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Biden DOJ ditches Trump coup accomplice’s polluter protections

By Rick Claypool

Under Trump, environmental crime enforcement plummeted to its lowest level in decades.

Despite the “law and order” rhetoric, Trump’s Justice Department made leniency with corporate lawbreakers a policy priority – even as it ramped up prosecutions of immigrants and low-level offenders.

The president may have insisted his administration was “tough on crime,” but it was clear to anyone paying attention that when it came to prosecuting the powerful, Trump’s DOJ was willing to look the other way.

Corporate enforcement fell by at least 90% at the DOJ and EPA, according to Public Citizen research, and the administration oversaw a 70% decrease in Clean Water Act prosecutions and a 50% decrease in Clean Air Act prosecutions.

The Biden administration’s speedy withdrawal of some of the Trump’s DOJ’s worst polluter protection policies is a sign things may be about to change.

The urgency was merited. Trump’s Justice Department appointees were still trying to lock in the policies that resulted in record-low polluter prosecutions in the final weeks of his administration.

Assistant Attorney General Jeffrey Bossert Clark, until recently the leader of the DOJ’s civil and environmental divisions, dropped an “Enforcement Principles and Priorities” memo less than a week before Biden’s inauguration.

An explosive New York Times report reveals that Clark conspired with President Trump in his attempt to overturn the election. Clark’s qualifications for running the Trump’s DOJ’s Environment and Natural Resource Division include experience defending BP from lawsuits stemming from the 2010 Deepwater Horizon oil spill disaster and representing the U.S. Chamber of Commerce in lawsuits against regulating carbon emissions.

Under Trump, criminal referrals from the Environmental Protection Agency and the DOJ’s environmental prosecutions plummeted to their lowest levels in decades. Clark’s last-minute memo attempts to lock in this trend.

The memo mostly describes how the DOJ’s environmental division is applying government-wide policies that have led to the precipitous decline in corporate prosecutions across the board. In 2018, federal prosecutions of corporations fell to just 99, the lowest number since the U.S. Sentencing Commission started tracking the data in 1996. The decline is partly explained by prosecutors’ increasing practice of resolving investigations into corporate criminals – including serious repeat offenders – with leniency agreements (deferred and non-prosecution agreements) that protect corporate defendants from prosecution.

Some of the more notorious recipients of the DOJ’s leniency agreements are egregious violators whose crimes result in mass deaths, such as Massey Energy, whose safety violations resulted in an explosion that killed 29 workers in its Upper Big Branch Mine, General Motors, whose defective ignition switches and subsequent coverup of the flaw caused or contributed to the deaths of 124 people, and Boeing, whose 737 Max defects caused the crashes Lion Air Flight 610 and Ethiopian Airlines Flight 302, killing 346. The Justice Department’s refusal to prosecute the perpetrators of these crimes is an ongoing insult and injustice to the victims of corporate crime and their families.

Perhaps the most shocking part of Clark’s memo is its instruction to prosecutors to apply a heightened “mens rea” (or “guilty mind”) standard to environmental crimes. The memo tells prosecutors, “those offenses that do not involve intentional, knowing, or willful wrongdoing may be more appropriate for administrative enforcement or compliance assistance than for judicial enforcement.” Clark is saying that environmental cases that do not include a willful intent to break the law generally should not be criminally prosecuted.

Changing mens rea standards to make it harder to prosecute corporate criminals has long been a priority for the infamous billionaire brothers Charles and David Koch (the latter of which died in 2019). The Kochs became interested in the issue following the 2001 conviction of Koch Petroleum Group for Clean Air Act violations and false statements and unsuccessfully sought to change the standard through legislation.

The problem is, corporations accused of environmental crimes can often claim they did not intend to break the law, and executives who should be responsible for knowing what the business they oversee are up to instead delegate signing off on activities to managers further down on the corporate hierarchy. If they use the structure of the corporation to shield headquarters from knowing what subsidiaries are up to, they can always just say, “Oops, sorry!” For obvious reasons, this enables, rather than deters, corporate crime. This is why applying a heightened mens rea standard to regulatory crimes significantly undermines corporate crime enforcement.

It also means, despite the “ignorance of the law is no defense” adage, that corporations and executives can protect themselves from prosecution by claiming the wrongdoing they are accused of committing occurred without knowledge that it was illegal. Allowing this ignorance defense – a defense not available to ordinary defendants – gives executives the incentive to learn as little as possible about their legal obligations, including the ways that they are required to protect public health and the environment from the harmful effects of pollution.

As it is, corporations can be structured so that risky activities are concentrated in subsidiaries in order to protect the parent corporation from liability for wrongdoing. As a result, the Justice Department often brings the most serious criminal charges against corporate subsidiaries because parent companies are unaware of what is happening within their subsidiaries. Clark would make it even more difficult to prosecute parent companies by requiring them to know both what is happening in their subsidiaries and that the underlying conduct was illegal, instructing prosecutors to “pay due respect the corporate form, and of distinctions between separate entities held by a larger corporation,” which, Clark notes, are purposely designed to “allow investors and owners to limit their liability.”

Giving corporations an incentive to weaken internal oversight so that they can remain intentionally ignorant of how parts of the business may be breaking rules that protect the environment and the public is the exact opposite of what the U.S. government’s top law enforcement agency should be doing.

Thankfully, Clark and Trump’s last-minute gift to corporate polluters was short lived. The Trump policies at the DOJ’s Environment and Natural Resources Division (ENRD) that the Biden memo withdraws include:

  • Clark’s last-minute mens rea memo.
  • The reduction of corporate penalties by eliminating payments to third parties that help right corporate wrongs. One example of the practical result: Trump’s DOJ reduced Harley Davidson’s penalty for alleged emissions cheating violations by $3 million because the funds would have gone to a third party: the American Lung Association.
  • Limits on the DOJ’s power to bring charges against corporations that defraud the government. Former Associate Attorney General Rachel Brand instructed DOJ lawyers to stop citing noncompliance with guidance documents as evidence that a violation has been committed – a policy enshrined by ENRD in a subsequent memo. Although guidance documents by definition cannot create new rights and obligations, their clarifying role can provide the certainty that makes it possible to hold corporations accountable for wrongdoing.

This policy change is a necessary and vital first step forward, but not sufficient on its own. Biden’s DOJ should replace the Trump-era policies with new ones that reflect the administration’s stated goal of holding polluters accountable.

The real test will be whether we see eventual prosecutions of corporate criminals and executives that break the law by poisoning Americans’ air, water, and environment. Strong enforcement not only will hold wrongdoers accountable, it will deter lawbreaking in the first place, protecting Americans and our planet.