Assistant Attorney General Todd Kim of the Justice Department’s Environment and Natural Resources Division Delivers Keynote at INTERPOL’s 25th Annual Pollution Crime Working Group Meeting | OPA

By | December 5, 2023
Assistant Attorney General Todd Kim of the Justice Department’s Environment and Natural Resources Division Delivers Keynote at INTERPOL’s 25th Annual Pollution Crime Working Group Meeting | OPA

Remarks as Prepared

Thank you for that very kind introduction, Federica. And greetings to everyone joining the proceedings today. It’s my great pleasure to be part of a robust and fascinating agenda.

As just mentioned, my name is Todd Kim, and I have the great privilege of leading the U.S. Department of Justice’s Environment and Natural Resources Division (ENRD).

We are sometimes called the “world’s largest environmental law firm,” with over 600 employees, including more than 400 attorneys. The division has a busy docket, roughly split between affirmative civil and criminal enforcement on one hand and defensive cases on the other. These cases arise under approximately 150 federal environmental and natural resource laws — laws like the Clean Air Act, Clean Water Act, the Superfund cleanup law, the Lacey Act and laws governing the management of public lands and resources held in trust for Indian tribes. Our attorneys deal with a remarkable breadth of issues, statutes, federal agencies, and federal agency actions, all across the country. You are probably familiar with some of our work, like the BP/Deepwater Horizon case, the Volkswagen defeat device case and the Princess Cruise Lines prosecution.

Within ENRD, our Environmental Crimes Section is made up of 36 federal criminal prosecutors dedicated strictly to criminal enforcement work. They bring criminal actions under the pollution control laws; laws protecting wildlife, animal welfare and natural resources; and occupational safety and health laws that protect worker safety.

I want to take just a moment to recognize two of the leaders of that Section who have also done a fabulous job representing ENRD and the department here at INTERPOL. Deborah Harris is the Chief of the Environmental Crimes Section, and for the last five years she has been the Vice Chair of the Environmental Compliance and Enforcement Committee Advisory Board. And you all are well-acquainted with Joe Poux, Deputy Chief of our Crimes Section and for the past five years the chair of this working group.

Vigorous and robust enforcement is necessary to ensure that we are able to detect, deter and disrupt environmental crime and thereby protect the public health and the environment, as well as create a level playing field for businesses that obey the law. I would like to stress for this group that enforcement of the criminal provisions of the environmental laws is a priority for me, including in the areas of pollution and waste crime.   

I am a firm believer that vigorous criminal enforcement is critical to the proper functioning of the overall enforcement scheme under the environmental statutes. Criminal prosecutions are an indispensable and powerful deterrent to illegal behavior. They are the pointy end of the spear. In U.S. environmental law – where enforcement options commonly range from administrative action by government agencies, to civil enforcement in court, to criminal prosecution – a genuine threat of criminal prosecution can and will change the conduct of individuals and corporations who would not be deterred by the threat of administrative or civil enforcement alone.

A commitment to criminal enforcement also expresses our values as a society in trying to protect human health and the environment from illegal pollution and waste disposal. Criminal enforcement tells the public and would-be violators that these acts that harm the environment, public health or place workers in peril are serious and that violations of these environmental and safety laws are worthy of our attention and resources to redress. Where such harmful actions are at issue, criminal prosecution is an appropriate response to the most egregious and harmful conduct.

We are clear-eyed about the many challenges enforcement authorities face in bringing pollution crime prosecutions. As we have seen, pollution and waste crime are frequently transnational offenses that demand the law enforcement agencies from different countries work together to develop strategies to address such crimes and the ever-more-sophisticated techniques of the criminal groups committing them. We are combating organized criminal groups who are familiar with enforcement gaps and know how to exploit them. We are seeing elaborate schemes of fraud, money laundering and other financial crimes accompany the environmental violations. We are also seeing a rise in the involvement of organized criminal organizations—for example, in the illicit trade of hazardous waste. And this is all happening on a global stage – heedless of borders and boundaries.

Naturally then, effective law enforcement in this space requires robust transnational collaboration, cooperation, and communication among and between national law enforcement and relevant intergovernmental bodies such as INTERPOL. It also entails aggressively investigating and appropriately charging crimes of fraud, conspiracy, financial crimes and obstruction of justice when committed alongside the environmental violation.  I can assure you that the Department and our prosecutors in ENRD are committed to these best practices.

I see on today’s agenda that you will be discussing the results of the Pollution Crime Working Group’s Operation 30 Days at Sea 3.0, which wonderfully embodies so many of these concepts.  First and foremost, the participation of 300 law enforcement bodies and agencies from 67 countries is truly impressive and an encouraging example of international cooperation. These numbers are even more impressive considering that the operation took place in the midst of the global pandemic.

And clearly that degree of cooperation produced results, with more than 38,000 inspections uncovering 5,607 offenses in just over a year. But while the breadth of the operation is cause for congratulations, it also reflects the breadth of the problem of marine pollution, as we see illegal discharges and other violations from sea-based vessels and other offshore facilities; from land-based sources affecting coastal and river environments; and waste trafficking coming through our ports.

For someone in my position overseeing a team of prosecutors, the report was also encouraging in showing that, of the cases where details were available, over nine hundred resulted in law enforcement actions, which included arrests, seizures and fines. The report demonstrates that the Pollution Crime Working Groups is truly operational and not just a “talking shop.”

In fact, I can attest to the practical value of these operations. The first PCWG operation, Operation 30 Days of Action in 2018, sparked what has become a substantial enforcement initiative to interdict illegal pesticides smuggled into the United States from Mexico, mainly for the purposes of growing marijuana. Working together with our federal partners at the Environmental Protection Agency and Homeland Security Investigations, ENRD and the U.S. Attorney’s Office for the Southern District of California have charged more than 50 defendants, obtained many felony and misdemeanor pleas and convictions, and seized substantial quantities of these pesticides that are banned for sale and distribution in the United States. That initiative continues to this day.

The report also highlights the role of corporate actors, especially in the area of vessel pollution, where the report concludes that “companies continue to be the main suspect in cases of marine pollution-related crime.”  This finding is especially interesting in connection with the report’s finding that the great majority of offenses were either deliberate (37%) or the result of negligence (34%).

During last year’s operation, the U.S. Coast Guard caught two different ships that had illegally discharged bilge waste overboard in violation of MARPOL. They also presented the Coast Guard with falsified records indicating that they had been managing their bilge waste properly. Both cases were referred to the Crimes Section and both the vessel operator as well as the responsible ship’s officers are being criminally prosecuted.

Finally, I think it’s worth noting that this most recent 30 Days at Sea operation continued to demonstrate the trend, and re-confirmed, that the crime of marine pollution is rarely isolated or limited to violating environmental laws on water pollution. Rather, it often converges with two different categories of crime.  First, it may be associated with other types of environmental violations, such as illegal fishing, illegal mining, or pollution of other media. Second, and this is more common, marine pollution crimes often are committed alongside other serious offenses such as document fraud, financial crime, corruption or even violent offenses.

INTERPOL and the Pollution Crime Working Group should be commended for this excellent report and such a productive operation. There is much to learn from the report’s findings and the department will continue to support the objectives of this operation.

I want to conclude by highlighting two top priorities of the Biden Administration with a critical nexus to the effective enforcement of pollution control laws:  tackling the climate crisis and promoting environmental justice. At its core, enforcement seeks to ensure that certain public values are achieved, and that public goods — indeed, the public’s health — are protected. Nowhere is that more true than for enforcement efforts that mitigate climate impacts and strive to secure environmental justice.

Through Executive Order 14008, “Tackling the Climate Crisis at Home and Abroad,” President Biden called on all U.S. government agencies to “hold polluters accountable for their actions,” and to “combat the climate crisis with bold, progressive action.”

Many of the enforcement cases handled by the division figure directly into these objectives. For example:

  • Cases directly enforcing against violations of regulations of emissions of greenhouse gases;
  • Cases that help protect carbon sinks, such as illegal logging prosecutions or vessel pollution cases that protect the ocean as a resource; and
  • Cases that protect the integrity of renewable energy programs by pursuing fraud and similar violations that undermine those programs.

I wanted to highlight a new category of enforcement work that offers promise for further reducing greenhouse gas emissions, specifically hydrofluorocarbons or HFCs, an especially potent greenhouse gas used in things like refrigerators, air conditioners and foams. Last September, the Environmental Protection Agency issued a regulation creating a landmark climate protection program that will phase down the production and consumption of HFCs by 85% below baseline levels within the next 15 years. Together with this regulatory phasedown program, the Administration has announced plans to enhance enforcement to prevent the illegal trade, production, use and sale of HFCs. An interagency task force led by EPA and the Department of Homeland Security has been established and special emphasis will be placed on enforcing import restrictions to stanch the illegal trade in these substances. ENRD will be working with its law enforcement partners at EPA and DHS to support the development and prosecution of cases developed by these agencies.

The European Union, of course, has been vigorously combating this illicit trade since it began an HFC phaseout in 2015. Like the EU, the United States wants to ensure that the illegal trade doesn’t undermine the climate benefits of the phaseout and doesn’t disadvantage companies that comply with the new requirements and invest in substitutes for HFCs. We look forward to the possibility that our enforcement efforts in the US can gain from the lessons learned from the experience in the EU and other regions.

ENRD also is focused intensely on achieving the objectives for environmental justice that are a central feature of Executive Order 14008. I know this isn’t a globally-recognized term, but for our purposes the U.S. Environmental Protection Agency has defined environmental justice as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies.” 

President Biden’s Executive Order tasks the department to coordinate with EPA and our other agency partners to develop “a comprehensive environmental justice enforcement strategy . . . to provide timely remedies for systemic environmental violations and contaminations, and injury to natural resources.”  Development of that strategy is underway, and is something that those subject to the environmental laws, and especially the pollution control laws, will want to consider upon its release.

But we are not waiting for that. My division is cognizant that there are communities, including communities of color and low-income communities, that are disproportionately burdened by illegal pollution, environmental hazards and harms, and that have struggled to get their concerns about violations addressed. We are working hard to remedy this situation. To the extent a defendant violates either civil or criminal law in a manner that implicates environmental justice or the climate crisis, my division is paying particular attention to these issues.

Thank you for the opportunity to address you this morning and to share some of my thoughts on these important issues. I wish you a productive session the rest of the day.