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Environmental Cops Eye Return to Obama-Level Criminal Case Rates

Feb. 22, 2022, 11:00 AM

The Justice Department’s push to prioritize criminal prosecutions for environmental crimes seeks to return the agency to pre-Trump administration enforcement levels, but not to dramatically exceed them.

That clarification from Justice Department officials sheds light on recent public remarks by Todd Kim, assistant attorney general for Justice’s Environment and Natural Resources Division (ENRD), who said his group “will prioritize prosecuting individuals who commit and profit from corporate malfeasance.”

Justice wants to reverse a sharp decline in criminal prosecutions during the Trump administration, a senior ENRD official who specializes in environmental crimes, and who spoke on condition of anonymity, told Bloomberg Law.

The number of environmental criminal prosecutions never topped 100 per fiscal year under President Donald Trump, after averaging well over 100 during the Obama administration, according to Syracuse University’s Transactional Records Access Clearinghouse.

The department’s position suggests that, in at least some cases, “environmental misdemeanor cases that were either not pursued at all, or were instead pursued through civil enforcement, will now be investigated as crimes, particularly if they have a nexus with environmental justice communities,” said Matt Leopold, a former EPA general counsel under Trump.

Personnel Issues

To demonstrate that ENRD isn’t going to ramp up criminal prosecutions to previously unforeseen levels, the Justice official noted that the environmental crimes section hasn’t gotten any new resources of late and only has 36 attorneys, putting limits on how many criminal cases the department can push forward.

The environmental crimes section has seen a 15% reduction in staff since January 2017, although the division has been granted authority to hire two more employees.

Personnel is an issue at the Environmental Protection Agency, too—an important factor because most environmental investigations at Justice are triggered by EPA referrals. Rod Rosenstein, the former deputy attorney general under Trump, said the primary way to develop more cases is to “increase the resources devoted to that area.”

But the EPA’s Criminal Investigation Division only has some 160 investigators, and hasn’t had its full statutory complement of 200 in at least the last decade, the Justice official said.

Wyn Hornbuckle, a Justice spokesman, said ENRD will “continue to pursue criminal prosecution where the facts and evidence of a crime can be proven in court beyond a reasonable doubt, for both individuals and corporations who may be culpable.”

Larger Cases

Under Trump, the Justice Department said its numbers were down in part because it was focusing on larger, more complex cases. Any increase in cases isn’t likely to be seen for several months at least, given how long it takes to investigate and prosecute cases, according to Leopold, now a partner with Hunton Andrews Kurth LLP.

In the immediate future, Justice’s criminal division is likely to focus on Clean Air Act cases, which have the potential to bend the curve on climate change, in line with the Biden administration’s goals, according to the Justice official. Other types of cases, including Clean Water Act cases, haven’t been referred to Justice as often, he said.

Managers and executives further down a company’s supply chain will also be a focus of criminal prosecution, according to Todd Mikolop, a former ENRD trial attorney and now counsel at Hunton Andrews Kurth LLP. Kim said in his remarks that companies seeking credit for cooperation “will need to identify all individuals involved in misconduct.”

Another possible result of the push for more criminal prosecutions is tougher scrutiny of facilities in low-income communities of color, according to Steve Solow, former chief of Justice’s environmental crimes section and now a Baker Botts LLP partner.

Solow envisions prosecutors seeking input from environmental justice communities to identify concerns that could lead to investigations, or canvassing for information to help them decide whether to prosecute.

In the meantime, the department is working on a comprehensive environmental justice plan. Hornbuckle said ENRD focuses on “the most egregious and harmful conduct endangering public health and the environment, including in underserved communities who have born a disproportionate burden from pollution.”

A Long-Standing Goal

Broadly, the goal of pursuing individual criminal prosecutions is a long-standing Justice Department priority that makes sense because it ensures the government isn’t penalizing the wrong people, such as employees or shareholders who had nothing to do with the wrongdoing, said Rosenstein, now a partner at King & Spalding LLP.

Peter Hsiao, a former senior trial lawyer at Justice, agreed, saying criminal prosecution “is a very potent weapon to create the deterrence effect that will bring large-scale compliance.”

Environmental prosecutions tend also to be popular with the public, said Hsiao, now a King & Spalding LLP partner. That could give the Biden administration added incentive to aggressively pursue corporate polluters.

But the department will have to be careful not to go too far, because overly zealous prosecutions could trigger criticisms that the administration is hurting U.S. competitiveness.

That concern has occurred to Richard Glaze, a former special assistant U.S. attorney and former EPA senior enforcement counsel, who warned about the possibility of overcriminalization because the difference between a civil and criminal case is so small.

“It’s a matter of mental state, and the mental state that’s required to be proven for a criminal case is a very low bar for the government,” said Glaze, now a partner at Barnes & Thornburg LLP.

Glaze also said, however, that he doesn’t believe that ENRD has an “institutional predisposition toward overcriminalization.” That view was confirmed by a senior Justice official, who said the agency must stick to long-established principles of federal prosecution.

Willing Partner at EPA

The Biden EPA has already started toughening up.

In fiscal 2021, the agency opened 123 new cases, and an individual defendant was prosecuted in 88% of the criminal cases charged.

Kim appears to have a willing partner at the EPA if the Senate confirms David Uhlmann, the Biden administration’s pick to lead the agency’s enforcement branch, who vowed in his confirmation hearing to crack down on violators.

His confirmation has stalled in the Senate by a blanket hold on EPA nominations from Sens. Cynthia Lummis (R-Wyo.) and Bill Cassidy (R-La.).

To contact the reporter on this story: Stephen Lee in Washington at stephenlee@bloombergindustry.com

To contact the editor responsible for this story: Chuck McCutcheon at cmccutcheon@bloombergindustry.com