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WASHINGTON D.C. (April 9, 2009) – Economically strapped businesses that have cut back on environmental compliance during the recession may be in for a rude awakening by an expected wave of aggressive enforcement under the Obama Administration.  Such will be a key theme behind this year’s ALI-ABA (American Law Institute-American Bar Association) Conference on Criminal Enforcement of Environmental Laws, set for May 14 at Venable LLP in Washington D.C.

The upcoming program – the 15th annual – will be the first to examine federal and state criminal environmental enforcement issues since last year’s presidential election. The daylong event will cover a full range of environmental law enforcement topics, including internal investigations, trial tactics, sentencing guidelines and penalties, appeals, as well as ethics and professional responsibilities.  It is the only conference of its kind to promote discussion between representatives of the regulated community, defense counsel, government prosecutors and policy makers.  For a full schedule, see: www.venable.com/ali-aba.

Co-chairing the conference, as they have for many years, are Venable partners Judson Starr and Jerry Block, both of whom served as chiefs of the Department of Justice’s Environmental Crimes Section.

Messrs. Starr and Block describe the “perfect storm” of conditions coming together that are certain to increase the pace and volume of environmental enforcement activity.  “First, the recession has prompted many companies to dial down on environmental oversight and compliance, since these areas obviously don’t drive profits,” Mr. Starr said.  Moreover, many businesses had gotten accustomed to a less rigorous enforcement agenda during the previous eight years of the Bush Administration, he added.

President Obama has already ushered in several key appointees certain to beef up environmental investigations and prosecutions.  They include Lisa Jackson, the new Administrator of the U.S. Environmental Protection Agency, as well as Cynthia Giles, recently nominated to be Assistant Administrator for the Office of Enforcement and Compliance Assurance (OECA). 

“Jackson has signaled her intention to get tough on enforcement, and Cindy Giles brings a deep background as both a former federal prosecutor and a regional EPA enforcement director in Philadelphia,” Mr. Starr said.  “It’s a safe prediction that the Obama-era EPA will be playing tough cop on the environmental beat.” 

He and Mr. Block noted that next up will be a new nominee to head the Department of Justice’s Environment and Natural Resources Division, in which the Environmental Crimes Section is located.  “No one doubts that Attorney General Holder will fill that position with someone who has a strong set of enforcement credentials,” Mr. Block added.

The Venable attorneys cited several other factors likely to expand the focus and intensity of the government’s criminal pursuit of companies caught violating environmental laws:
  • Climate Change Mandate – "President Obama’s vow to support climate change legislation mandating a reduction in carbon emissions, along with EPA’s recently proposed 'endangerment finding' under the Clean Air Act that greenhouse gasses - including carbon dioxide - pose a danger to human health and welfare, will play a huge role in invigorating criminal enforcement of companies and individuals believed to be undermining those macro policy objectives,” Mr. Block said.  He and Mr. Starr expect to see a rise in the number of investigations tied to violations of both the Clean Air and Clean Water Acts, especially when businesses appear to be flagrantly circumventing new regulations to control fossil fuel emissions or engaging in illegal dumping or disposal.
  • Crime Victims Rights Act – This 2004 statute allows victims to express their views to the court during the sentencing phase of criminal proceedings and requires their participation at all other critical phases of the case.  Messers. Starr and Block note its increasing use in environmental cases in which families and others affected by industrial mishaps are given weight by judges when sentencing executives and companies convicted of environmental crimes. Just this past February, the Ninth Circuit Court of Appeals held that 34 potential government witnesses testifying against WR Grace over asbestos-related injuries were “crime victims” as defined under the Act, and, as such, had a right to be present in the courtroom despite the judge’s sequestration order.
  • OSHA Influence – Messers. Starr and Block note that where worker safety violations are present, chances are high that environmental breaches are also in evidence, suggesting that companies found to be lax under Occupational Safety and Health Administration regulations are liable to be investigated for not upholding environmental laws.  They predict that more executives are going to be prosecuted for worker deaths and injuries in the future as Congress considers upgrading serious OSHA violations to criminal felonies. 
  • Union Clout Returns – Another development favoring increased prosecution is the return to union-friendly policies under the Obama Administration.  “Companies that appear to have relaxed environmental policies – in manufacturing, transportation of hazardous materials, emissions controls, waste hauling, recycling, even how often they let their trucks idle at the loading docks – will definitely be subject to greater scrutiny and potential whistleblowing by workers and union shops, which in turn will ratchet up government action for potential violations,” Mr. Starr said.  “Many a knock on the door by federal or state investigators can begin with complaints coming from the factory floor, particularly with increased provisions to accommodate whistleblower actions.”

“Given the marked drop-off in environmental actions during most of this decade – including the decrease following 9/11 – the current regulatory climate is like a slingshot that has been pulled back, tense and ready to fire,” Mr. Block described. 

“While the new administration pursues a grand plan for eco-friendly practices, we expect to see lower tolerance for companies that don’t comply with environmental statutes.  And we believe that prosecutorial vigor will apply to the state level as well, with stepped-up investigations by state attorneys general and state environmental agencies.”

The May 14 program will cover four separate panels:  internal investigations; trial issues; sentencing; and hot topics, including percolating legal issues under development, such as the government’s reach in maritime cases and amendments to the Lacey Act, which regulates cross-border traffic of plant products.  Also under discussion will be some of the largest environmental prosecutions in recent years, including the explosion at a British Petroleum refinery in Texas City, Texas in 2005 in which 15 people were killed.

“We hope this year’s program will give attendees a keen sense of the change in focus and direction of enforcement under the new administration – with clues as to how the government may handle environmental actions going forward,” Mr. Starr said. 

The ALI-ABA event will also be available for viewing via Webcast.

For more information about the Criminal Enforcement of Environmental Laws program or to register online, please visit www.ali-aba.org/CP066. Attendees can receive 25% off the tuition price of by entering coupon code CP06625 at checkout and clicking “Apply” to redeem the discount. 

 

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Note:  An American Lawyer top 100 law firm, Venable LLP has attorneys practicing in all areas of corporate and business law, complex litigation, intellectual property and government affairs. Venable serves corporate, institutional, governmental, nonprofit and individual clients throughout the U.S. and around the world from its headquarters in Washington, D.C. and offices in California, Maryland, New York and Virginia. For more, visit www.venable.com

Note: Located in Philadelphia, Pennsylvania, and founded more than 60 years ago as a joint undertaking of the American Law Institute and the American Bar Association, ALI-ABA provides post-admission education for the legal profession. ALI-ABA is dedicated to keeping the legal community abreast of current developments and providing practitioners with the resources necessary to enhance their practice. ALI-ABA offers a national curriculum of continuing legal education featuring traditional substantive CLE courses, litigation and transactional skills programs, distance learning courses, published books and periodicals, online materials, customized solutions for institutions, and in-house services for lawyers at every stage of their careers. Visit the ALI-ABA website at www.ali-aba.org.