Environmental Legislation
Back to Eden? Not for Everyone, It Appears
by Judy Franklin
On Wings February 1998
A plea agreement has been reached in settlement of a January 1996 oil spill off the coast of Rhode Island. Ekloff Marine Corporation of Staten Island, New York and its subsidiaries Thor Towing Corporation and Odin Marine Corporation and their president and director entered guilty pleas to federal charges in the U.S. District Court for the District of Rhode Island, pursuant to plea agreements in which the companies and their personnel admitted that a tug and barge were not properly equipped to navigate stormy waters.
In addition to state and federal fines, the federal judgment provides for the companies to pay an additional sum of $1.5 million to the Nature Conservancy, a big green organization with over four million members and a 1993 budget of over $82 million, so the organization might purchase land for conservation purposes.
A victory for the environment? Perhaps not, when one considers that the Nature Conservancy, now the biggest of the big greens, has made over three hundred million dollars by buying private land, and then selling it back to the federal government at inflated prices. And their methods have been under heavy criticism in the past few years.
The scenario? A private land owner is pressured to sell at a bargain price. If he balks, what should appear on the property than an endangered specie, or the land is declared a wetland. The hapless landowner is lucky to get out with his shoes, and the Nature conservancy, which buys low, sells high, and keeps the oil and mineral rights, is in luck again. Not so the poor taxpayer, when the lands in question are removed from the tax rolls, and he must take up the slack.
No one is immune from these tactics, no matter how well heeled he might be. Even the likes of Bob Hope are not immune from big green schemes. Hope and a group of his friends purchased some land in the Santa Monica area in hopes of someday developing it as a retirement community. The Santa Monica Mountains Conservancy took the group to court in an effort to stop the development.
Eventually the group prevailed, and Hope's plans fizzled. He was forced to sell the property at a huge loss. And the proud purchaser? The Santa Monica Mountains Conservancy at pennies on the dollar.
A victory? The land will be developed anyway, as a park, and at taxpayers' expense. Profit to SMMC? You can bet on it. Environmentalism is big business these days.
The clubby nature of the environmental funding circuit is even more ripe for abuse when one is aware that some of the same people who are being fined are donating heavily to green groups.
The TNC is not above accepting millions from oil companies and big business: ARCO, Chevron, Dow, DuPont, Exxon and Enron serve to enrich their coffers. TNC also owns stock in Caterpillar and Cummins Diesel. Receiving money both from the polluters and from the government in the form of grants would seem to indicate a basic conflict of interest, especially when the green group can reap funds from both at the same time. But when the major goal is self preservation and the assumption of power, the big greens don't see it that way. They like the status quo.
A Bruce Babbitt supported Evangelical Environmental Network has already begun a campaign in America's churches to gain support for treating the Endangered Species Act as the 'Noah's ark of our day.'
Babbitt, as he looked into the eye of a wolf he held for release into the wilds of Yellowstone told of his vision: "I looked through the grate into the eyes of this magnificent creature; I saw the green fire flare up again, a fire brought back by America's conservation laws, with the power to help restore God's creation."These new environmentalists would not embrace the technology that has enabled our farmers to feed the world, that has freed us from the fear of diseases that have plagued mankind for eons, that has enabled us to live warmly and comfortably with one of the highest standards of living in the world.
Nay, their vision is of a nature, an environment, free of the `development' they fear: they revere nature above man.
Preserving this nature is an end unto itself to them, as our choices of foods and even medical progress that is dependent on the use of animals in research are sacrificed in the name of 'animal rights,' even while human rights vanish in the name of a government whose appetite for control has reached a malignant level.
Science, other than perhaps 'junk science,' often plays little role in this attempted agenda. We're lectured about global warming, and told we must cut our energy usage, and hence our lifestyle, though scientists differ on the very existence of the phenomenon.
We're told we must preserve 'endangered species' at any cost, and may be forced off our own property against our wills, without compensation, to achieve that goal, even if that 'endangered species' is a rat or a bug. Logging is bad in any circumstance, these new preservationists cry, as logging and even farming and ranching are viewed and taught in the schools as acts that despoil `nature.' Man must be prevented from intruding on this version of nature, in their view, and hence has become the enemy.
Biologist David Graber embraced just that idea in his review of Bill McKibben's The End of Nature:
"Human happiness, and certainly human fecundity, are not as important as a wild and healthy planet... (The ecosystem has) intrinsic value, more value to me than another human body or a billion of them... Until such time as Homo sapiens should decide to rejoin nature, some of us can only hope for the right virus to come along." ( L.A. Times, 10-29-89, p.9)
The Costs: And Who Profits?
And if we all cannot agree to step into the nearest field and fall on our swords in an effort to `save the earth,' what price will we be willing and able to pay for the `environmentalism' we are being forced to embrace?
Environmentalism does not come without a steep price tag, and an escalating one: the costs of compliance with national environmental regulations rose from $53 billion in 1980 to over $150 billion in 1996, with no end in sight. Federal regulation has been increasing exponentially.
The federal government, which imposes these regulations on state and local governments, mandates their enforcement, but provides no funding for their implementation. Projected costs for these unfunded mandates alone total $54 billion for the years 1994 through 1998, imposing incredible costs on cash strapped local governments and taxpayers. Up to twelve per cent of all municipal revenues are now earmarked for these unfunded mandates.
Tougher and tougher rules are imposed on citizens at the behest of activist green groups, many of which have become big businesses in and of themselves. They mount incredibly sophisticated campaigns to 'save' charismatic megafauna, reaping their rewards in dollars from sympathetic little old ladies bent on saving all the little bunnies, and from taxpayer generated funds doled out from Washington.
In reality, notwithstanding the little bunnies, the funds amassed by the so-called `greenies' are more often used in massive Washington lobbying programs designed to generate more taxpayer dollars, than in programs designed to save the charismatic critter du jour. Groups like the Humane Society of the United States do not use their monies to fund animal rescue efforts, low cost spay and neuter programs, or animal shelters.
The well meaning animal lovers don't know this. They are saving animal lives and easing suffering, they believe, while green groups are just filling their pockets. Now, besides these donations, green groups have gone into the grant business with a vengeance.
In 1993, for instance, the National Audubon Society received $75,998 from the EPA for a public service announcement campaign. The Environmental Defense Fund received $236,000 from the EPA for a recycling campaign; the Department of the Interior paid the Natural Resource Defense Council $75,000 to support its Clean Water advertising campaign. The Nature Conservancy received over $44,000 from the National Oceanographic and Atmospheric Administration for a 'volunteer outreach program.'
And of course some of these same groups that receive grants from the feds routinely sue them. The Sierra Club received over $1 million in taxpayer funds as a result of lawsuits it had filed against the federal government.
The Nature Conservancy received over $450 million in 1993 from the federal government from land sales to governmental agencies, often above appraised value, and even more frequently at a much higher price than TNC had recently paid for the land.
Now, in the ultimate irony, The Nature Conservancy has gone into the forestry business. Often accused of making a profit from buying and selling land from people forced from their property for environmental reasons, and selling it back to the federal government for public use at a tidy profit, TNC, in conjunction with the Vermont Land Trust, has accepted a five million dollar grant from the Freeman Foundation to purchase some forty-one square miles of woodland parcels in Vermont, which they will log and process in their own sawmill, ostensibly to demonstrate that a profitable forestry operation can coexist with ecological protections.
The TNC in the past has been openly antagonistic to the timber industry, and has been an advocate of such increased regulation of the timber industry that has led to the shutdown of a major portion of the logging industry and the loss of many jobs.
It is now estimated that environmental regulation alone costs the U.S. economy over $170 billion each year, with no end in sight. Yet, a Harvard University study has estimated that current regulatory policies cost up to 60,000 deaths a year, primarily because the government wastes an incredible amount of money on overblown, virtually nonexistent `risks', reacting to 'popular panics,' while ignoring more significant, real risks in a phenomenon Dr. John Graham of the Harvard Center for Risk Analysis terms `statistical murder.'
The Harvard School of Public Health has stated that the cost-per-life saved by the average EPA regulation now stands at over $7.5 million. Thankfully, citizens are increasingly questioning the use of their money.
Environmental groups have been losing membership at an increasing rate, and public support for environmental common sense has grown.
The Issues
But some of the 'villains' in the war to save the environment are no longer so easy to identify. The Endangered Species Act ensures that agencies make certain that any action they fund, authorize, etc., is not likely to jeopardize the continued existence' of an endangered or threatened species.
But the Endangered Species Act has also forced property owners off their lands, stopped the building of hospitals, halted logging and farming, and actually cost lives and homes when routine fire breaks were prohibited in an effort to save an esoteric specie of rat.
Three issues: property rights, risk assessment, and unfunded mandates have been greatly argued among environmentalists and property owners, and have been the major reason for the failure of these opposing sides to come to some agreement in compromise in the reauthorization of the Endangered Species Act.
Law Enforcement: The Clean Water Act
Another less widely known Act which has had much the same influence and consequence in conservation issues is the Clean Water Act, which was passed in 1972. The same three issues are central to the controversy surrounding this Act as well.
Federal wetlands enforcement efforts were begun in an effort to regulate the tidal waters, marshes and bogs of the United States. Since the 1972 inception of the Clean Water Act, the program has expanded to control between one and two million acres, generating over 95,000 permits annually.
But nowhere in the Clean Water Act is the term 'waters' defined, and the term 'wetlands' never appears. And now the term, wetlands, has come to mean anything from desert lands, potholes, and mud puddles.
The Environmental Crimes Section of the Justice Department was created in 1982. Since that time those individuals or corporations violating a "wetlands' regulation have been subject to federal criminal prosecution, regardless of whether or not the environment actually suffered any harm.
In its first decade of existence, the Environmental Crimes Section prosecuted over 1,000 individuals for wetlands crimes, racking up over $75 million in fines, and 200 years of jail time. Now it does that in one year. [and this article was written in 1998...]
"(N)ot all agencies regulate with the same vigor. Veterans' Affairs sends out checks, not regulations. But the Environmental Protection Agency's forte is new rules. For instance, it plans to issue 430 rules in the next 12 months. More than a third, or 163, will affect small businesses. Since Clinton took office in '93, the number of EPA rules affecting small firms increased 92%."
Excerpt from "The Regulatory Hydra," Investor's Business Daily 2-3-98
"The Environmental Protection Agency has continued its venture into the law enforcement arena in a big way, and recently has proudly announced the imposition of a record number of fines in 1997. The EPA referred over 700 cases to the Justice Department for prosecution in the fiscal year ending in September.
Of those, 278 were criminal claims, which resulted in over $169 million in fines. Another $95 million was collected civilly, and so-called 'environmental polluters' were forced to spend almost two billion dollars in cleanup efforts, on Superfund efforts, or in correcting various violations."
The National Wilderness Institute told of one so-called `environmental polluter' who ran afoul of wetlands regulations, despite a clear intent to do good:
"A Maryland wetlands consultant who operates a non¬profit wildlife rescue service was hired to create several thousand acres of wildlife habitat. He was sent to jail for six months for violating wetlands red tape, despite having thirty-four permits and creating forty-four acres of wetlands." Though it sounds ridiculous on its face, this is not an isolated incident.
The Clean Water Act: The Courts (UNITED STATES of AMERICA v. James J. Wilson)
Section 404 of the Clean Water Act specifies that 'anyone discharging material into navigable water must first obtain a national permit and show that the discharge will not have adverse environmental consequences." (emphasis added)
Now the government, in its zeal to prosecute under the Act, has attempted to expand the definition of 'navigable waters' to include intrastate, non-navigable waters whose degradation 'could' affect interstate commerce.
This interpretation was tested recently in the courts. A three judge panel for the Court of Appeals for the Fourth Circuit was having none of it. Their ruling portends greatly if held up on appeal. If the government lets the decision stand, the rule becomes binding in Virginia, West Virginia, Maryland and the Carolinas, and may serve as a precedent in other courts in the nation.
The case in question, UNITED STATES of AMERICA v. James J. Wilson, 96-4498 was heard by a three judge panel in the United States Court of Appeals for the Fourth Circuit, before NEIMEYER and LUTTIG, Circuit Judges and PAYNE, United States District Judge for the Eastern District of Virginia, sitting by designation.
In this case defendant Wilson had been convicted by a jury, after a seven week trial, of `knowingly discharging fill and excavated material into wetlands the United States without a permit.' His company, Interstate General, and another partner, the owner of the lands in question, were also convicted of offenses.
They were convicted of having drained four parcels of land (without having obtained Corps of Engineers permits, and in removing dirt while digging a ditch on his land, had put pollutants (i.e. - that same dirt) into federally protected wetlands, even if they weren't wet at the time.
[Sidebar]
Government is Always There When it Needs You
(Mr. HEFLEY asked and was given permission to address the House for 1 minute and to revise and extend his remarks.)
Mr. HEFLEY. Madame Speaker, today I call to your attention a study released yesterday by the U.S. Chamber of Commerce regarding the effects of Federal regulations on U.S. business.
The results are overwhelming.
One in six survey respondents reported having to lay off employees in order to offset the cost of Federal regulation compliance like the minimum wage, OSHA, and environmental laws.
Only 1 in 10 respondents said they had ever learned about a new Federal regulation from the agency that enacted it. In other words, "We'll come up with whatever we want, and it's your job to find out what that is
Forty-four per cent of the respondents who currently do not offer employee benefit plans said they would if federal regulations were not so confusing.
Madam speaker, I commend the U.S. Chamber of Commerce for conducting this study and I look forward to working with them and other members of this body to get some commonsense reform to our heavy-handed regulatory process.
Some regulation is necessary but we have carried it too ridiculous levels. It is time for a change, Madame Speaker. It is time to unleash the potential of our economic system to create a better life for American workers.
Congressional Record: June 25, 1996 (House)
The defendants had maintained that they were not aware that they had been guilty of any violations, and that competent consultants had assured them that permits were unnecessary for their activities.
A jury disagreed. Wilson was sentenced to a period of twenty-one months in prison and one year supervised release, and was fined one million dollars; his companies were fined another three million dollars and placed on five years probation. They were also ordered to implement a wetlands restoration and mitigation plan as directed by the government.
Wilson's case was sent back to the federal courts; his convictions for illegally filling in wetlands were reversed because wetlands were not properly defined, and restrictions had not been explained to him when he first undertook his ambitious project. In addition, the court said that the judge did not properly explain to the jury the intent or 'state of mind' required for a conviction of a violation of the Clean Air Act; the government did not prove criminal intent.
Interestingly, Wilson did not fit the picture of the greedy, evil businessman so often portrayed as the environmental villain of late. Instead, for thirty years he had been involved in a development project on some 4,000 acres, created under the New Communities Act of 1968.
In all, his 9100 acres of planned community was conceived to provide affordable housing for 33,000 people, and included schools, parks, ponds, and wide open spaces. In fact, at least 20% of the community was set aside as 'open space'; seventy-five acres were to be preserved as wetlands.
Notwithstanding his civic achievements, the government set out to prosecute, contending that the defendant knowingly attempted to improve the drainage of the four lots in order to make building possible, and making the argument that water from these lands flowed via drainage ditches, creeks, intermittent streams, etc. to the Potomac River (located a full six miles away), a tributary of the Chesapeake Bay (ten miles away) — waters of the United States.
In an interesting editorial, The Washington Times reported that in their zeal, the prosecution went so far as to bring in a fur trapper testify that some hunters have act actually trapped some 'water-dependent' beavers and muskrats in Charles County, the 370,000 acre county in which the development activities took place in an effort to establish that the requisite interstate commerce had taken place!
Of course, reported The Times, the trappers could demonstrate no harm to beaver or muskrat populations, as they had no idea where such animals might have been trapped. In addition, the defense pointed out that trapping on private property without permission is illegal, and thus refuted the fed's improbable argument that illegal interstate commerce could justify federal wetlands regulation.
In addition, the defense argued that in allowing a jury to "find a nexus with interstate commerce based on whether activities `could affect' interstate commerce, the court authorized a 'limitless view of federal jurisdiction,' far more expansive than any previously held.
Judge Niemeyer agreed, writing in his opinion that "Absent a clear indication to the contrary, we should not lightly presume that merely by defining 'navigable waters' as 'the waters of the United States,' 33 USC § 1362(7), Congress authorized the Army Corps of Engineers to assert its jurisdiction in such a sweeping and constitutionally troubling manner."
Finally, the defendants raised a challenge to the district court's allowing into evidence the testimony of the government's expert witnesses, while excluding that of two former Assistant Attorneys General of the United States, which the defense wanted to use to establish their understanding of the laws in question.
While the appeals court had already determined that the defendants were entitled to a new trial, but they were not mandated to address this issue -- but in order to be helpful with regard to the new trial, and to perhaps prevent further appeals, they did in fact address the issue.
"Under circumstances involving domestic law, this court can conceive of no circumstance which would shift this burden from the court to the jury, where the jury judgment would be influenced, if not made, on the basis of expert witness testimony which would undoubtedly follow the usual pattern of conflicting expert opinions.
Permitting such testimony as to legal conclusions gives cogent meaning to the 'apprehensions that jurors will turn to the expert, rather than to the judge, for guidance on the applicable 'law.'"
The court stated its opinion that while the court was within its rights to exclude the testimony of the two former Attorneys General, the testimony of the government's expert witnesses, as regulatory enforcers as well as fact witnesses, should have properly been restricted to matters of fact, history, and procedures, and should not have allowed them to give opinions on the law or its interpretation.
Now it is the government's move, and it must decide on whether it will risk retrying the case, and setting a precedent it may not want to live with.
Was Wilson, who set out with an agency of the federal government to provide housing for those with low and moderate incomes, the greedy businessman the government set out to prove him to be, or simply a victim of a regulatory system so convoluted and entangled in its own bureaucracy that it now has a life of its own?
And what of those who would provide such housing in the future, and those in need of it. They, in a bitter twist of irony, along with common sense, are the real victims of the insistence of a government to treat a crime against `nature,' however trivial or artificial, as a crime against humanity. Nobody wins.
"When will the public finally say that they have had it with runaway environmental zealotry?"asks Dr. Thomas Sowell, professor of Political Science and Economics at Stanford University:
"Back when the Supreme court made its famous 'one man, one vote' decision, it said that governments represent people, not land or trees. One of the signs of return to sanity will be when we start applying that to environmentalist regulations that sacrifice people's jobs for trees, make bone-dry land off-limits to its owners by declaring it to be 'wetlands' and otherwise act like little tin gods arranging the universe to suit their vision and gratify their own egos."
