US Environmental Enforcement Shift Raises Questions from Lawyers

Corporate attorneys and former federal officials are praising the EPA’s bid to coordinate its civil and criminal enforcement teams as a sensible idea that will yield fairer outcomes, reduce unpredictability, and expedite resolutions.

But the plan will also have to be carefully executed, for fear of triggering unintended consequences—including the possibility that more borderline cases might tip into the criminal basket.

The new policy, issued April 17, seeks to ensure that the Environmental Protection Agency’s civil and criminal enforcement divisions are working together and applying their discretion fairly and consistently. Crucially, the plan requires more sharing of information between the two teams and enhanced case screening to make fairer, more consistent decisions about which enforcement option to use.

The policy is about “applying the right tool to the right problem,” according to Stan Meiburg, a longtime EPA staffer who once served as acting deputy administrator.

The policy shift comes as the EPA’s enforcement activity has been accelerating. In December, the agency said it opened 199 criminal investigations in fiscal 2023—a 70% increase over the previous year—and concluded 1,789 settlements, an increase of more than 150 over fiscal 2022.

David Uhlmann, head of the EPA’s enforcement corps, said in a statement that the policy, which took effect immediately, will help the agency “hold polluters accountable, deter violations, and protect communities.”

Escalating to Criminal Matters

If the civil and criminal teams are sharing more information, then cases that may bear signs of a knowing environmental violation but initially lack signs of more traditional criminality—like lying, cheating, and stealing—could be escalated from civil matters to criminal, according to Anne Carpenter, a partner at Hogan Lovells LLP.

Those kinds of case transitions are possible because the intent standard for most criminal environmental matters is simply that an act must be committed knowingly, not by mistake or accident, meaning it can be relatively easy for prosecutors to prove criminal intent, Carpenter said.

She noted that case escalations might only be an unintended consequence of the policy, not part of an intentional effort to bring more criminal cases.

But Kevin Minoli, former EPA acting general counsel, said most government policies are written with a goal of changing an outcome: increasing activity here, decreasing it there.

“The likely scenario would be more criminal enforcement activity than there has been, in part because the dockets are so different,” said Minoli, now a partner at Alston & Bird LLP. “There aren’t a lot of criminal enforcement cases where the civil side is completely unaware, but there are so many more civil actions than the criminal people can have eyes on.”

Defendants who fear their cases may be escalated into criminal matters could refer to the policy’s appendix, which lists factors meant to help agency personnel determine which matters may warrant both civil and criminal review. “Companies can use these too,” Carpenter said.

Not a Two-Way Street

At the same time, the information flow isn’t likely to be as free the other way around—from the criminal side to the civil—because of limitations placed upon the criminal team about information sharing. For example, under federal law, government attorneys can’t disclose grand jury information without a court order.

Meiburg said he considers it just as likely that, under the new policy, cases could deescalate from criminal to civil, based on the facts and circumstances.

“No one wants to make criminals out of honest people who make honest mistakes,” said Meiburg, now executive director of Wake Forest University’s environment and sustainability center.

A case could also move from criminal to civil if the government is considering potential knowing violations, but the application of the law to a criminal charge is vague, said Steve Solow, former chief of the Department of Justice’s environmental crimes section under President Bill Clinton.

In such a case, a legal principle that requires courts to apply ambiguous laws in the way most favorable to the defendant could tilt the scales toward civil enforcement, Solow said.

DOJ Coordination

Coordination with the Justice Department is another unanswered question.

It’s unclear whether the EPA will be able to execute key parts of the policy—such as a goal of filing, charging, or concluding judicial cases within two to three years—if the DOJ isn’t on board. That’s because Justice is the party that actually brings civil and criminal matters.

When asked if Justice would issue a matching or similar policy as the EPA’s, a DOJ spokesman directed Bloomberg Law to an existing part of its Justice Manual that addresses parallel criminal and civil proceedings.

But Solow said that’s not the same thing as a direct match of the EPA’s policy, which addresses ongoing evaluations of whether a case should be handled civilly, criminally, or both.

“The parallel proceeding policy applies if the decision is both,” said Solow, now a partner at Baker Botts LLP. “But that does not make the parallel proceedings policy of DOJ a companion policy to the new EPA enforcement approach.”

Culture Shift

Despite those misgivings, stakeholders universally agreed that the policy makes sense—in many cases to the point of bafflement that the EPA hasn’t prioritized it earlier.

“How something is enforced should not depend on whose desk it falls on,” Solow said.

The EPA’s Uhlmann recently told Bloomberg Law that, since being confirmed to his position last year, he has been pushing the civil and criminal teams to work together more.

The two sides have “historically been very separate,” said Grant Nakayama, who led the enforcement division under President George W. Bush and is now a partner at King & Spalding LLP.

Some of those differences are cultural, characterized by “different ways of operating and different personalities,” Minoli said.