environmental crimes panel: criminal enforcement for negligent conduct 2011 houston marine insurance...

Environmental Crimes Panel:Environmental Crimes Panel:Criminal Enforcement for Criminal Enforcement for

Negligent ConductNegligent Conduct

2011 Houston Marine Insurance 2011 Houston Marine Insurance SeminarSeminar

Gregory F. LinsinGregory F. LinsinSeptember 19, 2011September 19, 2011

Legal Standard - Negligent Criminal Liability

• Clean Water Act, as amended by OPA 90.– Negligent discharge of any pollutant without a permit into navigable

waters of the United States .

– Negligent discharge of a harmful quantity of oil into navigable waters or the contiguous zone.

– Ordinary negligence is sufficient to sustain a conviction.

• Other “strict liability” offenses often implicated.– Refuse Act – discharge of any refuse into navigable waters.

– Migratory Bird Treaty Act – unlawful taking of any migratory bird, but recent decisions have implied requirement to establish proximate causation and foreseeability.

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Policies and Procedures Affecting Oil Spill Enforcement

• U.S. Coast Guard Marine Casualty Investigation .– Cause(s) of casualty.

– Any acts of negligence or misconduct that contributed to cause(s).

– Any evidence of acts that could lead to civil or criminal liability.

• Policies of Department of Justice, U.S. Coast Guard and EPA identify criteria that guide exercise of discretion. – Actual or threatened harm to environment.

– Failure to make timely report of discharge .

– Falsification of records, concealment of evidence, obstruction of investigation.

• Parallel proceedings policies facilitate simultaneous administrative, civil and criminal investigations.

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Seven Criminal Prosecutions in Wake of Oil Spill Events

• US v. DRD Towing – Tugboat piloted by apprentice-mate collided with tanker; time records falsified.

• US v. Fleet Management – Ship allided with supporting tower of San Francisco Bay Bridge; passage plans falsified.

• US v. IMC Shipping – Bulker experienced mechanical problem and unable to restart main engine; vessel runs aground, breaks apart in rough seas, and sinks; false statement to NTSB.

• US v. Bouchard Transportation – Tugboat runs aground outside Buzzards Bay Channel; wheelhouse not manned.

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Seven Criminal Prosecutions – Cont’d

• US v. Ekloff Marine – Tugboat engine room fire causing loss of power; tug and barge run aground; prior maintenance problems.

• US v. Rivera – Towline between tug and barge parts twice; crew of tug asleep; barge grounds off coast of Puerto Rico.

• US v. Exxon – Tanker exits vessel traffic lanes and grounds on reef in Prince William Sound; multiple maritime offenses.

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Perspective

• Vast majority of oil spills do not result in significant enforcement action.

• Some substantial oil spill events have been considered for criminal prosecution but were declined following consultations between U.S. Coast Guard and Department of Justice.

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Factors That Have Influenced Exercise of Prosecutorial Discretion

• Actual or threatened environmental harm is a key factor.

– Sensitivity of marine environment.

– Proximity to major population centers.

• All but one case involved multiple, serious acts of negligence that were proximate causes of casualty.

• Majority of cases involved post-incident conduct designed to falsify records or otherwise obstruct investigation.

• Several cases involved violations of other maritime laws.

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Criminal Investigation of Deepwater Horizon Casualty

• Criminal task force now led by Assistant U.S. Attorney John Buretta and reporting to Assistant Attorney General of Criminal Division Lanny Breuer.

• Active grand jury investigation in E.D. Louisiana.

• Seaman’s Manslaughter Statute implicated.– 10 year felony based on proof of simple negligence.

• Environmental offenses will be charged.– Clean Water Act; Migratory Bird Treaty Act

• Criminal fraud charges are also being considered.

• Anticipate complications for major organizational targets to reach negotiated disposition.

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QUESTIONS?

Greg LinsinTel. (202) 772-5813

Mob. (202) 340-7806linsin@blankrome.com

Blank Rome LLPThe Watergate

600 New Hampshire Avenue, N.W.Washington, D.C. 20037