Thornburgh on the Environment

Once in a while a government official delivers a speech which says something and helps ever so slightly to give value to all those travels on the taxpayer’s tab. Attorney General Dick Thornburgh journeyed to New Orleans recently to address an environmental law enforcement conference of prosecutors.

Taking off on the theme of the Blue Planet — a film currently playing at the Air and Space Museum in Washington, D.C., Thornburgh talked tough about the rising number of federal prosecutions of environmental criminals. Crimes against the planet, he called them.

Since the start of the Justice Department’s Environmental Crimes Section in 1982, federal prosecutors returned 751 indictments, resulting in 549 convictions, $57 million in penalties, restitutions and forfeitures. Over 348 years of jail time was imposed. Most of these totals were secured in the last two years, he added.

The Attorney General took pains to emphasize that some big fry companies were included — such as Exxon, Texaco, Nabisco, Ralston-Purina, Keebler, W. R. Grace & Co., Ashland Oil and Ocean Spray Cranberries. Critics have charged that the Department goes after small fry more than normal prosecutorial discretion would call for.

He waxed indignant at the “midnight dumpers” who surreptitiously transport and dump toxic wastes into sewers, streams and ravines. He spoke of large criminal penalties ranging from $1 to $2.25 million for specific company violators. The latter fine was applied to Ashland Oil’s crime — the collapse of a 48 year old oil storage tank “because of Ashland’s negligent inattention” that dumped over 700,000 gallons of diesel oil into the Monongahela River — a major source of drinking water.

“Fines of this magnitude provide a very effective deterrent against the likelihood of similar future violations,” said Thornburgh. Well, last year profitable Ashland Oil generated $9 billion in gross revenue. “Fines of this magnitude” are entirely relative when it comes to assessing their deterrence impact.

In reality, Thornburgh’s figures, while larger than the wholly anemic environmental law enforcement record under Reagan, are pathetically inadequate given the number and scope and duration of damaging violations of environmental health and safety which is perpetrated every day in this country.

The poisoning of America by these polluters is a hard calculus of not spending the money to prevent pollution or dispose of these wastes as safely as is practically possible. It is cheaper, in the short run, for these companies and their agents to use the air, water and soil as their private sewers, than to precycle or recycle.

If Thornburgh intends to make it more expensive for these companies to pollute than not to pollute, his prosecutors need to be greater in number and his enforcement strategy needs to be much more ambitious, not just in demanding fines and jail sentences but in requiring cleanup and other forms of restitution, both generally, and by facilitating injured persons’ right to sue for civil damages.

Portions of this broader enforcement strategy can be conducted under existing laws. Others require Congressional action, including amending the Superfund and other environmental laws to make it more possible for citizens and their families who were exposed to pollution violence to sue for compensatory and where justified, punitive damages.

To etch the gravity of the crimes, one can quote Thornburgh again: “We are dealing with offenders who do some of the dirtiest work ever done to human health and the quality of life. They illicitly trade in sludge, refuse, waste, and other pollutants, and they pursue their noxious concealments only for the sake of gain. Everywhere — on our land, in our water, even 1n the air we breathe — they leave their touch of filth.”

Yet when it came to settle what he called “the largest single environmental criminal case” against Exxon, for its Valdez oil disaster in Alaska, he dropped the felony charges, agreed to a mere $100 million criminal fine and $900 million in damages.

That $900 million is to be paid out over ten years, thus reducing it to a present value of less than $450 million and all the $900 million payout will be deductible as business expenses for Exxon. So the total cost to Exxon in today’s dollars, both criminal and civil will be hardly $400 million or just under two day’s normal gross revenue by this oil giant.

Small wonder that Exxon stock rose, both the week and the day of the announcement, to new highs.