Daniel T. McKillop
Partner
201-896-7115 dmckillop@sh-law.comAuthor: Daniel T. McKillop|April 29, 2024
Parties involved in a civil enforcement matter by the U.S. Environmental Protection Agency (EPA) could soon find themselves facing even more serious criminal liability. On April 17, 2024, the EPA’s Office of Enforcement and Compliance Assurance announced a new “Strategic Civil-Criminal Enforcement Policy” (Policy). The Policy is effective immediately and applies to all civil and criminal enforcement staff and all enforcement matters moving forward.
The new Policy requires the entire EPA to coordinate and communicate throughout an investigation to determine (and potentially redetermine) whether an enforcement case should be pursued as (a) an administrative matter, (b) a civil or criminal matter, or (c) both a civil and a criminal matter simultaneously. According to the EPA, the goal of the new policy is to strengthen the strategic partnership between civil and criminal enforcement.
The EPA’s primary task is to enforce Federal environmental laws. Enforcement can take several forms, including both civil and criminal actions.
One of the key distinctions between environmental civil and criminal enforcement actions is that civil liability is strict. This means that it arises simply through the existence of the environmental violation and does not take into consideration what the responsible party knew about the law or regulation they violated. Conversely, criminal liability generally requires proof beyond a reasonable doubt that the defendant knowingly violated the environmental law, meaning that the person or company was aware of the facts that created the violation.
Many federal environmental statutes include both civil and criminal penalties, which gives the EPA discretion when deciding whether a particular matter warrants criminal, civil, or administrative enforcement. In its latest Strategic Civil-Criminal Enforcement Policy, the EPA calls for closer coordination between its civil and criminal offices in making such decisions. It states:
A strong partnership between EPA’s civil and criminal enforcement offices—characterized by joint strategic planning, rigorous case screening, and regular communication—will enable EPA to realize the full benefits of the environmental laws and promote greater fairness in enforcement. National and regional initiatives will be most successful if they include both criminal and civil cases. Civil and criminal enforcement managers should review inspection reports and other information regarding alleged violations to determine the appropriate enforcement tools for each matter and revisit those choices as cases progress. Information sharing should be a two-way street to promote optimal enforcement.
The EPA’s new Policy specifically calls for increased collaboration between the civil and criminal enforcement programs on the development and implementation of EPA’s national and regional priorities. It also mandates enhanced case screening and “robust discussion” of what enforcement option should be utilized to address violations, including whether parallel proceedings should be initiated.
Of particular importance for parties facing an EPA enforcement action, the Policy lists factors that EPA staff should take into consideration in deciding whether to pursue criminal, civil, or administrative enforcement. They include:
Key Takeaway 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. Both of these possibilities highlight the importance of working with an experienced environmental attorney who can effectively negotiate with the EPA on your behalf.
Partner
201-896-7115 dmckillop@sh-law.comParties involved in a civil enforcement matter by the U.S. Environmental Protection Agency (EPA) could soon find themselves facing even more serious criminal liability. On April 17, 2024, the EPA’s Office of Enforcement and Compliance Assurance announced a new “Strategic Civil-Criminal Enforcement Policy” (Policy). The Policy is effective immediately and applies to all civil and criminal enforcement staff and all enforcement matters moving forward.
The new Policy requires the entire EPA to coordinate and communicate throughout an investigation to determine (and potentially redetermine) whether an enforcement case should be pursued as (a) an administrative matter, (b) a civil or criminal matter, or (c) both a civil and a criminal matter simultaneously. According to the EPA, the goal of the new policy is to strengthen the strategic partnership between civil and criminal enforcement.
The EPA’s primary task is to enforce Federal environmental laws. Enforcement can take several forms, including both civil and criminal actions.
One of the key distinctions between environmental civil and criminal enforcement actions is that civil liability is strict. This means that it arises simply through the existence of the environmental violation and does not take into consideration what the responsible party knew about the law or regulation they violated. Conversely, criminal liability generally requires proof beyond a reasonable doubt that the defendant knowingly violated the environmental law, meaning that the person or company was aware of the facts that created the violation.
Many federal environmental statutes include both civil and criminal penalties, which gives the EPA discretion when deciding whether a particular matter warrants criminal, civil, or administrative enforcement. In its latest Strategic Civil-Criminal Enforcement Policy, the EPA calls for closer coordination between its civil and criminal offices in making such decisions. It states:
A strong partnership between EPA’s civil and criminal enforcement offices—characterized by joint strategic planning, rigorous case screening, and regular communication—will enable EPA to realize the full benefits of the environmental laws and promote greater fairness in enforcement. National and regional initiatives will be most successful if they include both criminal and civil cases. Civil and criminal enforcement managers should review inspection reports and other information regarding alleged violations to determine the appropriate enforcement tools for each matter and revisit those choices as cases progress. Information sharing should be a two-way street to promote optimal enforcement.
The EPA’s new Policy specifically calls for increased collaboration between the civil and criminal enforcement programs on the development and implementation of EPA’s national and regional priorities. It also mandates enhanced case screening and “robust discussion” of what enforcement option should be utilized to address violations, including whether parallel proceedings should be initiated.
Of particular importance for parties facing an EPA enforcement action, the Policy lists factors that EPA staff should take into consideration in deciding whether to pursue criminal, civil, or administrative enforcement. They include:
Key Takeaway 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. Both of these possibilities highlight the importance of working with an experienced environmental attorney who can effectively negotiate with the EPA on your behalf.
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