Battling Crimes Against Nature

By Alain L. Sanders

When the Exxon Valdez fouled Alaska's waters a year ago, Americans reacted with shock and indignation. Last week it was Exxon's turn to be shocked. U.S. Attorney General Dick Thornburgh announced that the company had been indicted on five criminal counts stemming from the March 1989 oil spill. That action, which reportedly followed the breakdown of a plea bargain that Alaskan officials opposed as too lenient, could cost Exxon $700 million in fines if the company is convicted. Said Thornburgh: "We intend to see that the laws are fully and strictly enforced."

Thornburgh's tough words seemed to signal that the Bush Administration, stung by charges of foot dragging on the environment, was moving to crack down on major polluters like Exxon. The company pronounced itself "disappointed" at the indictments and vowed to fight them in court. The prosecution may yet result in a settlement. But no matter what happens, the case will further complicate a gargantuan legal wrangle that already involves more than 150 civil complaints as well as the separate prosecution of tanker captain Joseph Hazelwood by the state of Alaska.

The Exxon indictment is only the latest example of a growing legal trend. In the past two decades, rising concerns over conservation, pollution and industrial accidents have crystallized into a large body of environmental regulations. "Congress and the states have created thousands of new laws governing the environment," says Washington lawyer Ridgway Hall, "and in each of the past four years the Justice Department has brought increasing numbers of environmental actions." As a result, the 20,000 attorneys who specialize in environmental law have become some of the most sought after professionals in the U.S. "Business is unbelievable," says Chicago lawyer Richard Kissel. "It's the largest explosion of legal work that I've seen."

One of the splashiest growth areas has been criminal environmental law. The Justice Department now has 20 full-time lawyers working on such prosecutions, backed up by U.S. attorneys and FBI agents across the nation, plus 50 criminal investigators at the Environmental Protection Agency. In seven years, the Justice Department's special environmental unit has obtained more than 400 settlements or convictions against individuals and corporations, yielding fines of $26 million and prison sentences totaling 270 years. Among the defendants: Ashland Oil, fined $2.25 million last year for the collapse of a storage tank near Pittsburgh that discharged more than 700,000 gal. of diesel fuel into the Monongahela and Ohio rivers; Texaco, fined $750,000 in 1988 for failing to conduct important safety tests on a California off-shore drilling rig; and Ocean Spray Cranberries, fined $400,000 in 1988 for discharging acidic waste water from its processing plant in Middleboro, Mass.

Although the upsurge of prosecutions has naturally created a demand for top environmental defense attorneys, the biggest draw of all is corporate work. Gone are the days when environmental law was the lone province of conservationist lobby groups and government agencies. Today's environmental lawyer is more likely to wear a pinstripe suit and dispense advice across the company conference table. "The reason is simple," says Howard Learner of Business and Professional People for the Public Interest. "If you're in a real estate transaction, you want to know what's buried beneath the land and what's in the water supply." Preventive action, in short, has become the main focus of this growing branch of legal practice.

More than any other single factor, it is the federal Superfund act that gave environmental law its impetus. "Some have suggested that the statute was the public works act of the 1980s for lawyers," says Tulane University law professor Robert Kuehn. The complex legislation, which created a trust fund in the billions to treat hazardous waste sites, mandates that polluters should be held responsible for the costs of cleaning up. What keeps Superfund lawyers busy is the effort to determine exactly who should be found liable. For example, should it be the firm that discharged the waste, the current property owner, the banks that hold the mortgage or the insurers?

Proceedings under traditional statutes like the Clean Water Act also keep lawyers occupied. So does the heavy lobbying surrounding new legislation. Last week Senate leaders announced a delicate compromise on a new Clean Air Act to regulate car and factory emissions, but the measure will face tough going on the floor.

Legal business also flows from the environmental impact statements that are now necessary for virtually any major construction. Meanwhile, good old- fashioned conservationist causes, like saving trees and endangered animals, continue to spark hot legal disputes. Says Michael Anderson, an attorney for the Wilderness Society: "There has never been a time when legal action has been used more effectively than now." That may be good news for those seeking to put the law on the side of the environment. But it is even better news for those lawyers who are making big bucks from the booming trade.

With reporting by Jerome Cramer/Washington, with other bureaus