Violation of Environmental Law: Factors in Pursuing Criminal Enforcement Parallel Proceedings

Violation of Environmental Law:Violation of Environmental Law:Factors in Pursuing Criminal Factors in Pursuing Criminal

EnforcementEnforcementParallel ProceedingsParallel Proceedings

FACTORS THAT MAKE AN FACTORS THAT MAKE AN ENVIRONMENTAL CASE CRIMINALENVIRONMENTAL CASE CRIMINAL

For organizations, decision whether to charge For organizations, decision whether to charge is informed by the “Thompson Memorandum” is informed by the “Thompson Memorandum” ((Principles of Federal Prosecution of Business Principles of Federal Prosecution of Business Corporations)Corporations)

Provides nine factors to consider in Provides nine factors to consider in determining whether to criminally charge a determining whether to criminally charge a corporation in any context, not specific to corporation in any context, not specific to environmental crimesenvironmental crimes


Thompson factors:Thompson factors:1.1. The nature and seriousness of the offense, The nature and seriousness of the offense,

including the risk of harm to the public;including the risk of harm to the public;

2.2. Pervasiveness of wrongdoing within the Pervasiveness of wrongdoing within the corporation;corporation;

3.3. History of past similar conduct, including prior History of past similar conduct, including prior criminal, civil and regulatory enforcement;criminal, civil and regulatory enforcement;

4.4. The corporation’s timely and voluntary disclosure The corporation’s timely and voluntary disclosure of wrongdoing, and its willingness to cooperate in of wrongdoing, and its willingness to cooperate in the investigation its agents;the investigation its agents;


Thompson Factors cont’d:Thompson Factors cont’d:5.5. The existence and adequacy of the corporation’s The existence and adequacy of the corporation’s

compliance program;compliance program;6.6. The corporation’s remedial actions, including The corporation’s remedial actions, including

compliance program, dealing with responsible compliance program, dealing with responsible individuals, restitution;individuals, restitution;

7.7. Collateral consequences;Collateral consequences;8.8. Adequacy of prosecution of responsible Adequacy of prosecution of responsible

individuals; andindividuals; and9.9. Adequacy of non-criminal alternatives.Adequacy of non-criminal alternatives.


Factors considered in all environmental Factors considered in all environmental crimes cases:crimes cases:

1.1. Sufficiency of the evidence to prove all Sufficiency of the evidence to prove all elements of offense, including criminal intentelements of offense, including criminal intent

2.2. Seriousness of environmental harmSeriousness of environmental harm

3.3. Seriousness of public health riskSeriousness of public health risk


4.4. Deliberateness of unlawful conductDeliberateness of unlawful conduct

5.5. Individual culpabilityIndividual culpability

6.6. History of violationsHistory of violations


7.7. Blatant failure to comply with requirements, Blatant failure to comply with requirements, such as obtaining permits; operating outside such as obtaining permits; operating outside the regulatory systemthe regulatory system

8.8. Deceptive conduct as part of the crime, Deceptive conduct as part of the crime,

e.g.e.g., midnight dumping, midnight dumping

9.9. False statements/obstruction of justiceFalse statements/obstruction of justice

10. Relation to other common crimes10. Relation to other common crimes

Criminal case examplesCriminal case examples

United StaUnited States v. Allen Eliastes v. Allen Elias (D. Idaho 1999) (D. Idaho 1999)

• Employees directed to clean cyanide out of railroad Employees directed to clean cyanide out of railroad carcar

• Didn’t provide protective equipmentDidn’t provide protective equipment• Employee passed outEmployee passed out• Lied to physician at hospital, delaying antitodeLied to physician at hospital, delaying antitode• Employee left with severe permanent brain damageEmployee left with severe permanent brain damage

• 17 year prison term, $6 million in fines17 year prison term, $6 million in fines

Criminal Case ExamplesCriminal Case Examples

United States v. Atlantic States Cast Iron United States v. Atlantic States Cast Iron Pipe Co.Pipe Co. (D.N.J.). (D.N.J.).• Prosecuted company and four officialsProsecuted company and four officials• Discharged oil into river, violated air permitDischarged oil into river, violated air permit• Regularly exposed employees to deadly, dangerous Regularly exposed employees to deadly, dangerous

conditionsconditions• One worker killed, others maimedOne worker killed, others maimed• Systematically concealed activities from regulatorsSystematically concealed activities from regulators

• 6-70 months imprisonment, $8 million fine6-70 months imprisonment, $8 million fine

Parallel Civil and Criminal ProceedingsParallel Civil and Criminal Proceedings

What are they?What are they?• Overlapping criminal and civil or Overlapping criminal and civil or

administrative enforcement actions for administrative enforcement actions for the same or a related course of conduct.the same or a related course of conduct.

• May be undertaken simultaneously or May be undertaken simultaneously or sequentially.sequentially.

Parallel ProceedingsParallel Proceedings

Civil and criminal attorneys may exchange Civil and criminal attorneys may exchange information and evidenceinformation and evidence

Civil and administrative discovery must be Civil and administrative discovery must be justified by genuine civil or administrative justified by genuine civil or administrative purposespurposes

May not be used as pretext to obtain May not be used as pretext to obtain information for criminal investigationinformation for criminal investigation


Once a grand jury is convened, criminal Once a grand jury is convened, criminal attorneys cannot share information with attorneys cannot share information with civil attorneyscivil attorneys

Civil and criminal attorneys should consult Civil and criminal attorneys should consult to ensure government taking consistent to ensure government taking consistent positionspositions

Never use threat of criminal prosecution to Never use threat of criminal prosecution to obtain civil settlement. Nor vice versaobtain civil settlement. Nor vice versa


Decisions about civil cases made only be Decisions about civil cases made only be civil attorneyscivil attorneys

Decisions about criminal cases made only Decisions about criminal cases made only by criminal attorneysby criminal attorneys

Generally the civil case will be delayed Generally the civil case will be delayed until criminal proceeding resolved.until criminal proceeding resolved.


Factors that may favor not delaying civil Factors that may favor not delaying civil suit:suit:• Violations present threat to public healthViolations present threat to public health• Defendant may be dissipating assetsDefendant may be dissipating assets• Imminent statute of limitations or bankruptcy Imminent statute of limitations or bankruptcy

deadlinedeadline• Civil proceedings in advanced stageCivil proceedings in advanced stage

Violation of Environmental Law: Factors in Pursuing Criminal Enforcement Parallel Proceedings

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