Are Migratory Birds Extending Environmental Criminal Liability?

Arensberg, Alex
May 2011
Ecology Law Quarterly;2011, Vol. 38 Issue 2, p427
Academic Journal
Environmental statutes frequently include criminal provisions as a means of enforcing their regulations. However, these provisions often include little if any mens rea requirement. As with any form of criminal liability that approaches strict liability, courts must therefore somehow insure that convictions satisfy constitutional due process concerns. During the last century, and accompanying the rise of regulatory statutes, the court developed the public welfare doctrine as a method of justifying the lack of a mens rea requirement for certain types of crimes. These crimes, known as public welfare offenses, involve regulations so potentially dangerous to public health and safety that the court was willing to presume that the allegedly criminal actor had knowledge of his wrongdoing, thus satisfying due process. United States v. Apollo Energies, Inc.'s interpretation of the Migratory Bird Treaty Act demonstrates another method of ensuring due process despite the lack of a mens rea requirement. While these crimes do not fall under the coverage of the traditional public welfare doctrine, the Tenth Circuit borrowed several elements of the traditional doctrine, including foreseeability of regulation and of harm. The Tenth Circuit's willingness to use these elements outside of the public welfare setting illuminates when courts might find liability for future environmental regulatory crimes.


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