Hours after being sworn in on March 11, 2021, as the 16th administrator of the Environmental Protection Agency (EPA), Michael Regan shared his vision with the EPA’s workforce: “We will stand up for environmental justice, guided by our conviction that all people have the right to breathe clean air, drink clean water, and lead a healthy life—regardless of the money in their pockets, color of their skin, or community they live in.” For too long, overburdened and underserved communities have been denied basic rights of environmental quality and equity. The United States will never achieve the lofty objectives of federal environmental statutes, promising clean water and air for all, without addressing blatant injustices that are continuing in fenceline and frontline communities across the nation.
EPA defines environmental justice (EJ) as “the fair and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA, Environmental Justice (2021). Achieving EJ requires ensuring stakeholders have meaningful involvement in EPA decision-making, building capacity in disproportionately burdened communities, and promoting collaborative problem solving. In other words, there must be equal access to the decision-making process and active participation by stakeholders from the moment a potential injustice or overburdening is identified, through the full implementation of any solution in instances where injustice can be avoided or repaired.
The Biden administration’s “all of government” approach to EJ includes increased enforcement for environmental crimes that have a disproportionate impact on underserved communities. Environmental crimes are committed across the country with alarming frequency, and too many of those crimes are committed in overburdened and underserved communities. Addressing environmental injustice requires relying on all existing tools at our disposal, ranging from education, grants for infrastructure improvement, and compliance assistance, to a robust enforcement program, including criminal enforcement for the most egregious violations by individuals and companies. EPA’s criminal enforcement program, with its uniquely trained special agents, can prioritize the identification and investigation of environmental crimes in vulnerable communities, increasing environmental equity and addressing the disproportionate health impacts of criminal conduct.
Working collaboratively with EJ community organizers and residents, investigators and prosecutors can rely on existing authorities such as crime victim remedies and impactful sentencing advocacy to achieve justice, address environmental harm, and deter illegal pollution. Furthermore, only a few states prosecute environmental crimes, although nearly all should be doing so, given their approved program implementation status. This discussion by no means offers the solution to address all EJ issues but rather focuses on one avenue where EPA’s criminal enforcement program can work with communities and as a conduit for building trusting relationships and a shared cleaner environment for all.
It may seem paradoxical to advocate advancing EJ—a concept with a significant racial justice component—through increased criminal enforcement in a moment in history where systemic racism and failures in policing and the criminal justice system are ripping communities apart. However, it is also the truth that pollution is killing the same communities at an alarming rate and the human cost of inaction is a catastrophic tragedy. Environmental enforcement must start with this obvious premise: All communities want a clean environment in which to live, work, and play. Every community wants the same protections, whether through enforcement or mitigation, as those provided to others. The enjoyment of clean air and water is a right that must exist, and be implemented, equally, free of the oppressive systemic racism and economic inequalities that pervade our society.
Criminal justice failures have led to inherent distrust of law enforcement among significant populations within the country. Trust must be earned by the professionals charged to seek and serve justice. The discussion below focuses on communities with EJ concerns as crime victims, but cannot be blind to the important discussions focused on the criminal justice system and the necessity of treating defendants of color equally in charging decisions and in sentencing. EPA’s criminal enforcement work takes place against a broader backdrop of debate and nationwide protest regarding racial inequities in our criminal justice system. Systemic racism has imposed intergenerational harms and created distrust of law enforcement among significant populations within the United States. While these broader issues of racial justice in law enforcement are beyond the scope of this article, we recognize that trust must be earned as EPA’s enforcement personnel work to bring justice to communities with EJ concerns.
With an estimated one of every twenty-five deaths caused by pollution, the public health crisis and systemic disparities cannot be ignored. In a stark example, media reported that in 2020 in Detroit, Michigan, 271 people were murdered, the third-highest homicide rate among large U.S. cities; and yet, according to a study by the University of Michigan School of Public Health, each year 650 Detroit residents die from pollution. See Research Partnership Between University of Michigan and Community-Based Organizations Releases Plan for Improving Air Quality and Health in Detroit (2021). A report from the Clean Air Task Force recites compelling facts showing that pollution kills more people than gun violence and car accidents combined and a shocking statistic that African Americans are exposed to 38% more polluted air than white Americans, and they are 75% more likely to live in communities that border a plant or factory.
It is similarly important to distinguish between the different treatment of crimes in the criminal justice system. Environmental crimes are often “white-collar” crimes, which get much less attention than “street crimes,” despite being more prevalent. See Dr. Joshua Ozymy & Dr. Melissa L. Jarrell, Exploring Prospects for Environmental Justice as the EPA Reaches the Half-Century Mark, 47 Ecology L. Currents 269 (2020). White-collar crimes refer to a wide range of offenses committed by business and individuals sitting in an office and directing others rather than out in the streets directly confronting the victim(s). The racial and economic characteristics of white-collar defendants stand in stark contrast to those of street-crime defendants often facing inconsistent and harsher sentences. Nominated assistant administrator for EPA’s Office of Enforcement and Compliance Assurance David Uhlmann found that from 2005 to 2014, 987 individuals were convicted of environmental crimes, but only 364 of those individuals were sentenced to prison (36.9%)—many of those sentences requiring incarceration of less than a year. Comparatively, the incarceration rate in the federal system was 77.6% for overall convictions and 57% for other regulatory crimes in fiscal year 2014. David M. Uhlmann, Prosecutorial Discretion and Environmental Crimes Redux: Charging Trends, Aggravating Factors, And Individual Outcome Data for 2005–2014, 8 Mich. J. Env’t & Admin. L. 297; 357–65 (2019).
Along with the divide between “white-collar” and “street crime” is the divide between those who direct the crime and those who carry it out. Often, environmental crimes are carried out by low- or mid-level employees—sometimes simply following orders from upper management, and in other instances motivated by separate financial incentives. These employees may be exposed to the pollutants of concern as well as criminal prosecution, making them a victim as well as a perpetrator. Extra care should be taken by prosecutors in the exercise of prosecutorial discretion to ensure that the most culpable persons and entities pay the greatest price for the environmental crime. This is especially true where employees may have a criminal record that would potentially subject them to higher sentences than the most culpable party.
Environmental crimes may be less obvious than street crimes, but they can be just as, or even more, damaging to victims and communities. The harm and human cost of environmental injustice reflect society’s major problems wrapped in one package—economic disparities, health impacts, and racial inequality to name a few. The cause and effect in weapons-related homicide are easy to understand compared to an environmental case where the impacts from exposure to dangerous substances can take years or even decades to manifest themselves. Instead of shooting a gun, a defendant’s actions in an environmental criminal case slowly impact and deteriorate people’s health, livelihood, and well-being—including their own, in some cases.
As The Washington Post recently reminded the public in April 2021, the birth of the EJ movement centered on the dumping of polychlorinated biphenyls (PCBs) at a landfill in North Carolina. Darryl Fears & Brady Dennis, “This Is Environmental Racism” How a Protest in a North Carolina Farming Town Sparked a National Movement, Apr. 6, 2021. Widely reported in the news at that time, the dumping of over 30,000 gallons of toxic PCB-laced oil resulted in one of the first prison sentences for an environmental criminal case. Communities began to come together to protest and stop, sometimes with their own bodies, environmental injustices. While there have been many more environmental criminal cases resulting in jail sentences since, the continued need for deterrence exists to prevent these crimes from occurring in the first place.
Deterrence is one of the most significant roles criminal enforcement can play in protecting communities, and EPA needs to put the regulated community on notice that any benefits sought through noncompliance will be clearly outweighed by negative consequences. EPA’s 2020 Fiscal Year Environmental Justice Progress Report highlighted impressive accomplishments, including more than $160 million in grant funding to low-income and minority communities for cleanups, training, and emission reductions. But the report was silent on the use of enforcement, either civil or criminal, to address offenders and to deter future crimes from being committed in the first place. All of EPA’s offices must work together toward achieving EJ. Enforcement, specifically criminal enforcement, is critically necessary to address the most egregious violations and provide the necessary disincentives to stop companies and individuals from damaging the environment and health of communities.
EJ should be part of every step in the process of investigating and prosecuting environmental crimes. It is essential to build the capacity of frontline communities and community-based advocates to speak for themselves, participate in solutions, and thrive from results. EPA enforcement can help combat environmental racism and injustice inside homes and in impacted communities from products, practices, and profits of toxic polluters. Criminal enforcement can focus on instances of egregious violations in EJ areas bearing a disproportionate pollution burden. EPA’s special agents can engage community members in task forces at the state and local level. Furthermore, they can conduct outreach to build trust so that communities feel comfortable enough to report environmental issues whether through EPA’s Tips and Complaints website or their local EPA regional office. States and local entities must also engage in this same outreach to begin to pursue a level of trust with the community essential to identifying and stopping environmental and human health harm.
Screening tools are essential to identify potential areas of concern and industry’s burden on communities. EPA’s EJSCREEN is a sophisticated and transparent mapping and screening tool that combines eleven environmental and six demographic factors into its data analysis. Another EPA tool, Enforcement & Compliance History Online (ECHO), can assist in searching for facilities near a community and investigating past violation and potential pollution sources. EJSCREEN and ECHO are publicly accessible, and communities can use those tools to gain information on sources of pollution in their vicinity.
Once alleged violations are identified, EPA can focus on working with the community. By prioritizing cases where entire communities are affected, criminal enforcement can collaborate with the state and other EPA enforcement and program offices to support the community, whether that be through information or financial resources. As EPA’s and other publicly available data tools dig deeper into available information, their use will be increasingly meaningful.
Upon identifying alleged criminal conduct, it is critical to consider the spirit and nuanced requirements of the Victims’ Rights and Restitution Act (VRRA) and the Crime Victims’ Rights Act (CVRA). Both for their protections and powerful considerations of victims and witnesses of crimes at every stage of the case, these laws must remain on the forefront of investigators, and prosecutors’ minds. The CVRA defines a “crime victim” as a person “directly and proximately harmed as a result of the commission of a Federal offense.” Under the VRRA, a crime victim is a person who has suffered direct physical, emotional, or pecuniary harm as a result of a crime. EPA’s criminal enforcement program is well-positioned to work with communities through its crime victim program during the development of a case, as is the Department of Justice (DOJ), throughout any prosecution.
Investigatory agencies, including EPA’s Criminal Investigation Division, are required to identify and notify crime victims under the VRRA, as soon as possible, when such contact would not interfere with the investigation. EPA ensures potential victims are contacted to alert them to potential exposures and provide information, including directing them to the relevant Centers for Disease Control’s website for necessary health information and local clinics. While victims have the right to confer, enforceable by statute, EPA should use its discretion to involve the community and provide resources. This early interaction with victims and their larger community is essential. EPA further provides information on resources to deal with the environmental harm, whether it is exposure to a harmful chemical or fraud, and listens to their concerns as the case develops.
During the prosecution of a large petrochemical facility, EPA’s Criminal Investigation Division and DOJ engaged in significant outreach to engage almost 1,000 crime victims. EPA’s special agent spent years among the community members, gaining respect and trust from the community by attending community functions. The case team established town halls where prosecutors briefed community members and DOJ’s victim witness coordinator explained their rights. This outreach is an example of how EPA’s criminal enforcement program can effectively engage and communicate with communities.
Thoughtful and effective sentencing advocacy is critical to impactful criminal enforcement. It is the basis for achieving favorable outcomes and powerful future deterrence. Sentencing is also an area where meaningful consultation and participation by the community are critical to establish trust and long-term successful outcomes. In addition to charges brought under Title 18, environmental statutes provide for imprisonment, a fine, or both as punishment. Some environmental statutes, including the Clean Water Act, authorize fines on a per day of violation basis. Additionally, the Alternative Fines Act, 18 U.S.C. § 3571, provides for enhanced monetary penalties based on illegal gain or loss.
Through sentencing guideline enhancements, restitution, special conditions of probation, and sentencing factors, prosecutors can pursue justice for communities with EJ concerns. Courts are guided by the U.S. Sentencing Guidelines (USSG), which provide an advisory sentence for individual environmental defendants. Prosecutors should consider the applicability of the enhancement for environmental offenses requiring extensive cleanup. Both sections 2Q1.2(b)(3) and 2Q1.3(b)(3) provide for up to a four-level enhancement for a variety of circumstances; however, this characteristic has been used most often where offenses have resulted in the need for a cleanup. Not only would a defendant face a higher sentencing guideline range from crimes resulting in substantial clean ups, but the defendant may also face higher restitution to pay for the cleanup. Such a cleanup can bring relief to a community from the environmental harm and ensure harm does not continue.
Prosecutors should consider the vulnerable victim enhancement, defined as a person “who is a victim of the offense of conviction and any conduct for which the defendant is accountable for” and “is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.” Both USSG sections 3663(a)(2) and 3663A(a)(2) of the USSG define “victim” similarly and require that a victim be directly and proximately harmed from the commission of the offense. Vulnerability may depend on pre-existing conditions, genetic susceptibility, and life stage, where, for example, children are particularly susceptible to lead poisoning. The vulnerable victim enhancement under USSG § 3A1.1(b)(2), if applied, adds a two-level enhancement to the sentencing guidelines. There are further enhancements to consider applying depending on the circumstances, including if the defendant was a leader/organizer of the crime, and/or possessed a special skill or abused a position of trust. USSG §§ 3B1.1, 3B1.3.
Prosecutors should also consider other supplemental sentencing options such as environmental audits, comprehensive compliance programs, and employee training to ensure such violations and crimes against the community do not occur again. There is also a unique opportunity to provide education and measure increasing accountability of the defendant to the community. Audits, detailed reporting, and other information should be required to be publicly available. In addition, the use of monitors and consultants provides additional opportunities for coordination and involvement by federal, state, and local regulators as well as communication and input by communities. Through this process, trust is built, and EPA elevates its messaging about the importance of environmental compliance. In some of EPA’s criminal cases, courts have required the defendant to issue a public apology published in the local newspaper or other media outlet.
Prosecutors must also be thoughtful when analyzing restitution, either in a plea or in contested sentencings. While restitution is not mandatory in environmental statutes, it may be under Title 18. While crime victims must be involved in this discussion and sufficiently compensated, community members should be consulted as well. Large payments through fines or restitution may be a drop in the bucket for large companies, and other additional sentencing options must be considered to ensure adequate deterrence. Remediation and restoration are also not mandatory in environmental crimes cases, but creative prosecutors negotiate special conditions of probation to seek community service payments and projects, including cleanup of the contaminated area.
A recent case example on the use of community service payments was against Monsanto Company. On November 21, 2019, Monsanto Company pled guilty to a misdemeanor offense of unlawfully spraying a banned pesticide on crops at its facility in Maui, Hawaii, despite knowing such pesticide’s use was prohibited a year earlier. The company further admitted that, after the spraying, it told employees to reenter the sprayed fields seven days later despite knowing that workers should have been prohibited from entering the area for 31 days. Pursuant to the agreement, Monsanto agreed to pay a $6 million criminal fine and $4 million in community service payments to Hawaiian government entities that benefit communities with EJ concerns and provide funding for education, training, water quality monitoring and improvements, and cleanup of the island of Kaho’olawe.
The benefits from these environmental prosecutions could be greatly increased by community input. The period of probation or supervised release is when many of the important policy and procedural changes can be implemented. It is also when major technology upgrades can be made, as well as when the education and accountability changes required by the criminal sentence are enforced. As an example, imagine a Clean Air Act case where the defendant’s sentence requires the introduction of an electric bus fleet to decrease air pollution in the zip codes where the crime was committed. While it sounds simple, it is imperative to ensure that those buses operate, long term, in the community impacted by the crime and are not inappropriately converted to use in other areas not impacted.
Medical monitoring is another important sentencing tool to consider, especially in cases involving exposure to harmful chemicals, including legacy chemicals such as asbestos and per- and polyfluoroalkyl substances, where health effects may not be observed for decades. Medical monitoring is important for prosecutors to consider when a group of crime victims, including entire communities, are exposed to polluted air, water, or toxins in their homes. The health effects from these toxins may not be readily apparent and medical monitoring may be necessary to help lessen any future harm.
The case against Firm Build, Inc. and three of its corporate officials involved felony violations of asbestos work practices under the Clean Air Act; the defendants received jail sentences between 24 and 27 months in addition to restitution of $1.8 million to the 65 victims exposed to airborne asbestos. United States v. Firm Build, Inc. (E.D. Cal. Nov. 8, 2011). The restitution included medical monitoring, necessary for the early detection of asbestos-related illness. Victims included the defendants’ employees and high school students who removed and disposed of asbestos-containing insulation without proper protective equipment or training. The defendants’ sentence of jail time and restitution sent a strong message that EPA and its partner agencies will vigorously prosecute environmental crimes and those who place profits over public health and well-being.
The enormous human cost from decades of disproportionate pollution, unfair treatment, and a lack of meaningful involvement has resulted in communities that are overburdened and suffering the worst impacts from environmental crimes. Combating environmental injustice will require not only all of EPA’s offices, but all federal agencies, working collaboratively with communities. Under Administrator Regan’s direction, EPA is strengthening its enforcement of violations of environmental statutes and civil rights laws in communities overburdened by pollution. On June 21, 2021, acting assistant administrator for the Office of Enforcement and Compliance Assurance Lawrence Starfield issued a memorandum emphasizing the agency’s tools for detecting “environmental crimes in overburdened communities.” EPA will work closely with DOJ on enforcement efforts to prevent and punish environmental crimes and achieve deterrence. Criminal enforcement is an effective means to right past wrongs, provide community victims with the information, services, and remedies they are owed.
EPA’s criminal enforcement program stands with all communities in America in the fight against illegal pollution. Standing together, shoulder to shoulder, to effectively address the nation’s complex environmental issues requires relying on the full spectrum of legal remedies from grants for clean-ups and compliance assistance, to a vigorous enforcement program. While criminal enforcement alone will not address all pollution in communities with EJ concerns, it can stop the most egregious polluters and deter others from committing such offenses in the future. It is only when every one of us enjoys clean air and water that we will balance the scales of justice and meet our obligations to one another and the shared environment on which we all depend.
