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United States v. Price



Dennis Price, president of AB-HAZ Environmental, filed with the Ninth Circuit an interlocutory appeal of the district court’s denial of a motion to dismiss a Clean Air Act (CAA)[1] criminal indictment.[2] Price and his company, AB-HAZ, had been indicted after the company supervised the removal of asbestos from hotel and casino buildings before demolition in Clark County , Nevada. Price claimed that the federal CAA prosecution was barred under the Double Jeopardy Clause[3] because he had already settled with the Clark County Heath District (District) after it alleged violations of local air pollution law. The Ninth Circuit determined that it had jurisdiction because the court found that Price’s appeal was “colorable”[4] and the issue was one of first impression. However, the Ninth Circuit held that the Double Jeopardy Clause did not bar the federal criminal prosecution.

In reaching its decision, the Ninth Circuit examined the separate sovereign doctrine, which states that “a single act that violates the laws of two separate sovereigns constitutes two separate crimes, and prosecutions by each of these sovereigns does not violate the Double Jeopardy Clause.”[5] In trying to prove the inapplicability of the doctrine, Price argued that the federal government had delegated to the District, through the state, the authority to enforce the standards under the CAA, and therefore the state and federal laws were not separate. However, the court found that the District received its authority to punish Price from the state’s police power.

Even though the state submitted its air pollution standards to the Environmental Protection Agency for approval under the CAA, the state had the freedom to adopt more stringent standards than those in the CAA. In addition, the Ninth Circuit pointed out that the CAA explicitly allows for the retention of state authority and does not preempt state law.[6] Therefore, the court found that the federal government and the District were separate sovereigns and held that Price’s indictment was not barred by double jeopardy.



[1] 42 U.S.C. §§ 7401-7671q (2000).

[2] The indictment was for violating 42 U.S.C. § 7412 (2000).

[3] U.S. Const. amend. V (providing that no person shall be “subject for the same offense to be twice put in jeopardy of life or limb”).

[4] United States v. Price, 314 F.3d 417, 420 (9th Cir. 2002) (citing Richardson v. United States, 468 U.S. 317, 322 (1984)).

[5] Id. (citing Heath v. Alabama, 474 U.S. 82, 88 (1985)).

[6] 42 U.S.C. §§ 7412, 7416 (2000).

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