Criminal Prosecutions Referred by EPA in Long-Term Decline

The latest available data from the Department of Justice show that during the first seven months of FY 2021 the government reported just 32 new prosecutions referred by the Environmental Protection Agency (EPA). If this activity continues at the same pace, the annual total of defendants prosecuted will be 55 for this fiscal year. This estimate is down 9.8 percent from FY 2020 when the number of prosecutions totaled 61 according to the case-by-case records analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.

The comparisons of the number of defendants charged are based on case-by-case information obtained by TRAC after successful litigation under the Freedom of Information Act (FOIA). See Table 1.

EPA-referred criminal prosecutions have been steadily declining for a long time. Compared to five years ago when there were 83, the estimate of FY 2021 EPA-referred prosecutions is down 33.7 percent. Prosecutions over the past year are much lower than they were ten years ago. Overall, the data show that prosecutions of this type are down 69.8 percent from the level of 182 reported in 2011 and down 71.9 percent from the level of 196 reported in 2001.

Criminal prosecutions resulting from EPA referrals to federal prosecutors peaked during FY 1998 when President Clinton was in office when they reached 198, and were nearly as high at 196 during the first year of President Bush's administration.

The long-term trend in prosecutions for these matters over the last twenty years is shown more clearly in Figure 1. The vertical bars in Figure 1 represent the number of prosecutions of this type recorded each fiscal year. Projected figures for the current fiscal year are shown. Each presidential administration is distinguished by the color of the bars.

Figure 1. Criminal EPA Prosecutions Over the Last 20 Years
(Click for larger image)

Small Likelihood of Serious Sanctions

Offenses varied widely. The most common was water pollution followed by air pollution. Hazardous waste management, migratory birds and pesticide use violations also were cited along with making fraudulent statements, smuggling goods into the U.S., and drug violations.

Only eight of the 27 offenders who were convicted received criminal penalties and half of these were for one month or less. Probation sentences were the most common outcome, although quite a number received financial penalties. A Leetsdale, Pennsylvania business in Allegheny County just northwest of Pittsburgh was fined $550,00 for one felony count for water pollution under 33 U.S.C. 1319, and two felony counts for oil and hazardous substance liability under 33 U.S.C. 1321.

In general, the majority of criminal referrals from EPA are never prosecuted. There were 80 EPA referrals on which prosecutors took action during the current fiscal year. Six out of every ten of these referrals were closed by prosecutors and not taken to court. However, the turndown rate was much higher when the offender was a business rather than an individual. Here nearly eight out of ten (79%) were closed and no prosecution was filed.

The most common reason federal prosecutors gave for turning down the case was "insufficient evidence." This accounted for half (50%) of the turndowns. The next most common reason was "alternative to federal prosecution appropriate." This accounted for nearly a quarter (23%) of the turndowns although was much more commonly used for business offenders. Six cases (13%)—all individuals—were turned down because other referrals were deemed more important when "prioritizing federal resources and interests".