On May 11, 2023, the U.S. Department of Justice (DOJ) announced the launch of its Puerto Rico and U.S. Virgin Islands (USVI) Environmental Crimes Task Force. This new task force will focus specifically on combating environmental crime in the United States’ Caribbean territories, with a particular emphasis on clean air, clean water, and the territories’ diverse natural resources.
As stated in the DOJ’s press release, the formation of the Puerto Rico and U.S. Virgin Islands (USVI) Environmental Crimes Task Force “comes one year after the Justice Department announced its Comprehensive Environmental Justice Enforcement Strategy and the creation of an Office of Environmental Justice (OEJ) within the Environment and Natural Resources Division (ENRD).” Notably, the DOJ’s task force announcement also coincided with its announcement of indictments against two individuals charged with committing environmental crimes in Puerto Rico. This suggests that the task force is a product—and extension—of the federal government’s efforts to combat environmental crime in the region, and that additional investigations are likely to be forthcoming.
“With the launch of its Puerto Rico and U.S. Virgin Islands (USVI) Environmental Crimes Task Force, the DOJ is signaling its clear intent to prioritize environmental compliance in the Caribbean region. Companies and individuals accused of harming the environment or compromising the islands’ natural resources will face substantial legal risks, and they can expect to face swift prosecution in the federal courts.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.
With this in mind, individuals and companies doing business in Puerto Rico and the U.S. Virgin Islands must give due consideration to the legal risks involved. Due to their unique geographic location and extraordinary biodiversity, Puerto Rico and the USVI are heavily protected, and virtually all types of construction and commercial operations present risks for environmental damage and contamination. The Puerto Rico and U.S. Virgin Islands (USVI) Environmental Crimes Task Force is comprised of agents, investigators, and lawyers from several federal agencies, all of which have their own specific priorities in the region. As identified by the DOJ, the agencies represented on the task force include:
- Army - Criminal Investigation Division
- Army Corps of Engineers
- Department of Agriculture – Office of Inspector General
- Department of Commerce – Office of Inspector General
- Department of Homeland Security – Homeland Security Investigations
- Department of Transportation – Office of Inspector General
- Environmental Protection Agency – Criminal Investigation Division
- Environmental Protection Agency – Office of Inspector General
- Federal Bureau of Investigation
- Food and Drug Administration – Office of Criminal Investigations
- Housing and Urban Development – Office of Inspector General
- IRS – Criminal Investigation Division
- National Oceanic and Atmospheric Administration – Office of Law Enforcement
- U.S. Coast Guard – Sector San Juan
- U.S. Coast Guard Investigative Service
- U.S. Fish and Wildlife Service
Environmental Law Enforcement Priorities in Puerto Rico and the U.S. Virgin Islands
Through their involvement with the Puerto Rico and U.S. Virgin Islands (USVI) Environmental Crimes Task Force, these federal agencies—working in close coordination with the DOJ’s Office of Environmental Justice—will investigate and prosecute a broad range of federal crimes in the region. As identified by the DOJ, violations falling within the task force’s purview include:
Air and Water Quality Violations
The Puerto Rico and U.S. Virgin Islands (USVI) Environmental Crimes Task Force will enforce the Clean Air Act, Clean Water Act, and Rivers and Harbors Act on the islands and in the surrounding federal navigable waters. In the case referenced above, the DOJ secured indictments under the Clean Water Act and Rivers and Harbors Act based on the defendants’ alleged construction and dumping of excavation material in protected U.S. waters. If convicted, the defendants face statutory fines, injunctions against further criminal conduct, and up to four years of federal imprisonment.
Fraud, Waste, and Abuse Affecting EPA and DOC Programs
With representatives on the DOJ’s task force, the U.S. Environmental Protection Agency (EPA) and U.S. Department of Commerce (DOC) are prioritizing enforcement of the federal prohibitions against fraud, waste, and abuse (FWA) in Puerto Rico and the U.S. Virgin Islands. Companies and individuals accused of FWA can expect to face scrutiny under the False Claims Act and other pertinent statutes, with the potential for criminal prosecution in many cases.
Harm to Wetlands or Navigable Waters
Along with enforcement of the Clean Water Act and Rivers and Harbors Act, the DOJ’s task force will also use various other federal statutes to prosecute crimes that involve harm to Puerto Rico’s and the USVI’s wetlands and navigable waters. Depending on the nature of the offense and the harm caused, prosecutors may be able to pursue enforcement under the Shore Protection Act; Marine Protection, Research, and Sanctuaries Act; and other federal laws.
Harm to Wildlife (including Pesticide Misuse)
The Puerto Rico and U.S. Virgin Islands (USVI) Environmental Crimes Task Force is also focusing on harm to wildlife on the islands and in their surrounding waters. Among other things, this includes harm caused by the unlawful use of pesticides in commercial agricultural applications. The Federal Insecticide, Fungicide, and Rodenticide Act and Toxic Substances Control Act are among the federal environmental laws that regulate the use of pesticides on U.S. soil, including the territories of Puerto Rico and the U.S. Virgin Islands.
Hazardous Material Transportation Violations
Through its role on the DOJ’s task force, the U.S. Department of Transportation’s Office of Inspector General (DOT OIG) will be working to address hazardous material transportation violations in the region. The transportation of hazardous materials is subject to extensive rules and regulations; and, while unintentional technical violations can lead to civil enforcement action, allegations of intentionally disregarding the nation’s hazmat transportation laws can lead to criminal prosecution—particularly when they result in environmental harm.
Marine Environmental Violations
With Puerto Rico’s and the U.S. Virgin Islands’ unique geography and biodiversity, marine environmental violations are likely to be among the new task force’s top enforcement priorities in the region. This includes marine environmental violations that result in harm to the islands’ native flora and fauna, as well as violations that pollute the islands’ waters and present hazards for their full-time residents and visitors.
Oil and Chemical Spill Violations
Oil and chemical spills can trigger swift investigations and aggressive enforcement in all scenarios. Along with Superfund (CERCLA) violations, the Puerto Rico and U.S. Virgin Islands (USVI) Environmental Crimes Task Force, including its EPA and DOT representatives, will likely be actively involved in investigating all spills on the islands and in their waters.
Unlawful Use of (or Damage to) Federal Marine Resources
Federal marine resources such as the Jobos Bay National Estuarine Research Reserve (JBNERR) in Puerto Rico are subject to extensive protections, and making unlawful use of these resources can lead to swift and aggressive enforcement as well. This includes unlawful uses ranging from illegal fishing and resource cultivation to building on federal land or federally protected waters without authorization. Causing damage to federal marine resources through unlawful dumping, transportation, and other commercial activities can lead to prosecution as well.
Violations Involving Medications, Foods, Cosmetics, and Other Biological Products
The Food and Drug Administration’s Office of Criminal Investigations (FDA OCI) enforces laws including the Food Quality Protection Act that play a role in regulating the cultivation, manufacturing, storage, and distribution of medications, foods, cosmetics, and other biological products. Companies and individuals targeted for violations of these laws through the task force’s enforcement efforts may face prosecution under other FDA-enforced statutes as well.
Violations Involving Public Corruption
Fighting public corruption is a perennial law enforcement priority for the DOJ and FBI. If the Puerto Rico and U.S. Virgin Islands (USVI) Environmental Crimes Task Force uncovers evidence of bribery (or attempted bribery) or other corrupt activities during its investigations on the islands, this could lead to criminal charges for all parties involved. While these charges are not environmental in nature, the DOJ appears to have identified public corruption as a particular risk within the context of managing environmental compliance on the islands.
Violations Involving Workplace and Housing Conditions
The Puerto Rico and U.S. Virgin Islands (USVI) Environmental Crimes Task Force is also focusing on violations involving workplace and housing conditions affecting island residents who work in the islands’ protected environments. Enforcement of the federal workplace and housing laws will likely involve joint efforts by the task force’s Housing and Urban Development Office of Inspector General (HUD OIG) representatives and the U.S. Attorney’s Offices in Puerto Rico and the USVI.
Avoiding (and Defending Against) Environmental Crime Allegations in Puerto Rico and the USVI
To avoid these violations, and to defend against allegations of these violations when necessary, companies and individuals doing business in Puerto Rico and the U.S. Virgin Islands need to prioritize environmental compliance. By prioritizing compliance, not only can companies and individuals avoid potentially high-risk violations, but they can also generate the documentation needed to mount a successful defense. Maintaining environmental compliance and defending against environmental crime allegations both require experienced legal counsel; and, to effectively mitigate their risk of prosecution, companies and individuals in Puerto Rico and the USVI should proactively engage a law firm that practices in the areas of federal environmental compliance and defense.
