Warrantless Administrative Searches under Environmental Laws: The Limits to EPA Inspectors' Statutory Invitation

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I. INTRODUCTION

The Fourth Amendment to the U.S. Constitution protects citizens' privacy from unreasonable searches and seizures that are unsupported by a warrant based on probable cause.(1) As a general rule, a warrantless inspection of a private dwelling by a municipal administrative officer without proper consent is unconstitutional.(2) The U.S. Supreme Court extended this general rule to protect business owners and operators because they also have an expectation of privacy against unreasonable administrative searches of their commercial property.(3) The rule is not absolute. Supreme Court decisions have created numerous exceptions to the search warrant requirement,(4) including an administrative search of a pervasively regulated industry.(5)

The likelihood of an Environmental Protection Agency (EPA) inspection at any particular business varies according to certain factors, including the type of business and the goals of the environmental statutes being enforced. Nevertheless, inspections are a concern for virtually all business owners or operators when the consequences of violations include civil and criminal sanctions. Because one of EPA's top three priorities is multimedia inspections,(6) businesses subject to regulation under more than one environmental law should be particularly concerned. Because the rationale supporting multimedia inspections is the economical use of EPA resources concentrated at any given inspection site, businesses can expect, if not more frequent, at least more thorough EPA inspections under EPA's multimedia enforcement strategy.

In the recent case of United States v. V-1 Oil Co.,(7)the Ninth Circuit decided that warrantless administrative searches of a liquid propane gas retailer by officials from the Federal Railroad Administration (FRA) did not violate the Fourth Amendment.(8) FRA inspectors visited V-1 Oil's facilities pursuant to the authority granted them by the Secretary of Transportation under the Hazardous Materials Transportation Act (HMTA).(9) The purpose of the HMTA is to protect life and property by regulating the transportation of hazardous materials.(10) The bulk of federal environmental laws arguably shares a similar general purpose--the protection of human health and the environment.(11)

In holding that V-1 Oil was subject to FRA inspections and that the HMTA provided an adequate substitute for a warrant, the V-1 Oil majority relied on the fact that V-1 Oil engaged in activities relating to the transportation of a hazardous material.(12) The court held that a company that unloads propane from rail cars, and then returns the cars that contain residual amounts of hazardous material, is adequately notified by these activities alone that it is subject to inspections.

V-1 Oil protested, arguing that it was not part of the railroad industry and that the HMTA applied so broadly to any industry using ubiquitous hazardous materials that FRA's inspection powers were unlimited.(13) The Ninth Circuit's broad reading of the HMTA's inspection provision's scope also alarmed Judge John Noonan who, in dissent, warned that the 240-page list of regulated hazardous materials and the wide number of businesses potentially involved in transporting these materials in commerce provided great uncertainty as to the type of businesses potentially subject to FRA inspections.(14) Judge Noonan believed that the Ninth Circuit's holding casts too wide a net over potential defendants who, for example, may only manufacture the packaging or containers used to ship listed hazardous material including everything from poisonous aerosols to safety matches.(15)

Considering the Ninth Circuit's decision that a warrantless administrative search under the HMTA adequately protected V-1 Oil's Fourth Amendment right against unreasonable searches, the question arises whether the court would reach similar results if faced with constitutional challenges to an EPA warrantless administrative search of a company under other federal environmental statutes. What are the limits of these administrative searches conducted pursuant to environmental laws? Do EPA inspectors need warrants to conduct administrative searches under all or just some of the major environmental laws? This Chapter explores these questions by examining the case law that developed the warrantless administrative search exception and by analyzing the statutory inspection provisions of selected environmental statutes. Part II outlines the basic mechanics of searches and probable cause under the Fourth Amendment with specific emphasis on the history of administrative searches and the development of the pervasively regulated industry exception. Part III summarizes the V-1 Oil Co. litigation. Part IV analyzes seven environmental laws and assesses whether administrative inspections conducted pursuant to the statutes would be constitutional without a warrant. Part V concludes that after a case-by-case analysis of environmental statutes to determine whether they provide an adequate substitute for a warrant, the pervasively regulated industry exception to the warrant requirement has limited application to administrative searches conducted under environmental laws as currently written--particularly pollution control laws.

II. BACKGROUND

A. Types of Searches

Government agents may conduct searches when authorized by statute to do so.(16) Many federal environmental statutes authorize inspections.(17) Of course, statutory authority to inspect must be constitutional under the Fourth Amendment.(18)

The Fourth Amendment(19) requires that searches and seizures be reasonable. Often this means criminal probable cause and a criminal search warrant.(20) When government agents are specifically searching for evidence of crime, the law usually requires probable cause to believe that it is more probable than not that a crime has been committed, and that such evidence of the crime--including fruits or instrumentalities--is currently located in the place to be searched.(21) This will be called criminal probable cause in this Chapter. The appropriate remedy for evidence seized in contravention of the Fourth Amendment is suppression of the evidence at a criminal trial.(22)

In contrast, when agents seek violations of health, safety, or welfare standards, or are policing the various administrative regulatory schemes, the inspection program need only be supported by "reasonable legislative or administrative standards."(23) This will be called administrative probable cause in this Chapter. In Marshall v. Barlow's Inc.,(24) the Court clarified the Camara holding, stating that the administrative probable cause standard may be "based not only on specific evidence of an existing violation but also on a showing that `reasonable legislative or administrative standards for conducting an . . . inspection are satisfied with respect to a particular [establishment]."'(25) Courts have adopted this lower standard of administrative probable cause in environmental cases.(26) Courts have also found that statutory authority to enter a business and conduct inspections provides a government agent the parallel authority to obtain administrative search warrants.(27)

B. Administrative Searches of Pervasively Regulated Industries: The Evolution of Two Standards

Despite the rule that administrative searches of business property require an administrative search warrant,(28) the U.S. Supreme Court acknowledges an exception for businesses that are considered pervasively regulated.(29) The Court first addressed searches conducted for administrative, as opposed to criminal, purposes in Frank v. Maryland.(30) In Frank, a Baltimore health department inspector, acting on a complaint that Frank's home was the source of a neighborhood rat problem, inspected the perimeter of Frank's house and found in the rear of the house a pile of straw and rodent feces.(31) When Frank confronted the inspector, the inspector informed Frank of the report and requested permission to inspect the basement area. Frank refused and the inspector left. The inspector returned the next day with two police officers and, finding Frank in violation of the Baltimore health code, issued him a warrant on which he was arrested and found guilty the next day. On appeal, the Court upheld Frank's conviction, holding that no search warrant was required to enforce compliance with health and safety regulations because such a requirement would interfere with "the indispensable importance [of] the maintenance of community health."(32)

While criminal searches required a warrant, administrative searches remained an exception to the warrant requirement until the Court realized, eight years later in Camara v. Municipal Court,(33) the anomaly in allowing an individual and her property to be "fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior."(34) The Camara Court overruled Frank and held that administrative searches require administrative search warrants to provide individuals in their homes the traditional safeguards that the Fourth Amendment guarantees.(35) The court dismissed the argument that obtaining a warrant to enforce general health and safety laws would be too cumbersome. The Court also rejected the claim that the public interest in vigorously enforcing minimum fire, housing, and sanitary standards justified warrantless administrative searches.(36) The Court found that the public interest could still be served "within the confines of a reasonable search warrant requirement" because the burden of obtaining a warrant is not likely to frustrate the governmental purpose behind the administrative search.(37) The goal of a warrant requirement for an administrative search is to provide the individual with the assurance that a neutral magistrate found the administrative search proper while concurrently limiting the inspector's power to search.(38)

On the same day it decided Camara, the Court ruled in See v. Seattle(39) that warrantless administrative searches are generally unreasonable for commercial premises as well as homes.(40) In See, a fire inspector sought access to a locked commercial warehouse.(41) The Court held that administrative entry on commercial premises without consent could be made only through obtaining a warrant(42) because the business owner, like the occupant of a home, "has a constitutional right . . . to be free from unreasonable official entries upon his private commercial property."(43) Fearing the "unreviewed discretion of the enforcement officer in the field,"(44) the Court placed the discretion to grant an inspection warrant in the hands of a magistrate, according to the traditional warrant procedure.

The Court modified this line of cases by introducing the pervasively regulated industry exception to the administrative search warrant requirement. The exception took form following two germinal cases that involved activities long subject to historical or significant government regulation. First, in Colonnade Catering Corp. v. United States,(45) a caterer, licensed to serve alcohol, refused to allow an inspector from the Internal Revenue Service to inspect a locked storeroom.(46) After refusal, the inspector broke the door down.(47) The Court found that the general rule providing commercial premises with protection from warrantless administrative searches did not apply to this situation because the liquor industry had a long history of close supervision and inspection and Congress had "broad power" to regulate the "evils at hand" by writing statutes that provide for inspection of liquor licensees.(48) Because of the liquor industry's history of broad supervision and inspection, the Court found it to be an industry pervasively regulated by Congress.(49) Thus, the inspection required no warrant.(50) In the second pervasively regulated industry case, United States v. Biswell,(51) the Court considered the constitutionality of a warrantless administrative search conducted pursuant to a federal statute regulating the sale of firearms. Building on its Colonnade analysis of pervasively regulated industries, the Court held that "[i]n the context of a regulatory inspection system of business premises that is carefully limited in time, place, and scope, the legality of the search depends not on consent but on the authority of a valid statute."(52) The Court distinguished See because the housing code violations involved there could not be concealed easily, whereas any advance notice of an imminent inspection at a pawnshop, for example, could allow the owner enough time to hide any illegal weapons.(53) The Court reasoned that "unannounced, even frequent, inspections" were essential to effectively enforce the federal gun control statute.(54)

The Biswell Court justified warrantless administrative searches of pervasively regulated industries based on the argument that an owner or operator of a pervasively regulated business (for which a federal license is required) knows that the business's records and products "will be subject to effective inspection."(55) Where an "urgent federal interest" is furthered and "the possibilities of abuse and the threat to privacy are not of impressive dimensions,"(56) warrantless inspections may proceed if specifically authorized by a statute.(57) The Court acknowledged that firearm regulation may not be as deeply rooted in history as governmental control of the liquor industry, but the prevention of violent crime was a large enough interest to justify warrantless inspections.(58) Later, in Donovan v. Dewey,(59) the Court crystallized the Colonnade-Biswell exception as being defined by "the pervasiveness and regularity of the federal regulation" and the effect of such regulation on the owner's expectation of privacy.(60)

The Court refined and limited the pervasively regulated industry exception in Marshall v. Barlow's Inc.(61) The plaintiff refused to allow an agent of the Secretary of Labor to enter the nonpublic area of the plaintiff's electrical and plumbing business without a warrant.(62) The district court held that the type of administrative search involved required a warrant and that the statutory authorization in the Occupational Safety and Health Act of 1970 (OSH Act)(63) for warrantless inspections was unconstitutional.(64) The Secretary of Labor appealed, arguing that the plaintiffs business, and others like it involved in interstate commerce, had a long history of close supervision of employee safety and health conditions.(65) The Court rejected the Secretary's argument, noting that conducting a business that affects interstate commerce alone is not enough to strip the business owner of Fourth Amendment protection.(66) The Court also refused to accept that the "entirety of American interstate commerce" should be considered pervasively regulated(67) simply because OSH Act imposed minimum wages and …