Environmental Law

Civil or Criminal: You Do Not Get To Choose?

By Walter James

I often get the question: ?How do the regulators decide to pursue a case in the criminal process rather than the civil process??  My stock answer is typically: ?It depends on who gets to your door first.?  There is actually some method to a determination of whether a matter is prosecuted as a crime or whether it is referred for civil enforcement.  That method includes consideration of the following factors (again, a thanks to Kris Dighe for synthesizing the issues):

1.                   Sufficiency of the evidence:  The question asked is how much and of what quality is the evidence to prove up each element of the alleged violations.  The stronger the evidence, the more likely a criminal charge will be brought.

2.                   Seriousness of the harm:  Some cases are easy (for example the Elias case).  Others are a harder call as the seriousness of the harm may not be evident at first and may only develop after years as a bubbly cauldron of toxic soup. 

3.                   The degree to which the violations were intentional.  Maybe the best example is the so-called ?magic pipe? cases.  It is hard to argue that an act was not intentional when you have to hook up a special pipe.

4.                   Deceptive conduct:  This is the ?midnight dumping? aspect of the analysis.  This would also include such activities as a hidden bypass pipe (i.e. the ?magic pipe?); a double set of books (i.e. the Oil Record Book being falsified).

5.                   Program integrity: otherwise known as ? Did you lie to the regulators?

6.                   Program history:  Is there a history of non-compliance or past violations?  I always ask the question in the context of NPDES permit discharges as follows:  Is one violation criminal?  How about ten within a month?  How about three straight months of those same ten exceedences?  How about two years with fifteen or more exceedences in each month?  You get the idea.

7.                   Permit status:  Does the facility have the appropriate permits and is there an indication that there was a blatant failure to obtain the appropriate permits?

These are the type of factors that will move a case from the civil enforcement arena to a criminal prosecution.

More later.

As always, feel free to contact me via e-mail at walter.james@jamespllc.com.

WDJiii

Full post as published by Environmental Crimes Blog on March 27, 2009 (boomark / email).