A top official at the Justice Department stated that prosecutions of individuals who have committed corporate environmental crimes will be prioritized. This is a departure from traditional prosecutorial practices, according to one attorney.
Only individuals can be sent to prison, and we know that criminal corporate accountability begins with accountability for criminal conduct. Todd Kim is the assistant attorney general for the department Environment and Natural Resources Division. He made this statement in a speech which will be broadcast at American Bar Associations. National Environmental Enforcement Conference.
Kims prerecorded keynote speech, which was originally scheduled for Tuesday, was made available to registrants for the first time on Dec. 10.
DOJ will not restrict its criminal enforcement of environmental statutes to environmental statutes. Title 18Kim said that fraud, conspiracy, obstruction of justice and other crimes can be committed in conjunction with environmental violations.
He stated that a genuine threat of criminal charges can and will change the conduct and behavior of individuals and companies who are not dissuaded by the threat or civil enforcement.
Kim’s comments echo comments made by Lisa Monaco (Deputy Attorney General), who in October told ABAs White Collar Crime National Institute, that the Biden administration was committed to the criminal prosecution and protection of individuals.
Often Unspoken
Kim stated that the threat of criminal enforcement by DOJ makes agencies’ administrative and civil enforcement programs more efficient.
He said that agency queries are treated more seriously and inspectors receive more respect and cooperation on the ground. This leads to greater civil compliance through criminal enforcement.
Steven Holtshouser, a former U.S. supervisor, stated that although the threat of criminal prosecutions has been used by the prosecutor, it is not often spoken about. Attorneys Office that specializes in white-collar crimes.
It is a departure that DOJs openly embrace the dynamic and announce to business targets that individuals can pay the price of what is actually collective actions of an organization that cannotas Assistant attorney general Kim correctly points outbe sent into jail, said Holtshouser now a partner in Husch Blackwell LLP St. Louis.
Houltshouser said that this policy could lead to a company with minor criminal and some civil exposure to agree to onerous civil settlement terms to protect people threatened with prosecution.
It’s a matter of leverage and Kim’s comments leave no doubt about DOJs willingness, he stated, to use that leverage.
He stated that the policy may result in cases where a company refuses terms from the government. However, the DOJ continues to carry out a threat that would otherwise not result in individual criminal prosecutions.
He said that DOJs policy is at risk of being too restrictive, especially for lower-ranking individuals.
Matt Leopold is a former EPA general attorney and said that companies who follow the rules deserve a level field. He also stated that the U.S. has an excellent track record of environmental compliance.
This has been possible historically by relying on mostly non-criminal enforcement or administrative enforcement. Criminal enforcement is reserved for egregious conduct. Leopold, now a partner at Hunton Andrews Kurth LLP, Washington, D.C.
Corporate Track Record
Kim also stated that the office’s assessment of a corporation may not be limited by its environmental misdeeds. He said that if a corporate supply source is criminally corrupted, my division will look into the criminal responsibility for all of that supply chain.
To illustrate, he cited the Lacey Act, which is a century-old statute that prohibits illegally taking timber or other natural resources from being traded. The law is enforced by the DOJ throughout a company’s supply chain. Corporate actors can be held liable if they knew or should have known that there was illegally sourced timber in their supply chain, he stated.
Kim says that corporations who want credit for cooperating DOJ must identify all those involved in misconduct, even if they are not part of the corporation.
Kim stated that the DOJ is also paying special attention to environmental justice. He said that the DOJ is working with the Environmental Protection Agency on a strategy to provide timely relief for environmental justice communities affected by systemic violations or contamination.
Melissa Hoffer was the principal deputy general counsel at EPA. She stated that in October, the agency was reexamining its legal tools to reduce pollution in the communities of environmental justice. She said that Title XI of Civil Rights Act will be invoked by the agency for regulatory and permitting decisions.
