The US environmental Protection Agency (EPA) continues to narrow its enforcement focus in order to follow Trump administration priorities. I recently wrote about EPA’s May 2025 statement of new enforcement policies (I wrote about that memo HERE). Now, EPA has announced further changes, to align its activities with the President’s Executive Order “Fighting Overcriminalization in Federal Regulations” (EO 14294). The remainder of this note summarizes these changes.
How have agencies conducted criminal enforcement?
Traditionally, criminal prosecutions were tied to specific defendant actions undertaken with “specific intent” (also called “criminal intent” or “mens rea” (“guilty mind”)). Under this model, the prosecutor had to prove that the defendant knew there was a prohibition, but deliberately violated that prohibition. In non-regulatory contexts these led intentional offenses such as first degree (premeditated) murder versus manslaughter or negligent homicide. When modern environmental health and safety (EH&S) laws emerged they tended to follow these distinctions, focusing on non-criminal civil penalties for most violations; even laws that included criminal provisions general provided them only for the most dangerous and egregious actions, or those representing traditional criminal prohibitions – such as fraud or perjury.
In recent decades, however, prosecutors’ tools have expanded. These include “strict liability” which is still framed as civil liability but can lead to substantial (typically financial) liabilities if defendants violated standards even without knowledge of the existence of those standards or he results of their actions – for example, cleanup responsibility under the Superfund law for anyone found to be a “responsible party” for pollution by Superfund-listed hazardous substances. At the same time, many EH&S laws codified penalties for “knowing” violations of statutory and regulatory violations – increasingly interpreted to mean that the defendant knew they were doing something – such as shipping or disposing spent materials – without knowing that their action violated a prohibition – such as shipping or disposing spent materials defined to be “hazardous waste” under the federal Resource Conservation and Recovery Act (RCRA) without complying with RCRA’s management and permit standards. The Department of Justice (DOJ) provides enforcement for most criminal and many civil violations.
What are Trump administration policies?
The Trump administration has moved forcefully to reverse the expansion of criminal liabilities in most regulatory contexts. On May 9, 2025, President Trump issued EO 14294 to set forth his administration’s approaches and direct federal agencies to align their enforcement actions. The EO includes the following:
- Decries the proliferation of “regulatory crimes”, many of which are strict liability offenses
- “Criminal enforcement of criminal regulatory offenses is disfavored.”
- “Prosecutions of criminal regulatory offenses should focus on matters where a putative defendant is alleged to have known his conduct was unlawful.”
- Cites US Supreme Court precedent for “Strict liability offenses are ‘’generally disfavored.’’”
- “Agencies promulgating regulations potentially subject to criminal enforcement should explicitly describe the conduct subject to criminal enforcement, the authorizing statutes, and the mens rea standard applicable to those offenses.”
- By 5/9/26 (and annually thereafter) each agency is to report and publish a list of all enforceable criminal regulatory violations under its authority, the range of potential criminal penalties, and the applicable mens rea standard. Criminal enforcement of any other criminal regulatory offense is “strongly discouraged.”
- “Strict liability criminal regulatory offenses are disfavored.”
- Each agency, in cooperation with DOJ, is to “determine whether there is authority
- to adopt a background mens rea standard for criminal regulatory offenses that applies unless a specific regulation states an alternative mens rea,” and begin to develop a background standard if possible
- the EO also sets forth timelines and procedures for agencies to follow, and specifically excludes immigration enforcement and national security.
What has EPA published?
On July 31, EPA issued a notice summarizing its response to EO 14294. “[w]hen the Agency is deciding whether to refer alleged violations of criminal regulatory offenses to DOJ, officers and employees of EPA should consider, among other factors:
- the harm or risk of harm, pecuniary or otherwise, caused by the alleged offense;
- the potential gain to the putative defendant that could result from the offense;
- whether the putative defendant held specialized knowledge, expertise, or was licensed in an industry related to the rule or regulation at issue; and
- evidence, if any is available, of the putative defendant’s general awareness of the unlawfulness of his conduct as well as his knowledge or lack thereof of the regulation at issue.”
Readers can see that the references to “specialized knowledge” and “general awareness” reflect the administration’s attention to mens rea versus other states of mind..
What happens now?
The new Policy became effective immediately, as another redirection of EPA’s enforcement policies. Complete implementation will presumably take time as managers assimilate these responsibilities, and as training, procedures and information management systems are developed fully
Self-assessment checklist?
Are any of the organization’s activities subject to compliance requirements administered by EPA – and to enforcement for non-compliance?
- Are any of those responsibilities subject to criminal enforcement?
- Does the organization ensure its compliance with applicable requirements (which would obviate enforcement for noncompliance)?
Where can I go for more information?
- EPA
- “Guidance on Referrals for Potential Criminal Enforcement” (Federal Register 7/31/25)
- Executive Orders
- EO 14294 “Fighting Overcriminalization in Federal Regulations” (5/9/25; 5/14/25 Federal Register)
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com