cannot succeed, and, notwithstanding their three pronged approach, their argument that the "criminal cases" from which (b)(5) extends immunity to those who report their own spills should be construed to include actions for (b)(6) penalties against accidental, reporting, self-cleaners must fail.
C. When is "harmfulness" to be determined?
Defendants contend that they have not violated the (b)(3) proscription on harmful discharges because their clean up vitiated the harm. That is, they suggest that the appropriate time for determining the existence vel non of harmful quantities is after clean up rather than before. The government supports the statutory view taken by the commandant of the Coast Guard; i.e., that remedial action after a spill is totally irrelevant to the determination of harmfulness under (b)(3). Commandant Instruction 5922.11A. We agree, finding ourselves in concurrence on this issue with United States v. W.B. Enterprises, Inc., supra, the only decision to consider this argument. That opinion concluded that the plain terms of the statute prohibited "discharge" in harmful quantities, and that Congress preferred that such discharges be prevented rather than merely mitigated. In fact, Congress doubtless believed that after such a discharge, it was impossible to guarantee against residual harm, from quantities of oil that are too small or too well dispersed to be detectable. Thus, we conclude that the Coast Guard's interpretation is proper, and reject defendant's "frustration" argument as well. We turn now to defendants' constitutional contentions.
III. Defendants' Constitutional Contentions
In their original briefs, defendants only obliquely questioned the constitutionality of (b)(6) as applied. And when, during oral argument, we inquired whether they intended to pursue and to develop their constitutional contentions, they at first replied negatively, but later reversed that position, and filed supplemental briefs in support of their constitutional claims. While the defendants have freely mixed statutory and constitutional arguments in their briefs, we have attempted to separate them in this opinion. We find that defendants raise two substantial constitutional questions, which we treat under the headings due process and criminal jury trial.
Preliminarily, we note that a common thread runs through defendants' statutory and constitutional arguments: their claim that they have acted with little or no fault and have caused a miniscule amount of harm. Yet, they contend, for this essentially faultless and harmless conduct, they are being subjected to the (b)(6) penalty in order to finance clean up of the spills of those who do not report and clean up. They conclude that because this scheme is unfair or "shocking," it violates due process, and that because this sanction is punitive, it must be treated as criminal for constitutional purposes.
B. Due Process
The constitutional guarantee of "due process" has been applied by the courts in myriad situations. Defendants argue that the application of the (b)(6) penalty to persons who have spilled oil, irrespective of whether the spill was accidental or not, of whether the spiller reported or not, and of whether the spiller cleaned up or not, is unfair and "shocking to the conscience."
The Supreme Court has, of course, held that "conduct that shocks the conscience" can reach the level of a due process violation. Rochin v. California, 342 U.S. 165, 172, 96 L. Ed. 183, 72 S. Ct. 205 (1952). However, for forty years that Court has consistently applied only a rationality test to economic regulation of business. Justice Roberts, in an early formulation of that test, stated:
If the laws passed are seen to have a reasonable relation to a proper, legislative purpose and are neither arbitrary nor discriminatory, the requirements of due process are satisfied . . . .
Nebbia v. New York, 291 U.S. 502, 537, 78 L. Ed. 940, 54 S. Ct. 505 (1934). Cf. Williamson v. Lee Optical Co., 348 U.S. 483, 99 L. Ed. 563, 75 S. Ct. 461 (1955), and City of New Orleans v. Dukes, 427 U.S. 297, 96 S. Ct. 2513, 49 L. Ed. 2d 511 (1976) (similar test applicable to classifications challenged under equal protection clause in absence of fundamental rights or suspect criterion).
It may well be that the two tests will overlap in some instances and lead to different results in others. For instance, in Rochin itself the forceable stomach pumping which shocked a majority of the Supreme Court could be argued to be a rational means for preventing the destruction of the evidence of a crime. But we shall not apply these tests separately because we have concluded that only the rationality test is appropriate in these circumstances.
Defendants contend that it is irrational to charge a penalty against those who report and clean up their discharges in order to build a fund to pay for cleaning up the spills of those who do not report and do not get caught. The government responds that the (b)(6) penalties go into the revolving fund, whose use includes surveillance of the waters and supervision of clean ups. Therefore, the government claims there is a sufficient rational nexus between the behavior being penalized and the purpose of the revolving fund.
It may, of course, be argued that the rational nexus is broken or nonexistent because Congress did not authorize the assessment of (b)(6) penalties according to the demands on the revolving fund, or that the penalty setting procedure does not lead to assessments that fairly correspond to the costs attributable to the activities of a given defendant.
We believe, however, that there is a rational nexus between the behavior being penalized and the purpose of the revolving fund, in part because of the use of the fund to supervise clean up, but mainly because of the magnitude of the Coast Guard's surveillance task, given the length and breadth of our coastline and navigable waterways, and the need for a fund to support that effort. We note too that an accidental, reporting, self-cleaner might not always be so. However, the principal rational basis for (b)(6) as we see it lies not in the creation and use of the fund but in its deterrent purpose and the goal of preventing spills.
Earlier in the opinion we discussed briefly the notion of economic efficiency and its relationship to the legal notions of fault and deterrence. At that point we posited that the defendants' claim that they were faultless meant, in economic terms, that the marginal cost of prevention exceeded the marginal cost of clean up and damages. That posit rested on the "more is better" value concept which is central to classical economics. See Ackerman, supra. In that discussion we were trying to explain defendants' contention about fault, though we rejected them as being repugnant to the statutory intent. Now, however, we are not considering rationality as an economic notion but as a requirement of due process. We do not believe that the two are identical; i.e., we believe that Congress has the power to elevate other values over economic efficiency and that it can properly design statutes to promote such values. Moreover, while the test of whether the statute is rationally designed will often take the form of an economic efficiency analysis, that analysis may itself be subordinated to the ultimate non-efficiency goal.
It is widely recognized that the FWPCA policy subordinates economic efficiency to the goals of clean water. The general declaration of "goals and policy" includes the elimination of all polluting discharges by 1985. 33 U.S.C. § 1251. And § 1321 announces an immediate no discharge policy for oil and hazardous substances. On the level of abstract policy neither section yields to simple claims of economic efficiency or accepts pollution on the ground that its prevention would be unreasonably expensive. See Wildavsky, Economy and Environment/Rationality and Ritual, 29 Stan.L.Rev. 183, 191 (1976). Indeed, Dean Wildavsky has presciently analyzed the clash of values that has led to the frustration which the defendants in our case express:
The exasperation with which [they] regard the behavior of the environmentalists and their political allies would be justified if everyone agreed the goals could be expressed in terms of economic rationality. Then the means to this end would indeed be perverse -- spending much to gain little . . . . But it is precisely this mode of thinking in terms of opportunity costs to which environmentalists object.
. . .