Free pass for Md. polluters?

From how we live to where we can live, Marylanders have been expected to make an increasing number of personal sacrifices for the cause of cleaning up the Chesapeake Bay over the last two decades or more. Many have been small (whether laundry detergent contains phosphates or not now seems inconsequential), while others, including the cost to homeowners and businesses of greener, more advanced sewage treatment or storm water control systems, have been substantial.

But are the state's most egregious polluters — those who truly thumb their noses at laws protecting the nation's largest estuary and knowingly spill noxious materials into the bay and its tributaries — held as accountable?

A report released this week by the nonprofit Center for Progressive Reform raises the troubling possibility that they are not. The evidence? A review of a decade of enforcement actions on the state and federal levels reveals that Maryland and federal authorities rarely push for criminal prosecution of those who violate the Clean Water Act.

Admittedly, there are any number of ways to deal with such violations. Often, they are enforced purely as a matter of civil law, with fines or other administrative remedies. And in the vast majority of cases, that's probably adequate.

But surely the prospect of a criminal sanction, including incarceration, would have a far more deterrent effect than a modest fine. Those who see pollution merely as part of the cost of doing business — a dollar and cents calculation about the bottom-line expense of a fine (if caught) versus the cost of proper disposal of waste material, for instance — would be given pause.

Are local authorities too reluctant to bring out the big guns? It's hard to tell for certain from the data presented in the study authored by Rena Steinzor, the center's president and a professor at the University of Maryland Francis King Carey School of Law. But the case is certainly compelling. Prosecutions are rare, usually a handful per year, and they are particularly uncommon when they involve farming, urban runoff and sewage treatment plant violations.

Professor Steinzor notes that one explanation may be the disbanding of the environmental crimes section within Maryland's U.S. Attorney's Office at the end of 2001, when prosecution of homeland security-related cases became a far greater priority. Another may be the general reluctance of federal courts to impose incarceration in water pollution cases.

Yet it may also be that some elected officials simply don't have the stomach for it. An ongoing private lawsuit seeking to enforce Clean Water Act standards on an Eastern Shore poultry farm raised the hackles of Gov. Martin O'Malley and others in Annapolis. Prosecuting a big oil company over a spill is one thing; expecting a family farmer to keep manure out of a stream is apparently another.

Of course, political conservatives like to frame every U.S. Environmental Protection Agency enforcement effort as an abuse of authority. Yet if regulations are not adequately enforced, there's little hope of a cleaner Chesapeake Bay, despite the public's overwhelming desire for that outcome — and its demonstrated willingness to make personal sacrifices.

What the report recommends is not necessarily to add more regulations to the books or even haul more citizens into court, but merely to enforce the law adequately. Once polluters understand what might happen to them if caught, they are less likely to violate. It may also require spending a bit more money on prosecutors and support staff at the state and federal levels.

This would certainly be a good time to take such corrective action. The EPA is continuing its effort to enforce higher pollution standards on states in the Chesapeake Bay Watershed — the Total Maximum Daily Load, known informally as the "pollution diet." If polluters have no fear of getting caught, or of facing serious consequences if they are, it's difficult to see how the diet will bring about its desired effect.

Most Maryland residents are much more conscious of the Chesapeake Bay and likely take far more steps to reduce their environmental impact than their forebears were. But those efforts will be wholly inadequate to the cleanup task if authorities decide to let criminal polluters slide. As for those who don't care to risk jail, there's always an alternative as clear as clean water — don't break the law.

Copyright © 2015, Los Angeles Times
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