Warrantless Administrative Searches under Environmental Laws: The Limits to EPA Inspectors' Statutory Invitation
Christensen, David A., Environmental Law
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. …