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Keeping Government Environmental Investigations Civil
The threat of criminal environmental prosecutions is real. Most federal and state environmental statutes provide for criminal prosecution in appropriate circumstances, often for knowing violations of environmental law, but sometimes even on a negligence or strict liability basis. See, e.g., the Pennsylvania Solid Waste Management Act (strict liability, reckless disregard and knowing violations); the federal the Clean Air Act (CAA) and Clean Water Act (CWA) (negligence and knowing violations); and the federal Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) (knowing violations). The U.S. Environmental Protection Agency (EPA) maintains an Office of Criminal Enforcement, which refers cases to the U.S. Department of Justice (DOJ) for criminal prosecution.
The DOJ Environmental Crimes Section (ECS) makes much of the fact that from Oct. 1, 1998 through Sept. 30, 2014, it concluded criminal cases against more than 1,083 individuals and 404 corporate defendants, resulting in a total of 774 years of incarceration and $825 million in criminal fines and restitution. In fiscal year 2014, 271 criminal environmental cases were opened by the DOJ, resulting in 187 defendants being charged. See generally www.justice.gov/enrd/environmental-crimes-section. DOJ ECS also notes its coordination with state enforcement agencies: “In order to conserve resources and improve the efficiency of environmental enforcement efforts, ECS attorneys have often helped assemble environmental crimes task forces ' of federal, state, and local personnel, [which] have successfully identified and handled many environmental crimes cases.” See http://1.usa.gov/1FWU7pI. Conversely, state environmental regulatory agencies maintain civil investigative units that will refer appropriate cases for prosecution to their state Attorneys General or seek to work jointly with the “feds.”
Individuals are not exempt from prosecution. As a matter of policy, “[p]rosecution of a corporation is not a substitute for the prosecution of criminally culpable individuals within or without the corporation.” U.S. Attorney's Manual (USAM) at ' 5-11.114. Of course, federal Sentencing Guidelines contain specific provisions related to environmental crimes, with base offense levels allowing for incarceration. See, e.g., U.S.S.G. ” 2Q1.1-2Q1.3 (eff. Nov. 1, 2014).
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