Unless overturned, there are several new environmental reporting obligations that the regulated community will need to consider (see “A ‘Slew’ of Major Environmental Regulations”). On the heels of these new obligations, on April 17, 2024, the Environmental Protection Agency (EPA) issued its “Strategic Civil-Criminal Enforcement Policy.”
The new EPA policy, “mandates joint strategic planning, rigorous case screening, and regular communication throughout the life of an enforcement matter” (Source: EPA). David Uhlmann, Assistant Administrator for EPA’s Office of Enforcement and Compliance said, “A fair and robust enforcement program requires strong alignment between EPA’s civil and criminal enforcement programs to hold polluters accountable, deter violations, and protect communities.”
Criminal investigations opened by the EPA were up by 70% in 2023 compared to 2022 (199 compared to 117). This is still lower than 2020, which saw 247 criminal cases opened.
Collaborate Strategic Planning Between EPA Civil and Criminal Offices
The policy is effective immediately and establishes four requirements to promote “collaborative strategic planning” between the civil and criminal offices.
- Increased collaboration between the civil and criminal enforcement programs on the development and implementation of EPA’s national and regional priorities, including the National Enforcement and Compliance Initiatives (NECIs) and regional strategic plans;
- Enhanced case screening to promote fairness and consistency and robust discussion of what enforcement option should be utilized to address violations, including whether parallel proceedings should be initiated, and continued coordination throughout each enforcement action to ensure those initial case choices protect public health and the environment;
- Improved case management through enhanced tracking of case screening that promotes information sharing about violations and ensures ready access to compliance histories and case developments, while maintaining enforcement confidentiality; and
- Updated training programs to ensure effective partnership between civil and criminal enforcement offices that include the requirements of this Policy, factors to consider in deciding whether to pursue criminal, civil, or administrative enforcement, and best practices for managing information sharing and parallel proceedings to prevent case delays.
Environmental Lawyers Comment on New EPA Policy
Viewing this new policy optimistically, perhaps more criminal matters will be reclassified as a civil matter. A more jaundiced view might suggest that more civil matters will turn into criminal matters.
Several law firms have weighed in on this new policy with a variety of views. Below we share excerpts from some of the legal blogs on this topic.
“As an academic, AA (Assistant Administrator) Uhlmann studied and was critical of what he asserted was a bipartisan decline in the number of criminal environmental prosecutions from 2005 to 2018. EPA’s new Policy appears to represent his desire to change that direction” (Winston & Strawn).
“Under EPA’s new enforcement policy, entities in a civil EPA enforcement matter may find their case converted into a criminal matter. At the same time, entities involved in EPA criminal enforcement may be able to argue that their case should be a civil matter” (Scarinci Hollenbeck).
“While this approach may not be new in some jurisdictions, what is new is EPA’s mandate for civil and criminal to coordinate/meet regularly. In turn, if EPA’s civil and criminal investigative teams are coordinating monthly, it is inevitable that EPA’s civil and criminal investigative teams will coordinate as frequently with their enforcement partners at DOJ and across the 93 U.S. Attorney’s offices across the country” (Woods Rogers Vandeventer Black).
“Notably, the Policy explains that a civil matter yielding evidence of falsification of data, concealment of evidence, or other deceptive or misleading conduct warrants criminal review, as does chronic non-compliance or facilities with continued violations despite prior enforcement efforts” (K&L Gates).
“While the policy dramatically redefines how the EPA intends to optimize its enforcement program, it does not substantively change – at least on its face – which cases the agency will pursue under each type of respective enforcement response, dating back to the 1994 Devaney Memo, reiterating: ‘Criminal enforcement should be reserved for the most egregious violations. Civil enforcement provides a powerful tool to seek justice for communities, including significant monetary penalties and court-ordered injunctive relief. Administrative enforcement enables the EPA to respond rapidly to penalize violators and ensure compliance in cases that do not warrant judicial relief’” (Spencer Fane).
“…the new policy encourages a strong partnership between EPA’s civil and criminal enforcement offices, arguing that cooperation and strategic planning will promote the efficacy of other enforcement processes, including case screening, national enforcement initiatives, regional strategic planning, and the PFAS Roadmap” (Barnes and Thornburg).
New EPA Policy Take Aways
Viewing this new policy optimistically, perhaps more criminal matters will be reclassified as a civil matter. A more jaundiced view might suggest that more civil matters will turn into criminal matters. In any regard, with the continued robust environmental regulatory activity, it may be wise to discuss these developments with your environmental advisors (legal and technical).
If you need assistance with an environmental issue, contact Jeffrey Bolin, M.S., CHMM, at 248-932-0228, Ext. 125.
Dragun Corporation does not use artificial intelligence in drafting our blogs or any other material.
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 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 the blog. Jeff is a partner and senior scientist at Dragun Corporation. He is a published author, frequent speaker, and 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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