Would putting more polluters behind bars help restore the Chesapeake Bay?
The Center for Progressive Reform believes it would. In a new report, the a pro-regulatory think tank argues that both state and federal authorities prosecute water polluters too rarely in Maryland and that the state penalties for conviction aren't stiff enough to deter violators.
Criminal prosecutions are an effective way to improve enforcement of environmental laws, especially when government regulators lack the funds to adequately inspect all potential polluters, says Rena Steinzor, the center's president and a professor at the University of Maryland's law school. But prosecutions have lagged in Maryland, she says, which she attributes to budget cutbacks and a lack of will to really crack down.
"Environmental enforcement is never a priority in this state, and that's troubling," she said in an interview. "Because you don't have money to do routine compliance checks ... then enforcement should be your default."
The report is the latest in a series from the center arguing that environmental enforcement is not strong enough in Maryland. It comes as UM's law school hosts a seminar on regulatory enforcement that began Thursday.
Most environmental violations are handled administratively, or by filing suit against the alleged polluter. Only in a relative handful of cases are criminal charges brought. From 1988 until last year, the report finds, the federal government has concluded 11 criminal cases involving alleged Clean Water Act violations, and 20 overall related to water pollution. But after 9/11, the Justice Department's attention shifted to pursuing terrorism, and the U.S. attorney's office in Maryland disbanded its environmental crimes section.
On the state level, authorities wrapped up 16 water-related prosecutions in fiscal 2011 alone, roughly double the number in previous years, but overall the report contends there has not been a "sustained emphasis" on criminal enforcement by the state, either. And some significant sources of bay pollution, such as urban runoff, sewage treatment plants and farms, have rarely been prosecuted, the report says.
Steinzor and co-author Aimee Simpson argue that state and federal officials should restore funding and staff for pursing environmental prosecutions, and that they should take a harder look at potential major polluters, such as large-scale animal farming operations. The state, meanwhile, should beef up its potential sanctions by making water pollution violations felonies.
Staff in the office of Maryland Attorney General Douglas F. Gansler acknowledged that budget cuts over the years have slashed staff for investigating and prosecuting environmental crimes. But they insist the AG's office hasn't gone soft on polluters, and furnished statistics showing big increases the past two years in the number of criminal cases concluded involving alleged environmental violators.
Only a small number of those cases brought were referred by the Maryland Department of the Environment's water pollution regulators - 7 in fiscal 2011, 5 in the past year - but Michelle Barnes, chief of the AG's environmental crimes unit, said those numbers understate the number of water pollution violations prosecuted, as multiple charges involving air, water, hazardous waste and other infractions are often levied in a single case. Gansler's office has brought the first criminal prosecutions of violators of the state's Critical Areas law limiting waterfront development, Barnes pointed out, cases that also are not reflected in those statistics.
In the criminal cases brought over the past four years, state prosecutors have won convictions and sentences that carry a growing amount of jail time, from 4.5 years combined in 2008 to around 13 years cumulatively in each of the past two years, according to figures provided by the office. Court-ordered restitution and community service also have been mounting.
But defendants actually serving time behind bars remains relatively rare, Barnes acknowledged.
"We're limited," she said, pointing out that under state law, almost all environmental and water pollution violations are misdemeanors, carrying no more than 12-month jail sentences.
Adding felony-level charges for state pollution violations would be a "helpful tool," she said, as just the threat of spending years in prison might deter some violators. But she suggested stiffer sanctions won't do much good by themselves, as judges rarely impose jail time now. Gansler spokesman Alan Brody said the office has been meeting with judges seeking to educate them on the import of pollution violations.
The number of state investigators available to pursue environmental crimes has been slashed from four to two in the past decade, and the number of attorneys to prosecute them also trimmed by a like amount. The office is looking to hire a third attorney now, Barnes said. The chief effect of the staffing cuts has been to limit the office's ability to launch wide-ranging investigations, she said, or to keep pursing tips when leads run out.
"We check out everything that comes in," Barnes said, adding later, "I don't think Maryland hasn't been doing enough. I think we have worked hard and are very diligent in all the arenas we're taking on."
UPDATE: U.S. Attorney Rod J. Rosenstein emailed that his office had set up an environmental crimes task force several years ago where federal, state and local agencies could share intelligence and discuss cases. Its most recent meeting was in May, he said. He ticked off a number of cases his office had handled in the last several years, including some involving ship pollution and commercial fishing violations. And he said that some cases wind up as civil litigation handled by his attorneys.