Fitzgerald: Mugged for the Environment

by David Bier on December 14, 2011

In October this year, CEI’s Jackie Moreau blogged about victims of EPA’s wetland regulatory regime. “The once lovely face of Lady Liberty,” she wrote, “now wears the quintessential looks of the mean kid on the playground: class bully.” In this excerpt from Mugged by the State: Outrageous Government Assaults on Ordinary People and their Property, Randall Fitzgerald reinforces her point with some more outrageous examples of government environmentalism out-of-control.

Mugged by the State was published in 2003

Most people find the idea of healthy ecosystems and a clean environment to be desirable social goals. After all, the pollution of our collective air, water, or soil resources can potentially affect both our personal health and our individual property values. The broader social question is how do we measure and define environmental harm, and what benchmarks do we use to certify the point at which damage has occurred that adversely affects others. Examples from the regulation of private lands, public lands, endangered species, wetlands, and the record of the Environmental Protection Agency enforcement tactics illustrate how inflexible or misguided policies, relying on warped incentives and enforced by overzealous regulators, can often do more harm than good….

What if a law existed requiring every American who possesses a piece of Revolutionary War furniture to preserve the piece in perpetuity? They cannot actually own it, but they must protect it and care for it, at their own expense, under the supervision of a federal regulatory agency. If they fail to protect and preserve the furniture to the government’s satisfaction, they can be heavily fined and sent to prison. This is the sort of situation confronting who find part of the wetlands, or a plant or animal belonging to an endangered species, anywhere on their land. Under wetlands protection provisions of the Clean Water Act, landowners must sacrifice any use of their property that might impact wetlands or rare species and their habitat. Failing to do so subjects the owner to criminal penalties.

States have enacted similar regulations modeled after the federal laws. Homebuilder Lin Drake got bludgeoned in 1996 by both a Utah State wildlife agency and the U.S. Fish and Wildlife Service when he bought land near Enoch, Utah, for a housing subdivision. Employees from these two agencies found no habitat or holes made by prairie dogs on Drake’s land, but a federal wildlife employee claimed to have seen two prairie dogs scurrying away too quickly for their presence on the land to be documented by a camera. With only the testimony of this one employee about a single instance of prairie dogs being spotted, Drake was charged with violating the U.S. Endangered Species Act by “harming” prairie dogs and their habitat with his home building preparations. He was fined $15,000 in 1998.

Instead of rewarding landowners for doing good, the endangered species and wetland laws force them to shoulder the burden of social costs for implementing the legislated will of our collective environmental conscience. This perverse incentive can actually accelerate destruction of wetlands and rare species habitat because fearful landowners sometimes decide to eliminate the evidence before a regulatory agency can detect it.

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Edward Hanousek, road master of the White Pass and Yukon Railroad in Alaska, was off duty and asleep at home when agents of the U.S. Environmental Protection Agency arrested him for a crime he was not aware of and that he did not personally commit. A backhoe operator, working for a contractor hired by Hanousek, had been loading rock onto traincars when he accidentally cracked an oil pipeline with his backhoe. A small oil spill occurred in the Skagway River. The damage proved minor and the spill got quickly cleaned up. As the supervisor in charge, Hanousek was indicted for violating the Clean Water Act, and in federal court he was convicted and given an unusually harsh sentence of six months in prison, six months in a halfway house, six months probation, and a $5,000 fine.

With assistance from the Pacific Legal Foundation, Hanousek appealed his conviction using the argument that to impose criminal liability for an ordinary act of unintended negligence violates a central tenet of criminal law—that wrongdoing must be conscious to be criminal. The U.S. Court of Appeals for the Ninth Circuit disagreed and upheld his conviction on the grounds that “public welfare legislation” like the Clean Water Act does not require criminal intent for the imposition of severe penalties. Ignoring strongly worded dissents by Justices Clarence Thomas and Sandra Day O’Connor, the U.S. Supreme Court refused on January 10, 2000, to review Hanousek’s conviction.

Under this new interpretation of the Clean Water Act, anyone can now be criminally prosecuted if, for instance, his car breaks down on a hot day and the radiator boils over into a city storm drain. Hanousek was intentionally mugged by the EPA to set an example and create a legal precedent. How secure can any of our personal freedoms be when an agency vendetta, and a court ruling supporting it, transforms an ordinary citizen simply doing his job into a prison felon?

(excerpted from Chapter 3)

Ben of Houston December 15, 2011 at 11:27 am

Hanousek’s case, while certainly extreme, isn’t as clear cut as you make it seem. The first 300 feet of pipeline was protected by a railroad tie and sand barrier during work. Hanousek was convicted because when he took over the project, he stopped the practice of covering and protecting the pipeline. That is the decision that led to the spill. While I definitely question the wisdom of this prosecution, it does have precedent. If by your actions you recklessly cause someone to get killed, you can be charged with negligent manslaughter. This isn’t as absurd as you present it.

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