Review of the U.S. v. Edward Hanousek, Jr. Decision
A growing area of public safety law stems from environmental regulatory, administrative, and criminal law which provides protections for the public based on maintaining pollution controls. In particular, the Clean Water Act provides a basis for criminal prosecution when negligence is determined to be criminal in nature. This is a difficult area of law but it is important because it provides a crossover between regulatory and public safety law in which individuals or companies who ignore laws and policies intended to protect the public, can be be held liable. One of the most important cases that set this standard prosecution is US v. Hanousek. This case established that public safety issues governed under environmental law could be prosecuted for criminal negligence.
An analysis of this case shows how environmental law can be used to uphold public safety. However, this case analysis also points to a large area of ambiguity and confusion in the law in which further arguments could be made concerning the culpability of employees and managers acting in the agency of employers. As well, problems of constitutionality concerning the application of these laws can also be seen in this analysis. While this case provides strength for public safety it also opens the door to further controversy and litigation which could result in the reversal of many cases concerning public safety and environmental law.
In 1994, Edward Hanousek was working for the Pacific & Arctic Railway and Navigation Company as roadmaster. In this capacity, Hanousek was responsible for “…every detail of the safe and efficient maintenance and construction of track, structures and marine facilities of the entire railroad … and [was to] assume similar duties with special projects” (U.S. v. Edward Hanousek, Jr., 1999). During the construction operations a backhoe operator, Shane Thoe damaged a heating oil pipeline. The punctured pipeline resulted in the leaking of 1,000 to 5,000 gallons of oil into the neighboring Skagway River. This resulted in the poisoning of animals and agriculture that used the Skagway for irrigation and drinking water.
An investigation by the United States Coast Guard, determined that Hanousek was guilty of negligence due to the fact that he was responsible for overseeing the project. Hanousek was charged and prosecuted under the Clean Water Act with negligently discharging a dangerous amount of oil into waters of the United States. He received a sentence of six months in prison, six months of living in a halfway house, a $5,000 fine, and six months of probation. Hanousek appealed the prosecution which resulted in a decision by the Supreme Court to deny the appeal and review of the Ninth Circuit Court’s decision. As a result, Hanousek was found guilty (U.S. v. Edward Hanousek, Jr., 1999).
The Circuit Court decision was affirmed because Hanousek failed to show that that an error was made in the original case or that there was a lack of due process. Hanousek argued that:
(1) by failing to instruct the jury that the government must prove that he acted with criminal negligence as opposed to ordinary negligence, (2) by failing to instruct the jury that he could not be found vicariously liable, (3) by failing to instruct the jury properly on causation, and (4) by incorrectly applying the United States Sentencing Guidelines.Hanousek also argues that section 1319(c)(1)(A) violates due process if it permits a criminal conviction for ordinary negligence and that, in any event, the evidence was insufficient to support his conviction (U.S. v. Edward Hanousek, Jr., 1999).
Hanousek’s arguments hinged on the idea that there is a difference between interpreting criminal negligence and ordinary negligence. Within this framework, Hanousek felt that he was not guilty because the negligence was accidental or non-malicious in nature. Within this argument, the jury should have been informed of these differences in interpretation in order to return a verdict which was within the scope of the law. In the opinion of three judges, the court denied Hanousek and upheld the decision of the U.S. 9th Circuit Court of Appeals.
The decision and analysis of the decision was written by Judge David R. Thompson. The first argument over the interpretation of negligence was dismissed on the grounds that the interpretation for ordinary and criminal negligence utilized the same methodology. Judge Thompson stated that, “We conclude from the plain language of 33 U.S.C. § 1319(c)(1)(A) that Congress intended that a person who acts with ordinary negligence in violating 33 U.S.C. § 1321(b)(3) may be subject to criminal penalties” (U.S. v. Edward Hanousek, Jr., 1999).
Even with the interpretation of negligence being denied, Hanousek’s argument that due process was violated hinges of the idea that under the Clean Water Act (CWA) provisions, the prosecution needed to prove that the Hanousek knowingly acted in negligence. Hanousek argued that because he was a roadmaster he was not in a position to know CWA provisions and therefore was not responsible for the accident since he did not understand what the law stipulated as ‘negligence’. The court opposed this point quoting from case law,
…as long as a defendant knows he is dealing with a dangerous device of a character that places him ‘in responsible relation to a public danger,’ he should be alerted to the probability of strict regulation.” Staples, 511 U.S. at 607, 114 S.Ct. 1793 (quoting Dotterweich, 320 U.S. at 281, 64 S.Ct. 134) (Thomas, 2012).
Hanousek’s argument for unfair sentencing, as a result of the interpretation and improper jury instruction, was declined because of his inability to prove differentiation in interpretation of negligence. Since the CWA could be used for prosecution, the penalties stood. The CWA clearly states,
$2,500 nor more than $25,000 per day of violation, or by imprisonment for not more than one year, or by both. The same statute provides that second-time negligent violators shall be punished by a fine of not more than $50,000 per day of violation, or by imprisonment of not more than two years, or both (EPA, 1977).
The affirmation of Hanousek’s criminal prosecution is an important decree, among many other similar cases, in which individuals violating environmental law cannot hide behind corporate veils or by claiming ignorance of the law. This case law strengthens the ability of courts to prosecute individuals and companies for pollution and acts which damage the environment and endanger public safety.
We have also distinguished those criminal statutes within the doctrine of “public welfare offenses” from those outside it by considering the severity of the penalty imposed. See, e.g., id., at 616–618. We have said, with respect to public welfare offenses, that “penalties commonly are relatively small, and conviction does no grave damage to an offender’s reputation.” Morissette v. United States, 342 U.S. 246, 256 (1952). See also Sayre, Public Welfare Offenses, 33 Colum. L. Rev. 55, 72 (1933) (stating that it is a “cardinal principle” of public welfare offenses that the penalty not be severe) (U.S. v. Edward Hanousek, Jr., 1999).
One important aspect of the Hanousek decision is that it shows negligence in the aspect of public safety, linking environmental safety with public safety law. The court cites United States v. International Minerals & Chem. Corp where the court decided that,
“[w]here … dangerous or deleterious devices or products or obnoxious waste materials are involved, the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation” (U.S. v. Edward Hanousek, Jr., 1999).
The assumption of knowledge of regulations definitively bars ignorance of regulation as being an excuse for environmental damage. This decision places managers in charge of operations at the focus of criminal investigation when environmental accidents occur which are negligent and endanger the public. The wider implication of this decision is that negligence has no excuse within the law. For scientists, researchers, as well as business managers overseeing dangerous chemicals and substances; accidents can be interpreted as criminal. Managers of companies should especially be weary in that they cannot hide behind the corporate veil when public safety is concerned.
The Hanousek decision reveals three important trends in criminal and regulator law. First, that actions that are considered criminal do not necessarily imply an inherent moral failing. The second trend involves the criminalization of negligence which historically has been handled by tort law rather than criminal law. The third trend involves the prosecution of managers or employees for the negligence of subordinates with criminal sanctions (Rosenzweig, 2012).
These trends are significant due to the differences in nature and penalties associated with criminal violations. These trends represent a changing view of criminal behavior in which environmental laws are given significantly more gravity than it has in past decades. They also represent an expansion of agency and organizational power. Entities such as the EPA are being given wider latitudes in which to exercise authority in this way. For instance, organizations that violate EPA regulation might find their managers being prosecuted in federal courts and facing jail times. This is very large change then just imposing fines on organizations. This change in law reveals how public view of environmental issues has radically altered in recent years. This change in view is a movement from viewing environmental negligence as legal or policy violations to viewing them more as public safety issues.
While cases such as US v. Hanousek represent a narrowing view of public safety and environmental law, there is still many unknown areas of utilizing law in this manner. For example, there are large areas of environmental law which are administrative in nature and this presents a different form of law which may not translate easily into the public safety realm. This problem becomes apparent when one looks at the legal structure of most environmental law.
The EPA, for instance, has four enforcement options available for its use when dealing with pollution. These enforcement options include in formal response, formal administrative enforcement, civil/judicial enforcement, and criminal enforcement. Under the informal response the EPA will notify the entity of the violation and request action to bring it into compliance without taking further action. The formal administrative enforcement takes place when the EPA issues an administrative order which may impose a fine for the violation. Under the formal civil/judicial enforcement, the EPA uses the Department of Justice to initiate a lawsuit in federal court. This action is meant to compel the violator into compliance through litigation. Using criminal enforcement, the EPA and the department of justice can enforce criminal law such as arrest and imprisonment (Enviromental Protection Agency, 2012).
These enforcement options cross many lines of legality. One of the most troublesome areas has been the creation of an “in-house” adjudication scheme was designed to eliminate the burden of minor air pollution violations that would tax the legal system (Rosenzweig, 2012). While this seems to be a logical measure in enforcing violations that warrant fines or reprimands, it also serves to show the intent of Congress with this issue. The granting of the adjudication scheme means that the EPA has expanded authority to enforce air pollution laws in a criminal fashion. This shows that Congress is willing to strengthen its resolve to end air pollution through legal action. However, this presents many constitutional issues which can endanger the practice of enforcing environmental law as public safety issues using criminal sanctions.
The strongest challenge to a regulatory agency constructing “in-house” adjudicatory processes is the fact that these processes have a fine line of constitutionality. The major criticism of adjudicatory processes is that they violate the doctrine of separation of powers (Enviromental Protection Agency, 2012). Because the function of these agencies begins taking on the role of legislative, executive, and judicial authority this means that there is no separation of powers. This is a perilous area of law because if the adjudication process is found to be unconstitutional this means that many cases could be reversed if this is found to be the case.
The exercise of criminal sanctions under environmental and public safety law is a slippery slope due to other areas of conflicting law. There is a great deal of ambiguity with holding individuals responsible for the actions of subordinates (Rosenzweig, 2012) One can see this ambiguity in federal employment law which specifically mandates a common-law doctrine for the relationship of employees and employers. The common-law doctrine of respondeat superior dictates that employer and employee form an agency (Davant, 2002). The principle or employer has authority over the agent or employee behavior. This authority over the employee makes the employer liable for damages caused by the employee even in situations where there is no knowledge of the damage (Davant, 2002).
The ambiguous nature of law in this area is further highlighted by the recent headline cases such as BP oil spill from the Horizon platform (Guardian and AP News Wire, 2012). Who should be held accountable for the negligence that was committed in this situation? While fines and cleanup costs have been directed to BP there has been no criminal prosecution of any individual (Guardian and AP News Wire, 2012). The Department of Justice continues suit with BP seeking a ruling of criminal negligence, however, this will not place any individual under criminal penalties (Rosenzweig, 2012).
The use of regulatory and environmental law to uphold public safety is a growing area of federal legal action. Decisions such as U.S. v. Edward Hanousek, Jr. represents a changing view of criminal law which implies that negligence whether accidental or not, can be perceived as malicious (Rosenzweig, 2012). While the Hanousek decision increases the strength of public safety law, it also increases individual responsibility of those individuals working with dangerous or hazardous materials.
Davant, C. (2002). Employer Liability for Employee Fraud: Apparent Authority or Respondeat Superior? South Dakota Law Review (47), 554–582.
Enviromental Protection Agency. (2012). Introduction to Enforcement. Retrieved from Enviromental Protection Agency: http://yosemite.epa.gov/r10/enforce.NSF/Our Office/Introduction to Enforcement
EPA. (1977). Federal Water Pollution Control Act, As Amended By The Clean Water Act Of 1977. Retrieved 2015, from Environmental Protection Agency: http://www.epa.gov/npdes/pubs/cwatxt.txt
Guardian and AP News Wire. (2012, October 4). Deepwater Horizon: US ramps up rhetoric on BP over oil spill. Retrieved from The Guardian : http://www.guardian.co.uk/business/2012/sep/05/deepwater-horizon-us-bp-oil-spill
Rosenzweig, P. (2012, October 4). The Over-Criminalization of Social and Economic Conduct. Retrieved from The Heritage Foundation: http://www.heritage.org/research/reports/2003/04/the-over-criminalization-of-social-and-economic-conduct
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Vincent Triola. Fri, Jan 08, 2021. Analytical Essay: U.S. v. Edward Hanousek Retrieved from https://vincenttriola.com/blogs/ten-years-of-academic-writing/analytical-essay-u-s-v-edward-hanousek