Environmental enforcement runs on three levels, and it’s worth understanding where certain conduct tends to land. Unlike most areas of law, the line between the three isn’t written into the statutes with any precision. A bank robber doesn’t get a notice of violation; he’s arrested outright. Environmental law is different. Regulators have multiple tools available for the same underlying conduct, and the one that applies usually comes down to harm and intent, not a bright line in the code.

Administrative

Administrative actions are at the base of the staircase, and where the overwhelming majority of environmental enforcement matters are resolved. Self-reporting and voluntary audits are built into the system – regulators generally want a “find and fix” outcome more than a fight. Enforcement stays inside the agency: notices of violation, compliance orders, and administrative penalties, sometimes paired with compliance assistance. For most regulated entities, this is the only rung of the staircase they’ll ever encounter, and it’s designed that way.

Civil

Civil enforcement moves the matter into court, and the remedy is still financial but may also include prescriptive changes imposed as part of a settlement – ranging from required equipment upgrades to outside monitors in rare instances. A matter that moves to civil enforcement is typically treated as higher priority and greater in environmental impact than one resolved administratively. This is also where the agency’s own enforcement posture has recently shifted. On December 5, 2025, EPA’s Office of Enforcement and Compliance Assurance issued a memo reinforcing a “compliance-first” orientation for civil judicial and administrative enforcement. The memo directs staff to prioritize achieving compliance quickly over expansive findings or protracted litigation, to base findings of violation on the “best reading” of the statute, and to defer more to state and tribal co-regulators. It also rescinds a 2021 policy that had encouraged more expansive injunctive relief tools such as third-party audits and supplemental environmental projects and requires case teams instead to keep remedies narrowly tied to the specific violation and the plain text of the law. Notably, the memo is explicit that it governs civil enforcement only; criminal enforcement guidance, it says, may be issued separately. For companies working through a civil matter, the practical effect is that a regulator may now be more inclined toward efficient resolution and less inclined toward remedies that reach beyond the violation itself, but the underlying legal exposure hasn’t changed.

Criminal

Criminal is the last step, reserved for conduct the government considers serious enough to put someone at risk of prison time. In practice, the Department of Justice (DOJ) doesn’t bring environmental charges unless one of four factors shows up in the fact pattern:

• deceptive or misleading conduct, such as submitting false data to a regulator;
• significant environmental harm, such as a large fish kill;
• operating entirely outside the regulatory system with no permit at all;
• or repetitive violations that continued after civil enforcement already tried to address them.

David Uhlmann’s empirical study of EPA criminal referrals from 2005–2010, conducted while he was a University of Michigan law professor, found that nearly every prosecuted defendant had at least one of these factors on the record, and many had more than one – evidence that prosecutorial discretion in this space tends to track a fairly consistent set of aggravating facts rather than operate arbitrarily. And in the sixteen years since this study, these dynamics have not materially changed.

EPA also runs its own scorecard before a case reaches DOJ, weighing the release itself (whether hazardous substances were involved, or unpermitted discharges occurred), the human health impact (documented exposure to the public, or an expensive cleanup), and the subject’s characteristics (high-level management, prior enforcement history). And it takes a lot for a case to even be opened criminally. Historically, fewer than one in five criminal leads EPA receives are opened as formal investigations, but once charged, the conviction rate generally runs above 90 percent, and typically more than 80 percent of defendants are individuals rather than companies. This isn’t a wide net. It’s a narrow pipeline aimed at conduct the government has concluded crossed a real line.

The Practical Question

The mistake I see most often is treating distance from the criminal threshold as permanent, rather than as something that can erode with repetitive violations, unpermitted operations, or a paper trail that starts to look like concealment instead of error. Most companies never face that level of enforcement, but staying that way takes ongoing awareness of where you stand, not an assumption that it can’t happen here. The useful question isn’t just “are we in compliance,” but where your facility would land if EPA ran its full scorecard against you tomorrow.

Until next week,

Doug Parker

CEO, Ecolumix

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Coming in future issues:

EHS is sustainability: The sustainability story companies are missing is often already sitting in their own EHS data. Tying the two disciplines together can turn it into real brand value.

Citizen Suits: The Supreme Court reaffirmed them, the administration is seeking to rein them in, and NGOs are moving ahead.

Questions or topics worth covering? Reach out: doug@ecolumix.com