Over-criminalization has been a growing problem for decades. It seems that the government thinks the solution to every problem, no matter how small, is to throw someone in jail.
That’s why there was uproar recently when the Department of Justice announced it will not prosecute the Environmental Protection Agency employees who accidentally dumped millions of gallons of toxic waste into Colorado’s Animas River last year. The decision, made by prosecutors who wouldn’t hesitate to throw the book at ordinary people, was immediately criticized as hypocritical. “[T]here is one set of rules for private citizens and another for the federal government,” a letter from several Republican Congressmen noted.
The government treats its own differently from how it treats the rest of us. But we shouldn’t let that hypocrisy distract us from the bigger issue, which is that accidents shouldn’t lead to criminal charges regardless of who’s responsible.
The Animas River incident was the result of EPA officials attempting to open a long-abandoned mine to treat the toxin-laced water contained within it. Their actions caused a blowout resulting in the escape of 3 million gallons of water containing arsenic and lead. As the torrent of polluted water worked its way downstream, the river turned bright orange, photos of which quickly went viral on social media.
Obviously, that’s a colossal disaster which EPA and its employees should be responsible for cleaning up. But absent some bad intent, this wasn’t a crime and shouldn’t be treated as such. Yet, too often, that’s precisely how the government treats accidents, at least when private citizens are at fault.
Five years ago, EPA prosecuted Lawrence Lewis for violating the Clean Water Act. His “crime”? When the sewage system backed up at the Washington, D.C. nursing home where he worked, he diverted it to an outside storm drain that he believed led to the city’s waste-treatment plant. If he hadn’t done this, the area of the nursing home housing its sickest residents would have been flooded with sewage.
Unfortunately, he was mistaken about where the outside drain went. Instead of a treatment plant, the drain led to a creek. EPA brought criminal charges against Mr. Lewis and, using the threat of massive criminal penalties, coerced a guilty plea out of him.
Like EPA’s employees involved in the Animas River spill, Mr. Lewis didn’t intend to violate the law. The only difference between his accident and the Animas River spill is that his was much, much, much smaller. Yet Mr. Lewis was deemed a criminal.
As if the problem weren’t bad enough, a case in Arizona threatens to make it even worse. There, radical environmental groups are suing federal prosecutors for not throwing enough people in jail for pure accidents.
The Endangered Species Act contains an incredibly broad prohibition against “take,” which is essentially any action that has an effect, however indirect, on a protected species or its habitat. However, under the statute, a violation must be committed “knowingly” to be criminal.
In their lawsuit, WildEarth Guardians argue that the statute’s knowledge requirement should be interpreted as narrowly as possible. So, for instance, if you were driving through the desert and a creature that, unbeknownst to you, happened to be a listed species scampered across the highway, you could go to prison if you accidentally hit it. In WildEarth Guardians’ view, you “knowingly” committed a “take” of the creature simply because you knew you were driving, regardless of whether you knew that you’d accidentally harm an endangered species.
Concerned about the lawsuit’s threat to the rule of law, Pacific Legal Foundation is representing several agricultural organizations in their defense against the litigation. The “take” prohibition applies to almost any activity and thousands of species. Therefore, everyone concerned about the government’s already alarmingly broad power to incarcerate ordinary citizens should hope the court rebuffs this attempted expansion.
This problem is not isolated to a few environmental statutes. For decades, the federal government has been criminalizing far too many accidents and minor regulatory violations, without paying any heed to the consequences for ordinary people. The federal government doesn’t even know how many crimes are on the books. The Department of Justice has attempted to count them all several times, but found it impossible because there are too many spread across hundreds of thousands of pages of statutes and regulations.
Meanwhile, in the case of the Animas River spill, the government’s hypocrisy should be noted – but it shouldn’t blind us to the more basic problem. It’s not that EPA officials won’t face criminal charges. It’s that, too often, ordinary people do.
Jonathan Wood is an environmental attorney with Pacific Legal Foundation.