State and federal prosecutors in Maryland were once leaders in prosecuting environmental crimes, but budget cuts and shifting priorities have resulted in fewer cases coming to the courts and lighter penalties when they do, according to a recent report.
The report comes from the Center for Progressive Reform, a group of attorneys and public policy scholars nationwide that look at environmental protection, food safety regulation, climate science and regulatory policy.
Rena Steinzor and Aimee Simpson called their report "Going Too Easy? Maryland's Criminal Enforcement of Water Pollution Laws Protecting the Chesapeake Bay." Through the Abell and Town Creek foundations, the pair received money to look only at Maryland. But they hope to expand the research to other Chesapeake Bay states. And Steinzor said she's confident the other states have also been lax in their environmental enforcement.
"Criminal enforcement is very much neglected everywhere," Steinzor said. "For some reason, the public agencies have a perception that they just can't handle it."
Steinzor, the former director of the University of Maryland's Environmental Law Clinic and currently a professor at the law school, said it wasn't always that way in Maryland. In the 1990s, the U.S. Attorney's office in Maryland had a robust environmental prosecution arm. Led by Lynn Battaglia, who is now an appeals court judge in the state, the office coordinated well with counties and brought dozens of cases against polluters. For 1999 and 2000, for example, 31 environmental cases were concluded in criminal court. For 2008 and 2009, that number dropped to 14.
One of the landmark cases Battaglia's group handled was the U.S. vs. Dee, in which the U.S. attorneys prosecuted several civilian employees at Aberdeen Proving Ground for dumping hazardous chemicals.
By the end of 2001, though, the environmental crimes team had been disbanded. Former President George W. Bush wanted U.S. attorneys focused on terrorism and homeland security cases. Several of the attorneys moved into private practice.
Most of the large environmental enforcement cases in Maryland, the report found, are investigated by the Coast Guard and the Army Corps of Engineers and concern pollution from shipping or the large-scale filling of wetlands. Steinzor argues that, while important, these infractions represent only a small amount of the pollution. But if those federal agencies can prosecute polluters, she said, Maryland's environmental departments could, too.
Adding to the problem is that Maryland statutes governing fines and incarceration are less strict than the federal standards. Efforts in the legislature to strengthen those penalties have not passed.
Michelle Barnes, chief of the Maryland Attorney General Office's Environmental Crimes Division, said her team of three attorneys and two investigators are prosecuting plenty of cases.
A decade ago, she said, the division had five attorneys and seven investigators, some of whom were police officers. They didn't necessarily prosecute more cases, she said, but they could take on tougher ones and investigate them more thoroughly.
"We're operating with fewer people than any time in our history, certainly regarding our investigative resources," Barnes said. "But we don't turn cases away because of that. If they come through our office, we're handling them."
Barnes said the Center's report did not look at all of the mechanisms by which Clean Water Act cases are referred to the office. It looked at the ones that came from the Maryland Department of the Environment, which Barnes said is just a partial accounting. It also did not take into account enforcement by the Maryland Department of Natural Resources, which investigates fishing and poaching violations, and the Critical Areas Commission, which looks at incursions into protected areas next to waterways.
Two years ago, the Maryland Attorney General's Office began sharing the jurisdiction of Critical Area Law cases with counties, which Barnes said put more teeth into the Critical Area Law. Barnes said the office has prosecuted homeowners who fill wetlands as well as landscape companies that cut down trees.
In the last two years, the office also developed a partnership with the Department of Natural Resources to prosecute oyster and rockfish poachers. That partnership helped lead to a natural resources docket in several waterfront counties, so that one judge hears all of the fishing violation cases. That makes it more likely that the judge will see the seriousness of the cases.
Because of these partnerships, Barnes said, the office has prosecuted 43 cases thus far in 2012, compared with an average in the 20s in previous years.
But Barnes acknowledges that much of the prosecution is for point-source pollution, such as oil or sewage discharging from a pipe into a body of water. Across the Bay watershed, agriculture contributes 36 percent of the nitrogen, 41 percent of the phosphorous, and 57 percent of the sediment, making it the largest pollution sector. And although the EPA regulates Concentrated Animal Feeding Operations, it does not have the same oversight over croplands.
"That's just too voluminous an area for us to get into," Barnes said of farm pollution runoff issues. "The resources that would be required are just not at our disposal."
Steinzor's and Simpson's report call for better enforcement, more coordination between the agencies and more funding for staff to investigate environmental crimes.
"Criminal enforcement of federal and state water pollution laws is an underutilized tool in achieving Chesapeake Bay restoration," they write. "While it may not solve all of the problems in the Bay, without the added deterrence value of criminal enforcement, certain pollution sources will continue to pollute."
To read the report, visit: www.progressivereform.org/articles/MD_ChesBay_Crim_Enforcement_1212.pdf.