More than 30 years after the Environmental Protection Agency (EPA) began hiring criminal investigators, questions persist about when the Justice Department and EPA will bring criminal charges for environmental violations. Congress made few distinctions under the environmental laws between acts that could result in criminal, civil, or administrative enforcement. The only mental state required for most environmental crimes is knowledge of the facts (not knowledge of the law), which also does little to differentiate criminal violations from civil or administrative violations. As a result, even the most technical violation theoretically could result in criminal prosecution.
If the same violation could give rise to criminal, civil, or administrative enforcement, what determines which environmental violations result in criminal prosecution? The answer is the exercise of prosecutorial discretion, which exists in all areas of the criminal law, but assumes a particularly critical role in environmental cases. Practitioners therefore often struggle to predict which environmental violations will result in criminal charges, and claims persist about the over-criminalization of environmental violations.
Reserving criminal enforcement for egregious violations
To address the challenges facing practitioners—and to delineate an appropriate role for criminal enforcement in the environmental regulatory scheme—I proposed in 2009 that prosecutors should exercise their discretion to reserve criminal enforcement for violations that involve one or more of the following aggravating factors:
- significant environmental harm or public health effects,
- deceptive or misleading conduct,
- operating outside the regulatory system, or
- repetitive violations.
By doing so, prosecutors could focus on violations that undermine pollution prevention efforts and avoid targeting defendants acting in good faith or those who committed technical violations.
In 2010, I created the Environmental Crimes Project at the University of Michigan to determine how often the aggravating factors I identified were present in criminal prosecutions. With the assistance of more than 150 law students, I analyzed all defendants charged in federal court with pollution crime or related Title 18 offenses from 2005 to 2014. We have examined court documents for 1,228 cases involving 1,562 defendants. In addition to analyzing aggravating factors, we compiled data regarding the types of defendants charged, the judicial districts and EPA regions involved, the statutes charged, and case outcomes.
Data on aggravating factors in environmental prosecutions
Our research for 2013 to 2014 is not complete, but the results for the first eight years of our study are striking. For 96 percent of the defendants prosecuted for pollution crime and related Title 18 offenses from 2005 to 2012, prosecutors charged violations involving at least one of the aggravating factors. For 78 percent of the defendants, the violations involved repetitive conduct; for 64 percent of the defendants, the violations involved deceptive or misleading conduct. These findings support at least three significant conclusions about the role of aggravating factors in environmental prosecutions.
- Prosecutors almost always focus on violations that include one or more of the aggravating factors.
- Violations that do not include one of those aggravating factors are not likely to be prosecuted criminally.
- Although there are exceptions, prosecutors generally do not charge isolated conduct, and prosecutors often focus on violations involving deceptive or misleading conduct.
We also found that 71 percent of the defendants charged with environmental crimes engaged in conduct that involved multiple aggravating factors. The fact that such a high percentage of defendants had multiple aggravating factors suggests a higher level of egregiousness. For 93 percent of the defendants with multiple aggravating factors, one of the first three factors (harm, deceptive conduct, or operating outside the regulatory system) was present along with repetitiveness. This finding suggests that prosecutors often reserve criminal charges for repetitive violations that involve one of the first three factors.
The role of aggravating factors analysis for practitioners
I cannot say whether the presence of the aggravating factors I have identified will trigger criminal prosecution. Declined cases are not public, so we do not have a control group of cases where prosecutors decided not to pursue criminal charges; we also do not have a comparison group of civil or administrative cases, because those matters involve notice pleading that does not lend itself to aggravating factor analysis. Indeed, I would expect that civil and administrative cases would also involve significant harm and repetitive violations but not deceptive or misleading conduct. The latter, in my experience, would be more likely to result in criminal enforcement.
Nonetheless, my findings should provide greater clarity about the role of environmental criminal enforcement and reduce uncertainty in the regulated community about which environmental violations might lead to criminal charges. For practitioners handling cases that do not involve one of the aggravating factors I have identified, the research may help convince prosecutors to exercise their discretion to decline criminal enforcement in favor of civil or administrative enforcement, particularly in cases involving isolated misconduct and no evidence of deceptive or misleading behavior by the client.
For more details on our empirical research, please see my recent Harvard Environmental Law Review article.