Protecting the environment does not require us to abandon the rule of law

FREEcology

This week, briefing began in WildEarth Guardians v. U.S. Department of Justice, a case of critical importance to anyone concerned about federal overcriminalization. The Endangered Species Act makes it a crime to “knowingly violate” the statute’s prohibition against taking listed species. For decades, the United States has interpreted this to mean that, to be convicted, a defendant must know his actions will cause take and know the species that will be taken. The case seeks to overturn that interpretation in the case; in effect, to force federal prosecutors to convict and imprison people for innocent mistakes resulting from ordinary, traditionally lawful activity. [Disclaimer: I, along with several of my PLF colleagues, represent agricultural organizations in the case. You can find our brief here.]

Overcriminalization is another example of the due process deficit in environmental law. Traditionally, the rule of law has prevented this sort of…

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