Earth Day 1998: Coalition Demands that EPA Punish Real Polluters, Not Paperwork Errors

Published June 1, 1998

At a Washington, DC Earth Day briefing on April 22, a coalition of groups led by the National Center for Policy and CREA (???) called on the federal government to ease the environmental regulatory burden on American citizens and businesses.

“It’s not easy being green,” noted Angela Antonelli of The Heritage Foundation, “because environmental laws, regulations, and guidances are today worse than the U.S. Tax Code in terms of their invasiveness, burdensomeness, and reach into the activities of businesses and individuals.”

Just as the current tax system creates huge incentives to avoid, not pay, taxes, so too does the regulatory regime discourage protection of the environment. Increasingly, reported Antonelli, the incentives today are to avoid complying with environmental laws, rules, and regulations–not to do the things that would protect the environment.

Today’s employers, large and small alike, must “find the rules, read the rules, interpret the rules, comply with the rules, and compete the paperwork just to keep their doors open,” complained Antonelli.

Between April 1, 1996 and December 31, 1997, the Environmental Protection Agency–just one regulatory agency out of more than 50 such agencies–issued 519 final rules. Five of those rules have annual costs that exceed $100 million. The costs for complying with just one of those rules has been estimated at between $60 and $150 billion annually. In the past two years, the environmental regulatory tax already has increased about $1,000 per household.

Between April 1, 1996 and December 31, 1997, federal regulatory agencies issued 7,000 different rules. U.S. citizens and businesses are expected to know which of the 7,000 apply to them, and to comply with all that do.

The federal regulators’ one-size-fits-all, command-and-control, unbending approach to the enforcement of environmental regulations applies to very real people, who in general work hard and try to do the right thing every day. The good guys are the norm, not the exception.

Look Out IRS, Here Comes EPA

While winding down their investigations into IRS abuses, Congress and the President seem content to watch EPA put in place even more outrageous enforcement policies of their own. Antonellie warned that the agency is poised to take the IRS’ place as America’s most feared enforcer.

“If you’re a homeowner, don’t wash your car in the driveway, where suds might escape into a storm sewer. If you’re a trucker, don’t dump stale coffee from your thermos over the side of bridge into a stream. Either action could result in very harsh penalties–regardless of whether there was any environmental risk or effect, and regardless of whether you had any idea that such innocent-seeming activities are regulated.”

In Florida in 1994, federal officials sought to impose criminal liability on an individual for seepage of landfill leachate and runoff in storm water adjacent to a river. In court, the officials could not meet several elements of its burden of proof, including showing that the leachate was a pollutant. The evidence presented at trial revealed that the defendant had applied for a discharge permit, but EPA never acted on the application, and in fact purposefully failed to inform the defendant of required paperwork.

Although the homeowner was cleared of all charges, his acquittal came at great personal cost. He was dismissed from his job as a consequence of the indictment and had to sell his house to fund his defense.

Antonelli reported other examples. In Detroit, a licensed seller of freon advertised his product in a local newspaper. EPA learned of the ad and sent an FBI undercover informant to purchase four cases of freon from the seller. The seller was promptly arrested, accused of failing to verify whether the buyer was properly trained and certified to buy freon. He was prosecuted and is now serving a 15-month federal prison term on a felony conviction.

“I don’t care about being nice,” the compliance division chief for the California Air Resources Board recently noted. “I care about getting people to comply, and I will use whatever it takes.”

Despite the ever-improving environmental performance of individuals and U.S. businesses, and despite the significant improvements in environmental quality that this country has witnessed over the past 25 years, the federal government continues to pursue a strategy of criminalizing environmental statutes. Cases that once would have been confined to civil courts have become criminal matters, and misdemeanor cases have become felonies. Americans today have more incentives to avoid “getting caught” than they have to be effective stewards of their environment.

A Better Approach

Antonelli and other speakers at the April 22 briefing–including WHO?–offered hope that enforcement of environmental regulations could be re-directed, toward identifying the most serious environmental risks and targeting enforcement efforts at the offenders whose abuses result in the greatest damage to the environment. They called state and local officials, rather than those at the federal level, to assume the responsibility for evaluating environmental hazards and prioritizing efforts.

“State and local communities have a proven track record of innovative solutions to environmental problems,” noted Antonelli. “The notion that leaving such responsibilities to the states would result in a race to the bottom is ridiculous. Over the past 25 years states have come up with innovative solutions to environmental problems, including state audit laws, streamlined permitting processes, and revitalizing brownfields.”

Regulators should also encourage corporate self-assessments or environmental self-audits, offering qualified immunity where appropriate for voluntary disclosures. “It is simply unconscionable,” said Antonelli, “that EPA and this Administration are taking aggressive steps to strong arm states from passing audit bills–bills that would encourage businesses to voluntarily identify problems and take steps to correct them without the fear of severe fines and penalties for trying to do the right thing.”

Most importantly, the briefing speakers agreed, EPA should not be allowed to reward the pursuit of enforcement for enforcement’s sake. The success of EPA’s environmental protection efforts should be measured by the agency’s ability to encourage environmentally friendly behavior and pursue the truly serious environment violations that pose real risks–not by its ability to chase after a lot of easy, too often inadvertent, violations of laws and rules that pose little danger to anyone or the environment.