Lara Beaven of Inside EPA shares this interesting piece on the obstacles to criminal prosecutions of the Clean Water Act that brings to mind the old gem that begins "what do you have when you have [fill in the blank] lawyers up to their necks in sand?" The many lawyers Ms. Beaven spoke to had many opinions but I still think the safe bet is that, if the Supreme Court can't define the reach of the Clean Water Act in a civil case, a constitutionally sound criminal prosecution is out of the question. Let's see if I'm correct about what the Prosecutors do next with Mr. Lucero.
Jeffrey Porter, chair of the environmental law practice at Mintz, a Boston firm, also believes the ruling could reduce criminal prosecution of CWA violations. “To me the impact [of the Lucero ruling] is going to be if you’re a prosecutor, you’re going to have to think long and hard” about bringing a case, Porter tells Inside EPA, adding that his prediction is that the U.S. attorney’s office for northern California will opt against retrying the case.