Responsible Corporate Officers and Section 113(C)(6) of the Clean Air Act: The Dormant Provision with a Useful Function


Peter C. White


The flurry of criticism over the addition of the responsible corporate officer provision to the Clean Air Act has focused on its application of strict liability and the mens rea requirement. Dotterweich and Park both applied what appeared to be strict liability for violations of the Food, Drug and Cosmetics Act. The fear was that non-culpable corporate officers would be held strictly liable, face not misdemeanor sanctions but the most severe felony penalties.

This fear was unfounded. No corporate officer was held strictly liable; public welfare offenses evolved as the courts conscientiously applied the “knowing” requirement to environmental statutes and the RCO provision.

However, traditional criminal law theory and case law support another use of the RCO provision, one in which the statute is the source of a duty for a corporate officer who is in responsible relation to a public danger: the duty to actively seek out to prevent or remedy violations. This paper will explore the value of defining the RCO provision as the actus reus of a crime—the omission or breach of a statutory duty. This theory can further the environmental regulatory program by deterring would be violators and by increasing compliance, a value that exists despite the fact that the RCO provision is rarely used to prosecute corporate officers. Part II will trace the evolution of criminal provisions and the addition of the responsible corporate officer clause in environmental statutes. Part III will the follow the case law that has slowly evolved. Part IV will discuss why the RCO provision is not used more often, and how it nevertheless serves an important function in environmental law. Part V will conclude with suggested improvements of the legislature could clarify how and when the RCO doctrine should apply.


Environmental Law

Date of this Version

September 2004