Operation-Infrastructure and Practice

• Author: Judson W. Starr/Amy J. McMaster/John F. Cooney/Joseph G. (Jerry) Block/David G. Dickman
• Pages: 9-26

Page 9

Chapter 2:

Operation—Infrastructure and Practice

The Environmental Crimes Program has two parts. First is the “bricks and mortar” of the program,

the organizational arrangements, personnel, and resources dedicated to the prosecution of fed-

eral environmental crimes. Second is the “policies and paper”—the statements of governance and

aspirations that help guide the program, such as the policies that govern the exercise of the U.S. Depart-

ment of Justice’s (DOJ’s) prosecutorial discretion. Among the most important policies a re e Principles

of Federal Prosecution of Business Organizations (the Principles)1, which governs DOJ’s decisions whether

to charge a corporation; the Petite Policy, which governs its prosecution of crimes for which a state has

already prosecuted; and policies governing so-called parallel proceedings when federal agencies initiate both

civil and criminal investig ations and/or enforcement actions. e Environmental Crimes Program’s most

controversial policies are those governing the disclosure of, and potential leniency toward, environmental

noncompliance disclosed under DOJ’s, the U.S. Environmental Protection Agency’s (EPA’s), or the U.S.

Coast Guard’s voluntary disclosure programs.

I. Bricks and Mortar

Since the mid-1990s, the Environmental Crimes Program has enjoyed a period of sustained development

and expansion. e bricks and mortar of the program, including the EPA Criminal Investigation Division

(EPA CID), the Environmental Crimes Section (ECS), and U.S. attorneys’ oces, reect this maturation

and growth. In 2012, per Assistant Attorney General Ignacia Moreno, collaboration and close coordina-

tion between the Environment and Natural Resource s Division (ENRD) and the U.S. attorneys’ oces

was more prevalent than ever: “[W]e are working together on joint prosecutions; launching initiatives and

joint task forces; sharing referrals; exchanging information and advice regarding novel cases and issues;

and providing training to Assistant United States Attorneys (AUSAs) and other federal, state, and local law

enforcement personnel.”2

A. EPA

e EPA CID is a cadre of special agents dedicated to investigating environmental crimes. e EPA CID is

a division of EPA’s Oce of Criminal Enforcement, Forensics, and Training, headquartered in Washing-

ton, D.C, and its reach extends across the country. EPA maintains 10 regional investigation oces located

in Atlanta, Boston, Chicago, Dallas, Denver, Ka nsas City, New York, Philadelphia, San Francisco, and

Seattle. In addition, over the years, EPA has established 32 resident agent oces across the United States.3

1. See U.S. A’ M §9-28.000, 9-28.200B (Principles of Federal Prosecution of Business Organizations) [hereinafter U.S. A-

’ M], available at http://www.justice.gov/usao/eousa/foia_reading_room/usam/ (last visited Jan. 28, 2014).

2. U.S. A’ B, I   E C I   USA B 1 (July 2012), available at http:://

www.justice.gov/usao/eousa/foia_reading_room/usab6004.pdf (last visited May 30, 2013).

3. U.S. EPA, Criminal Enforcement Program Area and Resident Oces, http://www.epa.gov/enforcement/criminal/contact (last visited May 28,

2013). In the mid-1990s, there were only 15 resident agent oces. See D A. C  ., E C L 8

(1995).

Page 10 Environmental Crimes Deskbook 2nd Edition

As of late 2010, EPA CID had succeeded in reaching 200 ful l-time investigators trained in traditional

law enforcement techniques.4 As often happens, the U.S. Congress adopted but did not fund its aspirations.

e Pollution Prosecution Act of 1990 authorized a sta of 200 special a gents by 1995.5

In recent years, EPA CID has increa sed eort s to train and support state and local investigators and

police. EPA’s Federal Law Enforcement Training Center in Georgia ha s trained hundreds of state law

enforcement ocers.

EPA CID conducts its work by using many customary investigative law enforcement techniques. It pur-

sues tips, such as those provided by citizens, citizen watchdog groups, and state environmental protection

agencies, and pursues cases referred internally by other components of EPA.

EPA CID investigates tips or referrals for potential criminal culpability. For technical assistance in con-

ducting an investigation, it calls on EPA’s National Enforcement Investigations Center (NEIC) in Denver—

the only environmental forensic center for conducting complex criminal enforcement investigations.6 With

assistance from NEIC, EPA CID investigates suspected environmental crimes and refers meritorious cases to

DOJ for prosecution, pursuant to established criteria for determining whether a case merits referral.

B. DOJ, ECS, and U.S. Attorneys’ Off‌ices

As noted in Chapter 1, responsibility for prosecuting environmental crimes is divided between the ECS of

DOJ’s ENRD and the U.S. attorneys in the various judicial districts.

ECS lawyers a re dedicated exclusively to the prosecution of environmental oenses and related crimes.

Historically, ECS has handled complex ca ses, multidistrict cases, and cases for which a U.S. at torney

requested assistance from “Main Justice” in Washington, D.C.7 ECS also has primary responsibility for

the prosecution of cases referred directly from EPA CID.8 ECS hand les approximately 25% to 30% of all

criminal c ases, and ECS has tended to handle the larger, more complex environmental criminal cases, as

well as those that involve national criminal enforcement policy priorities.9 ECS cases account for approxi-

mately two-thirds of the total nes and restitution obtained in federal environmental criminal cases.10 As

of early 2013, there were 45 attorneys in the ECS, the most in its history.11

e 93 U.S. attorneys’ oces handle the vast majority of environmental prosecutions. Many of these

oces have a dedicated assistant U.S. attorney in charge of environmental criminal enforcement eorts.

In general, U.S. attorneys handle all federal environmental criminal cases in their own district s, except for

cases involving “novel issues of law,” “simultaneous investigations into multiple districts,” “international or

foreign policy” issues, or those “of an urgent or sensitive nature.”12 e U.S. Attorneys’ Manual states that

those cases are more likely to be ha ndled jointly between ECS and the local U.S. attorneys’ oce.13

When ECS and local U.S. attorneys act as joint co-counsel, the exact allocation of responsibilities varies

case-by-case. e factors determining wh ich oce takes t he laboring oar include the technica l expertise

of the assigned prosecutors; respective workloads; political considerations, including the loca l signicance

of a matter; and the case’s importance in terms of overall national priorities.14 In these case s, either ECS

4. Giles Says EPA Pursuing High-Impact Cases, Adding Criminal Investigators to Sta, Daily Env.t’l Rep. (BNA) No. 184, at A-7(Sept. 24,

2010).

5. Pollution Prosecution Act of 1990, Pub. L. No. 101-693, §201, 104 Stat. 2954, 2962-63.

6. U.S. EPA, National Enforcement Investigations CenterCenter, http://www.epa.gov/enforcement/criminal/neic.html (last visited May 28, 2013).

7. C, supra note 3, at 9.

8. Id.

9. John F. Cooney, Multi-Jurisdictional and Successive Prosecution of Environmental Crimes: e Case for a Consistent Approach, 96 J. C. L.

 C 435, 438 (2006) (citing David M. Uhlmann, Chief, ECS, U.S. DOJ, Speech to the District of Columbia Bar Association

(Dec. 6, 2005)) and Interview by Corporate Crime Reporter with David M. Uhlmann, Chief, ECS, U.S. DOJ (Feb. 23, 2004), reprinted in

6 ABA S. E’ E  R 12, 13 (2005), available at www.abanet.org/environ/committees/environcrimes/newsletter/may05/

(last visited May 28, 2013).

10. Id.

11. U.S. EPA, Criminal Enforcement Overview, http://www.epa.gov/enforcement/criminal/basics.html (last visited May 28, 2013).

12. U.S. A’ M, supra note 1, §5-11.104 (Responsibility for Case Development and Prosecution).

13. Id.

14. Cooney, supra note 9, at 439.