RCRA and the Sixth Amendment: Who decides the criminal fine—judge or jury?

Vol. 43 No. 5

Deborah K. Tellier is a partner in the San Francisco office of Farella Braun + Martel LLP where she practices environmental law. 

Federal environmental enforcement is a hot topic in the U.S. Supreme Court this Term, with the Court taking up several significant cases including Southern Union Co. v. United States, No. 11-94. The case involves a seemingly mundane regulatory dispute between Southern Union and the U.S. Environmental Protection Agency (EPA) regarding EPA’s enforcement of Resource Conservation and Recovery Act (RCRA) regulations in Rhode Island, a RCRA-authorized state. But the heart of the dispute is a constitutional one—whether the principles of the Fifth and Sixth Amendments established under Apprendi v. New Jersey, 530 U.S. 466 (2000) apply to the imposition of criminal fines in this RCRA enforcement case. The fundamental question before the Court is who must decide on the imposition and amount of a criminal fine when a corporation is charged: the judge, using a preponderance of the evidence standard, or the jury, showing proof beyond a reasonable doubt? 

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