On November 16, 2017, the ABA sponsored a “brown bag” session that featured USEPA Deputy Assistant Administrator for OECA, Patrick Traylor. After some opening remarks in which he assured the audience that the Trump Administration will be enforcing the environmental laws, he took questions from the participants.
My good friend, Jim Price (Spencer Fane, out of Kansas City) asked Traylor a question regarding the Trump Administration’s enforcement position on which types of cases will head in the criminal direction as opposed to civil enforcement. In particular, the question focused on how will the current USEPA decide which cases are brought as criminal cases versus those brought as civil cases (in the past there has been a sense that the primary distinguishing factor has been how the case initially arose – USEPA CID or the civil side).
After allowing that, because of the general intent mens rea, there is no real difference between a civil and a criminal matter, Traylor specifically referenced the 1994 Devaney Memorandum as the key directive for the Trump Administration in determining whether a case should go criminal versus civil. The 1994 Devaney Memorandum concludes that only the most significant and egregious violators ought to be investigated and prosecuted criminally. The 1994 Devaney Memorandum can be found here: https://www.epa.gov/sites/production/files/documents/exercise.pdf
A BIG SHOUT OUT to the ABA and the fine people at Sidley (Ben Tannen, Justin Savage) for organizing/hosting/moderating (as well as all of the others behind the scenes) for making the event a success.
Also, a shout out to my friend Andrew Brought (also Spencer Fane, out of Kansas City) for inspiring this blog post.
As always, feel free to contact me at firstname.lastname@example.org