Why Does the EPA Have a Criminal Program?

The answer is simple; because it works. The criminal program was established in the early/mid 1980s primarily because of the efforts of Rep. John Dingell. The Environmental Protection Agency (EPA) found in its enforcement of the nation’s environmental laws that many violators, when fined for their violations, would write a check and call it the cost of doing business. Some violators even went so far as to prepare cost-benefit analyses to determine if a potential fine would still be more cost effective than spending the money to comply. Once individuals were exposed to incarceration, the costs got a lot higher and compliance increased. There are folks out there though that either to save money or to unscrupulously make money continue to violate the environmental laws. These folks need to go to jail. Their decisions can place employees and citizens in jeopardy and certainly place our environment in jeopardy.

The EPA criminal program began as an experiment in 1983. The EPA Office of Inspector General (OIG) wanted to execute the duties of this new criminal program, but Congress was so irritated at the way in which the EPA OIG handled the Anne Gorsuch situation(1) that Congress created a separate entity within the EPA. That entity is now known as the Criminal Investigation Division (CID). In the beginning, the special agents did not have much authority, nor were they carrying weapons. Within a few years though, that changed, and EPA CID special agents now have full US Title 18 authority. Their federal law enforcement is identical to that of the FBI. Very few federal investigative agencies possess that authority.

After the initial experiment, the program was instituted with 23 investigators possessing previous federal or state law enforcement experience. The numbers slowly increased until 1989 when there was a “massive hiring” of eight new special agents, bringing the total to 52 nationwide. I was one of those hired in late 1989, leaving the US Customs Service and joining the EPA CID San Francisco office in January 1990. The criminal program has suffered since its beginning with too few resources. There have never been enough personnel to do the job properly and, especially since 9/11, there have been misguided changes on emphasis.

Now, with the failure of EPA CID to aggressively investigate the Deepwater Horizon disaster, we have to ask, “Why does EPA have a criminal program if they are not going to do their duty?” I gave almost 19 years of my life to this program and truly believe in its mission, but I am sorely disappointed in how it has responded to this blatantly potential crime. Apparently Fred Burnside, the top cop in the EPA criminal program, spoke to a meeting of mid level CID field managers this week and stated that CID has been “on the ground and running since day one.” Fred, if this is true, what has CID been doing? There have been no interviews conducted of rig employees and no grand jury subpoenas have been served. I know you know how to conduct this type of investigation, so I suspect you are practicing the art of damage control at this point.

It seems that CID has not been doing its job. I have to suspect that someone higher up in government has directed this inaction. That in and of itself is troubling. What is also troubling though, is that high-ranking federal law enforcement officials followed this instruction and failed to do their jobs and failed to bring the criminal program to bear in this the worst environmental disaster in the nation’s history. BP is a big and powerful corporation with many connections to highly-placed individuals in the government. An intensive investigation into BP would require a significant dedication of resources and, by its nature, would be extremely complex and fraught with possible intrigue. I cannot think of a better type of case for CID to tackle and, yet, there is no evidence that CID has done a darn thing. What types of cases are CID working? What would CID rather investigate than this?

I cannot be the only one asking these questions. If CID will not aggressively tackle BP, a serial environmental criminal, then there is no excuse wasting taxpayer money on CID. Perhaps CID is a sham and has been exploited by both parties over the years as way to demonstrate to the public that the (fill in the blank) administration is serious about protecting the environment. If an administration were truly serious, CID would have the resources it truly needs, and if this Obama administration were serious, CID would have been down there in force from day one.

CID is currently suffering from low morale caused by inept senior management practices. The EPA Assistant Administrator for Enforcement has called for an independent outside review of the program. Morale can only have sunk further by CID management’s current failure. Perhaps the EPA OIG should take a close look and find out why CID management is not letting dedicated CID employees do their jobs. Let us hope we have come a long way from the Gorsuch years.

Footnote:

1. Anne Gorsuch was the EPA administrator from 1981-1983. She cut the budget by over 20 percent and significantly reduced the number of enforcement cases. She became the first executive agency head to be found in contempt of Congress. The EPA OIG bungled an investigation into her activities. Many within the EPA consider her to be the epitome of inept management and corporate caretaking.