U.S. Prosecutors Expected to Stay Tough on Environmental Crime: Former Officials

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By Stephen Lee

Corporate officials will still face the threat of jail time should they get caught committing environmental crimes, despite President Donald Trump’s friendlier tone toward business, several former Justice Department officials tell Bloomberg BNA.

The department will likely continue the Obama administration’s efforts to aggressively prosecute those who violate environmental laws, the officials said, noting that many cases tend to be too blatant to avoid.

“There has been real continuity in the approach towards environmental and workplace safety prosecutions over the past decades,” said Brandon Garrett, a law professor at the University of Virginia School of Law. “I suspect that will continue going forward.”

But others disagree, insisting that the Trump administration can and will take concrete steps to scale back criminal prosecutions.

Yates Memo Still in Force

The bid to get tougher against corporate crime got a boost under President Barack Obama, culminating in a September 2015 memo from then-Deputy Attorney General Sally Yates that called for greater individual accountability.

The memo remains active on the DOJ website.

Wyn Hornbuckle, a Justice spokesman, declined to say whether DOJ’s Environmental Crimes Section would be changing course under Trump.

Steve Solow, former chief of the environmental crimes division, said DOJ will continue ringing up prosecutions under Trump, partly because cases that come to the agency’s attention bear certain “indicia of criminality"—such as data falsification, tampering with monitoring methods, polluting streams and fraud—that no administration can ignore.

“These are basically straight-up criminal cases that would be brought in any administration,” Solow, now a partner with Katten Muchin Rosenman LLP, told Bloomberg BNA.

Business Benefits Too

James Rubin, former assistant chief of the Environmental Crimes Section’s law and policy group, agreed, saying that, in the worst cases, DOJ has little choice but to prosecute.

“It’s unlikely that any administration would have an interest in letting bad actors off the hook, if they’re truly bad actors,” Rubin, now a partner at Dorsey & Whitney LLP, told Bloomberg BNA. “I would be surprised if the Trump administration overtly backed away from that, because it makes sense for everybody, including business. If I’m in business and I know my neighbor is cheating like hell, I want him to get caught. And the only way to really deter bad action is to put a penalty on it.”

Moreover, many of the worst environmental cases “fall out of the sky,” Rubin said. “Macondo, Volkswagen—those cases are going to get prosecuted no matter who’s in power. They’re more reactive. The government doesn’t go looking for those cases.”

A Third Rail

Trump’s Justice Department also won’t want to risk outraging the public by meddling in cases that cry out for punishment, Solow predicted.

Environmental crimes often draw public attention, he said, which makes them hard for DOJ to ignore.

“Interfering with criminal prosecutions has long been considered a third rail in American politics,” Solow said. “In particular, stepping into a local case where there may be local concerns about issues being vindicated can be very treacherous for any politician.”

Cultural Values Still in Place

Yet another reason to expect continued sanctions is that DOJ’s line attorneys are, as a rule, tough-minded prosecutors who believe firmly in enforcement and wouldn’t take kindly to instructions to go easy on businesses, according to Solow.

“The U.S. Attorney’s office and DOJ are filled with lawyers who could do any number of things in their careers,” Solow said. “They have elected, often at personal financial cost, to pursue a career in government.”

“When I was there, Republicans and Democrats all believed in the rule of law, and criminal enforcement was strong no matter who was in charge,” Rubin told Bloomberg BNA.

John Cruden, the acting assistant attorney general under Obama, predicted before Trump won the election that the Yates memo would live on.

“It will stay in effect,” Cruden said. “It will not change at all. I’m 100 percent confident it will bridge any new administration.”

Naive Not to Expect Changes?

But Rena Steinzor, a law professor at the University of Maryland, resisted those arguments, saying “it’s naive not to think there are going to be changes.”

“The expectations are moving to the right,” she said. “The environment for these cases is much larger than three offices at the DOJ.”

For example, the judges Trump appoints “are likely to be business-friendly and government-suspicious,” Steinzor said.

Hostile judges could suppress such cases, as they have under previous Republican presidents, she said. For example, President Ronald Reagan was “very hostile” to the idea of white collar criminal prosecutions, according to Steinzor.

Creating Distractions

One possible sign of the Trump administration’s stance on white-collar crime came on March 8, when Attorney General Jeff Sessions issued a memo directing the 94 U.S. Attorney’s offices to prioritize violent crime cases.

“Dumping the Yates memo would be quite problematic politically, but trying to compel everyone to chase a new shiny ball on a field already occupied by other players is a good way to distract attention and get what you want without embarrassment,” Steinzor said.

She also said Trump is such an outlier that DOJ’s longstanding norms and culture can’t be expected to apply.

“When you have a president who’s accusing his predecessor of wiretapping him without any evidence, I think all bets are off, and we should admit that,” Steinzor said.

Drying Up the Pipeline

Budget cuts at the Environmental Protection Agency could also dry up the pipeline of cases that are sent to Justice, said Garrett, who wrote a book on the topic titled “Too Big to Jail: How Prosecutors Compromise With Corporations.”

Trump’s budget blueprint, offered March 16, would slash EPA funding by nearly a third. The White House Office of Management and Budget said some environmental enforcement programs could be affected, and that the administration plans to concentrate on “enforcement of environmental protection violations on programs that are not delegated to states.”

Rubin went a step further, saying the EPA civil and criminal enforcement program would be cut “dramatically,” which would “have a severe impact on the ability of DOJ to bring cases. The enforcement has to suffer because the pie gets smaller. There are fewer agents, they develop fewer cases. It’s not even a matter of political will. Cutting it will produce less; it’s just math.”

To contact the reporter on this story: Stephen Lee in Washington, D.C. at stephenlee@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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