Crimes Against Nature

The new vice crusade is turning Justice upside down.

Rick Henderson from the December 1993 issue

(Page 3 of 5)

Consider Robert Wells, a vice president of North American. Philips, who was indicted on criminal charges for illegally disposing of a RCRA hazardous waste. An employee of the Louisiana Department of Environmental Quality (LADEQ) saw 12 barrels by a roadside. The barrels contained two chemicals that are listed as hazardous wastes; since there were no labels that indicated who owned the barrels, the LADEQ employee tried to contact the five companies that manufactured those chemicals. Attorney Thomas C. Green, who represented Wells, says three of the companies were out of business and the person the LADEQ employee contacted at the fourth company told the regulator to get lost.

The regulator finally reached Wells, who was closing the books on Than, a former subsidiary of Philips that manufactured pesticides. The regulator called Wells at the Philips office in Kansas City, told him he had found 12 barrels of Than’s "product," and asked Wells to take care of it. The LADEQ employee never told Wells what was in the barrels.

Green says Wells assumed the regulator was in fact describing materials that belonged to Than. Wells asked a Philips environmental consultant who worked in Pennsylvania to see if the barrels belonged to Than, and if so, to properly dispose of them. This consultant called ChemWaste, the company that normally handled waste disposal for Than, and told ChemWaste to pick up the barrels and dispose of whatever was in them. (It turns out that the barrels did not belong to Than.

Without telling Wells what they were doing, two ChemWaste employees collected the drums, took them to a mini-warehouse they rented, left them there, and sent Wells a bill. The stuff inside the barrels eventually started to smell; the odor tipped off neighbors, who asked law-enforcement agents to investigate. Wells, the LADEQ regulator, and the ChemWaste employees were charged with unlawfully storing a RCRA hazardous waste. (The regulator and ChemWaste employees were also charged with disposing of and engaging in a conspiracy to dispose of the wastes.)

As a responsible corporate officer, Wells was charged with criminal liability for storing the wastes, even though he was never told what was in the barrels, he did not know what the ChemWaste employees did with the materials inside, and the responsible corporate officer doctrine does not apply in RCRA cases. Wells was acquitted (the other three defendants weren’t), but Green says it was clear the government viewed a vice president of a huge multinational corporation as a juicy plum for environmental prosecutors to pick.

Even people who, like Wells, are found innocent have to pay for their alleged "crimes"–in time, reputation, anxiety, and cold, hard cash. Fighting such charges is both difficult and expensive. Oklahoma criminal-defense attorney Jerry McCombs estimates a competent environmental defense will cost between $250,000 and $500,000. The federal government will often spend that much or more to prosecute. In U.S. v. Goodner, a RCRA case involving the operator of an aircraft painting and repair shop, McCombs says Junior Goodner spent $300,000 to have his conviction overturned on appeal. The feds said they spent more than $468,000 on their prosecution.

Despite the cost, some defendants can’t afford not to fight. Consider the case of James A. and Mary Ann Moseley, Missouri farmers who were accused of violating the Clean Water Act. They had built a levee to prevent their farm from flooding. Two weeks before their trial started in 1991, the Moseleys were prepared to settle with the government. But prosecutors sought a criminal fine of $25,000 for each day the levee was in place; by then, the fines totaled more than $14 million. So the Moseleys hired John Arens, a Fayetteville, Arkansas, attorney who often represents farmers in wetlands cases.

During the Moseleys’ trial, Arens asked a wetlands expert what might happen if the Moseleys decided to have a picnic near the levee and play some softball. Imagine the judge steps up to bat, Arens said, and knocks some dirt from his shoes back onto the field. Would this technically violate the Clean Water Act? The expert said yes.

As the jury deliberated, members asked the judge for copies of the "wetlands law." When all he could come up with were regulatory interpretations and a copy of the Clean Water Act, the jury voted to acquit.

Arens says "dirt-on-dirt" wetlands prosecutions such as the Moseley case are easy to beat, in part because they hinge solely on regulatory interpretations. A bigger challenge is keeping clients who indeed have violated environmental statutes out of prison. "The biggest epidemic [in prosecutions] now is settlement," he says. Prosecutors "will scare [defendants] to death– $25,000 a day fine and five years in prison–and you did [violate] the law. Sure [you’11] make a deal. That’s what’s wrong with the system."

Still, the Justice Department finds it harder to put people away for environmental offenses than for more traditional crimes. An internal DOJ memo shows that, from fiscal year 1983 (when the Environmental Crimes Unit began) through fiscal year 1991, the federal government had either negotiated guilty pleas or had won convictions at trial in 78 percent of its environmental cases. This ranks considerably lower than the 90percent success rate the department considers "acceptable" for its criminal prosecutions. The conviction numbers suggest that prosecutors are bringing environmental charges even when the evidence is somewhat slim.

But some liberals in Congress argue that the federal government has severely underprosecuted environmental crimes. Early last year, a House oversight committee chaired by Rep. John Dingell (D-Mich.) launched an investigation of the Justice Department’s environmental prosecution record. And at the behest of Rep. Charles Schumer (D-N.Y.), chairman of the House Subcommittee on Crime and Criminal Justice, George Washington University law professor Jonathan Turley issued a preliminary study on DOJ’s environmental prosecutions last October.

This 160-page rhetorical letter bomb claimed to find, among other things, "a marked reluctance within the [Environmental Crimes Section at DOJ] to prosecute environmental crimes to the same degree as more conventional crimes"; "chronic shortages in funding and support of criminal environmental investigations and prosecutions"; and "possible political influence in both individual cases and general policies within the Environmental Crimes Section." While the number of environmental indictments jumped from 40 in 1983 to 125 in 1991, the report continues, "this remains a low number of prosecutions, given the 94 U.S. Attorneys offices capable of being environmental prosecutions [sic]."

The report is packed with innuendo, using unnamed sources to criticize individual prosecutors and treating persons with an ax to grind as disinterested observers. For instance, the report discusses six cases in which Justice refused to pursue criminal charges against defendants. In one pesticide case the report cites, Turley’s principal sources are suing the manufacturer for wrongful death.

The study claims its "investigators" (who were Turley’s law students) "were instructed to...interview every critical party in federal prosecutions." Except, apparently, officials at DOJ. Last December, DOJ spokeswoman Melissa Burns told me the department first learned of the study the day it was released.