The Supreme Court ruled today, in Southern Union v. United States, that
juries must decide facts supporting the imposition of criminal
fines. To this non-criminal lawyer (in more ways than one, I
hope), the decision did not seem particularly difficult in light of
Apprendi v. New Jersey, but that
doesn't mean that the decision won't be significant in some
Southern Union was a RCRA case involving allegations
that Southern Union had stored a hazardous waste without a
permit. Specifically, the indictment alleged that Southern
Union had done so "[f]rom on or about September 19, 2002 until
on or about October 19, 2004." That will teach the
government not to be precise in its use of language.
Since the penalty was up to $50,000 per day, those "on or
abouts" came back to haunt the government in a big way.
The jury instructions apparently stated that the jury could convict
if it found a one-day violation. Thus, the verdict did not
provide a basis from which the trial judge could conclude that the
jury found any particular number of days of violation. As a
result, once the Supreme Court decided that juries must find the
facts predicate to imposition of a criminal penalty, reversal was
While such cases don't arise every day, it would be a
mistake to conclude that they don't recur with some
frequency. In some cases, the impact will only be to require
EPA/DOJ to be more careful with its proof. In others,
however, the decision might have a real impact.
For example, I've worked on a number of matters involving
allegations of multiple days -- meaning years, not weeks or months
-- of violations of vehicle anti-idling provisions.
Thankfully, they were not criminal cases, but similar cases could
be criminally prosecuted. In the anti-idling regulations,
there are various exceptions, some of which might apply on some
days, but not others. The government absolutely could not get
away with any "on or abouts" in those cases now. It
would have to provide proof to the jury sufficient to demonstrate
the violation on every day as to which it seeks to collect a
penalty. Other regulatory regimes where the finding of a
violation would be very fact-specific and dependent upon conditions
prevailing on each separate day will also be affected by
To view Foley Hoag's Law and the Environment Blog
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The U.S. Environmental Protection Agency has published a proposed rule entitled Response to Petition for Rulemaking; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction.
Last week, the European Parliament rejected a proposal to reduce the quantity of greenhouse gas (GHG) emissions allowances in order to fix a supply-demand imbalance in the European Union Emissions Trading System (EU ETS).
After being taken to task by states and its own Inspector General for lack of final guidance on Vapor Intrusion, EPA has just released draft guidance documents for hazardous substances and petroleum products for comment.
On April 19, 2013, EPA released the proposed "Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category" (Steam Electric ELG). The proposed Steam Electric ELG would revise the existing technology-based effluent limitations guidelines [40 CFR 423] for most steam electric power plants and their discharges to U.S. waters or POTWs.
In a decision that should not have come as a surprise to anyone, the 9th Circuit Court of Appeals ruled on Thursday, in "Conservation Northwest v. Sherman", that the Bureau of Land Management and other agencies implementing the Northwest Forest Plan could not amend the NFP.