How EPA Has Taken the Environment Out of Environmental Enforcement: an exclusive interview with Roger Marzulla

Published September 1, 1998

Roger Marzulla is a partner in the Washington, DC law firm of Marzulla & Marzulla, specializing in environmental law and property rights. He also serves as chairman of the Board of Directors of Defenders of Property Rights, the nation’s only public interest law firm dedicated exclusively to the protection of constitutionally guaranteed rights in property.

During the Reagan Administration Marzulla served as head of the U.S. Justice Department’s Land and Natural Resources Division, with responsibility for all civil and criminal enforcement of federal environmental laws. He was the chief architect of the takings executive order signed by President Reagan in 1988. He is coauthor, with his wife Nancie, of the book Property Rights: Understanding Government Takings and Environmental Regulation, published last year.

Cohen: How would you assess the state of environmental enforcement in the United States today?

Marzulla: I would ask a different question first: Is the quality of the environment better today than it was in 1980, when we began implementing the environmental laws in earnest? The answer is undoubtedly “yes.” The air is cleaner, the water far purer, and risks from toxic and hazardous wastes reduced to almost zero.

Companies spend billions of dollars a year to reduce pollution, and millions of Americans work hard every day to protect wetlands, wildlife, open space, historic sites, and streams. Yet, every year the federal government brings thousands of administrative and judicial suits against American citizens, seeking hundreds of millions of dollars in fines and hundreds of years of prison time in federal penitentiaries. Each year, the Justice Department and EPA proudly announce that they have convicted more and more Americans of violations of the environmental laws.

From the fanfare, you might think there is an epidemic of environmental lawlessness sweeping the country. After all, if your local police department announced more and more arrests for drug dealing and murder, you would think things are getting pretty bad.

But in the world of environmental enforcement, the current philosophy seems to be that more is better–that is, putting more ordinary citizens behind bars and assessing multi-million-dollar penalties against American corporations is a good thing, worthy of still greater funding from Congress to hire more investigators and prosecutors so that more prosecutions can be brought. Like the enchanted broomsticks in the story of the Sorcerer’s Apprentice, the environmental enforcement program has gotten completely out of control.

Cohen: Does the current system adequately differentiate between violations that actually harm the environment, and violations of a more clerical nature?

Marzulla: We have created an enforcement spiral, in which more and more prosecutors and investigators are hired each year to chase fewer and fewer legitimate environmental cases. The result is that they are forced to seize upon technical and paperwork violations that have no real effect upon the environment, but do technically violate the thousands of pages of complex environmental regulations currently on the books.

Even worse, because these technical and paperwork cases are more easily proved, the tough cases–Mafia bosses dumping dangerous chemicals into streams or landfills–tend to be ignored in the race to generate statistics that show EPA and the Justice Department are bringing more cases each year.

The tragic result is that hundreds of ordinary Americans, who have never intentionally violated any law, are swept into lawsuits and even criminal prosecutions that can put them behind bars. The enforcement program badly needs an overhaul to require enforcers to focus on the hard cases and bad actors, rather than the ordinary citizen who happens to have unwittingly transgressed some hyper-technical regulation or made a mistake in filling out some form.

Cohen: EPA and the Department of Justice seem to be more interested in racking up fines than ensuring that bad actors are punished and that air and water remain clean.

Marzulla: The enforcement bureaucracy–thousands of armed EPA investigators, technicians, lawyers, and Justice Department prosecutors–has become completely disconnected from EPA environmental programs.

While EPA Administrator Carol Browner and Vice President Al Gore are creating programs and partnerships that rely on private initiative to improve environmental quality, the Office of Enforcement is prosecuting many of those very same “partners” for technical violations that have no effect whatever on the environment.

Even as government is admitting the failure of a strict command-and-control system run by a Washington bureaucracy, the prosecutors are tightening their grip by prosecuting increasingly hyper-technical violations and interpretations of regulations in an effort to prove that ordinary Americans are environmental lawbreakers.

I have long advocated that environmental prosecutions be measured against a standard before they are brought–specifically, that a case not be brought if it does not advance the goal of improving environmental quality. The Justice Department and EPA’s Office of Enforcement have rejected that idea. Unfortunately, the result is that foolish and often very expensive regulations are complied with to the letter–even where (as often happens) there is a much better and cheaper way of protecting the environment.

The bottom line is that we have less environmental protection at greater cost, because doing the right thing, the most effective thing, may actually be prohibited under the technical regulations and how they are interpreted by the prosecutors.

Cohen: Should more responsibility for the enforcement of environmental statutes be shifted to state environmental agencies?

Marzulla: Most states now have sophisticated environmental protection programs. Because they are run locally, those programs are much more effective and efficient than command-and-control programs run from EPA’s offices in Washington. Even the federal government admits this. The principal obstacle to shifting power to the states is the reluctance of federal bureaucrats who now hold power to give it up.

When they are freed of the straitjacket of federal over-regulation, states not only do a better job of protecting air and water, but they are able to integrate environmental protection with economic development, transportation, housing, and community development. EPA can’t do that.

In fact, the way the federal environmental laws are set up, EPA is often required to oppose projects that would not only benefit the state and community, but would improve the environment in the process by building ecological concepts into the facilities and plans from the beginning. It is a lot easier to avoid environmental problems at the design stage, but federal laws often prohibit simple solutions that would minimize waste and pollution by avoiding its creation in the first place.

Cohen: Increasingly, state environmental agencies are adopting various voluntary self-audit programs as a way of encouraging compliance. EPA has not exactly greeted the initiatives with open arms. What is your perspective?

Marzulla: Environmental audits–that is, allowing companies, farms, and cities to review their operations and prepare plans for simple and efficient ways of decreasing pollution–are the best way of encouraging environmental stewardship. But EPA enforcers want to use the results of self-audits as a “confession” to prove violations of federal regulations.

Recognizing that companies simply will not do audits that are going to be used against them, many states have adopted “audit privilege” laws that prohibit the use of audit results in a prosecution. EPA is adamantly opposed to audit privilege and has threatened sanctions against states that enact such laws.

The audit privilege debate underscores the difference in approach between the states and the federal government. The states are looking for straightforward approaches that advance environmental quality, and they assume that most Americans are law-abiding and committed to protecting our natural resources.

EPA and the Justice Department, on the other hand, start with the assumption that everyone is a potential polluter and, given half a chance, will violate the environmental laws and befoul our country. As Janet Reno’s chief environmental enforcement officer said recently, “We plainly think that enforcement is what drives getting clean air, and clean water, and clean land.”

Cohen: Do you consider voluntary self-audits a good idea?

Marzulla: Self-audit and voluntary compliance are the only way to keep the environment healthy. If the bureaucrats at EPA are right–and everybody in America really wants to contaminate our water and air–no federal program is going to stop it. But Americans are a law-abiding people who, moreover, don’t want polluted air or water.

EPA enforcers, like the holdover KGB hard-liners in Moscow, are completely out of step with what is going on in the country. Ironically, by insisting on punctilious compliance with mind-numbingly complicated regulations under threat of fine or imprisonment, they force people to forego environmental protection measures that are better than the ones drafted 15 or 20 years ago in Washington. You wouldn’t use a 20-year-old manual to operate your new car or computer–so why use outmoded rules that have little to do with modern processes and technologies?

Cohen: For years, property owners have complained that the federal government is “taking” their land by depriving them of the economic use of their property through enforcement of wetlands regulations and the Endangered Species Act (ESA). Do they have legitimate Constitutional complaints?

Marzulla: The wetlands and endangered species programs have become federal land-use control regulations of massive proportions–far beyond their original purposes. Over 100 million acres of private land is classified as “wetland” and cannot be used at all without the permission of the federal government, and similar vast areas are now being set aside for “endangered species habitat.”

Like most federal programs, there is tremendous waste in these efforts, since much of the “wetland” and “habitat” really has no environmental benefit whatever. Yet American citizens are routinely prosecuted and even put into federal prison for regulatory infractions of these and other programs. This is not only shameful and unjust–it is unconstitutional.

Our Constitution guarantees that private property will not be taken by the government without just compensation. So federal regulators try to get around that constitutional right by claiming to be “regulating” rather than taking the property. From the point of view of the property owner, however, it matters little whether his land is formally taken for a wildlife refuge or wetland preserve, or whether he is prohibited from disturbing the land under threat of fine or imprisonment.

Fortunately, the Supreme Court has begun to enforce this constitutional right to property. In the last ten years, the Court has decided almost a dozen important property rights cases–and the property owner has won virtually every time. The question now is whether federal officials will obey the Supreme Court or continue their violation of constitutional property rights.

Cohen: What can be done to stop such takings?

Marzulla: First, the landowner must know and understand his rights–and be willing to stand up for them. Second, he can support the many property rights bills that are introduced in Congress each year–but that have so far been defeated by the Administration and environmental special interest groups.

At present, the courts seem to be the only avenue of redress for the property owner. You can sue the federal government for unconstitutional takings of property in the U.S. Court of Federal Claims in Washington, DC. Landowners have obtained substantial judgments for takings from this court.

Cohen: By targeting landowners in mostly rural areas, federal bureaucrats are dealing with people who, almost without exception, lack the financial resources to defend themselves in court. Aside from changing the law–which does not appear to be a realistic short-term political option–what can be done to help the small landowner?

Marzulla: In 1991, my wife, Nancie, and I founded Defenders of Property Rights as the nation’s only nonprofit law firm dedicated exclusively to the protection of constitutionally guaranteed rights in property. The mission of Defenders is to help small landowners fight for their constitutional rights.

If you need such help, contact Defenders of Property Rights; if you want to support the vital work of Defenders, send a contribution and become a member. The address is:

Defenders of Property Rights 1350 Connecticut Avenue NW Suite 410 Washington, DC 20036 Phone 301/822-6770 Fax 301/822-6774 email [email protected]

Cohen: Do Americans fully appreciate the extent to which their liberties are being denied them by the abuses their own government regularly practices? What can be done to make them aware of what is going on?

Marzulla: Almost every day I talk to someone who says he can’t believe that federal regulators are threatening or prosecuting him, and that he had no idea this was happening in America. You can’t solve a problem until people become aware of it, and are convinced that it needs fixing.

Make no mistake about it, our constitutional liberties are under siege by federal enforcers who firmly believe that the government has the right to tell you what you can do with your home, farm, factory, or land. They believe they are saving the environment from you, and the law gives them powerful weapons to force you to comply with their demands.

We are in the midst of a battle of ideas in which the Constitution is on our side, but the money, the media, and the prosecutors are on theirs. It is anyone’s guess who will win.

If we lose some of our constitutional rights, then all of those rights are in jeopardy. If the government can take your home, your retirement account, or your livelihood with impunity, it can force you to give up your right to speak, think, and move freely. And that, after all, is what America is all about.

As Arthur Schlesinger recently wrote: “Democracy is impossible without private ownership because private property–the ownership of resources beyond the arbitrary reach of the state–provides the only basis for political opposition and intellectual freedom.”