What’s the Future for Multi-Day Fines in Environmental Criminal Cases? The Supreme Court Rules That Juries Must Decide the Facts Supporting the Fines

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 environmental cases.

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 unavoidable.

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 Southern Union

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