Expanding enforcement of environmental “crimes” is at the top of Carol Browner's agenda for 1997. Browner, Administrator of the Environmental Protection Agency, wants to increase federal authority to pursue and punish those who violate environmental rules. In EPA's view, there is little wrong in current environmental policies that a nightstick and courtroom could not fix.
Laws should be enforced, but laws should also be reasonable. Today's environmental laws are not. As a result, compliance with environmental rules is a Sisyphusean task. Indeed, most companies are probable “violators” of environmental laws. In a 1993 survey of 200 corporate general counsels conducted by the National Law Journal, fewer than one third of the responding attorneys felt that it was possible to comply fully with state and federal environmental laws.
Rather than creating reasonable rules, the EPA seeks to tighten the screws to ensure compliance with existing, outmoded regulations. Such an approach does not advance environmental protection – in some cases it can even retard it. Consider the federal governments' enforcement actions against Taylor Lumber and Treating, Inc., recounted in a recent issue of Environmental Law. In the case of Taylor Lumber, the EPA's enforcement of environmental law actually interfered with the goals of environmental protection.
Taylor Lumber is a small, Oregon-based operator of a sawmill and wood-treating plant. On July 15, 1993, the Justice Department filed suit against Taylor Lumber on behalf of the EPA in the United States District Court of Oregon, charging that Taylor had operated an unpermitted hazardous waste disposal facility at its wood treating plant. No claims of actual environmental harm were made. However, the EPA pursued sizable fines for purely technical violations.
At the time of EPA's enforcement action, Taylor employed under 150 people and had a net worth under $8 million. When the federal government informed Taylor of its intent to sue, it demanded a settlement penalty of $1.7 million within two weeks. Taylor officials sought to negotiate, to no avail, and the government filed suit.
The basis for the lawsuit was the 1990 revelation that in 1982, the plant's maintenance foreman took it upon himself to fill an unused water holding vault with debris, including treated lumber, concrete rubble, scrap metal and, significantly, 116 barrels containing sludge from the wood treating operation. The foreman then covered the vault with concrete, creating a usable surface. At the time, the sludge was not classified as hazardous waste by the federal government, and there was never any indication that sludge – nor anything else for that matter – had escaped the vault's thick concrete walls.
When this discovery was made eight years later, Taylor took immediate action. The vault was cleaned and backfilled with gravel. The debris was sent to a licensed disposal facility. Environmental experts retained by Taylor Lumber determined that no classified hazardous material had been released from the vault into the surrounding environment. Taylor also initiated other environmental improvements at the site in cooperation with the Oregon Department of Environmental Quality, including the installation of a $1.2 million “drip pad” to prevent groundwater contamination from the wood treating operation. In November 1991, Taylor submitted a plan to both the EPA and state environmental officials outlining a planned environmental survey of the plant and additional remediation as required by state and federal regulation.
Two years passed during which time the EPA did not approve or deny the work plan. Suddenly, the EPA began its enforcement action, alleging that Taylor lumber had not only illegally stored and disposed of toxic materials, but also engaged in a “cover-up.” Even though no environmental harm was alleged – and the “violation” had since been corrected – the federal government would seek penalties amounting to over one-fifth of the firm's net worth.
This case is not an isolated incident. When the federal government brought suit against Taylor in July 1993, it also filed civil lawsuits against 23 corporations nationwide. Browner explained that “we believe that every one of them acted illegally and that some endangered public health (emphasis added).” Browner proudly proclaimed that, “we continue to have companies that think environmental laws don't apply to them, and that is unacceptable.” Unacceptable, or so it seems, even though many of these companies are doing nothing to threaten public health or environmental quality.
Those familiar with the enforcement of federal environmental law are well aware that the federal government exerts greater effort to obtain fines and jail time than to clean up the environment; EPA appears to care more about its rules than the environmental results. Readers of these pages will recall that the Justice Department sent conservationist Bill Ellen away for six months for creating duck ponds in Maryland. His crime? Allowing a truckload of clean fill to fall on a federally designated wetland. Ellen violated a cease-and-desist order, but it is not as if he posed an environmental threat. The ducks likely would have been better off had he been allowed to complete his job.
Administration officials love to brag about record environmental prosecutions. In Fiscal Year 1994, the EPA proudly notes, civil penalties and criminal fines for environmental violations hit a record $151 million. But as the Taylor case demonstrates, pulling in an environmental fine does not necessarily bolster environmental protection. Whether any of EPA's enforcement activities improve environmental quality is a huge unknown.
To date, the Agency has never quantified the tangible environmental benefits from its enforcement activities. EPA officials celebrate increased dollars spent or fines collected, not pollution abated or rivers cleaned up. Browner can claim enforcement is a necessary part of environmental protection, but it certainly isn't supported by the persecution of Taylor Lumber and Bill Ellen.
The Taylor case was finally settled in April 1995. The 30-page Consent Decree and 61-page Administrative Order of Consent imposed a modest civil penalty of $70,000 and effectively required Taylor to implement the remediation plan it had submitted to the EPA three years earlier. The government's prosecutorial zeal did nothing for the environment but delay cleanup. It did, however, cost Taylor nearly half-a-million dollars in legal and consulting fees. Presumably the federal government also spent an equivalent sum – taxpayer dollars that could have been used for true environmental protection rather than mindless environmental enforcement.
Jonathan H. Adler is CEI's Director of Environmental Studies and the author of Environmentalism at the Crossroads.