[PPT] - Criminal Environmental Enforcement Presented at the UHLC PowerPoint Presentation

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Criminal Environmental Enforcement Presented at the UHLC Environmental Practicum—2015

April 8, 2015 Roger A. Haseman Assistant District Attorney Harris County, Texas

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Overview

 Historical Perspective  Types of Cases  Investigative Agencies  Stats – 2014  S.E.P.s  Training & Education  Mens Rea  Proof of Knowledge

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Historical Perspective

 Began in the late 1970s  The Pollution Division  One person assigned to this Division as

well as other duties

 Received most, if not all, cases from the

Harris County Pollution Control Division (HCPCD), now Pollution Control Services

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Historical Perspective

 Responsible for the prosecution of two

seminal cases:

 American Plant Food Corp. v. State

(Water Pollution)

 Exxon Co. U.S.A. v. State (Air Pollution)  Still make case law with every trial today.

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Historical Perspective

 1991 – SB2  Created a multitude of new offenses, both

felonies and misdemeanors

 Health & Safety Code  Water Code  Basic framework we still use today.

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Types of Cases We Prosecute

 Illegal Dumping – Strict Liability  Water Pollution – Strict Liability  Used Oil Act Violations  Air Pollution  Hazardous Waste Violations

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Special Situation Cases

 Parks and Wildlife Code Violations

– Sewage discharges from boats – Industrial Waste discharges (Fish houses/Seafood processors) – Prohibited Species cases (Non-native Fish/Plant life)

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Special Situation Cases

 Vehicle Emissions Fraud

– Tampering with Governmental Records – Inspection Certificates

 Penal Code Violations, but Clean Air Act

Who Investigates Environmental Crime?

 HCPCD – HCPCS(PCS)

– (Merger with the Health Department) – 15 Investigators and a Laboratory

 HPD/EIU – 1993

– 6 Police Officers and 6 City Inspectors

 HCEED – 1993

– 6 Constables

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Who Investigates Environmental Crime?

 Texas Parks & Wildlife Department

– 2 Game Wardens (Environmental Officers)

 Texas Commission on Environmental

Quality (TCEQ)

– 1 Criminal Investigator

 E.P.A. – ???  County Attorney’s Office

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Stats – 2014

 484 Cases – $266,300.00  247 New Investigations Opened  52 Open Investigations  Total Restitution – $85,038.76  Community Service Rest -- $330,400.59  Approximately 40% of cases are felonies  113 Camera Cases Filed

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Supplemental Environmental Projects (S.E.P.s)

 Both the City of Houston and Harris

County have S.E.P. Accounts

 Corporations perform projects through Pre-

Trial Intervention Agreements

 Penalties – Fines + S.E.P. Contributions  $624,150.00 S.E.P.

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Training & Education

 City of Houston Seminars (NEET)

– Waste Transporter Seminar – Power/Pressure Washing Seminars – Apartment Complex Sewage Issues – Automotive Industry Seminar

 HCPCS Training  H-GAC Environmental Roundtables

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Training & Education

 TCEQ Basic Environmental Course  TELEA Conference  SEEN Conferences

– Our office is an agency member representative for TDCAA

 FLETC (Advanced Environmental Crimes

Course – Two Weeks)

 NDAA Courses

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Conclusion

 No other county in Texas does what Harris

County does

 No other county in Texas has more than

ne prosecutor assigned to environmental

 The vast majority of criminal

environmental case law has come and continues to come from Harris County

 Harris County is the leader in Texas on

environmental crimes

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Miscellaneous Items

 Mens Rea (Culpability)  Intentional or Knowing Violations

– “with respect to conduct” (Texas law) – Ahmad v. United States (Federal law)

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Public Welfare Doctrine

 Strict Liability Offenses

– Water Pollution (Chapter 7.147, Water Code) – Illegal Dumping (Chapter 365, H&S Code)

 Reckless Violations (Endangerment)  Criminal Negligence

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§ 7.202. Proof of Knowledge

In determining whether a defendant who is an individual knew that the violation placed another person in imminent danger

f death or serious bodily injury under

Section 7.168, 7.169, 7.170, or 7.171, the defendant is responsible only for the defendant’s actual awareness or actual belief possessed.

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§7.202.

 Knowledge possessed by a person other

than the defendant may not be attributed to the defendant.

 To prove a defendant’s actual knowledge,

however, circumstantial evidence may be used, including evidence that the defendant took affirmative steps to be shielded from relevant information.

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Corporate Responsibility

 Misdemeanors – Agents/Employees  Felonies – High Managerial Agent  Sec. 7.22, Penal Code  No Probation for Corporations  Art. 17A.08, Code of Criminal Procedure

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Projects

 § 7.203, Water Code

Criminal Enforcement Review

 Is this statute constitutional or does it

violate the Separation of Powers doctrine?

 See Ex parte John Christopher Lo, No.

PD-1560-12 (Tex.Crim.App., March 19, 2014)(Per Curiam Opinion)

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Projects

 Right to Enter Provisions  § 26.014. Power to Enter Property  § 26.173. Power to Enter Property

Local Governments

 Are these provisions constitutional?  Or, are they overbroad?

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Projects

 May a peace officer enter public or private

property at any reasonable time for the purpose of inspecting and investigating conditions related to water quality?

 Or, must a peace officer first obtain a

search warrant? Do exigent circumstances apply?

 Or, must a peace officer obtain consent?

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Projects

 Is it possible for a peace officer to be a

trespasser on private property if he enters property, then open for business to the public, for the purpose of investigating a discharge coming from the property?

 Does it make a difference if the business

has “No Trespassing” signs posted?

 Can a peace officer be a trespasser if he

has a legitimate reason to enter the site?

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Projects – New

 The Little Hocking Water Assoc., Inc. v.

E.I. du Pont Nemours & Co., 2015 BL 64422, S.D. Ohio, No. 09-cv-1081, 3/10/15.

 Federal court holds land deposition of air

emissions can constitute “disposal” of “solid waste.”

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Projects – New, cont.

 Citizens may bring a RCRA imminent and

substantial endangerment case based on the ground deposition of material emitted from a facility’s smoke stacks.

 9th Circuit refused to recognize a similar

claim regarding particulate emissions from locomotives.

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Projects – New

 Using drones to gather evidence from

business facilities.

 Is a search warrant needed to fly over and

video or photograph the operations and/or suspected illegal activity of a facility?

 Or does the Open Fields Doctrine apply?  Can a drone be used to establish probable

cause to obtain a search warrant?

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