Environmental Criminal Enforcement

• Pages: 69-121

CHAPTER 2

69

Environmental Criminal

Enforcement

JANE F. BARRETT, W. WARREN HAMEL,

AND STEVEN P. SOLOW

I. Introduction

A. Special Issues in Environmental Criminal Cases: How

Environmental Crimes Compare to Other Criminal Cases

Criminal prosecutions of environmental violations make up a small

proportion of environmental enforcement actions in the United States.

However, the serious potential consequences of such cases, which

include incarceration, significant fines, multiyear terms of proba-

tion, and the loss of government contracting opportunities, compel

those involved with any environmental enforcement litigation to

understand the 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 crimi-

nal matter is a choice largely left to the discretion of individual gov-

ernment 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. This is

especially true given the recent trend of the U.S. Environmental Pro-

tection Agency (EPA) to review almost all significant civil enforce-

ment matters for possible referral for criminal prosecution.

Environmental criminal prosecutions feature important differ-

ences from the ordinary criminal case that pose substantial chal-

70 CHAPTER 2

lenges to counsel for the government and the defense: (i) the viola-

tions take place in the context of a complex regulatory system in

which violation of a regulation or permit requirement can result in a

range of enforcement options, including felony charges; (ii) rightly

or wrongly, some violators may not perceive their violations as crimi-

nal behavior; and (iii) as stated previously, the government has wide

discretion in choosing how to respond to an environmental viola-

tion. Counsel in environmental enforcement matters can better as-

sist their clients by becoming familiar with the factors likely 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.

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).1 Until the latter part of the twentieth 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)2 and expanded the reach of the National Water Pol-

lution Control Act, commonly known as the Clean Water Act (CWA),

in 1972,3 adding criminal misdemeanors to both statutes. Felony

provisions were added later (1987 for the CWA, 1990 for the CAA).

In 1976, the U.S. Department of Justice (DOJ) and the EPA un-

dertook what probably was the first major environmental criminal

prosecution after the enactment of the new statutes. The prosecu-

tion grew out of an EPA investigation into contamination of the drink-

ing water drawn from the Ohio and Kanawha rivers. The EPA and

several manufacturers worked together to study the sources of car-

bon tetrachloride entering the Kanawha River. However, FMC Cor-

poration declined to participate in the study and refused entry to an

EPA inspector. The EPA, in turn, brought a civil action seeking a

temporary restraining order to close down the facility and allow the

EPA to conduct its inspection. At the end of February 1977, FMC

Corporation disclosed that the company had discharged 6,000

pounds of carbon tetrachloride. Suspecting that FMC Corporation

was a primary source for contamination of the rivers and that the

company may have failed to fully disclose its releases in its applica-

tion for a national pollutant discharge elimination system permit

(NPDES), the EPA launched a criminal investigation. The EPA and

Environmental Criminal Enforcement 71

DOJ now were confronted with the fact that neither had any envi-

ronmental criminal investigators, laboratory and analytical capabili-

ties, or specially trained prosecutors. With some creative staffing

and resource allocation, however, the agencies were able to carry

out an investigation and bring charges, which were resolved by a

plea agreement in United States v. FMC Corporation.4

After their experience with FMC Corporation, the EPA and DOJ

sought congressional support to strengthen and broaden the reach

of environmental criminal statutes and to provide the resources

for a national criminal enforcement program. Congress responded

by increasing enforcement resources and enacting stronger crimi-

nal provisions, and the current era of federal criminal enforce-

ment began.

B. The Players: Federal, State, and Local

Environmental Enforcement Agencies

Today, environmental crime prosecution is a priority for federal,

state, and local law enforcement agencies. Although the resources

available for investigation and prosecution now are greater than those

available in the 1970s and 1980s, they remain modest by compari-

son to other law enforcement programs. For example, pursuant to

the Pollution Prosecution Act of 1990,5 the EPA was authorized to

increase the number of criminal investigators to 200. The EPA has

stayed close to this number over the years, with occasional periods

when there were fewer investigators because of turnover and bud-

get constraints. By comparison, however, there are more than 1,200

agents in the Federal Bureau of Investigation. Debates over whether

the EPA has 180 or 200 agents are of little consequence in compari-

son to the broader policy question of whether the EPA should have

a significantly larger investigative force.

1. The Prosecutors

Three main groups of federal attorneys work on environmental crimi-

nal cases. The EPA provides its criminal investigators with legal

support through the work of approximately 45 Regional Criminal

Enforcement Counsels (RCECs), who are located in the EPA’s re-

gional counsel offices throughout the country. The DOJ created a

specialized unit in 1982 to prosecute environmental crimes. This