ENVIRONMENTAL CRIMES

Environmental crimes include violations of several federal criminal laws intended to protect the environment. Of course, some of these laws can be interpreted too broadly. Unfortunately, federal environmental crimes are often charged by prosecutors when the alleged violation is inadvertent and would be better addressed with a civil settlement or resolution.

Recent trends in environmental policy and politics show that an increasing number of individuals, corporation, and other organizations are being charged with federal crimes relating to environmental regulations. In response to climate change and shifting political priorities, federal agencies like the Environmental Protection Agency and the Department of Justice are taking an aggressive new approach to environmental regulation that emphasizes charging defendants with environmental crimes. Last year, for example, the EPA announced that they had opened 247 new criminal cases, “the most since 2014.”

Environmental crimes in the United States include criminal violations of environmental laws like the Clean Water Act and Clean Air Act, as well as violations of other criminal laws arising from dealing with environmental regulators and regulations. Both individuals and corporations can be prosecuted for dumping hazardous waste, polluting the air or water in a community, for example, as well as falsifying reports to the EPA, evading reporting requirements, or obstructing a government inspection or investigation.

The EPA’s Criminal Enforcement Office often works with the DOJ’s Environmental Crimes Section, which is within the Environment & Natural Resources Division. The EPA recently announced that 89% of its environmental criminal cases in 2020 were brought against individual defendants, with a 94% conviction rate.

The federal government can rely on several different laws to charge individuals and corporations with environmental crimes, including, the Clean Water Act, the Clean Air Act, the Toxic Substances Control Act, the Resource Conservation and Recovery Act, and the Federal Insecticide, Fungicide, and Rodenticide Act. The government can also charge defendants with non-environmental crimes in connection with environmental issues, however, such as making false statements to the government, obstructing an investigation, and committing wire fraud against the EPA or other agencies by submitting false certifications to obtain permits or fuel credits.

The Clean Water Act (CWA) regulates the “waters of the United States” and criminalizes dumping waste, debris, and other forms of water pollution. The CWA covers rivers, lakes, and waterways that are publicly owned, privately owned, or otherwise protected by state and federal laws.

While the CWA does not always draw bright lines between what conduct constitutes a crime versus a civil violation, individuals or corporations that intentionally violate the CWA or try to hide their violations from the government are more likely to face criminal charges. Potential violations of the CWA include:

• Introducing or discharging pollutants or hazardous substances into a sewer system or water treatment facility
• Discharging chemical, medical, or radioactive waste into navigable waters or other water sources in the U.S. without a permit or in violation of a permit
• Discharging sewage sludge into navigable waters without a permit or violating a previously issued permit
• Discharging oil into navigable waters or off the shores of the U.S.
• Operating a building or facility that violates the “standard of performance” set to control the proper procedures for discharging pollutants into water sources
• Tampering with monitoring equipment or other devices that regulate or measure environmental impact
• Intentional failures to maintain records, report spills or other accidents that impact the environment, or allow government inspections
• Making false statements to the EPA relating to an individual or corporation’s compliance with the CWA

Under 33 U.S.C. § 1319(c), a criminal violation of the Clean Water Act can be charged as a felony or a misdemeanor based on whether the defendant acted with a criminal intent, meaning they knowingly violated the CWA, or whether they acted negligently. Negligent violations of the CWA are misdemeanors, while intentional or knowing violations are felonies. Generally, a misdemeanor conviction for violating the CWA is punishable by up to a year in prison and up to $25,000 in fines per day of violation, while a felony conviction under the CWA carries up to three years and $50,000 per day.

Some provisions of the CWA carry their own specific penalties, however, such as “Knowing Endangerment,” which punishes defendants who knowingly violate the CWA in a way that puts other people in danger of death or serious injuries. A conviction for knowing endangerment carries up to 15 years in prison and up to $250,000 in fines, or 30 years and a $1 million fine if a defendant has prior convictions. Defendants convicted of making a false statement to the CWA or tampering with monitoring equipment can be sentenced up to two years in prison and a $10,000 fine, while failing to report an oil spill carries up to five years in prison and fines.

The CWA also has enhanced penalties for defendants with prior convictions or who put other people in danger. Generally, an individual who has a prior conviction for violating the CWA can face double the prison time and fine. For example, defendants who have previously been convicted of a misdemeanor violation can be charged with a felony violation and be punished with up to two years in prison if they negligently violate the CWA again, while defendants with prior felony violations of the CWA can be sentenced for up to six years for new felony violations.

Aside from the CWA, there are other federal laws regulating water pollution that can be used by the government for prosecuting environmental crimes. Under 33 U.S.C. § 1411, for example, a person can be sentenced for up to five years for dumping materials into the ocean without a permit. It is also a misdemeanor to obstruct or build a bridge over a navigable waterway or alter the course of a navigable waterway without a permit.

The Clean Air Act (CAA) regulates air quality in the U.S. and criminalizes, among other things, operating a building or vehicle that emits hazardous air pollutants. The CAA also intersects with other federal laws and regulations, such as labor laws that govern the disposal of asbestos by construction companies.

The penalties for criminal violations of the CAA can be harsher than the penalties for violating the Clean Water Act, but there are fewer provisions that criminalize negligence Under 42 U.S.C. § 7413(c), most knowing violations of the CAA carry up to five years in prison and a fine. These violations include:

• Knowingly constructing or modifying a building that emits hazardous air pollutants or otherwise failing to comply with the National Emission Standards for Hazardous Air Pollutants (NESHAP)
• Knowingly building or importing a vehicle that fails to meet CAA emissions standards, as well as tampering with emission control devices in a motor vehicle
• Knowingly failing to comply with federal regulations governing the proper disposal of asbestos materials by construction companies
• Operating a building or vehicle that emits hazardous air pollutants without a permit when a permit is required
• Violating an emergency order issued by the EPA
• Negligently or knowingly emitting hazardous air pollutants that put others in danger
• Knowingly failing to comply with the CAA’s certification and reporting requirements and tampering with monitoring devices

There are other provisions of the CAA that carry their own specific penalties. Making a false statement or certification to the government, failing to file a required report or notice, and tampering with a monitoring device, for example, are punishable by up to two years in prison and a fine. Knowingly failing to pay a fee owed to the government in connection to the CAA is a misdemeanor.

There are also penalties for releasing hazardous air pollutants if those air pollutants put other people in danger. Negligently releasing hazardous air pollutants that put another person in imminent danger of death or serious injury is a misdemeanor, but knowingly doing so is a felony punishable by up to 15 years in prison and a $1 million fine. Like the CWA, the penalties a defendant faces for criminal violations of the CAA are doubled if the defendant has a prior conviction.

The Toxic Substances Control Act (TSCA) regulates the production, importation, use, distribution, and disposal of dangerous chemicals and substances, such as asbestos, led, radon, and PCBs. The TSCA also imposes requirements on individuals and corporations to maintain records and testing relating to these chemicals and to report to the EPA.

Under 15 U.S.C. § 2614, individuals can be prosecuted for environmental crimes under the TSCA if they:

• Unlawfully produce, use, or distribute regulated chemicals for commercial purposes
• Fail to meet federal standards for disposing of regulated chemicals
• Fail to maintain records or submit reports to the EPA as required
• Fail to permit an inspection by the EPA or other government regulators

The penalties for violating the TSCA depend on the potential harm to others caused by the violation. Unlike the CWA and CAA, the TSCA does not criminalize negligent conduct. A person who knowingly or willfully violates the TSCA’s regulations can be charged with a misdemeanor, punishable by up to one year in prison, and fined for each day they are in violation.

However, if a person knowingly and willfully violates the TCSA with knowledge that their violation would place another person in imminent danger of death or serious injury, they may be sentenced for up to 15 years in prison upon conviction. An organization or corporation that knowingly puts others in danger by violating the TSCA can be fined up to $1 million for each violation.

The Resource Conservation and Recovery Act (RCRA) regulates the disposal and transportation of hazardous waste, used oil, and debris and creates a system for issuing permits to facilities that treat, store, and dispose of those materials. Criminal violations of the RCRA arise from improper handling or disposal of hazardous waste as well as failures to comply with the RCRA’s reporting requirements or compliance orders.

Under 42 U.S.C. § 6928(d), most criminal offenses under the RCRA require proving that the defendant had knowledge that his conduct violated the RCRA. A Most offenses under the RCRA are punishable by up to two years in prison and fines, including:

• Making false statements in an application, label, report, or other document filed with the government
• Generating, storing, transporting, or disposing of unidentified hazardous wastes while destroying or altering documents filed with the government
• Transporting unidentified hazardous waste or used oil without a manifest
• Exporting a hazardous waste identified under the RCRA without the consent of the receiving country and in violation of an international agreement between the U.S. and that country
• Storing, treating, transporting, or disposing of used oil not identified or listed as a hazardous waste in the RCRA with knowledge that violates a permit, regulation, or standard

Some criminal offenses under the RCRA carry longer sentences. Knowingly transporting, treating, storing, or disposing of hazardous without a permit or in violation of a permit or other regulations is punishable by up to five years in prison and $50,000 fines for each day in violation. Meanwhile, a person who knowingly transports, treats, stores, disposes of, or exports hazardous waste or used oil and knowingly puts another person in danger of death or serious injury can be sentenced for up to 15 years in prison and up to $250,000 in fines. 

As with the other environmental laws described above, a defendant who has a prior conviction for violating the RCRA can be sentenced to twice the time in prison and twice the fines.

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) regulates the manufacture, distribution, and use of pesticides in the U.S. FIFRA creates a registration process, maintains a list of banned or unregistered pesticides, and requires routine reports from distributors and manufacturers to the EPA to ensure compliance with FIFRA’s regulations. 

Under 7 U.S.C. § 136j, individuals and corporations can be criminally liable for violations of FIFRA such as distributing unregistered or banned pesticides, altering required labeling on pesticides, false advertising or selling pesticides for unauthorized purposes, failing to report to the EPA, and other similar acts.

Most violations of FIFRA are misdemeanors under 7 U.S.C. § 136l, and the potential penalties depend on who the individual or corporation is and the pesticide in question. A registered producer or a producer who knowingly violates FIFRA can be sentenced to a year in prison and up to $50,000 in fines. A commercial applicator of a restricted pesticide or any unregistered producer who knowingly violates FIFRA can be sentenced up to a year in prison and a $25,000 fine. Finally, private applicator who knowingly violates FIFRA can be charged with a misdemeanor and sentenced up to 30 days in jail and a $1,000 fine.

An experienced environmental crimes defense attorney will be familiar with federal environmental regulations, the potential penalties for civil and criminal violations, criminal procedure, and the proper defenses to raise when an individual or corporation is charged with an environmental crime. Having an experienced federal defense lawyer by your side can be the difference between a criminal conviction or a civil penalty, a misdemeanor or a felony, or a fine over jail time.  

For example, some of the environmental crimes mentioned above require the EPA to provide a target with notice of a violation before they can charge them with a crime, and then prove in court that the defendant had knowledge that they were violating environmental regulations. Even when a notice has been provided, an experienced attorney can explain to a judge or jury how the EPA’s notice was insufficient or otherwise failed to adequately inform the defendant as to how they were violating environmental regulations. That lack of knowledge can be the difference between a misdemeanor and a felony under the Clean Water Act.  

Other laws allow defendants to raise “affirmative defenses,” meaning the defendant can admit to the conduct alleged but still raise a defense. For prosecutions involving charges of knowing endangerment under RCRA, for example, it is an affirmative defense that the person endangered consented to the conduct as a reasonably foreseeable hazard of the occupation or medical treatment. Another affirmative defense is raising the “statute of limitations,” which requires the government to dismiss criminal charges if it took too long to charge the defendant.

An experienced environmental crimes defense attorney will also be familiar with constitutional law and can raise challenges to the EPA’s authority to bring criminal charges. For example, an attorney can argue in a particular case that the EPA has exceeded the authority Congress granted it to regulate a particular matter. Under the rule of lenity and the doctrine of unconstitutional vagueness, an attorney can also argue that an environmental regulation is too vague to provide a defendant with adequate notice as to what conduct is illegal.

In some cases, knowing the relevant environmental regulations and available defenses can give an environmental criminal defense attorney the leverage to negotiate a better resolution to the case, such as dismissing criminal charges in favor of paying a civil fine or negotiating a felony down to a misdemeanor. In cases that can’t be resolved except through a trial, it’s important to have an attorney with experience in federal criminal defense matters, as the procedures and laws in federal court are much different than in state courts.

Our attorneys represented an energy company being investigated for allegedly violating environmental regulations by selling used oil. With our help, our client was able to avoid being charged with federal environmental crimes. 

Our firm has covered the expected changes in environmental regulations and enforcement with the incoming Biden administration. The administration is likely to increase criminal prosecutions for environmental violations under the CWA, CAA, and other laws. The administration is also looking at creating a new “Environmental and Climate Justice Division” to police environmental violations that have a disproportionate impact on low-income and minority communities.

The EPA recently issued a report of its “Enforcement Annual Results” for Fiscal Year 2020. In addition to listing the progress made in reducing soil and water contamination and eliminating pollution, the report details some of the civil and criminal cases the EPA has opened against individuals and corporations. The report notes that 247 new criminal cases were opened in 2020, “77 more than in FY 2019 and the most since 2014.” The cases a Michigan company and its owner sentenced to a year in prison for storing hazardous waste, a $5 million settlement with a bottled water company transporting hazardous waste, and a defendant sentenced to 7 years for defrauding the EPA out renewable fuel credits for his biofuel business. 

During the COVID-19 pandemic, the EPA and DOJ have aggressively targeted manufacturers and distributors of pesticides under FIFRA. Specifically, manufacturers of cleaning products and disinfectants have been charged with federal crimes for claiming that their products can kill the novel coronavirus, which requires EPA approval. The prosecutions arise under FIFRA because, according to the government, the coronavirus constitutes a “pest” and products intended to eliminate pests are regulated under FIFRA.