In 1987 Charles Donahoo’s company, Charlie’s Wrecking and Salvage Inc., demolished a plastics plant, releasing one pound of asbestos fibers from insulation into the at mosphere. In 1989 Donahoo made history. For not telling regulators about the pound of fibers, he became the first person convicted of a felony under the Comprehensive Environmental Response, Compensation, and Liability Act, better known as Superfund. He was sentenced to three years in prison for that crime, plus another year under the 1970 Clean Air Act.
But Donahoo was lucky. The judge reduced his prison term to six months with three years of probation and fined him only $75. Had he been convicted a few months later, such leniency would have been impossible. In 1989 the U.S. Supreme Court upheld the authority of the U.S. Sentencing Commission to impose mandatory prison terms for what judges once regarded as regulatory infractions. If the commission’s guidelines on environmental crimes had been in place when Donahoo was convicted, he would still be in prison today.
Donahoo’s story, though particularly egregious, is not an isolated case. While most of the country was focused on the war on drugs, the Bush administration was creating a more lasting legacy, a new category of vice crime: the environmental offense. Like laws against drug use or prostitution, environmental prosecutions are meant not to protect persons or property but to send a message about values. So environmental-law enforcers are subject to continuing pressure to up the ante, to send a stronger message through more arrests and prosecutions, stiffer penalties, an a wider range of crimes.
Traditional criminal laws can punish deliberate actions to harm persons or property, such as poisoning a water supply or dumping debris on someone else’s land. Civil codes can require cleanups and monetary damages in accident cases. But neither category of traditional law pays homage to green values. As then- Attorney General Richard Thornburgh told the annual meeting of the National District Attorneys Association in 1989, "A polluter is a criminal who has violated the rights and the sanctity of a living thing–the largest living organism in the known universe–the earth’s environment."
By defining all pollution as a crime, Thornburgh’s speech marked a turning point. Environmental law was (and still is) a highly technical, jargon-filled field, more akin to tax or insurance law than homicide or robbery prosecution. The goal, until recently, was to deter polluters and clean up messes in the most efficient possible way.
Indeed, when University of California-Irvine law professor
Joseph DiMento surveyed state and federal law enforcers for a 1986
book on environmental compliance, more than half "reported that
when criminal sanctions are available [in environ mental cases]
the enforcer does not pursue them." DiMento concluded,
"Successful careers in the law will only rarely be made from pursuing pollution control criminals."
But today Thornburgh’s attitude is widely shared by both politicians and the general public. "Judges [considering an environmental prosecution] once asked, ‘Is this a criminal case?"‘ says Joseph G. (Jerry) Block, the head of the Justice Department’s Environmental Crimes Section from 1988 to 1991. "That’s different now. Their attitude is, ‘Kill the bastards.’ "
Although the Environmental Protection Agency hired its first criminal investigators in 1982, criminal prosecutions remained limited to unusual cases until the Bush administration. In fiscal 1983, 40 federal environmental criminal indictments were handed down. All led to plea bargains convictions, with penalties totaling $341,000 and five years prison time. By fiscal year 1992, however, the number of cases had increased five-fold–to 191 criminal indictments leading to 104 pleas or convictions, $163 million in criminal fines, and 3 years of prison time. Justice Department statistics show that 9 percent of all the fines and penalties ever imposed and 69 percent of the actual prison time that will be served for environmental crimes were handed down from fiscal 1989 through 1992.
Over the next few years, we can expect the number of criminal prosecutions in environmental cases to grow dramatically. In November 1990 Congress, with the blessing of the Bush administration, voted to increase the number of criminal investigator inside the EPA from 60 to 250 by 1995. Attorney Judson Starr who became the first head of the Justice Department’s Environmental Crimes Section in 1987, says the numbers game alone mandates that "Bush’s ceiling [on criminal prosecutions] has be come Clinton’s floor."
Nor are federal prosecutors alone. State and local law enforcers are putting an increasing number of business operators, environmental compliance officers, and landowners behind bars when they violate environmental laws. At every level of government, individuals who previously would have faced fines or probation are going to prison–often for transgressing technical rules that, says one former federal prosecutor, "virtually anyone in the construction business will violate." When everyone is guilty, prosecution becomes arbitrary, giving the government nearly unlimited power. Consider these targets of the new vice squads:
• Nevada rancher Wayne Hage faces a potential five-year sentence under the Clean Water Act for "redirecting streams" by hiring someone to clear scrub brush from irrigation ditches on his property. The ditches have been in use since the turn of the century.
• Todd Ross Shumway, an Arizona construction worker, received 18 months in state prison for dumping two loads of construction debris in the desert. A state environmental regulator said the debris wasn’t hazardous waste but "a lot of sheet rock, some metal, wood boxes, and broken brick and tile."
• Rich Savwoir, owner of the US 1 Auto Parts Store in Bethpage, New Jersey, faces a one-year prisod term and a $10,000 fine because he didn’t post a sign stating that his store accepts waste motor oil for recycling. Savwoir says that on the day in question the sign was down because a window-washer was working on the store. The state Department of Environmental Conservation says Savwoir’s arrest in April was the agency’s first attempt to enforce the law, which took effect January 1, 1992.
• Harvey Van Fossan of Springfield, Illinois, was convicted in 1989 of violating the Migratory Bird Treaty Act, fined $450, and given three years of probation. Ordered by city officials to get rid of the pigeons that were creating a nuisance on a vacant lot near his home, Van Fossan had killed two common grackles and two mourning doves with strychnine-laced corn. A neighbor sent the dead birds to the Smithsonian Institution, and after an autopsy, local officials decided to prosecute. (Under the treaty, shooting birds is OK; poisoning them isn’t.) The prosecutor declared this "one of the most important cases" in his office–even though there are more than 400 million such birds in North America. Like Donahoo, Van Fossan was convicted before the Sentencing Commission’s guidelines took effect. As he upheld the conviction on appeal, Judge Frank Easterbrook of the Court of Appeals for the Seventh Circuit noted that, under the guidelines, Van Fossan could have been fined as much as $5,000 and sentenced to six months in jail. "Van Fossan should count himself lucky," wrote Easterbrook.
Unlike drug use or prostitution, environmental crimes can take place inadvertently, as a side effect of normal productive activities. Indeed, in a recent national survey of more than 200 corporate general counsels by The National Law Journal and Arthur Andersen Environmental Services, only 30 percent of the attorneys said they believed that full compliance with all state and federal environmental laws is even possible. Two-thirds said their companies had at some time in the past year violated some environmental regulation.