Mind Over Matter: Executive Order Seeks to Reframe Regulatory Criminal Enforcement
On May 9, 2025, President Trump issued an Executive Order entitled “Fighting Overcriminalization in Federal Regulations” (the Order), which directs federal agencies to reassess how and when criminal penalties are applied to regulatory violations. The Order opens with the premise that “[c]riminal enforcement of regulatory offenses is disfavored.” While the Order broadly targets strict liability offenses—those that do not require proof of intent—it also calls for heightened scrutiny of criminal enforcement where the regulated party did not act with “intentional wrongdoing.” This emphasis on mens rea (the mental state required for criminal liability) could have important implications for environmental criminal enforcement more broadly.
Environmental statutes such as the federal Clean Water Act and Resource Conservation and Recovery Act, as well as their respective state law equivalents, impose criminal liability based on a “knowing” standard, which does not require intent to violate the law or cause harm. Instead, criminal liability under these statutes and associated regulations requires only that the defendant was aware of their conduct. Criminal enforcement under these circumstances risks punishing individuals absent true criminal intent, as it allows conviction based merely on awareness of circumstances rather than purposeful wrongdoing. Congress opted for this lower mental state when drafting these environmental laws to account for risks associated with inherently dangerous activities, such as the use or disposal of hazardous substances, though some argue that this framework blurs the line between culpable conduct and mere knowledge, undermining the foundational principle that criminal liability should be tied to a blameworthy state of mind.
The Order does not change existing statutes or regulation, but it signals a policy preference for limiting criminal enforcement to cases involving clear intent or recklessness. Agencies are instructed to provide, within a year of the Order, a report that lists criminally enforceable regulations and identifies the applicable mens rea standard and range of potential criminal penalties applicable to each. This means that agencies must clearly specify whether a violation requires proof of intent, knowledge, or recklessness or is a strict liability offense. The goal is to ensure that regulated entities have a clear understanding of the mental state required for criminal liability, thereby reducing the risk of inadvertent violations and promoting fairer enforcement practices. This may immediately alter how environmental crimes are evaluated by the U.S. Department of Justice (DOJ), and is also apt to influence how agencies like the U.S. Environmental Protection Agency refer cases for criminal enforcement. For instance, the Order mandates that agencies should consider evidence, if any, of a potential defendant’s knowledge or lack of knowledge of the regulation at issue before referring the matter to the DOJ for criminal enforcement.
The Order also calls for consideration of a default mens rea standard for regulatory offenses. Traditionally, industries such as environmental, health care and financial services have been held to higher standards of compliance due to the potential impact of their operations on public health, safety and welfare. By requiring a higher level of intent for criminal liability, the Order may shift the enforcement landscape, potentially reducing the burden on regulated entities but also raising questions about the adequacy of protections for the public and the environment.
For regulated entities, this development is worth watching. It may offer an opportunity to advocate for clearer guidance, more consistent enforcement thresholds, and a more proportionate approach to criminal liability. At a minimum, the Order reflects this administration’s concern about the fairness and predictability of regulatory enforcement—especially in areas where the line between civil and criminal liability is thin.
