Recent comments from Assistant Attorney General John C. Cruden, head of the U.S. Department of Justice’s Environmental and Natural Resources Division (“ENRD”), regarding DOJ’s increased use of criminal prosecutions to enforce environmental laws suggest the heightened role the ENRD’s Environmental Crimes Section could play in future enforcement actions regarding violations of environmental laws.
A section within the ENRD, the Environmental Crimes Section (“ECS”) houses a unit of 43 specialized attorneys tasked with prosecuting individuals and corporations that have violated environmental criminal statutes. Cruden’s remarks hint at a rise of ECS activity, but ECS section chief Deborah Harris indicated that the number of ECS pollution prosecutions, which normally account for 75% of ECS’s docket, has been shrinking. However, according to Harris, ECS wildlife prosecutions are increasing, and ECS has begun to focus on new enforcement areas, including worker safety. Importantly, despite shifting priorities, ECS has maintained a stable number of attorneys to handle the various prosecutions, underscoring the important role ECS will play in the future.
In addition to new priorities for ECS, under the newly announced Worker Endangerment Initiative, primary responsibility for investigating and prosecuting workplace violations previously handled by the Occupational Safety and Health Administration, Mine Safety and Health Administration, and the U.S. Department of Labor’s Wage and Hour Division transferred to ECS. The new policy seeks to encourage prosecutors to combine prosecutions of workplace violations and environmental crimes, which often occur together, to take advantage of ECS’s specialized expertise in investigating OSHA violations, and to coordinate prosecutions with ECS.
Coupled with the DOJ’s agency-wide focus on individual prosecutions, as heralded in the Yates Memo, the reduction in ECS pollution cases may also suggest a shift in ECS priorities from a larger quantity of smaller prosecutions to more complex and intensive prosecutions directed at individuals, including company officers, managers, and employees who have violated environmental laws.
Although the effects of increasing the use of ECS to prosecute environmental violations and the Worker Endangerment Initiative’s shift of workplace violation enforcement to ECS are still developing, Assistant Attorney General Cruden’s comments reveal a commitment to utilizing ECS to combat violations of environmental criminal statutes. Additionally, centralizing workplace safety enforcement in ECS demonstrates the possibility of increased exposure for defendants when workplace safety issues arise alongside environmental violations.
Thus, companies and individuals can anticipate heightened scrutiny when faced with ENRD and ECS investigations regarding violations of environmental statutes and workplace safety. The expertise of counsel experienced in government investigations, especially environmental compliance and enforcement, will be essential in helping companies and individuals navigate the effects of ECS’s increased presence in environmental enforcement actions.