[1293]*1293DISSENTING OPINION FROM ORDER REJECTING SUGGESTION FOR REHEARING EN BANC
Aug. 8, 1994
KLEINFELD, Circuit Judge, with whom Circuit Judges REINHARDT, KOZINSKI, TROTT, and T.G. NELSON join, dissenting from the order rejecting the suggestion for rehearing en banc.
I respectfully dissent from our decision to reject the suggestion for rehearing en banc.
Most of us vote against most such petitions and suggestions even when we think the panel decision is mistaken. We do so because federal courts of appeals decide cases in three judge panels. En banc review is extraordinary, and is generally reserved for conflicting precedent within the circuit which makes application of the law by district courts unduly difficult, and egregious errors in important eases. In my view, this is a case of exceptional importance, for two reasons. First, it impairs a fundamental purpose of criminal justice, sorting out the innocent from the guilty before imposing punishment. Second, it does so in the context of the Clean Water Act. This statute has tremendous sweep. Most statutes permit anything except what is prohibited, but this one prohibits all regulated conduct involving waters and wetlands except what is permitted. 33 U.S.C. § 1311(a); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). Much more ordinary, innocent, productive activity is regulated by this law than people not versed in environmental law might imagine.
The harm our mistaken decision may do is not necessarily limited to Clean Water Act cases. Dilution of the traditional requirement of a criminal state of mind, and application of the criminal law to innocent conduct, reduces the moral authority of our system of criminal law. If we use prison to achieve social goals regardless of the moral innocence of those we incarcerate, then imprisonment loses its moral opprobrium and our criminal law becomes morally arbitrary.
We have now made felons of a large number of innocent people doing socially valuable work. They are innocent, because the one thing which makes their conduct felonious is something they do not know. It is we, and not Congress, who have made them felons. The statute, read in an ordinary way, does not. If we are fortunate, sewer plant workers around the circuit will continue to perform their vitally important work despite our decision. If they knew they risk three years in prison, some might decide that their pay, though sufficient inducement for processing the public’s wastes, is not enough to risk prison for doing their jobs. We have decided that they should go to prison if, unbeknownst to them, their plant discharges exceed permit limits. Likewise for power plant operators who discharge warm water into rivers near their plants, and for all sorts of other dis-chargers in public and private life. If they know they are discharging into water, have a permit for the discharges, think they are conforming to their permits, but unknowingly violate their permit conditions, into prison they go with the violent criminals.
The statute does not say that. The statute at issue makes it a felony, subject to three years of imprisonment, to “knowingly violate[ ] ... any permit condition or limitation.” 33 U.S.C. § 1319(c)(2)(A).1 Here is the statutory scheme, "with the portion applied in Weitzenhoff in boldface:
“Any person who ...
“negligently violates [various sections of the Clean Water Act] ... or any permit condition or limitation ... [commits a misdemeanor], 33 U.S.C. § 1319(e)(1)(A); “negligently introduces into a sewer system or a publicly owned treatment works any pollutant or hazardous substance which such person knew or reasonably should have known could cause personal injury or property damage or ... which causes such treatment works to violate any effluent limitation or condition in any permit ... [commits a misdemeanor], 33 U.S.C. § 1319(c)(1)(B);
“knowingly violates [various sections of the Clean Water Act] ... or any permit condition or limitation ... [commits a felony]. 33 U.S.C. § 1319(c)(2)(A);
[1294]*1294“knowingly introduces into a sewer system or into a publicly owned treatment works any pollutant or hazardous substance which such person knew or reasonably should have known could cause personal injury or property damage or ... which causes such treatment works to violate any effluent limitation or condition in a permit ... [commits a felony]. 33 U.S.C. § 1319(c)(2)(B);
“knowingly violates [various sections of the Clean Water Act] ... or any permit condition or limitation ... and who knows at that time that he thereby places another person in imminent danger of death or serious bodily injury ... [commits a felony punishable by up to 15 years imprisonment]. 33 U.S.C. § 1319(c)(3)(A).
In this case, the defendants, sewage plant operators, had a permit to discharge sewage into the ocean, but exceeded the permit limitations. The legal issue for the panel was what knowledge would turn innocently or negligently violating a permit into “knowingly” violating a permit. Were the plant operators felons if they knew they were discharging sewage, but did not know that they were violating their permit? Or did they also have to know they were violating their permit? Ordinary English grammar, common sense, and precedent, all compel the latter construction.
As the panel opinion states the facts, these two defendants were literally “midnight dumpers.” They managed a sewer plant and told their employees to dump 436,000 pounds of sewage into the ocean, mostly at night, fouling a nearby beach. Their conduct, as set out in the panel opinion, suggests that they must have known they were violating their National Pollution Discharge Elimination System (NPDES) permit. United States v. Weitzenhoff, 1 F.3d 1523, 1527-28 (9th Cir.1993). But we cannot decide the case on that basis, because the jury did not. The court instructed the jury that the government did not have to prove the defendants knew their conduct was unlawful, and refused to instruct the jury that a mistaken belief that the discharge was authorized by the permit would be a defense. Because of the way the jury was instructed, its verdict is consistent with the proposition that the defendants honestly and reasonably believed that their NPDES permit authorized the discharges.
This proposition could be true. NPDES permits are often difficult to understand and obey. The EPA had licensed the defendants’ plant to discharge 976 pounds of waste per day, or about 409,920 pounds over the fourteen months covered by the indictment, into the ocean. The wrongful conduct was not discharging waste into the ocean. That was socially desirable conduct by which the defendants protected the people of their city from sewage-borne disease and earned then-pay. The wrongful conduct was violating the NPDES permit by discharging 26,000 more pounds of waste than the permit authorized during the fourteen months. Whether these defendants were innocent or not, in the sense of knowing that they were exceeding then-permit limitation, the panel’s holding will make innocence irrelevant in other permit violation cases where the defendants had no idea that they were exceeding permit limits. The only thing they have to know to be guilty is that they were dumping sewage into the ocean, yet that was a lawful activity expressly authorized by their federal permit.
The statute says “knowingly violate[s] ... any permit condition or limitation.” “Knowingly” is an adverb. It modifies the verb “violates.” The object of the verb is “any permit condition or limitation.” The word “knowingly” is placed before “violates” to “explain its meaning in the case at hand more clearly.” 1 George O. Curme, A Grammar of the English Language 72 (1935). Congress has distinguished those who knowingly violate permit conditions, and are thereby felons, from those who unknowingly violate permit conditions, so are not. The panel reads the statute as though it says “knowingly discharges pollutants.” It does not. If we read the statute on the assumption that Congress used the English language in an ordinary way, the state of mind required is knowledge that one is violating a permit condition.
This approach has the virtue of attributing common sense and a rational purpose to Congress. Cf. Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1311 (9th Cir.1992); United States v. Martinez-Cano, 6 F.3d [1295]*12951400, 1405 (9th Cir.1993) (dissent). It is one thing to defy a permit limitation, but quite another to violate it without realizing that one is violating it. Congress promulgated a parallel statute making it a misdemeanor “negligently” to violate a permit condition or limitation. 33 U.S.C. § 1319(c)(1)(A). If negligent violation is a misdemeanor, why would Congress want to make it a felony to violate the permit without negligence and without even knowing that the discharge exceeded the permit limit? That does not make any sense. It would deter people from working in sewer plants, instead of deterring people from violating permits. All dischar-gers acting lawfully pursuant to a permit know that they are discharging pollutants. The presence or absence of that knowledge, which is the only mental element determining guilt under the panel’s decision, has no bearing on any conduct Congress could have meant to turn into a felony. The only knowledge which could have mattered to Congress, the only knowledge which distinguishes good conduct from bad, is knowledge that the discharge violates the permit. That is what the statute says, “knowingly violates,” not “knowingly discharges.” There is no sensible reason to doubt that Congress meant what it said and said what it meant.
The panel reaches its surprising result in surprising ways. First, it says that the statute is ambiguous. “As with certain other criminal statutes that employ the term ‘knowingly,’ it is not apparent from the face of the statute whether ‘knowingly’ means a knowing violation of the law or simply knowing conduct that is violative of the law.” Weitzenhoff, 1 F.3d at 1529. As explained above, a grammatical and sensible reading of the statute leaves no room for ambiguity. But for the sake of discussion, suppose that the statute is ambiguous, as the panel says. Then the rule of lenity requires that the construction allowing the defendant more liberty rather than less be applied by the courts. Ratzlaf v. United States, — U.S. —,—, 114 S.Ct. 655, 662-63, 126 L.Ed.2d 615 (1994); Hughey v. United States, 495 U.S. 411, 422, 110 S.Ct. 1979, 1985, 109 L.Ed.2d 408 (1990). “[L]enity principles ‘demand resolution of ambiguities in criminal statutes in favor of the defendant.’ ” Ratzlaf, — U.S. at—, 114 S.Ct. at 663. The reason is the need for “fair warning.” Id. (quoting McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816 (1931) (Holmes, J.)).
Instead of applying the rule of lenity, as it was required to do, the panel, after identifying the ambiguity, said “[w]e turn, then, to the legislative history of the provision at issue to ascertain what Congress intended.” That is not an appropriate way to resolve an ambiguity in a criminal law. “Because construction of a criminal statute must be guided by the need for fair warning, it is rare that legislative history or statutory policies will support a construction of a statute broader than that clearly warranted by the text.” Crandon v. United States, 494 U.S. 152, 160, 110 S.Ct. 997, 1002-03, 108 L.Ed.2d 132 (1990). We cannot fairly put sewer plant workers in peril of prison if they do not read House and Senate committee reports.
Even if the use of legislative history were proper here, it would not support the panel’s construction. The legislative history furnished a column of quotations and references in the opinion, but no genuine support for the panel’s analysis. The opinion relies’ on two quotations. The first says that criminal liability is to be imposed on any person who “causes a POTW [publicly owned treatment works] to violate any effluent limitation or condition in any permit.” Weitzenhoff, 1 F.3d at 1529 (quoting S.Rep. No. 50, 99th Cong., 1st Sess. 29 (1985)) (emphasis in Weit-zenhoff). That sounds as though it supports the panel’s construction, but no doubt the panel overlooked the context of these words. If one looks up the quotation, one discovers that the Senate report was referring here to another provision, 33 U.S.C. § 1319(c)(2)(B), not to the provision at issue. The other provision has entirely different language, “knowingly introduces ... any pollutant ... which causes such treatment works to violate any effluent limitation or condition in a permit,” as opposed to “knowingly violates ... any permit condition or limitation.”
The second quotation, from a House report, says that the “knowingly violates” and “negligently violates” crimes are intended to penalize those who “knowingly or negligently violate or cause the violation” of certain laws. [1296]*1296H.R.Rep. No. 189, 99th Cong., 1st Sess. 29-30 (1985). This quotation does not help to answer the question before the panel. The opinion applies subtle grammatical analysis to the phrase in the House committee report, “or cause the violation,” to draw an inference that knowing conduct which unknowingly violates a permit was meant to be turned into a felony. Careful grammatical analysis might better be applied to the law which Congress passed and the President signed. Even if inference from unexpressed intent in a committee report from one house were an appropriate means of turning innocent conduct into a felony, the inference from these words is too weak to carry the argument.
The panel’s entire excursion into legislative history was fruitless and mistaken. The Supreme Court recently said in Ratzlaf v. United States, — U.S.—, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994), “we do not resort to legislative history to cloud a statutory text that is clear. Moreover, were we to find § 5322(a)’s ‘willfulness’ requirement ambiguous as applied to [structuring], we would resolve any doubt in favor of the defendant.” Id. at-, 114 S.Ct. at 662-63 (footnote omitted). Analogously, the legislative history cannot properly be used to cloud the legislative restriction of felonies to those permit violations in which the person has “knowingly violate[d].” Even -if the statute were ambiguous, the rule of lenity would compel resolution of the ambiguity in favor of the defendant.
The panel then tries to bolster its construction by categorizing the offense as a “public welfare offense,” as though that justified more aggressive criminalization without a plain statutory command. This category is a modernized version of “malum prohibitum.” Traditionally the criminal law distinguishes between malum in se, conduct wrong upon principles of natural moral law, and malum prohibitum, conduct not inherently immoral but wrong because prohibited by law. Black’s Law Dictionary 1112 (4th ed. 1951). To put this in plain, modern terms, any normal person knows murder, rape and robbery are wrong, and they would be wrong even in a place with no sovereign and no law. Discharging 6% more pollutants than one’s permit allows is wrong only because the law says so. Substitution of the modern term “public welfare offense” for the traditional one, ma-lum prohibitum, allows for confusion by rhetorical suggestion. The new term suggests that other offenses might merely be private in their impact, and therefore less serious. The older set of terms made it clear that murder was more vile than violating a federal regulation. The category of malum prohibi-tum, or public welfare offenses, makes the rule of lenity especially important, most particularly for felonies, because persons of good conscience may not recognize the wrongfulness of the conduct when they engage in it.
Staples v. United States, — U.S. —, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), reminds us that “offenses that require no mens rea generally are disfavored.” Id. at-, 114 S.Ct. at 1797. Mens rea may be dispensed with in public welfare offenses, but the penalty is a “significant consideration in determining whether the statute should be construed as dispensing with mens rea.” Id. at-, 114 S.Ct. at 1802.
The potentially harsh penalty attached to violation of § 5861(d) — up to 10 years’ imprisonment — confirms our reading of the Act. Historically, the penalty imposed under a statute has been a significant consideration in determining whether the statute should be construed as dispensing with mens rea. Certainly, the eases that first defined the concept of the public welfare offense almost uniformly involved statutes that provided for only light penalties such as fines or short jail sentences, not imprisonment in the state penitentiary.
As commentators have pointed out, the small penalties attached to such offenses logically complemented the absence of a mens rea requirement: in a system that generally requires a “vicious will” to establish a crime, imposing severe punishments for offenses that require no mens rea would seem incongruous. Indeed some courts justified the absence of mens rea in part on the basis that the offenses did not bear the same punishments as “infamous crimes,” and questioned whether imprisonment was compatible with the reduced culpability required for such regulatory offenses.
[1297]*1297Id. at-, 114 S.Ct. at 1802-03 (footnote and citations omitted). If Congress makes a crime a felony, the felony categorization alone is a “factor tending to suggest that Congress did not intend to eliminate a mens rea requirement. In such a case, the usual presumption that a defendant must know the facts that make his conduct illegal should apply.” Id. at-, 114 S.Ct. at 1804. In the case at bar, “the facts that make his conduct illegal” are the permit violations, not the discharges of pollutants. Discharge of pollutants was licensed by the federal government in the NPDES permit. Under Staples, it would be presumed, even if the law did not plainly say so, that the defendant would have to know that he was violating the permit in order to be guilty of the felony.
Precedent cuts strongly against the panel’s decision. Two Supreme Court decisions came down this term which should have caused us to rehear the ease.
Ratzlaf v. United States, — U.S. —, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994), reversing a decision of ours, holds that to commit the crime of “willfully violating” the law against structuring cash transactions to evade currency transaction reporting requirements, the defendant has to know that his conduct is unlawful. It is not enough that he is engaging in the cash transactions with a purpose of evading currency transaction reporting requirements. Id. at -, 114 S.Ct. at 657. Ignorance of the law generally is no excuse, but “Congress may decree otherwise.” Id. at -, 114 S.Ct. at 668. The Court was concerned that a narrower reading of the mental element of the crime would criminalize conduct committed without the criminal motive with which Congress was concerned. Id. at-, 114 S.Ct. at 661.
At issue in Staples v. United States, — U.S.—, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), was a statute which made it a felony to possess an unregistered “firearm.” The statute defined “firearm” to include a fully automatic gun, which would fire more than one bullet on a single pull of the trigger, but not a semiautomatic. The defendant possessed a fully automatic gun, but testified that he did not know it would fire more than one bullet with a single trigger pull. The trial judge had instructed the jury that his ignorance did not matter, so long as the government proved he possessed “a dangerous device of a type as would alert one to the likelihood of regulation.” The Supreme Court again rejected dilution of the mental element of the crime. The Court explained that unlike the hand grenades in United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971), semiautomatics are innocently possessed by many people. Nor was knowledge- that guns are regulated enough to require the owner to ascertain compliance with the regulations at his peril. That might do for a misdemeanor, but the felony status of the offense suggested a more plainly criminal mental state. Nor would the dangerousness of guns suffice to weaken the mens rea requirement:
If we were to accept as a general rule the Government’s suggestion that dangerous and regulated items place their owners under an obligation to inquire at their peril into compliance with regulations, we would undoubtedly reach some untoward results. Automobiles, for example, might also be termed “dangerous” devices and are highly regulated at both the state and federal levels. Congress might see fit to criminalize the violation of certain regulations concerning automobiles, and thus might make it a crime to operate a vehicle without a properly functioning emission control system. But we probably would hesitate to conclude on the basis of silence that Congress intended a prison term to apply to a car owner whose vehicle’s emissions levels, wholly unbeknownst to him, began to exceed legal limits between regular inspection dates.
Staples, — U.S. at—, 114 S.Ct. at 1801-02.
Nor does our own precedent support the panel’s result. Our ease most closely in point goes the other way. It is a crime to “knowingly transport[ ] or cause[ ] to be transported any hazardous waste identified or listed under this subchapter to a facility which does not have a permit.” 42 U.S.C. § 6928(d)(1). Must the government prove that the defendant knew the facility did not have a permit, or can a person be convicted if he knows he is transporting, even if he honestly and rea[1298]*1298sonably believes that the facility does have a permit? We held in United States v. Speach, 968 F.2d 795 (9th Cir.1992), that the government must prove that the transporter knew the facility did not have a permit. “Removing the knowledge requirement would criminalize innocent conduct_” Id. at 796.
The panel’s suggested distinctions of Speach do not justify the difference in result. In Speach, we construed an ambiguous statute to require more rather than less knowledge of what made the conduct wrong, because diluting the knowledge requirement could ensnare the innocent.. Likewise here. If a sewage worker pulls the switch to discharge sludge into the sea, because that is his job and the plant has a federal permit to discharge sludge into the sea, the panel opinion makes him guilty of a felony, if unbeknownst to him the particular discharge will violate the permit limits. Speach says that a narrow construction of the knowledge requirement in that case would “criminalize innocent conduct.” 968 F.2d at 796. The statute could be read literally either way, so Speach read it, consistently with the rule of lenity, in the way which required that the defendant know of the absence of a permit, not just that he or she was transporting a hazardous waste. The same reasoning applies in Weitzenhoff, if the statute is ambiguous at all.
The panel cites United States v. International Minerals & Chem. Corp., 402 U.S. 558, 91 S.Ct. 1697, 29 L.Ed.2d 178 (1971), and United States v. Hoflin, 880 F.2d 1033 (9th Cir.1989), in support of its reading. International Minerals was a pre-Ratzlaf misdemeanor case. Because of the syntactically similar statute at issue in that case, it is the strongest authority for the panel’s decision and raises the most serious question for my own analysis. It held that a shipper of sulfuric acid could be convicted of violating a statute applying to those who “knowingly violate[ ]” regulations governing shipments of corrosive liquids, regardless of whether he had knowledge of the regulations. International Minerals expressly limits its holding to “dangerous or deleterious devices or products or obnoxious waste materials.” 402 U.S. at 565, 91 S.Ct. at 1702. The Court distinguished materials not obviously subject to regulation:
Pencils, dental floss, paper clips may also be regulated. But they may be the type of products which might raise substantial due process questions if Congress did not require ... “mens rea ” as to each ingredient of the offense. But where, as here ..., dangerous or deleterious devices or products or obnoxious waste materials are involved, the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation.
Id. at 564-65, 91 S.Ct. at 1701-02. International Minerals would have much persuasive force for Weitzenhoff, because of the grammatical similarity of the statute, if (1) the Clean Water Act limited pollutants to “dangerous or deleterious devices or products or obnoxious waste materials;” (2) the crime was only a misdemeanor; and (3) Staples had not come down this term. But all three of these conditions are contrary to fact. The pollutants to which the Clean Water Act felony statute applies include many in the “pencils, dental floss, paper clips” category. Hot water, rock, and sand are classified as “pollutants” by the Clean Water Act. See 33 U.S.C. § 1362(6). Discharging silt from a stream back into the same stream may amount to discharge of a pollutant. For that matter, so may skipping a stone into a lake. So may a cafeteria worker’s pouring hot, stale coffee down the drain. Making these acts a misdemeanor is one thing, but a felony is quite another, as Staples teaches.
In Hoflin, the statute made it a crime to: (2) knowingly ... dispose[ ] of any hazardous waste....
(A) without having obtained a permit ... or
(B) in knowing violation of [a permit condition].
We held that the “stark contrast” between the presence of “knowing” in subsection (B) and. its absence in subsection (A) implied that knowledge of the absence of a permit was not an element of the subsection (A) crime. It was apparent from the nonparallel syntax of the statute that the word “knowing” in the introductory line modified only “disposes,” not “without having obtained a permit.” The [1299]*1299statute in Hoflin is not like the one before us. The panel unfortunately did not make the careful analysis of the syntax of the statute in our case that was made in Hoflin.
The panel, finally, asserts that as a matter of policy, the Clean Water Act crimes “are clearly designed to protect the public at large from the dire consequences of water pollution.” That is true, but the panel does not explain how the public is to be protected by making felons of sewer workers who unknowingly violate their plants’ permits. Provision for sanitary sewage disposal is among the most ancient laws of civilization. Deuteronomy 23:12-13. Sewage workers perform essential work of great social value. Probably nothing has prevented more infant mortality, or freed more people from cholera, hepatitis, typhoid fever, and other disease, than the development in the last two centuries of municipal sewer systems. See W.H. Corfield, The Treatment and Utilisation of Sewage 17-27 (1871). Sewage utility workers perform their difficult work in malodorous and dangerous environments. We have now imposed on these vitally important public servants a massive legal risk, unjustified by law or precedent, if they unknowingly violate their permit conditions.
Nor is the risk of prison limited to sewage plant workers. It applies to anyone who discharges pollutants pursuant to a permit, and unknowingly violates the permit. The panel suggests that criminalizing this innocent conduct will protect the public from water pollution. It is at least as likely that the increased criminal risk will raise the cost and reduce the availability of such lawful and essential public services as sewage disposal. We should not deprive individuals of justice, whether the judicial action would serve some desirable policy or not. It is by no means certain that the panel’s construction will advance the underlying policy it attributes to Congress. We should apply the words Congress and the President promulgated as law, leaving the difficult policy choices to them.
We undermine the foundation of criminal law when we so vitiate the requirement of a criminal state of knowledge and intention as to make felons of the morally innocent.
The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory “But I didn’t mean to”_ Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone’s sweeping statement that to constitute any crime there must first be a “vicious will.”
Morissette v. United States, 342 U.S. 246, 250-51, 72 S.Ct. 240, 243-44, 96 L.Ed. 288 (1952) (footnote omitted). As Justice Jackson explained, “Consequences of a general abolition of intent as an ingredient of serious crimes have aroused the concern of responsible and disinterested students of penology. Of course, they would not justify judicial disregard of a clear command to that effect from Congress, but they do admonish us to caution in assuming that Congress, without clear expression, intends in any instance to do so.” Id. at 254 n. 14, 72 S.Ct. at 246 n. 14.
Congress made it a serious felony “knowingly” to violate permit limitations on discharge of pollutants. The harsh penalty for this serious crime must be reserved for those who know they are, in fact, violating permit limitations.