Tim Whitehouse, a former EPA enforcement attorney and the executive director of Public Employees for Environmental Responsibility, praised the Biden administration’s recent improvements on enforcement while acknowledging the strong headwinds such efforts face. “It takes years of sustained funding and political support to build a good enforcement program,” he told me. “The instability in Congress is not only demoralizing to EPA staff but undermines their ability to think strategically over the long term.”
The problems at the EPA are distinct but not unrelated to those at the Department of Justice, which handles environmental crimes via its Environment and Natural Resources Division, or ENRD. Prior to joining the EPA, Uhlmann—the EPA assistant secretary for enforcement—had served as the longtime head of that division’s Environmental Crimes Section, from 1990 through 2007. The EPA sends its most serious civil and criminal cases to ENRD, which—as a relatively underfunded office—often relies on other agencies in helping to choose which fights to take on. In fiscal year 2022, the EPA deferred fewer cases to DOJ (88) than at any point since 2000 and concluded fewer civil judicial cases than it had since that time, as well. As the Environmental Integrity Project notes, even Trump’s EPA concluded 94 civil cases and deferred 106 cases per year to the DOJ per year, on average.
The Department of Justice’s overall approach to corporate crimes has come under intense scrutiny from advocates. While watchdogs have lauded some steps the department has taken during Merrick Garland’s tenure as attorney general—like finally establishing a database on corporate crime—Biden’s DOJ has also leaned heavily on leniency agreements that allow companies to defer or avoid prosecution, and encouraged companies to scapegoat individual employees so as to avoid a broader charge. Kenneth Polite Jr., former assistant attorney general for DOJ’s Criminal Division, revised the division’s corporate enforcement policy so as to limit prosecutions. Last January, he declared that