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DOJ’s Environmental Enforcement Priorities and Expectations – Refocusing on the Rule of Law

In recent months, the U.S. Department of Justice (“DOJ” or the “Department”) has issued a series of memoranda from the Department’s highest levels to its various component divisions, which includes the Environment and Natural Resources Division (“ENRD”). The ENRD is charged with prosecuting cases against persons who violate the nation’s civil and criminal pollution-control laws. The ENRD has both a civil and criminal division, each of which routinely collaborates with various states in the ENRD’s pursuit of enforcement initiatives.

In the years leading up to the 2016 election, in both civil and criminal ENRD cases, settlement payments to non-party recipients had increasingly been permitted in exchange for the Department’s willingness to reduce – or eliminate – fines or other punishments. However, two DOJ memoranda issued within the last year noted that DOJ intends to eliminate that practice across all of its components.

Additionally, DOJ had shown a willingness to enforce based upon guidance that was not subject to notice-and-comment rulemaking. Under the current DOJ leadership, that practice will end.

Finally, the ENRD issued a memorandum regarding its enforcement principles and priorities, as well as how the ENRD plans to approach its settlement and enforcement efforts going forward. This blog post represents the first in a series of posts discussing these DOJ and ENRD initiatives and possible impacts of such initiatives on the energy sector.

Prohibition on Enforcement of Agency Guidance

  • Prohibition of Settlement Payments to Third Parties” (the “Settlement Payment Memorandum”).  The Settlement Payment Memorandum, issued on June 5, 2017, noted DOJ’s plan to discontinue its practice of paying certain third-party, non-governmental organizations as a condition of settlement with the United States government. The memorandum states that, going forward, DOJ attorneys cannot enter settlement agreements, accept plea agreements, or defer prosecution in exchange for payment or loan to any non-governmental person or entity that was not a party to (or a victim of) the dispute, except in three defined instances.[1]

  • As a follow-up to the Settlement Payment Memorandum, on January 9, 2018, the ENRD issued a memorandum titled “Prohibition on Settlement Payments to Third Parties in ENRD Cases” (“ENRD Settlement Payment Memorandum”), which provided guidance regarding how to apply the Settlement Payment Memorandum in ENRD civil and criminal cases. The ENRD Settlement Payment Memorandum provided examples of the types of remedial initiatives that would fit the exception described in the Settlement Payment Memorandum (permitting the use of third-party payments in environmental cases where the payment or loan directly remedies the harm sought to be redressed1).

Prohibition of Settlements to Third Parties

  • On November 16, 2017, the DOJ issued its “Prohibition on Improper Guidance Documents” (the “First Guidance Document Memorandum”). In it, the DOJ asserted that it will no longer use guidance documents that have not been subject to notice-and-comment rulemaking in order to impose requirements on entities outside the Executive Branch.

  • As a follow-up to the First Guidance Document Memorandum, the DOJ released a memorandum titled “Limiting the Use of Agency Guidance Documents in Affirmative Civil Enforcement Cases” on January 25, 2018 (the “Second Guidance Document Memorandum”). The Second Guidance Document Memorandum notes that principles from the First Guidance Document Memorandum extend beyond DOJ’s own guidance documents and are intended to guide DOJ litigators in determining the legal relevance of other agencies’ guidance documents in affirmative civil enforcement.

ENRD Enforcement Principles and Priorities

  • Finally, on March 12, 2018, Jeffrey H. Wood, DOJ’s Acting Assistant Attorney General for ENRD, issued a memorandum titled “Enforcement Principles and Priorities” (the “Wood Memorandum”). The Wood Memorandum broadly outlined the ENRD's 7 enforcement principles and its 5 enforcement priorities.

In the coming weeks, we intend to take a deeper dive into various concepts discussed above through individual articles devoted to these topics, including the principles that Acting Assistant Attorney General Wood identified, the ENRD's enforcement priorities, and the practical impacts that restrictions on third-party settlement recipients and policy-based enforcement may have on department investigations 


[1] The Settlement Payment Memorandum listed three exceptions: (1) the policy does not apply to an otherwise lawful payment or loan that provides restitution to a victim or that otherwise directly remedies the harm that is sought to be redressed, including, for example, harm to the environment or from official corruption; (2) the policy does not apply to payments for legal or other professional services rendered in connection with the case; and (3) the policy does not apply to payments expressly authorized by statute, including restitution and forfeiture.

© 2018 Bracewell LLP

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Kevin D. Collins, Bracewell, Government Investigations Attorney, Chemicals Sector lawyer,
Partner

Kevin is a former Assistant U.S. Attorney from the Eastern District of Texas. He is a trial lawyer and has experience trying cases to jury verdict in state and federal court.

He also assists companies responding to government investigations after major industrial accidents and chemical releases in the energy and chemical sectors. Kevin has experience responding to investigations by the U.S. Environmental Protection Agency (EPA), the Chemical Safety Board (CSB), the Occupational Safety and Health Administration (OSHA), the Pipeline and Hazardous...

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Jason Hutt, Environmental Attorney, Bracewell law firm
Partner

Jason Hutt, head of the firm’s Environmental and Natural Resources practice, advises energy companies, manufacturers, project developers, investor groups and financial institutions about environmental risks and liabilities associated with incident response, regulatory compliance, project development, congressional and internal investigations and corporate transactions. He also assists in the defense of administrative, civil and criminal proceedings involving environmental enforcement agencies at the federal and state levels. Jason counsels clients on current and upcoming regulatory developments at the nexus of environmental and energy policy, with focused attention on shale gas development (including hydraulic fracturing).

202-828-5850
Ryan M. Eletto, Bracewell, environmental strategy lawyer, energy regulatory matters attorney
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Ryan Eletto focuses his practice on energy regulation, environmental strategy, regulatory matters and public policy issues. He advises energy companies and other clients in litigation, investigation, enforcement and compliance matters involving administrative agencies, including the Federal Energy Regulatory Commission and the Commodity Futures Trading Commission. 

Prior to joining Bracewell, Ryan served as a law clerk to the Honorable Bruce E. Kasold of the U.S. Court of Appeals for Veterans Claims in Washington, D.C. 

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Kevin Voelkel assists clients on environmental regulatory, enforcement and policy matters, as well as pipeline safety issues. His clients include companies in the offshore exploration and development, natural gas and liquids pipelines and power transmission sectors.

Before joining Bracewell, Kevin completed internship programs at various energy and oil and gas-focused agencies and organizations, including the North American Electric Reliability Corporation and the Pipeline and Hazardous Materials Safety Administration. He was also a research...

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