Miami Vice—Environmental Crimes Panel Warns: The Feds Are Coming

It’s Day 1 at the ABA White Collar Crime Institute here in Miami, and your Enforcement Edge team was eager to attend the panel on “Environmental Crimes Enforcement Trends.” David Gerger led the panel and was accompanied by Department of Justice (DOJ) Environmental Crimes Section (ECS) Chief Deborah Harris, as well as private practitioners Nadira Clarke, Danielle Hunter, and David Oscar Markus. The band of environmental gurus covered a lot of ground, but one theme rang loudly throughout the 75 minutes: The Biden Administration is here in force, and the new environmental crimes sheriffs in town are tough and serious. They mean to prosecute. ECS Chief Harris appeared virtually, joking: “There is so much crime going on I can’t leave the office.” Companies and their lawyers would be wise to take note.

Here are some of the specific points and key takeaways:

• ECS Chief Harris summarized ECS’s priorities as (1) fighting climate change and (2) promoting environmental justice. Among other types of cases, she emphasized prosecutions concerning (i) efforts to defeat devices designed to measure emissions, (ii) vessel pollution cases, (iii) renewable fuels fraud, (iv) pesticide cases, and (v) customs and Lacey Act violations for illegal logging.
• There is an overlap between Occupational Safety and Health Administration worker safety cases and environmental crimes cases, as DOJ may see shortcuts on worker safety as indicative of other environmental and safety violations. Reports of worker safety violations may well draw the attention of the ECS, spurring a more expansive DOJ investigation into possible environmental crimes and other issues.
• ECS Chief Harris indicated many DOJ enforcement actions will include a Title 18 criminal charge, as “juries understand it and judges understand it.” She emphasized the four factors put forth by EPA top enforcer nominee David Uhlmann in pursuing criminal prosecutions for environmental violations.
• The panel worried over the age-old tensions that arise when a company faces both criminal and civil exposure, including the vexing decision a company may face when deciding whether to reveal to DOJ arguably privileged information to try to avoid an indictment and then having to deal with a claim that the company waived privilege in follow on parallel civil actions.
• The risk of suspension and disbarment is one of the main concerns that a company faces when dealing with an environmental prosecution, often playing a major role in the company’s decision about whether to work out a pre-trial resolution or roll the dice at trial.
• The panel addressed some of the tricky mens rea issues in environmental crimes cases, including strict liability crimes, cases turning on what “knowing” means and instances in which a defendant knowingly commits an act but doesn’t know that the act was wrong or illegal. The upshot seems to be that the law is developing on this topic, so stay tuned.

Companies need to take the time now to carefully assess their environmental compliance policies. We’ve written a bunch about key environmental issues of interest to the Biden Administration here. If you have any questions about environmental crime issues, don’t hesitate to reach out to the authors or any of your trusted advisors at Arnold & Porter.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.