Patrick A. Flanagan Sr. Assistant Attorney General Criminal Justice Division

Patrick A. Flanagan Sr. Assistant Attorney General Criminal Justice Division

Oregon s Environmental Enforcement Initiative December 1, 2009 - Creation of the Environmental Enforcement Unit Joint effort between criminal and civil Stephanie Parent Sr. Asst. Atty. General, Special Litigation Unit Also rely heavily on other ENR attorneys at DOJ Joint effort between federal and state

Program Priorities Protect the state s environmental resources and public health Promote a level playing field Encourage Cooperation and Self-Disclosure; Deter Obstruction and/or Outright Deception It s the Law Assist the District Attorneys in the prosecution of environmental crimes Target Repeat offenders, or Those who engage in conduct so egregious that prosecution is the only rational alternative

Primary Compliance and Enforcement Oregon State Police US EPA US Coast Guard NOAA/NMFS USFS BLM Agencies Department of Environmental Quality (DEQ) Dept. of Agriculture (ODA) Dept. of State Lands (DSL) Water Resources Department

Dual Role of Environmental Crimes Unit Program is fulfilling an unanticipated dual role: 1) Address those who believe the laws will not be enforced They will never do anything to me 2) Those who may have unrealistic expectations of what can be gained by utilizing the criminal justice system Good. Now we can finally start getting prison time for some of these offenses

They will never do anything to me

Stats and Nothing But the Stats 53 cases opened over the past 2 years Numerous advisory cases unopened 9 cases have resulted in pleas 6 State 3 Federal 8 cases charged and pending prosecution 6 State 2 Federal 13 cases currently under investigation 23 cases declined for prosecution (but resulted in some level of enforcement)

(Non-)Compliance Spectrum People who: enthusiastically meet and exceed requirements dispassionately meet regulations and standards get stuck with someone else s problems don t understand make honest mistakes forget are disorganized have other priorities get misled or shafted by other people cut corners to stay in business push regulatory limits and oversight for any number of reasons hide their actions and violations flagrantly violate

Use of Force Continuum

Another View

Environmental Enforcement Options Criminal Enforcement Criminal Complaints/Indictments Probation Fines Jail Time Civil Enforcement Civil Complaints Seeking: Financial Penalties Injunctive Relief Administrative Action NOVs Compliance Orders Abatement Orders License/Permit Actions Financial Penalties Informal Cooperative Consultation Warnings

Key Environmental Enforcement Statutes Oregon Environmental Crimes Act ORS 468.961 Adopted in 1993 Created felony penalties for violations of environmental laws Instituted safe guards in the system

468.961 Approval of Attorney General or district attorney before bringing felony charge; guidelines for bringing felony charge; model guidelines. (1) no person shall be charged with a felony under ORS 468.922 to 468.956 without the personal approval of the district attorney of the county or the Attorney General of the State of Oregon.

Guideline Factors (2) In order to promote consistency the district attorney of each county shall adopt written guidelines for filing felony criminal charges... The written guidelines, at a minimum, shall require the district attorney to consider and apply the following factors in determining whether to file criminal charges: a) The complexity and clarity of the statute or regulation violated; b) The extent to which the person was or should have been aware of the requirement violated (knowledge); c) The existence and effectiveness of the person s program to promote compliance with environmental regulations; d) The magnitude and probability of the actual or potential harm to humans or to the environment; e) The need for public sanctions to protect human health and the environment or to deter others from committing similar violations;

Guideline Factors f) The person s history of repeated violations of environmental laws after having been given notice of those violations; g) The person s false statements, concealment of misconduct or tampering with monitoring or pollution control equipment; h) The person s cooperation with regulatory authorities, including voluntary disclosure and prompt subsequent efforts to comply with applicable regulations and to remedy harm caused by the violation; i) The appropriate regulatory agency s current and past policy and practice regarding the enforcement of the applicable environmental law; and j) The person s good faith effort to comply with the law to the extent practicable.

468.961 (Cont d) (3) In order to promote consistency and uniformity in prosecutorial policies, the Attorney General, in consultation with the Oregon District Attorneys Association, and after appropriate opportunity for public comment, shall adopt model guidelines [OAR137-095-0010 et seq.] for prosecution of environmental crimes. The Attorney General s model guidelines shall provide for consideration and application of the factors described in subsection (2) of this section. A district attorney may fulfill the district attorney s responsibility under subsection (2) of this section by adopting the Attorney General s model guidelines. (4) Prior to or in conjunction with the filing of felony charges under ORS 468.922 to 468.956, the district attorney or the Attorney General shall file a certification with the court that the guidelines described in subsections (2) and (3) of this section have been applied and that, in the opinion of the district attorney or Attorney General, as the case may be, the criminal charges are being filed in accordance with the guidelines.

Common State Statutes Gen. Criminal Environmental crimes are not found within the Criminal Code of Oregon, AKA the prosecutor s bible. ORS 161: General Provisions Criminal Liability Parties to Crime Justification (Defenses) ORS 162: Offenses Against the State and Public Justice Bribery Perjury Escape, Supplying Contraband Obstructing Governmental Administration ORS 163: Offenses Against Persons Homicide Assault Kidnapping Sexual Offenses

Criminal Statutes (Cont d) ORS 164: Offenses Against Property Theft Burglary Criminal Mischief ORS 165: Offenses Involving Fraud and Deception Forgery Business and Commercial (Falsifying Business Records, etc) ORS 166: Offenses Against Public Order; Firearms; Racketeering ORS 167: Offenses Against Public Health, Decency, and Animals

Common State Statutes - Environmental DEQ ORS 468 et seq. Hazardous Waste Unlawful Disposal, Storage, or Treatment ORS 468.922 Misdemeanor ORS 468.926 Felony Unlawful Transport ORS 468.929 Misdemeanor ORS 468.931 Felony Number of Punishable Offenses ORS 468.933 each day on which a violation occurs or continues is a separately punishable offense.

Air Pollution ORS 468.936 Misdemeanor ORS 468.939 Felony Number of Punishable Offenses ORS 468.941 each day on which a violation occurs or continues is a separately punishable offense.

Water Pollution ORS 468.943 Misdemeanor ORS 468.946 Felony Number of Punishable Offenses ORS 468.949 each day on which a violation occurs or continues is a separately punishable offense.

Supplying False Information (State) ORS 468.953 Class C Felony 2 ways to get there Submitting false information/documents/etc Failing to submit required information/documents/etc.

False Statements (Federal) 18 U.S.C. 1001 Defendant made a written or oral statement Statement was false, fictitious, or fraudulent Statement was made knowingly and willfully Statement was within the jurisdiction of federal agency Statement was material 5 years and/or fine

Other Agency Enforcement Authority DSL ORS 196, 273, and 274 et seq. ODA 164, 468, and 570 et seq. WRD ORS 537 and 540 et seq.

Standard Criminal Penalties Unless otherwise provided: Class A Felony: 20 years/$500,000 Class B Felony: 10 years/$375,000 Class C Felony: 5 years/$250,000 Class A Misd: 1 year/$6,250 Class B Misd: 6 mo/$2,500 Class C Misd: 30 days/$1,250

Environmental Criminal Penalties And with environmental crimes, certain aspects of the penalty are frequently statutorily provided: Haz Waste Disposal 2 Although it is a B Misd. $25,000 (as opposed to the typical $2,500) Water Pollution 2 Unclassified misdemeanor 1 year jail and/or $25,000 fine (as opposed to $6,250) Permit to Appropriate Water Required (537.130) Unclassified misdemeanor 6 months jail and/or Minimum $10 fine/maximum $250

Back to Dual Function Program is fulfilling an unanticipated dual roll: Address those who believe the laws will not be enforced They will never do anything to me Those who may have unrealistic expectations of what can be gained by utilizing the criminal statutes Good. Now we can finally start getting prison time for some of these offenses

Good. Now we can finally start getting prison time for some of these offenses

Sentencing Guidelines for State Prosecution

State Sentencing for Environmental Crimes No Sentencing Guidelines, so Resort to Federal Sentencing Guidelines Develop precedent within the court system

Take Home Message If criminal prosecution commences, it is not likely to be a surprise Either the defendant will have faced some lesser level of enforcement action for previous violations, or The degree of harm to the environment will be so substantial so as to call for prosecution. No free passes But if you are advising a client and you see them developing an enforcement history

What was the first thing your mother/spouse/ significant other taught you?

When you get caught, DON T LIE!!

Oregon Department of Justice Patrick Flanagan Sr. Assistant Attorney General Criminal Justice Division Patrick.a.flanagan@doj.state.or.us 971-673-1880