Published in Providence Business News (December 20, 1993)
Strange things sometimes happen in the enforcement of environmental laws. Perhaps this represents natural growth pains in a relatively new discipline which is at the intersection of public health concerns, expansive police powers, sometimes questionable “junk” science, and emerging technologies.
Whatever the reasons, what follows are some environmental vignettes which suggest that you can’t take everything seriously in environmental law.
When Florida Fish and Game officials seized two alligators from John M. Butler, they set off an environmental litigation of constitutional proportions. Mr. Butler asserted he had been denied a hearing and thus due process of law, as guaranteed by the U S Constitution’s Fourteenth Amendment. A Florida county court first agreed to return the alligators to Mr. Butler, then on rehearing reversed itself, ruling that Mr. Butler lacked a permit to posses the two alligators. The circuit court reversed the county court, holding Mr. Butler was denied a due process hearing. Yet another court, a Florida court of appeals, found no hearing was necessary, but the three judges disagreed among themselves on this issue.
What the court never explained, however, was why Mr. Butler pursued so aggressively the return of his “pets,” which one court described as “two deformed alligators.” When environmental officials visited Mr. Butler’s mobile home, they found both alligators in Mr. Butler’s bed, and Mr. Butler “bleeding from an injury caused by one of the animals.” Clearly, there was more to this story than reported in the court’s decision.
Is gun control an environmental law issue? It appears so. A Federal Court in Connecticut addressed the question of whether a rod and gun club violated federal environmental laws by engaging in skeet and trap shooting. At issue is whether lead shot and clay target debris, much of which ended up in Long Island Sound, which borders the gun club’s property, was the impermissible disposal of hazardous waste. Environmental studies showed elevated levels of lead in sediment and shell fish.
The court’s decision labored for seven pages to find that the lead shot discharged from shotguns constituted “discarded” material. Finally concluding that the lead shot was “discarded,” the court found it to be solid waste, and hazardous waste by virtue of its toxicity. The court rejected arguments that if the lead shot was “discarded,” then so were lead sinkers used in fishing, when fishing lines broke, and so were golf balls hooked or sliced into natural water hazards. In rejecting these arguments, the court relied on the sheer volume of the lead shot and target debris. Over its 70 year history, gun club enthusiasts had shredded over eleven million pounds of clay targets, with four million pounds of lead, which tonnage dotted the landscape and the bottom of Long Island Sound. “[G]olf balls may be solid waste, but might never reach the required quantity to become subject to … regulation as a hazardous waste,” the court said, no doubt giving comfort to golf course owners throughout the country.
However, not all target practice will run afoul of federal environmental laws. Another federal court has ruled that the dropping of Navy bombs was not the creation of solid waste, referring to this activity as only the “incidental depositing of debris.”
In California’s most recent devastating fire, some homeowners in Riverside County had been told by the U.S. Fish and Wildlife Service that they could not protect their homes by digging firebreaks in the flammable vegetation surrounding their property. The reason; their homes were located in a 77,000 acre “study area” for the kangaroo rat, an endangered species. Digging firebreaks would “harm” the kangaroo rat in violation of the Endangered Species Act. Violators were threatened with punishment including fines and imprisonment.
The homeowners generally obeyed the government’s directive, to the appropriate consternation of local fire officials, and many lost their homes. One disobeyed, and his home was saved by the firebreak. When asked if he feared prosecution by the federal government, he told a reporter: “I don’t think they’re THAT stupid.” Let’s hope he’s right.
The Arizona State Department of Environmental Quality received an unusual request for issuance of an air quality permit to ensure that emissions from a state facility would not be harmful to public health or the environment. The facility was the state prison’s gas chamber. The permit was issued after computer modeling determined there would be no adverse ambient health impacts from the release of cyanide – well, almost no adverse health impacts.