Hartman_BarryGuest Commentary

Barry M. Hartman, K&L Gates LLP*

Editor’s Note: This is the sixth in a series of guest commentary posts that address the six distinct topic areas covered in Washington Legal Foundation’s recently released Timeline: Federal Erosion of Business Civil Liberties. To read the other posts in this series, click here.

The WLF Timeline notes that in 2005, the Environmental Protection Agency (EPA) started co-locating its civil and criminal offices; it turns out this was just the tip of the iceberg.  There has been a long pattern of convergence of criminal and civil environmental enforcement at EPA, jointly with the Department of Justice’s (DOJ) Environmental Division.  When the difference between a criminal and regulatory offense—the “knowledge” or “scienter” requirement—was clear, a company knew what the stakes were if it was being investigated civilly.  But over the last 25 years, the continuing relaxation of the “scienter” requirement in the environmental arena has blurred that distinction, so that the only articulation an EPA or DOJ lawyer will typically give to that standard is, “I know it when I see it,” allowing the government to use criminal sanctions where administrative or civil penalties would be more appropriate.

More recently, the EPA (and DOJ) has been using administrative and civil processes as tools to develop criminal cases. Both EPA and DOJ are affirmatively encouraging their enforcement lawyers not just to share information, but to use administrative and civil enforcement processes to find evidence that can be used in criminal enforcement prosecutions. This is quite a departure from the historical practice of having two discrete enforcement efforts with different targets, purposes, and goals.

EPA revised its parallel-proceedings policy in 2007 to ensure this coordination between civil and criminal investigations, saying:

This Policy reaffirms and clarifies the earlier policies, while adding procedural mechanisms to enhance effective communications between the Agency’s civil and criminal enforcement programs.

The DOJ Environment Division did the same in 2008:

[A]ny information obtained as the result of legitimate civil and administrative discovery may be freely shared with criminal enforcement attorneys (emphasis added).

EPA has recently used its power to request information administratively under § 114(a) of the Clean Air Act, where DOJ lawyers were “assisting” in the effort, even though no case had been referred to DOJ. In recent cases involving prosecutions for the deaths of migratory birds, the Fish and Wildlife Service has followed the same tactic, using civil and administrative mechanisms to develop criminal cases. The Gulf spill may be the best evidence of this: administrative, civil, and criminal investigators worked hand in hand, and the civil and criminal cases were almost indistinguishable.

The implications for businesses and their employees are profound: how can a company cooperate in even the most routine administrative or civil inquiry when the specter of criminal liability is not just present, but affirmatively being considered and encouraged?  There are far more protections afforded to someone in the criminal context than in a civil or administrative investigation. Most significant among them is that EPA’s administrative investigative powers are broad and often insulated from at least some judicial oversight, yet are used to gather evidence for a criminal case. At least in a criminal case, if an unreasonable grand-jury subpoena is issued, a challenge is possible.

The convergence of parallel proceedings creates a veritable “third rail” in which the liberties of businesses and their employees are threatened.  Among all the developments noted on WLF’s Timeline, this convergence will likely have the most influence in shaping environmental enforcement and its impact into the future.

*Mr. Hartman is a Partner with K&L Gates LLP. He was formerly Acting Assistant Attorney General of the U.S. Department of Justice’s Environment and Natural Resources Division and Senior Vice President and General Counsel of Horsehead Industries, Inc.