Unnatural Acts

Rick Henderson's article on the increasing size and scope of the government's environmental-crimes enforcement program ("Crimes Against Nature," Dec.) shed much-needed light on an important subject. He neglected, however, to point out how this enforcement explosion is subverting constitutionally protected property rights.

Criminal statutes for environmental offenses were meant to stop midnight dumpers and others who threaten the public health. Overzealous prosecutors are instead prosecuting people for acts protect-ed by the Fifth Amendment. In Lucas v. South Carolina Coastal Council, the U.S. Supreme Court ruled that an owner has the right to use his property so long as the public is not harmed. Not only do many recent wetlands prosecutions fail to prove any harm to the public or the environment, they utterly ignore the constitutional rights of an owner to use his property.

Courts have long recognized the Bill of Rights as an affirmative limit on criminal law. Where purportedly criminal activity is protected by the Bill of Rights, a prosecution for engaging in that constitutionally protected activity must fail. Under the First Amendment, one cannot be prosecuted for engaging in constitutionally protected free speech without a permit, even where the law purports to require one. The same should be true under the Fifth Amendment for permit requirements regarding the constitutionally protected use of private property.

In the case of wetlands violations, people are being prosecuted and sent to jail for using their property without a permit. But the government could not have constitutionally forbidden the wetlands disturbance without paying just compensation. Bill Ellen never sought a permit to fill any wetlands, because he never intended to disturb any wetlands, and the purported wetlands that he did disturb were so minimal and marginal that no impact of any kind could be shown by the government. In the case of Ocie and Carey Mills, a father and son building a family home in Florida who were jailed for 21 months for wetlands violations on their privately owned lots, a subsequent court ruled that the "wetland" they disturbed probably was not a wetland at all.

In short, the government is now in the business of sending people to jail for harming nothing. The theory under which these cases are prosecuted--a vague notion about the rights of marshes and trees--leads to the violation of the constitutional rights of humans.

Nancie G. Marzulla
President and Chief Legal Counsel
Defenders of Property Rights
Washington, DC

Your most interesting and persuasive article on the absurdity of certain EPA actions raises a question: Is it likely that someone will go to prison for five years for clearing brush from irrigation ditches? I cannot imagine that the EPA fanatics are that fanatical.

An article in the November issue of The Washington Monthly suggests that the story behind the Bill Ellen case is different from the one described by Rick Henderson. If the facts are as set forth in Mr. Henderson's article, the EPA is acting outrageously. But if the facts are as set forth in The Washington Monthly, the EPA and the jury may not be out of line.

Lloyd McAulay
New York, NY

Rick Henderson does your readers a great disservice by falsely equating environmental offenses with vice offenses. The essence of a true vice offense is that such harm as flows from its commission inures only to the detriment of the involved actors (as, for example, the risk of sexually transmitted disease from prostitution inures only to the detriment of those involved in the prostitution). In such cases, harm to third parties results from the prohibition of the vice, not from its indulgence (as, for example, the violent crime that results from the illegality of various drugs).

Henderson says that "[l]ike laws against drug use or prostitution, environmental prosecutions are meant not to protect persons or property but to send a message about values." Environmental laws are not like laws against drug use or prostitution. Environmental laws are designed to protect persons not involved in the prohibited conduct from the harm resulting from that conduct. Thus, for example, laws regulating the disposal of hazardous wastes serve to protect those not involved in such disposal from being poisoned by their own water supplies.

I have no quarrel with Henderson's arguments that the punishments meted out to environmental offenders are often excessive, that a criminal conviction not based on the defendant's criminal intent is a violation of basic civil liberties, and that many environmental statutes are vague to the point of incomprehensibility. But I question his claim that environmental offenses are best dealt with under the "body of law dealing with...crimes that are planned but not consummated."

The law dealing with "inchoate" crimes requires a very specific kind of intent. While a murder charge can be founded upon an intent to inflict bodily harm or an intent to commit a felony, for example, the charge of attempted murder can be founded only upon a specific intent to kill. Under such a legal regime, a deliberate polluter could escape liability by claiming that he dumped toxins into a water supply not in an attempt to poison that supply but merely with reckless disregard as to whether poisoning would result.

Traditional civil and criminal codes can, as Henderson says, deal with environmental threats, but not in the manner he suggests. He is correct in observing that "[t]he traditional criminal code treats actions that cause different amounts of harm in different ways," but he neglects to mention that traditional criminal codes penalize behavior that poses risks of danger to others even when no one is actually harmed. Pollution, whether a particular instance of it causes observable harm or not, is properly punishable for the same good reasons that it is illegal to discharge a firearm in an urban area, even if one ends up causing no injury or damage: The risk of harm is great and the consequences are often irremediable.

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