DOJ Sounds Warning on Environmental Enforcement

Posted on 12/27/2021 by Roseanne Bottone

US EPA largely relies on administrative (i.e., non-criminal, civil) enforcement, reserving criminal enforcement for the most egregious cases. To discourage corporate environmental crimes moving forward, the Department of Justice (DOJ) is taking a tougher stance on going after individuals responsible for criminal acts.

In remarks at an environmental enforcement conference on December 14, an official from DOJ's Environment and Natural Resources Division (ENRD), said:

Only individuals can go to jail, and we have found that criminal corporate accountability starts with accountability for individuals responsible for criminal conduct.

Todd Kim, Assistant AG
Remarks prepared for ABA's Environmental Enforcement Conference (12/14/21)

The Assistant AG's remarks make it clear that DOJ takes accountability for environmental criminals seriously, and so does recent enforcement history: In FY 2020, EPA’s enforcement and compliance assurance actions resulted in 247 new criminal cases opened.

This number was 77 more than the year before and the most since 2014.

Civil vs. Criminal Environmental Violations

What is the difference between a civil environmental violation and a criminal violation? A violation of the regulations mandated by EPA may result in either civil or criminal penalties. The EPA describes the difference this way on its Basic Information on Enforcement webpage, as follows:

Civil Liability

According to EPA, environmental civil liability is strict; it arises simply through the existence of the environmental violation. It does not take into consideration what the responsible party knew about the law or regulation they violated.

In other words, a civil violation may be caused by an “oops, I made a mistake,” “I forgot,” an accident, or a lack of awareness.

Criminal Liability

Environmental criminal liability, meanwhile, is purposeful; there is intent. “In a ‘knowing violation,’ the person or company is aware of the facts that create the violation… Examples of ‘knowing violations’ include an intentional decision to dispose or dump pollutants into a river without a permit, or to not install a required air pollution control device.

In other words, a criminal violation is caused by a conscious and informed action. Most of the environmental crimes EPA investigates are “knowing violations,” which are usually classified as felonies and can include incarceration and/or six-figure financial penalties for criminal defendants who are convicted or plead guilty.

Read more about the difference between civil and criminal environmental liability on EPA's Basic Information on Enforcement webpage.

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Tags: environmental compliance, environmental crime, EPA and DOJ

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