Multi-jurisdictional and successive prosecution of environmental crimes: the case for a consistent approach.

• Author: Cooney, John F.
• Position: The Changing Face of White-Collar Crime

One of the most important policy issues facing the federal environmental criminal enforcement program is how the Department of Justice ("Department") should coordinate the prosecution of corporations for violations of law that occur in several judicial districts and thus fall within the jurisdiction of multiple United States Attorneys. The pattern of prosecutions in the multi-district cases of the last decade demonstrates that in some cases, the standing Department policy governing successive prosecutions has not been followed, resulting in a substantial waste of scarce prosecutorial resources and unfairness to corporate defendants.

In important corporate criminal cases outside the environmental area, such as the highly visible prosecutions against Enron and WorldCom coordinated by the Department's Corporate Fraud Task Force, (1) all crimes against the company have been charged in a single corporate prosecution. This Article examines whether there are features of environmental criminal cases that might warrant multiple prosecutions against a corporation on similar charges in different judicial districts and would justify a departure from the normal Department policy on successive prosecutions.

1. UNIQUE ASPECTS OF ENVIRONMENTAL PROSECUTIONS

   Two factors define environmental criminal prosecutions: the absence of a specific intent element for the crimes and the division of prosecutorial authority between Washington and the offices of the ninety-four U.S. Attorneys.

   1. ABSENCE OF A SPECIFIC INTENT ELEMENT

      Most environmental criminal statutes do not require the government to prove that the defendant wrongfully intended to discharge a pollutant, but simply require evidence that the individual or entity knew that it was taking action likely to lead to release of a pollutant. For example, the criminal enforcement provision of the Clean Water Act (2) provides that any person who "knowingly violates" specific provisions of the statute or "any permit condition or limitation" may be guilty of a felony, (3) and that any person who "negligently violates" those sections or a permit provision may be guilty of a misdemeanor. (4)

      The courts have consistently held that the knowledge requirement imposed by [section] 1319(c)(2) requires only a general awareness that the defendant was dealing with a pollutant and awareness that a discharge was occurring or was likely to occur. The critical case was United States v. Weitzenhoff. (5) There, five judges of the Ninth Circuit dissented from the denial of rehearing en banc in a case involving conviction for a felony violation of the Clean Water Act. (6) The dissenters objected that the phrase "knowingly violates" in [section] 1319(c) required proof of actual knowledge (7) and that the panel had improperly treated the statute as creating a "public welfare" offense for which no evidence of intent was required to support a conviction. (8) The Supreme Court denied certiorari. (9) Since then, lower courts have routinely upheld convictions based on a minimal showing of awareness and without requiring proof of illegal intent. (10)

      The knowledge requirement is particularly attenuated for corporations. Under the doctrine of respondeat superior, a company may be held criminally liable for the actions of its employees if the acts were taken on its behalf and were within the scope of the employees' authority. (11) Under the doctrine of collective knowledge, the knowledge of all employees may be aggregated and imputed to the corporation. (12) Thus, a corporation may be convicted of a felony offense even if no one person had awareness of the facts necessary to satisfy the knowledge requirement.

      A criminal charge against a corporation is relatively easy to prove. Stripped to its essentials, the government only needs to demonstrate that a substance that falls within the statutory definition of a "pollutant" was released into the environment; (13) that the release can be traced to a corporate facility; (14) and that a sentient corporate employee at the facility took a step that proximately resulted in a release. (15) Other factors related to the discharge--such as the subjective intent of employees, the existence of corporate policies designed to prevent discharges, or the adoption of enhanced environmental equipment and controls--do not affect the essential elements of the offense or constitute affirmative defenses. They are relevant only to the prosecutor's decision whether to indict and, if so, what offenses and how many counts should be charged.

      For these reasons, corporations rarely take environmental criminal charges to trial. When the government concludes that a criminal disposition is appropriate, the company usually concludes that its self-interest would be served by a negotiated plea agreement, through which it may seek to minimize the number of charges and the financial consequences.

   2. ALLOCATION OF PROSECUTORIAL AUTHORITY IN ENVIRONMENTAL CASES

      Responsibility for prosecuting environmental crimes is divided between the U.S. Attorneys in various judicial districts and the Environmental Crimes Section ("ECS"), a group of approximately thirty lawyers located in the Environment and Natural Resources Division in Washington, D.C. who are dedicated exclusively to the prosecution of environmental offenses and related crimes. (16) ECS personnel are involved in larger and more complex environmental criminal investigations and in cases that involve national criminal enforcement policy priorities. (17)

      U.S. Attorneys handle the majority of environmental prosecutions by volume, while the ECS takes the lead in prosecution of between 25% and 30% of cases. The ECS cases, however, account for approximately two-thirds of the total fines and restitution obtained in federal environmental criminal cases. The ECS is also involved in most large corporate investigations and prosecutions. (18)

      The current allocation of prosecutorial responsibilities is, in part, the result of a policy dispute in the early 1990s. In a series of highly visible environmental cases, U.S. Attorneys and the ECS contested their respective roles in investigations and the ultimate decision whether to initiate a criminal prosecution. A group of U.S. Attorneys and state officials who were unhappy with ECS's decisions took their concerns to Congress. During the 1992 presidential election campaign, the Oversight Subcommittee of the House Energy and Commerce Committee held a well-publicized hearing to explore whether senior political officials of the Department were stifling efforts by line prosecutors and the EPA to bring environmental criminal charges against corporations. (19) One of the principal issues of concern to the Subcommittee was what it perceived to be an effort by Main Justice to centralize control over environmental cases and to curtail the authority of the U.S. Attorneys to initiate environmental prosecutions without explicit approval from Washington. (20)

      In August 1994, Attorney General Reno resolved the dispute by issuing an amendment to the United States Attorneys' Manual ("USAM") that divided prosecutions into "national interest cases" and lower priority cases. (21) The revised policy established the current structure, under which responsibility for the investigation and prosecution of environmental crimes would rest with the U.S. Attorneys, "except in cases of national interest." (22) In cases of national interest, the U.S. Attorney's Office and the ECS "participate jointly as co-counsel from the initiation of the investigation through prosecution, unless otherwise agreed." (23) The term "case of national interest" was defined to include "a case with simultaneous investigations in multiple districts." (24)

      As joint co-counsel in cases of national interest, the exact roles of ECS personnel and U.S. Attorneys are subject to negotiation, and the outcome varies from case to case. (25) The allocation of responsibilities in a specific matter may depend upon such factors as the relative technical expertise of the prosecutors involved, their respective workloads, the political significance of a matter within the local jurisdictions, and its importance in terms of overall national priorities. In some matters, ECS personnel may conduct the investigation, present nearly all the evidence to the grand jury, and take the lead at trial. In other cases, the U.S. Attorney may run the case, or the two offices may divide the responsibilities.

      The joint authority over major environmental crimes prosecutions engages the basic centrifugal mechanism that affects the Department in other enforcement fields. Once a criminal investigation is initiated in his district, the U.S. Attorney typically will seek to initiate a prosecution if a criminal charge can be brought in good faith and with a reasonable certainty of success at trial. The desire to prosecute may be based upon a number of factors, including the prosecutor's belief that under his oath of office, he is obliged to prosecute a crime that has been committed in his district; a desire to realize a return on investment of staff time and resources in the investigation; and the public relations benefits for him personally and the office institutionally for convictions of a company responsible for pollution that affects local residents.

      The division of prosecutorial authority in cases of national interest did not provide guidance to the ECS and the U.S. Attorneys concerning which charges should be brought against a corporation and where the case should be prosecuted. Rather, the prosecutors must resolve those issues for themselves under the general Principles of Federal Prosecution that apply to all Department lawyers. (26) On occasion, the current allocation of authority has had the unintended consequences of making it difficult to resolve cases in which a corporation is under investigation in multiple jurisdictions and thus has created tension with longstanding Department policy...