Background
The U.S. Fifth Circuit Court of Appeals recently issued an opinion regarding criminal liability under environmental statutes. United States v. Citgo Petroleum Corp., et al., No. 14-40128, 2015 U.S. App. LEXIS 15865 (5th Cir. Sept. 4, 2015). In what may be considered a warning shot to overzealous federal prosecutors looking to obtain criminal convictions under the Clean Air Act (“CAA”) or the Migratory Bird Treaty Act (“MBTA”), the Court of Appeals reversed criminal convictions against Citgo related to violations of both Acts at its Corpus Christi refinery.
Citgo’s Corpus Christi refinery operates a wastewater treatment system that sends all oily wastewater to several Corrugated Plate Interceptor (“CPI”) separators. The water phase (with residual oil) is separated and sent to two equalization tanks, followed by flotation and biological treatment. The CPI separators have roofs that prevent the release of air emissions, but the equalization tanks (as well as the other downstream equipment) do not. Following a surprise inspection of its Corpus Christi refinery, Citgo was indicted for violations related to the two open-top equalization tanks. The district court found Citgo guilty of two counts of knowingly operating two tanks as oil-water separators without CAA emission controls, and three counts of “taking” migratory birds in violation of the MBTA. Citgo appealed the convictions.
Clean Air Act
The CAA gives the Environmental Protection Agency (“EPA”) authority to issue emission control standards for new sources of pollution that fall within certain source categories. 42 U.S.C. §7411. EPA exercised this authority to issue regulations controlling volatile organic carbon (“VOC”) emissions from oil refinery wastewater treatment systems. See Standards of Performance for VOC Emissions from Petroleum Refinery Wastewater Systems, 40 C.F.R. §§ 60.690 to 699 (“NSPS Subpart QQQ”). Under NSPS Subpart QQQ, refinery operators are required to put roofs on “oil-water separators.” The regulations define “oil-water separators” in part as wastewater treatment equipment “used to separate oil from water consisting of a separation tank, which also includes the forebay and other separator basins, skimmers, weirs, grit chambers, and sludge hoppers.” 40 C.F.R. §60.691. The CPI separators used by Citgo contained all the ancillary equipment mentioned in the definition. While the equalization tanks do have skimmers, they do not contain any of the other ancillary equipment, and oil could only be removed using vacuum trucks.
The Court of Appeals had to determine if the two equalization tanks were “oil-water separators” under Subpart QQQ, therefore requiring that a roof be placed on top to control emissions. The government argued that any equipment used to separate oil should be considered an “oil-water separator” regardless of whether it contained all the ancillary equipment described in the definition. However, the Court of Appeals read the phrase “which also includes the forebay and other separator basins” as only modifying the term “separation tank.” Read that way, the definition requires an oil-water separator to have (1) one or more separation basins, (2) skimmers, (3) weirs, (4) grit chambers, and (5) sludge hoppers. The Court of Appeals found further support for this reading in the promulgation history of Subpart QQQ, which exempted equipment that would now fall under Subpart QQQ under the government’s reasoning. Finally, the Court of Appeals noted that the government’s interpretation would be in conflict with NSPS Subpart Kb, which already regulates storage vessels used in wastewater treatment systems.
The Court of Appeals concluded that the equalization tanks were not “oil-water separators” under Subpart QQQ. Therefore, the Court of Appeals reversed Citgo’s CAA convictions.
Migratory Bird Treaty Act
The MBTA makes it a misdemeanor to unlawfully kill a federally protected, migratory bird. 16 U.S.C. § 703(a); 16 U.S.C. § 707(a). A violation of the MBTA results in a fine up to $15,000 and six-months imprisonment. The MBTA protects 1,026 species of birds. 78 Fed. Reg. 65844 (Nov. 1, 2013).
There is a circuit split on whether a person or entity is liable under the MBTA if the person or entity unintentionally, or even accidently, kills a migratory bird. While the 2nd and 10th Circuits have held defendants liable based on unintentional killing,[1] the 8th and 9th Circuit have required the type of physical conduct typically engaged in by hunters and poachers that is actually directed against wild birds.[2]
In the Citgo case, the Fifth Circuit dove into these uncertain regulatory waters head on. The district court had held the refinery owner criminally liable under the MBTA after it was discovered that several migratory birds died in the equalization tanks; the two open-top wastewater tanks containing a floating oil layer. The district court had concluded that an illegal taking under the MBTA can occur even if there is no intentional act directed at migratory birds, and that strict liability only required the actor to have proximately caused the taking.
In reversing the district court, the Court of Appeals concluded that a “taking” under the MBTA is limited to deliberate acts done directly and intentionally to migratory birds.[3] The government had argued that since the MBTA was a strict liability offense, it necessarily meant that “take” includes acts or omissions that indirectly or accidentally kill migratory birds. While seemingly agreeing that it is a strict liability offense, the Court of Appeals differentiated between mens rea (the criminal intent) and actus reus (the physical act). As a strict liability offense, the government does not need to prove that the defendant had a criminal intent. However, the actus reus must still be proven; in other words, the defendant must still voluntarily commit the physical act of the crime in order to be liable. According to the Court of Appeals, the criminal act here is to “take”, which based on its common law definition (i.e., “to reduce those animals, by killing or capturing, to human control”), requires an affirmative act directed at the migratory birds.
The Court of Appeals also found support in its analysis of similar wildlife statutes. Specifically, the Court of Appeals concluded that the use of the words “harass” and “harm” in the Endangered Species Act and Marine Mammal Protection Act results in those statutes including negligent and unintentional acts within the definition of “take,” and found it persuasive that the MBTA does not include those words among the prohibited acts.
The Court of Appeals concluded that “the MBTA’s ban on “takings” only prohibits intentional acts (not omissions) that directly (not indirectly or accidentally) kill migratory birds.” As a result, the 5th Circuit joins the 8th and 9th Circuit in effectively limiting MBTA takings to deliberate acts done directly and intentionally to migratory birds.
Conclusion
In the final analysis, it appears that the government simply overreached in its charging decisions on both the CAA and the MBTA counts. On the CAA Subpart QQQ count, the Court of Appeals rejected the government’s “functional interpretation” in favor of a textual reading that was not in conflict with the regulatory history and other regulations. The take-away there is that the government cannot parse the wording of a regulation to fit the facts of a case when the new interpretation is not supported by the regulatory language. Regarding the MBTA, the Court in Citgo made clear that in the Fifth Circuit there must be more than simply a dead bird to convict under the MBTA. The case serves as a warning for federal prosecutors to not rely on a sledgehammer approach when using the “strict liability” element/argument to convict under the MBTA. Indeed, after Citgo, EPA may be forced to take a more reasoned approach in its enforcement efforts.
[1] U.S. v. Apollo Energies, Inc., 611 F.3d 679, 686 (10th Cir. 2010); U. S. v. FMC Corp., 572 F.2d 902 (2d Cir. 1978).
[2] Newton Cnty. Wildlife Ass’n v. U.S. Forest Serv., 113 F.3d 110 (8th Cir. 1997); Seattle Audubon Soc’y v. Evans, 952 F.2d 297, 302 (9th Cir. 1991). See also U.S. v. Brigham Oil and Gas, L.P., 840 F. Supp. 2d 1202 (D.N.D. 2012).
[3] The Court of Appeals noted in a footnote that it likely would reach the same conclusion if the indictment had been for “killing” migratory birds instead of “taking”, theorizing that under the MBTA the word “kill” had little to no independent meaning separate and apart from “take.”