Message from the Chair

Mark Thornhill
mthornhill@spencerfane.com

The shape of things to come in environmental enforcement was previewed at the 32nd Annual Conference on Environmental Law in Keystone, Colorado, in March. U.S. EPA’s top enforcement official, J.P. Suarez, stressed “smart” enforcement and noted the agency’s interest in environmental management systems as part of case resolutions. Part of the subtext here may be that EPA expects companies to waive the privilege in their internal investigations in order to negotiate a case-ending deal. The EPA would not exactly be breaking new ground if privilege waiver becomes an expected part of any settlement. The Justice Department has publicly stated since the days of the Clinton administration that privilege waiver can play an important role in plea negotiations. The current deputy attorney general has articulated a policy that could make privilege waiver the ordinary course.

So is it good or bad that the government provides an incentive for privilege waivers? Presumably, an environmental offender who waives privilege will help the government to learn the identity of all responsible parties and the full extent of their conduct. This means complete justice may come more efficiently. Sounds good. But isn’t it true that the importance of privilege diminishes as companies cast it aside to achieve a more favorable negotiated result? Even the courts ultimately may grant diminished respect to privilege issues. Let’s face it, important legal positions are established (and maintained) through aggressive and often prolonged litigation. If privilege waivers become common, judicial focus on the topic also may wane.

Personally, I think the EPA and DOJ should be satisfied if parties acknowledge their responsibility for illegal conduct. The government should not also demand that parties reveal the legal advice and thought processes that brought them to the point of acknowledging responsibility. The Committee would like to get your views on this important topic. Please e-mail your comments to me at mthornhill@spencerfane.com. We will report on the responses in a future newsletter.