Courts and commentators have struggled with interpreting the mental state requirement in modern regulatory criminal statutes, and the public welfare offense doctrine has been the focus of that confusion. The Supreme Court has relatively recently defined public welfare offenses as those, which a reasonable person would know are subject to strict public regulation, could threaten public health and safety, and relate to activities that are both "dangerous" and "uncommon." Despite a relatively clear definition, practitioners and judges are left to determine which mental state word applies to each element of the regulatory offense and whether the offense falls within the "public welfare offense" category at all. Using the criminal provisions of the federal Clean Water Act in section 309(c) and its judicial interpretations as a guidepost, the author argues that Congress should redraft the federal regulatory criminal statutes using the Model Penal Code interpretative protocols and definitions. The author further argues that the government should have to prove some awareness of illegality under section 309(c) and offers a suggested amendment of section 309(c) using a Model Penal Code approach.
Recommended CitationAndrew C. Hanson, Section 309(c) of the Clean Water Act: Using the Model Penal Code to Clarify Mental State in Water Pollution Crimes, 20 Pace Envtl. L. Rev. 731 (2003)
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