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By Stephen Lee
Jan. 8 — Federal prosecutors are likely to start hunting for worker safety violations when pursuing environmental criminal charges to add an emotional punch to otherwise dry, technical cases, former Justice Department staffers told Bloomberg BNA.
By the same token, companies accused of worker safety violations can expect their environmental records to be scrutinized as prosecutors seek to bolster their cases, said Peter Anderson, who served in the Justice Department's Environmental Crimes Section under presidents George H.W. Bush and Bill Clinton.
The expected shift is being spurred by the Justice Department and Labor Department's new plan to team up on criminal prosecutions when workers are endangered (45 OSHR 1285, 12/24/15).
Under the plan, the Justice Department's Environment and Natural Resources Division will examine cases brought to it by the Occupational Safety and Health Administration to determine whether other charges could be brought, such as witness tampering and violations of clean water and wire fraud laws, John Cruden, the division's assistant attorney general, told reporters Dec. 17.
That hybrid approach opens new opportunities for federal prosecutors working on environmental crime cases, which are usually highly technical—“parts-per-million type of stuff,” Anderson said.
In the past, defense lawyers have sought to exclude evidence about worker deaths because it is “so emotionally wracking” that it could influence juries, Anderson said. But Justice's new plan carves out a lane for prosecutors to do just that.
“If you bring a case that has a multitude of environmental and worker safety violations, you'll get emotional facts in front of the jury that will make them look beyond the more boring, mundane, regulatory [environmental] violations and tap into a conviction-oriented mindset,” Anderson said. “This is a big change in the prosecutor's playbook.”
Paul Larkin, a former Justice staffer under presidents Ronald Reagan and George H.W. Bush, agreed broadly with Anderson's diagnosis.
“The prosecutors will play the sympathy card,” said Larkin, now a senior legal research fellow at the Heritage Institute Center for Legal and Judicial Studies. “They will try to engender sympathy by saying, ‘This is a particular John Doe who got hurt by this [environmental violation].' That's no different from any other case where you're dealing with a complicated crime and it's not clear that anybody in particular got hurt.”
That tactic could be particularly appealing to prosecutors because many environmental crimes don't produce ill effects on victims until years later, Larkin said.
A similar dynamic will work in reverse, Anderson predicted, with prosecutors seeking environmental crimes to bolster lower-priority worker safety violations, which are generally classified only as misdemeanors.
“It's like moths to a flame,” he said. “When you have a catastrophe, a criminal inquiry will come in and look broadly in that two-part inquiry: worker safety and environmental.”
Once prosecutors set out to find environmental violations, they won't have any trouble finding them, Anderson said.
“It's pretty rare when you can't look at a factory pretty closely and you won't find some environmental violations to tag it with,” he said.
David Uhlmann, the longtime former chief of the Justice Department's Environmental Crimes Section, agreed that cases that combine environmental and worker safety harms are more compelling.
But he also said the real value of Justice's new initiative is that it addresses the extent to which worker safety and environmental compliance are typically housed within the same corporate departments.
“The Department of Justice doesn't need a worker endangerment initiative to highlight cases that involve public health threats,” said Uhlmann, now a University of Michigan law professor. “Pairing worker safety and environmental violations may have some benefits in terms of jury appeal, but the greater significance is the stronger enforcement tools that it will provide to address the problem of worker safety and to target companies with poor compliance records.”
The Environmental Crimes Section is the sub-agency that will take the lead in prosecuting employers under the new Justice/Labor plan.
More broadly, Larkin questioned the very notion of prosecuting corporate executives criminally, except in extreme cases.
“If you have someone who knowingly violated, then yes, no question,” he said. “But there's always a fear that they're just going to pick somebody so they can say, ‘Yes, the program's been effective.' ”
At Heritage, Larkin is involved in an “overcriminalization” project that seeks to push back against what he called “the overuse, misuse and abuse of criminal law.”
Baruch Fellner, a management attorney with Gibson, Dunn & Crutcher LLP, said worker safety prosecutions aren't a natural fit with environmental prosecutions because Congress intended the Occupational Safety and Health Act to focus on abatement.
“[The statute] is not designed to throw employers into jail,” Fellner said. “It's about getting the hazards fixed.”
Ultimately the courts will decide whether a worker safety prosecution brought under Justice's plan is consistent with congressional intent, Fellner predicted.
“It'll depend on the predilections of the individual court,” he said. “I would not pretend or be sanguine that employers are going to win this issue, but it will be hard-fought.”
Voices on the left offer a different viewpoint, insisting that criminal prosecutions of scofflaw executives are necessary to send a strong deterrent message to other employers.
Adam Finkel, a former OSHA health standards director, said a crackdown on criminal enforcement also would encourage big corporations to set up information flows so the company leaders know more about what happens on the shop floor.
Referrals about which companies to inspect that come from other agencies are often helpful, “because those people really do have a good intuition about what OSHA should be looking at,” said Finkel, now executive director of the University of Pennsylvania Penn Program on Regulation.
Katie Weatherford, a policy analyst at the Center for Progressive Reform, called the new Justice program “encouraging,” although she added that labor law violations won't always arise in situations that implicate other criminal laws.
“In a trench collapse or unguarded machine incident, there may not be an environmental violation to attach to it,” Weatherford told Bloomberg BNA. “The other types of criminal enforcement—state and local prosecutions—would help to fill the gaps.”
Still other observers were decidedly unimpressed by Justice's announcement.
“There's nothing new here,” Henry Chajet, a management attorney with Jackson Lewis PC, told Bloomberg BNA. “It's a press conference tactic to try to put fear into the hearts of employers and to make OSHA and Justice look like they're tough.”
Uhlmann predicted that the impact the new program makes will depend on how energetically the Labor Department gets behind it.
“If the Department of Labor is supportive of the initiative and shares information about significant noncompliance with the Department of Justice—which they should have been doing all along—then we could see a significant increase in the number of cases where companies endanger public health and the environment,” Uhlmann said.
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