US - EPA (United States Environmental Protection Agency) Prioritizes Criminal Enforcement Activity In Environmental Justice Communities: What Companies Need To Know

Companies should understand the significance of a June 21, 2021 U.S. Environmental Protection Agency (“EPA” or “Agency”) memorandum entitled “Strengthening Environmental Justice Through Criminal Enforcement.”

Companies should understand the significance of a June 21, 2021 U.S. Environmental Protection Agency (“EPA” or “Agency”) memorandum entitled “Strengthening Environmental Justice Through Criminal Enforcement.” Addressed to EPA personnel, including Senior Management and Special Agents with EPA’s Office of Criminal Enforcement, Forensics and Training, and Regional Criminal Enforcement Counsel with EPA’s Office of Regional Counsel, the memorandum outlines how EPA will work with the U.S. Department of Justice (“DOJ”) and use existing resources to more aggressively identify and prosecute environmental crimes committed in “overburdened communities.” A directive to focus investigative resources on particular communities and affirmatively consider criminal enforcement is unprecedented. Companies need to understand both their environmental justice risk profiles and the unique challenges associated with criminal investigations.

EPA’s most recent memorandum should be seen in the context of the Administration’s “whole of government” approach to environmental justice and also in conjunction with Attorney General Garland’s statements regarding environmental crime victims. EPA makes clear that while the Department of Justice (“DOJ”) retains prosecutorial discretion over environmental crimes, the Agency is taking steps to achieve environmental justice in criminal cases by strengthening tools for the detection of environmental crimes in overburdened communities, enhancing outreach to the victims of environmental crimes; and ensuring that EPA investigations are structured to maximally support the DOJ.

  1. Enhanced Communication between EPA Civil and Criminal Staff - EPA recommends that civil and criminal staff maintain regular and open communication regarding increased facility inspections in overburdened communities. Historically, communication between the civil and criminal components of EPA has been discouraged, and it was rare for a civil case to “turn” criminal. This directive will increase the likelihood that civil enforcement matters in overburdened communities will be referred for criminal investigation.

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