Oct. 28, 2015 – Three professionals from different areas of the legal spectrum discussed how they respond and interact in the aftermath of a major industrial accident such as the 2010 Gulf oil spill during a recent program presented by the Environment, Energy & Natural Resources Center of the University of Houston Law Center.
The Oct. 23 event, “Environmental Law in Times of Industrial Catastrophe,” brought together a representative of a federal investigatory agency, a former prosecutor turned professor, and a defense attorney for industrial firms in a wide-ranging discussion of how such investigations and prosecutions play out.
Kara Wenzel, acting general counsel of the federal Chemical Safety Board, explained that the agency, authorized by the Clean Air Act, has a strictly investigatory function and is not involved in regulatory or prosecutorial matters.
The main purpose of CSB investigations, which are usually conducted alongside investigations by agencies like the EPA or OSHA, is to determine “root causes” of incidents and make recommendations to appropriate entities in government and industry, Wenzel said.
Because the CSB is independent of those agencies which have prosecutorial functions, the agency often can more readily gather crucial information in the immediate aftermath of an event since employees don’t have to fear that their statements later will be used by prosecutors, she said.
But that sometimes causes “a little bit of friction” between CSB and other agencies, she said.
Professor David Uhlmann, director of the Environmental Law and Policy Program at the University of Michigan Law School, served for several years as the chief of the Environmental Crimes Division of the U.S. Department of Justice. He outlined for the audience, which included many corporate defense attorneys, the factors federal prosecutors take into consideration when deciding to prosecute criminally in an industrial accident case.
One of the most prominent factors, Uhlmann said, is whether an incident resulted in substantial harm, either to people or to the environment, as in the case of the Gulf oil spill.
“In the environmental area, the handful of cases that came along where harm is present, they jump way up the radar screen for prosecutors and investigators, because they answer the ‘who cares’ question,” he said. “They answer the question about why do we care about enforcement of environmental laws and worker safety laws, why do these cases make a difference? They have jury appeal, and they have appeal to judges, and they resonate with the public in ways that cases that are without harm simply don’t.”
Uhlmann said that from his experience as a prosecutor, he learned that “many accidents aren’t an accident.”
“They’re accidents in the sense that no company wishes to have something terrible happen at their facility. But there’s a lot of intentional conduct that surrounds industrial accidents – cost-cutting, an attitude toward risk-taking, poor training, and poor supervision, all of which involve intentional choices by the companies involved,” he said.
Very often, Uhlmann said, the primary root cause of an incident is the “corporate culture” within the organization.
The flip side of the equation, he said, is that “justifiable anger” over an extremely harmful event can lead to a “rush to judgement” that can overwhelm prosecutors’ responsibility to do careful analysis of culpability before deciding to press charges.
“If something terrible happens, the natural public reaction is that it must be criminal. If something terrible happens that doesn’t mean it’s criminal. One doesn’t always lead to the other,” he said. “That’s a real challenge to the sort of objective analysis I think should be part of all government enforcement decisions (to prosecute).”
Mark Farley, a partner with the firm Katten Muchin Rosenman and co-head of its environmental practice, said industry in recent years has been dealing with an increased “criminalization” of accidents. And that applies to the law firms that defend corporations.
“Literally, from day one, counsel is grappling with the fact that their client may be facing a grand jury investigation,” he said. Perhaps more significant than the possibility of prosecution, he said, is the harm to a company’s reputation that results from an incident.
Even as lawyers are trying to determine what happened in the first hours and days after an incident, he said, they are trying to help their clients “restore confidence with your employees, contractors, the community in which you operate, elected officials, regulatory officials, the public, your shareholders, your customer, because these kinds of events call into question whether your social license to operate should be tolerated.”
All of the panelists agreed that problems exist within the present regulatory scheme, which Farley, the defense attorney, characterized as being “performance-driven” without giving operators clear guidance on how to meet the standards.
“We all know that ignorance of the law is no defense. But in this case even as a practicing lawyer, I can’t necessarily tell my client what the specific legal obligation is, other than don’t have an accident,” he said.
Uhlmann, the former prosecutor, agreed that that sometimes is an issue, and that prosecutors can be overzealous at times.
“Prosecuting just for the sake of prosecuting isn’t justice,” he said.
But one of the audience members said the problem stemmed from the fact that regulations are often based on industry standards, which she said have been notoriously weak over the past several decades, as evidenced by the 2010 Gulf oil spill.
The panelists also agreed that lawyers for companies, either in-house or outside counsel, should make clear to the employees at an accident scene that they represent the companies, not the individual employees.
“My counsel to in-house and outside counsel would be, ‘Do not lie to your employees.’ They need to understand who precisely the client is,” Wenzel said.