July 31, 2003
ENERGY POLICY ACT OF 2003CONTINUED
Mr. INHOFE. I would like to engage the Senator in a colloquy and draw the Senate's attention to several statutes which have been, through litigation, expanded beyond what are believed was the intent of Congress.
Mr. DOMENICI. Is the Senator referring to the criminal negligence provision of the Clean Water Act and the strict criminal liability provision of the Migratory Bird Act and the Refuse Act which can be triggered by a simple accident?
Mr. INHOFE. Precisely. Now, I want to be clear that I do not want to suggest for a minute that we should make it easier for polluters to damage the environment or put the public at risk.
Mr. DOMENICI. But the situation the Senator is talking about refers to clear accidents involving ordinary people, correct?
Mr. INHOFE. Yes. Recent court decisions have made it clear that employees, at any level, who are involved in environmental accidents, can be prosecuted criminally, and potentially imprisoned. These are non-deliberate environmental accidents that do not threaten or harm others.
Mr. BREAUX. I am also concerned about criminal liability as it applies to oil spills. In fact, during the 106th Congress, I introduced legislation to address a long-standing problem which adversely affects the safe and reliable maritime transport of oil products. The legislation was aimed at eliminating the application and use of strict criminal liability statutes, statutes that do not require a showing of criminal intent or even the slightest degree of negligence, for maritime transportation-related oil spill incidents.
As stated in the Coast Guard's environmental enforcement directive of 1997, a company, its officers, employees, and mariners, in the event of an oil spill "could be convicted and sentenced to a criminal fine even where [they] took all reasonable precautions to avoid the discharge." Accordingly, responsible operators in my home State of Louisiana and elsewhere in the United States who transport oil are unavoidably exposed to potentially immeasurable criminal fines and, in the worst case scenario, jail time. Not only is this situation unfairly targeting an industry that plays an extremely important role in our national economy, but it also works contrary to the public welfare.
To preserve the environment, safeguard the public welfare, and promote the safe transportation of oil, we need to eliminate inappropriate criminal liability that otherwise undermines spill prevention and response activities. I pledge my support to work with my colleagues to address these environmental liability issues.
Mr. INHOFE. The American Waterways Operators have devoted a great deal of time to training mariners and vessel operators. Clearly, the Coast Guard goes to great lengths to ensure its officers and staff are well trained. However, unfortunately, accidentstrue accidentshappen.
Mr. DOMENICI. My colleagues are clearly describing a legal minefield where employees involved in an accident become less likely to cooperate with accident investigations because they are being advised by counsel not to potentially incriminate themselves.
Mr. INHOFE. That is absolutely correct.
Mr. DOMENICI. And as chairman of the Environment and Public Works Committee, is it the Senator from Oklahoma's position that this leads to less environmental safety instead of more?
Mr. INHOFE. Indeed. I also wish to draw the Senator's attention to the Clean Air Act, which has a different, and I suggest, more appropriate provision of negligent endangerment.
Mr. DOMENICI. I am familiar with the provisionsit requires risk of physical harm to the public for an accident to trigger criminal prosecution.
Mr. INHOFE. Yes. That is the type of activity for which we should reserve criminal prosecution. I also remind my colleague that the Clean Water Act clearly allows prosecution for deceitful or purposeful environmental damage, or for fraudulent efforts to conceal such damagea provision we would not change.
Mr. DOMENICI. I agree with the Senators' assessment, share their concern, and look forward to working with them to address this important issue.