Criminal Enforcement of Environmental Laws
The criminal enforcement of environmental law is very much alive and remains an extremely potent weapon wielded by the Government in order to enforce environmental laws. Consider the following examples:
?1995: the Summitville Mining Corporation pleads guilty to a variety of criminal counts related to violations of the Clean Water Act and is sentenced to a $20,000,000 fine.
?2000: Central Industries, Inc., a poultry rendering plant in Forest, Mississippi, pleads guilty to 26 felony counts related to illegal discharges and is sentenced to a $13,000,000 fine plus $1,000,000 in restitution.
?2004: Tyco Printed Circuit Group is sentenced to $10,000,000 fines in connection with 12 violations of the Clean Water Act.
If the above examples have not gotten your attention, consider the following: a phalanx of armed men with matching stenciled windbreakers at the front door of your plant with guns drawn demanding access. While it might seem like they are looking for a methamphetamine laboratory at the wrong address, the painful truth is that they are exactly where they want to be. They have not come to arrest a drug dealer or to ferret out dangerous terrorists, but to execute a search warrant which allows them to take thousands of your documents and many of the computers that you use to run your business. They're the Government and this time they're not here to help.
One of the most common misperceptions about the Government's criminal enforcement of environmental laws is that it only pursues large companies involved in wide-spread dumping of extremely toxic chemicals. That is not true. While such cases may attract an inordinate amount of media attention, history has shown that the Government casts a surprisingly wide net in environmental criminal prosecutions. In 1998, for example, the Government indicted the line serve manager of an aviation support company for dumping airplane lavatory waste into a storm sewer. Similarly, in 1996, the Government indicted an employee of a septic company for pumping 500 gallons of raw sewage and river water into the Rio Grande River.
Believe it or not, almost all of the prominent Federal environmental laws contain provisions which allow for the imposition of criminal liability. While there are no readily available public statistics on the number of criminal environmental prosecutions, anecdotal evidence suggests that the Government continues to push such prosecutions. Indeed, in speeches and presentations, Government officials have indicated their intent to commence a broader national enforcement effort linking environmental compliance with worker safety issues. This "marriage" between traditional environmental statutes (such as the Clean Water Act and the Clean Air Act) and OSHA/worker safety areas, signals what may be a time of increased and enhanced enforcement efforts.
In light of the often draconian nature of environmental criminal liability, and the immense discretion the Government has in deciding whether to pursue a matter civilly or criminally, there is good reason why affected individuals and companies should identify, evaluate, and (to the extent possible) proactively minimize their potential criminal exposure.
The first line of environmental regulation is the state agency charged with enforcement of environmental laws. In the State of Alabama, for example, environmental regulation is within the primary jurisdiction of the Alabama Department of Environmental Management ("ADEM"). The Director of ADEM is Onis ("Trey") Glenn, III, and the General Counsel is Olivia Rowell. The ADEM website (which contains a great deal of helpful information) is http://www.adem.state.al.us/. To the extent that a matter becomes the subject of a state criminal investigation, it is referred by ADEM to the office of the State Attorney General (Troy King). There is also some coordination between State and Federal criminal enforcement efforts.
Not surprisingly, the Federal criminal enforcement scheme is a good bit more complicated. Within the EPA, the Criminal Investigation Division (the "CID") "investigates the most significant and egregious violators of environmental laws." The CID has 16 Area Offices and 25 Resident Offices and "participates nationwide in over 90 environmental crime task forces with federal, state and local law enforcement partners." In certain situations, the Federal Bureau of Investigation (through its own Criminal Investigative Division) will assist CID in environmental criminal investigations.
The actual litigating of a criminal case is handled by the Environmental Crimes Section of the United States Department of Justice (referred to as "ECS") in cooperation with local United States Attorneys Offices. ECS, which is based in Washington, D.C., is one of nine divisions of the Environment and Natural Resources Division of the Department of Justice ("ENR"). The current head of ENR is Assistant Attorney General Sue Ellen Wooldridge; the current head of ECS is David Uhlman.
In light of the often overlapping jumble of governmental agencies, identifying the person in charge for the Government is critical. Unfortunately, it is not always easy to tell who really is in charge.
This can lead to unfortunate situations where one agency is willing to make a deal while another is not. There is no easy solution to this problem, but it is important to keep the issue in mind as discussions and, if necessary, settlement talks, proceed. Historically, the vast majority of criminal environmental cases are settled before trial.
One of the more frustrating aspects of environmental law is that illegal conduct can frequently be pursued either civilly or criminally. The Government has tremendous discretion in deciding which route to pursue. Often, the Government's decision as to whether to pursue criminal or civil remedies will depend upon two factors: (1) whether any individuals were harmed by the alleged conduct, and (2) what the Government's perception of the defendant is. Accordingly, in the event of an environmental incident, it is critical for companies to (i) make a paramount priority the protection of human life and the environment, (ii) do whatever is possible to "wear the white hat" in responding to such incident, and (iii) respond promptly and, to the extent possible, transparently, to any such incident.
The need for transparency is critical because it is common for the Government to add an obstruction of justice count to any environmental indictment and/or to argue that subsequent efforts to "cover up" a problem are evidence of a criminal conspiracy. The Government may take the position that, at a certain point, a witness (or company) who refuses to cooperate is actively obstructing an ongoing criminal investigation and is thus subject to prosecution for that act alone. While the law certainly does not require complete obeisance to governmental whim, the precise line between permissible and impermissible may be difficult to draw.
The Government's infatuation with conspiracy is relatively easy to understand. Courts have long recognized that conspiracy charges occupy a unique position in criminal jurisprudence. A conspiracy charge can be used by the Government as a device for presenting to the jury a broad picture of a criminal enterprise. As such, a tremendous amount of profoundly prejudicial evidence can be paraded before the jury in a criminal prosecution.
