Aggressive Environmental Enforcement—The New Reality?

On November 29, 2021, we posted that the U.S. Department of Justice (DOJ) had recently reinstated the Yates memo, a 2015 enforcement policy memorandum that had been rescinded by the Trump Administration. The Yates memo emphasizes that full cooperation, including the identification of all involved individuals, is required for a corporation seeking leniency in criminal prosecutions.

As the blog post mentions, the demand to identify all participants could put corporations in a more difficult posture as they seek to deflect major fines and individual liability. We also noted that the stringency of the reinstated DOJ policy remained to be seen in practice.

In his keynote address to the National Environmental Enforcement Conference on December 14, 2021, Todd Kim, the Assistant Attorney General in charge of the Environment and Natural Resources Division, made the likely approach more clear: DOJ won't restrict its criminal enforcement to environmental statutes and will also consider Title 18 crimes of fraud, conspiracy, and obstruction of justice. As reported, Kim said that "[a] genuine threat of criminal prosecution can and will change the conduct of individuals and corporations who would not be deterred by the threat of civil enforcement alone."

Speeches, like memos, do not always reflect reality, but counsel in the environmental area are well-advised to caution their clients to pay close attention to regulatory compliance.