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Daily Environment Report™ Reproduced with permission from Daily Environment Report, 14 DEN 70, 04/11/2014. Copyright ஽ 2014 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com ENFORCEMENT ENVIRONMENTAL CRIME The authors of this article, in their latest annual review of environmental crime enforcement, provide an update on the prosecution of the Deepwater Horizon oil rig explosion and oil spill, discuss a trend at the Justice Department of seeking to examine independent safety agency investigation interviews, report on the use of ‘‘big data’’ in prosecuting environmental crimes (particularly the fraudulent trade in renewable identification numbers), discuss the use of unique liability theories in the Deepwater Horizon individual prosecutions and analyze DOJ’s stated intent to target large or significant enterprises, death or serious injury and cases involving multiple locations. The State of Environmental Crime Enforcement: A Survey of Developments in 2013 1 STEVEN P. SOLOW AND ANNE M. CARPENTER Changing of the Guard 1 ix years ago in this space, we noted that David The authors would like to thank Katie Noble, Uhlmann had stepped down as chief of the Envi- Law Clerk, Katten Muchin Rosenman LLP for S ronmental Crimes Section (ECS) at the Depart- her assistance in the preparation of this ment of Justice (DOJ), to be replaced by another career article. Ms. Noble is a second-year law stu- prosecutor, Stacey Mitchell. Now, after the second- dent at Georgetown University Law Center. longest tenure as a chief of ECS, Mitchell will become The opinions expressed here do not represent the deputy general counsel at the Environmental Pro- those of BNA, which welcomes other points tection Agency (EPA). The general counsel, Avi Gar- of view. bow, is also an alumnus of ECS, having served there as a trial attorney. Thus, for what may be the first time in COPYRIGHT ஽ 2014 BY THE BUREAU OF NATIONAL AFFAIRS, INC. ISSN 1060-2976 2 its history, EPA’s general counsel and deputy general s the looming use of big data to investigate alleged counsel are both former prosecutors. environmental crimes; and In 1998, Mitchell came to ECS from the Manhattan s District Attorney’s Office. As a trial attorney she partici- arguments by the government in the Deepwater pated in several significant matters, including what may Horizon individual prosecutions that demonstrate have been the first-ever criminal enforcement case un- unique liability theories such as the attempt to use der Title V of the Clean Air Act.2 Prior to becoming a defendant’s silence in a meeting with non- chief, Mitchell served as assistant chief beginning in criminal investigators as evidence of criminal in- September 2005. During her tenure as chief beginning tent and what may be the first-ever use of a com- in 2007, ECS focused on the prosecution of stationary puter fraud statute in an environmental case, as source Clean Air Act cases, including the prosecutions well as several pending appellate issues relating to of BP Products North America Inc.,3 Pelican Refining 4 5 the scope of criminal negligence as a basis for Co. and Tonawanda Coke Corp., as well as fraud in manslaughter prosecutions and application of the the renewable fuels markets, including indictments in rule of lenity. United States v. Jariv6 and United States v. Ducey.7 While doing so, nearly a quarter of ECS cases involved In a separate but similar context, when writing about vessel pollution, and the section remained focused on the recent financial crisis, Federal District Court Judge worker endangerment cases, an initiative begun during Jed S. Rakoff, questioned why ‘‘not a single high-level the tenure of her predecessor, David Uhlmann. An in- executive’’ had been prosecuted.12 It seems likely that, creasing focus of ECS during Mitchell’s tenure has been in the context of the Deepwater Horizon cases, Judge on wildlife trafficking cases, consistent with the issu- Rakoff might have a similar question. The individuals 8 ance of Executive Order 13648 (July 1, 2013) and the prosecuted by the Deepwater Horizon Task Force are February 2014 announcement of a national strategy to far from high-level, and the only two prosecuted in con- combat wildlife trafficking.9 Mitchell also shared with nection with the actual events of April 20, 2010, were the authors that the ECS is increasingly turning its at- tention to prosecuting cases related to energy develop- themselves on the rig that day. As noted by their coun- ment including the recent criminal prosecution of wind- sel in court filings, numerous individuals participated in 13 power operator Duke Energy in connection with the the events leading up to the blowout. Selecting only deaths of migratory birds10 and efforts to investigate in- these two for criminal prosecution seeks to very nar- dustry compliance in new areas of energy development, rowly place the weight of liability on these few individu- such as hydraulic fracturing.11 als. As described in this year’s article, other changes have This effort bears mention in relation to another issue been under way in the past year as well. These include: discussed immediately below. s DOJ efforts to use the results of federal safety Efforts are under way by DOJ to use the outcomes of agency reviews for criminal cases; safety investigations in criminal cases. Safety investigations are related to, but differ significantly from, efforts s the BP legal challenge to EPA’s suspension of the to find a culpable individual. In the book ‘‘Guidelines company and more than a dozen BP affiliates, as for Investigating Chemical Process Incidents’’ it is well as the recent administrative agreement re- noted at the outset that ‘‘the key to preventing disaster solving the suspensions and the statutory disquali- first lies in recognizing leading indicators.’’14 As the fication of the company; book notes, doing so involves learning from both near misses and from major consequence accidents.15 What 2 See Press Release, Dep’t of Justice, Ohio Man Indicted for does not appear to be recognized by prosecutors seek- Violation of the Clean Air Act (Jan. 15, 2003), available at ing to obtain the results of safety investigations, or who http://www.justice.gov/opa/pr/2003/January/03_enrd_019.htm. may seek to merge such investigations with investiga- Littlehale was a vice president for a label manufacturer and was sentenced to an 18-month term of imprisonment. tion of criminal liability, is the risk that their efforts to 3 United States v. BP Prods. N. Am. Inc., 610 F. Supp. 2d find a culprit will warp the far more nuanced and com- 655, 2009 BL 50489 (S.D. Tex. 2009). plex effort to find the true causal and root reasons why 4 United States v. Pelican Reﬁning Co., No. 2:11-cr-00227 an incident occurs. It is the latter effort that is necessary (W.D. La. sentence entered Dec. 19, 2011). 5 United States v. Tonawanda Coke Corp., No. 1:10-cr- if others are going to be able to identify the correctable 00219 (W.D.N.Y. jury verdict entered Mar. 28, 2013). failure that resulted in an incident. It remains to be seen 6 No. 2:14-cr-00006 (D. Nev. indictment entered Jan. 8, on what basis the government addresses the balance 2014). between law enforcement and safety investigations. 7 No. 1:13-cr-00189 (S.D. Ind. indictment entered Sept. 17, 2013). 8 12 Exec. Order No. 13,648, 78 Fed. Reg. 40,621 (July 1, 2013). JED S. RAKOFF,THE FINANCIAL CRISIS:WHY HAVE NO HIGH- 9 Press Release, Office of the Press Secretary, The White LEVEL EXECUTIVES BEEN PROSECUTED (2014), available at http:// House, Fact Sheet: National Strategy for Combating Wildlife www.nybooks.com/articles/archives/2014/jan/09/financial- Trafficking & Commercial Ban on Trade in Elephant Ivory crisis-why-no-executive-prosecutions/. (Feb. 11, 2014), available at http://www.whitehouse.gov/the- 13 Joint Motion to Dismiss Counts 1-23 of the Superseding press-office/2014/02/11/fact-sheet-national-strategy- Indictment, United States v. Kaluza & Vidrine, No. 2:12-cr- combating-wildlife-trafficking-commercial-b. 00265 (E.D. La. Sept. 26, 2013), ECF No. 104. 10 14 United States v. Duke Energy Renewables, Inc., No. 2:13- CENTER FOR CHEM.PROCESS SAFETY,AMERICAN INSTITUTE OF cr-00268 (D. Wyo. sentence entered Nov. 22, 2013). CHEM.ENG’RS,GUIDELINES FOR INVESTIGATING CHEMICAL PROCESS INCI- 11 United States v. Integrated Prod. Servs., No. 6:11-cr- DENTS 1 (2d ed. 2003). 00068 (E.D. Okla. sentence entered Apr. 27, 2012). 15 Id. 4-11-14 COPYRIGHT ஽ 2014 BY THE BUREAU OF NATIONAL AFFAIRS, INC. DEN ISSN 1060-2976 3 Could the Pursuit of Criminal Cases fective safety investigations.20 Hall’s concern was that the mere presence of a criminal investigation could Undermine the Work of the NTSB and the scare away critical witnesses from the NTSB’s efforts. CSB? Hall’s concern was about parallel criminal investigations. His concerns did not extend to the possibility that When there is a transportation accident (an airplane prosecutors would not only run parallel investigations, crash, a pipeline failure, a train collision) the National but would also seek to extract the results of NTSB or Transportation Safety Board (NTSB) investigates the CSB safety interviews for use in criminal investigations. cause. When there is an accidental release resulting in In response to DOJ’s effort to use NTSB or CSB in- a fatality, serious injury or substantial property dam- terviews in criminal cases, Hall told the authors, ‘‘Con- ages at a chemical plant or a refinery, the Chemical gress knew that it would hamper the fact-finding pro- Safety Board (CSB) investigates the cause.

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