The investigation and prosecution of environmental crimes has steadily increased over the past decade.¹ Regulatory agencies responsible for overseeing compliance with environmental statutes have become aggressive prosecutors of environmental crimes. This change in posture, first witnessed in the early 1980s, has been contagious and is today evident at all levels of the law enforcement community. For example, in recent years, legislatures have enacted new environmental statutes and strengthened existing ones. Likewise, prosecutors have raised the stakes by exercising their discretion to investigate cases criminally rather than civilly, to charge matters as felonies rather than as misdemeanors, and to prosecute individual managers and employees rather than corporations alone. The same is true for the courts. At the federal level, courts are bound by the punitive provisions of the federal sentencing guidelines, and, for their part, state courts have demonstrated a new willingness to levy higher fines and penalties and to impose stiffer jail terms for environmental violations.

In light of these developments, it is critical that companies identify and respond effectively to even the earliest indications that they or their employees may have violated environmental statutes or regulations. Among other things, this requires that the company learn the underlying facts, identify knowledgeable employees, obtain relevant documents, understand procedures and techniques for interviewing employees, recognize the potential for conflicts of interest, and be alert to preserving the attorney-client and work product privileges. In short, companies must learn how to conduct a proper investigation. What to do and not to do in this regard is discussed below.