Environmental Protection Agency Administrator Gina McCarthy testifies at an oversight hearing of the Senate Environment and Public Works Committee about the EPA’s proposed carbon pollution standards for existing power plants, on Capitol Hill in Washington, Wednesday, July 23, 2014.
WASHINGTON — While U.S. regulators are actively flagging and tracking corporate violations of federal environmental laws, the government is rarely pursuing criminal penalties for those infractions.
The Environmental Protection Agency, the key department in safeguarding the country’s health from pollutants, pursues criminal charges in fewer than one-half of one percent of total violations, according to new research. Both the EPA and the Department of Justice do continue to score high-visibility accountability successes for environmental crimes every year, but most of these are civil charges, which require less evidence to prove and fewer resources to prosecute.
Yet critics worry that civil proceedings, which typically result in fines but no jail time or restitution, don’t offer the robust deterrent effect necessary to substantively impact corporate decision-making or offer compensation to affected communities.
“More than 64,000 facilities are currently listed in agency databases as being in violation of federal environmental laws, but in most years, fewer than one-half of one percent of violations trigger criminal investigations,” according to a newinvestigation from the Crime Report, a publication of the Center on Media, Crime and Justice at the John Jay College of Criminal Justice in New York.
The study notes that some of the country’s broadest and most powerful environmental laws, including the Clean Air Act and Clean Water Act, provide the EPA with the authority to decide whether legal violations should be dealt with through criminal or civil means. But the vast majority of the time, prosecutors appear to be choosing to pursue civil charges.
“[T]his means most corporate violators can avoid criminal prosecution,” Crime Report deputy managing editor Graham Kates writes in the study, citing eight months of investigation. “As a result, the vast majority of corporate environmental transgressions — even cases that involve the releases of large amounts of toxic chemicals — are relegated to civil and administrative enforcement.”
Further, according to data provided in the investigation, the number of criminal cases launched by the EPA has dropped in recent years. The report suggests that the agency’s Criminal Investigation Division carried out more than 475 criminal investigations in 2001, compared to less than 300 last year.
The Department of Justice, meanwhile, engaged in far fewer. The department’s Environment and Natural Resources Division concluded just 53 criminal cases in fiscal year 2013, according to a formalreport released in April.
Kates says the findings underline “the anomalies of a system that has allowed the vast majority of corporate environmental lawbreakers to escape prosecution.”
Stacked framework
The EPA disagrees with the findings, noting in an email to MintPress News that the “allegations do not square with the facts.” The past fiscal year, an agency spokesperson noted, constituted “the strongest year in criminal sentencing” since 2005.
“In Fiscal Year 2013, EPA’s criminal cases assessed more than $1.5 billion in criminal fines and restitution, and more than $3 billion in court-ordered environmental projects to benefit communities, the largest amounts ever for a single year,” the spokesperson stated.
“We charged 281 defendants and recorded 161 years of incarceration … Big cases like the Deepwater Horizon disaster and Walmart’s [sic] illegal handling of pesticides and hazardous waste resulted in nationwide reforms and billions of dollars to help affected communities.”
The BP and Wal-Mart cases were two of the highest-visibility cases that the EPA concluded last year, and overall, the agency racked up some $5.6 billion in criminal and civil penalties. Most of that significant sum came from just one case: the BP Deepwater Horizon oil spill in the Gulf of Mexico, which resulted in some $3.7 billion. (An agency compilation of its biggest criminal cases from 2013 can be foundhere, while a full report from the year can be foundhere.)
Indeed, the problem is not one of regulators purposefully letting corporate entities off the hook. Rather, the concerns underscored in the new figures point to a systemic problem in which meaningful preventative mechanisms for environmental crime appear to have weakened significantly over the past decade or more.
The Department of Justice, for instance, has focused significantly more attention on terrorism cases since the attacks of Sept. 11, 2001, while decreasing its attention to white-collar crime in general, analysts tell MintPress.
The mammoth BP case notwithstanding, “The trends in enforcement against oil and gas industry violations, whether civil or criminal, whether in state or federal arenas, are down,” Bruce Baizel, energy program director at Earthworks, a legal advocacy group, told MintPress.
“The environmental framework is stacked against robust enforcement, even where the industry knowingly violates the law. They know it is unlikely they will be caught; if caught, they are unlikely to be charged; and if charged, they can work the system to avoid penalties.”
Chronic violations
U.S. regulators have also come under scrutiny for failing to take advantage of the full range of punitive measures available to them. In the aftermath of the Deepwater Horizon crisis, for instance, the EPA rescinded BP’s eligibility for lucrative U.S. government contracts. Yet in March those restrictions were lifted, just in time for the company to bid on new oil and gas leases in the Gulf of Mexico.
“The question of adequate sanctions is an important one, and debarment is a sanction that’s underutilized — not just for environmental crimes but for violations across the board,” Charlie Cray, a researcher with Greenpeace USA, a watchdog group, told MintPress.
“Any company found in criminal violation for environmental crimes can and should be not only prosecuted but also sanctioned to the full extent possible, in a way that meaningfully incentivizes changes to prevent something similar in the future. If the sanctions were tough enough, companies would be proactive in preventing violations from repeating.”
It is the serial nature of much of the environmental crime in the United States that lies at the heart of advocates’ concern around the lack of criminal prosecutions for these violations. The Crime Report findings include afull listing of EPA-flagged violations, and a large number of the companies are marked as “SNC” — an indicator, meaning “Significant Noncompliance,” that is often be applied to chronic violators.
According to the EPA’senforcement guidelines, criminal cases differ most substantially from civil proceedings in whether prosecutors can prove criminal intent — whether violators knowingly broke the law. Thus, while regulators’ prosecutorial discretion over whether to pursue criminal or civil charges for a first-time crime is a gray area, that decision should be more straightforward when dealing with chronic violators.
“The line between civil and criminal prosecution, especially with serial violations, is really a matter of judgment,” says a source who is highly knowledgeable about environmental criminal investigations but who spoke with MintPress on condition of anonymity because he’s no longer in his previous position.
“If a violator has repeated violations and there’s significant damage, especially if there’s any cover-up, those are factors that go into the judgment call over whether prosecutors will pursue civil or criminal charges. The fact is that criminal environmental prosecutions have just not been a priority — the Department of Justice is not being as aggressive as it could be.”
Regulatory catch-up
Meanwhile, the EPA is laboring under pressing budgetary constraints, having already weathered years’ worth of Republican attempts to undermine the agency’s ability to function. Just last week, the House of Representatives Appropriations Committee moved to cut some $700 million from the EPA’s budget.
The combination of weakened political will and resource constrictions has real consequences, both now and into the future. Already, the EPA’s Criminal Enforcement Division numbers just 200 agents, the Crime Report notes, while the Justice Department’s corollary division has just 38 prosecutors. And according to a five-yearstrategic plan released in April, the EPA is planning to pare down the scope of its criminal cases to those with “the most significant health, environmental, and deterrence impacts.”
The end result is a regulatory system constantly playing catch-up, particularly around environmental crimes. In 2012 alone, some 206 million pounds of toxic chemicals were poured into 850 local watersheds in the U.S., according tofindings out last month from the Environment America Research and Policy Center.
“Whether that is the result of weak permits, enforcement failures or actual crimes, one way or another, these polluters are not being held accountable,” John Rumpler, a senior attorney at Environment America and a co-author of the report, told MintPress. “While there are many steps needed to rectify this situation and secure clean water for all Americans, one such step stands squarely before us: finalizing the proposed rule to restore clean water protections to thousands of waterways across the country.”
Rumpler refers to anew rule, proposed in March by the EPA and the Army Corps of Engineers, that would significantly expand the number and scope of waterways under the federal government’s jurisdiction. The proposal, which is open to public comment through mid-October, would bring thousands of smaller streams and additional wetlands under the EPA’s regulatory purview — and its prosecutorial discretion.