When the FBI Comes Calling…®
ENVIRONMENTAL CRIMES
There are two categories of environmental crimes that are recognized as transnational crimes. They are: pollution and trafficking in flora and fauna.
Pollution
There are a number of pollution-related Acts which have been passed to deal with transnational pollution.
One of these Acts is the Act to Prevent Pollution from Ships. 33 U.S.C. § 1901 et seq. is the enacting legislation for the International Convention for the Prevention of Pollution from Ships, along with the Antarctic Protocol and the MARPOL Protocol. Id. § 1901(a). The Act declares it "unlawful to act in violation of the MARPOL Protocol, Annex IV to the Antarctic Protocol, this Act, or the regulations issued thereunder." Id. § 1907(a).
MARPOL Protocol
The MARPOL Protocol absorbed the Convention and became a combined instrument: the International Convention for the Prevention of Marine Pollution from Ships. See International Marine Organization, International Convention for the Prevention of Pollution from Ships, 2002, available here. The combined instrument stated that
- the total quantity of oil which a tanker may discharge while under way must not exceed 1/15,000 of the total cargo-carrying capacity of the vessel;
- the rate at which oil may be discharged must not exceed 60 liters per mile traveled;
- no discharge of any oil whatsoever may be made from the cargo spaces of a tanker within 50 miles of the nearest land; and
- an oil record book is required. Id.
It also covers a number of chemicals and solid wastes that may not be discharged. Id.
Antarctic Protocol
The Antarctic Protocol designates Antarctica as a natural reserve, devoted to peace and science. Protocol on Environmental Protection to the Antarctic Treaty, Oct. 4, 1991, Art. 2, 30 ILM 1455. It forbids any activity relating to mineral resources, other than scientific research. Id. Art. 7. It also prohibits unlicensed taking of flora and fauna, Id. Annex II, Art. 3, the introduction of alien species, Id. Annex II, Art. 4, and requires that waste disposal is as minimal as possible. Id. Annex III, Art. 1.
The Punishment
A person who knowingly violates the MARPOL Protocol, the Antarctic Protocol, or the Act, commits a class D felony, 33 U.S.C. § 1908(a), which is punishable by a maximum jail sentence of 6 years. 18 U.S.C. § 3581(b)(4).
Individuals who are charged under this Act, may also be charged with conspiracy, which you can learn more about here, and making false statements, which you can learn more about here.
Case Law Interpreting Section 1901 et seq.
United States v. Apex Oil Co.,, 132 F.3d 1287 (9th Cir. 1997). At issue in this case was whether the discharge of "muck" constituted an offense under the Act. The defendants were indictment on allegations that they "knowingly and willfully" conspired and agreed to discharge "cargo-related oil residues in violation of" the Act. Apex Oil at 1288. The residues included "oily rags, plastic suits, flashlight batteries, and plastic scrapers." Id. at 1288-89. The defendants moved to dismiss the indictment on grounds that the law was void for vagueness. After hearing arguments from both sides, the District Court "declared that what the government was seeking to sanction was the discharge of 'muck' after the ships had undergone four phases of cleaning." Id. at 1289. The court then ruled that "the regulation does not plainly or unmistakably include oil constituents, muck or paraffin." Id. The Ninth Circuit Court of Appeals agreed and stated that "in the face of uncertainty as to the meaning of what is forbidden, the rule of lenity requires dismissal" of part of the indictment. Id. at 1291.
United States v. Stickle, 355 F. Supp. 2d 1317 (S.D. Fla. 2004).
In a later case, the defendants attempted to argue that "oil and oily mixture" were "insufficiently definite to adequately notify and inform the public of the specific conduct that is subject to criminal penalties." Stickle at 1334. The District Court rejected that argument, stating that the terms in the Act and the related Protocols were sufficiently clear as applied to the defendants. Id. at 1335.
In October, a ship's engineer was indicted on allegations that he used a "magic pipe" that disguised the illegal discharge of sludge and oil-contaminated waste. For more information on this case, see our blog post on the indictment here.