Justice Department’s push to prioritize environmental crimes criminal prosecutions seeks to bring the agency back to pre-Trump administration enforcement levels but not dramatically exceed them.
Officials from the Justice Department clarify recent public statements ObservationsTodd Kim, an assistant attorney general in Justices Environment and Natural Resources Division (ENRD), stated that his team will prioritise prosecuting individuals who profite from corporate malfeasance.
A senior ENRD official specializing in environmental crimes told Bloomberg Law that Justice wants to reverse the sharp decline in criminal prosecutions under Trump’s administration.
According to the Transactional Records Access Clearinghouse at Syracuse University, the number of environmental criminal cases never exceeded 100 per fiscal year under President Donald Trump. This follows averaging well above 100 during Obama’s administration.
According to Matt Leopold, a former EPA General Counsel under Trump, the department position suggests that environmental misdemeanors that were not pursued at any time or were instead pursued by civil enforcement will now become crimes.
Personnel Issues
To show that ENRD doesn’t intend to increase criminal prosecutions beyond what was expected, the Justice official stated that the Environmental Crimes section hasnt received any new resources in recent months and only has 36 lawyers. This limits the department’s ability to pursue more criminal cases.
The staff at the section for environmental crimes has seen a 15% drop in personnel since January 2017, though the division was granted authority to hire another two employees.
Personality is a concern at the Environmental Protection Agency. This is important because most environmental investigations at Justice can be triggered by EPA referrals. Rod Rosenstein was the former deputy attorney General under Trump and said that the only way to develop more cases was to increase the resources dedicated to this area.
According to the Justice official, however, the EPA’s Criminal Investigation Division only employs 160 investigators and hasn’t had its full statutory complement (200) in at least the past decade.
Wyn Hornbuckle said that ENRD will continue criminal prosecutions where the facts and evidence for a crime can been proven in court beyond reasonable doubt. This includes both individuals as well as corporations who may be guilty.
Larger Cases
Trump said that the Justice Department’s numbers were declining because it was focusing more on complex cases and larger cases. An increase in cases is unlikely to be seen until several months, due to the length of time it takes for cases to be investigated and prosecuted. Leopold, who is now a partner at Hunton Andrews Kurth LLLP, said that any increase in cases will not be noticed until those cases are investigated and prosecuted.
According to the Justice official, Justices criminal section will likely be focusing on Clean Air Act cases. These cases could help to shift the climate change curve in line with the Biden administrations goals. He said that Justice has not been referred to other types of cases, such as Clean Water Act cases.
Todd Mikolop, a former ENRD trial lawyer and now counsel at Hunton Andrews Kurth LLP, said that criminal prosecution will also be brought against executives and managers further down a company’s supply chain. Kim stated that companies seeking credit for cooperation must identify all those involved in misconduct.
Another result of the push to increase criminal prosecutions is a tougher scrutiny of facilities within low-income communities, according Steve Solow, former chief Justices Environmental Crime Section and Baker Botts LLP partner.
Solow envisions prosecutors asking for input from environmental justice communities in order to identify potential concerns that could lead investigation or canvassing information to help them decide whether they will prosecute.
The department is currently working to develop a comprehensive plan for environmental justice. Hornbuckle stated that ENRD focuses only on the most harmful and egregious conduct that endangers public health and the environment. This includes those in underserved communities who have been disproportionately affected by pollution.
A Long-Standing Objective
The goal of pursuing individual criminal charges is a long-standing Justice Department priority. It ensures that the government doesn’t penalize the wrong people such as shareholders or employees who had nothing to do the wrongdoing. Rosenstein is now a partner at King & Spalding LLP.
Peter Hsiao was a former senior trial attorney at Justice. He agreed that criminal prosecution is a powerful weapon to create a deterrence effect that will result in large-scale compliance.
According to Hsiao (now a King & Spalding LLP Partner), environmental prosecutions are also popular with the public. This could provide the Biden administration with an additional incentive for aggressively pursuing corporate polluters.
The department must be careful not go too far. Overzealous prosecutions can lead to criticisms that the administration is reducing U.S. competitiveness.
Richard Glaze, a former U.S. Attorney special assistant and former EPA senior Enforcement Counsel, raised this concern. The difference between a civil or criminal case is so small.
It is a matter of mental status, and the mental condition that must be proved for a criminal case, Glaze said. Glaze is now a partner in Barnes & Thornburg LLP.
Glaze also stated that he doesn’t believe ENRD has an institutional predisposition towards overcriminalization. This view was confirmed by a Justice official who stated that the agency must stick with long-established guidelines. Federal prosecution principles.
Willing Partner at EPA
Already, the Biden EPA has begun to toughen up.
Fiscal 2021 saw the agency open 123 new cases. In 88% of all criminal cases, a single defendant was charged.
Kim seems to have a willing partner in the EPA if David Uhlmann (the Biden administrations pick for the agencys enforcement branch) is confirmed by the Senate. He vowed to crackdown on violators during his confirmation hearing.
His confirmation was stalled in Senate due to a blanket stop on EPA nominations by Sens. Cynthia Lummis, R-Wyo. Bill Cassidy, R-La.).
