Environmental and Energy Industry Monitorships

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Monitorships in the energy and environmental contexts present many of the same issues and challenges as monitorships generally, but there are concerns specific to those contexts of which practitioners and companies should be aware. This chapter discusses some of those concerns, as well as the structure of monitorships more broadly in the energy and environmental sectors.

There are several ways to think about the different forms of monitorships and various valid methods of classification. This chapter differentiates them according to how they arise and who implements or enforces them. In this sense, there are three main categories of monitorships commonly faced by companies in the energy and environmental sectors:

  • monitorships imposed by US court order;
  • monitorships imposed by agreement with a US government agency, such as the US Department of Justice (US DOJ), the Securities and Exchange Commission (SEC) or the Environmental Protection Agency (EPA); and
  • for companies participating in energy or infrastructure projects that receive World Bank funding, monitorships imposed by the World Bank.

Types of monitorships

Applicable legal frameworks for monitors

In cases involving potential US criminal violations, the legal authority for imposing a monitor­ship stems from the US Criminal Code and the Sentencing Guidelines (the Guidelines) promulgated thereunder.[2] Pursuant to this authority, monitorship is just one potential term of corporate probation that courts may choose to impose on defendants.

Section 3563 of Title 18 of the US Criminal Code provides for the terms and conditions of criminal probation generally, while Section 3563(b)(22) of Title 18 is a catch-all provision allowing courts to impose discretionary conditions of probation that require defendants to ‘satisfy such other conditions as the court may impose’. Similarly, Section 8D1.3(c) of the Guidelines provides courts with broad authority to propose any conditions of corporate probation ‘that (1) are reasonably related to the nature and circum­stances of the offense or the history and characteristics of the organization; and (2) involve only such deprivations of liberty or property as are necessary to effect the purposes of sentenc­ing’. Section 8B2.1 of the Guidelines contains a more detailed outline of the structure of monitorships, mandating that a compliance and ethics programme be ‘reasonably designed, implemented, and enforced so that the program is generally effective in preventing and detecting criminal conduct’. Consideration of a company’s specific industry is relevant: ‘An organization’s failure to incorporate and follow applicable industry practice or the stand­ards called for by any applicable governmental regulation weighs against a finding of an effec­tive compliance and ethics program.’[3]

In civil cases where a US court imposes a compliance monitor, the terms of monitor­ship may look similar to the criminal context, but the authority stems from the court’s ple­nary authority to enforce settlements reached by the parties, or from Rule 53 of the Federal Rules of Civil Procedure. Federal Rule 53 allows the court to appoint special masters to ‘perform duties consented to by the parties’ and to address various post-trial matters.[4]

A court order is not a necessary predicate for a monitorship. Companies and US govern­ment agencies can, of course, agree to a monitorship without such an order. For example, the US DOJ enters into deferred prosecution agreements and non-prosecution agreements with parties, pursuant to which the US DOJ agrees not to prosecute as long as the party fulfils its obligations under the agreement, and those obligations can include engaging an independent compliance monitor. Courts have recognised that they have no authority to substantively manage, enforce or pass judgment on such agreements.[5] Companies often have an incentive to seek this type of agreement rather than face prosecution and the prospect of a court order that could involve more severe penalties.

Although most monitorships in the energy and environmental contexts arise from US crimi­nal and civil law, or from agreements made between the parties in the shadow of these laws, they can arise from other sources as well. The World Bank, for example, has developed a compliance regime regarding projects financed by the bank that can include a monitorship. A company that works on a World Bank-financed project can be suspended or debarred from World Bank (and other multilateral development bank) contracts if the bank finds that it has engaged in corruption or similar misconduct. Debarment with conditional release (meaning debarment until the company establishes a compliance programme that is satisfactory to the World Bank) is the default sanction.[6] The World Bank’s integrity compliance officer monitors a debarred party’s performance of required conditions during debarment and may require that an independent monitor be engaged.[7] In addition, a party that voluntarily discloses misconduct to the World Bank can engage an independent monitor to help avoid further sanctions. The legal authority for the World Bank’s compliance regime is its contractual arrangements with companies that work on World Bank-financed projects (and that agree to be audited) and the World Bank’s fiduciary duty to protect the use of bank financing.[8]

Regardless of the exact source of authority, it is important for companies and practitioners to recognise that US courts and government agencies, and inter­national bodies such as the World Bank, have broad discretion to impose, define and enforce terms of monitorship. The relevant statutes, guidelines and contracts typically contain few specific limitations.[9]

Court-ordered energy and environmental monitorships

Court-ordered monitorships can arise in a variety of contexts, including when an environ­mental crisis heightens the degree of public scrutiny and the government desires to seek a conviction, guilty plea or liability verdict, as demonstrated by the following examples.

BP and the Deepwater Horizon drilling rig

In November 2012, oil and gas company BP agreed to plead guilty to 11 counts of felony manslaughter under federal law, and to misdemeanour criminal violations of the Clean Water Act[10] and the Migratory Bird Treaty Act of 1918.[11] The guilty plea was reached with the US DOJ after the Deepwater Horizon explosion and subsequent oil spill that occurred in the Gulf of Mexico in April 2010. In January 2013, the US District Court for the Eastern District of Louisiana sentenced BP to a fine, probation and a term of monitorship.

Pursuant to the guilty plea, the Court imposed dual terms of monitorship: BP was required to retain, subject to the US DOJ’s approval, an ethics monitor to review and offer improvements to BP’s corporate code of conduct and its implementation, and a process safety monitor with special experience in safety and risk management procedures applicable to oil and gas drilling. In contrast to the ethics monitor, the purpose of the process safety monitor was to provide a more technical review and recommendations regarding BP’s safety and accident prevention policies and procedures.

The Court’s order outlined the process for selecting the monitors and many of their duties. BP was permitted to select a list of candidates and rank them in order of preference, subject to the US DOJ’s approval. The term of monitorship was set to four years, unless termi­nated earlier by the US DOJ. The US DOJ was given sole discretion to resolve disputes that might arise between BP and the monitors, and BP was required to pay the monitors’ expenses. The Court described the process safety monitor’s duties in broad terms:

[T]o review, evaluate and provide recommendations for the improvement of the defendant’s pro­cess safety and risk management procedures, including, but not limited to, the defendant’s major accident/hazard risk review of drilling-related process safety barrier and mitigations, for the purpose of preventing future harm to persons, property and the environment resulting from deepwater drilling in the Gulf of Mexico by the defendant and its Affiliates.[12]

The Court granted the monitors a large degree of authority to carry out their duties and imposed on BP an obligation to fully cooperate. It ordered the monitors to take steps to maintain the confidentiality of all non-public information and made clear that BP did not automatically waive the attorney–client privilege or work-product protections over any mate­rial simply because it was provided to the monitors to carry out their duties.[13] The Court ordered the monitors to prepare periodic reports on their findings and on BP’s progress, to be shared with the US DOJ (but not the public).[14]

PG&E and the San Bruno pipeline[15]

In August 2016, a federal jury found Pacific Gas and Electric Company (PG&E) guilty of, among other things, violations of the Natural Gas Pipeline Safety Act of 1968. The guilty ver­dict stemmed from an incident in September 2010 in which a natural gas pipeline in San Bruno, California, exploded. The US District Court for the Northern District of California sentenced PG&E to a term of probation, at the US DOJ’s request, that included a corporate compliance and ethics monitorship. Similar to the BP example discussed above, the monitor’s duties outlined in the court order include preparation of periodic reports on the status of PG&E’s compliance efforts.[16] The order also contemplates that the final report issued by the monitor be made publicly available.[17]

Carnival Cruise Lines and dumping of contaminated waste

In April 2017, Princess Cruise Lines Ltd and its parent, Carnival Cruise Lines & plc (collectively, Carnival) were convicted and sentenced after pleading guilty to felony charges stemming from deliberate dumping of oil-contaminated waste from a vessel and intentional acts to cover up the dumping.[18] As part of its sentencing, Carnival was subject to a court-appointed monitor, which found numerous significant probation violations during the first two years of probation.[19] Carnival was required to pay criminal penalties and comply with significant additional monitoring and reporting requirements.[20]

Monitorships created by agreement with the government

As part of settlements, consent decrees and agreements to defer prosecution, federal agencies such as the US DOJ, the SEC and the EPA may agree to terms of monitorship that contain simi­lar provisions to the court-ordered monitorships described above. If there are disputes regard­ing these agreements, the relevant agency may still seek intervention from the courts in some cases. As such, these may be considered hybrid monitorships, for which the provisions are closely negotiated with the opposing party, but the final terms may ultimately be enforced, if necessary, by a court. In the case of a deferred prosecution agreement, the government may simply decide to pursue charges and prosecute the case if the agreement is breached. Although the process by which these hybrid agreements develop differs from their court-ordered coun­terparts, their impact can be similar.

Monsanto Company and Penncap-M

In November 2019, Monsanto Company pleaded guilty to a criminal misdemeanour offence relating to the company’s use on crops in Hawaii of a banned pesticide known as Penncap-M. The active ingredient in Penncap-M, methyl parathion, is a restricted-use pesticide banned by the EPA. Monsanto simultaneously entered into a deferred prosecution agreement with the US DOJ regarding two felony counts of unlawfully storing acute hazardous waste (Penncap-M) in violation of 42 USC Section 6928(d)(2)(A).[21] As part of the deferred prosecution and plea agreements, Monsanto agreed to a criminal fine of US$6 million and an additional US$4 million in community service payments to various organisations in Hawaii. Although the US DOJ prosecuted the case, the matter began with an investigation by the EPA’s criminal division.[22]

Both the deferred prosecution and plea agreements also required Monsanto to abide by certain conditions of probation for two years. One of these conditions was that Monsanto develop and maintain an environmental compliance programme meeting the requirements of the Resource Conservation and Recovery Act and the Federal Insecticide, Fungicide, and Rodenticide Act for all its Hawaii operations. The terms of probation required Monsanto to engage a third-party environmental compliance monitor to oversee implementation and conduct audits every six months to ensure compliance. The agreement required the auditor to provide written reports to the US DOJ and Monsanto’s probation officer after each audit, and required full cooperation from Monsanto.[23]

Wood Group PSN and West Delta 32

In February 2017, Wood Group PSN Inc entered into a plea agreement with the US DOJ to pay US$9.5 million for a violation of the Clean Water Act relating to conduct that led to an oil spill in the Gulf of Mexico. The case involved a failure to properly inspect and maintain facilities for which Wood Group had responsibility on the Outer Continental Shelf’s Creole Loop. This led to an explosion at an offshore oil production facility in the West Delta 32 area of the Gulf of Mexico and to the discharge of oil into the Gulf.

Although the case was brought by the US Attorney’s Office in Louisiana, the investiga­tion was led by the US Department of the Interior’s Office of Inspector General (OIG) and the EPA.[24] As part of its plea agreement with the US DOJ, Wood Group agreed to enter into an administrative agreement with the EPA – essentially a corporate compliance programme dictated by the agency.[25]

Wood Group’s administrative agreement with the EPA was detailed and imposed many duties and responsibilities on the company. Wood Group was required to maintain a corpo­rate ethics and compliance officer who would report directly to a safety, assurance and busi­ness ethics subcommittee of the company’s board to ensure that communications regarding compliance activities and fraud risks would be shared regularly and directly with the company’s leadership. The administrative agreement also overhauled the requirements of Wood Group’s existing ethics and compliance training programme, including by imposing new require­ments relating to record-keeping, tracking and review protocols for training materials used in the programme, in addition to other substantive changes.[26]

The administrative agreement required Wood Group to hire an independent monitor for the duration of the agreement (three years), subject to the EPA’s approval. The monitor was required to be a subject-matter expert capable of evaluating the company’s compliance with the agreement’s many provisions. In addition, the monitor was tasked with performing periodic reporting on Wood Group’s compliance activities and progress toward the goals of the company’s corrective action plan, as well as performing on-site audits. The monitor was required to share reports, which covered several predetermined subject-matter categories, with both the EPA and the Interior Department’s OIG.[27]

Citgo and the Lemont Refinery

In November 2016, Citgo entered into a consent decree with the US DOJ and the EPA in respect of alleged violations of the Clean Air Act involving a failure to control pollutants released from a refinery in Lemont, Illinois. The consent decree, which was the product of a long period of negotiation and cooperation between Citgo and the government, did not involve the appointment of a traditional monitor per se, who would have broad authority to oversee improvements and make recommendations. However, the decree did contain detailed requirements regarding specific emissions at the refinery and required appointment of an independent technical auditor who would measure the rates of leaks of various pollutants to determine whether they exceeded permitted limits as part of the agreement’s ‘Leak Detection and Repair’ programme.[28]

The consent decree in the Citgo case was more detailed than a typical court order imple­menting a monitorship, probably in large part because it resulted from years of input from the EPA’s and the US DOJ’s environmental subject-matter experts.

Total SA and the Foreign Corrupt Practices Act

Allegations of violations of the US Foreign Corrupt Practices Act (FCPA) may lead to monitor­ships for companies in every industry, and the energy industry is no exception.

In May 2013, French oil and gas company Total SA (Total) entered into a deferred prosecution agreement with the US DOJ regarding allegations that it violated the anti-bribery, internal controls and books-and-records provisions of the FCPA.[29] The charges concerned the payment of US$60 million in bribes to Iranian officials to induce them to give Total rights to certain oil supplies.

Total agreed to a monetary penalty and a three-year term of monitorship in exchange for deferred prosecution. It also entered a related settlement with the SEC to resolve a parallel FCPA civil action. As part of the agreement with the US DOJ, Total admitted the facts included in the US DOJ’s criminal information, and agreed that if it breached the agreement, and the US DOJ pursued the deferred prosecution, it would not contest the charges.[30]

The monitor’s mandate included continuing evaluation of Total’s internal controls, book­keeping and financial reporting policies in light of US and French anti-corruption laws. The agreement required the monitor to report on the company’s progress, but also expressly provided that the reports would remain confidential and not be disclosed to the public.[31]

Monitorships imposed by the World Bank

The World Bank’s Integrity Vice Presidency, which is responsible for deterring and investigat­ing corruption in World Bank projects, has imposed sanctions on hundreds of companies and individuals since 2010, including in the energy and environmental sectors. The bank has its own internal monitor, the integrity compliance officer, but can also mandate third-party monitorships, as shown by the following examples.


In April 2013, the World Bank debarred subsidiaries of Canadian infrastructure and energy construction group SNC-Lavalin for 10 years after finding that the company had paid bribes to officials in Bangladesh and Cambodia in connection with infrastructure and power trans­mission projects financed by the World Bank.[32]

As part of a negotiated resolution, the company agreed to engage an independent compliance monitor. The monitor reports directly to the World Bank at least twice each year on the company’s progress. Specifically, the monitor reviews the implementation and effectiveness of the company’s ethics and compliance pro­gramme, measuring it against the World Bank’s Integrity Compliance Guidelines. The moni­tor also offers recommendations for improvements.[33] The debarment period can potentially be shortened to eight years if the company implements an effective compliance programme and complies with all other aspects of the settlement. In this case, the World Bank agreed to lift all sanctions associated with the settlement in April 2021, stating: ‘We recognize the constructive engagement of SNC-Lavalin Group and the company’s efforts to improve their internal policies and business practices to deter the risk of such misconduct from happening in the future.’[34]

Alstom SA

In February 2012, the World Bank debarred two subsidiaries of Alstom SA for three years owing to improper payments to a former government official in Zambia connec­ted with a World Bank-financed hydropower project. As part of a negotiated resolution, Alstom agreed to engage an independent compliance monitor. The monitor was responsible for verifying that Alstom would design and implement a compliance programme consistent with the World Bank’s Integrity Compliance Guidelines.[35]

In December 2014, Alstom entered into an unrelated plea agreement in the United States for violations of the FCPA that involved bribes to officials in countries including Indonesia, Saudi Arabia, Egypt and the Bahamas. As part of the plea, the court and the US DOJ agreed not to impose a second compliance monitor and instead took the somewhat unusual step of deferring to the World Bank monitorship that was already in place. If the company sat­isfied the requirements of the World Bank monitorship, no US DOJ monitorship would be required.[36] In February 2015, the World Bank determined that Alstom had implemented an appropriate corporate compliance programme, released Alstom from debarment and ended the monitorship.[37]

Unique challenges in the energy and environmental sectors

Many of the challenges posed by compliance monitors in the energy and environmental industries are the same as those faced by companies in all industries, including the costs of engaging a monitor and implementing new compliance regimes; the disruption of company operations; managing difficult or overzealous monitors; and protecting the com­pany’s confidential information from public disclosure or leaks. There are some issues, how­ever, to which practitioners and companies should be particularly sensitive in the energy and environmental contexts.

Technical complexity

Practitioners should be prepared for, and comfortable with, the high level of complexity atten­dant on companies in this sector (typically oil and gas, power generation or infrastructure companies). Although these companies are not the only ones that exist against a highly complex and technical backdrop, there is a broad range of statutes, including environmental statutes, that can serve as hooks for liability, and this liability may lead to terms of monitorship that are substantively different from a typical FCPA compliance programme, for example.

Managing complexity and the related costs

The BP monitorship discussed previously is a good example of the complexity that can be associated with monitorships in this industry. The BP probation order called for dual monitor­ships: one was the more typical ethics monitor intended to police the company’s code of conduct; the other was a more technical process safety monitor, responsible for assessing BP’s risk management and safety policies and suggesting improvements, with the goal of prevent­ing future incidents like the one that occurred on the Deepwater Horizon rig.

The court’s order in BP required the process safety monitor to have expertise specifically applicable to oil and gas drilling.[38] As such, the monitor would probably need to be an engineer, or supported directly by engineers, with knowledge of oil drilling and related matters. Such a monitor represents a relatively new development in corporate compliance, in that the moni­tor is not just applying legal standards and assessing compliance but is appointed specifically to engage in a form of root-cause analysis, to determine how the company’s internal systems led to the violation in the first instance.[39] In the case of BP, the process safety monitor would need to know, from a technical perspective, how BP’s risk management systems were deficient in the first place before recommending new procedures or mitigation.

Legal practitioners representing energy and environmental clients in connection with monitorships should be prepared to engage subject-matter experts to help address technical complexities where necessary. Moreover, practitioners and their clients should recognise that engaging specialists can be costly and disruptive, beyond what may be typical in other industries. In addition, monitors like the process safety monitor in BP may have highly technical, data-driven thresholds that they require companies to meet, which can cost more to achieve in terms of both money and time than more flexible, non-technical standards.

A corollary to the points above regarding anticipating and managing complexity, practi­tioners should also be familiar with the many environmental statutes that may lead to liabil­ity in these cases and thus result in subject-matter specific compliance monitors. Many of these statutes involve criminal liability for violations in addition to civil liability. A non-exhaustive list of environmental statutes with criminal provisions includes the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act, the Hazardous Materials Transportation Act, the Safe Drinking Water Act, the Toxic Substances Control Act, the Endangered Species Act, the Migratory Bird Treaty Act of 1918 and the Natural Gas Pipeline Safety Act of 1968.

Resolving disputes with monitors against a highly technical backdrop

Although supervised by a government authority, monitors in the energy and environmental sectors may, as a practical matter, exercise a larger amount of discretion than usual because they possess a level of expertise that at least some at the relevant government agency may not. Practitioners should thus be prepared to identify and push back on unreasonable or unfounded monitor recommendations that the relevant agency may be less able to detect, and should contest these recommendations articulately and plainly if a court or a government agency must mediate a dispute.

Significantly, the US DOJ’s policy manual anticipates disputes with monitors and provides a path for companies to contest burdensome or unfounded recommendations. A memorandum issued by the US DOJ in May 2010 by Acting Deputy Attorney General Gary G Grindler (the Grindler Memorandum) states:

With respect to any Monitor recommendation that the company considers unduly burden­some, impractical, unduly expensive, or otherwise inadvisable, the company need not adopt the recommendation immediately; instead, the company may propose in writing an alter­native policy, procedure, or system designed to achieve the same objective or purpose. As to any recommendation on which the company and the Monitor ultimately do not agree, the views of the company and the Monitor shall promptly be brought to the attention of the Department. The Department may consider the Monitor’s recommendation and the com­pany’s reasons for not adopting the recommendation in determining whether the company has fully complied with its obligations under the Agreement.[40]

The Grindler Memorandum suggests that monitors should not be allowed to exceed their mandates and that practitioners should be proactive in defining a company’s relationship with a monitor early in the process. Effectively working with a monitor in this context requires up-front and clear communication with the monitor and, perhaps more importantly, the supervising government agency about the appropriate scope of work and objectives. Proactive management also requires the ability to understand and engage with complex and technical industry-specific topics.

Maintaining confidentiality and privilege

Although applicable to any context, it is imperative that practitioners in this area do every­thing they can to protect confidentiality and privilege during the pendency of a monitorship. Just because a monitorship may involve as many or more technical matters than legal ones does not lessen the importance of legal advice or diminish the role of the lawyer in guiding the client through the process. Moreover, the fact of monitorship does not waive attorney–client privilege with respect to the monitor. Indeed, the applicable order or agreement that creates the monitorship, whether a plea, consent decree or deferred prosecution, is often sen­sitive to the fact that the company’s confidential information will be shared with the monitor, an external party.

Practitioners should take all steps necessary to ensure that privilege protections are included in whatever agreement governs the monitorship. In the BP example discussed above, the order entered by the court after the guilty plea explicitly stated that providing privileged materials to the monitor would not automatically waive privilege.[41] Another provision required the US DOJ or monitor to give notice to the company before seeking disclosure of any privileged material, presumably to give the company an opportunity to challenge any such disclosure in court.[42] The court was also sensitive, generally, to the sort of confidential information BP would be providing in the course of the monitorship:

Each monitor shall maintain as confidential all non-public information, documents and records it receives from the defendant, subject to the monitor’s reporting requirements herein. Each monitor shall take appropriate steps to ensure that any of his/her consultants or employ­ees shall also maintain the confidentiality of all such non-public information.[43]

Further, companies can, and often do, engage their own experts to conduct work similar to that to be undertaken by the monitor, both to prepare for the monitor and to improve further their operations and risk profile. This work can be done under the protection of the attorney–client privilege if appropriate steps are taken in advance. The work should always be done, for example, at the direction of counsel and for the purpose of providing legal advice (e.g., compliance with the company’s legal obligations). This work may involve experts who are not familiar with working under these conditions, and it is crucial that both the in-house and external attorneys directing the work are vigilant in instructing all involved of the impor­tance of best practices for maintaining privilege and confidentiality in this area.

Finally, despite the fact that many cases historically have expressly made reports by the monitor confidential, there is an increasing push to make monitors’ reports public. Practitioners should be prepared for public disclosure and, in light of the possibility of disclosure, take steps to prevent privileged information from ever being provided to the monitor.

The future of monitors in the energy and environmental sectors

In many industries, there is reason to believe that the number of monitorships sought by US authorities will increase in the coming years. In a keynote address at the American Bar Association’s 36th National Institute on White Collar Crime in October 2021, US Deputy Attorney General (DAG) Lisa Monaco announced what has widely been viewed as a shift towards more aggressive pursuit of monitorships by the US DOJ.[44] DAG Monaco stated that ‘[t]o the extent that prior Justice Department guidance suggested that monitorships are disfavored or are the exception’, that guidance was rescinded.[45] She added that, going forward, ‘the department is free to require the imposition of independent monitors whenever it is appropriate to do so in order to satisfy our prosecutors that a company is living up to its compliance and disclosure obligations under the [deferred prosecution agreement] or [non-prosecution agreement]’.[46]

Concurrently with DAG Monaco’s speech, the US DOJ issued a memorandum titled ‘Corporate Crime Advisory Group and Initial Revisions to Corporate Criminal Enforcement Policies’ (the Monaco Memorandum) that revised existing guidance to prosecutors regarding the imposition of monitorships.[47] The Monaco Memorandum reaffirmed that ‘two broad considerations’ govern the imposition of monitorships in general: ‘(1) the potential benefits that employing a monitor may have for the corporation and the public, and (2) the cost of a monitor and its impact on the operations of a corporation.’[48] However, it also set forth updated principles under which monitorships should be favoured going forward:

In general, the Department should favor the imposition of a monitor where there is a demonstrated need for, and clear benefit to be derived from, a monitorship. Where a corporation’s compliance program and controls are untested, ineffective, inadequately resourced, or not fully implemented at the time of a resolution, Department attorneys should consider imposing a monitorship. This is particularly true if the investigation reveals that a compliance program is deficient or inadequate in numerous or significant respects. Conversely, where a corporation’s compliance program and controls are demonstrated to be tested, effective, adequately resourced, and fully implemented at the time of a resolution, a monitor may not be necessary.[49]

Exactly how this apparent policy shift will affect monitorships in the energy and environ­mental space remains to be seen. But given the scale and public attention often accompanying environmental incidents, it is possible, and perhaps even likely, that companies in this sector in particular will face a heightened risk of monitorships.


1 Mark Filip, Brigham Cannon and Nicolas Thompson are partners at Kirkland & Ellis LLP.

2 See 18 U.S.C. Section 3563(b)(22); U.S.S.G. Sections 8B2.1 and 8D1.3.

3 U.S.S.G. Section 8B2.1.

4 See Fed. R. Civ. P 53(a).

5 See, e.g., United States v. Fokker Servs., 818 F.3d 733, 746 (D.C. Cir. 2016) (‘[A]lthough charges remain pending on the court’s docket under a DPA, the court plays no role in monitoring the defendant’s compliance with the DPA’s conditions.’).

6 Integrity Compliance at the World Bank Group: Frequently Asked Questions, at https://thedocs.worldbank.org/en/doc/da26092a692560030e0f2dd5c0a8c07b-0090012020/original/ICO-FAQs-4-2020.pdf (last accessed 1 Mar. 2022).

7 The World Bank Group’s Sanctions Regime: Information Note, at 23, at https://www.worldbank.org/content/dam/documents/sanctions/other-documents/osd/The_World_Bank_Group_Sanctions_Regime.pdf (last accessed 1 Mar. 2022).

8 ibid., at 14.

9 See, e.g., 18 U.S.C. Section 3563(b) (outlining as prerequisites only the commission of a misdemeanour or felony and requiring only that the conditions imposed be ‘reasonably related’ to relevant sentencing factors).

10 33 U.S.C. Sections 1319(c)(1)(A) and 1321(b)(3).

11 16 U.S.C. Sections 703 and 707(a).

12 Guilty Plea Agreement, Ex. B at 1, United States v. BP Exploration & Production, Inc., No. 2:12-cr-00292 (E.D. La. 2012), ECF No. 2-1.

13 ibid., at 4.

14 ibid., at 5.

15 The author of this chapter was selected as the corporate compliance monitor in the PG&E matter. Neither the author nor the law firm of which he is a partner, Kirkland & Ellis LLP, expresses in this chapter an opinion regarding that monitorship or the events leading up to it, and no confidential information has been disclosed in this description.

16 Order at 7–8, United States v. Pacific Gas and Electric Company, No. CR-14-00175 (N.D. Cal. 2014), ECF No. 916.

17 id.

18 US Department of Justice (US DOJ), Press release, ‘Princess Cruise Lines and its Parent Company Plead Guilty to Environmental Probation Violations, Ordered to Pay $20 Million Criminal Penalty’ (3 Jun. 2019), at https://www.justice.gov/opa/pr/princess-cruise-lines-and-its-parent-company-plead-guilty-environmental-probation-violations (last accessed 1 Mar. 2022).

19 id.

20 id.; US DOJ, Press release, ‘Princess Cruise Lines Pleads Guilty to Second Revocation of Probation’ (11 Jan. 2022), at https://www.justice.gov/opa/pr/princess-cruise-lines-pleads-guilty-second-revocation-probation (last accessed 1 Mar. 2022).

21 ‘Any person who knowingly treats, stores, or disposes of any hazardous waste identified or listed under this subchapter without a permit under this subchapter or pursuant to title I of the Marine Protection, Research, and Sanctuaries Act (86 Stat. 1052) [33 U.S.C. 1411 et seq.].’

22 US DOJ, Press release, ‘Monsanto Agrees to Plead Guilty to Illegally Spraying Banned Pesticide at Maui Facility’ (21 Nov. 2019), at https://www.justice.gov/usao-cdca/pr/monsanto-agrees-plead-guilty-illegally-spraying-banned-pesticide-maui-facility (last accessed 1 Mar. 2022).

23 Plea Agreement Exhibit C at 1-2, United States of America v. Monsanto Company, Case No. 1:19-cr-00162-JMS (D. Haw. 2019), ECF No. 3-3.

24 US DOJ, Press release, ‘Company to Pay $9.5 Million for False Reporting of Safety Inspections and Clean Water Act Violations That Led to Explosion in Gulf of Mexico’ (23 Feb. 2017), at https://www.justice.gov/usao-edla/pr/company-pay-95-million-false-reporting-safety-inspections-and-clean-water-act (last accessed 1 Mar. 2022).

25 Guilty Plea Agreement at 3, United States of America v. Wood Group PSN, Inc., Case No. 6:16-cr-00192 (W.D. La. 2016), ECF No. 5.

26 Administrative Agreement at 10 to 25, In re: John Wood Group PLC, EPA Case No. 16-0731 (22 February 2017).

27 ibid., at 26–30.

28 Consent Decree at 37, 38, 63–67, United States of America v. Citgo Petroleum Corp., Case No. 1:16-cv-10484 (N.D. Ill. 2016), ECF No. 4-1.

29 See 18 U.S.C. Section 371; 15 U.S.C. Sections 78m(b)(2)(A), 78m(b)(5), and 78ff(a).

30 Deferred Prosecution Agreement at 2, United States v. Total, S.A., Case No. 13-cr-00239 (E.D. Va. 2013), ECF No. 2.

31 Deferred Prosecution Agreement, Attachment D at D-2, United States v. Total, S.A., Case No. 13-cr-00239 (E.D. Va. 2013), ECF No. 2.

32 World Bank, Press release, ‘World Bank Debars SNC-Lavalin Inc. and its Affiliates for 10 years’ (17 Apr.  2013), at www.worldbank.org/en/news/press-release/2013/04/17/world-bank-debars-snc-lavalin-inc-and-its-affiliates-for-ten-years (last accessed 1 Mar. 2022).

33 SNC-Lavalin, Press release, ‘SNC-Lavalin announces agreement to settle class actions brought in 2012’ (22 May 2018), at https://www.snclavalin.com/en/media/press-releases/2018/22-05-2018 (last accessed 1 Mar. 2022).

35 World Bank, Press release, ‘Enforcing Accountability: World Bank Debars Alstom Hydro France, Alstom Network Schweiz AG, and their Affiliates’ (22 Feb. 2012), at https://www.worldbank.org/en/news/press-release/2012/02/22/enforcing-accountability-world-bank-debars-alstom-hydro-france-alstom-network-schweiz-ag-and-their-affiliates (last accessed 1 Mar. 2022).

36 Plea Agreement at D-1, United States of America v. Alstom S.A., Case No. 3:14-cr-00246-JBA (D. Conn. 22 December 2014), ECF No. 5.

37 World Bank, Press release, ‘Alstom Released from Debarment’ (23 Feb. 2015), at https://www.worldbank.org/en/news/press-release/2015/02/23/alstom-released-debarment (last accessed 1 Mar. 2022).

38 Guilty Plea Agreement, Ex. B at 1, United States v. BP Exploration & Production, Inc., Case No. 2:12-cr-00292 (E.D. La. 2012), ECF No. 2-1.

39 See Veronica Root Martinez, ‘Modern-Day Monitorships’, 33 Yale Journal on Regulation, 109, 127–30 (2016) (describing ‘root-cause analysis’ often required to be conducted by the monitor in corporate compliance monitorships).

40 US DOJ, Gary G Grindler, Acting Deputy Attorney General, ‘Additional Guidance on the Use of Monitors in Deferred Prosecution Agreements and Non-Prosecution Agreements with Corporations’ (25 May 2010), at https://www.justice.gov/jm/criminal-resource-manual-166-additional-guidance-use-monitors-dpas-and-npas (last accessed 1 Mar. 2022).

41 Guilty Plea Agreement, Ex. B at 4, United States v. BP Exploration & Production, Inc., Case No. 2:12-cr-00292 (E.D. La. 2012), ECF No. 2-1.

42 id.

43 id.

44 US DOJ, Press release, ‘Deputy Attorney General Lisa O. Monaco Gives Keynote Address at ABA’s 36th National Institute on White Collar Crime’ (28 Oct. 2021), at https://www.justice.gov/opa/speech/deputy-attorney-general-lisa-o-monaco-gives-keynote-address-abas-36th-national-institute.

45 id.

46 id.

47 US DOJ Memorandum, Lisa O Monaco, Deputy Attorney General, ‘Corporate Crime Advisory Group and Initial Revisions to Corporate Criminal Enforcement Policies’ (28 Oct. 2021), at 4–5 & n.3, at https://www.justice.gov/dag/page/file/1445106/download.

48 ibid., at 4.

49 ibid., at 4–5.

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