Environmental Criminal Enforcement

• Author: Jane F. Barrett, W. Warren Hamel, and Steven P. Solow
• Pages: 45-95

45

CHAPTER 2

Environmental Criminal

Enforcement

Jane F. Barrett, W. Warren Hamel, and Steven P. Solow*

*The authors wish to acknowledge the assistance of Leslie Couvillion, an attorney at Katten Muchin

Rosenman LLP, in the preparation of this revised chapter.

I. INTRODUCTION

A. Issues in Environmental Criminal Cases

Criminal prosecutions of environmental violations continue to constitute a small

proportion of both criminal cases and of all environmental enforcement actions in

the United States. However, the serious consequences of such cases, which include

incarceration, significant fines, multiyear terms of probation, and the loss of gov-

ernment contracting opportunities, compel those involved with any environmental

enforcement litigation to understand the unique substantive and procedural issues

associated with the prosecution of environmental violations as crimes. Moreover,

the decision to pursue an environmental violation as a civil or criminal matter is

a choice largely left to the discretion of individual government attorneys; thus,

understanding the policies and practices of investigators and prosecutors, and the

legal standards at issue, is critical to representing an individual or company that is

the subject of an investigation or that becomes an indicted defendant.

Environmental criminal prosecutions feature important differences from the

ordinary criminal case that pose substantial challenges to counsel for both the

government and the defense: (1) the violations take place in the context of a com-

plex regulatory system in which violation of a regulation or permit requirement

can result in a range of enforcement options, including felony charges; (2) rightly

or wrongly, some violators may not perceive their violations as criminal behavior;

and (3) as stated previously, the government has wide discretion in choosing how

to respond to an environmental violation. Counsel in environmental enforcement

matters can better assist their clients by becoming familiar with the factors likely

bro53655_02_ch02_045-096.indd 45 5/22/19 10:56 AM

46 • Environmental Litigation

to cause a particular environmental violation to be considered a potential criminal

violation, as opposed to one appropriately addressed in an administrative or civil

judicial proceeding.

In that regard, in early 2018 the U.S. Department of Justice (DOJ) issued

guidance on the use of civil and criminal enforcement in the form of a guidance

memorandum to section chiefs of the Environment and Natural Resources Divi-

sion (ENRD) outlining ENRD’s current enforcement principles and priorities. Key

themes from the guidance memorandum include (1) prioritizing enforcement

actions that address concrete harms to the environment or human health and

safety; (2) encouraging voluntary disclosures and self-audits by regulated parties;

and (3) deferring to the enforcement priorities of state and local governments,

other federal agencies, and U.S. Attorneys’ offices.1

The guidance memorandum reiterates ENRD’s commitment to recently

announced DOJ policies, including the limitation on using guidance documents

as the basis for civil enforcement actions2 and the prohibition on settlement pay-

ments to third parties.3 Notably, the memorandum does not apply to federal pros-

ecutors in U.S. Attorney’s offices.

1. See Memorandum from Jeffrey H. Wood, Acting Assistant Att’y Gen., U.S. Dep’t of Justice, to ENRD

Section Chiefs & Deputy Section Chiefs, Enforcement Principles and Priorities (Mar. 12, 2018), https://

www.justice.gov/enrd/page/file/1043731/download.

2. See Memorandum from Rachel Brand, Assoc. Att’y Gen., U.S. Dep’t of Justice, to Heads of Civil

Litigating Components U.S. Att’ys, Limiting Use of Agency Guidance Documents in Affirmative Civil

Enforcement Cases (Jan. 25, 2018), https://www.justice.gov/file/1028756/download.

3. See Memorandum from Jeff Sessions, Att’y Gen., U.S. Dep’t of Justice, to all Component Heads

& U.S. Att’ys, Prohibition on Settlement Payments to Third Parties (June 5, 2017), https://www.justice

.gov/opa/press-release/file/971826/download; Memorandum from Jeffrey H. Wood, Acting Assistant

Att’y Gen., U.S. Dep’t of Justice, to ENRD Deputy Assistant Att’ys Gen. & Section Chiefs, Settlement

Payments to Third Parties in ENRD Cases (Jan. 9, 2018), https://www.justice.gov/enrd/page/file/1043726

/download.

bro53655_02_ch02_045-096.indd 46 5/22/19 10:56 AM

Environmental Criminal Enforcement • 47

B. The Initial Development of Environmental Criminal Law4

Congress enacted the first criminal law protecting the waters of the United States

in 1899 (the Rivers and Harbors Act, also known as the Refuse Act).5 Until the lat-

ter part of the 20th century, environmental regulation was a narrow patchwork

of laws, and there was little criminal enforcement. Criminal enforcement began to

grow in the 1970s after Congress passed the Clean Air Act Amendments of 1970

(CAA)6 and expanded the reach of the National Water Pollution Control Act, com-

monly known as the Clean Water Act (CWA), in 1972,7 adding criminal misdemean-

ors to both statutes. Felony provisions were added later (1987 for the CWA, 1990

for the CAA).

In 1976, DOJ and the U.S. Environmental Protection Agency (EPA) undertook

the first major environmental criminal prosecution after the enactment of the new

statutes. The prosecution grew out of an EPA investigation into contamination of

4. Space does not permit a full explication of the history of environmental crime enforcement. Inter-

ested readers are directed to Raymond W. Mushal, Up from the Sewers: A Perspective on the Evolution

of the Federal Environmental Crimes Program, 2009

UTAH L. REV

. 1103 (2009). Portions of this revised

section draw upon previously published materials by one of the co-authors writing with others. This

includes: Steven P. Solow, Anne M. Carpenter & Katherine V. Barajas, Clean Air Act Criminal Enforce-

ment, in

AM. BAR ASS’N, THE CLEAN AIR HANDBOOK

731 (4th ed. 2016); Steven P. Solow, Lily N. Chinn & Anne

M. Carpenter, Criminal Prosecution of Environmental and Workplace Safety Incidents through DOJ’s New

Worker Endangerment Initiative,

WHITE COLLAR CRIME COMM. NEWSL.

(Am. Bar Ass’n, Winter/Spring 2017);

Steven P. Solow, Anne M. Carpenter & Katherine V. Noble, The State of Environmental Crime Enforce-

ment: A Survey of Developments in 2014,

ENV’T REP

. (BNA) (May 8, 2015); Steven P. Solow & Anne M.

Carpenter, The State of Environmental Crime Enforcement: A Survey of Developments in 2013,

DAILY ENV’T

REP

. (BNA) (Apr. 11, 2014).

5. The criminal provision in the Rivers and Harbors Act is a strict liability crime, a relative rarity

in the universe of federal criminal law. 33 U.S.C. §§407, 411 (2012). As discussed further, infra, a strict

liability criminal statute does not require the government to prove any knowledge or intent whatsoever

on the part of the defendant accused of committing the crime, see, e.g., United States v. White Fuel, Inc.,

498 F.2d 619, 622 (1st Cir. 1974), a concept that runs counter to the basic thrust of common law and

modern criminal theory. Courts have upheld convictions under the Rivers and Harbors Act, noting that

(1) the crime is a misdemeanor with a relatively light sentence of incarceration (six months) as penalty,

and (2) most cases had been brought against corporations, in which case penalties are limited to fines

and orders of restitution. See, e.g., id. at 622–24. As federal interest in environmental enforcement grew

in the late 1960s and 1970s, the Rivers and Harbors Act was a commonly used criminal provision to

reach instances of water pollution.

6. 42 U.S.C. §§7401–7671 (2012). The predecessor to the CAA was enacted in 1955. Air Pollution Con-

trol Act of 1955, Pub. L. No. 84-159, 69 Stat. 322. As part of the extensive amendments that were enacted

in 1970, Congress included misdemeanor criminal penalties for various violations. Clean Air Amend-

ments of 1970, Pub. L. No. 91-604, sec. 4, §113(c), 84 Stat. 1676, 1687 (codified at 42 U.S.C. § 7413(c)

(2012)). It was not until the Clean Air Act Amendments of 1990 that felony penalties were included. Pub.

L. No. 101-549, sec. 701, §113(c), 104 Stat. 2399, 2675–77 (1990) (codified at 42 U.S.C. §7413(c) (2012)).

7. 33 U.S.C. §§1251–1387 (2012). The criminal provisions of the CAA and CWA were originally mis-

demeanors. Over time, Congress amended the penalty provisions of these statutes to provide felony

penalties. For example, the Federal Water Pollution Control Act (FWPCA) was originally enacted in

1948. Pub. L. No. 80-845, 62 Stat. 1155 (1948) (codified as amended at 33 U.S.C. §§1251–1387 (2012)). In

1972, Congress passed the extensive amendments that created the CWA. These amendments included

misdemeanor- level penalties for first-time willful and negligent violations. Federal Water Pollution Con-

trol Act Amendments of 1972, Pub. L. No. 92-500, sec. 2, §309(c), 86 Stat. 816, 860 (codified at 33 U.S.C.

§1319(c) (2012)). In 1987, the statute was amended to provide felony-level penalties for first-time know-

ing violations. Pub. L. No. 100-4, §312, 101 Stat. 7, 43 (1987) (codified at 33 U.S.C. §1319(c) (2)).

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