This episode of the Bracewell Environmental Law Monitor features host Daniel Pope talking with Jason Hutt, Kevin Collins, and Robert Wagman to discuss current trends in federal and environmental enforcement.
Kevin Collins is a partner at our Austin office. He is a former assistant U.S. Attorney for the Eastern District of Texas. He helps manage the problems that can arise during government investigations.
Jason Hutt, a partner in our DC office, is the chair of the firm’s environmental department. He advises and defends clients regarding complex energy and environmental issues.
Robert Wagman is a partner at our DC office and leads the government contracts practice. He is involved in a lot of government enforcement work.
What are you hearing from DOJ these days in the criminal enforcement context of criminal enforcement? What is the EPA doing in the civil area?
There’s been a resurgence of activity at DOJ. They feel energized under the new administration, I believe. This feeling is supported by the stats. The charges against the United States Attorney’s Offices across the country have increased by about 10%. They have charged approximately 5,500 people with white-collar related offenses. The Environment Natural Resources Division at DOJ has indicted 34 individuals and 11 companies. Many of those people are senior executives. Budget-wise, they are asking for much more money. There’s definitely an interest to go after bad actors, especially those at companies to some extent.
We still enforce the same environmental laws but the leniency or posture factors are different. One of the settlement expectations is to protect the community where a facility or violator operates. We are seeing an increase in expectations regarding fence line monitoring and reparations or mitigation. This resolution involves making things right in the community where the violation occurred or where the environmental damage was caused by that violation. Those are pieces that can be seen as a shift in government posture.
This podcast has already mentioned suspension and debarment a few times. We would love to hear your fastest suspension and debarment course for dummies so we can all get on the same page.
Many companies don’t realize the impact suspension debarment has on them. It doesn’t just apply to government contractors. It will apply to both procurement and non-procurement actions. The regulations use the term cover transactions to describe basically anything that is not exempted from the regulations. If government money is involved, it’s likely that the transaction is covered. Federal leases are a prime example of this. Suspension debarment could have a significant impact on your business, whether you are a federal leasee or an oilfield services company that serves federal lessees. This is often a problem for individuals, not companies. They don’t think about suspension, debarment and any administrative remedies that could be associated. In general, suspension and debarment mean that you are prohibited from doing business with federal government for a certain period of time, usually three to five years. But it can be varied. It follows either criminal or civil enforcement, but doesn’t necessarily have to. It can also come from any referrals.
What are some areas in which suspension and debarment may be more risky than others?
Environmental because of the statutory ban. It is much more likely that it will be noticed by the suspension and debarment officials than other types enforcement activities. If you do business with the government a lot, it is more likely that you will be on someones radar. Every agency has its own suspension and debarment officials, so you could face debarment. It is not a EPA issue or a particular agency. You could be debarred by any agency. If you are ultimately debarred, it is applicable company-wide.
There is also a statutory ban under many of the environmental statutes. However, you can also be placed in criminal culpability if you are negligent. It’s quite different from the majority of these other statutes. The combination of these two factors creates an increased risk in the environmental realm. Enforcement personnel almost automatically think of negligence when there is an incident or accident. They see some significant environmental damage or loss of life and they believe that this shouldn’t have happened.
What are the best practices companies can use to ensure they are looking at these types of issues and where they are exposed?
Good corporate governance is unbeatable. This is because it is a company that the government can trust and do business with. It will help you in criminal enforcement, civil enforcement, and all other aspects of your business.
