Take note, risk managers: In the coming months, criminal and environmental enforcement will increase.
The American Bar Associations annual National Environmental Enforcement Conference was addressed by Deborah Harris, Chief of Department of Justice’s Environmental Crimes Section (DOJ), and Todd Kim (Assistant Attorney General), head of the DOJ Environment and Natural Resource Division. They stated that individuals and companies should expect more robust investigations, drawing on the expertise and jurisdiction of federal agencies, while prosecutions will follow enhanced DOJ criminal enforcement policies, reports a National Law ReviewHunton Andrews Kurth contributed this article.
In the past, compliance incentives were a key focus of the administration, which resulted in a decline on enforcement actions.
[T]The federal government is going to be more aggressive in enforcement than just aiming to comply. Harris stated that the federal government is returning to more aggressive enforcement than just aiming for compliance. Harris stressed the importance of prosecuting white collar crimes, such as fraud and making false statements, which often go hand in hand with environmental crimes.Kim addressed both civil and criminal enforcement during his keynote speech. He stressed the importance and power of criminal enforcement as a powerful deterrent to illegal behaviour more than the threat and threat of civil enforcement.
Kim’s comments suggest that the DOJ is committed following DOJ guidance previously issued, Individual Accountability for Corporation Wrongdoing. Also known as the “The DoJ Guide to Corporate Wrongdoing”, Kim’s remarks indicate that the DOJ is committed closely to following the DOJ guidance. Yates memo, which was written in part by Sally Yates (ex-DOJ Deputy Attorney General).
The memo states that one of the best ways to combat corporate misconduct, is to seek accountability from those who committed the wrongdoing. Such accountability is important for several reasons: it deters future illegal activity, it incentivizes changes in corporate behavior, it ensures that the proper parties are held responsible for their actions, and it promotes the public’s confidence in our justice system.
The Yates memo required that companies under investigation give information. AllIndividuals involved in alleged misconduct will be awarded cooperation credit.
Kim warned companies that they must meet their due care obligations (to accept responsibility for their products, fully understand their supply chain, and ensure legality) in order to avoid potential consequences. This includes the possibility of criminal sanctions, the potential seizure, forfeiture, and forfeiture illegally-sourced timber, goods and vessels, and the inability of an innocent owner defense.
Kim also mentioned the Corporate Crime Advisory Group and Initial Revised Corporate Criminal Enforcement Policies DOJ memoThe following was issued October 28, 2021 by the deputy attorney general (DAG).
Consider these key shifts in both the DAGs memorandum (and in Kims speech)[ing]The entire criminal history of a corporation is required. This clarifies that a corporation must provide all information regarding all individuals involved in corporate misconduct to be eligible for cooperation credit. It also allows the corporation to embrace monitorships. Corporate criminal history changes will significantly expand the range of misconduct that prosecutors consider in deciding whether or not to resolve a corporate criminal investigation. Numerous companies are regularly subject to regulatory scrutiny from different authorities, domestic and international. DOJ is now open to considering all prior actions, even if they are not related. To address these and other possible changes in DOJ’s approach to corporate environment crime prosecution, the Corporate Crime Advisory Group was established. These three factors, together, could result in a significant shift in how cases are charged and resolved, as well as what forward-looking compliance steps may be required, according the Hunton Andrews Kurth article.
Kim’s address highlighted specific ENRD tools, such as sectorwide enforcement or the use of corporate monitors to assist with civil environmental enforcement actions. Sectorwide enforcement refers to an enforcement approach that targets a specific industrial segment or sector experiencing widespread noncompliance. This is a tool to highlight compliance issues, publicize the governments enforcement goals and objectives for a sector, and hopefully catalyze proactive compliance actions by other sources in the sector.
Hunton Andrews Kurth suggests that companies take away at least one message from Kims’ and Harriss messages. It is crucial to proactively maintain compliance with applicable environment laws, warns Hunton Andrews Curth. Companies can avoid enforcement actions by taking compliance seriously. As both DOJ officials warned, enforcement actions could be more likely if violations are linked to the Administration’s priority areas of climate justice or environmental justice.