GOVERNMENT WORKS!
CASE STUDIES IN ENVIRONMENTAL PROTECTION
Creighton Law Review
February, 1999
Eighth Circuit Survey
Tepoel Lecture 1
Lois J. Schiffer
Timothy J. Dowling
Copyright 1999 Creighton
University; Lois J. Schiffer, Timothy J. Dowling
INTRODUCTION
I would like to talk today about the good work that is
being done by the governments of our country: by local
officials here in Omaha, by your state officials in
Lincoln, and by federal officials throughout our country
and in Washington. It is all too easy to become skeptical
about the ability of governments to accomplish anything.
Large majorities of Americans hold negative attitudes
about elected officials, believing that politicians care
more about special interests or their own interests than
about the public good. Our political campaigns are
sullied by negative or misleading advertising. Our news
media all too often stress the failures of government
instead of the successes. As the November elections
approach, some pundits predict that increasing numbers of
our fellow citizens will stay home on election day and
fail to exercise the most basic duty of citizenship--the
right that protects all other rights: voting. Cynicism
and apathy can lead to a vicious cycle: if more Americans
fail to become involved in their communities, they will
increase the influence of those very special interests
they rail against.
I come here today in the hope of warding off such
cynicism by reminding you of a simple truth: government
works . Good government--government done right,
government energized by your involvement--can solve
problems, secure justice, promote the public good, and at
times even lift our spirits.
I would like to reflect on this simple truth by
addressing three topics. First, I will describe the cases
we work on at the Environment and Natural Resources
Division at the Department of Justice, so you can have a
sense of the work we do day-to-day. Second, I will talk
about our successes at the federal level in protecting
the environment. Third, I will talk about some
environmental success stories from right here in your own
backyard, successes that depend on local, state, and
federal partnerships to protect the public and our
natural resources. I hope by the end of my talk to have
persuaded those of you who do not vote to go to the polls
in two weeks.
THE ENVIRONMENT DIVISION
Let me start by telling you about the Environment and
Natural Resources Division at the Department of Justice.
We represent client agencies in cases arising under more
than 100 federal statutes. While our client agencies take
the lead in administering and implementing federal
environmental protections, the Justice Department steps
in whenever these efforts lead to federal court
litigation. The Justice Department is often called
"Our Nation's Litigator," and the Environment
Division is responsible for all litigation involving
federal environmental and public land laws. I think it is
the best environmental law firm, and maybe the best law
firm of any kind, in America.
A. TYPICAL DOMESTIC
CASES
As you can imagine, our docket is quite large. To
simplify things, it helps to break down our docket into
five categories.
First, we litigate pollution cases. Our primary
mission in this litigation is to ensure that we have
clean air, safe water, and healthy neighborhoods for all
Americans. We bring civil enforcement cases against
violators for injunctive relief and penalties, as well as
criminal cases referred by the Environmental Protection
Agency ("EPA"), the Federal Bureau of
Investigation ("FBI"), the Coast Guard, and
other agencies for the most serious violations. We defend
cases under the pollution statutes when federal
environmental protections are challenged in court by
industry groups, environmental groups, and in many cases
by both sides. We also represent federal agencies--such
as the Department of Defense and the Department of
Energy--when they are alleged to have violated
pollution-protection standards that apply equally to
federal facilities.
Second, we handle land and natural resources cases.
Our major clients in these cases are the Interior
Department and the Forest Service in the Agriculture
Department. In most of these cases, we defend challenges
to agency decisions concerning oil and gas, mining,
grazing, water, the National Parks, and other
land-related issues.
Third, we bring and defend cases under the federal
fish and wildlife laws. In these cases, we primarily
represent the Interior Department and the National
Oceanic and Atmospheric Administration. We bring
enforcement actions to protect endangered species and to
stop the illegal smuggling of birds, reptiles, and other
wildlife. Additionally, we defend the Forest Service and
other agencies in challenges brought under the Endangered
Species Act, and on issues involving fisheries management
and the coastal zone.
Fourth, we litigate Indian cases. We represent the
Interior Department and other agencies acting in
fulfillment of the United States' trust responsibility to
tribes by protecting land and waters, as well as tribal
treaty rights involving hunting and fishing. At the same
time, we defend challenges to agency actions that affect
Native Americans.
Fifth, the Environment Division litigates condemnation
cases . These cases include affirmative condemnations to
acquire land; for example, to build a federal courthouse
or federal prison. We also defend against so-called
"inverse condemnation" cases, including
"regulatory taking" cases, where the claimant
argues that federal action has impaired a property right
so as to constitute a taking of property that requires
Just Compensation under the Fifth Amendment.
B. RECENT INTERNATIONAL
CASES
In the last several years, our docket has developed an
increasingly international dimension. I would like to
focus on two specific criminal initiatives that exemplify
this trend.
First, we are targeting the illegal importation of
chlorofluorocarbons, also known as CFCs or more commonly
as Freon. CFCs are used primarily as refrigerants,
solvents, and propellants. Unfortunately, once in the
stratosphere, CFCs become voracious consumers of the thin
ozone layer that protects us from ultra-violet
"B" radiation. CFCs become a kind of
"Pac-man" in the sky, eating up the good upper
atmosphere ozone. One CFC molecule can eventually destroy
over one-hundred-thousand ozone molecules. Increased
exposure to ultra-violet radiation can increase skin
cancer, retard growth in plants and animals, and even
disrupt the human immune system.
In the Montreal Protocol of 1988, the United States
joined with more than 160 other countries to phase out
the use of certain CFCs. In January 1996, the United
States imposed a ban on most CFC importation, though
existing stockpiles can be legally used up. Less
developed countries have until 2010 to stop manufacture.
After the Unites States phase-out began, a black market
in illegally imported CFCs developed in the United
States. CFC smuggling has a ready market of about eighty
million American cars built prior to 1994 that use Freon
as the refrigerant for their air conditioning system.
Estimates are that ten million pounds of CFCs already
have been smuggled into the United States.
The Environment Division became aware of the black
market for CFCs following a series of high profile cases
brought by the United States Attorney's Office in the
Southern District of Florida. In 1995, the Environment
Division invited EPA, Customs and IRS investigators from
key geographic areas to take part in a National CFC
Enforcement Meeting in Washington. The meeting was very
successful, and it led to seizures of CFCs in California,
Florida, Georgia, New Jersey, Puerto Rico and Texas.
Our CFC workgroup now meets quarterly and has expanded
to include Assista nt United States Attorneys and
criminal investigators from most major United States
ports, as well as representatives from Canada. We have
obtained a total of sixty-two convictions, thirty-six
years of imprisonment, and more than $58 million in fines
and restitution for CFC smuggling. In February of 1998,
the work group announced a string of new smuggling
charges, including the first charges related to the
illegal importation of an ozone depleting substance known
as Halon 1301, which is used primarily as a fire
suppressant. This approach, by the way, is a good lesson
in the successes of cooperative government.
Despite these successes, the potential for continued
CFC smuggling remains high. Recent intelligence
information indicates that over the last year, a number
of companies in China are producing CFCs and attempting
to export them to the United States under the guise of
"recycled product." This smuggling scheme,
along with others, will require United States law
enforcement to remain vigilant about CFC smuggling well
into the next century.
A second international enforcement initiative involves
our efforts to curb wildlife smuggling. International
wildlife smuggling constitutes a
six-billion-dollar-a-year black market in live animals
and animal products. This trade contributes directly to
the plundering of natural resources, often from
developing countries, and threatens the extinction of
protected species. For example, in a project we refer to
as Operation Chameleon, attorneys from the Environment
Division have spearheaded prosecution of several
international live reptile smuggling rings. Reptiles,
including tortoises, turtles, snakes, and lizards from
Africa, Asia, and South America, are prized by
underground dealers and collectors alike, and the
scarcity of a particular species often is reflected by
the price it commands.
One ring specialized in exotic wildlife found in
Madagascar, including Madagascan tree boas and rare
radiated and spider tortoises, protected by the
Endangered Species Act and international treaties.
Allegedly collected by local residents and smuggled by
boat from Madagascar, this cargo was then secreted in
airline baggage for the final journey to the United
States. Unscrupulous reptile dealers here can sell the
animals at a 10,000% mark-up on the price paid to the
collectors. Various members of this ring were indicted in
Orlando, Florida, in August 1996 on conspiracy,
smuggling, wildlife, and money laundering charges. Three
smugglers have been convicted and sentenced.
Another Operation Chameleon case targeted a company
called Strictly Reptiles, Inc., of Hollywood, Florida,
one of the nation's largest reptile import companies, and
its President, Michael Van Nostrand. They pled guilty to
conspiring to violate smuggling laws by bringing more
than 1500 rare reptiles from Indonesia into the United
States. Van Nostrand was sentenced to eight months in
prison, followed by eight months of home confinement.
Under his plea agreement, he also agreed to pay nearly
$250,000 to the World Wildlife Fund to implement a
government program to protect habitat in Indonesia.
This past May, another smuggler was apprehended trying
to smuggle fifty-seven live New Caledonia geckoes--worth
about $85,000--into the United States from New Zealand.
He was indicted on June 16, 1998, and in August he pled
guilty to a felony smuggling charge.
Additionally, in September 1998, we announced the
arrest of three individuals who allegedly participated in
a live, endangered reptile smuggling ring between Asia
and North America. The indictment alleges that the
defendants smuggled more than 300 animals, worth nearly
$500,000, into the United States. They allegedly used
human couriers, made Federal Express shipments with false
invoices, and concealed illegal animals within larger
shipments of legal animals. The reptiles were smuggled
from Malaysia, Hong Kong, Indonesia, and the Philippines.
The smuggling ring was infiltrated by agents of the
Special Operations Branch of the United States Fish and W
ildlife Service, which established an undercover wildlife
business in San Francisco. Of the 300 animals allegedly
smuggled, about thirty-nine of them are threatened with
extinction, including the plowshare tortoise and the
Komodo dragon. The plowshare tortoise is of particular
concern, because about seventy animals recently were
stolen from a breeding project in their native country of
Madagascar, and they have been the subject of an
intensive search by international wildlife preservation
groups.
C. TODAY'S NEWS
And now, for late-breaking news: today Attorney
General Janet Reno and EPA Administrator Carol Browner
announced one of the most important federal environmental
enforcement actions in American history. It is a landmark
Clean Air Act settlement --the largest in the history of
the Clean Air Act--with the seven largest manufacturers
of heavy duty diesel engines, representing 95% of the
United States' heavy diesel market, resolving charges
that the companies installed in their diesel engines
computer software that causes the engines to run within
legal limits during emissions tests, but to emit illegal
levels of Nitrogen Oxides when on the road. In 1998
alone, diesel engines emitted more than 1.3 million tons
of excess Nitrogen Oxides. Under the settlement, the
companies will: (1) spend at least $850 million to
introduce cleaner new engines, rebuild older engines to
cleaner levels, recall pickup trucks that have
"defeat devices" installed, and conduct new
emissions testing; (2) spend $109.5 million on other
projects to cut Nitrogen Oxide emissions, including
research and development on low emission engines that use
new technologies and cleaner fuels; and (3) pay a penalty
of $83.4 million. The injunctive relief required by the
settlement will prevent an estimated seventy-five million
tons of nitrogen oxide pollution, which causes smog,
premature death, asthma attacks, other breathing
problems, and acid rain. This agreement with the diesel
engine industry comes on the heels of similar settlements
with American Honda Motor Company for $267 million and
Ford Motor Company for $7.8 million for selling vehicles
with illegal devices that defeat emission controls.
Together, these historic settlements will mean much
cleaner air for the American people.
THE SUCCESS OF FEDERAL ENVIRONMENTAL
LAWS
Our extensive docket gives us daily contact with
cutting-edge issues in environmental policy, and I am
very pleased to report that our environmental laws are
working. Our progress in protecting the environment over
the past twenty-five years is largely an American success
story. Unfortunately, this success story is very much an
untold story. The commentator Mark Shields has pointed
out that, oddly enough, many politicians do not want to
take credit for this success. The Democrats are reluctant
to acknowledge that many of the landmark environmental
laws were signed by Republican Presidents. And many
Republicans do not want to admit that government--good
government, government done right--can produce tremendous
benefits for the American people. Let's look at the
facts.
Our air today is much cleaner than it was twenty-five
years ago, due primarily to the federal Clean Air Act.
Since 1970, lead emissions have dropped by 98%; emissions
of fine soot, which cause respiratory disease, have
fallen nearly 80%; and emissions of carbon monoxide, a
killer poison, have declined nearly 25%. The number of
people who live in areas with unhealthy air has been cut
in half and continues to fall.
Our lakes and rivers are much cleaner, thanks in large
measure to the federal Clean Water Act. In 1972, only
one-third of our nation's water bodies were safe for
fishing and swimming. Today, almost two-thirds are safe.
Lake Erie, once declared dead, is now teeming with fish .
The Hudson River in New York, the Potomac in our nation's
capital, and so many other rivers and bays across the
country are on the mend, and getting cleaner every year.
Here in Nebraska, key portions of the Niobrara River have
been designated as part of the national wild and scenic
river system. The Justice Department is currently
litigating a challenge to the decision of the United
States Fish and Wildlife Service to adopt a comprehensive
management plan that emphasizes local control of the
Niobrara River through the Niobrara Council. We are
confident that this strong federal-local partnership will
provide the environmental safeguards needed to protect
this valuable watershed.
Our drinking water is also much cleaner. More than 85%
of Americans are now served by community drinking water
systems that are in full and continuing compliance with
health standards. The 1996 amendments to the Safe
Drinking Water Act will lead to further improvements by
providing billions of dollars in federal funding to a
State Revolving Fund to help local communities protect
the quality of their water. Toxic emissions from United
States industry have fallen dramatically, and our
exposure to toxic wastes continues to fall as hundreds of
Superfund sites across the country are being cleaned up.
Our environmental laws have not only been effective,
they have been cost effective. To cite but one example,
the Clean Air Act has yielded monetary benefits that far
outweigh the costs. Total estimated benefits of the Clean
Air Act from 1970 to 1990 fall within a range of $2.7
trillion to $14.6 trillion, with a central estimate of
$6.8 trillion in benefits. This compares to total costs
of compliance during these years of roughly $500 million.
Not a bad return on investment. A note of caution: a
recent U.S. News & World Report article states that
in the past ten years we have begun to go backward,
largely because of so- called non-point source pollution.
Agriculture and construction are the major contributors
to this problem . President Clinton's Clean Water Action
Plan is designed to address some of the problem. In
Nebraska, you will want to pay special attention to this
development, especially because of the role of
agriculture in the state. Also, the State of Nebraska has
recently sued to challenge federal drinking water
standards for lead and copper, and to assert that
application of these standards to state-owned public
water systems violates the Tenth Amendment to the United
States Constitution. We are defending the case, and think
it has little merit, but you should be aware of this
additional step backward in Nebraska.
NEBRASKA SUCCESS STORIES
If anyone doubts that our environmental laws have been
successful, let them come to Nebraska. Right here, in
your own backyard, you have compelling evidence that all
levels of government are improving the quality of our
lives by protecting human health and natural resources.
I'd like to share seven examples.
First, let's look at the success of whooping cranes.
Their size, their snowy white beauty, and their dramatic
comeback from the edge of extinction have made whoopers
one of the best known endangered species in North
America. In 1942, development and habitat loss had
reduced the migratory population to only fifteen birds.
No other species is known to have recovered from such low
numbers. But a tremendous conservation effort has slowly
increased the migratory population, up to 182 last
winter. Many more whoopers are breeding in captivity,
including some at the Patuxent Wildlife Research Center
in Laurel, Maryland.
The governments of Canada, Mexico, and the United
States have worked together to protect the whoopers and
promote their recovery. Nebraskans can be proud to be
part of the international governmental effort to rescue
this bird, which uses Nebraska as part of its 2400-mile
migration route from the Canadian tundra to the gulf
coast of Texas. And it is the backdrop of government
protection that allows for extraordinary individual
efforts, like those of biologist Kent Clegg, who used an
ultra-light plane painted like a crane to guide a small
flock of whoopers on a nine-day, 800-mile trip from Idaho
to New Mexico last year. Mr. Clegg's birds were hatched
in the federal wildlife research center at Patuxent, and
the United States Fish and Wildlife Service assisted with
funding of the project. The whooping crane population has
a long way to go, but its prospects are much better than
they were just a few years ago.
The second Nebraska government success
story--preserving the majesty of the Sandhill
cranes--shows that environmental protection and economic
growth go hand-in-hand. Every year, these magnificent
creatures generate tens of millions of tourism dollars in
Nebraska. Each Spring a half-million Sandhill cranes--80%
of the worldwide population--descend upon the Platte
River Valley. Using Nebraska as a gas station of sorts,
they feed on waste corn and add 20% to their body weight
in fat reserves so they can survive the nesting season
further north. The shallow sandbars of the Platte River
protect them from coyotes, bobcats and other predators.
State officials in the Nebraska Division of Travel and
Tourism and the Nebraska Game and Parks Commission are to
be congratulated for developing eco-tourism and
protecting the State's natural resources. The Platte
River is one of the best bird-watching sites in the
country, and the cranes truly represent a success for
both nature and business. They teach us to reject the
false choice between the environment and the economy.
A third government success story--a program called
Partners in Pollution Prevention--exemplifies
federal-state government cooperation at its finest. This
partnership between the federal Environmental Protection
Agency, the Nebraska Department of Environmental Quality,
the Nebraska Energy Office and the University of Nebraska
assists small businesses in Nebraska by using engineering
student interns to provide pollution prevention outreach.
The three-year project not only provides a valuable
educational experience to the students, but also an
estimated savings to small businesses of more than
$100,000 in the program's first year. Best of all, by
promoting pollution prevention, the partnership helps
eliminate pollution before it is created in the first
place.
A fourth government success story--the Toxic Release
Inventory--shows how federal programs can empower local
communities. Each year, federal law requires industrial
facilities to disclose how much chemical pollution they
release into the environment. This information is then
compiled into the federal Toxic Release Inventory. Under
President Clinton's leadership, the EPA has doubled the
number of chemicals subject to reporting, and last year
the President announced a 30% increase in the number of
facilities required to disclose data.
The federal inventory provides the public and State
and local governments with a basic tool for making
risk-based decisions about management and control of
toxic chemicals. Not surprisingly, sharing this
information with the public has provided industry a
strong incentive for reduction of toxic chemicals. No one
wants to be the top polluter in the community. Here in
Nebraska, reported releases fell more than 47% from 1988
to 1996. In one year alone, from 1995 to 1996, releases
of toluene in Nebraska dropped more than 56% and releases
of methyl ethyl ketone dropped more than 62%, simply
because public reporting caused industry to reexamine
production processes and find ways to prevent pollution.
The Inventory has been one of the most cost-effective
pollution prevention programs ever, and Nebraskans--along
with other Americans across the country--are reaping the
benefits.
The fifth government success story is the Nebraska
Environmental Trust. This one-of-a-kind trust is funded
through profits from the Nebraska Lottery. Indeed, nearly
50% of the lottery profits go toward environmental
stewardship. Governor Nelson proposed the Trust in 1992,
and he has appointed its fifteen-member board, whose
mission is to protect critical habitat areas, promote
surface water quality, enhance groundwater quality, and
develop recycling markets. As of April of this year, the
Trust had awarded about $24 million in grants to protect
Nebraskans and their environment. More than 100 years
ago, Nebraska demonstrated that it was on the cutting
edge of conservation when J. Sterling Morton proposed the
very first Arbor Day, a coordinated effort to plant trees
to prevent erosion of farmland in Nebraska and elsewhere.
Nebraska's unique Environmental Trust shows that it is
still at the forefront of creative thinking designed to
protect human health and the environment.
A sixth government success story demonstrates
partnership between government and industry. In 1996, the
Environment Division settled an enforcement action
against Asarco, Inc.'s lead refinery here in Omaha. Our
complaint arose out of a citizen suit against Asarco for
alleged violations of the Clean Water Act based on
unauthorized discharges into the Missouri River. The
Consent Decree imposes injunctive relief to prevent
future violations and obtains a civil penalty of $3.25
million, one of the highest in the country. In addition,
Asarco agreed to pay $1 million toward two supplemental
environmental projects, one to acquire and maintain
wetlands along the Missouri River, and the other to
perform human health studies in the area affected by the
violations. The settlement demonstrates that even after
lawsuits are filed, cooperation between government and
industry can resolve the litigation and address the
continuing needs of the environment.
Finally, the seventh government success story is the
Kingsley Dam relicensing. Several weeks ago,
collaborative efforts among Nebraska, Wyoming, Colorado
and the federal government proved successful as the
Federal Energy Regulatory Commission voted to issue new
40-year licenses for the operation of the Kingsley Dam
and the 170-mile complex of canals, lakes and power
plants. The key to resolving this fourteen year, $36
million battle was an agreement by the affected states to
achieve a basin-wide resolution of conflicting uses, and
to share responsibility for meeting wildlife needs.
Under the leadership of Governor Nelson, the parties
developed the idea of an "environmental
account" of water, stored in Lake McConaughy for
release downstream in accordance with wildlife needs.
Secretary of the Interior Bruce Babbitt came to Nebraska
to provide support and encouragement for a basin-wide
approach among Nebraska, Wyoming and Colorado. In 1997,
the Secretary and the governors signed a $75 million deal
to provide for water and habitat for the next fifteen
years, with half to be paid by the federal government.
The agreement will allow the Platte River to continue
to provide more than $15 million worth of irrigation,
more than $55 million in power, hundreds of millions of
dollars in fishing, boating, and other recreational uses,
and critical support for the cranes, eagles and other
wildlife. The agreement also provides for the development
of thousands of acres of new habitat to reverse some of
the damage caused by past activities.
Nebraska, Wyoming and Colorado each realized that
their combined efforts, joined in cooperation and
compromise, were far more valuable than the sum of their
parts divided in conflict. If cynicism or apathy had
prevailed, this seemingly hopeless situation easily could
have fallen victim to stalemate. To be sure, the new
licensing is only one more step in the process, but the
agreement provides much hope for the future of the Platte
River, and it stands as a model of interstate cooperation
in resolving contentious water use disputes.
This success story stands in sharp contrast to the
litigation before the United States Supreme Court
involving the same three states and the United States
concerning the Court's 1945 decree that rations the North
Platt River. This case has been pending before the
Supreme Court for twelve years, and there has yet to be a
trial. Because this litigation is pending, I am somewhat
constrained in my ability to comment on it, but I think
everyone can agree that litigation has proven to be a
very expensive and time-consuming vehicle for resolving
this contentious dispute. Attorney General Reno has made
the use of Alternative Dispute Resolution
("ADR") a top priority at the Justice
Department, and we are looking for every opportunity to
avoid costly litigation where disputes can be better
resolved through ADR. Only time will tell whether
cooperation and compromi se will drive the resolution of
the pending litigation.
CONCLUSION
The many success stories in environmental protection
here in Nebraska and across the country show that we have
every reason to remain optimistic about the future, and
to look to our local, state and federal officials as
partners in the search for solutions. We owe it to
ourselves and our children to become involved in this
search. I urge the students of Creighton University to
consider a career in public service so that you can
create your own environmental success stories through
government work. We need your talent, your energy, and
your new ideas. However, if you choose a different career
path, treat your elected officials as partners and insist
that they treat you the same way.
Finally, to everyone here today, I say this: "Get
involved!" Democracy is work--find out about the
issues, look at information, ask questions. Do not be
satisfied with sound bites. If you set the standard for
what information you want, candidates and your government
employees and public officials will have to meet it.
Eternal vigilance is the price of liberty. Vote in the
upcoming election. Find out about the pressing
environmental issues in your community and help find
solutions. In your daily lives, leave a small footprint
by making environmentally sound lifestyle choices.
Educate yourselves, and then educate others. Help those
of us in the government protect our planet for future
generations. Remember the words attributed to Chief
Seattle: "We don't inherit the earth from our
parents; we borrow it from our children." Together,
we can return to our children a clean and healthy planet
Earth. Together-- government officials and citizens
alike--we can make a difference.
Thank you.
Delivered by Lois J. Schiffer
on October 22, 1998, at Creighton Law School.
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