History of the Federal Environmental Crimes Program

• Author: Judson W. Starr/Amy J. McMaster/John F. Cooney/Joseph G. (Jerry) Block/David G. Dickman
• Pages: 1-8

Page 1

Part One: The Basics

Chapter 1:

History of the

Federal Environmental Crimes Program

The federal Environmental Criminal Enforcement Program is a highly successful cooperative eort

between federal prosecutors in the Environmental Crimes Section (ECS) of the U.S. Department

of Justice (DOJ) in Washington, D.C., line prosecutors in the 93 U.S. Attorneys’ oces, and crimi-

nal investigators at the U.S. Environmental Protection Agency (EPA) and other federal agencies including

the U.S. Coast Guard. Over t he last two decades, these groups have established a solid foundation for the

criminal enforcement eort by establishing clear policies for instituting criminal prosecutions, devising

sensible enforcement priorities, and achieving a series of court victories that have created an eective deter-

rent threat. e program has enjoyed broad public support and largely avoided political controversy, with

the exception of one rough passage in the mid-1990s.

I. Origins of the Criminal Enforcement Program

e rst generation of environmental statues adopted in the 1970s provided for crimina l enforcement of

their provisions, generally through provisions that punished violations a s misdemea nors. Initially, DOJ

made little use of these authorities. EPA’s Oce of Criminal Enforcement referred many cases to DOJ’s

Division of Lands and Natural Resources (since renamed the Environmental and Natural Resources Divi-

sion) for criminal prosecution, but the Division declined nearly 60% of the referrals due to poor investiga-

tive work.1 e rst tentative steps toward a freesta nding crimina l enforcement program oc curred in fall

1982. In October, EPA hired its rst cohort of e xperienced criminal investigators. In November, DOJ

created a small contingent of prosecutors in the Environment Crimes Unit within its existing Civil Envi-

ronmental Enforcement Section.

e Criminal Enforcement Program achieved its current institutional structure by 1987, when the U.S.

Attorney General created an independent ECS within the then Lands Division, with a mission to prosecute

individuals and corporations that had violated laws designed to protect the environment. e creation of

ECS, under t he leadership of Judson Starr, reected a policy decision to maintain a degree of central iza-

tion in the adm inistration of the program. By placing formal responsibility for approval of signicant

criminal prosecutions in the ECS, and ultimately the assistant attorney general in Washington, D.C., DOJ

sought to ensure that: c ases would be selected in a manner that minimized risk to crucial EPA regulatory

interpretations; similar cases would be treated alike, even though they arose in dierent parts of the coun-

try; and potentially precedent-setting ca ses would be ca refully presented and would have the attention of

DOJ’s high-level management. Given the diculty in dening whether environmental violators should

be prosecuted criminally, civilly, or administratively, this centra lized policy control advanced the goal of

consistency in charging decisions.

e environmental crimes initiative benetted from t his improved institutional structure, but initia lly

suered from limited resources a nd inadequate statutory authority. Many U.S. attorneys displayed little

1. EPA’s Law Enforcement Authority, 1983: Hearings Before the Subcomm. on Oversight and Investigations of the House Comm. on Energy and Com-

merce, 98th Cong. 92 (1983) (testimony of Assistant Attorney General Habicht).