Good intentions get punished

By Kenneth Smith Copyright 1999 Washington Times September 30, 1999

"Government now uses the criminal law, 'civil' penalties, and other sanctions, to punish much conduct that is neither harmful nor intentional and that ordinary people would not think reprehensible." So wrote one-time environmental activist David Schoenbrod in Regulation magazine. Not only does this hard-line approach unnecessarily curb individual initiative and general freedom, he said, it doesn't necessarily make for a cleaner environment.

This month a federal appeals court in Missouri ruled unanimously against the Environmental Protection Agency (EPA) and its head administrator, Carol Browner, in a civil case that could hardly illustrate Mr. Schoenbrod's point any better. Persons genuinely interested in environmental protection should be delighted. Those more interested in protecting the power of the environmental politburo are in for a big disappointment.

The case dates to November 1987, when a Missouri-based firm that manufactures equipment for railroad control and safety equipment discovered that its employees were also making a mess. Harmon Industries Inc. maintenance workers were dumping outside the back door of the plant solvents used in the assembly of circuit boards. Apparently the dumping had gone on since the 1970s. Company officials, who were unaware of it, ordered the dumping halted, fired one employee who refused to comply and demoted or reassigned others, brought in environmental consultants to remedy the problem and called the state Department of Natural Resources (MDNR), voluntarily, to notify the agency of what had happened.

Out came the agency to investigate. As the appeals court panel said in its decision, the agency "concluded that Harmon's past disposal practices did not pose a threat to either human health or the environment." Still, under the close supervision of MDNR the company undertook a costly cleanup and monitoring procedure and changed its manufacturing practices to prevent a repetition of what had happened. So cooperative was the company both in reporting its violations and in the investigation of them, that the agency declined to impose any fines on the company.

There this happy story of corporate good works and government goodwill might have ended. But no, in came EPA to fine the company some $2.7 million for violations of a federal hazardous-waste statute known as the Resource Conservation and Recovery Act (RCRA). Those violations turned out to be precisely the same dumping practices that Harmon and Missouri had just resolved.

The feds defend this kind of "overfiling" on grounds that state enforcement of environmental laws is sometimes lax; sometimes EPA has to do the states' job for them. The premise here is that remote Beltway regulators like Carol Browner know more about protecting Missouri's environment than do their Missouri counterparts and the Missouri voters to whom they must answer. If that were true, then why did EPA delegate its authority to enforce RCRA regulations in Missouri to . . . Missouri? To reclaim that authority the agency need only hold a public hearing and make its case that the state isn't up to the job. If after this notice the state doesn't improve its performance, Congress authorized EPA to take over the responsibility.

Perhaps the agency isn't as confident of its case to try that. Whatever the reason, EPA has decided to try more limited incursions on state powers through strategic overfilings on a case-by-case basis. The mere threat of incursion, however, is enough to keep state officials mindful of their federal overseers, and they don't appreciate it. An official from the Colorado attorney general's office told federal lawmakers two years ago, "EPA's perspective appears to be that they own the ranch and that we, the states, are the hired ranch hands." Arguments that EPA is more capable of protecting Colorado's environment than state officials there are, she said, "hogwash."

In an effort to continue running the ranch, Ms. Browner and her lawyers argued that Congress didn't really mean it when it said a " s tate is authorized to carry out its hazardous waste program in lieu of the federal program . . . and to issue and enforce permits." Just as President Clinton insisted on holding a judicial seminar on the meaning of the word "is," so EPA insisted on debating the meaning of the phrase "in lieu of." But the appeals panel, like the district court below, brought this duel in semantics to an unequivocal end. "There is no support either in the text of the statute or the legislative history for the proposition that the EPA is allowed to duplicate a state enforcement authority with its own enforcement action," the court held.

EPA's actions don't make any more sense in terms of public policy. Remember that this case involved a problem that everyone involved in agrees did no harm to the environment or human health and that neither state nor federal regulators would have known about but for the voluntary admission of the company involved. For its good deeds, EPA has rewarded Harmon with a costly and pointless court battle. Other companies may not be so forthcoming as a consequence, and that won't do much to clean up environmental problems. And that would be a crime for which Carol Browner and EPA should be held accountable.

Kenneth Smith is deputy editor of The Washington Times editorial page.

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