The Biden Administration has a number of enforcement priorities. While not listed as a primary objective, the Justice Department and the EPA can be expected to increase criminal enforcement of environmental laws.
DOJ’s Environmental Crimes Section (ECS) has had a steady enforcement record but has suffered political ups and downs depending on the political leanings of the administration in power. The critical issue is usually the budget resources allocated for EPA staffing and DOJ resources.
ECS is staffed with around 45 prosecutors who lead their own criminal investigations and work with AUSAs in ninety-four districts. ECS prosecutes cases involving violations of ecological and wildlife resources support. A typical crime involves discharge of hazardous chemicals or the killing of protected species such as a bald eagle. The cases involving wildlife are investigated by Special Agents of the Fish and Wildlife Service or other investigative partners.
EPA has approximately 300 special agents assigned to environmental criminal investigations. These numbers fluctuate with budget amounts. EPA targets cases involving (1) human health and environmental impacts (e.g. death, serious injury, human exposure, remediation); (2) release and discharge characteristics (e.g. hazardous or toxic pollutants); and (3) subject characteristics, e.g. national corporation and/or repeat violator).
With the increasing focus on environmental protection and regulation, criminal cases will increase. Organizations subject to environmental regulations and facing environmental risks will be targeted for investigation and prosecution.
The environmental statutes contain significant criminal fines and imprisonment. Some of the statutes, Clean Water Act, Clean Air Act, and Resource Conservation and Recovery Act, impose criminal liability under a negligent (misdemeanor) or knowing (felony) intent standard. Felonies require a “knowing” violation, but typically do not require specific intent that their conduct violated the law.
Criminal investigations often involve false statements, obstruction of justice and even perjury counts because of false representations and reports made in regulatory documentation.
Proving intent in environmental crime cases often depends on evidence of conscious avoidance of known risks. An organization’s compliance program and its audit and monitoring procedures can be an important source for such evidence. For example, if an organization fails to audit or review activities and documentation of their performance of compliance tasks, the government can cite such evidence as proof of conscious avoidance. Similarly, supervisors who have a duty to manage and ensure compliance have to exercise proper oversight of employees who themselves have high-risk responsibilities.
The doctrine of “respondeat superior” dictates that the illegal conduct of one employee at the organization will be attributed to the organization for liability purposes. The employee can be a high-level, mid or even lower level employee. The employee’s conduct has to be committed within the scope of the individual’s employment and with the requisite intent, which must be in part, to benefit the organization.