Lawbreakers or bureaucrats' victims? Jail in wetlands case points to controversy

June 27, 1996|By Timothy B. Wheeler | Timothy B. Wheeler,SUN STAFF

James J. Wilson hardly looks like a felon.

But the white-haired, 63-year-old real estate developer, chairman of Interstate General Co., has a date to report to federal prison in Cumberland in August. He and the companies he controls were convicted of illegally filling about 70 acres of wetlands in Charles County, where they are developing a Columbia-style planned community near Waldorf.

Wilson, sentenced last week to 21 months in prison by a federal judge in Greenbelt, joins a growing number of people and businesses that have gotten a criminal record for violating environmental laws.

Despite some efforts in recent years to encourage voluntary compliance with environmental laws and regulations, the Environmental Protection Agency also has been launching more criminal investigations of suspected violators than ever before.

The number of cases referred by EPA to the Justice Department for criminal prosecution has quadrupled -- from 56 in fiscal 1990 to 220 in 1994, the last year for which official figures are available.

According to EPA figures, charges were brought against 250 individuals and corporations in 1994 -- 40 percent more than the year before -- and 99 years' worth of jail sentences were imposed. Cases like Wilson's, however, have prompted conservatives and corporate lawyers to question whether polluters deserve to be treated like drug dealers or bank robbers. The growth in environmental prosecutions represents a federal bureaucracy run amok, they say.

"That's like being sentenced to prison for jaywalking," Paul Kamenar, director of the conservative Washington Legal Foundation, said of the Wilson-IGC case.

"As far as we can tell, not a single fish, bird or sea lion was either killed, injured or even threatened," said Kamenar, whose group represented a Virginia man jailed in another Maryland wetlands case. "To have a first-time offender sentenced to jail for almost two years is a complete waste of tax dollars and is excessive punishment."

Government lawyers and environmentalists disagree.

"What is so special about companies and people who violate environmental laws that they should be treated differently than other violators of business laws?" Jane F. Barrett, the assistant U.S. attorney who prosecuted Wilson, asked at a recent seminar at the University of Maryland Law School.

But wetlands cases -- there were 29 in the past decade, a fraction of the total environmental cases -- have been especially controversial, partly because of the difficulty in determining what a wetland is and partly because of the fierce resistance to government land use restrictions by farmers, developers and many landowners.

"It's a horrible, horrible case -- a horrible, horrible outcome," Lisa Jaeger, a lawyer with Defenders of Property Rights, a Washington lobby group, said of the Wilson case. "It's hard to believe we have criminals on the street and IGC facing this kind of nightmare."

The company had warned it would have to file for bankruptcy if fined heavily.

Kamenar and other critics contend that because of the complexity of many environmental laws, violations would be better handled by issuing administrative citations or stop-work orders, levying fines and by filing civil lawsuits. Kamenar contended that companies whose toxic discharges caused fish kills had been handled with civil fines rather than criminal charges.

"There's no rhyme or reason for the government's decision to prosecute," contends Kevin Gaynor, a corporate lawyer in Washington, who likens environmental regulations to the tax code.

According to Gaynor, the EPA referred a record 286 cases for criminal action in fiscal 1995. While prosecutions rose, the number of cases referred for civil action actually dropped -- from 430 in 1994 to 208 last year, he said.

Gaynor's figures could not be confirmed, but federal officials don't dispute that they are prosecuting more environmental offenses.

"The number of criminal cases is going up, obviously," acknowledged Martin Harrell, an enforcement attorney in EPA's Mid-Atlantic regional office in Philadelphia.

But Harrell noted that far more violations of regulations are handled administratively, with a letter from the government citing the company or individual and demanding payment of a penalty. In 1994, for instance, the EPA took nearly 3,600 such administrative enforcement actions nationwide.

At least a partial reason for the the growth in environmental prosecutions may be that there are more government investigators. The number of EPA criminal agents has more than doubled, from 47 in fiscal 1989 to 123 in 1994.

In the mid-Atlantic region, the EPA has nearly quadrupled its agents, from four in 1988 to 15 now, said Harrell. There are three full-time lawyers working on enforcement cases, he said, compared with one part-time lawyer -- himself -- eight years ago.

To Gaynor, the growth in prosecutions is directly related to the increase in "investigators in the field trying to justify their existence."

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