[Congressional Record Volume 156, Number 107 (Tuesday, July 20, 2010)]
[Senate]
[Pages S6022-S6023]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        REQUEST FOR CONSULTATION

  Mr. COBURN. I ask unanimous consent to have printed in the Record a 
letter dated July 20, 2010, to Senator McConnell.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                                                    July 20, 2010.
     Hon. Mitch McConnell,
     Senate Minority Leader,
     U.S. Senate, Washington, DC.
       Dear Senator McConnell: I am requesting that I be consulted 
     before the Senate enters into any unanimous consent 
     agreements or time limitations regarding S. 3466, the 
     Environmental Crimes Enforcement Act. My concerns with this 
     bill include, but are not limited to, those outlined in this 
     letter.
       Individuals and corporate entities who commit environmental 
     crimes must be held accountable for their actions. However, 
     while this bill is well-intentioned, I believe current law 
     provides sufficient penalties for environmental wrongdoers, 
     and I am concerned this bill goes too far in increasing 
     enforcement provisions by mandating restitution to victims of 
     environmental crimes.
       This bill expands the list of crimes which require 
     mandatory restitution by adding environmental crimes covered 
     by the criminal enforcement provisions of the Clean Water 
     Act. Currently, the list of crimes subject to mandatory 
     restitution is limited to violent crimes, certain offenses 
     against property under the Controlled Substances Act, and 
     crimes relating to tampering with consumer products. No 
     environmental law is listed under the mandatory restitution 
     statute.
       It is clear this bill is intended as a response to the 
     current oil spill in the Gulf of Mexico. However, it should 
     be noted there is already a basis for holding BP liable for 
     the Deepwater Horizon oil spill, if it is found to be 
     negligently or willfully responsible--the Oil Pollution Act 
     of 1990. The Oil Pollution Act allows for liability up to all 
     removal costs plus $75 million, and would eliminate any cap 
     whatsoever if the spill was a result of ``gross negligence or 
     willful misconduct'' or a ``violation of an applicable 
     Federal safety, construction, or operation regulation.''
       There are also criminal penalties for violations of the 
     Clean Water Act. These penalties, which may be enforced for 
     negligent, knowing, and ``knowing endangerment'' violations, 
     include up to 3 years in prison and up to $1 million in fines 
     for each violation. Finally, according to Attorney General 
     Holder, BP may also face civil and criminal action under the 
     Migratory Bird Treaty Act and the Endangered Species Act.
       If Congress feels these civil and criminal penalties are 
     insufficient, we should consider increasing them by amending 
     the relevant penalty provisions. Similarly, if Congress 
     believes mandatory restitution should be expanded into areas 
     beyond the limited crimes to which it currently applies, we 
     should address restitution as a whole, rather than singling 
     out certain issues or individual crimes. Legislation 
     expanding victim restitution has been introduced in the past, 
     and if Congress now believes expansion is appropriate it 
     should take the time to consider broad legislation on the 
     topic, rather than a specific, targeted response to a current 
     event.
       Furthermore, I believe this bill is overly broad, as it 
     will criminalize ordinary Clean Water Act violations. For 
     example, this bill would create mandatory restitution as a 
     response to: a property owner who constructed feeder ditches 
     and discharged fill without a permit; a mining company that 
     discharged drainage into navigable creeks without a federal 
     permit; and coastal landowners who discharged sand and dirt 
     in their ditching activities without a permit. While these 
     actions are all violations of the Clean Water Act, I do not 
     believe they are intended to be brought under the mandatory 
     restitution statute. Nevertheless, as currently constructed, 
     this bill would indeed expose the violators to mandatory 
     restitution.
       I am concerned the changes specified in this legislation 
     may be unnecessary, overly broad, and may contribute to the 
     over-criminalization of federal law. In addition, adding the 
     Clean Water Act to the mandatory restitution statute will 
     create increased liability, additional private rights of 
     action, and increased litigation. Finally, it does not appear 
     this bill is needed in order to prosecute legitimately liable 
     companies for violations of the Clean Water Act. 
     Nevertheless, this bill has been expedited through the 
     legislative process, with no hearings scheduled to explore 
     its need and little time allowed to properly evaluate the 
     consequences of the mandatory restitution provision.

[[Page S6023]]

       In the end, I believe there are more appropriate responses 
     Congress should pursue if current penalties for environmental 
     wrongdoers are insufficient, and I believe expedited, 
     targeted legislation of this nature is likely to create 
     unintended consequences which outweigh any positive value it 
     may add to our environmental law matrix.
           Sincerely,
                                              Tom A. Coburn, M.D.,
     United States Senator.

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