Oil and gas industry participants have always recognized the constant risk of strict civil liability that accompanies violations of environmental statutes, and appreciated the specter of a criminal prosecution for the most egregious violations. Current enforcement trends, however, demonstrate that prosecutors are seeking ways to transform seeming civil violations into criminal actions by broadening criminal culpability through the use of evolving legal concepts such as the collective knowledge doctrine. Some perceived the 2015 release of the Yates Memo by the U.S. Department of Justice as a pendulum swing away from corporate criminal prosecutions to a renewed focus on individual accountability. This presentation will provide a background on the mens rea required in criminal prosecutions, focusing on traditional rules used by prosecutors to expand the reach of corporate punishment from civil to criminal, including concepts such as willful blindness, the responsible corporate officer doctrine, and the collective knowledge doctrine. It also will highlight some post-Yates Memo ethical considerations that legal practitioners in the oil and gas industry should remain current when facing environmental enforcement actions.
This presentation was co-authored by Pittsburgh partner Thomas Ryan.