The government devotes substantial resources and employs aggressive strategies to investigate and prosecute environmental crimes. The immediate and collateral consequences of a criminal investigation can be grave. Even the appearance of wrongdoing may generate adverse publicity, leading to a crisis in customer or investor confidence. A review of all environmental criminal investigations in which the U.S. EPA served a search warrant found that the government filed criminal charges against the alleged violators 67 percent of the time. The conviction rate for those defendants consistently runs near 90 percent. Today, 70 percent of the defendants charged in environmental criminal cases are individuals. The government focuses upon individual liability because individuals cannot pass incarceration on to their customers as a cost of doing business.
Baker Botts has represented clients in connection with criminal investigations under most major federal environmental laws, such as the Clean Water Act, the Clean Air Act and the Resource Conservation and Recovery Act. Several of our lawyers previously prosecuted environmental criminal cases while serving as Assistant U.S. Attorneys and trial lawyers for the U.S. Department of Justice, and thus our team understands the government’s investigative priorities and methods. Our lawyers are also familiar with defending other types of violations related to environmental crimes including wire fraud, false statements and obstruction of justice charges.
In many criminal prosecutions, the government may target not only the company employees who engaged in improper activities (such as the unauthorized dumping or discharge of pollutants), but also high-level corporate officers aware of the activities, regardless of whether they knew these activities violated environmental requirements. Thus, the government’s emphasis on criminal enforcement as a primary tool for ensuring compliance with environmental regulations demands constant vigilance and attention in order to protect companies and their officials from the threat of possible criminal liability.
Baker Botts lawyers have the essential skills and experience necessary to help clients address the difficult issues that arise in the criminal enforcement setting. We understand the process from preliminary inquiries by a special agent through sentencing; our lawyers possess a clear knowledge of the governmental players and the factors necessary to avoid or mitigate criminal liability. For example, our former federal prosecutors understand how the U.S. Sentencing Guidelines affect case selection by agents and sentencing recommendations by U.S. Probation. We understand the U.S. EPA’s methodology for conducting investigations. And our lawyers also have full command of the range of tools a prosecutor has beyond an indictment—including non-prosecution and deferred prosecution agreements.
Civil consequences such as disqualification, suspension, and debarment from federal government contracting can result from criminal violations of certain environmental laws. Our lawyers have the experience to negotiate these issues with federal officials and help clients minimize the application of regulations and policies that can have negative and far-reaching implications for businesses.
Trends, American Bar Association Section of Environment, Energy, and Resources Newsletter, Vol. 48 Issue 2