Environmental CrimesThe statutes defining environmental crimes provide prosecutors with some of the most powerful weapons known to the law. Many of these offenses allow for conviction based on ordinary negligence standards—such as in Clean Water Act cases—and some dispense with any culpable mental state altogether, permitting conviction based upon strict liability. The Environmental Protection Agency has well earned its reputation for aggressive enforcement policies and tactics. The “responsible corporate officer doctrine” is increasingly used to target unsuspecting corporate officers who “should have known” of an illegal discharge and failed to prevent it.
In egregious cases, companies can find themselves defending parallel administrative, civil and criminal proceedings. Regulated industries have little protection from government intrusion and few real benefits from internal controls. Most of the federal environmental statutes empower the EPA to enter and inspect records and facilities of permitted industries or premises where an “effluent source” or “point source” is located. Both EPA and the Department of Justice encourage voluntary environmental compliance audits and self-reporting, but the detailed and sometimes incriminating contents of compliance audits can be demanded or seized by EPA inspectors and then shared with DOJ, leading to criminal prosecution using the work product of the company’s own, good faith compliance program. Moreover, a little-known provision in Sarbanes-Oxley requires public companies indicted for any kind of environmental offense—however minor—to disclose the charges in the company's SEC filings.
Proactive intervention is essential to avoiding the filing of criminal charges. We have an established record of success in thwarting environmental prosecutions, using carefully crafted internal investigations, early intervention, and expert witnesses. Most environmental crime investigations focus on both companies and individual employees or officers, requiring the coordination of multiple attorneys and heavy reliance on the common interest privilege. We excel at managing the representation of group targets and the forceful presentation of exculpatory evidence to regulators and prosecutors.