On July 31, 2025, the Environmental Protection Agency (“EPA”) published a notice in the Federal Register, titled “Guidance on Referrals for Potential Criminal Enforcement,” that discusses EPA’s plans to address criminal regulatory offenses consistent with the Trump Administration’s recent executive order (“EO”) on Fighting Overcriminalization in Federal Regulations.
The notice provides a “general policy” for EPA to follow when determining whether to refer an alleged violation of a criminal regulatory offense to the Department of Justice (“DOJ”). Specifically, 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.
In addition to the EPA, several other agencies—including the Federal Energy Regulatory Commission and the Departments of Energy, Transportation, and Defense—have published their own policies pursuant to the Trump Administration’s EO on criminal regulatory offenses, with each agency adopting the above factors for deciding whether to refer alleged violations of criminal regulatory offenses to the DOJ.
The overarching concept for all of these agency policies is to reserve criminal enforcement for the kinds of offenses and conduct that the lay public would consider to be criminal—reckless, intentional, and serious infractions—and to avoid criminally pursuing the kinds of unintentional mistakes for which criminal enforcement, while technically available under the law, may seem unfair.
The EPA and other agencies’ policies also state that, by May 9, 2026, each respective agency will provide to the Office of Management and Budget a report that contains: “(1) a list of all criminal regulatory offenses enforceable by [the agency] or [DOJ]; and (2) for each such criminal regulatory offense, the range of potential criminal penalties for a violation and the applicable mens rea standard for the criminal regulatory offense.”
For more information regarding this topic, contact Liskow attorneys Greg L. Johnson, Sean Toomey, Clare Bienvenu, and Colin North, and visit the Louisiana Industrial Insights Hub for further updates.