Keeping Government Environmental Investigations Civil

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).