By Jason Searl
During what Professor David Uhlmann called “a critical time for environmental protection,” the biennial Environmental Law and Policy Program Conference recently convened at Michigan Law. This year’s conference was titled “Environmental Criminal Enforcement,” and the keynote panel featured the country’s current and former top environmental prosecutors appearing together for the first time. Uhlmann—the Jeffrey F. Liss Professor from Practice and the director of the Environmental Law and Policy Program (ELPP)—said it was fitting for Michigan Law to host the former and current chiefs of the Department of Justice’s environmental crimes section because the section’s origins stem from a speech that Attorney General Benjamin Civiletti delivered at the School in 1980. “Two years after the attorney general called for an increase to the pace of both civil and criminal enforcement of the environmental laws that were enacted during the 1970s, the Justice Department formed an environmental crimes unit,” Uhlmann noted.
The keynote, “30 Years of Environmental Crimes Prosecution at the U.S. Department of Justice—A Panel Discussion with the Chiefs of the Environmental Crimes Section from 1987–2017,” featured the current chief, Deborah Harris, as well as former chiefs Jud Starr (1987–1989), Jerry Block (1989–1991), Neil Cartusciello (1991–1994), Ron Sarachan (1994–1997), Steve Solow (1997–2000), and Stacey Mitchell (2007–2014). Uhlmann, who served as chief of the environmental crimes section from 2000 to 2007, was the moderator.
Each panelist related the most significant developments in the environmental crimes section during his or her tenure. Block noted how greatly the section expanded at the start of the 1990s, growing from fewer than 10 attorneys when he started to 35 by the time he left. Block suggested that the growth was partly thanks to support from officials serving in the President George H.W. Bush administration, including the president himself. Block was chief of the section at the time of the Exxon Valdez oil spill in Alaska. “Things were not settled in terms of what the section would or would not do,” Block said. “It was my position that if we were going to enforce the Clean Water Act, this case was the one we needed to go for.” Cartusciello continued Block’s agenda, with a primary goal of freeing up U.S. attorneys to be able to prosecute more cases. “There was a lot of talent in the section and cases that needed to be investigated,” Cartusciello said.
Uhlmann stepped out of his moderator role to share his own observations about how the section developed while he was chief. Uhlmann served for seven years, starting just before President George W. Bush came into office. After the September 11, 2001, terrorist attacks, Uhlmann said the administration’s focus turned away from environmental issues, and environmental crimes prosecution became more difficult. Even so, “[w]e thrived remarkably well under Bush,” said Uhlmann. To gain bipartisan support, Uhlmann followed the strategy of his predecessors, which was to pitch the section in terms of prosecuting crimes, rather than solely focusing on environmental protection.
Mitchell, who served until 2014 and was the first female chief, further accelerated environmental crime prosecution by teaching U.S. attorneys how to build environmental crimes units in their districts. She also helped organize a conference to train U.S. attorneys in environmental crimes prosecution. However, Mitchell and the current chief, Harris, said diminishing funding for the Environmental Protection Agency (EPA) was—and remains—a problem. As a result, the environmental crimes section must prioritize cases to prosecute. “We went from 800 to 400 cases,” Harris said, which is a trend that she expects to continue under the Trump administration.
Uhlmann asked the panelists for their thoughts about prosecuting corporations for environmental crimes. “It is important because you can get a very big effect with a corporate conviction,” Harris said. She added that settlement is not enough because the publicity of a conviction is what deters the convicted corporation and others from committing future violations. Solow agreed, saying that while a small minority of corporations will continue committing environmental crimes, they must be prosecuted in order to deter corporations generally. Mitchell said that prosecuting both individuals and the corporation is necessary because otherwise corporations will see an opportunity to throw their employees under the bus, rather than implement better environmental law compliance procedures and systems. Cartusciello added, “[W]e have a tendency to think that the top guy in a corporation knows everything that is going on. It’s just not true.” Because of this, Cartusciello asserted that corporations must be prosecuted so that their top officials will be vigilant about identifying any violations that may be occurring within their corporation. Further, Cartusciello said that the penalties “gotta hurt” for anything to change.
Harris discussed next steps in environmental crime prosecution, both domestically and abroad, and highlighted the importance of international coalition building. She plans to support this effort as a recently elected member of International Criminal Police Organization advisory board. The chiefs expressed concern for the section’s ability to make significant progress under the Trump administration, especially given the proposed cuts to the EPA. Sarachan noted, “Environmental criminals don’t put [their crimes] up on a billboard. So who’s looking at the mound of data that the EPA has?”
Top prosecutors discuss 30 years of environmental crimes at recent ELPP Conference at Michigan Law
By Jason Searl