The Future of Environmental Enforcement Under the New "Justice Manual"
As he leaves office this week, Deputy Attorney General Rod Rosenstein will be rightfully honored for countless contributions to the rule of law. Among these will be the recently issued Justice Manual and, notably for environmental lawyers (although perhaps missed by some), overseeing reforms impacting environmental enforcement.
The Justice Manual serves as a convenient compilation of hundreds of distinct DOJ policies that guide the work of lawyers at Main Justice and across the 93 U.S. Attorney’s Offices. For the public, it is also a helpful resource for better understanding the DOJ generally. Updating the Justice Manual—the first such effort in 20 years—has made a valuable contribution to law enforcement and good government. And, taken together, the Justice Manual and related reforms at the Environment and Natural Resources Division (ENRD) and elsewhere at the DOJ should improve environmental enforcement in several ways.
First, the Justice Manual recalibrates how the DOJ prosecutes cases, including environmental enforcement matters.
For example, the Justice Manual now limits the use of agency guidance documents. In environmental matters, where the government’s case often involves reference to a complex mix of statutes, regulations, agency documents and industry practices, this change should have real impacts. The manual still allows prosecutors to use guidance documents for “evidentiary purposes,” among other things, so long as they “do not treat such documents as creating by themselves binding requirements that do not already exist by statute or regulation.” Moreover, by requiring prosecutors to charge and pursue the “most serious, readily provable offenses,” the Justice Manual should lead environmental prosecutors to pursue targeted charges focused on the most serious violations.
Second, the Justice Manual clarifies the circumstances under which companies may receive "cooperation credit" for working with federal prosecutors to expose criminal acts by individuals.
For these purposes, corporations must disclose individuals who were “substantially involved in or responsible for the criminal conduct,” not every individual, regardless of culpability as previously required. For civil cases, the Justice Manual explains that the amount of credit depends on the level of cooperation, with “maximum credit” for “timely self-analysis” and “proactive” voluntary disclosure and lesser credit for cooperation that is imperfect yet “meaningful.
Third, the Justice Manual reforms how DOJ resolves civil and criminal environmental cases.
In cases involving multiple federal, state or local enforcement authorities (a common dynamic in environmental matters), the manual calls for greater coordination and seeks to “avoid the unnecessary imposition of duplicative fines, penalties and/or forfeiture against the company.” In Rosenstein’s words, federal prosecutors should avoid “piling on.”
Further, the Justice Manual bans payments to third parties in civil and criminal settlements except where the payment is done to directly remedy the harm, particularly the environmental harm, caused by the violation. Recent DOJ policies also reiterate that environmental mitigation—a frequent component of relief in environmental cases—should be calculated to address the extent of actual harm and cannot be used to penalize defendants. These two reforms may do more to impact environmental settlements than any other recent change.
Additionally, a November 2018 directive from former Attorney General Jeff Sessions limits the use of consent decrees in civil enforcement cases against state and local governments. Frequently, cities and counties are defendants in water, sewer and other environmental cases. Under the Sessions policy, consent decrees with government entities should be reviewed at higher levels within the DOJ, “narrowly tailored,” and of limited duration (with recognition for special scenarios where “extended compliance schedules” are needed for "significant capital investments”).
Fourth, new DOJ documents help clarify the line—sometimes blurred in environmental cases—between events that may lead to criminal prosecution as opposed to civil enforcement alone.
Unlike most criminal laws, some federal environmental statutes, such as the Clean Water Act and Clean Air Act, impose criminal liability for negligence or, as is the case under the Migratory Bird Treaty Act, for acts with no criminal mindset at all. Recent ENRD memoranda, while not expressly included in the Justice Manual, emphasize that evidence for “potential criminal liability” in environmental cases includes “evidence of falsification of data, concealment of evidence, or repeated violations despite prior enforcement efforts.”
These ENRD documents also explain that criminal prosecution is "most likely" to occur "where the facts show a requisite criminal intent, and the conduct creates a serious danger or risk of danger, has severe environmental effects, disregards human safety or the environment, involves dishonest or false conduct that undermines the statutory scheme, or involves repetitive significant violations notwithstanding administrative and civil enforcement efforts to obtain compliance.” Bearing these distinctions in mind should prove helpful to prosecutors and defense attorneys alike as they evaluate enforcement paths in specific cases.
Undoubtedly, the Rosenstein tenure, the Justice Manual and related policies will shape federal enforcement—including environmental enforcement—for years to come. As Deputy Attorney General Rosenstein said in remarks at a recent ENRD ceremony, the DOJ exists to “enforce the laws enacted by the Congress” and “federal enforcement focuses on the pursuit of the truth, wherever the facts may lead.”
*Reprinted with permission from the “May 6, 2019” edition of the “National Law Journal”© 2019 ALM Media Properties, LLC. All rights reserved.
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