by Steven P. Solow and Chloe Graham

The Assistant Administrator for EPA’s Office of Enforcement and Compliance Assurance (OECA) announced a new Strategic Civil-Criminal Enforcement Policy (Policy) that is perhaps the most significant change in environmental enforcement since the passage of the basic environmental laws decades ago. At bottom, the new Policy addresses the long-standing concern that the decision to enforce a matter civilly or criminally ultimately depended on whose “desk” it landed on.

The new Policy, effective immediately, mandates that the entire EPA coordinate and communicate, not only at the outset of an investigation, but even months after an investigation has begun, to determine whether the matter should be pursued as administrative, or civil or criminal or both.

This Policy transforms the entire EPA enforcement docket. Those subject to a civil investigation have no assurance that their case will necessarily stay in the civil camp, and those subject to criminal enforcement may have new opportunities to suggest that criminal prosecution is inappropriate in their matter.

The Policy is also comprehensive as it includes not only case screening changes, but also changes in case docketing, case management, agency-wide training, enhanced data analytics and processes for internal dispute resolution regarding the agency’s approach to individual cases. Key to the decision making will be whether an investigation, civil or criminal, has identified “equities” that push the case in one direction or another. This means that a criminal investigation that reveals ongoing violations or pollution may shift to civil to obtain injunctive relief. Similarly, a civil investigation that reveals potential tampering or falsification, or other indicia of “knowing” misconduct may shift to criminal.

Civil and Criminal Enforcement Programs Consultation Requirements

The Policy requires civil and criminal enforcement managers to meet regularly, at minimum monthly. Case developments must be discussed so that both civil and criminal enforcement programs are informed with the latest developments in existing cases. Of course, in criminal investigations that have proceeded to a grand jury, there are limits on such disclosures. Enforcement leaders will be required to engage in cross-program discussions whenever there is a pressing matter that is of interest to the other program, such as noted above, if evidence of “knowing” misconduct arises during a civil investigation.

Collaborative Case Screenings to Enable Strategic Decision Making

A primary goal of the new Policy is to integrate the case screening/case opening process to determine whether a matter should be investigated as a civil, criminal, or administrative matter. This includes determining whether parallel proceedings are warranted, and opening new matters requires review by both the civil and criminal enforcement programs.

Thus, the civil enforcement program will learn more about new criminal investigations. The goal is to seek to ensure that the civil program is aware of the companies and issues that are subject to criminal investigation and that the criminal enforcement program is informed about the compliance history of facilities under criminal investigation, including prior civil enforcement for similar violations. This connects to the long-standing policy of EPA that a history of repeated civil violations is a factor that may drive a matter towards criminal investigation. In parallel fashion, the Policy aims to better identify matters that are more appropriately handled civilly, where perhaps a matter is a “first offense” or where a regulation is subject to legal uncertainty where the rule of lenity would make a matter better suited for civil enforcement.

The Policy also commands civil enforcement to affirmatively inform the criminal investigation program of emerging evidence such as “falsification of data, concealment of evidence, or other deceptive or misleading conduct,” or chronic non-compliance, with the clear direction that such evidence should then be considered as a trigger for a criminal investigation to commence.

If the criminal and civil enforcement offices are unable to reach consensus at any point regarding compliance with the Policy, the Policy provides that such issues should be elevated to the relevant Regional Counsel, OECA Director, and Special-Agent-in Charge for resolution.

Continued Coordination and a Direction to “fish or cut bait”

In addition to continued coordination and sharing of information throughout case investigations, the Policy, for the first time, sets public timeframes for enforcement matters. The goal is to have a “clear direction in the first year about how the action will be handled” to enable judicial cases to be filed, charged, or concluded within two to three years.

This could be of immense importance. While a relatively small number of environmental criminal cases are ultimately prosecuted, there are hundreds of criminal investigations that in the end are either declined or become civil matters. The toll of a criminal investigation itself can be enormous. When an investigation continues for years, that toll is amplified.

As before, civil and criminal investigations that proceed at the same time must follow OECA’s Parallel Proceedings Policy.

To better manage these changes, a nation-wide case tracking system will be developed. While it may surprise some to learn that this doesn’t yet exist, it will now and serve to support and oversee the mandated coordination and data-sharing the Policy requires. The tracking system will be designed to be used from initial case screening until resolution and include screening information such as historical company or facility information.

Trainings on Best Practices for Civil-Criminal Coordination and Safeguarding Against Information Misuse

Recognizing that this Policy represents a signal change in EPA practices, the Policy mandates trainings that civil and criminal enforcement program managers and staff must receive, including trainings on how screenings should be conducted and when information should be shared across enforcement programs. Civil enforcement personnel will learn the kinds of information that must be shared with the criminal enforcement program, such as evidence of knowing or negligent conduct and chronic violations. At the same time, the Policy will seek to prevent the criminal enforcement program from using civil enforcement tools to gather evidence for a criminal case. That may present a significant challenge, given the extent of required coordination and consultation.

Impacts on the Regulated Community

Entities that are currently the subject of civil enforcement matters will presumably learn in the coming months whether their case is shifting into a criminal investigation or a parallel civil and criminal matter. Those who are the subject of criminal investigations may appropriately seek to assess whether there are strong indicators that would push their matter towards civil. The new Policy should also be seen in the light of other EPA and DOJ policies. For example, DOJ has made a push for enhancing voluntary self-disclosures. Entities that self-identify compliance shortcomings will have even more reason to consider seeking the potential for leniency for those that come forward. At bottom, of course, the best response is not to be the subject of investigation. While no compliance program can prevent all violations, the new Policy suggests that a thorough review of the strengths and shortcomings of existing efforts, and the state of an organizations compliance culture, will be a prudent use of resources.

Steven P. Solow is a Partner and Chloe Graham is an Associate at Baker Botts LLP. This post first appeared on the firm’s blog. 

The views, opinions and positions expressed within all posts are those of the author(s) alone and do not represent those of the Program on Corporate Compliance and Enforcement (PCCE) or of the New York University School of Law. PCCE makes no representations as to the accuracy, completeness and validity or any statements made on this site and will not be liable any errors, omissions or representations. The copyright of this content belongs to the author(s) and any liability with regards to infringement of intellectual property rights remains with the author(s).