Policy on Criminal Prosecutions for Environmental Violations

• Author: Frank B. Friedman
• Pages: 487-492

Factors in Decisions on Criminal Prosecutions for

Environmental Violations in the Context of Significant

Voluntary Compliance or Disclosure Efforts by the Violator

(Department of Justice July 1, 1991)

I. Introduction

It is the policy of the Department of Justice to encourage self-auditing, self-policing and

voluntary disclosure of environmental violations by the regulated community by indicating

that these activities are viewed as mitigating factors in the Department’s exercise of

criminal environmental enforcement discretion. This document is intended to describe the

factors that the Department of Justice considers in deciding whether to bring a criminal

prosecution for a violation of an environmental statute, so that such prosecutions do not

create a disincentive to or undermine the goal of encouraging critical self-auditing,

self-policing, and voluntary disclosure. It is designed to give federal prosecutors direction

concerning the exercise of prosecutorial discretion in environmental criminal cases and to

ensure that such discretion is exercised consistently nationwide. It is also intended to give

the regulated community a sense of how the federal government exercises its criminal

prosecutorial discretion with respect to such factors as the defendant’s voluntary disclosure

of violations, cooperation with the government in investigating the violations, use of

environmental audits and other procedures to ensure compliance with all applicable

environmental laws and regulations, and use of measures to remedy expeditiously and

completely any violations and the harms caused thereby.

This guidance and the examples contained herein provide a framework for the

determination of whether a particular case presents the type of circumstances in which

lenience would be appropriate.

II. Factors to be Considered

Where the law and evidence would otherwise be sufficient for prosecution, the attorney

for the Department should consider the factors contained herein, to the extent they are

applicable, along with any other relevant factors, in determining whether and how to

prosecute. It must be emphasized that these are examples of the types of factors which

could be relevant. They do not constitute a definitive recipe or checklist of

requirements. They merely illustrate some of the types of information which is relevant

to our exercise of prosecutorial discretion.

It is unlikely that any one factor will be dispositive in any given case. All relevant factors

are considered and given the weight deemed appropriate in the particular case. See Federal

Principles of Prosecution (U.S. Dept. of Justice, 1980), Comment to Part A.2; Part B.3.

A. Voluntary Disclosure

The attorney for the Department should consider whether the person1made a voluntary,

timely and complete disclosure of the matter under investigation. Consideration should be

given to whether the person came forward promptly after discovering the noncompliance,

and to the quantity and quality of information provided. Particular consideration should be

given to whether the disclosure substantially aided the government’s investigatory process,

and whether it occurred before a law enforcement or regulatory authority (federal, state or

local authority) had already obtained knowledge regarding noncompliance. A disclosure is

Policy on Criminal Prosecutions 487

1. As used in this document, the terms “person” and “violator” are intended to refer to business

and nonprofit entities as well as individuals.