The Animas River spill has shone a spotlight on ineptitude at the Environmental Protection Agency. The EPA allowed three million gallons of toxic water to spill into the Animas, causing enormous pollution problems for those downstream. A Congressional investigation has revealed that EPA staff had failed to accurately gauge the water pressure within the mine they were cleaning up, “thus increasing the chances for a ‘blowout’ like the one that occurred.” Further, investigators have found that “the EPA had known for more than a year that cleaning up the mine was highly risky.”
Some, like Newt Gingrich, are calling for the responsible EPA officials to be criminally prosecuted, as a private company would be under similar circumstances. Under existing law, that probably can’t happen. But, writing in the Wall Street Journal, former EPA official Bill Wehrum says that the government should learn a lesson from its own errors in connection with the Animas River disaster:
As a former EPA official, I believe the agency and the individuals responsible shouldn’t be prosecuted for the accident. But I also believe this episode brings needed attention to a serious problem with how the EPA conducts business: The agency often criminalizes actions that are nothing more than accidents, many far less damaging to the environment than the Animas River disaster. Such treatment is unjust.
There are many examples. Consider last year’s Elk River chemical spill. In January 2014, a Freedom Industries Inc. facility in Charleston, W. Va., accidentally spilled roughly 7,500 gallons of toxic chemicals into the local waterway. The EPA’s recent discharge of toxic water in Colorado was many times larger. Yet the agency went after the company with everything it had.
The EPA quickly dispatched an agent from its Criminal Investigation Division to West Virginia. Working with the FBI and a local U.S. attorney, the EPA built a case that resulted in criminal indictments for Freedom Industries and six of its employees. All pleaded guilty in connection with negligent discharge under the Clean Water Act and currently await sentencing, which could involve varying prison sentences.
Companies and employees who willfully commit a crime should be prosecuted. But criminal liability for negligence isn’t appropriate because, by definition, a negligent act isn’t done with intent. That doesn’t mean that negligent acts should go unpunished. There is ample authority for fines and other appropriate relief to be imposed under civil law. Criminal liability should be reserved for those who intend to break the law. …
Criminal prosecutions aren’t restricted to major, headline-grabbing disasters. Take the 1999 prosecution of Edward Hanousek. He oversaw a quarrying project for Pacific & Arctic Railway and Navigation Company in Alaska where a backhoe accidentally struck a pipeline, sending up to 1,500 gallons of oil gushing into nearby Skagway River. Though Hanousek was off-duty and wasn’t operating the backhoe, he was criminally charged and sentenced to six months in prison because his contract said he was responsible for safety at the site.
There is also the 2011 prosecution of Lawrence Lewis. Upon finding sewage flooding a military retirement home in the Washington, D.C., metro area, he diverted the flow into a storm drain that—unbeknown to him—discharged into the Potomac River. He was charged and pleaded guilty to a crime under the Clean Water Act.
The list goes on. The lesson is clear: People can have their lives ruined for something that, in Gina McCarthy’s words, they are “absolutely, deeply sorry” for and never meant to do.
These are a few of many instances where the federal government has overreached, imprisoning private citizens for making innocent mistakes. But when the EPA’s own employees commit far worse blunders, the reaction is, “we’re really, really sorry.” Will anyone go to jail? Of course not. Will anyone be fired? I doubt it. Maybe some EPA employee will have his next raise deferred for a year.
Americans need to decide whether the government is their servant or their master. It is pretty obvious which role Obama administration officials believe they occupy.