U.S. EPA's criminal investigators spend their days targeting myriad domestic and international crimes ranging from illegal dumping to the selling of bogus asbestos-removal training certificates -- along with the occasional armed standoff and sting operation.
The agency's criminal division, in conjunction with the Department of Justice's Environmental Crimes Section, has seen an ebb and flow in crime enforcement during the past few administrations, alternately earning praise and condemnation any time it wades into new areas of enforcement.
Now, environmentalists, industry leaders and individual liberty advocates are anxiously watching to see how the Obama administration will enforce environmental laws -- a key question made even more pressing after a high-profile investigation went awry and as a group seeking to rein in the federal enforcement policy threatens to bring the matter to the Supreme Court.
"You have to look at the issue of the change in an administration, regardless of whether or not there has been a numerical uptick in the number of criminal investigations and prosecutions," said David Lashway, an environmental attorney in the Washington, D.C., office if Hunton & Williams.
This spring, Obama nominated Ignacia Moreno to helm DOJ's Environment and Natural Resources Division, which is tasked with enforcing environmental laws and defending federal regulations in lawsuits. If confirmed, Moreno -- a former DOJ official who now represents General Electric Co. -- would replace Ronald Tenpas.
Tenpas, along with David Uhlmann, then-chief of DOJ's Environmental Crimes Section, significantly expanded criminal prosecutions into new areas, including worker endangerment.
The effort to bring environmental criminal enforcement to bear in connection with worker safety issues led to what some have called the biggest environmental-crime prosecution in U.S. history -- and a major embarrassment for the government.
W.R. Grace & Co., which supplied specialty chemical, construction and container products, was found not guilty in May in connection with the asbestos contamination of Libby, Mont.
Prosecutors alleged that the company and seven former executives conspired for decades to expose Libby residents to asbestos-contaminated vermiculite. Nearly 200 Libby residents have died of asbestos-related disease.
Along with a difficulty marshaling uncontested evidence, the trial judge in the case openly denounced the government's key witness, Robert Locke, and questioned the actions of the prosecutors.
Following the verdict, EPA declared a public health emergency in the town, the first such use of the Superfund law.
Criminal investigations going forward probably won't be significantly affected if the agency continues to expand its purview -- and budget, according to Texas-based environmental attorney Walter James.
"I expect we'll see a significant upturn in enforcement after the start of the October fiscal year," said James, who maintains an environmental crimes blog in addition to his legal practice. "My clients could be caught up in the web, which is good news for my business but bad news for my clients."
The agency's proposed fiscal 2010 budget includes a $32 million increase for EPA's overall Enforcement and Compliance Assurance program, the highest enforcement budget ever. But the Criminal Investigation Division is slated for a $3 million increase from fiscal 2009 -- $45.4 million, up from $42.6 million last year.
"You can tell the committment of an administration by the funding for enforcement and there's never been, at least in my view, the funding that would allow federal investigators and prosecutors to develop the sort of deterrent effect of criminal law that I think Congress intended," said Patrick McGinley, an environmental law professor at West Virginia University's College of Law.
The most effective way to improve enforcement would be to "beef up the number of agents, which is something only Congress can do," said Bruce Pasfield, a former environmental prosecutor at DOJ from 1990 until 2005.
"Are they going to go after quality cases or just run-of-the-mill asbestos river runs ... to beef up their numbers? This all depends on the people you hire," added Pasfield, now a partner in the D.C. office of Alston & Bird.
The agency is in the process of implementing a three-year hiring strategy "with the goal of increasing the number of agents to 200 by the end of fiscal year 2010," said EPA spokeswoman Deb Berlin.