This is a guest post by Andrew Brought of Spencer Fane in Kansas City.
A high-ranking Environmental Protection Agency (EPA) enforcement official in the Trump Administration recently cited a 1994 memorandum by Earl Devaney, then Director of EPA’s Office of Criminal Enforcement, as presenting guiding principles to select cases for criminal enforcement of environmental violations. The January 12, 1994, memorandum, “Exercise of Enforcement Discretion,” is often referred to as the “Devaney Memorandum,” and it is available at this link: https://www.epa.gov/sites/production/files/documents/exercise.pdf This may signal that criminal enforcement of environmental laws under the Trump Administration will be limited to situations in which there has been significant actual or threatened environmental harm and truly culpable conduct.
Earlier during prepared remarks the official said, “We will be enforcing environmental laws in the Trump Administration,” although at that time he was not specifically discussing criminal enforcement.
The EPA official’s reference to the Devaney Memorandum came during a continuing education event hosted by the American Bar Association Section of Environment, Energy, and Resources attended by the authors and in response to a question posed by co-author Jim Price. In his question, Price noted that environmental enforcement cases can be, and frequently are, brought under either civil or criminal provisions based on largely the same facts, a position echoed by the EPA official.
The Devaney Memorandum notes that EPA is obligated to “instill confidence that EPA’s criminal program has the proper mechanisms in place to ensure the discriminate use of the powerful law enforcement authority entrusted to us.” The Devaney Memorandum further states,
“The criminal provisions of the environmental laws are the most powerful enforcement tools available to EPA. Congressional intent underlying environmental criminal provisions is unequivocal: criminal enforcement authority should target the most significant and egregious violators.”
The Devaney Memorandum states that criminal case selection will be guided by two general measures. The first is the presence of actual harm or the threat of significant harm to human health or the environment. The Devaney Memorandum sets out four factors that comprise this measure, including illegal discharges that have an identifiable and significant harmful impact. The Devaney Memorandum states that failure to report a discharge may be an additional factor favoring criminal investigation but that generally the failure to report, alone and without actual or threatened environmental harm, should not cause an investigation to be criminal instead of civil.
Culpable conduct is the second general measure guiding criminal case selection. The Devaney Memorandum cites five factors comprising this measure, including a history of repeated violations, deliberate misconduct, concealment or falsification of records, tampering with equipment, and operating without a permit.
The Devaney Memorandum concludes with these statements and admonition:
“EPA has a full range of enforcement tools available—administrative, civil-judicial, and criminal. There is universal consensus that less flagrant violations with lesser environmental consequences should be addressed through administrative or civil monetary penalties and remedial orders, while the most serious environmental violations ought to be investigated criminally. The challenge in practice is to correctly distinguish the latter cases from the former.” (Emphasis added.)
The authors agree and trust that a renewed focus on the factors set forth in the Devaney Memorandum will guide EPA to choose only the most significant and egregious violations for criminal enforcement of environmental laws.
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