A recent Executive Order (EO) by President Trump, while not solely focused on environmental regulations, does directly affect compliance and enforcement associated with environmental regulations.
The May 9, 2025, EO, “Fighting Over Criminalization in Federal Regulations,” begins with the statement “The United States is drastically overregulated.” The Order goes on to point out that the Code of Federal Regulations contains over 48,000 sections, including more than 175,000 pages. The EO also states that many of these regulations carry potential criminal penalties for violations.
Renewed Focus on Reducing Criminalization
This EO is a furtherance of an EO (Protecting Americans From Overcriminalization Through Regulatory Reform) by President Trump late in his first term. President Biden later revoked this order.
During President Trump’s first term, the environmental group, PEER, was critical of his approach to criminal environmental enforcement. In January 2019, they wrote, “Even before the government shutdown, the U.S. Environmental Protection Agency’s criminal enforcement program was missing in action…”
The May 9, 2025, Executive Order is entitled, “Fighting Over Criminalization in Federal Regulations.”
Intent of the Executive Order
The focus of the EO is to limit the use of criminal penalties to those instances when it is clear that the violating action was intentional. The order also requires agencies to publish a list of offenses that carry criminal penalties. This should be available in the Federal Register in June.
The Law Firm, Sidley, provides the following summary of the EO.
Disfavoring Strict Liability Offenses: The EO explicitly states that strict liability regulatory offenses — that is, those that do not require proof of intent (mens rea) — are “generally disfavored.” Agencies are directed to consider civil or administrative enforcement, rather than criminal prosecution, for such offenses.
Mens Rea Requirements: Agencies are instructed to review and, where possible, adopt a default mens rea standard for criminal regulatory offenses. Any deviation from this standard must be justified and documented.
Transparency and Public Notice: Within 365 days of the order, each agency must publicly post a list of all criminal regulatory offenses enforceable by the agency or the Department of Justice (DOJ), including the applicable mens rea standard and potential range of penalties. Criminal enforcement of offenses not included in these public reports is “strongly discouraged.”
Guidance on Criminal Referrals: Within 45 days of the order, agencies are required to publish guidance outlining the factors considered when referring regulatory violations to the DOJ for criminal enforcement. The EO states that agencies should consider factors such as the harm caused, the defendant’s gain, and whether the defendant had specialized knowledge or awareness of unlawfulness.
According to LexisNexis, Mens Rea is: “The ‘guilty mind,’ the intent element of an offence.”
The Law Firm, Baker Botts, concludes a blog on this EO with “Given the broad scope of the Executive Order, agencies will likely recalibrate their criminal enforcement approaches in highly complex regulatory areas such as environmental compliance (e.g., Clean Air Act Section 112), workplace safety (OSHA), food and drug regulation, and securities regulation, among others.”
See the Executive Order: Fighting Over Criminalization in Federal Regulations.
We will continue to keep an eye on the rapidly changing federal environmental regulatory landscape. In addition, while it is always a good practice to stay involved with local trade groups to monitor state regulatory developments, it may be increasingly important under the Trump Administration.
Environmental Advice
Dragun Corporation has assisted the regulated community with environmental compliance, assessment/remediation, and litigation support since 1988. If you need assistance with a PFAS-related issue, including litigation support, contact Jeffrey Bolin, M.S., CHMM, at 248-932-0228, Ext. 125.
Alan Hahn drafted this blog. Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management. He has worked in environmental management for more than 45 years. He has written hundreds of blogs and articles. His published work includes Michigan Lawyers Weekly, Detroiter, Michigan Forward, GreenStone Partners, Manure Manager Magazine, Progressive Dairy, and HazMat Magazine.
Jeffrey Bolin, M.S., reviewed this blog. Jeff is a partner and senior scientist at Dragun Corporation. He is a published author, a frequent speaker, and an expert witness. His expertise in environmental due diligence, PFAS, vapor intrusion, and site assessments has led to projects in the US, Canada, and overseas. See Jeff’s Bio.
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