Incoming Biden Administration Signals Increase of Criminal Prosecutions for Environmental Violations

The Federal Docket

December 21, 2020

Legal commentators expect an increase in criminal prosecutions for environmental violations as the incoming Biden administration takes over the federal government. Whereas the previous administration directed federal agencies to prioritize “compliance assistance” over seeking civil or criminal penalties from companies or individuals in violation of environmental laws, the Biden administration is already signaling that it is going to take the opposite approach

The Biden administration will likely take a more expansive view of the Clean Air Act and Clean Water Act and prosecute suspected polluters under both of these laws. There are additional regulations under these acts as well, such as the National Emission Standards for Hazardous Air Pollutants, that will likely serve as a basis for criminal enforcement. Through these laws, the federal government will aggressively target corporations and individuals that appear to be violating environmental regulations relating to the improper discharge of pollutants and hazardous substances, knowing endangerment, false statements on compliance forms, export violations involving hazardous substances, and knowing and willful violations of the CAA or CWA’s regulations.

Most criminal prosecutions relating to environmental violations will be brought by the Department of Justice’s Environmental and Natural Resources Division, the ENRD. The federal government is also expected to significantly increase funding to states in order to increase state prosecutions of environmental violations.

The Biden administration has also stated that it would establish a new Environmental and Climate Justice Division with an eye towards increasing criminal prosecutions against corporations and individuals whose alleged environmental violations disproportionately harm low-income or racial minority communities. The proposed ECJD will work in connection with the ENRD in this new, aggressive approach to enforcing environmental laws.

In light of these developments, it is important for individuals and corporations to revisit their practices. Certain practices that were allowed under the previous administration will no longer be allowed under the incoming administration, so-called “loopholes” that exempted some companies from regulations under the CAA and CWA will likely close, and new rules, regulations, and possibly penalties will be enacted. There likely will be some public announcements and notices proposing certain rules changes or new regulations, but criminal prosecutions could come fast and without much warning or precedent.

 While individuals and corporations should be given fair notice of the changing laws and an opportunity to comply with the new regime, that doesn’t always happen. The Biden administration will likely seek to send a message early and loudly by targeting individuals and corporations who have not made significant efforts to update their practices. As such, it is important for them to know their rights and potential defenses when they are targeted by the government for alleged violations of environmental regulations.

One defense we may see is a corporation or individual invoking the Rule of Lenity in response to allegations that they have willfully violated environmental regulations. The Rule of Lenity provides that ambiguous laws must be interpreted in a way that benefits the person being charged with violating the law.  For example, the CWA penalizes discharging pollutants into the “water of the United States,” a legal term whose definition is interpreted differently by different administrations and courts. These environmental regulations are complex and quickly changing, and those charged with environmental violations may be able to argue that they acted in good faith or lacked adequate notice of what the law required. For that reason, it is important for companies to document their efforts to comply with the law and disclose their efforts to federal regulators. Many criminal laws relating to environmental regulations require that an offender knew their conduct was unlawful.

If you have received a target letter, are facing criminal or civil charges, or have concerns that you are in violation of federal environmental regulations, contact our firm. Our experienced federal defense lawyers can help you as the government begins targeting individuals and corporations as part of this aggressive new approach to enforcing environmental laws.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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