On May 9, 2025, President Trump issued Executive Order No. 14294, "Fighting Overcriminalization in Federal Regulations" (EO), which reinforces the administration's deregulatory agenda. While sweeping in scope, the EO has immediate and concrete implications for companies facing potential criminal exposure under federal environmental laws. The practical result may be fewer but more severe environmental prosecutions, centered on egregious, intentional misconduct.
Focusing on Intent
The EO declares that "criminal enforcement of criminal regulatory violations is disfavored." Strict-liability offenses—violations with no explicit mental-state requirement—are also "generally disfavored," and should primarily be addressed through civil or administrative means. Criminal enforcement, the EO emphasizes, is most appropriate where a person knows (actually or constructively) what the law requires and willfully or intentionally violates that law.
Though the EO expressly concerns potential criminal penalties for regulatory violations, it is likely to influence prosecutions for statutory violations that fall short of willfulness. Most federal environmental statutes allow for criminal liability based on negligence or knowledge, but the EO directs federal prosecutors to focus on cases involving intentional misconduct.
This emphasis echoes concerns Justice Brett Kavanaugh raised during oral arguments in City & County of San Francisco v. U.S. Environmental Protection Agency (EPA) (No. 23-753) on October 16, 2024. Justice Kavanaugh noted an "overarching problem" under the Clean Water Act (CWA) that "you [a permittee] don't know what your obligations are and you can go to prison," highlighting the risk of harsh criminal penalties for mere negligence.
To implement its directive, the EO requires each executive agency to:
- Disclose in all new rulemakings: (1) the conduct subject to criminal enforcement, (2) the authorizing statute, and (3) the applicable mens rea (guilty mental state) standard.
- Publish by May 8, 2026 (and annually thereafter) a list of criminally enforceable regulations, including penalty ranges and mens rea standards.
- Assess if it can adopt a background mens rea standard and review existing standards.
- Issue U.S. Department of Justice (DOJ) referral guidance by June 23, 2025, which must factor in harm, economic benefit, defendant expertise, and awareness of illegality.
Criminal referrals for offenses not listed in an agency's annual report are now "strongly discouraged." Agencies must consider including cases in the report before referring them to DOJ or an Inspector General, and DOJ must also consider listing before pursuing criminal enforcement.
Clarifying the Scope of Strict-Liability Environmental Crimes
Although the EO targets strict-liability regulatory offenses, such provisions are relatively rare in environmental law. Most criminal violations under EPA regulations require at least negligence or knowledge, reflecting their underlying statutes. However, a handful of EPA regulations—such as those requiring immediate notification of hazardous substance releases under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (40 C.F.R. § 302.6), oil discharges and hazardous substance releases under the CWA (40 C.F.R. §§ 110.6, 117.21), and extremely hazardous substance releases under EPCRA (40 C.F.R. § 355.40)—impose strict criminal liability for failure to notify.
It remains uncertain how the EPA will interpret or enforce these requirements under the EO. Nevertheless, these provisions are exceptions in a regime that generally requires some culpable mental state for criminal liability.
Implications for Environmental Criminal Enforcement
Although the EO focuses on strict liability, its broader message will likely shape environmental enforcement overall. By emphasizing willful violations, the EO signals that prosecutors should avoid charging cases based solely on knowledge or negligence, even where permitted by statute.
Environmental crimes will be harder to prosecute under this policy. Congress has long authorized criminal penalties in this area without requiring proof of intent, as seen in cases related to negligent discharges under the CWA and negligent endangerment under the Clean Air Act (CAA). Some statutes also impose criminal liability on those who knowingly engage in conduct that violates the law, even if unaware that their actions are illegal.
The EO's presumption against strict liability, coupled with its preference for civil remedies absent intentional misconduct, will pressure EPA and DOJ to justify any criminal referral based on negligence or knowing conduct.
Environmental criminal provisions most likely affected (i.e., likely to see fewer criminal prosecutions/referrals) include:
- CWA: Negligent discharges to waters of the United States without a permit (33 U.S.C. § 1319(c)(1))
- CAA: Negligent endangerment from hazardous air pollutant releases (42 U.S.C. § 7413(c)(4))
- CAA: Knowing permit violations (42 U.S.C. § 7413(c)(1))
- Resource Conservation and Recovery Act (RCRA): Knowing storage, treatment, or disposal of hazardous waste without a permit (42 U.S.C. § 6928(d))
- Toxic Substances Control Act (TSCA): Knowing the manufacture or distribution of unlisted chemicals (15 U.S.C. § 2615(b)(1))
Less likely to be affected are provisions requiring intent or willfulness, such as:
- False statements and obstruction (18 U.S.C. & environmental analogs)
- Knowing endangerment (e.g., 33 U.S.C. § 1319(c)(3); 42 U.S.C. § 7413(c)(5))
- Lacey Act wildlife trafficking (16 U.S.C. § 3372)
Practical Takeaways for the Regulated Community
The EO narrows but does not eliminate the risk of criminal enforcement. While civil enforcement may increasingly fill the gap, EPA and DOJ will likely focus criminal efforts on:
- Intentional violations (e.g., bypassing controls, falsifying data, illegal dumping), especially where harm is likely or occurs.
- Repeat or pattern-based noncompliance, where prior inspections or enforcement have put the company on notice.
- Title 18 offenses (e.g., false statements, obstruction, conspiracy, and fraud), which remain untouched by the EO.
The practical result may be fewer but more severe environmental prosecutions centered on egregious or intentional misconduct. Resulting penalties may be higher, even if less frequent.
Companies should prepare for EPA to issue new referral guidance later this month. In the meantime, they should monitor agencies' lists of regulatory criminal provisions to identify high-risk areas, document safeguards (including training, procedures, and internal controls) as evidence of good-faith compliance, and leverage the EO strategically during investigations involving strict-liability claims.
Disciplined compliance remains the best defense.
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