The Wall Street Journal
Copyright (c) 1996, Dow Jones & Company, Inc.
Thursday, October 17, 1996
The EPA's Latest Power Grab
By James Bovard

President Clinton is proposing to allow the Environmental Protection Agency to confiscate the
assets of suspected polluters. Complying with environmental laws already costs individuals,
businesses and state and local governments more than $168 billion a year, according to the Small
Business Administration. Yet the administration is apparently not satisfied with financially
bleeding corporations and individuals to death: It wants to come in and seize the bodies, too.

The kind of asset-forfeiture law Mr. Clinton is proposing allows confiscation via accusation: A
federal agent need only accuse a person of an illegal act for that person's house, land or car
effectively to become the property of the federal government. In most forfeiture proceedings, the
person accused must prove that his house, car or the cash in his wallet was not involved in a crime
or other violation -- the government has no obligation to prove that the property is "guilty."
Government agencies routinely rely on hearsay evidence to justify such seizures; a rumor that a
corporation may have broken some obscure regulation could alone lead to a plundering of its assets.

Mr. Clinton made his proposal to expand forfeiture power in an August speech in Kalamazoo,
Mich. An "Environmental Crimes and Enforcement Act" his administration submitted to Congress
last month would allow the Justice Department to freeze a corporation's assets prior to trial. His
approach flies in the face of bipartisan efforts -- led by House Judiciary Committee Chairman
Henry Hyde -- to rein in federal forfeiture powers, already contained in more than 100 statutes. A
federal appeals court complained in 1992 that it was "troubled by the government's view that any
property, whether it be a hobo's hovel or the Empire State Building, can be seized by the
government because the owner, regardless of his or her past criminal record, engages in a single
drug transaction."

It is precisely the equation of corporations with drug dealers that the EPA is already using to build
support for its latest power grab. On Aug. 28 EPA Administrator Carol Browner declared on
CNN that corporate polluters should be treated just like drug dealers: "If you're polluting the
public's air and water, then the benefits you derive, the assets you have, can be taken. This is what
the president is proposing."

If anyone has any doubts about how the EPA would use the new forfeiture power, look at the
Superfund -- a program that often is simply robbery with an environmental badge. Though the
EPA does not have forfeiture powers under Superfund, it does have the power to impose liability
on almost anyone it chooses. And because the EPA relies on the legal doctrine of "joint and
several liability," anyone who sent anything to a dump that later became a Superfund site can be
held personally liable for the entire cleanup cost of that dump.

Under the law, the EPA has effectively no burden to prove that a company sent waste to a
Superfund site; instead, the company must prove itself innocent of ever having sent anything to a
site. At the Rosen Brothers Scrap Yard site in Cortland, N.Y., the EPA selected its lawsuit targets
largely based on scrap yard employees' memories of what had happened 20 years earlier.
Similarly, the EPA notified Formal Ware Rental Services of Tulsa, Okla., that it would be held
responsible for the cleanup of a local Superfund site; the only evidence linking the clothing rental
company to the site was the fact that it had paid someone $14 in 1972 to haul trash there. The
EPA has also fingered a Boy Scout troop as a "potentially responsible party" to finance the clean
up of a Superfund-designated scrap yard in Minneapolis.

The EPA would likely use its new forfeiture power in the same way that the Interior Department's
Fish and Wildlife Service uses its forfeiture power under the Endangered Species Act. For
example: On March 10, 1992, U.S. Fish and Wildlife Service and state agents drove 15 miles onto
Richard Smith's Texas ranch, accused him of poisoning eagles, and seized his pick-up truck. The
agents later tracked down Mr. Smith's 75-year-old father, W.B. Smith, and seized his pickup
truck -- threatening to strand him 10 miles from town. The agents produced no evidence to
support their accusation and returned the trucks nine months later without filing charges. The
elder Mr. Smith complained: "The Fish and Wildlife Service is out of control, and the Endangered
Species Act has given them the tools to destroy the ranching industry."

Some environmental activists are already seeking to abuse forfeiture laws in environmental
disputes. On Sept. 27, former California Gov. Jerry Brown told protesters fighting to block any
logging of a redwood forest: "You plant a hundred marijuana plants in the Headwaters, and you
know what the federal government would do -- confiscate the forest. So you know what to do." If
the EPA gets the proposed forfeiture power, environmental activists may be able to compel
federal control of an area simply by pouring a few quarts of used motor oil on a driveway or yard.

If the EPA gets into the property-forfeiture business, it will become vulnerable to the same
corrupting incentives affecting other federal agencies that share confiscated property with state
and local agencies. The Justice Department announced in January, for instance, that for the first
time, local and state law enforcement agencies would be allowed to use the proceeds from joint
local-state-federal forfeitures to pay police salaries. That decision was harshly criticized by some
law-enforcement officials who feared that it would lead to "bounty hunting" -- policemen devoting
their time to seizing property rather than fighting crimes. Pay raises, anyone?

Mr. Clinton's plan to expand government's forfeiture power is only his administration's latest
attempt to cure every problem with federal power. Yet neither he nor the EPA has done anything
to show that the federal government can be trusted with such immense powers.

---

Mr. Bovard is a fellow at the Competitive Enterprise Institute.

The Wall Street Journal
Copyright (c) 1996, Dow Jones & Company, Inc.
Friday, November 1, 1996
Letters to the Editor: Protecting the Victims Of Environmental Crime

James Bovard's Oct. 17 editorial-page article "The EPA's Latest Power Grab" is remarkably
inaccurate. The Environmental Crimes and Enforcement Act of 1996, if passed, would authorize
federal courts to order those charged with environmental crimes not to conceal or dissipate assets
needed to pay for damage caused by their crimes.

The government must first show probable cause that assets will be concealed or dissipated, and
that the assets are necessary to repair environmental harm. A defendant can avoid such an order
by showing that other assets are available to fix the harm, or that the harm has already been
remedied. This authority is nothing new. The bill simply makes explicit authority already available
to courts under the All Writs Act.

The bill clarifies the authority of federal courts to order restitution, but the defendant keeps
possession of all assets until convicted and ordered to pay a fine or restitution. Notwithstanding
Mr. Bovard's assertions to the contrary, the bill does not authorize EPA to seize anything.

This balanced and reasonable approach would assure that the convicted criminal, rather than the
taxpayer, pays for cleanups. Environmental crimes are real crimes with victims who deserve
protection from pollution. In these and other ways, the bill would help assure that protection. The
Justice Department looks forward to speedy passage in the 105th Congress.

Lois J. Schiffer

Environment and Natural

Resources Division

Department of Justice

Washington

The Wall Street Journal
Copyright (c) 1996, Dow Jones & Company, Inc.
Tuesday, November 12, 1996
Letters to the Editor: Green Raiders Could Seize Assets

I was amused by the Nov. 1 Letter from Lois Schiffer, director of the Justice Department's
Environment and Natural Resources Division, who claimed that my Oct. 17 editorial-page article
"The EPA's Latest Power Grab" was "remarkably inaccurate"; in the piece, I discussed the Clinton
administration's calls for forfeiture power over corporations that are accused of violating
environmental laws

However, the Justice Department's reply seems to be based on a breathtaking fiction -- pretending
that Environmental Protection Agency chief Carol Browner does not exist. Ms. Browner declared
on national television on Aug. 28: "You know, right now, if you're running drugs in this country
and you are caught, your assets can be taken -- there is something called 'asset forfeiture.' Well,
we think the same should be true for the polluter. If you're polluting the public's air and water,
then the benefits you derive, the assets you have can be taken. That is what the president is
proposing." Greenwire, an environmental news service, correctly noted the following day that Ms.
Browner's proposal was "sure to be controversial." Neither Ms. Browner nor anyone else in the
EPA has given any indication that her agency and the administration do not stand by her statement.

Justice has offered no reason why Ms. Browner's comments should not be taken as an expression
of the administration's intent on environmental policy. If the secretary of housing proposed that

the government should be permitted to confiscate private apartment houses because of alleged
violations of an obscure housing regulation, then that would be news. Given the pervasive abuses
of federal forfeiture power that have already occurred, we have a right to be apprehensive when
the EPA director calls for the use of forfeiture power against environmental law violators.

Assistant Attorney General Schiffer's letter focuses on the details of a bill that the administration
submitted to Congress on Sept. 18. The administration knew this Congress would not have time
to act on the bill, so the proposal was a mere formality, perhaps simply another effort to create an
applause line in Bill Clinton's campaign speeches. However, there is no reason to presume that the
administration will not propose a more sweeping, punitive bill when the new Congress convenes
in January.

My article correctly stated that the bill proposed would give the federal government the power to
freeze an accused corporation's assets before trial. This is a very serious power that would
significantly increase federal agents' power to browbeat, intimidate and abuse business owners and
individuals. Indeed, a White House press release on Aug. 28 declared that the administration's bill
"will ensure that the assets of environment criminals can be secured even before conviction. . . ."
[emphasis added]. In other areas of law, the power of federal prosecutors to freeze assets
routinely destroys an individual's or a corporation's ability to mount a defense against criminal
charges, thereby making it easier to get a conviction and get a judge's permission to permanently
seize assets. This gives the government power to effectively punish people before any finding of
guilt by an independent federal judge.

Ms. Schiffer states that, under the president's legislation, the "government must first show
probable cause that assets will be concealed or dissipated." However, "probable cause" is a very
low standard of proof and often can be satisfied by the mere assertion of some unidentified
confidential government informant. Also, the new Clinton environmental bill would allow the
government to conduct sting operations against corporations to lure them into violating
environmental laws, a power that has also been grossly abused by federal prosecutors in the past.

Unless and until Ms. Browner comes forward and repudiates her Aug. 28 comments, there is no
reason to assume that the Clinton administration is not seeking forfeiture power over alleged
environmental violators.

James Bovard

Washington