U.S. EPA Announces New “Strategic Civil-Criminal Enforcement Policy”

On April 17, 2024, the U.S. Environmental Protection Agency (EPA) published its “Strategic Civil-Criminal Enforcement Policy,” a landmark new internal enforcement policy for its civil and criminal enforcement offices (the Policy) that signals a paradigm shift in how the agency will assess, coordinate, and prosecute civil (including administrative) and criminal environmental enforcement. In the Policy, EPA states that it has already started increasing communication and collaboration between its enforcement offices in recent years, which EPA believes has led to better case screening and more consistent enforcement responses across regions. But the Policy goes far beyond those less formal efforts and reflects EPA’s stated goal to continue toward an integrated approach, moving away from its prior, more bifurcated approach to civil and criminal enforcement.

To promote what the Agency describes as “collaborative strategic planning and ensure that EPA exercises its enforcement discretion fairly and consistently,” the Policy requires: (1) increased collaboration between the civil and criminal enforcement programs on the EPA’s national and regional priorities; (2) enhanced case screenings, coordination throughout each enforcement action, and robust discussion of what enforcement option should be used to address violations; (3) enhanced tracking of case screening to improve case management; and (4) updated training programs for the civil and criminal enforcement offices.

Through the Policy, EPA expects to expand information sharing so that both EPA civil and criminal enforcement offices have ready access to compliance histories and case developments, while maintaining enforcement confidentiality. The Policy will mean increased discussions between civil and criminal enforcement about whether to start parallel proceedings (and, more generally, which matters are suitable for criminal versus civil or administrative enforcement).

The Policy lists five factors that enforcement staff should consider when determining which matters must be screened by both programs:

• Significance of the violation: EPA will consider the significance of the violation in assessing what enforcement approach to pursue. According to the Policy, this refers to the type of harm/risk (environmental or human health), the possibility of an imminent and substantial endangerment, whether the risk or threat of harm is plain (e.g., an eroding lagoon or falsification of drinking water data), whether a requirement to report the violation that was ignored (e.g., CERCLA reporting), and whether a violation of, or failure to obtain, a permit was involved.
• Type of culpability involved: The type of culpability will also be considered. This will include whether there is evidence of intent that may rise to a criminal level, evidence of concealment of misconduct, and/or other facts that EPA considers to be “red flags” that may suggest criminal conduct, such as conflicting stories or data, “too good to be true” data, unsubstantiated or missing data, intentional decentralization to avoid knowledge, and/or suspicious signatures, dating of forms, or claim(s) of ignorance about requirements.
• Alleged violator’s compliance history: The alleged violator’s compliance history is a further consideration. Under this factor, EPA will look at whether there is a history of repeated violations, any state involvement, and past inspections, compliance orders, penalties, notices of violation, enforcement actions, and consent decrees.
• Sophistication and size of alleged violator: Further, EPA will consider both the sophistication and size of the violator. Under this factor EPA will also assess whether there is any economic benefit or evidence of management involvement.
• Relationship to national or regional strategic priorities: Lastly, EPA’s own priorities for enforcement will be taken into account, such as whether the alleged violation is related to a regional strategic priority and/or a national enforcement and compliance initiative.

EPA will continue to have substantial discretion in how these factors may be applied in deciding when to exercise its civil or criminal authority or both. For example, the Policy suggests that a civil case may warrant criminal review when the investigation yields evidence of falsification of data, concealment of evidence, or other deceptive or misleading conduct or if the matter arises out of chronic noncompliance or facilities with continued violations despite prior enforcement efforts.

This is the first major EPA policy statement related to parallel civil and criminal environmental enforcement and the factors considered by EPA to distinguish civil from criminal misconduct in many years, arguably since the 1985 “Devaney Memorandum” that laid out the case selection process to be used by EPA when determining whether to invoke its criminal enforcement tools. It signals the strong likelihood of increased criminal environmental enforcement as well as less sequential criminal-then-civil enforcement and more parallel proceedings. Stakeholders facing the potential for EPA enforcement should take note of this Policy in evaluating the risks presented.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.