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Environmental Law Is Whole New Ballgame
But if it’s done on purpose, whether it’s a rogue employee ignoring the rules or a top-level executive flaunting them, state environmental regulators won’t be nearly as generous. Chances are, in fact, a company that’s suspected of intentionally skirting environmental laws may find itself in criminal court.
Citing the quicker nature in which criminal cases proceed, state regulators are opting to pursue criminal prosecutions rather than use civil court proceedings to enforce environmental law and punish offenders. Michigan Attorney General Jennifer Granholm recently appointed a full-time assistant to handle environmental prosecutions, and the head of the AG’s environmental enforcement division expects suspected violations to come under increasing scrutiny as criminal cases.
“We’re not doing it because we’re mean. That’s just a fact of life,” Assistant Attorney General Michael Leffler said during a recent seminar on environmental law enforcement, sponsored by Grand Rapids law firm Varnum, Riddering, Schmidt and Howlett.
The state Attorney General, the U.S. Attorney’s office in Grand Rapids, and several federal and state law enforcement agencies are forming an environmental crimes committee for West Michigan that will review potential cases and decide who can best go after an alleged offender, according to Leffler. A similar task force is in place in eastern Michigan, he said.
“There’s going to be a lot of scrutiny and a lot of joint information sharing,” Leffler said. “We’re trying to get these cases where we get the best bang for the buck.”
The state’s move toward using criminal statutes to enforce environmental law could have much more dire consequences for accused violators.
While falsifying a compliance report to a regulatory agency is generally a misdemeanor under environmental laws, a prosecutor could opt to pursue felony fraud charges against a company and the individuals responsible, said Philip Grashoff, who heads Varnum, Riddering, Schmidt & Howlett’s Environmental Law Practice.
“There’s a different ballgame being played today,” Grashoff said.
The key message for business representatives and attorneys attending the seminar: Be honest.
If a company makes an accidental discharge of a regulated material or exceeds air emissions, or discovers a mistake on a compliance report to regulators, it should report the transgression accordingly, Grashoff said.
Unlike a civil case, when the state or federal government initiates a criminal prosecution, there’s rarely room for a company to negotiate a settlement, Grashoff said. He urged his colleagues to keep their clients honest.
“Get them out of it before it starts,” Grashoff said. “Once (prosecutors) make the decision and come through the door, you’re not going to talk them out of anything.”
The state’s get-tough approach stems in part from the fact that environmental regulations have been a part of doing business for decades, and a large majority of companies know and comply with the law.
“There’s been a maturation in the regulated community and it’s wonderful,” Leffler said.
With that process comes the presumption among regulators that there’s no excuse for corporations not knowing the rule, Leffler added.
“There’s no longer an excuse for screwing up. The fact is that everybody does know what their environmental responsibilities are,” he said.
While the use of criminal action against alleged violators may be worrisome to business, Leffler and others said most have nothing to worry about.
The state is not interested in prosecuting a company for an innocent mistake, Leffler said. Minor and accidental violations are always handled at the administrative level, usually without penalty.
Administrative action, in fact, is “really the bread and butter of environmental enforcement,” said Robert Dodge, assistant U.S. attorney who handles environmental cases for Michigan’s Western District in Grand Rapids.
Those corporations that become entangled in criminal proceedings have generally been accused of repeated or serious violations that threaten the public health and safety, have been under scrutiny for an extended period and are engaging in willful conduct, Leffler said.
“We are not in the business of prosecuting innocent mistakes criminally,” Leffler said. “We just don’t have the time to take these cases. We also don’t have the inclination.” BJ