For the Defense - Vol. 7, Issue 3 - 14

interest in environmental protection comes after a halfcentury
of enforcement under the national and/or state
environmental laws.
Perhaps a reason for the renewed environmental
protection fervor is the reality that enforcement under
the federal environmental laws by the United States
Environmental Protection Agency ( " EPA " ) has heavily
decreased over the past decade.8
Since 2011, civil
environmental enforcement cases are down 46.7%,
criminal environmental enforcement cases are down
71.4%, and inspections (which are a prime referral source
for civil and criminal enforcement) are down 84% - albeit,
this last figure has been, in part, more heavily impacted
by the logistical restrictions imposed by the COVID-19
pandemic.9
Pennsylvania's Department of Environmental
Protection ( " DEP " ) has also been marred by threats to
its enforcement capabilities due, in part, to budgetary
and staffing shortages in its individual program sections,
such as the Clean Water Program and the Hazardous Sites
Cleanup Program.10
Nonetheless, there are signals that more aggressive
environmental enforcement may possibly be on the
horizon in both the federal and state systems. At the
federal level, the Biden Administration has proposed an
$11.881 billion budget for the EPA for fiscal year 2023
(October 1, 2022 to September 30, 2023).11
This is the
largest proposed budget for the EPA since 2010-and,
for that matter, ever.12
Earlier this year,
It includes a 36.27% increase in
funding for criminal enforcement and the addition of
close to 300 new EPA employees who will focus solely
on criminal enforcement matters.13
Larry Starfield, EPA's Acting Assistant Administrator for
the Office of Enforcement and Compliance, noted that
" rigorous enforcement is back at EPA. " 14
The United States
Department of Justice ( " DOJ " ) has broadcasted similar
tropes. Within the past year, Deborah Harris, Chief of DOJ's
Environmental Crimes Section, has warned that federal
environmental enforcement is " going back to a little more
stick than carrot " with plans to ramp up false statements
and fraud prosecutions in tow with environmental
violations.15
DOJ also intends to emphasize inspection
training to better identify environmental violations and
increase investigatory and enforcement coordination
with the EPA and other agencies.16
Todd Kim, Assistant
Attorney General for the DOJ's Environmental and
Natural Resources Division ( " ENRD " ), has foreshadowed
an emphasis on enforcement of individuals stating that
" [o]nly individuals can go to jail . . . criminal corporate
accountability starts with accountability for individuals
responsible for criminal conduct. " 17
Here in Pennsylvania, Governor Tom Wolf's final
budget for fiscal year 2022-2023 provided $183 million
in funding for DEP, with specific funds reportedly
allocated to DEP's operating budget to hire more staff to
conduct inspections and permit reviews, which are often
precursors to criminal exposure.18
DEP's budget for fiscal
year 2022-2023 represents approximately a 6% increase
14 For The Defense l Vol. 7, Issue 3
in funding overall from its $172.5 million fiscal year 20212022
budget.19
Under Pennsylvania Attorney General Josh
Shapiro's leadership, the Office of Attorney General's
( " OAG " ) Environmental Crimes Section has received
public and industry attention in its criminal environmental
prosecution of various oil and gas industry entities since
2020.20
While nothing is for certain, there is great potential for
an uptick in environmental enforcement in Pennsylvania
through both federal and state systems in the near
future. Today's environmental statutes typically contain
administrative penalties, civil remedies, and criminal
charging provisions. As such, enforcement can come from
prosecutorial offices (possibly both civil and criminal sides
of the same office) and agencies alike - and the timing
may overlap.
Environmental laws are highly susceptible to these socalled
parallel proceedings, which are defined as " the
simultaneous or successive investigation or litigation of
separate criminal, civil, or administrative proceedings
commenced by different agencies, different branches of
government, or private litigants arising out of a common
set of facts. " 21
The United States Supreme Court has
held that the government may pursue simultaneously
criminal and civil redress relating to the same target and
arising out of the same set of facts.22
Federal and state
courts in Pennsylvania, too, have authored rulings to
similar effects.23
Due to environmental laws providing
for administrative, civil, and criminal enforcement tools,
different agencies and prosecutorial offices can each
have their own bite of the same apple while catering
to their specific enforcement interests. These situations
present unique challenges for targeted defendants and
their defense counsel as different enforcement bodies
can bring different cases relating to the same conduct at
the same or overlapping time.
The advent of these situations is complex, highly variable
and unique to each situation. As such, it is important for
defense counsel, when representing a client subject to
potential environmental enforcement exposure at least
to gain initial familiarity with the government's own
internal policies governing the institution of parallel
proceedings.
At the federal level, the United States Department
of Justice adheres to department-wide general
policy memoranda governing its approach to parallel
proceedings. These principles apply in the environmental
context.24
On July 28, 1997, Attorney General Janet
Reno issued the " Coordination of Parallel, Criminal,
Civil, and Administrative Proceedings " memorandum
( " 1997
Memorandum " ).25
The
1997
Memorandum
mandates communication and coordination among the
agencies and prosecutorial offices (both criminal and
civil sides).26
To avoid procedural, evidentiary, and ethical
The OAG's Environmental Crimes Section appears
primed to continue its heightened activity in this space
post-Shapiro.
For the Defense - Vol. 7, Issue 3

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