On June 21, 2021, EPA Acting Assistant Administrator Lawrence Starfield issued a unique memorandum setting up steps outlining how EPA will work with the Department of Justice (DOJ) to aggressively utilize existing resources to “strengthen enforcement of violations of cornerstone environmental statutes” in communities overburdened by pollution. The memo was addressed to senior managers and special agents; the Office of Criminal Enforcement, Forensics and Training; Regional Criminal Enforcement Counsels; and Offices of Regional Counsel.
Companies are advised to ensure they have a clear understanding of their environmental justice (EJ) risk profiles, the unique challenges associated with criminal investigations, and the importance of having a crisis response plan, according to an article by the international law firm Baker Botts, LLP published in Mondaq.
The EPA memo details processes the criminal enforcement program can use to further EJ “by strengthening tools for the detection of environmental crimes in overburdened communities, improving outreach to the victims of such crimes, and ensuring that [EPA] investigations are structured to provide maximum assistance to the [DOJ] in its exercise of prosecutorial discretion and pursuit of remedies that will guarantee adequate protection for those communities.”
The Baker Botts article summarizes EPA’s planned actions as follows:
- Enhanced Communication between EPA Civil and Criminal Staff – EPA recommends that civil and criminal staff maintain regular and open communication regarding increased facility inspections in overburdened communities. Historically, communication between the civil and criminal components of EPA has been discouraged, and it was rare for a civil case to ‘turn’ criminal. This directive will increase the likelihood that civil enforcement matters in overburdened communities will be referred for criminal investigation.
- Impact of Early Outreach to Environmental Crime Victims – EPA advises case teams to use crime victim data and other relevant information to ensure the proper identification of individuals harmed by purported environmental crimes in overburdened communities. EPA is also considering creative avenues for directly communicating with environmental crimes victims, such as use of social media platforms, with the intent, in part, to integrate environmental crime victim concerns into every investigation and prosecution and identify first-person testimony of harm to bolster enforcement outcomes.
- Cross-Training of EPA and DOJ Staff on EJSCREEN and Other Tools – EPA will form an Environmental Justice Workgroup for EPA and DOJ staff focusing on the use of EPA’s EJSCREEN mapping tool and the identification of crime victims. Training will be provided to EPA [EJ] staff on the criminal enforcement process to enhance cross-referrals. Historically, environmental criminal investigations have arisen in the context of catastrophic events, or in the face of blatant violations of the law. The use [of] geospatial mapping tools in conjunction with criminal enforcement training of EPA civil personnel will almost certainly lead to broader categories of conduct being at risk for criminal investigation.
- Focus on Environmental Justice Remedies – EPA has directed that investigations be conducted in a manner that facilitates the identification of remedies that meaningfully protect overburdened communities and victims of environmental crimes. Notably, the memorandum emphasizes that ‘EPA recognizes that punishment for environmental crimes must be sufficient to achieve the goal of deterrence.’ Further, EPA’s [EJ] Workgroup will develop guidance for agency attorneys and prosecutors to ensure restitution, community service payments, and other court-ordered projects supporting overburdened communities are considered in all cases identified as having [EJ] concerns. Historically, investigations have focused primarily on identifying misconduct and proving the elements of the alleged crime. Expanding the scope of the investigation to include information relevant to potential remedies may significantly increase the duration of the investigation and make it even more difficult to discern the potential charges at issue.