The Environmental Forum: Look at Resources, Not Case Numbers

This article by Steve was published in the May/June 2022 issue of The Environmental Forum.

In evaluating environmental criminal enforcement, the popular approach is to focus on numbers of cases brought and fines and other sanctions imposed. This might not be the best way to assess efforts to address criminal violations of environmental law. Here, the case numbers have long been small, making it statistically risky to attribute meaning to data variations from year to year.

Focusing on the number of cases and related information also tempts one to attribute ups and down to changes in the White House. However, investigating and prosecuting environmental crimes is largely apolitical work, carried out by career employees.

But there is one important thing the overall case numbers do reveal: for decades, the resources for federal environmental criminal enforcement have been more or less static—as well as woefully insufficient.

The number of prosecutors in the Justice Department’s Environmental Crimes Section has remained about the same since 1991. Yet the work­load has expanded substantially over the years, with significant statutory areas of responsibility added in 2004 (wildlife), 2014 (animal cruelty), and 2015 (workplace safety). In 1997, when I was chief of ECS, EPA had 200 criminal investigators. Today, there are 160. In contrast, the Neth­erlands—a nation of roughly 17.5 million people—has some 500 inves­tigators devoted to environmental criminal enforcement.

This situation does not serve anyone well—not enforcers, not the regulated community, and, ul­timately, not the public. It means that the federal government’s very limited resources are spent reacting to whatever comes in the door. And a focus on numbers can create pres­sure to take what has come in and pursue it, even if resources might be better spent elsewhere.

Some in the regulated commu­nity might be concerned about in­creasing the federal government’s enforcement resources. But doing so could benefit regulated parties, by speeding up the resolution of investigations.

In 1997, talented paralegals could organize the review and analysis of a typical investigation’s documents. Today, an average case may involve millions of documents. The govern­ment does not have the resources to promptly review such informa­tion. This not only limits the govern­ment’s ability to handle sophisti­cated cases, but it also means that investigations that result in declina­tions can still be costly multi-year quagmires for the government and regulated entities alike.

Chronic resource constraints make it nearly impossible for the government to be anything more than a case processor. This precludes the important role of the govern­ment as a problem solver.

To be a problem solver, the gov­ernment needs to identify the root causes of crime. Why are some envi­ronmental programs subject to re­peated criminal violations? Are there reforms that could help reduce the susceptibility of certain environmen­tal regulations to criminal miscon­duct? The government lacks the resources to unpack the impact of enforcement cases on compliance, or the lessons these cases might hold for regulators and regulated parties alike.

Doing so could illuminate how to design the government’s efforts (in­cluding laws, regulations, guidance, and inspections) to support compli­ance and better insulate environ­mental laws and rules from criminal misconduct. It could also inform regulated parties how to structure their internal compliance programs to better prevent, detect, and re­spond to criminal misconduct.

Unfortunately, focusing on case numbers or penalty amounts to assess the rigor or effectiveness of federal enforcement programs will remain a popular exercise. Those who care about the end goals of criminal enforcement—such as de­terring intentional violations, cre­ating a level playing field to benefit organizations that have invested in compliance, and guiding the devel­opment of sustainable compliance programs—should attempt to see past those numbers to the under­lying problem: more than three decades of resource constraints continue to limit the value of this important work.