Navigating DOJ’ s New Corporate Enforcement Landscape: Key Considerations for Environmental Voluntary Self-Disclosures( continued from page 13)
company;( 4) involved concealment or obstruction of justice by senior management;( 5) was followed by lack of full cooperation; or( 6) was followed by lack of timely and appropriate remediation. These factors aligned with the ECS Policy’ s prosecutorial priorities and the environmental context inherent in its enforcement mandate.
The aggravating circumstances listed in the new CEP now focus on the“ nature and seriousness of the offense” including the“ egregiousness or pervasiveness of the misconduct within the company, severity of harm caused by the misconduct, or corporate recidivism, specifically, a criminal adjudication or resolution either within the last five years or otherwise based on similar misconduct by the entity engaged in the current misconduct.”
How prosecutors will weigh these different factors, and whether consistency will emerge across the DOJ’ s divisions, remains to be seen.
The Monitorship Question: Different Default Positions. Both policies address the question of independent compliance monitorships, but with notable distinctions in their approach.
Under the former ECS Policy, when a company made a qualifying voluntary self-disclosure, fully cooperated, and remediated, ECS would“ not require the imposition of an independent compliance monitor, if the company demonstrates at the time of resolution that it has implemented and tested an effective compliance program.” This language suggested that the absence of a monitor is contingent on demonstrating compliance program effectiveness, yet this benefit only applies in the context of a favorable resolution.
The new CEP, however, introduces a noteworthy element: under Part II of the policy, which addresses“ near miss” voluntary self-disclosures or cases involving aggravating factors that nonetheless warrant resolution rather than declination, the DOJ will“ not require an independent compliance monitor” as part of the standard benefits package, even when providing an NPA rather than a declination. This creates a potential pathway where a company facing aggravating circumstances could still avoid monitorship while receiving an NPA. That said, industry stakeholders will want to observe how resolutions of this type are executed.
Fine Reductions: A Critical Clarification. Perhaps one of the most important distinctions involves the calculations of fine reductions. The CEP provides specific percentage reductions, including reductions of“ at least 50 % but not more than 75 % off the low end of the U. S. Sentencing Guidelines fine range” for Part II resolutions and up to 50 percent for Part III cases.
However, the former ECS Policy clarified that the Sentencing Guidelines framework does not directly apply to environmental offenses. 3 This distinction is critical: companies facing potential environmental criminal liability should recognize that the specific percentage-based fine reduction framework articulated in the CEP does not apply to fines for environmental offenses. The prior ECS Policy contemplated that prosecutors will“ recommend to the sentencing court a more lenient criminal fine” without specifying quantified reductions. Therefore, it is unclear how fines related to environmental criminal offenses will be treated under the CEP.
Looking Ahead The new CEP provides important guidance, but the true contours of the policy will only emerge through application. Both the CEP and prior ECS Policy emphasize that decisions will be made on a case-by-case basis at the“ sole discretion” of the relevant prosecutorial authorities. The CEP explicitly notes that it seeks to“ transparently describe the Department’ s policies and decision making” and requires that all CEP declinations be made public, which should provide ongoing insights into how these standards are applied.
For now, industry stakeholders should be aware of the provisions of the new CEP and, with the advice of counsel, approach any disclosure decision with careful understanding as to which part of the policy, and which aggravating factors, fine calculation methods, and resolution pathways, might govern their particular circumstances. As the DOJ and ECS accumulate experience under the new CEP, clearer patterns may emerge. Until then, a cautious and measured approach is warranted.
p – 2026 BLANK ROME LLP
3
The policy states,“ Because the fine guidelines in § 8C2.2 through § 8C2.9 of the U. S. Sentencing Guidelines( U. S. S. G.) Manual, Chapter 8( Sentencing of Organizations), do not apply to environmental offenses, a specific percentage reduction of any fine is not part of this policy.”
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