Thursday, December 16, 2021
The top U.S. Department of Justice (DOJ), Environmental official, has informed corporate employees that DOJ is increasing its focus in prosecuting individuals for environmental crime, including the threat of imprisonment. In aPre-recorded keynote addressAt the American Bar Association’s (ABA) National Environmental Enforcement Conference, December 14, 2021, Todd Kim, Assistant Attorney General of the Environment and Natural Resources Division (ENRD), stated: Only individuals can go into jail. We have found that criminal corporate responsibility starts with accountability for the individuals who committed the crime.
Kim’s remarks are consistent in DOJ’s intention to prioritize criminal charges against individuals for a range of corporate crimes. Deputy Attorney General Lisa Monaco explained this in anOctober AddressThe ABA 36ThAnnual National Institute on White Collar Crime. Kim suggested that DOJ would not limit itself to environmental statutes in its pursuit of criminal environmental enforcement. Employees could face fraud, conspiracy and obstruction of justice for environmental cases.
The federal government has a long track record of prosecuting crimes in environmental cases. These cases are an essential arrow in the DOJ’s quiver. Kim explains that strong enforcement and deterrence is essential to ensure the protection of the environment and public health, and create an equal playing field for businesses who follow the law.
The ENRD Section of DOJ Environmental Crimes Section collaborates closely with the U.S. These cases can be prosecuted by attorneys offices. Sometimes, violations can lead to both criminal and civil enforcement. These cases are called parallel proceedings by DOJ. These cases are called parallel proceedings by DOJ. The civil case is typically stayed until the criminal case has developed or been resolved. It has been difficult to determine where the government draws a line between civil and criminal prosecutions. This is especially true when it comes to complex environmental laws.
The DOJ’s recent focus on criminal prosecution of individuals involved in environmental enforcement actions is more effective than the possibility that civil or criminal enforcement can be taken against the corporation. Criminal prosecution of individuals in environmental crimes has been used historically to address extreme conduct, sometimes involving willful misconduct. Will DOJ just prosecute a larger number of these egregious cases? Or will it start prosecuting individuals who commit less serious violations? It will be interesting to see what the future holds. Kim says that DOJ will prioritise prosecuting corporate malfeasance perpetrators and profiteers.
The Biden Administration made it clear that it will be focusing more resources on climate justice and environmental justice. Kim has no doubt that DOJs enforcement efforts would follow suit. He states that enforcement’s purpose is to protect public values, such as public health. He concludes that enforcement efforts to mitigate climate impacts and secure environmental justice are the best examples of this.
Tips for reducing exposure
Non-compliance could be due to honest errors or equipment failures. These issues are usually addressed through civil enforcement. In some cases, the government may decide that a company has not invested enough resources in environmental compliance. If this happens, the government could consider the company a bad actor and charge it with violating its environmental compliance obligations. Kim’s comments emphasize that a criminal investigation can not only be brought against the corporate entity, but also the individuals responsible for the non-compliance.
Companies can take steps in order to protect themselves and their employees from criminal prosecution. The audit policy, which is commonly referred as the voluntary disclosure of environmental violations is one obvious tool. However, the audit policy can only be used in certain situations to mitigate penalties.
To reduce the risk of civil or criminal enforcement, there are other steps a company can take every day. These steps can be taken to ensure compliance and reduce the likelihood of non-compliance leading to criminal prosecution.
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Review your permits. Make sure your facility has all necessary permits.
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Keep current procedures in place to ensure compliance with all environmental regulations. There are many opportunities to spot potential non-compliance.
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It is important to clearly define the responsibilities of employees in relation to environmental compliance.
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You must ensure that employees who have these responsibilities are competent and receive regular, periodic training.
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All reporting and record keeping obligations must be strictly adhered to.
Follow this advice from Kim:
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Keep track of all compliance actions you take to demonstrate good corporate citizenship.
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Conduct periodic, comprehensive environmental audits of your business operations to verify compliance with environmental regulations, identify areas of non-compliance, and provide mechanisms for rectifying them.
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It all comes down that a corporate culture which fails to be proactive and holds employees accountable will lead to poor results.
It is still unclear how much civil and criminal enforcement will increase under the Biden administration. This includes a greater focus on environmental justice as it will affect enforcement priorities. However, the threat of criminal enforcement against employees in situations where the government would have pursued only the corporation in the past should encourage corporations and employees to pay more attention to environmental compliance.
