Questions of Intent: Environmental Crimes and "Public Welfare" Offenses

Abstract

This article analyzes recent federal cases construing the nature and extent of the "public welfare" doctrine in the context of environmental criminal prosecutions under the Clean Water Act (CWA). Prosecutors have sought to segregate environmental criminal defendants from other criminal defendants by contending that, under the public welfare doctrine, criminal violations of the CWA and other environmental statutes do not require a traditional showing of mens rea as a predicate to criminal liability, notwithstanding a statutory "knowledge" requirement. We maintain that such a position misconstrues the public welfare doctrine and that courts should reject the argument that the CWA requires only the most minimal showing of intent to sustain a conviction.