United States
Green Investigations are Here: U.S. Department Of Justice Turns toward Environmental Enforcement Actions, Prioritizes Compliance Assistance
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Washington, D.C. (January 4, 2022) –Two
High-ranking Department of Justice officials (DOJ) announced that
Environmental regulatory issues are a priority for the Biden Administration
Enforcement over compliance assistance. Todd Kim, Assistant
Attorney General for DOJ’s Environment and Natural
Resources Division (ENRD), Deborah Harris of DOJ’s
Section on Environmental Crimes, indicated in mid-2018 2021
Individuals and companies should expect more from each other.vigorous enforcementWith an emphasis
Criminal enforcement. This policy is in direct contrast to the
Environmental Protection Agency’s Office of Enforcement
Compliance Assurance (OECA’s) previousStress on compliance and pollution mitigation
Instead of enforcement actionsBelow the prior
administration.
DOJ’s new policy to promote enforcement actions is
In keeping with the overall efforts of the Biden Administration
Toprioritize environmental justice. April
2021, as explained previously in a Lewis Brisbois Client Alert. OECA
Two memoranda were released directing enforcement teams that they should consider a
There are many tools available to resolve enforcement actions.
Increased inspections, restitution for victims and reparation
Environmental crimes and overstepping state regulators are two examples
necessary.
This raises questions about the validity of the above statement.
The extent of EPA’s legal authority to impose reparation
Restitution remedies for past environmental damage through an
For environmental enforcement or to sidestep the
Enforcement decisions by state authorities. The U.S. Supreme
Court’s April 2021 unanimous decision inAMG Capital Management, LLC, v. Federal Trade
CommissionFederal Trade was struck down
The long-assumed power of the Commission to demand restitution,
Should pause before bold attempts to impose comparable remedies where
The statutory authority is unclear.
However, DOJ announcements warn against an increased emphasis
Criminal enforcement, including individuals being sent to jail
Responsible for corporate malfeasance or criminal conduct
All throughout a business’ supply chain. Kim explained that
A corporation must exercise “due caution” throughout its operations
Supply chain If supplies come from a criminally corrupt source
source, “then [ENRD]The criminal responsibility will be considered
all the parts of that supply chain.” Kim also warned about the DOJ
Non-environmental “related” [criminal] charges,”
including smuggling and conspiracy, false statements, money, and smuggling
laundering.
The question then becomes, “What is the due-care standard?” and “How do I get it?”
What should a corporate actor do to evaluate such a standard within the context
Criminal and civil law.
Referencing the Lacey Act 16 U.S.C.
3371et seq.The law prohibits illegally harvested plants
Kim stated that plants and their products, including timber, are important to Kim:
“A corporate actor may be held responsible if it knew.
or should have known, in the exercise a due care
Illegally-sourced timber is not included in its supply chain. There is no
This ‘due-care’ obligation can be fulfilled by a single protocol.
This prohibition is fact-based. It cannot be evaded simply
A piece of paper that states the wood is legal. Rather,
A company can decide for itself whether it is able to fulfill its legal obligations.
The best way to ensure legality in your particular situation is to use the most efficient method
Sector and supply chain
Kim stated that “A corporation would do well to consult with.”
Protect yourself and your investments by taking care of it
Supply chain in light the possibility of criminal sanction;
Potential forfeiture and seizure of illegally-sourced lumber
goods, vessels and equipment; and the inability to provide services
innocent owner defense.”
Corporate actors must be proactive in monitoring their business
Avoiding possible civil and/or criminal penalties by having relationships is not an option.
unique. Parallels to Lacey’s Act of “due Care”
Standard can be found inthe due diligence standardsPlaced upon
Financial institutions must ensure compliance with OFAC rules
regulations.
Because of DOJ’s additional scrutiny.
Businesses should consider proactive measures to avoid being subject to enforcement actions
There are many ways to assess their compliance with environmental regulations.
Related statutes, including procedures to report accidents and
Possible violations
This article is meant to be a guide.
guide to the subject matter It is a good idea to seek specialist advice
Discuss your specific circumstances.
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