Violation of Environmental Law: Factors in Pursuing Criminal Enforcement Parallel Proceedings

1. Violation of Environmental Law:Factors in Pursuing Criminal EnforcementParallel Proceedings

2. FACTORS THAT MAKE AN ENVIRONMENTAL CASE CRIMINAL • For organizations, decision whether to charge is informed by the “Thompson Memorandum” (Principles of Federal Prosecution of Business Corporations) • Provides nine factors to consider in determining whether to criminally charge a corporation in any context, not specific to environmental crimes

3. FACTORS THAT MAKE AN ENVIRONMENTAL CASE CRIMINAL • Thompson factors: • The nature and seriousness of the offense, including the risk of harm to the public; • Pervasiveness of wrongdoing within the corporation; • History of past similar conduct, including prior criminal, civil and regulatory enforcement; • The corporation’s timely and voluntary disclosure of wrongdoing, and its willingness to cooperate in the investigation its agents;

4. FACTORS THAT MAKE AN ENVIRONMENTAL CASE CRIMINAL • Thompson Factors cont’d: • The existence and adequacy of the corporation’s compliance program; • The corporation’s remedial actions, including compliance program, dealing with responsible individuals, restitution; • Collateral consequences; • Adequacy of prosecution of responsible individuals; and • Adequacy of non-criminal alternatives.

5. FACTORS THAT MAKE AN ENVIRONMENTAL CASE CRIMINAL • Factors considered in all environmental crimes cases: • Sufficiency of the evidence to prove all elements of offense, including criminal intent • Seriousness of environmental harm • Seriousness of public health risk

6. FACTORS THAT MAKE AN ENVIRONMENTAL CASE CRIMINAL 4. Deliberateness of unlawful conduct • Individual culpability 6. History of violations

7. FACTORS THAT MAKE AN ENVIRONMENTAL CASE CRIMINAL • Blatant failure to comply with requirements, such as obtaining permits; operating outside the regulatory system • Deceptive conduct as part of the crime, e.g., midnight dumping • False statements/obstruction of justice 10. Relation to other common crimes

8. Criminal case examples • United States v. Allen Elias (D. Idaho 1999) • Employees directed to clean cyanide out of railroad car • Didn’t provide protective equipment • Employee passed out • Lied to physician at hospital, delaying antitode • Employee left with severe permanent brain damage • 17 year prison term, $6 million in fines

9. Criminal Case Examples • United States v. Atlantic States Cast Iron Pipe Co. (D.N.J.). • Prosecuted company and four officials • Discharged oil into river, violated air permit • Regularly exposed employees to deadly, dangerous conditions • One worker killed, others maimed • Systematically concealed activities from regulators • 6-70 months imprisonment, $8 million fine

10. Parallel Civil and Criminal Proceedings • What are they? • Overlapping criminal and civil or administrative enforcement actions for the same or a related course of conduct. • May be undertaken simultaneously or sequentially.

11. Parallel Proceedings Civil and criminal attorneys may exchange information and evidence Civil and administrative discovery must be justified by genuine civil or administrative purposes May not be used as pretext to obtain information for criminal investigation

12. Parallel Proceedings Once a grand jury is convened, criminal attorneys cannot share information with civil attorneys Civil and criminal attorneys should consult to ensure government taking consistent positions Never use threat of criminal prosecution to obtain civil settlement. Nor vice versa

13. Parallel Proceedings Decisions about civil cases made only be civil attorneys Decisions about criminal cases made only by criminal attorneys Generally the civil case will be delayed until criminal proceeding resolved.

14. Parallel Proceedings • Factors that may favor not delaying civil suit: • Violations present threat to public health • Defendant may be dissipating assets • Imminent statute of limitations or bankruptcy deadline • Civil proceedings in advanced stage