Companies should understand the significance of a June 21, 2021 U.S. Environmental Protection Agency (“EPA” or “Agency”) memorandum entitled “Strengthening Environmental Justice Through Criminal Enforcement.” Addressed to EPA personnel, including Senior Management and Special Agents with EPA’s Office of Criminal Enforcement, Forensics and Training, and Regional Criminal Enforcement Counsel with EPA’s Office of Regional Counsel, the memorandum outlines how EPA will work with the U.S. Department of Justice (“DOJ”) and use existing resources to more aggressively identify and prosecute environmental crimes committed in “overburdened communities.” A directive to focus investigative resources on particular communities and affirmatively consider criminal enforcement is unprecedented. Companies need to understand both their environmental justice risk profiles and the unique challenges associated with criminal investigations.
EPA’s most recent memorandum should be seen in the context of the Administration’s “whole of government” approach to environmental justice and also in conjunction with Attorney General Garland’s statements regarding environmental crime victims. EPA makes clear that while the Department of Justice (“DOJ”) retains prosecutorial discretion over environmental crimes, the Agency is taking steps to achieve environmental justice in criminal cases by strengthening tools for the detection of environmental crimes in overburdened communities, enhancing outreach to the victims of environmental crimes; and ensuring that EPA investigations are structured to maximally support the DOJ.
- 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 environmental justice 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 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 Environmental Justice 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 environmental justice 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.
Now, more than ever, it is important for companies to understand their risk profile with regard to environmental justice issues. We urge you to consider the ACELAS environmental justice resource, which provides a convenient framework for analysis. Equally important is understanding the unique risks associated with criminal enforcement and importance of having a crisis response plan in place. Baker Botts has many tools available for our clients to prepare for these dynamic and unpredictable times, including resources and webinars on Developments in Environmental Justice and What You Need in Your Corporate Toolkit.
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