On Oct. 25, Syracuse University's Transactional Records Access Clearinghouse (TRAC) reported that federal criminal prosecutions under environmental laws dropped 10 percent in the 2018 fiscal year from 2017 levels. According to TRAC, federal prosecutions for crimes are down 40 percent from 2013 levels.

Federal prosecution of environmental crimes has always been somewhat limited. At its peak, the U.S. Department of Justice (DOJ) prosecuted fewer than 300 cases per year in the categories analyzed by TRAC. The 109 new environmental cases brought by federal prosecutors last fiscal year is approximately half the number from two decades ago.

Still, despite these recent declines at the federal level, environmental criminal enforcement remains a potent regulatory tool. States, tribes, and localities maintain authorities to bring criminal enforcement actions—and are sometimes tempted to increase such enforcement when federal actions decline. Indeed, Pennsylvania Attorney General Josh Shapiro has frequently highlighted his office's intention to prioritize the prosecution of environmental crimes. More importantly, when criminal enforcement is declining, federal, state, tribal and local prosecutors are required to focus on making a bigger statement with marquis cases. However, the second and perhaps most important reason is that criminal enforcement of environmental violations is highly unpredictable and the best athletes are made during the off-season, so to speak. Meaning, much as an athlete shouldn't expect to win a race or game without any training, clients would be remiss to ignore environmental compliance until facing an enforcement action.