Cleaning up the EPA

Alexander Volokh
Newport News (Va.) Daily Press, October 27, 1996

"I don't care if you've got a billion dollars," Bill Clinton told a Michigan audience recently. "In the end, the quality of your life will be undermined unless we save the environment for everybody."

Clinton was applauding a legislative measure, announced by Attorney General Janet Reno, that would outlaw "attempted" environmental crimes.

Written to facilitate environmental sting operations, it would let prosecutors freeze criminal defendants' assets and, in the event of a conviction, allow using the money to finance cleanups.

The legislation would also increase enforcement funding, raise penalties for the worst offenders (especially those that cause toxic injury or imperil law- enforcement officers) and authorize restitution to environmental agencies and victimized communities.

If the solution to environmental problems were more and bigger penalties, then Mr. Clinton's plan might sound promising. But the problem lies elsewhere.

Environmental law is massive, vague, complicated and technical.

Even the head of the Environmental Protection Agency, Administrator Carol Browner, speaks of "a complex and unwieldy system of laws and regulations and increasing conflict and gridlock."

The National Law Journal found that 70 percent of corporate lawyers believe that compliance with all environmental laws is impossible.

Don Clay, former assistant administrator of the EPA Office of Solid Waste and Emergency Response, calls hazardous-waste law “a regulatory cuckoo land of definition.” He believes that only five people in the agency know what a hazardous waste is.

"Everyone has his or her own favorite inconsistency" in hazardous-waste law, reports environmental attorney Judson Starr.

If a solvent is poured first on machinery and then wiped with a clean rag, the rag is a hazardous waste, Mr. Starr says. “However, if the solvent is poured first on the rag and then is used to wipe the machinery clean, the rag is not a hazardous waste. Go figure."

Moreover, people can be prosecuted criminally for unintentional offenses.

The erosion of the link between criminal prosecution and moral fault is one of the lesser-known (and more scandalous) stories of environmental law.

In ordinary cases, a criminal conviction –- and the stigma and possible imprisonment that come with it -- generally requires criminal intent. But with environmental law, intent is no longer necessary.

The Supreme Court in 1993 upheld a conviction of sewage plant operators for "knowing discharge of pollutants exceeding permit limits."

Incredibly, the government argued that a defendant named Weitzenhoff had criminal intent even though he thought he was complying with the permit. He knew he was discharging waste water, and that was all that was necessary.

Since Weitzenhoff's job as a Honolulu Sewage Treatment Plant worker was precisely to discharge waste water, the government had to prove only that he knew he was doing his job.

Clinton is right that attempted crime should be prosecuted. But what is "attempted crime" and who are "criminals" in a world where one can commit a crime without knowing it?

Clinton's bill also fails to recognize the EPA's "more is better" approach to enforcement. Prosecutions, fines, and convictions -- not environmental quality -- have become ends in themselves.

The EPA sets numerical targets, exults when quantities increase and issues concerned memos when they decrease.

As Robert Adler and Charles Lord of the Natural Resources Defense Council put it, EPA personnel should "take their enforcement responsibilities seriously and view enforcement as more than a ‘bean-counting' exercise."

"Bean-counting" is exactly what Clinton's plan would encourage, however.

Seizing the assets of suspected criminals, as his bill would do, would not only impair defendants' ability to obtain adequate legal defense.

Allowing seizures would also encourage the EPA to increase its revenue by targeting wealthy companies instead of really serious polluters, who may be poor, fly-by-night operators with shallow pockets.

Clinton's environmental crime bill may do more harm than good. Environmental criminal law already has less protection for the accused than criminal law generally.

Government agents have tremendous leeway to search private property without warrants and demand self-incriminating information.

The federal government works with state governments to prosecute defendants repeatedly, and criminal penalties are routinely inflated through federal sentencing guidelines.

Yet the Republicans are trying to beat Clinton at his own game of EnviroCop.

According to the House Commerce Committee, "The Republicans gave the EPA an 8.5 percent increase in funding this year and a 26 percent increase since they took control of Congress. . . . Despite the 8.5 percent increase in funding, Bill Clinton's EPA did a whole lot less with a whole lot more."

Environmental inspections are actually down 45 percent since Clinton took office, administrative actions are down 18 percent, civil penalties are down 39 percent, and criminal penalties are down 60 percent.

The Republicans' bashing of the EPA for low numbers is as misguided as the EPA's own striving after high numbers. Both Clinton and the Republicans should simplify environmental law and reserve criminal penalties for the morally blameworthy.

They should also reform enforcement so it is fairer, relies on cooperative problem-solving approaches instead of confrontation and results in environmental improvements.

One simple but important reform would be to stop micro-managing internal company decisions about what technologies to use and switch to simply setting standards for how much pollution is acceptable.

This would free up enforcement resources and increase companies' flexibility -- without compromising environmental quality.

Another necessary reform is the protection of environmental audits.

Today, when companies do voluntary audits to check how well they're complying with environmental regulations, they can be fined, criminally prosecuted or sued by citizen groups if they uncover past violations.

Many firms, afraid of such prosecution, don't even do audits in the first place.

If, as Clinton suggested, the environment were in dire straits and in need of imminent salvation, draconian measures would be appropriate and it wouldn't matter if we had a billion dollars.

But environmental problems today are neither a plague nor a holocaust. They are real, but usually localized and manageable.

Because they are real, they deserve attention. But because they are localized, the federal government is usually ill-suited to address them.

And because they are manageable, we should be skeptical of draconian, adversarial solutions, whether they come from Clinton or House Republicans.

Alexander Volokh is an assistant policy analyst at the Los Angeles-based Reason Foundation and is co-author of Environmental Enforcement: In Search of Both Effectiveness and Fairness, a recent study released by the think tank.

(also appeared in BridgeNews, October 17, 1996; Evansville (Ind.) Press, October 23, 1996; Journal of Commerce, October 24, 1996; Appleton (Wisc.) Post-Crescent, October 26, 1996; Orange County Register, October 27, 1996; Birmingham (Ala.) News, October 27, 1996)