The Nickel Report

The US Department of Justice (DOJ) recently announced it is “exercising its enforcement discretion to no longer pursue criminal charges . . . on allegations of tampering with onboard diagnostic devices in motor vehicles” under the Clean Air Act (CAA or Act). According to DOJ, this exercise of discretion not to criminally prosecute is based on “sound enforcement principles, efficient use of government resources[,] and avoiding overcriminalization of federal environmental law.” DOJ’s announcement is an about-face from years of criminal prosecutions for identical conduct, including an increase of these prosecutions under the first Trump administration. As a result of this new policy, DOJ is now dismissing existing CAA criminal tampering cases—more than a dozen prosecutions thus far—and the decision may impact some 20 or more ongoing investigations. DOJ stated in its announcement that it intends to continue to pursue civil enforcement for tampering cases under the Act in partnership with EPA.

While the Trump Administration has emphasized regulatory reform and prioritized agency efficiency across the federal government, EPA continues to pursue aggressive enforcement of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Actions taken by EPA over the first six months of President Trump’s current term demonstrate sustained FIFRA enforcement, with notably high penalty amounts being assessed, including one case resulting in a $3 million penalty. These latest enforcement trends signal that pesticide manufacturers, distributors, and sellers must remain vigilant in complying with FIFRA requirements.

The U.S. Department of Justice (DOJ) recently filed four lawsuits against states related to specific climate change actions they have taken or planned to take. On April 30, 2025, DOJ preemptively sued Hawaii and Michigan to prevent both states from going forward with their stated intent to pursue legal action against fossil fuel companies for alleged harms caused by climate change and to declare those states’ claims unconstitutional. The following day, on May 1, 2025, DOJ sued New York and Vermont for their enactment of climate “superfund” laws, which create retroactive cost recovery claims on producers of fossil fuels, seeking to enjoin the enforcement of those statutes and to have them declared unconstitutional as well.

The U.S. Environmental Protection Agency (EPA) is attempting to thread the needle in responding to the COVID-19 pandemic: offering clarity about ongoing federal environmental obligations to the broad swath of regulated entities faced with the threat of significant disruptions and other challenges, while contending with intense opposition from others who perceive its temporary enforcement policy as a “free pass to pollute” and a failure to enforce legal requirements. Notwithstanding the mounting scrutiny from U.S. Senators, states, and citizens groups, and now a legal challenge, EPA’s Office of Enforcement and Compliance Assurance (OECA) has continued implementing its temporary policy regarding the exercise of enforcement discretion due to the COVID-19 pandemic via issuance of additional guidance on National Pollutant Discharge Elimination System (NPDES) reporting. Other state and federal agencies, including the U.S. Department of Justice (DOJ), the Texas Commission on Environmental Quality (TCEQ), the Railroad Commission of Texas (RRC), and the California Environmental Protection Agency (CalEPA) (addressed in a separate blog post) have followed EPA’s lead in issuing their own temporary policies related to the pandemic.