Obstacles to Environmental Enforcement Environmental Criminal Prosecutions Course

Obstacles to Environmental Enforcement Environmental Criminal Prosecutions Course Thailand, June 2017

OBSTACLES I. Public Corruption II. Government as Polluter III. Resource Constraints 2

I. Public Corruption § Potential Problem for Governments Everywhere • Law Enforcement • Regulatory Agencies • Entities Administering a Benefits Program 3

Issues Associated with Public Corruption § Cases can be very sensitive for a number of reasons: – Individuals or Entities Involved – Information at issue (intelligence, classified) – Politically controversial – Multi-jurisdictional § 4 Violations overlooked or concealed

Impact of Public Corruption § Allows the continuation of environmental degradation § Undercuts the criminal justice system by discouraging legal compliance more broadly – Undermines deterrence – Alters competition among entities § 5 May discourage civil engagement overall

Responses to Public Corruption 6 § Work with regulatory/investigative agencies to improve internal controls § Seek out law enforcement partners that are free from undue influence and above suspicion § Prosecute

Examples (USA) 7

Washington, DC Air Quality Inspectors § Gregory Scott and Joe Parrish – Former DC asbestos inspectors – In 2011, they sought $20, 000 in bribes to keep quiet about asbestos problems created during renovation of apartment building. – Told construction contractor he would face $300, 000 in fines and possible jail time, if they submitted their reports. 8

Washington DC Air Quality Inspectors Cooperating witness gave them $5000 (on video). § After second meeting to receive additional payments, they were arrested. § Each sentenced to one year of prison and banned from seeking employment with government in the future. § 9

Detroit Lead Inspectors Donald Patterson, City of Detroit lead inspector § Felony wire fraud prosecution for extorting landlords and residents from 2008 -2009. § Sentenced to 46 months in prison in February 2011. § 10

Detroit Lead Inspectors 11 § Anthony Sharpe, manager of Detroit’s Childhood Lead Poisoning Prevention Program § Sharpe set up a private company that charged building owners for lead inspections that were never performed and submitted faked test results to authorities in multiple cities. § Sentenced to 18 months in prison in September 2011.

II. When Government is the Polluter 12 § In the United States, large organizations rather than individuals generate most illegal pollution. § Governmental entities are large organizations, and can be among the largest illegal polluters.

When Government is the Polluter § Three types of cases in the USA: – Military cases – Publicly-owned sewage treatment plants – Publicly-owned drinking water providers 13

Key Questions for Prosecuting a Government Entity § Does the law allow prosecution? § As a public policy matter, can and should the government entity be prosecuted? – Political Will? – Is it Worth Prosecuting? 14

Prosecutorial Principles for Government Polluters 15 § Hold individuals accountable for criminal conduct § Focus on future compliance by entities rather than fines

Non-prosecutorial responses to Government Polluters 16 § Policy solutions may yield environmental benefits when prosecution is impossible § Transparency is critical: Public needs to understand the problem § What role can a prosecutor have outside of the judicial process?

III. Limited Resources § Investigative, prosecutorial, and/or judicial resources are always in short supply § Two general responses: – Maximize effective use of existing resources – Seek out and utilize outside resources 17

Maximizing Existing Resources Consider relative impact when allocating resources among cases § Work with investigative agencies on effective information-sharing § Enlist the public’s support, if possible § – But avoid creating unrealistic expectations 18

Maximizing Existing Resources § Ensure publicity for prosecuted cases in an effort to maximize deterrent impact – Traditional Press – Government websites – Government publications – Private Publications – Social Media 19

Publicizing Prosecutions: Traditional Press 20

Publicizing Prosecutions: Government Websites 21

Publicizing Prosecutions: Government Publications 22

Publicizing Prosecutions: Private Publications & Social Media 23

“Force Multiplying” § Coordinate with other entities that have environmental protection or law enforcement responsibilities – Share information/intelligence – Share workload – Avoid duplicating or conflicting work 24

“Force Multiplying” § Seek assistance from those outside the environmental enforcement community, particularly, if cases involve other issues or interests – Corporate crime, corruption, fraud § Seek assistance from law enforcement partners outside the country – ILEA, Interpol, regional associations 25