I conclude my editorial:

[T]he government’s hypocrisy should be noted – but it shouldn’t blind us to the more basic problem.  It’s not that EPA officials won’t face criminal charges. It’s that, too often, ordinary people do.