Will EPA have to pay for polluting river?

Editor’s Note: Danny Cevallos is a CNN legal analyst and a criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter: @CevallosLaw. The opinions expressed in this commentary are solely those of the author.

Story highlights

An EPA cleanup team accidentally caused a massive spill of pollutants into the Animas River

Cevallos: The law gives government immunity from liability for the damages it causes, though there are ways around that

CNN  — 

Recently while the Environmental Protection Agency was excavating a mine near Silverton, Colorado, to clean up the polluted water releases from the mine, a contractor working for the EPA let loose 3 million gallons of contaminated water from the mine into a tributary of the Animas River.

That’s right. EPA was there to help fix the water, and instead ended up contaminating a lot more water.

Danny Cevallos

Many are demanding that EPA be held liable for this environmental disaster, which has flooded our screens with images of mustard-colored streams. In the past, when companies like offshore oil-drilling company Transocean and oil company BP were deemed responsible for leaking millions of gallons of oil into the Gulf of Mexico, corporate heads rolled. Money settlement figures were in the billions, and employees were criminally prosecuted.

So, will the EPA similarly be held accountable? Not likely.

As Mel Brooks famously said: “It’s good to be the King.” And, as President Nixon infamously said: “When the President does it, that means that it is not illegal.”

In modern times, for the EPA, it’s good to be the government, especially when what it does is not illegal. Though the United States is no longer (technically) a monarchy, the government still enjoys today what is called “sovereign immunity” from civil and criminal liability. The sovereign immunity doctrine prevents any entity, governmental or private, from suing the federal government unless – unless the government gives its permission – to be sued. And, as you might expect, when the government decides when and if the government can be sued, well, they have a tendency to side with themselves.

To be fair, the government does give its consent to be sued from time to time. Many of the environmental statutes, like the Clean Water Act and the Safe Drinking Water Act, contain provisions that allow citizens to sue the EPA when the EPA fails to perform an act or duty.

Just because the government consents to being sued doesn’t mean that the government can’t make it an unappetizing process. Citizen suit provisions – against both federal and state agencies – usually require extra obstacles, like formal notifications in advance of filing the lawsuit. Claims for civil wrongs against the government are barred unless presented in writing to the appropriate Federal agency within two years.

The takeaway: Even when the government waives its immunity, it still partially cloaks itself in all manner of procedural defenses against a would-be plaintiff.

It’s interesting that the same behavior that will get a CEO indicted, or a company sued into bankruptcy, might not even be actionable against the government.

Sovereign immunity isn’t just a legal doctrine. It’s a culture. Even if you don’t work for or with the government, you and every other citizen has been exposed to the sediment of immunity.

Don’t believe me? Pick up the phone and call the 1-800 number for Chick-fil-A and ask a question about their spicy chicken sandwich deluxe. Then hang up and call your local government agency to find out about how to get the licenses and permits if you want to open your own Chick-fil-A. Odds are, the private corporation will burn more calories providing you services than the public entity.

We’ve all wasted time on hold with government entities, where it’s apparent there is zero quality control, and customer service just ain’t a priority. Don’t get me wrong: you can reach a helpful person at a courthouse or a probation department, but they are helpful because they choose to be – not because the system incentivizes service.

Private companies, on the other hand, offer 50 different ways to reach them: fax, e-mail, Twitter, online chats, are only a few. Good luck finding anything other than a main telephone number for municipal administration services.

To be fair, if you told me tomorrow that my private practice was immune from all criminal, civil, or professional liability, and I’d get a pension when I retired, I’d probably stop answering the phone and sleep til noon. Heck, I’d probably start leaving work at three and taking three-month paid vacations in the summer.

Of course, I’m kidding. Even government employees don’t take three-month summer vacations – oh wait – well, some do, but that’s not the question here. The question is whether sovereign immunity is good policy when the government does something really negligent.

Hopefully the government will do the right thing and take care of those states and citizens who have been affected by the spill, without lawsuits and courts. Perhaps federal agencies will provide assistance and services to those damaged by the pollutants in the river. Then again, good-intentioned federal agencies trying to help is exactly why this happened in the first place.

To be fair, the EPA has been sued in the past and will be sued again. And while suing the “King” is rarely easy, it can be done. But it’s not so much the government’s legal immunity, but the culture of immunity that is the problem. When private companies cause ecological disasters, we go after them in criminal and civil court. When the government does the same thing, it feels like the punishment is less severe.

Maybe President Nixon was right. Maybe when the government, the executive, or the king does something illegal, it becomes legal simply because the government does it. When President Nixon said this in an interview, we were shocked. Maybe he wasn’t that far off.

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