On June 21, 2012, the Supreme Court ruled in Southern Union Co. v. United States that the Sixth Amendment’s guarantee of a jury trial – and the corresponding requirement that a jury must decide, beyond a reasonable doubt, all facts leading to criminal liability – applies to criminal fines under RCRA. Because the ruling applies broadly to all criminal fines, it may affect criminal enforcement of other federal and state environmental laws as well.
Southern Union had been convicted by a jury of one count of violating RCRA by knowingly storing liquid mercury without a permit. Violations of RCRA are punishable by fines of up to $50,000 per day of violation. The jury’s verdict form stated that Southern Union had unlawfully stored mercury “on or about September 19, 2002 to October 19, 2004” – a period of 762 days – but the jury was not asked to specify the number of days of violation and did not do so. Hence Southern Union argued that the jury had only necessarily found them guilty of one day’s violation, and that increasing the fine above $50,000 would therefore violate a previous Supreme Court decision, Apprendi v. New Jersey, which held that the Sixth Amendment right to a jury trial in criminal cases prohibits a judge from deciding facts that increase a criminal defendant’s maximum potential sentence.
The rule of Apprendi had generally been applied to prison sentences, but courts had reached differing decisions on whether it applied to criminal fines. The trial court in Southern Union decided that Apprendi applied to criminal fines, but that the jury had effectively found a 762-day violation. It calculated the maximum fine for that violation at $38.1 million, and imposed a $6 million fine and a “community service obligation” of $12 million. The appeals court affirmed the amount of the verdict, but held that Apprendi did not apply to criminal fines.
The Supreme Court reversed, holding that Apprendi applies to criminal fines. Since the jury’s verdict did not specify the number of days of violation, the verdict was limited to a single violation, with a maximum penalty of $50,000. Justices Breyer, Kennedy and Alito dissented from the Court’s decision.
This ruling has potentially broad implications for criminal prosecution of environmental violations, since several other environmental statutes – including the Clean Water Act, the Toxic Substances Control Act, and numerous provisions of the New York Environmental Conservation Law – include criminal fines that are keyed to the number of days of violation. Any prosecution under those statutes will now require that the jury decide, beyond a reasonable doubt, the number days of violation committed by the defendant. Those statutes also provide for civil penalties, including daily fines, which are not covered by the 6th Amendment or affected by the Supreme Court’s ruling.