NCD980602163_19960801_Warren County PCB Landfill_SERB C_USEPA - Warren County PCB Landfill_SERB C_Reason Foundation - Environmental Enforcement-OCR

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EnvironmentalEnforcement Fails To Improve
The Environment
Current Enforcement of Environmental Laws Violates Fairness and Justice
AUGUST 5, 1996-LOS ANGELES, Calif. Current environmental enforcement efforts fail to improve the
environment, because regulations are unclear and are based on technical compliance rather than environmental
quality, according to the study Environmental Enforcement: In Search of Both Effectiveness and Fairness, released
today by the Los Angeles-based Reason Foundation.
According to Alexander Volokh, environmental policy analyst at the Reason Foundation and co-author of the
study, part of the problem is that "the less clear the laws and regulations, the more difficult it is for the most well-
intentioned individual to comply-defeating the very purpose of environmental regulation."
Carol Browner, Environmental Protection Agency Administrator, agrees "that the existing environmental
regulatory scheme is a complex and unwieldy system of laws and regulations increasing conflict and gridlock."
The Resource Conservation and Recovery Act (RCRA), for instance, has been described by Don R. Clay, former
Assistant Administrator for the EPA Office of Solid Waste and Emergency Response, as "a regulatory cuckoo land
of definition," in which a substance that wasn't hazardous yesterday "is hazardous tomorrow, because we've
changed the rules."
The study points out that such laws and regulations lead to "regulation by litigation" where judges interpret
unclear laws on a slow, inconsistent, case-by-case basis, and perpetuate ambiguous regulations by often ruling in
the government's favor. Further, some environmental enforcement agencies have a financial stake in the
continuation of environmental problems. For instance, in California the South Coast Air Quality Management
District collects revenues from the penalties they impose -as pollution declines, the AQMD loses money and
actually has an incentive to impose higher fees and penalties.
-more-
3415 S. Sepulveda Blvd, Suite 400, Los Angeles, CA 90034 I [phone]
Environmental Enforcement Fails To Improve the Environment Page 2 o/2
The study also argues that current environmental enforcement policy often violates principles of fairness and
justice -by using criminal puniihments indiscriminately, abandoning traditional concepts of intent and
responsibility, and eroding numerous constitutional protections.
"The success of current environmental enforcement programs is largely measured by the number of cases filed,
penalties collected, and years of imprisonment obtained," says Volokh.
According to the study, environmental criminal cases have abandoned the requirement that the defendant possess
an intent to commit a crime, in favor of the principle of "general intent." In other words, a hunter who thinks he
\
is shooting at a deer and instead injures or harms an animal protected by the Endangered Species Act is guilty of a
criminal offense, since he had the ,tgeneral intent" of discharging the gun.
Certain procedural rights guaranteed by the Bill of Rights have also been "watered down" in environmental law,
according to Roger-Marzulla, an environmental attorney and co-author of the study.
Marzulla argues that current envirbhmental law has eroded the Fourth Amendment protection against unreasonable
search and seizure, the Fifth Amendment privilege against self-incrimination, the Eighth Amendment guarantee
against excessive fines, and the Teith Amendment division of power between federal and state governments.
The study recommends several changes to achieve effective and fair environmental enforcement. Some of these
include more precise language in laws and regulations, r~storing criminal intent as a necessary condition of a
criminal prosecution, measuring en':forcement'success in terms of environmental improvement rather than -numerical standards, and respectin~/he Bill of Rights.
• -r. .
"Reforms based on these principles would make environmental enforcement more predictable for businesses, more·
cost-effective for~overnments, antt'would enhance environmental protection," says Volokh.
Related studies on the issue of environmental enforcement include Key Issues in Environmental Risk
Comparisons: Removing Distortio~ and Ensuring Fairness and Recycling Hazardous Waste: How RCRA Has
Recyclers Running Around in CEReLAs. Copies are available for $15 (plus $1.50 s/h) each and may be obtained ..
by calling the Reason Foundation ,k(310) 391-2245.
r,;
The Reason Foundation is a national public-policy research organization with a practical, market-based approach
to policy issues. Based in Los An~s, Calif., the Reason Foundation is nationally recognized for its economic
analysis and practical policy solut~ns. --30-
I
ENVIRONMENTAL ENFORCEMENT:
Policy Study No. 210
August 1996
IN SEARCH OF BOTH EFFECTIVENESS AND FAIRNESS
by
Alexander Volokh and Roger Marzulla
EXECUTIVE SUMMARY
The current enforcement of environmental laws often violates basic principles of fairness, with perverse
consequences for everyone.
• Businesses suffer from the high costs of attempting to comply with vague and ambiguous environmental
regulations to avoid prosecution.
• Individuals suffer by being subject to civil and criminal penalties unjustly imposed, and out of proportion
to the severity of their violations.
• Government suffers by failing to improve the environment, while spending vast sums of money on
sometimes useless litigation efforts.
• We all suffer by having dirtier water, more polluted air and a less clean environment than we should
have for the tremendous sums we spend.
Environmental enforcement encompasses the range of measures which government uses to punish non-
compli~ce with environmental laws or regulations. When faced with a violation of environmental laws,
enforcement agencies can often choose from a range of options-from administrative action to civil fines to
criminal prosecution.
The question is not whether we need environmental enforcement-of course we do. As in any regulatory regime,
the possibility of violations exists; wherever there is an intent to harm people or intentionally violate the law,
a mechanism for enforcement (and, sometimes, criminal enforcement) must exist. But how do we judge whether
a particular enforcement regime, whether for environmental or other laws, is effective and appropriate? Some
of the criteria we should use in answering this question are :
• Is it procedurally fair?
Is there some reasonable relationship between the "crime" and the "punishment"?
Does it effectively prioritize enforcement efforts, concentrating the most resources on punishing the
worst actors and protecting us from the worst risks?
Do enforcement agencies have appropriate incentives?
• Does the regulated community have appropriate incentives?
These issues exist in some degree for all enforcement efforts, and there's little about environmental law that
differs inherently from the issues raised by other substantive areas of the law. Yet environmental enforcement
has seldom been held up to the same scrutiny as other government enforcement programs.
The problems of environmental enforcement fall into two main categories:
• The current environmental enforcement system often fails to improve the environment-because of
unclear regulations, and because environmental enforcers inappropriately concentrate on technical
compliance with regulations and not on improving environmental quality.
• Current environmental enforcement policy often violates fundamental principles of fairness andjustice-
by using criminal punishments where they're not appropriate, by abandoning traditional concepts of
intent and responsibility, and by eroding constitutional protections.
The nurr,bers of cases filed, penalties collected, and years of imprisonment obtained are largely irrelevant to
measuring the success of the environmental enforcement program. One would think, from the fact that these
figures climb year by year, that American businesses are becoming increasingly lawless and disdainful of
environmental protection. Yet the opposite is actually true. Year by year, American businesses improve their
environmental record and spend more on environmental protection than in any previous year. What these
statistics prove is that the environmental enforcement program is pushine the margins of judicial deference,
regulatory interpretation, and strict liability, to achieve essentially meaningless results of greater penalties and
more convictions. Environmental enforcement is responding to the first principle of any government bureaucracy:
bigger budgets and more employees. New measures of success must be found .
There is no one way to achieve effective and fair environmental enforcement; reality is complicated. The
principles to keep in mind, though, are relatively simple. To be effective, an enforcement regime must:
• be clear in what it mandates and prohibits;
• be predictable in how it punishes violations of the regulations, and rely where possible on cooperative,
problem-solving approaches; and,
• seek environmental improvement, not numerical enforcement targets.
And to be fair, an enforcement regime must:
• reserve criminal penalties for the morally blameworthy, and punish others with civil or administrative
penalties;
• restore specific criminal intent as a necessary condition of a criminal prosecution, and only punish those
who are truly responsible for the criminal acts; and,
• respect the Bill of Rights.
Reforms based on these principles would make environmental enforcement more predictable for businesses and
more cost-effective for governments. Environmentalists would benefit from these reforms, because a misguided
enforcement regime that leads to unjustified punishments is, after all, bad press. The environment need not suffer
as a result, and would, in fact, probably improve as the government starts to send a clearer and more consistent
deterrent message. Most importantly, these reforms would make environmental enforcement more fair for all
concerned.
I
•
Table of Contents
I. INTRODUCTION ...................................................... 1
11. CURRENT TRENDS IN ENVIRONMENTAL PROSECUTION ......................... 2
111. THE ENVIRONMENTAL ENFORCEMENT SYSTEM OFTEN FAILS TO IMPROVE THE
ENVIRONMENT .................................................... 3
A. Unclear Laws, Permits, and Regulations ................................. 3
B. Unclear Enforcement Methods ........................................ 5
C. The Enforcement Mindset ........................................... 7
D. Why We Should Care? ............................................. 9
IV. THE ENVIRONMENTAL ENFORCEMENT SYSTEM OFTEN VIOLATES PRINCIPLES OF
FAIRNESS AND JUSTICE ............................................. 10
A. Criminal Law: Who Needs It? ........................................ 10
B. Intent and Responsibility ........................................... 11
C. Environmental Law and the Bill of Rights ................................ 1 3
V. SOME STEPS IN THE RIGHT DIRECTION ................................... 18
VI. CONCLUSION ..................................................... 21
ABOUT THE AUTHORS ................................................. 22
A more detailed treatment of the issues raised in this paper is available from the Reason
Foundation upon request.
t i
ENVIRONMENTAL ENFORCEMENT
I. INTRODUCTION
"The Law is the true embodiment
Of everything that 's excellent.
It has no kind of fault or flaw,
And I, my Lords, embody the Law. "
-W.S. Gilbert, Iolanthe (1882)
The current enforcement of environmental laws often violates basic principles of fairness, with perverse
consequences for everyone.
• Businesses suffer from the high costs of attempting to comply with vague and ambiguous environmental
regulations to avoid prosecution.
• Individuals suffer by being subject to civil and criminal penalties unjustly imposed, and out of proportion
to the severity of their violations .
• Government suffers by failing to improve the environment, while spending vast sums of money on
sometimes useless litigation efforts.
• We all suffer by having dirtier water, more polluted air and a less clean environment than we should
have for the tremendous sums we spend.
Environmental enforcement encompasses the range of measures which government uses to punish non-
compliance with environmental laws or regulations. When faced with a violation of environmental laws,
enforcement agencies can often choose from a range of options-from administrative action to civil fines to
criminal prosecution.
The question is not whether we need environmental enforcement-of course we do. As in any regulatory regime,
the possibility of violations exists; wherever there is an intent to harm people or intentionally violate the law,
a mechanism for enforcement (and, sometimes, criminal enforcement) must exist. But how do we judge whether
a particular enforcement regime, whether for environmental or other laws, is effective and appropriate? Some
of the criteria we should use in answering this question are :
• Is it procedurally fair?
• Is there some reasonable relationship between the "crime" and the "punishment"?
• Does it effectively prioritize enforcement efforts, concentrating the most resources on punishing the
worst actors and protecting us from the worst risks?
• Do enforcement agencies have appropriate incentives?
• Does the regulated community have appropriate incentives?
These issues exist in some degree for all enforcement efforts, and there 's little about environmental law that
differs inherently from the issues raised by other substantive areas of the law. Yet environmental enforcement
has seldom been held up to the same scrutiny as other government enforcement programs.
The problems of environmental enforcement fall into two main categories:
• The current environmental enforcement system often fails to improve the environment-because of
unclear regulations, and because environmental enforcers inappropriately concentrate on technical
compliance with regulations and not on improving environmental quality.
• Current environmental enforcement policy often violates fundamental principles of fairness and
justice-by using criminal punishments where they're not appropriate, by abandoning traditional
concepts of intent and responsibility, and by eroding constitutional protections.
2 Reason Foundation
State legislatures and the U.S. Environmental Protection Agency (EPA) have begun to take some steps in the
right direction. This paper will conclude with an overview of such steps.
II. CURRENT TRENDS IN ENVIRONMENTAL PROSECUTION
While environmental enforcement includes administrative, civil, and criminal prosecution, environmental crimes
have been perhaps the most controversial aspect of the enforcement regime. The EPA and the Department of
Justice prosecute a great many environmental violations criminally, and the numbers have grown rapidly through
1995. Because environmental criminal sentences are quite variable, and not as common as sentences for more
conventional crimes, it's difficult to talk meaningfully about average sentences. But some recent, high-profile
environmental sentences have exceeded average sentences for many different categories of offenses. In recent
years, for instance, first-time offenders Ocie and Carey Mills were sentenced to 21 months in prison for the
federal crime of dumping dirt on their wetlands without a permit. For comparison, here are some average
sentences for offenses committed by criminals with extensive prior criminal history: 20 months for larceny, 10
months for embezzlement, 13 months for fraud, 17 months for car theft, 16 months for forgery or counterfeiting,
17 months for bribery, and 22 months for escape.
Tables 1 and 2 provide a statistical summary of the criminal cases brought under the environmental statutes by
the EPA and the sentences imposed. These statistics demonstrate that environmental criminal enforcement has
been dramatically on the rise for the last decade. And these are only the criminal numbers. Each year, companies
also pay hundreds of millions of dollars in civil fines, penalties, and legal costs. On November 30, 1994, for
instance, EPA Administrator Carol Browner announced that in fiscal year 1994 alone, the 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. 1
Table 1: Trends in Environmental
Criminal Prosecution
FY Indictments Pleas & Convictions
1983 40 40
1984 43 32
1985 40 37
1986 94 67
1987 127 86
1988 124 63
1989 101 107
1990 134 85
1991 127 96
1992 187 104
1993 186 168
1994 178 124
1995 100 66
Total 1,481 1,074
Source: U.S. Dept. of Justice, Environment and
Natural Resources Div., Policy, Legislation and
Special Litigation Section, Environmental Criminal
Statistics FY83 Through FY94 (April 7, 1995).
Table 2: Trends in Environmental Fines and Sentences
FY Criminal Fines Total Prison Terms Total Confinement
Year Month Day Year Month Day
1983 341,100 11 5
1984 384,290 5 3 1 7
1985 565,850 5 5 2 11
1986 1,917,602 124 2 2 31 4 12
1987 3,046,060 32 4 7 14 9 22
1988 7,091,876 39 3 1 8 3 7
1989 12,750,330 53 1 37 2
1990 29,977,508 71 11 3 47 13 1
1991 18,508,732 24 8 22 8
1992 169,359,344 37 6 1 34 1 1
1993 18,992,968 62 8 55 4 5
1994 27,714,286 69 7 1 69 7 1
1995 5,932,057 24 4 24 4
Total $296,582,003 561 2 16 359 1 19
Source: U.S. Dept. of Justice, Environment & Natural Resources Div., Policy,
Legislation and Special Litigation Section, Environmental Criminal Statistics
FY83 Through FY94 (April 7, 1995).
1 Roger Manulla, "The EPA's environmental protection racket," The Washington Times, January 9, 1995, p. A21.
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l ENVIRONMENTAL ENFORCEMENT
Ill. THE ENVIRONMENTAL ENFORCEMENT SYSTEM OFTEN FAILS TO
IMPROVE THE ENVIRONMENT
A. Unclear laws, Permits, and Regulations
"If there isn 't a law, there will be. "
-Harold Faber, The New York Times Magazine (1968)
3
Unclear laws and regulations defeat the very purpose of environmental regulation. The success of the
environmental regulatory scheme depends on how well people follow the regulations' mandates and prohibitions.
But if no one knows what he is supposed to do or not do, the regulations will not achieve the intended result.
The more complex the regulatory regime, the less clear the laws and regulations, the more difficult it is for the
most well-intentioned individual to comply because he cannot ascertain what is expected.
EPA Administrator Carol Browner has noted that the existing environmental regulatory scheme is "a complex
and unwieldy system of laws and regulations and increasing conflict and gridlock. "2 The Supreme Court has
commented on the complexity of the Clean Water and Clean Air4 Acts. The statutes themselves can be hundreds
of pages long, and combine detailed congressional micromanagement with extensive delegation to the EPA. The
regulations that implement the statutes take thousands of pages in the Code of Federal Regulations. The laws
and regulations are supplemented by policy pronouncements in the Federal Register, judicial opinions, guidance
documents, letters of agency interpretation, verbal advice given over hotlines by employees of EPA contractors,
and litigation positions taken in civil and criminal enforcement actions.5
Two-thirds of corporate lawyers surveyed in 1993 by the National Law Journal admitted that their companies
had violated some environmental statute during the previous year, largely because of uncertainty and complexity.
Seventy percent believed that full compliance with all federal and state environmental laws was impossible.6
How complicated are the regulations based on the laws? As one federal judge recently stated regarding the
hazardous waste regulations of the Resource Conservation and Recovery Act (RCRA): 'The people who wrote
this ought to go to jail. They ought not to be indicted, that's not enough."7 When Congress enacted RCRA, it
was vague on the notion of "solid waste," and referred to "garbage," "refuse," and "other discarded material"
without defining the terms.8 The task of defining and refining terms was left to the EPA.
2 ''New EPA 'Common Sense' Approach Cautiously Welcomed By Industries," Air Water Pollution Report, July 25, 1994, p. 30.
3 See, for example, Chemical Manufacturers Association v. Natural Resources Defense Council, 470 U.S. 116, p. 125 (1985).
4 See, for example, Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, p. 848 (1984).
5 James V. DeLong, "The criminalization of just about everything," The American Enterprise, March/April 1994, p. 29.
6 Marianne Lavelle, "Environmental Vise: Law, Compliance," National Law Journal, August 30, 1993, p. S8.
7 Judge Adrian Duplantier, quoted in a press release from Marine Shale Processors Inc., itself quoted in "Judge critical of both
parties in Marine Shale case," Pesticide & Toxic Chemical News, September 7, 1994, p. 20.
8 David J. Bodney and StevenM. Hoffman, "Rethinking the Law: A Balanced Approach to Recycling," Arizona Attorney, October
1993, p. 13.
4 Reason Foundation
By EPA's admission, the resulting regulations are "complicated"9 and "convoluted."1° For instance, even though
some EPA regulations define hazardous waste as a type of solid waste, other regulations define solid waste as
a subset of hazardous waste.11 The regulations are so confusing that up to a third of the inquiries on EPA' s
RCRA Hotline involve the definitions of "solid" and "hazardous" waste.12
"After reading and rereading the regulations several times," a federal district judge concluded that "the
regulations are in fact dense, turgid, and a bit circuitous."13 Don R. Clay, former Assistant Administrator for
the EPA Office of Solid Waste and Emergency Response, has called RCRA "a regulatory cuckoo land of
definition," in which a substance that wasn 't hazardous yesterday "is hazardous tomorrow, because we've
changed the rules."14 According to Clay, only about five people in the agency actually know what a hazardous
waste is.15
Consider the example given by leading environmental criminal attorney Judson Starr: "If [a] solvent is poured
first on the machinery and then wiped with a clean rag, the rag is a hazardous waste. 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. "16
This isn't just a question of semantics; when an entire regulatory scheme applies to some people and not to
others, figuring out who 's who becomes vitally important. This is, indeed, part of the problem with RCRA-the
existing regulations are an "all or nothing" proposition. A recycler is either in or out of RCRA Subtitle C
regulation, depending on whether the substance he handles can be excluded from the definition of "hazardous
solid waste."17
Often even more complicated than the laws and regulations themselves are the permits issued under the
regulations. National Pollution Discharge Elimination System (NPDES) permits-the permits that are required
under the Clean Water Act-prescribe what pollutants, and how much of them, a company can discharge and
often run one hundred pages or more. These effluent limitations can be expressed in many ways, such as a
limitation of the quantity or the mass of the pollutant. NPDES permits can contain a maximum allowable
discharge of a pollutant on a given day and also the maximum allowable daily discharge for a 30-day period.
Permits can contain limitations in terms of mass, concentration, or toxicity. They can have daily maximum or
monthly average flow requirements. They can contain specific monitoring requirements, like sampling or testing
protocols.
9 Hazardous Waste Management System; Definition of Solid Waste, 50 Fed. Reg. 614 (Jan. 4, 1985), p. 617.
'0 Rethinking the Definition of Solid Waste (EPA Forum Agenda, April 28, 1993), p. 8.
11 40 C.F.R. § 261 .2(a)(2)(i) (1988). "The term 'hazardous waste' ... includes any solid, liquid, semi-solid, or contained gaseous waste
materials .... " James E. McCarthy and Mark E. Anthony Reisch, Hazardous Waste Fact Book, Congressional Research Service,
January 30, 1987, p. CRS-1 (emphasis added).
12 Rethinking, p. 13.
13 Quoted in United States v. White, 766 F. Supp. 873, p. 880 (E.D. Wash. 1991 ).
14 United States v. White, p. 882.
15 Timothy Lynch,Polluting Our Principles: Environmental Prosecutions and the Bill a/Rights, Cato Institute, Policy Analysis#223,
April 20, 1995, n. 31.
16 Judson W. Starr, Joseph G. Block, and John F. Cooney, "Prosecuting Pollution," in "Special Report: Protecting the Heavens and
the Earth," Legal Times, May 31 , 1993, pp. 8-10, quoted in Lynch, Polluting Our Principles, pp. 8-9.
17 Bodney and Hoffman, "Rethinking the Law," p. 13.
I I
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I ENVIRONMENTAL ENFORCEMENT 5
Many permit "violations" merely involve the failure to follow every element of a complex monitoring protocol.
Under the NPDES, permitted individuals can be required to perform composite sampling-collecting a variety
of grab samples and following certain procedures to create a composite sample of the grab samples. If the
permittee doesn't follow the sampling protocols exactly, the entire sample is invalid. This means that there could
be a permit violation even though the actual samples may be within permit limits. Erroneous test data could
make the permittee change his discharge and accidentally be out of compliance the next month. These problems
are compounded by two-to four-week delays in getting test results back.18
Another result of unclear laws and regulations is "regulation by litigation." When no one can understand the
regulations, they often end up in court, where judges, on a slow, inconsistent, case-by-case basis, decide what
the law means. "Regulation by litigation" tends to lead to a new cycle of unclear laws, as the courts reward
sloppy lawmaking by often resolving ambiguities in the government's favor.
In US. v. Standard Oi/19 (1966), for example, the Supreme Court found the statutory term "refuse matter" to
include commercially valuable gasoline.20 In US. v. Phelps Dodge Corporation21 (1975), a federal district judge
ruled that the terms "navigable waters" and "waters of the United States" in the Clean Water Act could
encompass "normally dry arroyos through which water may flow ."22 And it took the Supreme Court more than
20 years to finally decide the meaning of "harm" as used in the Endangered Species Act, in Babbitt v. Sweet
Home23 (1995).
B. Unclear Enforcement Methods
If environmental law is to protect the environment, it must do two things. First, it must educate the public by
laying out what behavior is required and what behavior forbidden. Second, it must deter the public from acting
irresponsibly by setting forth appropriate penalties-greater penalties for more severe offenses, and smaller
penalties for less severe offenses.
The environmental enforcement regime provides the government with many tools to ensure regulatory
compliance. Violations of environmental laws can be enforced either administratively, civilly, or criminally, and
which method is used often depends on the prosecutor. Environmental agencies also have the discretion to
recognize when someone is in technical violation of a law but isn't in fact doing any environmental harm, or
when a "violator" is innocent and shouldn't be punished. Sometimes they work cooperatively with "violators"
to reach a mutually beneficial solution; sometimes they don 't.
Some amount of discretion is appropriate; we don't want to force the same treatment on different offenses. Some
offenses are grave enough to warrant criminal penalties, and others can appropriately be dealt with through
administrative fines. But it's hard for people to tell ahead of time what actions will lead to what punishment.
18 Thomas W. Mariani and Michael H. Weitzenhojfv. U.S., petition for a writ of certiorari to the U.S. Court of Appeals for the Ninth
Circuit, brief of the Corporate Environmental Enforcement Council, the Electronic Industries Association, the National Association
of Manufacturers, and the Pharmaceutical Research and Manufacturers of America as amici curiae in support of petitioners ("CEEC
amicus brief in Weitzenhoff'), pp. 6-7.
19 384 U.S. 224, p. 226 (1966).
20 The Standard Oil case was central to the expanded reach of the navigable waters legislation. Before that case, the applicable statute
was understood to deal only with maintaining the navigability of waterways. Standard Oil established that the statutes applied not
only to navigability, but to pollution that may be unrelated to navigation.
21 391 F.Supp. 1181 (1975).
22 Lynch, Polluting Our Principles, p. 9.
23 115 S. Ct. 2407 (1995).
6 Reason Foundation
In the world at large, we know that parking violations and murder are both bad, but the system of penalties
(which, in turn, is based on notions of societal harm and moral notions of blame) tells us that a murder
conviction is serious, while a parking ticket is venial. Vague punishments raise due process questions, as there
isn't adequate notice to potential offenders. But unpredictability of prosecution also hurts environmental
compliance. Under current practice, whether a violation is treated administratively, civilly or criminally typically
doesn't depend on how severe the violation is.24
As we have seen, ambiguous or conflicting regulations defeat the very purpose for which they were
adopted-compliance. The imposition of severe civil or criminal penalties for violation of such ambiguous
regulations compounds the problem by breeding disrespect for a program which no one can even understand.
Much of the resentment of government regulations today arises from the unclear way in which they are drafted,
compounded by the unfair way in which they are enforced.
Federal agencies publish more than 65,000 pages of rules and interpretive statements in the Federal Register each
year, and issue countless pages ofregulatory guidance. Much of this "guidance" actually attempts to change the
meaning of the regulations, or to add new requirements not contained in the published rule. These thousands
upon thousands of pages of regulations and interpretations often are inaccessible to most Americans, creating
a welter of "private regulations" of which citizens are completely unaware. These memoranda, letters, and notes,
prepared by thousands of separate government employees, are sometimes inconsistent with each other-as well
as with the regulation. Indeed, the more ambiguous the regulation, the greater the proliferation of interpretations
and guidance, leaving the citizen to pick through them to ascertain-at his peril-what those regulations require
of him. The results, in many instances, include ruinous penalties and the shattering of lives of ordinary, law-
abiding Americans who tried to do the right thing.
The imposition of fines and penalties upon those who are unable to comply with ambiguous and mind-numbing
regulations undermines the legitimacy of the very program it is intended to advance. Prosecutions based on such
defective regulatory requirements encourage regulators to "make it up as they go along" by clarifying unclear
regulations through litigation. Like the proverbial "speed trap town" which hides a speed limit sign behind a tree
to catch a passing motorist, unclear and inconsistently interpreted regulations actually discourage citizens from
complying by making it virtually impossible for them to do so.
Federal agencies have made some progress in helping people understand complex regulations, by reinventing
and reviewing regulatory schemes. But agencies have systematically revised existing regulations in only a few
isolated instances, leaving the regulated community open to continued enforcement of ambiguous regulations or
conflicting agency interpretations in the vast majority of circumstances. At present, Americans remain at risk
of ruinous penalties for failure to comply with regulatory requirements that they did not and could not have
known about.
For instance:
• A major chemical company in Texas was 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 the EPA at
that time. Ten years later, the EPA said it disagreed with the state's interpretation, and wanted to be paid
up to $25,000 per day in fines, going all the way back to 1984.25
On the other hand, agencies can be cooperative as well as confrontational:
24 Kevin A. Gaynor, Jodi C. Remer, and Thomas R. Bartman, "Environmental Criminal Prosecutions: Simple Fixes for a Flawed
System," Villanova Environmental Law Journal 3 (1992): 1-31, quoted in Lynch, Polluting Our Principles, p. 10.
25 Roger Marzulla, "The EPA's environmental protection racket."
1 ,
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ENVIRONMENTAL ENFORCEMENT 7
• A Midwestern Fortune 100 company was expanding some of its operations at a site where it had been
located for a hundred years. During that expansion, the company learned that the 15-acre site was
considered a wetland, and so its expansion plans, which were already under way, were about to
criminally violate the Clean Water Act. It was infeasible for the company to expand elsewhere, since
the choice of location was crucial to the operation.
The government could have sought criminal penalties, but it worked together with the company instead.
The company couldn't create another wetland of equal size, because unlike many developers who want
to build on a wetland, the company wasn't in the business of land management. Moreover, since a newly
created wetland will lose its wetland status unless it's actively managed, merely creating another wetland
wouldn't have solved the problem. Most of the options suggested by the Army Corps of Engineers were
prohibitively expensive, considering that the site, though it fit the technical definition of a wetland, had
been a manufacturing site for a century and hadn't served a wetlands function in a long time.
The company found a wetlands restoration project underway nearby that was using state, local, and
private funds . It offered to pay for the cost of restoring a 15-acre portion of that wetland. At first, the
Army Corps of Engineers objected to the idea of the company giving money to someone in exchange
for developing a wetland. But after a series of meetings, because the company had worked actively with
the government and negotiated in good faith, the government allowed the company to pay for the
remediation of a portion of the project. This example demonstrates the possibilities, even within the
confines of existing law, of moving away from punitive and confrontational approaches.26
Criminal laws should punish the really blameworthy, administrative fines should punish technical violations, and
civil penalties should punish everything in between. Cooperative, problem solving approaches may be the best
solution in many cases, when "violators" are acting in good faith. But environmental laws are broad; the
unspoken premise is, "Maybe innocent people will end up violating the law-but we'll rely on the prosecutor's
judgment." Sometimes, this policy may work. But it means that the prosecutor is the one who makes the
distinctions between guilty and innocent as he goes along. As one prosecutor put it, "When the little hairs on
the back of your neck stand up, it's a felony. When it just makes you tingle, it's a misdemeanor. If it does
nothing to you at all, it's a civil problem."27
When legislatures make their statutes so broad that everyone is potentially a criminal, they invite abuse by
overzealous prosecutors. Enforcement is likely to be inconsistent and arbitrary, and the deterrent message of the
law is likely to be garbled; these problems are compounded by the vagueness and complexity of the law.
Fundamentally, when the severity of the punishment is unknown and not necessarily related to the gravity of the
offense, the law as a way of modifying behavior is undermined.
C. The Enforcement Mindset
"He who the sword of heaven will bear
Should be as holy as severe. "
-William Shakespeare, Measure for Measure (1605)
When considering whether environmental enforcement advances environmental compliance, we should ask
whether the regulators have the proper incentive to prosecute the right cases or assess the right penalties. In
reality, enforcers often do not. Environmental enforcement agencies are frequently motivated by what can best
26 'This example shouldn't be construed as implying that reform of the Clean Water Act (and wetlands regulations) isn't warranted.
Wetlands regulations raise important property rights issues that need to be addressed. However, in the absence of reforms, at a
minimum these more flexible applications of regulations are preferable to purely punitive approaches.
27 Quoted in Leslie Spencer, "Designated Inmates," Forbes, October 26, 1992, p. 100, and Lynch, Polluting Our Principles, p. 10.
8 Reason Foundation
be described as ''bean-counting"-strictly enforcing paperwork mistakes and technical violations with no
environmental harm, in an attempt to increase environmental prosecution.
Environmental harm and intentional noncompliance, not "bean counting," ought to be deciding factors in whether
or not to prosecute a case. After all, we're trying to achieve environmental quality, not prosecutions; enforcement
is only a means to an end. If environmental agencies or prosecutors are subjected to undue political pressure to
prosecute more, or if they have a financial stake in the amount of enforcement they perform, enforcement will
rise-but with little or no benefit to the environment.
Congress has repeatedly demonstrated its willingness to intervene in environmental prosecutions. Various
congressional committees, headed by Congressmen John Dingell, Charles Schumer, and Howard Wolpe,
condemned the Bush Administration's alleged softness on environmental crime. In 1992, then Vice President-
elect Al Gore endorsed a study done for Rep . Schumer's committee that selected six cases, out of hundreds, that
it said should have been pushed harder. Government prosecutors were required to testify under oath as to why
they chose not to seek greater penalties and at least one-a highly experienced former "mob" prosecutor from
New York-lost his job as a result.
Yet this political pressure defeats the goal of even-handed prosecutorial discretion. Regulators are rarely chided
for overregulating. Such pressure can make prosecutors think twice before bargaining cases down, even when
they think this is the correct response. And there is the danger that this attitude can lead to an indiscriminate
attitude of retribution.
Moreover, many state and local agencies-for instance, the South Coast Air Quality Management District
(AQMD) in the Los Angeles area-collect their revenues partly from the penalties they impose. Since they
collect penalties every time someone violates a regulation, they have a financial stake in the continuation of the
problem. This system also makes it hard for them to recognize good news when they see it. When violations
decline, so does the agency budget. The AQMD has been known to call for increasing penalties to compensate
for its budget shortfalls, even though those budget shortfalls were partly due to its own success in curbing
violations. This is a curious situation for a regulatory agency-essentially having to penalize pollution more when
we have less of it.28
The perverse incentives that lead to these results do more than just single out individual violators for unjust
punishment. They give environmental agencies a "more is better" mindset, in which enforcement becomes an
end in itself. The EPA exults when the "output" of its criminal program-the amount of cases brought, criminal
and civil fines levied, fees collected, and prison terms imposed-increases, and issues concerned memos when
it decreases. 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."29 An environmental agency under this sort of quota-like system, like the proverbial traffic cop with
his quota of tickets to write, will tend to prosecute not the most serious cases, but those that are the easiest to
find . The regulated community and environmental compliance as a whole suffer as a result.
The moral of the story is that we shouldn't count tickets or beans, or measure the success of environmental
enforcement programs by anything other than environmental quality. A regime that enforces without regard to
environmental quality may improve the environment, but only by accident.
28 Myrna Oliver, "AQMD hikes its budget, raises fees to pay for it," Los Angeles Times, June 3, 1989, Metro, part 2, p. 1.
29 Robert W. Adler and Charles Lord, "Environmental Crimes: Raising the Stakes," George Washington Law Review 59 ( 1991 ): 781,
p. 811.
\
)
I
ENVIRONMENTAL ENFORCEMENT 9
D. Why We Should Care?
Is the environmental enforcement community furthering environmental compliance? The question boils down
to whether the regulated community has the right incentives-which, in turn, depends on whether the regulators
are punishing the right things, in the right amounts, and under the right incentives.
Laws matter. Environmental laws do more than just tell people what's acceptable and what isn't. What types of
laws we have-what the rewards are for good behavior, what relationship the regulators have with the regulated,
how clearly defined the regulations are-are crucial in determining companies ' responses and, ultimately, the
state of the environment. If we get the laws wrong, justice may suffer in some abstract sense, but the
environment can also suffer. Here's an example of how that can happen.
• Benjamin Cone discovered red-cockaded woodpeckers-which are listed as an endangered species-on
his land, and found himself unable to harvest any timber within half a mile of any woodpecker colony.
Since the woodpecker was discovered, the Fish and Wildlife Service began controlling over a fifth of
Cone 's land. The value of Cone 's land was sharply reduced, and yet Cone still has to pay taxes on the
land's previous value. The irony is that Cone may have helped attract the woodpeckers and other
animals to the land in the first place by selectively harvesting trees and creating an open, park-like
forest.
The Endangered Species Act imposes criminal penalties for killing members of an endangered species.
Cone's forestry practices, which were the model of responsible management and arguably
environmentally beneficial according to the intent of the Endangered Species Act, would have been
considered a crime. As a result, Cone changed his practices. He began to clearcut 300 to 500 acres every
year on that part of the land that he still controls, to prevent woodpeckers from nesting there. Many
other landowners are also actively managing their property to avoid creating habitats that might attract
endangered species. "I cannot afford to let those woodpeckers take over the rest of the property," Cone
told an investigator. 30
In other words, endangered species are suffering because of a misplaced public-sector emphasis on punitive
measures. The fundamental axiom of environmental policy is that if we want to improve the environment, we
want to discourage bad environmental behavior and encourage good behavior. In short: "First, do no (net) harm."
A legal structure with perverse incentives-one that encourages people to abandon stewardship efforts-is an
outcome to avoid. Here's another example:
• Coors Brewing Company did a comprehensive, voluntary investigation of its air emissions. Before
Coors's audit, the government thought that beer brewers were minor emitters of volatile organic
compounds (VOCs). But the audit revealed that the government had been mistaken and had
underestimated brewers ' emissions by a factor of about 17. Coors provided this information to the
Colorado Department of Health, which then fined Coors $1.05 million for its 189 violations of state air
pollution laws and regulations-even though neither the company nor the state had any idea these
violations were occurring before the audit.31
30 Richard L. Stroup, The Endangered Species Act: Making Innocent Species the Enemy, PERC Policy Series, Issue Number PS-3,
April 1995, pp. 4-6. See also Stroup, "Making Endangered Species Friends Instead of Enemies," The American Enterprise,
September/October 1995, p. 81 . Even the FWS may have recognized the perversity of this and initiated negotiations with Ben
Cone. At press time, Cone was no longer clearcutting on his property.
31 1his story has been put together from the following sources: "Colorado Dept. of Health Fines Coors for Air Pollution Violations,"
Clean Air Network Online Today, July 23, 1993; "Coors says fine could deter corporate environmental audits," BNA National
Environment Daily, July 28, 1993; "Coors settles with state over violations discovered during company's self-audit," BNA State
Environment Daily, February 23, 1994; Coors Brewing Company, 1993 Environmental Health and Safety Progress Report.
10 Reason Foundation
Environmental enforcement actions must advance principles of environmental protection. We all want clean air
and pure water; we want a system that will achieve maximum benefits for the cost paid; we want an incentive
system that will encourage actions that protect the environment. Sanctions (at least civil penalties and injunctions)
are a necessary means to penalize "bad actors." But it makes no sense for an environmental agency, by
enforcing unclear regulations without looking at the big picture of environmental quality, to discourage the
behavior that is necessary to identify and correct environmental problems. As Steven J. Madonna, New Jersey's
State Environmental Prosecutor, explains:
You can create an aura of intimidation so overpowering that everyone shudders at your name. That's great
if you 're planning the Garden of Eden, without human beings there. What are you creating if you have an
atmosphere that is not conducive to responsible business and a place for their employees to live and work? ...
You 're not chasing elephants with fly swatters, and you 're not shooting flies with elephant guns. 32
IV. THE ENVIRONMENTAL ENFORCEMENT SYSTEM OFTEN VIOLATES
PRINCIPLES OF FAIRNESS AND JUSTICE
A. Criminal Law: Who Needs It?
"Justice should remove the bandage from her eyes long enough
to distinguish between the vicious and the unfortunate. "
-Robert G. Ingersoll, Prose-Poems and Selections (1884)
An environmental enforcement regime should be both effective (i .e., it succeeds in protecting the environment)
and appropriate (i .e., it is fair). We have shown how ambiguity and misplaced enforcement priorities can lead
to ineffectiveness. The following section will discuss how the current enforcement system can also violate
principles of fairness and justice.
Let us return to the distinction between civil and criminal law. Many environmental offenses can be prosecuted
either civilly or criminally, at the prosecutor's discretion, even though the two sorts of law operate differently
and seek to achieve different results. The key difference between criminal and civil law is society's moral
condemnation. We condemn murder in a way that we don 't condemn traffic accidents. According to John Coffee,
professor of law at Columbia University, what most distinguishes criminal law from civil law (and particularly
from tort law) is:
its operation as a system of moral education and socialization. The criminal law is obeyed not simply
because there is a legal threat underlying it, but because the public perceives its norms to be legitimate and
deserving of compliance. Far more than tort law, criminal law is a system for public communication of
values. As a result, the criminal law often and necessarily displays a deliberate disdain for the utility of the
criminalized conduct to the defendant. Thus, while tort law seeks to balance private benefits and public costs,
criminal law does not ... , possibly because balancing would undercut the moral rhetoric of the criminal law.
Characteristically, tort law prices, while criminal law prohibits.33
Generally, someone can violate the civil law and get away with a fine, whereas someone who breaks the criminal
law, even if he spends no time in jail, still has the stigma of a criminal conviction. The criminal law prohibits,
mainly because it's the criminal law. The stern moral condemnation, not the penalty, is the prohibition.
32 Kucewicz, "Grime & Punishment," p. 55.
33 John C. Coffee Jr., "Does 'Unlawful' Mean 'Criminal'?: Reflections on the Disappearing Tort/Crime Distinction in American
Law," Boston University Law Review 71 (1991 ): 193, p. 193-194 (first italics are ours, second italics are the author's).
I
ENVIRONMENTAL ENFORCEMENT 11
This view of the criminal law has a number of consequences:
• The stigma associated with criminal law diminishes as the criminal law is applied to behavior that people
don't think of as criminal. When people don't think their activities deserve disdain, and yet they see that
these activities are crimes, they will have less respect for the criminal law.
• We shouldn't use the criminal law when the underlying behavior has some social usefulness.
Murder-intentional, non-self-defensive killing-has no social usefulness. Neither does, say, armed
robbery. Neither does reckless behavior-when you know you're subjecting people to a substantial risk,
but you do it anyway. A blanket prohibition against these is a good idea.
• What about negligence? The negligent defendant often acts negligently while performing actions which,
in themselves, are socially useful. Accidents happen. In theory, one can avoid negligence simply by
acting non-negligently. But acting non-negligently takes resources, and it's difficult to be non-negligent
all the time. There is such a thing as "too much prevention," especially when the underlying behavior
has some social usefulness. This means that the criminal law is inappropriate for accidents.
B. Intent and Responsibility
"When innocence trembles, it condemns the judge."
-Publilius Syrus, Moral Sayings (1st cent. B.C.)
Most importantly, we shouldn't impose criminal penalties unless the defendant was truly blameworthy-that is,
if he knowingly harms people, knowingly endangers them by exposing them to a substantial and unjustifiable
risk (recklessness), or intentionally violates a law. The following examples show how this principle is violated
in environmental law:
• In 1974, the White Fuel Corporation was prosecuted under the Refuse Act when oil seeped from a
storage tank on the company's shoreline property into Boston Harbor. White Fuel was prevented from
presenting "evidence that it had not known of the underground deposit, had not appreciated its hazards,
and had acted diligently when the deposit became known."34
In US. v. Weitzenhojf5 (1993), sewage treatment plant operators were prosecuted under the Clean Water
Act for "knowing discharge of pollutants exceeding permit limits." But that crime involves far less than
one might think. Under the "general intent" standard, the government was required to prove only that
the defendants knew they were discharging wastewater-not that they were violating their almost
incomprehensible wastewater discharge permit. Since Weitzenhoff's job as a Honolulu Sewage
Treatment Plant worker was precisely to discharge wastewater, the government had to prove only that
he knew he was performing his job. The court refused to allow Weitzenhoff to be acquitted if the jury
found that, although he knew he was performing his job by discharging wastewater, he actually thought
he was doing so in accordance with the permit-not in violation of it.
While criminal law normally requires that the defendant possess an intent to commit a crime, this requirement
has been abandoned in environmental crime cases in favor of the principle of "general intent." Under this
interpretation of environmental statutes, a defendant may go to jail even though he did not know that his act
violated an environmental regulation, or even if he believed that his actions were authorized by that regulation.
For instance, a hunter who believes that he is shooting at a deer is guilty of a criminal Endangered Species Act
violation if his bullet injures or harms a protected animal, since he had the "general intent" of discharging the
gun.
34 U.S. v. White Fuel Corp., 498 F.2d 619,621 (1974).
35 U.S. v. Weitzenhoff, 747 F.2d 1102, 1103-4 (1984).
12 Reason Foundation
Such "strict liability" criminal prosecutions increase the number of convictions, but do little, if anything, for
environmental protection. Accidents happen, and, in fields outside environmental law, are not prosecuted as
criminal offenses. Killing a pedestrian in a cross-walk, for example, may be manslaughter if the car is driven
recklessly, but it may also be negligence (not a crime), or even a tragic accident for which no one is legally
responsible. If the "general intent" standard were applied to traffic accidents, the government would be required
only to prove that the driver intended to drive the car in order to convict him of a crime. Prosecutions for
accidental or unintended environmental violations (especially technical violations) do not advance the goal of
environmental protection.
Fairness also requires that criminal punishment fall only on those who were actually responsible for the crimes.
Traditionaily, this was always the case, but in environmental law, it no longer is.
• Diceon Electronics pied "no contest" to three waste-storage violations, but Roland G. Matthews,
president of the firm, claimed that he himself was innocent. He had no technical training, was four
managerial levels removed from the violations, and worked in a headquarters 100 miles away. The court
said that Matthews' lack of personal control was "of no consequence" and that he could be convicted
unless he had "undertaken all objectively possible means to discover, prevent, and remedy any and all
violations of such laws. "36
Today, corporate managers can be held responsible, or "vicariously liable," for the misdeeds of their employees,
under the "responsible corporate officer doctrine." This extends further than simply punishing corporate officers
who foster a culture that rewards employee negligence. Today, the mere fact that a manager holds a position of
responsibility implies that he has knowledge of his employee's acts-and the definition of "knowledge" can be
an imaginative one.
• Accudyne, a company that had a contract with the government, was sued by the Atlantic States Legal
Foundation for having made a "false claim" to the government. Every government contract contains a
standard clause that the contractor must comply with all applicable laws and regulations, including
environmental regulations. Accudyne had violated some environmental laws, but its violations were in
the past, so they could no longer be sued under those laws. But under the False Claims Act, if a
contractor makes a false claim to the government, anyone can sue and collect treble damages. ASLF
claimed that because Accudyne reported all of its discharges to the government, it "knew" all of its
discharges, so it knew that it hadn't complied with environmental laws when it filed for payment of the
contract. Although this was not a criminal case, making false claims can be prosecuted as a criminal
offense and, under the "general intent" and "responsible corporate officer" doctrines, could result in a
criminal conviction on precisely the same evidence. (Accudyne settled with ASLF for $12 million, of
which $2.64 million went to the plaintiffs as "bounty.")37
The reasoning . in Accudyne may sound reasonable, but it only gets us so far. Consider a company with 400
operations and 3,000 discharge reports. The people responsible for reporting the company's discharges may not
even know, when they report the information, that they're violating their permit. It's not an intentional violation,
but it's been reported on a document. And a company's managers are presumed to know everything its
employees know.
Can UPS know each time one of its drivers exceeds 65 mph on the freeway? In an ideal world, maybe it would.
But we live elsewhere. The doctrine of vicarious liability assumes that company executives know things they
can't possibly know. It makes heads of companies vulnerable to rogue employees, who maliciously act to
undermine the company. And in a world where intent isn't required for a crime, it makes executives criminally
liable for their employees' accidents, even when appropriate company policies exist to avoid accidents. If
36 William W. Bedsworth, "The Verdict," Sierra, May/June 1993, pp. 84-85.
37 U.S. ex rel. Fallon v. Accudyne, Civil Action No. 93-C-801-S.
ENVIRONMENTAL ENFORCEMENT 13
employers collude with their employees to violate the law, or if employers consciously foster a corporate culture
that tolerates environmental violations, punishing them is appropriate. Otherwise, though, employees should bear
the consequences of their own actions.
C. Environmental Law and the Bill of Rights
"The worthy administrators of justice are like a cat set to take care of a cheese,
lest it should be gnawed by the mice. One bite of the cat does more damage to
the cheese than twenty mice can do. "
-Voltaire, "Allegory," Philosophical Dictionary (1764)
We will conclude this section with a brief overview of the status of a few procedural rights. Certain procedural
rights that are guaranteed by the Bill of Rights, and respected in most criminal cases-the requirement of search
warrants, the privilege against self-incrimination, the guarantee against double jeopardy, and the rule against
excessive fines or cruel and unusual punishment-have been watered down in environmental law. The full
history of these developments is a long one, would take us well outside of environmental law, and is adequately
dealt with elsewhere. 38 However, we will examine the effect of environmental enforcement on these fundamental
constitutional rights.
1. The Fourth Amendment: Unreasonable Searches
The Supreme Court established in Davis v. US.39 (1946) and Donovan v. Dewey4° (1981) that the government
has greater latitude to inspect commercial property without a warrant than residential property. All the
government needs to do is get an "administrative search warrant"-which can be issued "solely on a showing
that reasonable legislative or administrative standards for conducting an inspection are satisfied with respect to
the particular place to be searched. There need be no probable cause that a violation has occurred or is
occurring. "41 In the 1970s, the Supreme Court held that "closely regulated" industries were exempt from even
these rules. Inspectors can inspect the premises of "closely regulated" industries without a warrant, and there
have been no limits on what the government can label as closely regulated. The Resource Conservation and
Recovery Act,42 the Clean Air Act,43 and the Toxic Substances Control Act,44 among other laws, authorize
warrantless inspections.
Warrantless searches are permitted in order to make the jobs of law enforcement officers easier. However, this
alone isn't enough to allow warrantless searches; there are other interests at stake besides the law enforcement
interest. But one can argue that violations of environmental laws are different than other violations. There's often
a time lag between an environmental violation and resulting health effects; effects can often be impossible to
trace back to the original offender; since effects can be hard to detect, there's often no way of even knowing
38 See Lynch, Polluting Our Principles.
39 328 U.S. 582 (1946).
40 452 U.S. 594 (1981).
41 John Wesley Hall Jr., Search and Seizure, 2nd ed. (New York: Clark Boardman Callaghan, 1991), vol. 2, p. 376.
42 42 U.S.C. § 6928(d).
43 Harris, Marshall, and Cavanaugh, Environmental Crimes, p. 2-17.
44 Eva M . Fromm, "Commanding Respect: Criminal Sanctions for Environmental Crimes," St. Mary's Law Journal 21 (1990): 839-
840.
14 Reason Foundation
that an environmental violation has occurred without doing an inspection. Drunk driving is detectable by its
effects, but one cannot tell, just by looking at a smokestack, whether someone's exceeding a permit level.
But even by this charitable assessment of the need for warrantless inspections, not all government inspection
powers are justified. As a result of the erosion of Fourth Amendment protections in environmental cases, the
EPA can use an administrative inspection to look for evidence of environmental crimes, and then use that
evidence to get a real search warrant later. The Environmental Crimes Unit of the FBI has worked with local
health officials to gather evidence for criminal prosecutions when local officials do their routine inspections.45
Since the power to inspect, when not properly restrained, can become the power to harass, this phenomenon
should give us pause. It's one thing to have a lower probable cause standard for civil violations, but it's quite
another thing to be able to use any inspection as a fishing expedition to find any other violation. Unless the
evidence of environmental crimes is somehow related to the reason for the inspection, the EPA shouldn't be
allowed to piggyback on the unrelated inspections of other agencies.
Another cause for concern is the different treatment of places of business and open fields. The Supreme Court
has held that intrusion on open fields is not an unreasonable search according to the Fourth Amendment. In fact,
though, the privacy interest of individuals is violated whenever someone trespasses on their property. This applies
whether they're in their homes, in their businesses, or on their fields. The "open fields" doctrine should be
abandoned; the conditions under which the government should be able to trespass on open fields should be the
same conditions as those that allow inspections in general.
All concerns about overbroad inspection powers, though, stem from the basic structure of current environmental
regulation. In most cases, environmental regulations mandate a particular sort of technology, and not a particular
environmental standard. This sort of regulation is particularly pernicious, in that it hinders innovation and forgets
the primary purpose of environmental regulation, which is to protect human health and the environment (and
not to use particular smokestack scrubbers). The emphasis on inspections and warrantless searches is an attempt
to evade the more important task of figuring out what actually happens to the environment. As long as regulation
is based on technology and not environmental standards, enforcement concerns related to inspections and
warrantless searches must continue, because while it's possible to externally monitor environmental quality, it
can be difficult or impossible to find out what machines a company is using without regular inspections.
The solution is to address the root cause of inspections, which is the regulations that make them inevitable.
Through its "Environmental Results Program" (see the discussion of this program later in the paper),
Massachusetts has recently adopted an environmental standards program, which even eliminates the need for a
company to get a new permit when it changes the technology it uses, as long as it can certify that it will continue
meeting the same objective environmental standard.
2. The Fifth Amendment: Self-Incrimination
Most of the EPA' s compliance data come from "self-reporting requirements." For instance, the Toxic Substances
Control Act requires the owner of any PCB equipment to report any spill of 10 or more pounds of material
containing PCBs at concentrations of 50 ppm or greater.46 This system has been referred to as the ''TSCA self-
confession program."47 And the federal sentencing guidelines put a big premium on self-disclosure.48
45 Spencer, "Designated Inmates," p. 100.
46 See 40 C.F.R. §§ 761.120-761.135.
47 Environmental Protection Agency, Enforcement in the 1990s Project: Recommendations of the Analytical Workgroups(October
1991), p. 5-1.
48 Harris, Marshall, and Cavanaugh, Environmental Crimes, p. 9-20.
ENVIRONMENTAL ENFORCEMENT 15
The erosion of the privilege against self-incrimination began in Hale v. Henke/49 (1906), where the Supreme
Court held that corporate officers couldn't invoke the privilege against self-incrimination on behalf of a
corporation. Later, in New York Central and Hudson River Railroad v. US.50 (1909), the Court held that
corporations could be charged with crimes. The Supreme Court has also held that corporate employees can't
invoke the privilege against self-incrimination to protect themselves-as opposed to the corporation itself-from
a criminal prosecution.51 So if a corporation is accused of an environmental crime-and under the "responsible
corporate officer doctrine," this means that a corporate executive would be punished for it-that executive can't
invoke Fifth Amendment protection.
The result is that TSCA lets the EPA subpoena any report, paper, or document that it likes. 52 The EPA can even
subpoena "answers to questions." Recently, the EPA attempted to subpoena the records of American companies
doing business in Mexico, on the theory that since pollution from those plants could spill over into the United
States, these companies were "importing" pollutants into the country. In another case, a Missouri corporation
was indicted because it didn't report an oil spill in the Mississippi River, even though a low-level employee, who
didn't tell anyone about it, was the only witness. A $20,000 fine was upheld on appeal.53
Is this a problem? Ideally, the answer, as with inspections, is to directly monitor environmental quality in the
outside world. But, as with inspections, this is not always possible-and where it is, it isn't always possible to
trace the pollution to the polluter. Self-reporting requirements are often the only way of finding out whether
pollution is happening . Remove the power of inspection and the mandate to self-report, and only the most
egregious, obvious violations can be punished. Remove the government's power to prosecute on the basis of such
reports, and any company will be able to pollute, report its pollution, and get off scot-free. Unless there are other
ways of getting the information, self-reporting-in the abstract-remains an appropriate enforcement tool.
But here again, what appear to be Fifth Amendment problems may actually stem from more fundamental
concerns. We still live in a world where accidents can result in criminal prosecutions and where corporate
executives can be punished even if they weren't responsible for the actual crime. For self-reporting to be a truly
acceptable form of enforcement, intent and responsibility need to be reestablished as requirements for criminal
punishment. The possibility of being criminally punished for admissions of accidents creates an enormous
incentive to lie, cover problems up, or simply not find out about them in the first place. This is why laws
protecting environmental audits, which we have discussed earlier in the paper and which we will come to again,
are particularly important.
3. The Fifth Amendment: Double Jeopardy
The guarantee against double jeopardy protects people from being punished twice for the same offense. But this
doesn't stop the same actions from being crimes under federal law and state law, since federal and state
governments are different. Environmental violations are often investigated by joint federal-state task forces. In
US. v. Louisville Edible Products Inc.54 (1991), the federal government brought charges against a Kentucky
corporation under the Clean Air Act. Since the federal charges were based on actions for which the company
had already been fined by a local environmental enforcement agency, the company argued that it was protected
49 201 U.S. 43 (1906).
so 212 U.S. 481 (1909).
51 See, for example, Braswell v. U.S., 487 U.S. 99 (1988).
52 15 U.S.C. § 2610(c).
53 Apex Oil Co. v. U.S., 530 F.2d 1291 (1976). See also U.S. v. Texas Pipe Line Co., 528 F.Supp. 728 (1978).
54 926 F.2d 584 (1991).
16 Reason Foundation
by the double jeopardy clause of the Fifth Amendment. It lost. And, of course, any government can also bring
both civil and criminal actions against defendants. The threat of such prosecution is an effective plea-bargaining
instrument.
Successive state and federal prosecutions can be appropriate because otherwise, California could undermine a
federal law it disagreed with by declaring the same conduct to be criminal and punishable by a fine of $2 . Then
everyone in California who committed this "crime" could immediately plead guilty in a state court, pay the $2,
and be free of further legal actions. In short, successive state and federal (and successive civil and criminal)
prosecutions don't violate the Fifth Amendment, but they're still multiple prosecutions, and their justification
in any case, as the next section outlines, should be closely scrutinized.
4. The Tenth Amendment: Federalism and Duplicate Regulation
The Tenth Amendment divides power between the federal government on the one hand and the states (or the
people respectively) on the other. The Supreme Court has described the purpose of this fractioning of
government power: "the Constitution divides authority between federal and state governments for the protection
of individuals . State sovereignty is not just an end in itself: rather, federalism secures to citizens the liberties that
derive from the diffusion of sovereign power. 55
Why, then, are different governments making regulations regarding the same activity in the first place? A good
rule of thumb, when dealing with the environment, is that local governments should deal with problems that are
truly local, state governments should deal with problems that are truly statewide, and the federal government
should only deal with problems that are truly national in scope. A hazardous waste site in Alabama, for instance,
is an issue that doesn't affect people outside of Alabama. So it should be regulated by a local agency. Under
current law, however, the EPA is also involved in local waste management, through RCRA and Superfund,
though the justification for its role is unclear. Indeed, as a federal district court has recently held in the Olin
case,56 the federal government has no business regulating a purely intra-state waste site. If a polluter runs afoul
of the local agency and the EPA simultaneously, we should spend less effort trying to merge the two
punishments and more effort wondering why both have to apply.
There may be cases where both the federal and the state governments . have some business regulating the
activity-for instance, in the case of air pollution in small states, which affects both the people in the immediate
vicinity and other states downwind. In this limited case-which only applies if the state and federal governments
are protecting different people or things-we have to solve the problem of creating an appropriate regulatory and
enforcement mechanism. In the case of air pollution, federal regulation may be appropriate, in the interests of
practicality and uniformity. On the other hand, federal preemption may not always be the best solution. And
imposing both punishments may be unfair, since if either punishment was appropriate, both of them together
can't be. The proper way of handling duplicate regulation, in the rare cases when these may be appropriate,
depends on the situation.
But if a local government is willing and able to handle a case that's truly a local responsibility, it should be able
to. In general, two levels of government shouldn't both intervene unless there really is a different set of protected
objects. For example, a hazardous waste site in the middle of a San Antonio community should be the problem
of people who live in San Antonio; the Texas and federal governments shouldn't both get involved. On the other
hand, if an oil spill contaminates a municipal park and also a federal facility, then that's not one problem but
two, and dual prosecutions could be appropriate. Once we've established this limitation on dual prosecutions,
the set of legitimate dual prosecutions may become quite small.
55 New York v. U.S., 505 U.S. 144, 167 (1992).
56 slip. op., U.S. v. Olin Corp., 95-0526-BH-5 (S.D. Ala., May 20, 1996).
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ENVIRONMENTAL ENFORCEMENT 17
5. The Eighth Amendment: Excessive Fines, Cruel & Unusual Punishment
In 1984, Congress enacted the Comprehensive Crime Control Act, which established the U.S. Sentencing
Commission as "an independent commission in the judicial branch."57 The commission was created to set up
federal sentencing guidelines to narrow the disparity in sentences imposed on similar offenders for comparable
conduct,58 while still leaving judges with flexibility to impose individualized sentences according to the facts of
the case.59 Seven of its guidelines deal specifically with the environment.60
Each environmental guideline establishes a "base offense level" for a particular offense, and adjusts this in light
of whether the victim was known to be particularly vulnerable;61 whether the defendant played an organizing
role or was a minimal participant; whether the defendant abused a position of trust or used a special skill that
significantly facilitated the offense;62 whether the defendant has clearly demonstrated an acceptance of
responsibility;63 and other "specific offense characteristics. "64 The resulting offense level is plotted against the
defendant's criminal history on a "Sentencing Table," which gives a range from which the judge can select the
final sentence.
One of the main problems with the environmental sentencing guidelines is that in many cases, they come up with
sentences that are greater than the maximum allowed by the actual laws. This forces a court to sentence the
offender to the maximum penalty prescribed by the relevant statute .65 The sentencing guidelines almost always
impose a prison term, even for first-time offenders.66 When Congress came up with the range of sentences that
appears in the law, they were trying to assign different sentences to differently serious crimes; tying judges to
the maximum is irrational because it denies judges the flexibility that the sentencing guidelines were meant to
preserve.
The guidelines' base offense levels don't treat intentional and accidental violations differently. Nor do the
guidelines distinguish between misdemeanors and felonies , imposing the same sentence for both crimes. This
means that a sentence calculated under the guidelines may be appropriate if the crime is a felony, but may be
way out of line if it's a misdemeanor. For instance, under the guidelines, a private pesticide applicator who
violates FIFRA would get two to eight months of prison.67 Even the shortest guideline sentence is twice the
statutory maximum of 30 days . With the Clean Water Act, sentences tend to be just within the statutory
57 28 U.S.C. § 99 1 (a).
58 Sharp and Shen, "The (Mis)application of Sentencing Guidelines," p . 189.
59 18 U.S.C. § 3553(b ).
60 U.S. Sentencing Commission, Guidelines Manual,§§ 2Ql.1-2Q2.l (November 1989).
61 § 3A.l.
62 § 3B.l.
63 § 3E. l.
64 Sharp and Shen, "The (Mis)application of Sentencing Guidelines," p. 190.
65 Stanley Arkin, "Crime Against the Environment," New York Law Joumal,August 9, I 990, p. 23, cited in Coffee, "Does 'Unlawful'
Mean 'Criminal'?", p. 217.
66 Sharp and Shen, "The (Mis)application of Sentencing Guidelines," p. 190.
67 § 2Ql .2.
18 Reason Foundation
maximum range for felonies, and over the maximum for misdemeanors-whether or not the defendant had a
criminal history. 68
The guidelines also double-count violations. John Pozsgai, a self-employed truck mechanic, got the longest prison
sentence in U.S. history ever imposed for an environmental offense-27 months under § 2Ql.3, for putting
topsoil on some acres of his property which the government claimed was a wetland.69 Under the guidelines'
"points system," Pozsgai received70 6 points for the base offense of discharging a pollutant without a permit in
violation of 33 U.S.C. § 1311, 6 points for discharging the pollutant,71 and 4 points for not having the permit.72
This adds up to an offense level of 16, which, for a first-time offender, means a prison sentence of 21 to 27
months.73
Pozsgai's story has been a controversial one, and most of the facts in it are disputed. But even assuming that
he did everything he was accused of doing, his punishment was excessive, largely because the guidelines double-
counted his violations. As discussed earlier in this paper, a 27-month sentence is greater than the average first-
offense sentence for burglary/breaking and entering, and other average sentences for offenses committed by
criminals with extensive prior criminal history, including larceny, embezzlement, fraud, car theft, forgery or
counterfeiting, bribery, and escape.74
To avoid these problems, environmental sentencing guidelines should be in line with the sentences laid out in
the statute; ideally, the range given by the guidelines should be identical to the range in the statute. The
guidelines' contribution should be to help determine where in the range to set the sentence. As far as the statute
allows, the actual sentence chosen should be in line with sentences for other crimes that seem equally harmful.
The guidelines should distinguish between intentional and unintentional violations. They should also avoid
double-counting, whether by counting the same offense twice or by having harsher penalties for repetitive
violations which the statute already punishes.
V. SOME STEPS IN THE RIGHT DIRECTION
Recently, the EPA has begun to work with industry to develop alternative methods of complying with
environmental law. Working together with industry, EPA sheds its command and control posture and allows
industry and state and local government to devise achievable compliance strategies. The two main programs used
to achieve this are the Common Sense Initiative and Project XL. The Common Sense Initiative seeks to develop
comprehensive pollution prevention strategies for six specific industries: automobile assembly, electronics and
computers, iron and steel, metal painting and finishing, and petroleum refining and printing. Though broader in
scope, Project XL also seeks to find alternative compliance methods. The driving force behind Project XL,
68 Sharp and Shen, "The (Mis)application of Sentencing Guidelines," p. 190.
69 Toe details of Pozsgai's case are controversial, and opposing sides in the story give opposite stories. But these details aren't
important here; I'm only using the case as an example of the sentencing guidelines in action.
70 Much of the following discussion on sentencing guidelines is from a letter from Paul D. Kamenar to Judge William W. Wilkins,
Jr., chairman of the U.S. Sentencing Commission, re Modification of Part 2Q of the Guidelines, dated January 15, 1991.
71 Under§ 2Ql.3(b)(l)(A).
72 Under§ 2Ql.3(b)(4).
73 A note for purposes of comparison. Before the sentencing guidelines went into effect, people who were imprisoned were eligible
for parole after serving a third of their sentence; parole was usually granted. Under the sentencing guidelines, there is no parole.
This means that Pozsgai's 27-month sentence is the equivalent of an 81-month sentence before the guidelines.
74 Note that the environmental crimes here are federal, while the other crimes in the paragraph are state crimes. t
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ENVIRONMENTAL ENFORCEMENT 19
however, is that industry or a particular facility develops its own alternative environmental compliance strategies.
These pilot programs are models for a future cooperative relationship between industry and government.
The federal government has also enacted or is thinking of enacting other enforcement-related reforms:
• The Small Business Regulatory Enforcement Fairness Act, 75 signed in March 1996, addresses some of
the problems discussed in this paper as they relate to small business.
The act requires agencies to provide informal guidance to small businesses and to prepare "small entity
compliance guides," written in plain language.
The act also establishes a Small Business and Agriculture Regulatory Enforcement Ombudsman and
Regional Small Business Regulatory Fairness Boards to represent the interests of small businesses. It also
requires agencies to establish penalty-reduction programs for small businesses for certain types of
violations-provided that the business made a good faith effort to comply with the law and wasn't
already subject to multiple enforcement actions by the agency, and provided that the violations are
promptly fixed, don't involve.willful or criminal conduct, and don't pose health, safety, or environmental
threats.
Other portions of the act provide for attorney's fee awards to defendants in cases of unjust prosecution
by agencies, and require agencies to estimate the impact of proposed regulations on small businesses.
The Small Business Regulatory Enforcement Fairness Act is a bit of a blunt instrument for a delicate
task. The solution to confusing laws, for instance, may not be plain-English guides but, rather, simpler
laws. The act seeks to lighten the regulatory burden, without really asking whether, in any particular
case, lightening the burden, or reducing penalties, is appropriate. More fundamentally, by its exclusive
emphasis on small businesses, the law seems to treat the health of small businesses as the final goal; if
fairness in enforcement were the actual goal, these provisions would have been extended to all
businesses. Still, the act, overall, contains some valuable provisions and is a small step in the right
direction.
• The Comprehensive Regulatory Reform Act of 1995 (S . 343), considered by the Senate in Summer
1995, also addresses many of the concerns discussed in this paper. Section 709 of the act deals primarily
with "affirmative defenses" in which businesses would not be subject to penalties when an agency fails
to give fair warning as to prohibited conduct, especially when the regulated entity specifically relies on
guidance from the regulatory agency. It also precludes an agency from deferring to its own unpublished
interpretations ofregulations during enforcement actions. Effectively, this codifies judicial decisions such
as General Electric,76 which held that agency interpretations can only be applied prospectively. Though
S. 343 was defeated, the amendment containing section 709 passed 80-0 and received such bipartisan
support as that from Sen. Joe Biden (D-MA), who said, "I think the [regulated entity] should, as this
amendment suggests, be exempt from civil and criminal penalties ... if they violate a rule after having
been told by the rulemaker that it is O.K. to go ahead and do this."77
• At press time, the House of Representives was working on legislation similar to S. 343. The Regulatory
Fair Warning Act, H.R. 3077, has many of the same provisions as the Senate version, but is still in the
draft stages in committee. It, too, protects entities from unfair actions taken by regulatory agencies, and
gives some relief to the regulated community. Like S. 343, it deals not only with environmental law,
but with the full panoply of federal regulations.
75 Pub. L. No. 104-121.
76 General Electric Co. v. EPA, 53 F.3d 1324 (D.C. Cir. I 995).
77 141 Cong. Rec. S9982-84 (daily ed. July 14, 1995).
20 Reason Foundation
Many states have also adopted other environmental enforcement measures that avoid some of the pitfalls outlined
in this paper. The following are representative examples:
Many states have given qualified protection to environmental audits, to avoid the sort of problem that
Coors Brewing Co. had to deal with, as described earlier in this paper. Environmental audit privilege
laws are designed to avoid the problem of companies conducting voluntary audits, finding and fixing
problems they never knew existed (and wouldn't have known about but for the audit), and then being
fined by an environmental agency.
In Texas, for instance, audit reports are inadmissible as evidence and are not subject to discovery in
administrative, civil, or criminal actions; witnesses cannot be compelled to testify about the content of
an audit report; and government agents cannot demand audit reports during facility inspections. The
privilege is waived if the court determines that the privilege was sought for a fraudulent purpose, or if
the violations uncovered in the audit were not promptly fixed. The privilege also does not apply to
information that a company has to collect under federal or state law, information obtained by the
regulatory agency itself, or information obtained from a source not involved in the preparation of the
audit report. Individuals who voluntarily disclose previously unknown violations uncovered in an audit
are immune from administrative, civil, or criminal penalties, as long as the disclosure is made promptly,
the problem is fixed within a reasonable time, the individual cooperates with the agency, and the
violation caused no harm to third parties. This immunity does not apply if the individual who disclosed
the violation also had intentionally committed it and under other circumstances.78
Seventeen states-Arkansas, Colorado, Idaho, Illinois, Indiana, Kansas, Kentucky, Michigan, Minnesota,
Mississippi, New Hampshire, Oregon, South Dakota, Texas, Utah, Virginia, and Wyoming-have audit
privilege laws, and bills are pending in most other states. Supporters maintain that these laws, if
carefully drafted, will encourage companies to learn about previously unknown environmental
violations-and that as long as the privilege only applies if the violations are promptly reported and
corrected, companies will be more likely to comply voluntarily with environmental regulations. Critics
of such legislation counter that audit laws can protect willful violators of the law from the consequences
of their actions; some critics are concerned about the very principle of letting any firm that exceeds its
permits escape fines and penalties, and oppose audit privilege laws on those grounds. The EPA,
concerned about the effect of audit privilege laws on its power to punish noncompliant firms, objects
to some of these laws, but has supported modest audit protection provisions.
• Massachusetts is moving toward a "self-certification" program for certain permitted businesses. Under
the "Environmental Results Program," companies need to commit to a certain standard of environmental
performance, and report or "certify" annually their compliance with these standards. The Massachusetts
Department of Environmental Protection (DEP), in return, will increase compliance information, do more
inspections and audits, and step up enforcement against violators . Companies that self-certify will not
have to obtain thousands of low-risk permits.
By the end of 1996, the DEP expects 70 percent of all companies that now require state permits to shift
to performance-based, facility-wide self-certification, eliminating many low-risk permits. The number
of facilities involved could be greater if the U.S. EPA allows the DEP to treat federal permits in the
same way. Some enforcement will be suspended for state permits that are, essentially, replaced by the
compliance self-certifications.79
• The California EPA has set up a permit consolidation system. When a permit applicant needs permits
from more than one environmental agency, Cal/EPA can designate one of the agencies to coordinate all
78 Texas House Bill 2473, 74th Legislature (1995).
79 Massachusetts Department of Environmental Protection, "The Environmental Results Program: The Promise of Performance,"
Fact Sheet.
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ENVIRONMENTAL ENFORCEMENT 21
the required permit decisions. A single consolidated permit is issued incorporating the individual permits.
All decisions are made according to a set, negotiated time line; when deadlines are violated without good
cause, the applicant can appeal to Cal/EPA. The consolidated permit agency works with the other
participating permit agencies to resolve any disputes and keep the process on time.80
• Through its "Clean Break" program, the Illinois EPA is giving small businesses amnesty from fines if
they work with state officials to comply with environmental laws. The program allows businesses with
200 or fewer employees to anonymously learn from the Illinois EPA what steps are needed to comply
with environmental regulations. Amnesty is excluded for violations that "pose a substantial and imminent
danger to public health or the environment," violations previously known to the Illinois EPA or
discovered through routine inspections or citizens' complaints, felony violations, or any deliberate acts.81
VI. CONCLUSION
"The science of legislation is like that of medicine in one respect: that it is far more easy to
point out what will do harm than what will do good. "
-Charles Caleb Colton, Lacon (1825)
The numbers of cases filed , penalties collected, and years of imprisonment obtain_ed are largely irrelevant to
measuring the success of the environmental enforcement program. One would think, from the fact that these
figures climb year-by-year, that American business is becoming increasingly more lawless and disdainful of
environmental protection. Yet the opposite is actually true. Year by year, American businesses improve their
environmental record and spend more on environmental protection than in any previous year. What these
statistics prove is that the environmental enforcement program is pushing the margins of judicial deference,
regulatory interpretation, and strict liability, to achieve essentially meaningless results of greater penalties and
more convictions. Environmental enforcement is responding to the first principle of any government bureaucracy:
bigger budgets and more employees. New measures of success must be found.
There is no one way to achieve effective and fair environmental enforcement; reality is complicated. The
principles to keep in mind, though, are relatively simple. To be effective, an enforcement regime must:
• be clear in what it mandates and prohibits;
• be predictable in how it punishes violations of the regulations, and rely where possible on cooperative,
problem-solving approaches; and,
• seek environmental improvement, not numerical enforcement targets.
And to be fair, an enforcement regime must:
reserve criminal penalties for the morally blameworthy, and punish others with civil or administrative
penalties;
• restore specific criminal intent as a necessary condition of a criminal prosecution, and only punish those
who are truly responsible for the criminal acts; and,
• respect the Bill of Rights.
8° California Environmental Protection Agency, "Environmental Permit Certainty: (1) Decision Time Limits & (2) Consolidated
Permits," Fact Sheet, September 1995.
81 "Illinois State Agency Unveils Small Business Amnesty Program," BNA State Environment Daily, April 26, 1995; "Small
Businesses Encouraged to Make 'Clean Break' with Polluting Practices," Illinois Environmental Law Letter, May 1994, vol. 4,
issue 2; "Polluters Offered Amnesty from Fines," Chicago Tribune, November 11, 1995, p. 5.
22 Reason Foundation
Reforms based on these principles would make environmental enforcement more predictable for businesses and
more cost-effective for governments. Environmentalists would benefit from these reforms, because a misguided
enforcement regime that leads to unjustified punishments is, after all, bad press. The environment need not suffer
as a result, and would, in fact, probably improve as the government starts to send a clearer and more consistent
deterrent message. Most importantly, these reforms would make environmental enforcement more fair for all
concerned.
ABOUT THE AUTHORS
Alexander Volokh is assistant policy analyst at the Reason Foundation. He is the author of the Reason
Foundation's !_Jolicy series, Recycling and Deregulation: Opportunities for Market Development. Volokh's
expertise includes environmental risk assessment, solid waste management, environmental law, natural resources,
commercial speech, and medical drug and device regulation. Before joining the Reason Foundation, Mr. Volokh
worked in the Competitive Enterprise Institute's Free Market Legal Program.
Roger J. Marzulla, P. C. heads the environmental section of the Washington office of Akin, Gump, Strauss, Hauer
& Feld, L.L.P. A nationally recognized authority on environmental law, Mr. Marzulla specializes in
environmental enforcement litigation, regulatory compliance, environmental crime, natural resources law, and
environmental policy and legislation. Before joining Akin, Gump, Mr. Marzulla served as an Assistant Attorney
General in charge of Environmental and Natural Resources division of the U.S. Justice Department.
t