Todd Kim, Assistant Attorney General at the U.S. Department of Justice (DOJ) Environment and Natural Resources Division (ENRD), delivered remarks at the American Bar Association’s National Environmental Enforcement Conference on December 14, 2021. He provided insight into what DOJ plans to prioritize in environmental enforcement, centered on criminal enforcement, climate change, and environmental justice.
Kim emphasized that the purpose of enforcement is to ensure that businesses are properly incentivized to comply with the law through deterrence and to provide a level playing field, while protecting public health and the environment. He noted that DOJ has prioritized fighting corporate crime and is revising applicable polices, so ENRD will consider pursuing potential environmental and non-environmental crimes, as well as a business’s environmental and non-environmental track record in prosecution decisions.
Kim focused on methods of sector-wide enforcement, citing the Petroleum Refinery Initiative that involved settlements covering 112 refineries in 37 states since 2000. Kim also expressed an interest in more penetrating identification of all involved parties within a business, as well as in the full supply chain, where relevant. This focus could be especially impactful for importers of chemicals, pesticides, or wood products.
With these various tools in mind, Kim cited climate change and environmental justice as the two highest priority issues. For climate change, he indicated greater enforcement for air emissions from petrochemical plants and from facilities with refrigeration systems. For environmental justice, he provided a general assurance that ENRD is paying greater attention to potential violations in communities of color and low-income communities that may be disproportionately burdened by environmental hazards and harms.
On November 9, 2021, the U.S. Department of Justice (DOJ) announced its first environmental justice investigation under Title VI of the Civil Rights Act of 1964, which prohibits recipients of federal financial assistance from discrimination on the basis of race, color, or national origin. DOJ announced that the investigation initiated by DOJ’s Civil Rights Division’s Federal Coordination and Compliance Section, with the support of the U.S. Attorney’s Office for the Middle District of Alabama, will focus on two issues. (more…)
Earlier this month, the Acting Assistant Attorney General supervising the Environment and Natural Resources Division (ENRD) at the U.S. Department of Justice (DOJ) has issued a memorandum rescinding nine policy or guidance documents issued for ENRD over the past three years. The documents generally concerned enforcement priorities and discretion and payments to third parties as part of settlements. The memorandum cites Executive Order 13,990, signed by President Joe Biden on January 20, 2021, which directs agencies to review agency agencies that may conflict with a range of environmental goals.
On May 8, 2019, the Commodity Futures Trading Commission (CFTC) Division of Enforcement (DOE or Division) released its first publicly available Enforcement Manual. The Manual provides an overview of the Division and sets out the general policies and procedures that guide its Staff in detecting, investigating and prosecuting violations of the Commodity Exchange Act (CEA) and Commission regulations. According to its simultaneous press release, in publishing the Manual the CFTC intends to “increase transparency, certainty, and consistency, and, more generally, to advance the rule-of-law principles that underpin all DOE and CFTC enforcement actions.”
Earlier this summer, the Department of Justice (DOJ) and Environmental Protection Agency’s (EPA) criminal office announced criminal charges against employees of an oil and gas operation for tampering with and disabling pollution controls and on-board diagnostic (OBD) systems on the company’s truck fleet. DOJ and EPA charged five employees of Rockwater Northeast LLC, a company that services the hydraulic fracturing industry, for modifying emission control and OBD systems on approximately 30 of the company’s heavy-duty diesel trucks. (more…)
This week’s enforcement update covers:
- FERC issues Order to Show Cause to Footprint for alleged tariff violations and submission of false information;
- The Supreme Court denies TOTAL petition for writ of certiorari;
- FERC settles with Duke Energy regarding alleged violation of FERC market behavior rule on communications;
- CFTC orders Société Générale S.A. to pay $475 million penalty to resolve charges of alleged LIBOR and Euribor manipulation; and
- U.S. Department of Justice announces new policy on coordination of corporate penalties.
This week’s enforcement update covers:
- CFTC orders Deutsche Bank Securities Inc. to pay $70 million penalty for attempted manipulation of ISDAFIX benchmark;
- CFTC and DOJ announce spoofing charges against banks and individuals;
- FERC files amended complaint in case against Powhatan and Chen;
- Judge grants joint motion on summary judgment procedure in FERC case against Silkman/CES;
- FERC OE files answer to BP motion seeking dismissal based on statute of limitations;
- FERC Chairman testifies on grid performance during recent weather events; and
- FERC Commissioner Rich Glick stresses importance of FERC enforcement regime.
In this enforcement update, we cover:
- CFTC’s enforcement division issues new advisories on cooperation;
- FERC and ETRACOM file briefs regarding scope of review in district court;
- FERC revises PJM FTR forfeiture rule and discusses cross-product manipulation;
- Citigroup Global Markets Inc. settles spoofing charges with the CFTC;
- DOJ settles with Duke Energy for violating premerger notification and waiting period requirements; and
- TOTAL files motion for leave to respond and response in FERC proceeding.
Happy New Year! In our first enforcement update of 2017, we cover:
- FERC increases maximum civil penalties for violations for 2017;
- City Power and FERC file joint stipulation requesting referral to mediation; and
- TOTAL files supplemental authority and FERC responds in declaratory judgment action in Fifth Circuit.
On December 6, the Supreme Court unanimously affirmed a Ninth Circuit decision involving the scope of “personal benefit” required to find insider trading under the securities laws. Salman involved an investment banker who provided inside information about pending mergers to his brother, intending that the brother would benefit from the information. The brother traded on the tips and (without his brother’s knowledge) tipped additional friends – including Salman – who also traded. The Court determined the facts of this case fell within the language of the 1983 Dirks decision, which found that a tipper breaches a fiduciary duty by making a gift of confidential information to a “trading relative.” The Court did not agree with Salman’s position that only a clear pecuniary benefit to the tipper should trigger liability.