DOJ Reaffirms Limits on Guidance in Environmental Criminal Enforcement

On September 18, 2026, the U.S. Department of Justice (DOJ) announced revisions to its Justice Manual, reaffirming limits on enforcement based on agency guidance. Although announced alongside changes to False Claims Act policy, the guidance provisions broadly and expressly cover federal criminal enforcement writ large. For companies facing environmental investigations, the central point is significant: noncompliance with nonbinding guidance cannot, by itself, establish a criminal violation. Instead, DOJ must identify and prove a violation of binding legal requirements.

Environmental compliance often involves technical manuals, interpretive memoranda, and other guidance that can influence agency expectations for decades. A recommended practice may become routine without becoming legally mandatory. The revisions give companies a concrete basis to press that distinction when an investigation treats an agency’s preferred approach as the only lawful one. They also preserve evidentiary uses of guidance that require careful attention.

What Should Companies Do?

• Parse legal authority from guidance early in the process.
• Identify relevant company processes and data establishing compliance.
• Prepare for advocacy based on authority and for use of guidance in an evidentiary setting.

What the Revisions Establish

Agency interpretations and policy statements do not independently carry the force of law. See Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 97 (2015); Christensen v. Harris County, 529 U.S. 576, 587 (2000). Even the July 2021 Garland memorandum, which rescinded earlier restrictions on DOJ’s use of guidance, recognized that limit while permitting broader lawful reliance on guidance in litigation. The attorney general rescinded that memorandum in February 2025. The September revisions now articulate detailed limits and permitted uses in the Manual.

Under the current policy, prosecutors cannot treat failure to follow guidance as itself a statutory or regulatory violation. Guidance also cannot supply a criminal offense’s mental-state requirement, and awareness of an agency interpretation is not an admission that the interpretation is correct. Justice Manual §§ 1-19.210–.220. These distinctions matter where an enforcement theory depends on a manual or interpretive document to fill a gap in the governing legal text.

Hazardous Waste Testing Illustrates the Distinction

Consider a company determining whether its waste is hazardous and therefore subject to hazardous-waste management requirements. That determination may depend on sampling and laboratory analysis. The U.S. Environmental Protection Agency’s (EPA) SW-846 compendium collects methods and supporting guidance for this work. EPA describes most of these methods as guidance, but the Resource Conservation and Recovery Act mandates some of those methods. The compendium therefore contains materials with varying legal significance; its general label does not resolve whether a particular procedure is required.

Some mandatory methods measure properties whose regulatory meaning depends on a prescribed test. Those properties are known as “method-defined parameters.” For example, the Toxicity Characteristic Leaching Procedure measures what can leach from a waste under specified test conditions. For other analyses, EPA permits appropriate alternative methods that produce reliable data. The distinction is between a procedure the regulations require for the particular regulatory determination and a recommended way to produce useful technical information.

Based on these revisions to the Manual, if investigators challenge a company’s sampling or testing, counsel and technical personnel should examine both the legal source of the asserted requirement and the quality of the resulting data. Departing from nonbinding guidance does not, by itself, establish a violation or show that an alternative method was scientifically unsound. The company must still correctly determine whether its waste is hazardous, however, and an unreliable method could lead it to misclassify hazardous waste as nonhazardous. To establish criminal liability, the government must prove every element of the charged offense beyond a reasonable doubt.

Guidance Remains Relevant Evidence

The revised Manual preserves evidentiary uses of guidance. The distinction between using guidance to create a per se duty and using it to help prove a violation is likely to be important in environmental investigations:

• Knowledge and Intent. An agency memorandum explaining a regulatory requirement may help show that a company knew of that requirement. But evidence that the company received the memorandum does not establish that the agency’s interpretation is correct, or that the company accepted it. This distinction often matters when an older memorandum reads obligations into the regulatory text that the company disputes. Justice Manual § 1-19.220.
• Technical and Professional Practices. Prosecutors may use a sampling manual to question the reliability of a company’s results or support an expert’s opinion about accepted methods. Counsel should evaluate whether the cited approach fits the material tested, whether the company’s alternative was reliable, and whether newer science undermines the manual’s assumptions. The Manual expressly permits challenges to a guidance document’s description of an industry standard. Id. §§ 1-19.230–.240.
• Certifications. A company that certifies that it followed a particular protocol may face a separate issue if that representation was false. In such a case, the government must establish the elements of the applicable claim or offense; the guidance’s nonbinding status does not resolve whether the company’s separate representation was accurate. Id. § 1-19.250.

Practical Steps for Companies Under Investigation

Defense lawyers and technical teams should identify the provision supporting each disputed obligation. Preserve the versions of guidance in use, underlying data, and contemporaneous explanations for the company’s approach. For older sources, determine whether they were superseded and whether their assumptions fit the operations and methods at issue, and review certifications against actual practices before making further compliance representations.

The Manual creates no enforceable rights and does not guarantee dismissal. Id. § 1-1.200. Its value is in providing a specific basis for advocacy with DOJ. Where an enforcement theory depends on nonbinding guidance, counsel should explain early what the governing law requires, how the government is using the guidance, and whether the evidence establishes the alleged violation.

Beveridge & Diamond’s White Collar, Environmental Crimes lawyers counsel firm clients on high-stakes enforcement and compliance matters, particularly in complex environmental investigations. The team’s expertise encompasses conducting internal investigations, responding to search warrants, navigating grand jury subpoena responses, and negotiating with federal and state criminal agents and counsel to facilitate (when possible) early resolution of criminal inquiries. In addition, our Litigation practice spans federal and state trial and appellate courts across the country, including the U.S. Supreme Court. Clients—including Fortune 500 companies and America’s largest municipalities—entrust us with novel and complex litigation matters vital to their continuing operation and success. Backed by the firm’s environmental regulatory and white collar lawyers, our litigators first-chair major national litigation and serve as coordinating and common counsel in high-stakes cases affecting entire industries.