Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: MONDAY, December 26, 1994 TAG: 9412270037
SECTION: EDITORIAL PAGE: A11 EDITION: METRO
SOURCE: ROGER J. MARZULLA
DATELINE: LENGTH: Long
As head of the Justice Department's Environment and Natural Resources Division in the '80s, I saw firsthand the creation of what has now become a burgeoning litigation bureaucracy, churning out new prosecutions at the rate of more than one a day. Last month, EPA Administrator Carol Browner announced that in the 1994 fiscal year, EPA extracted $165.2 million in monetary penalties, $747.5 million in injunctive and supplemental relief, and $1.6 billion in Superfund cleanups and cost-recovery.
Flagrant violators of environmental protection standards should be prosecuted, but the filing of suits for the unintentional violation of arcane and technical environmental regulations should be outlawed.
The 104th Congress has a historic opportunity, when it reauthorizes major environmental statutes, to put a stop to this orgy of federal prosecution. Congress, in fact, bears the lion's share of the blame for creating the open-minded environmental-enforcement statutes that typically call for penalties of up to $25,000 per day in civil cases, and months or even years in federal prison for criminal cases, without having to provide proof of any environmental damage or intention to violate a single provision in the thousands of pages of federal environmental regulations.
Congressional demagogues like John Dingell have repeatedly flailed career Justice Department prosecutors into filing even more criminal prosecutions, subjecting them to abusive congressional hearings where they are publicly accused of incompetence, laziness and worse. Indeed, the pressure extends all the way to the top of our justice system. Earlier this year, Dingell successfully pressured Attorney General Janet Reno into firing the head of the Justice Department's Environmental Crimes Section, a lawyer with a brilliant record of prosecuting sophisticated white collar crooks and true environmental criminals.
Congress has rewarded this prosecutorial excess by granting ever-increasing budgets to EPA and Justice Department lawyers, enabling them to file and prosecute still more cases, such as:
A Maryland landowner paid more than $2 million in criminal fines for two misdemeanor violations of federal wetlands regulations occurring on his own land.
A small repair shop in Los Angeles operated by a national corporation has been the target of governmental claims of more than $50 million for damages to natural resources allegedly occurring between 1958 and 1962. At the time the actions occurred, however, such acts were perfectly legal and acceptable.
A major chemical company in Texas is now being threatened with a lawsuit that could impose millions of dollars in penalties under the Clean Air Act. The suit stems from the company's compliance with a 1984 interpretation of a regulation issued by the state's Air Control Board and communicated to EPA at that time. Now, 10 years later, the EPA says it disagrees with the state's interpretation, and wants to be paid up to $25,000 per day in fines, going all the way back to 1984.
The 104th Congress, elected on the promise that it would roll back government, must seize this opportunity to clean up the government's environmental enforcement program. In exercising its oversight functions over the EPA and the Justice Department - as well as in reauthorization of statutes such as the Clean Water Act, Safe Drinking Water Act, Endangered Species Act, Resource Conservation and Recovery Act, and Superfund (all of which are up for reauthorization in 1995) - Congress should closely examine the provisions authorizing the prosecution of environmental crimes.
The underlying purpose for authorizing such prosecutions should be environmental protection, not just trapping the unwary in technical violations of intricate environmental regulations. A good starting point for this examination would be to ensure that criminal provisions may be used only where the violator actually intended to perform an act injurious to the environment. Our federal prisons were not built to house ordinary citizens who unwittingly transgress the complex and often nebulous web of environmental regulations.
Nor should millions of dollars in civil penalties and injunctive relief be recoverable for mere technical violations of environmental statutes. The purpose of prosecuting environmental cases is, after all, to protect the environment, not to recover huge monetary penalties for their own sake. The EPA and the Justice Department should be required to identify each prosecution by showing that the defendant's acts threatened or injured the environment. Technical violations are properly handled through the administrative penalty process - the ``traffic court'' of environmental enforcement.
Finally, Congress should take a close look at the litigation-driven statutes such as Superfund and the citizens-suit provisions of the Clean Air and Clean Water acts. These statutes should also limit the availability of federal courts to instances of serious environmental harm rather than serve as litigation free-for-all with no discernible benefit to the environment.
Like the enchanted broomsticks in the story of ``The Sorcerer's Apprentice,'' environmental prosecutions have gotten way out of hand. The principle that ``more is not necessarily better'' is nowhere truer than in the case of environmental-enforcement litigation. Bigger penalties and more lawsuits do not make for a better environment - they just help make environmental lawyers rich.
Roger J. Marzulla is an environmental lawyer in Washington, D.C., and served as assistant attorney general for Environment and Natural Resources in the Reagan administration.
by CNB