Environmental Prosecutions from Investigations by EPA and Interior Department Continue to Decline

The latest available data from the Justice Department show that during the first ten months of FY 2021 the government reported 182 new environment prosecutions. If this activity continues at the same pace, the annual total of prosecutions will be 218 for this fiscal year. According to the case-by-case information analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, this estimate is down 7.6 percent over the past fiscal year when the number of prosecutions totaled 236.

Table 1. Criminal Environment Prosecutions for 2021
Number Year-to-date 182
Percent Change from previous year -7.6
Percent Change from 5 years ago -44.5
Percent Change from 10 years ago -63.6
Percent Change from 20 years ago -76.3

The comparisons of the number of defendants charged with environment-related offenses are based on case-by-case information obtained by TRAC after lengthy successful litigation against the U.S. Department of Justice under the Freedom of Information Act.

Compared to five years ago when there were 393, the estimate of FY 2021 environmental prosecutions is down 44.5 percent. Prosecutions over the past year are also much lower than they were ten years ago. Overall, the data show that environmental prosecutions are down 63.6 percent from the level of 599 reported in FY 2011 and down 76.3 percent from the level of 919 reported in FY 2001.

The long-term trend in environment prosecutions for these matters going back to FY 1998 is shown more clearly in Figure 1. Projected figures for the current fiscal year are shown. The vertical bars in Figure 1 represent the number of environment prosecutions recorded each fiscal year. Each vertical bar is subdivided by the lead investigatory agency that referred the matter to federal prosecutors.

Figure 1. Environmental Prosecutions, FY 1998-2021
(Click for larger image)

Role of the EPA vs. Department of Interior

As TRAC previously reported, prosecutions referred by the Environmental Protection Agency (EPA) have been on a long-term decline. EPA investigatory efforts typically focus on water and air pollution as well as hazardous waste management. However, while the EPA may be responsible for what many would consider the most serious environmental crimes, the Department of Interior is responsible for a higher volume of investigations that have led to criminal environmental prosecutions by federal prosecutors. While individually each offense may appear less serious, as a group they are a critical part of federal efforts to protect our fish and wildlife, including endangered species. Here, similar to EPA's efforts, long-term prosecutions referred by Interior are also down.

One of the more active units responsible for investigating many of these environmental crimes within the Interior Department has been the Fish and Wildlife Service. Figure 2 and Table 2 show criminal referrals and prosecutions resulting from its investigations. Fish and Wildlife Service's long-term trends again show a downward trend over the last decade.

Figure 2. Criminal Investigations by Fish and Wildlife, FY 2011-2021
(Click for larger image)
Table 2. Criminal Referrals and Prosecutions Resulting From Fish and Wildlife Investigations,* FY 2011 - FY 2021 (through July)
Fiscal Year Criminal Referrals Criminal Prosecutions
2011 673 456
2012 727 470
2013 689 437
2014 395 281
2015 454 329
2016 497 291
2017 443 295
2018 442 291
2019 385 256
2020 293 200
**2021 354 188
* Includes all Fish and Wildlife cases, not just those classified as environmental matters.
** Projected based on first ten months.

Criminal prosecutions resulting from investigations by Interior's Fish and Wildlife Service for illegally taking fish and wildlife this year, as in most years, is not surprisingly the single most frequently prosecuted federal offense [16 USC 3372]. This is followed by killing or possessing migratory birds [18 USC 703]. But the third most frequent prosecution this year illustrates the diverse variety of offenses Fish and Wildlife Service handles. This offense was the smuggling goods into the United States under 18 USC 545, violations often related to wildlife protection laws.

We also see other types of violations that occur on public lands, from drug violations, violations of alcohol regulations, traffic offenses, to other violations of park regulations. Table 3 lists the lead offense for criminal referrals resulting in federal prosecutions during the first ten months of this fiscal year, October 2020—July 2021. References to "CFR" are to violations, usually less serious, under the Code of Federal Regulations, rather than under the U.S. Criminal Code (USC).

Table 3. Lead Charge for Prosecutions Where Fish and Wildlife* Was Investigatory Agency, October 2020—July 2021
Lead Charge Number
16 USC 3372 - Illegally Taken Fish and Wildlife - prohibited acts 48
16 USC 703 - Taking, killing, or possessing migratory birds 15
18 USC 545 - Smuggling goods into the United States 12
16 USC 704 - When/how migratory birds may be taken, killed,poss 9
16 USC 668 - Bald and golden eagles 8
50 CFR 27.82b2 - Possession of controlled substance on National Wildlife Refuge 5
16 USC 26 - Regulations for hunting and fishing in park 4
50 CFR 27.31 - Use of any motorized vehicle in area not designated as route of travel 4
16 USC 1538 - Endangered Species - Prohibitive acts 3
50 CFR 26.21 - No person shall trespass/enter/occupy/use any national wildlife refuge 3
18 USC 2 - Aiding and Abetting 2
16 USC 3373 - Illegally Taken Fish and Wildlife - penalties, sanct 1
16 USC 45 - Violations of park regulations; penalty 1
16 USC 661 - Protection - game, fur-bearing animials and fish 1
16 USC 668dd - National Wildlife Refuge System 1
16 USC 742 - Illegal Wildlife Hunting 1
18 USC 1001 - Fraud/false statements or entries generally 1
18 USC 1159 - Misrepresentation of Indian produced goods/product 1
18 USC 1165 - Hunting, trapping, or fishing on Indian 1
18 USC 1382 - Entering military, naval, or Coast Guard property 1
18 USC 371 - Conspiracy to commit offense or to defraud US 1
18 USC 7 - Special Maritime/Territorial Jurisdiction of US 1
21 USC 841 - Drug Abuse Prevention & Control-Prohibited acts A 1
36 CFR 261.15i - Violation of state law for vehicle used off roads 1
36 CFR 261.16j - Possess dog not on leash 6 feet/less or otherwise physically restrain 1
36 CFR 261.58bb - Possession of alcohol where prohibited on federal property or land 1
36 CFR 3.10a1 - Operate vessel under the influence of alcohol 1
36 CFR 327.2b - Parks, forests/public property/vehicles/parking violations 1
50 CFR 20.21i - Hunting on or over a baited area 1
Other US Code Section 19
Not Known (withheld) 7
* Includes all Fish and Wildlife cases, not just those classified as environmental matters.