Page 102 Environmental Crimes Deskbook 2nd Edition
willing to trade a signicantly greater cleanup commitment than could be required by law, in return for
foregoing possible criminal charges against t he entity, foregoing criminal charges against individuals, or
reducing the severity or number of counts led. Accordingly, corporations faced with the inevitability of
cleaning up their pollution may seek a negotiated resolution, based on their willingness to undertake a
comprehensive remediation program.
e prosecutor may be attracted to such a resolution, because it benets the environment directly,
through prompt elimination of contaminants, rather than indirectly through deterrence of potential future
violators. e large dollar amount involved also may generate favorable publicity for the prosecutor’s oce.
e prosecutor does not act with a free hand, however, and may need the concurrence of federal and state
civil regulators on many of the cleanup terms that have critical cost implications.
For the polluter, the principal attraction of a negotiated resolution, besides the possibility of reduced
charges, is the greater exibility that may be aorded in a plea agreement on such vital terms as the level
of cleanup required, the permissible remediation techniques, t he timetable, and post-cleanup obligations.
A plea agreement provides opportunities for substantial cost savings in these areas compared to those that
would be incurred in an adverse judgment entered after trial. Further, with the prosecutor’s cooperation, a
company may be able to struct ure the agreement in a manner that makes some of the out-of-pocket costs
tax deductible. A plea entered into pursuant to Rule 11(c)(1)(c) provides the defendant with the added com-
fort that the plea must be accepted as agreed to or, if not accepted, the court must allow the defendant to
withdraw his plea and proceed to trial. In entering into these discussions, the company must rea lize that
all aspects of its environmental performance will be in play, including prior disposals that are not included
in t he contemplated changes, other operations besides those implicated in the criminal complaint, and
discharges to other media in addition to those involved in the criminal violation.
e degree of cooperation demonstrated by the company during the investigative process may aect
signicantly the willingness of the prosecutor to consider a consensual resolution. None of these benets
is likely to be achieved unless the prosecutor is convinced of the company’s good faith and the regulatory
agency has condence in the company’s reliability. Eective environmental criminal counsel therefore,
must understand t he dicult ba lancing act he or she must play in conducting the defense of t he investi-
gation to address all these problems simulta neously. Counsel must organize the defense in a manner that
fully presents the company’s position on the merits, without turning either the prosecutor or the regulator
against it. More so than in most other types of criminal c ases, relations with government prosecutors and
enforcement personnel in environmental cases must not be ca st in an adversaria l, scorched-earth tone, for
fear of precluding later opportunities to turn the discussions toward negotiations over the scope of t he
cleanup and the terms of permits governing future operations. e regulated entity has a long-term, invol-
untary relationship with its regulator that can signicantly aect the future cost of doing business and thus
its ability to compete.
Finally, since settlement must be reached with all federal and state criminal and regu latory agencies,
counsel must eliminate the risk that the cleanup resolution may later be undone by another sovereign entity
with overlapping enforcement authority initiating proceedings on the same issues.3
B. Federal Sentencing Guidelines
In 1984, Congress passed the Sentencing Reform Act in an eort to alleviate sentencing disparity, which
was prevalent in the federal sentencing system. e statute reformed t he sentencing system by: “(1) drop-
ping rehabilitation as one of the goals of punishment; (2) creating the United States Sentencing Commis-
sion and charging it with establishing Sentencing Guidelines; (3) making all federal sentences determinate;
and (4) authorizing appellate review of sentences.”4 In accordance with Act, the U.S. Sentencing Commis-
sion promulgated the U.S. Sentencing Guidelines5 [hereinafter Sentencing Guidelines or Guidelines]. e
3. See Chapter 2, Section G, Parallel Proceedings, supra.
4. L M. S, CRS R C, F S G: B, L A, P O
(June 2007), available at http://www.fas.org/sgp/crs/misc/RL32766.pdf (last visited May 28, 2013).
5. U S S C’, G M (Nov. 2013) [hereinafter S G], available at http://www.
ussc.gov/Guidelines/2013_Guidelines/index.cfm (last visited Feb. 10, 2014)