Polluter Pleads Ignorance And Wins

Federal prosecutors must prove that polluters knew they were polluting, according to a ruling by the U.S. Circuit Court of Appeals for the Fifth Circuit [U.S. v. Ahmad, No. 95-20627, 5th Cir., Nov. 27, 1996].

The appeals court reversed the conviction of Attique Ahmad, a convenience-store owner who dumped thousand of gallons of gasoline into the sewer system of Conroe, Texas. The decision, which sets a new, tough standard for proving environmental crimes, has angered the Justice Depart-ment and environmentalists.

As a result, prosecutions under the Clean Water Act in Texas, Louisiana and Mississ-ippi - where Fifth Circuit decisions have direct effect - now must include proof that the alleged polluters knew they were discharging a hazardous substance. However, defendants throughout the country most likely will use the ruling in fighting government claims in this somewhat hazy area of the law.

It's not clear yet whether the Justice Department will ask the U.S. Supreme Court to review the Fifth Circuit ruling. But, pressure is mounting, particularly from prosecutors who handled the Texas case.

The decision "could be read to substantially and negatively impact the enforcement of [environmental] laws," according to Michael Shelby, the government lawyer who prosecuted Ahmad.

Criminal enforcement of environmental laws is sharply on the rise. For the most part, prosecutors have successfully argued that in such cases, they don't have to prove criminal intent for each element of the crime. Instead, they must prove only that the defendant discharged a contaminant without a permit - no matter what the defendant knew about the substance.

The Fifth Circuit decision said that prosecutors have had it too easy. Not surprisingly, defense lawyers are elated with the ruling, which they believe can benefit companies and individuals under all kinds of environmental laws. Thomas Bartman, a Texas lawyer, told The Wall Street Journal that his firm, which represents manufacturers and oil companies, is sending out letters to lots of clients.

A Boston lawyer who has a number of corporate clients under federal investigation said that several of them could benefit from the appeals court decision. "Where there have been inadvertent violations, ... this [precedent] could help," he said.

Other lawyers say the ruling will give individual and corporate defendants more leverage in plea bargaining, which is how the overwhelming majority of criminal environmental cases are resolved. Criminal actions are often coupled with civil cases, which are not affected by the decision.

Despite his victory, Ahmad does not emerge as a model citizen. Indeed, his de-tractors include his own lawyer. "There are some ugly facts," said Bateman who also helped with the appeal. "It's kind of hard to see how the guy didn't know he had done it," said the Boston lawyer who had merely read the decision.

As the story unfolds in the appellate opinion, Ahmad found that water was leaking into the top of an underground gas tank at his convenience store and gas station. Instead of hiring a professional, he decided to save money and empty the tank himself.

A tank repair expert testified that he had warned Ahmad it would be "dangerous and illegal." The expert also said that Ahmad replied, "Well, if I don't get caught, what then?"

Ahmad rented a pump and, according to eyewitnesses, pumped the liquid into the street where it flowed into a manhole. Nearly 4,700 gallons of gasoline mixed with a small amount of water contaminated a nearby creek and coursed through eight miles of sewer pipes to Conroe's sewage treatment plant. The next day, the plant and two schools were evacuated as local officials feared an explosion.

At trial, Ahmad's lawyer wanted to introduce testimony from two witnesses who claimed that Ahmad did not know he was pumping gasoline. However, the trial judge said that Ahmad's state of mind was not relevant, and he refused to allow testimony from the witnesses. In the end, he was convicted and then sentenced to 21 months in prison.

However, the Fifth Circuit reversed the conviction, saying that the trial judge had overlooked two recent U.S. Supreme Court decisions on a defendant's state-of-mind. In one case, the high court overturned a conviction for possessing a machine gun because the government failed to prove that the defendant knew that his weapon actually qualified as a machine gun. In addition, the appeals court said that the two witnesses should have been allowed to testify.

But the case is far from over for Ahmad. The U.S. Attorney's Office in Houston responded that "under any standard of law ... by the Fifth Circuit or the Supreme Court ... we will prosecute Mr. Ahmad."