|5-11.101||Categories of Litigation|
|5-11.102||Other Criminal Provisions|
|5-11.103||Notice of Case Initiation|
|5-11.104||Responsibility for Case Development and Prosecution|
|5-11.105||Community Service Payments in Environmental Crime Cases|
|5-11.106||Foreign Vessel Matters; MOTR Protocols|
|5-11.107||Other ECS Functions: Policy-Making; Support; Exchanging Case Information; Information and Guidance Clearinghouse|
|5-11.108||Notification of Case Resolutions|
|5-11.113||Coordination with State Programs|
|5-11.114||Individual and Corporate Defendants|
|5-11.116||Protecting Federal Interests in Plea Agreements|
|5-11.117||Handling of Appeals|
|5-11.118||Notice of Appeals|
|5-11.119||Record on Appeal|
|5-11.120||Table of Notifications and Coordination|
5-11.101 - Categories of Litigation
The provisions of this chapter apply to all prosecutions initiated pursuant to the statutes identified below. While all of them are considered environmental crimes, for convenient reference they are divided into four groups: pollution crimes, wildlife crimes, animal welfare crimes, and worker safety crimes.
- Pollution Crimes
Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. §§ 136y
Energy Supply and Environmental Coordination Act, 15 U.S.C. §§ 791-798
Toxic Substances Control Act (TSCA), 15 U.S.C. §§ 2601-2697
Surface Mining Control and Reclamation Act, 30 U.S.C. §§ 1201-1211
Rivers and Harbors Appropriations Act, 33 U.S.C. § 403, and Refuse Act, 33 U.S.C. § 407
Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. §§ 1251-1388
Marine Protection Research and Sanctuaries Act (Ocean Dumping Act), 33 U.S.C. §§ 1401-1445
Deepwater Port Act, 33 U.S.C. §§ 1501-1524
Act to Prevent Pollution From Ships, 33 U.S.C. §§ 1901-1915
Safe Drinking Water Act, 42 U.S.C. §§ 300f-300j-27
Atomic Energy Act, 42 U.S.C. §§ 2011-2296b-7 (violations under 42 U.S.C. §§ 2272 and 2273)
Noise Control Act, 42 U.S.C. §§ 4901-4918
Solid Waste Disposal Act (including, in Subchapter III, the Resource Conservation and Recovery Act (RCRA)), 42 U.S.C. §§ 6901-6992k
Clean Air Act, 42 U.S.C. §§ 7401-7671q
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675
Emergency Planning and Community Right to Know Act (EPCRA) (SARA Title III), 42 U.S.C. §§ 11001-11050
Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1331-1356b
Federal Hazardous Material Transportation Law, 49 U.S.C. §§ 5101-5128
- Wildlife Crimes
Fish and Wildlife Coordination Act, 16 U.S.C. §§ 661-667e
Bald and Golden Eagle Protection Act, 16 U.S.C. §§ 668-668
National Wildlife Refuge System Administration Act, 16 U.S.C. §§ 668dd-668ee
Sikes Act, 16 U.S.C. §§ 670a-670o
Migratory Bird Treaty Act, 16 U.S.C. §§ 703-712
Migratory Bird Conservation Act, 16 U.S.C. §§ 715-715r
Airborne Hunting Act, 16 U.S.C. §§ 742j-1
Northern Pacific Halibut Act of 1982, 16 U.S.C. §§ 773-773k
Whaling Convention Act, 16 U.S.C. §§ 916-916<i>l</i>
Fur Seal Act of 1966, 16 U.S.C. §§ 1151-1175<i> </i>
Marine Mammal Protection Act, 16 U.S.C. §§ 1361-1423h
Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544
Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1891d
Antarctic Conservation Act, 16 U.S.C. §§ 2401-2413
Antarctic Marine Living Resources Convention, 16 U.S.C. §§ 2431-2444
Lacey Act Amendments of 1981 (Lacey Act), 16 U.S.C. §§ 3371-3378, 18 U.S.C. § 42
Atlantic Salmon Convention Act, 16 U.S.C. §§ 3601-3608
Pacific Salmon Fishing Act, 16 U.S.C. §§ 3631-3645
African Elephant Conservation Act, 16 U.S.C. §§ 4201-4246
Wild Exotic Bird Conservation Act, 16 U.S.C. §§ 4901-4916
North Pacific Anadromous Stocks Convention Act, 16 U.S.C. §§ 5001-5012
Atlantic Coastal Fisheries Cooperative Management Act, 16 U.S.C. §§ 5101-5108
Rhinoceros and Tiger Conservation Act, 16 U.S.C. §§ 5301-5306
High Seas Fishing Compliance Act, 16 U.S. C. §§ 5501-5509
Northwest Atlantic Fisheries Convention Act, 16 U.S.C. §§ 5601-5612
Hunting, fishing, trapping; disturbance or injury on wildlife refuge, 18 U.S.C. § 41
- Animal Welfare Crimes
Humane Methods of Livestock Slaughter Act, 7 U.S.C. §§ 1901-1907 (including violations cross-referenced under 21 U.S.C. §§ 601-626)
Animal Welfare Act, 7 U.S.C. §§ 2131-2159
Animal Fighting Prohibition Enforcement Act, 7 U.S.C. § 2156, 18 U.S.C. § 49
Horse Protection Act, 15 U.S.C. §§ 1821-1831
Animal Crush Video Prohibition Act, 18 U.S.C. § 48
- Worker Safety Crimes
Occupational Safety and Health Act (OSHA), 29 U.S.C. §§ 651
Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. §§ 1801-1872
Mine Safety and Health Act (MSHA) of 1977, 30 U.S.C. §§ 801-966
Atomic Energy Act, 42 U.S.C. §§ 2272-2297h–13
*Due to the unique history of Mine Safety and Health Act (MSHA) enforcement, at the election of the United States Attorney, the responsibility for the investigation and prosecution of MSHA cases will rest with the United States Attorney’s Office. When the United States Attorney makes such an election for a particular case, the United States Attorney’s Office will notify the Environmental Crimes Section of the election to prosecute the case (as required in JM 5-11.103), and of its disposition (as required in JM 5-11.108). If a United States Attorney’s Office makes such an election to solely handle a MSHA case or matter within its district, it may also solely handle any appeal in the case or matter. In such an appeal, the United States Attorney’s Office will provide reasonable notice to ENRD and a copy of the draft brief for comment prior to filing.
5-11.102 - Other Criminal Provisions
Experience has shown that cases involving violations of the federal environmental laws identified in JM 5-11.101 often involve violations of certain other federal statutes or criminal forfeiture. The Environmental Crimes Section (ECS) is empowered to investigate and prosecute violations of additional criminal statutes when such violations arise in the course of environmental crimes investigations, subject to provisions that expressly assign certain matters to another division, see e.g., 28 C.F.R. §§ 0.55 (Criminal Division), 0.70 (Tax Division), or otherwise require prior authorization from another component. Examples of some of the statutes most commonly involved in those cases include:
|Aiding and Abetting||18 U.S.C. § 2|
|Misprision of Felony||18 U.S.C. § 4|
|False Claims||18 U.S.C. § 287|
|Conspiracy||18 U.S.C. § 371|
|Entry of Goods by Means of False Statements and Smuggling||18 U.S.C. §§ 542, 545, 554|
|Theft or Conversion of Public Property or Money||18 U.S.C. § 641|
|Federal Program Theft||18 U.S.C. § 666|
|False Statement||18 U.S.C. § 1001|
|Mail Fraud and Other Fraud Offenses||18 U.S.C. § 1341|
|Money Laundering||18 U.S.C. §§ 1956, 1957|
|Obstruction of Justice||18 U.S.C. § 1501|
|Perjury||18 U.S.C. § 1621|
5-11.103 - Notice of Case Initiation
When a United States Attorney's Office opens a file for an environmental case or matter, the Office should enter the case or matter in the Department's electronic case tracking system and identify the case type as "environmental." If the case or matter involves a potential environmental crime, but is not identified as "environmental" in the case tracking system (for example, because of data entry limitations), that office should inform the Environmental Crimes Section by telephone or by electronic mail. This notice by the United States Attorney's Office allows ECS to better coordinate efforts nationwide (for example, by being able to alert the United States Attorney's Office that the same defendant is being prosecuted or the same issues are arising in another district) and to be prepared to provide support, if necessary, to the United States Attorney's Office. When ECS opens a file on a case or matter, the Section will notify the United States Attorney's Office for the district in which the crime is alleged to have occurred.
5-11.104 - Responsibility for Case Development and Prosecution
United States Attorneys' Offices have responsibility for the investigation and prosecution of environmental crimes within their own districts and the Environmental Crimes Section has responsibility for the investigation and prosecution of environmental crimes on a nationwide basis. Cooperation and consultation between United States Attorneys' Offices and ECS can make the most effective use of the Department's resources. Close coordination is particularly vital in cases that involve national initiatives, present novel issues of law (including the first case under a statute, provision, or regulation), involve simultaneous investigations in multiple districts, involve international or foreign policy implications, or are of an urgent or sensitive nature. Often the United States Attorneys' Offices and ECS work jointly on cases. When a United States Attorney's Office and ECS work jointly on a case, the responsibility for that case shall be shared by those two offices, in which case the two offices shall work and act together through consultation and agreement. Neither office shall enter into a case being handled solely by the other except by mutual consent.
[cited in JM 5-11.110]
5-11.105 - Community Service Payments in Environmental Crimes Cases
Environmental crimes often can result in widespread degradation of the environment and threaten the health and safety of entire communities. In such circumstances, community service may be used in conjunction with traditional criminal sentencing options, provided that the community service comports with applicable law and furthers the purposes of sentencing set forth in 18 U.S.C. § 3553. Community service is authorized as a discretionary condition of probation under 18 U.S.C. § 3563(b)(12) and it is addressed in U.S.S.G. § 8B1.3.
Although settlement payments to third parties are generally prohibited, a limited exception exists for payments to directly remedy harm to the environment. See Memorandum from the Attorney General, Prohibition on Settlement Payments to Third Parties (June 5, 2017); Memorandum from the Acting Assistant Attorney General on Third Party Settlement Payments (Jan. 9, 2018). United States Attorneys’ Offices considering the use of community service payments by defendants in environmental cases shall consult with ECS for guidance. See JM 9-16.325.
5-11.106 - Foreign Vessel Matters; MOTR Protocols
Environmental crimes, including both pollution and wildlife crimes, may involve the interdiction at sea of foreign-flagged vessels. Because such actions may involve international treaties and laws and may adversely affect the foreign relations of the United States, they are covered by the Maritime Operational Threat Response (MOTR) Protocols which subsumes Presidential Directive 27 of January 19, 1978, establishing a mandatory consultation process among interested federal agencies for non-military incidents that could have such an adverse effect (formerly referred to as the "PD-27 process").
In an environmental context, a potential maritime interdiction generally will be initiated by the Coast Guard, which notifies the Department of State, thereby setting in motion the coordination activities among the MOTR agencies involved. A conference call among the interested MOTR agencies is convened to discuss options and obtain interagency concurrence for an approved course of action. ECS participates in the MOTR coordination activities for situations involving potential pollution or wildlife crimes. When a particular district will be affected by a foreign-flagged vessel interdiction, that United States Attorney's Office is consulted. When MOTR coordination activities are unable to achieve interagency consensus on the course of action, the matter will be resolved by the White House. A proposed MOTR action cannot proceed without either consensus among the agencies or a resolution by the White House.
5-11.107 - Other ECS Functions: Policy-Making; Support; Exchanging Case Information; Information and Guidance Clearinghouse
In addition to its litigation activities, ECS has the following responsibilities:
- Setting policy nationally for the prosecution of environmental crimes, including pollution crimes, wildlife crimes, animal welfare crimes, and worker safety crimes;
- Providing training to United States Attorneys' Offices, federal investigative agencies, state and local authorities, law enforcement and regulatory personnel of foreign governments, and others;
- Analyzing and commenting upon legislation that may affect environmental crimes prosecution;
- Liaising with foreign officials and with organizations concerned with international environmental violations; and
- Providing expertise, information, and support for environmental prosecutions nationally, including acting as a clearinghouse for prosecution-related information and materials.
With respect to the last of those functions, United States Attorneys' Offices are encouraged to communicate with ECS early in environmental investigations and prosecutions to benefit from ECS' information and expertise and to provide ECS with information about successes, obstacles, and strategies that ECS may share with other prosecutors. United States Attorneys' Offices also are encouraged to consult with ECS on indictments and other matters with sufficient lead time for ECS to offer meaningful input. In any event, United States Attorneys' Offices should provide copies of indictments or informations, and associated press releases, within seven days of filing.
ECS maintains a website on the Department of Justice intranet that includes the Environmental Crimes Manual, relevant pleadings that have been filed by federal environmental crimes prosecutors in cases around the country, and a number of guidance documents, among other things. In order to assist ECS in keeping that website up to date and in providing users with the best possible materials, United States Attorneys' Offices should furnish to ECS electronic (or hard) copies of as-given jury instructions, motions, responses to motions, and other documents that may be useful to federal prosecutors nationwide.
ECS also periodically publishes the Environmental Crimes Bulletin, which summarizes the status of various environmental cases throughout the United States and which is available on the Environmental Crimes intranet site and ENRD website. A valuable resource to other prosecutors handling similar cases, this publication can be current and useful only if federal prosecutors promptly furnish to ECS information about their cases.
5-11.108 - Notification of Case Resolutions
When ECS is not participating in a case, the United States Attorneys' Offices shall provide ECS with notice of felony case resolutions by providing ECS with copies of disposition documents (including any plea agreements) within seven days of any finding of guilt or entry of judgment, except as provided in JM 5-11.109 and 5-11.117.
5-11.109 - Voluntary Dismissals
If a United States Attorney's Office intends to voluntarily dismiss an indictment, information, or complaint in a criminal case involving a felony violation of any of the statutes identified in JM 5-11.101, except when a superseding indictment has been returned or an information or a complaint has been filed against the same defendant or when the individual defendant has died, notification of the intent to dismiss shall be provided to ECS so that it is received no later than seven days prior to dismissal. In any case handled exclusively by ECS, the Section shall provide equivalent notice to the United States Attorney's Office if voluntary dismissal is contemplated.
[cited in JM 5-11.108]
5-11.110 - Declinations
When either a United States Attorney's Office for the district in which the crime is alleged to have occurred or ECS declines a felony case, the declining office will promptly advise the other of that action. If either office writes a substantive memorandum to the file or to the investigative agency regarding the declination, that office will promptly provide a copy of the declination memorandum to the other office. Nothing in JM 5-11.104 is intended to limit ECS' authority to prosecute a case declined by a United States Attorney's Office after consultation with that office, nor shall these provisions limit the authority of a United States Attorney's Office to prosecute a case that ECS has declined for reasons that ECS advises do not involve policy considerations.
5-11.111 - Staffing
The appointment of Special Assistant United States Attorneys to work on environmental crime investigations and prosecutions requires approval by the United States Attorney of the relevant district and the Assistant Attorney General for the ENRD. In their approval process, the United States Attorney and the Assistant Attorney General should seek to ensure sensible and efficient use of government resources.
5-11.112 - Parallel Proceedings
Because many of the environmental statutes specifically provide for criminal, civil, and administrative sanctions (see, e.g., 33 U.S.C. § 1319(a), (b), (c), and (d)), this is an area of the law in which parallel proceedings occur with frequency. Such proceedings may be appropriate, for example, when in the course of a civil case the government receives evidence of deliberate violations of the law meriting criminal prosecution or when a criminal investigation uncovers evidence of an on-going violation causing environmental contamination that should be stopped quickly through an injunctive action.
Although they may be appropriate in particular circumstances, parallel proceedings must be handled carefully in order to avoid allegations of improper release of grand jury material or abuse of civil process. Therefore, in any case under any of the statutes identified in JM 5-11.101 in which parallel proceedings arise, the United States Attorney's Office may find it useful to contact the Environmental Crimes Section for assistance in coordinating the parallel proceedings. See also JM Chapter 1-12.000; ENRD Directive No. 2016-12.
5-11.113 - Coordination with State Programs
Most states have environmental enforcement programs that overlap, in whole or in part, with federal programs. United States Attorneys should familiarize themselves with state environmental enforcement laws and state enforcement officials. Particular attention should be directed toward the following aspects of state-federal relations in the environmental enforcement field:
- State enforcement agencies may be valuable sources of information on suspected violations of federal environmental statutes. United States Attorneys may be in a position to assist in apprising state officials of the nature of the federal enforcement program within the district or state and in developing methods for exchanging information on suspected violations;
- State authorities often possess evidentiary materials that are relevant to pending federal investigations and court proceedings. United States Attorneys should be aware of the nature and extent of the states' investigatory resources and should make provision in appropriate circumstances for the exchange of information on pending cases with state authorities;
- Frequently a particular activity constitutes a violation of both federal and state laws. When state officials are proceeding with an environmental enforcement case that may include violations of federal law, the United States Attorney in the affected district should monitor that state activity. If it appears that all federal interests in the case will be vindicated in the state court action, action in federal court may be an unnecessary duplication of effort. On the other hand, if federal interests will not be protected completely in state court, federal proceedings may be warranted. See also JM 9-2.031 and 9-27.240.
- A number of United States Attorneys' Offices have found that task forces, which include personnel from state and local agencies and from other federal agencies, are very effective means of coordinating efforts with state and local governments and making optimal use of available resources. Task force formats vary among offices, and ECS can advise United States Attorneys' Offices of other offices that are willing to share the lessons of their experiences.
5-11.114 - Individual and Corporate Defendants
- Congress has demonstrated its intent that individuals, as well as corporations, should be criminally prosecuted for violations of federal environmental laws, see, e.g., 33 U.S.C. §§ 1319(c)(6) and 1362(5), thereby recognizing the fact that the unlawful acts or omissions of corporations actually can be traced to individual officers or employees. That Congressional intent should be given serious consideration in the development of prosecutions for violations of the statutes identified under JM 5-11.101. See JM Chapter 9.28.000 for specific guidance on federal prosecution of business organizations.
- In any case against both a corporation and any of its individual employees the willingness of the offending corporation to enter a guilty plea is not a basis for declining to prosecute an individual. See also JM 9-16.050.
- EPA and the Department of Justice have adopted policies that may affect cases involving voluntary disclosure, cooperation, and compliance by potential defendants. Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations, 70 Fed. Reg. 19618 (Apr. 11, 2000); Department of Justice, Factors in Decisions on Criminal Prosecutions for Environmental Violations in the Context of Significant Voluntary Compliance or Disclosure Efforts by the Violator (July 1, 1991), available at https://www.justice.gov/enrd/factors-decisions-criminal-prosecutions-environmental-violations-context-significant-voluntary.
5-11.115 - "Global Settlements"
Without the express approval of the Assistant Attorney General of ENRD, in any criminal case arising under the statutes identified in JM 5-11.101 no plea agreement will be negotiated which compromises the right of the United States to any civil or administrative remedies under those statutes. Efforts by defendants to effect such results may arise in the context of so-called "global settlement" offers. See ENRD Directive No. 2016-11 (Dec. 20, 2016).
[cited in JM 9-16.325]
5-11.116 - Protecting Federal Interests in Plea Agreements
All plea agreements in environmental crimes cases should include language that protects the government's other enforcement options, making it clear that the agreement (1) does not release from criminal liability any person not specifically covered by it (and, particularly, corporate plea agreements should not release any individuals from liability); (2) does not apply to crimes committed in any other federal district; and (3) does not provide or promise any waiver of any civil or administrative actions, sanctions, or penalties that may apply, including, but not limited to, penalties, claims for damages to natural resources, suspension, debarment, listing, licensing, injunctive relief, or remedial action to comply with any applicable regulatory requirement, except as provided in JM 5-11.115.
5-11.117 - Handling of Appeals
All appeals in criminal cases arising under the statutes identified in JM 5-11.101 shall be handled as provided for in JM 5-8.300 and Title 2. When a United States Attorney's Office makes a request to handle an appeal, such a request will be resolved by agreement between the United States Attorney's Office and the Chief of the Appellate Section of the Environment and Natural Resources Division. In jointly resolving such a request, the following factors, among others, should be considered on a case-by-case basis and, if necessary, discussed:
- The relative advantages of staffing the appeal with an Assistant United States Attorney who tried the case or with an appellate lawyer who was not involved in the trial;
- The relative advantages of the United States Attorney's local perspective or the Environment and Natural Resources Division's national perspective;
- Whether there are issues on which components of the government may have differing viewpoints; and
- The available resources of each office, especially relative to the briefing and argument schedule of the appeal.
Copies of any draft briefs prepared by a United States Attorney's Office on behalf of the government shall be forwarded to the Appellate Section in sufficient time to allow review, comment, and approval by the Section and the Assistant Attorney General. Copies of any draft brief prepared by the Appellate Section shall be forwarded to the United States Attorney's Office in sufficient time to allow review, comment, and approval by that office. In any appeal, copies of all other briefs by other parties shall be promptly forwarded by the United States Attorney's Office to the Appellate Section.
[cited in JM 5-11.108]
5-11.118 - Notice of Appeals
JM 2-2.200 describes the manner in which United States Attorneys' Offices forward notices of appeal or requests to take an appeal to the Environment and Natural Resources Division. For environmental crimes, the Division designates ECS as the unit to which such notices and requests should be sent. ECS will forward the notices and requests to the Division's Appellate Section.
[updated April 2018]
5-11.119 - Record on Appeal
Whenever an appeal is taken in a case arising under any statute identified in JM 5-11.101 for which the United States Attorney has taken primary trial level responsibility, and that appeal is to be handled by the Environment and Natural Resources Division, the United States Attorney is responsible for promptly coordinating with the ENRD Appellate Section to ensure that any necessary transcripts are ordered, that the Appellate Section attorney has access to all relevant parts of the record on appeal, and to address any other record-related issues that arise.
[updated April 2018]
5-11.120 - Table of Notifications and Coordination
The summary below, relating to coordination and approvals, is provided for United States Attorneys’ Offices convenience. For specific details, see the respective provisions.
|JM 5-11.103||Notice of case initiation||Recommended|
|JM 5-11.104||Consultation on case development||Recommended|
|JM 5-11.107||Information exchange||Recommended|
|JM 5-11.108||Notification of case resolution (felonies)||Required|
|JM 5-11.109||Notification of dismissals (felonies)||Required|
|JM 5-11.110||Notification of declinations (felonies)||Required|
|JM 5-11.111||Approval of SAUSA appointments||Required|
|JM 5-11.112||Coordination of parallel proceedings||Recommended|
|JM 5-11.115||Approval of global settlements affecting civil or administrative remedies; community service||Required|
|JM 5-11.117||Request to handle appeal; forwarding of draft briefs||Required|
|JM 5-11.118||Notice of appeal||See JM 2-2.200|
|JM 5-11.119||Assembling and transmitting record on appeal||Required|
[updated May 2018]