Uncharted Waters: Addressing the Shortcomings of Criminal Liability Under the Clean Water Act by Charging Water Polluters with Assault

Water pollution incidents pose both acute and long-term risks to human health, yet the Clean Water Act (CWA) ineffectively holds water polluters accountable. By defining criminal violations in terms of technical breaches of the statute, the CWA’s criminal provisions are vulnerable to narrow judicial interpretations, leaving many environmental crimes unpunished. Furthermore, the Environmental Protection Agency (EPA) rarely pursues criminal charges under the CWA, relying instead on civil fines, which fail to impose meaningful consequences. This underinclusiveness and under-utilization allows many polluters to evade serious penalties. Even when pollution incidents are covered by the CWA and the EPA pursues prosecution, the focus on statutory violations rather than the harm to human health weakens deterrence. Violators face neither the stigma nor the severity associated with crimes against persons, diminishing the statute’s potential to deter harmful behavior.

This Comment argues that prosecutors should charge water polluters with assault or assault with a deadly weapon to address the shortcomings of the CWA. Water polluters often act knowingly, recklessly, or negligently in polluting waters, and their actions frequently lead to bodily injury. Prosecutors can navigate the challenge that proving causation poses in complex environmental cases by drawing on the bifurcated causation approach used in toxic tort cases. Charging water polluters with assault not only captures polluters who may evade liability under the CWA, but also directly acknowledges the human harm caused by water pollution. Such prosecutions should no longer be uncharted waters.