U.S. laws link investment to environment

By John M. Bernier

SACRAMENTO, California (JP): Indonesian investors planning to open a business in the United States should not just think about such things as marketing surveys and long term growth potential, they must also worry about garter snakes, spotted owls and migratory butterflies.

Birds, snakes and butterflies seem like rather funny things to consider in starting a business, but in the U.S. it is no laughing matter.

Such creatures are part of the environment, and if a new business in the U.S. will affect the environment, even in a small way, environmental protection laws often can cause long delays or force major changes in a planned business. And in some cases there is no way a business can operate without violating some environmental protection law, and as a result the proposed business will never receive the required governmental permits to allow it to begin operating.

Just how serious a matter this can be is illustrated by the problems faced by Taung Ming-Lin who emigrated to the U.S. from Taiwan with the dream of raising bamboo, bok choy and Chinese bitter melon. To make this dream a reality, Taung purchased 723 acres of bare land near Bakersfield, California, about 100 miles north of Los Angeles.

What Taung didn't know was that this dry, bare land was the habitat of Tipton kangaroo rats, bluntnosed leopard lizards and San Joaquin kit foxes. Under the U.S. government laws, all three of these animals are considered "endangered species".

When it comes to endangered species in America, the best advice is to leave them alone. Unfortunately, nobody gave such advise to Taung. After he planted several acres of bamboo, some 20 federal and state law enforcement officers arrived at his farm and informed him he had violated the U.S. Endangered Species Act. As evidence to support this charge against Taung, the government agents reported they found five dead rats on his property. The case against Taung is still pending, but he could face up to a year in prison and a US$300,000 fine.

What happened to Taung is not an isolated incident. Everyday businessmen in the U.S. run afoul of the various environmental laws. And what makes it more confusing is that besides the federal government, the different states and local governments have their own environmental laws. As a result, a farmer could plow a piece of ground in one part of the U.S. and have no fear of violating any environmental laws. However, if he did the same thing in another part of the country, he could be arrested and charged with a criminal offense.

It should be kept in mind that environmental laws in the U.S. cover much more than endangered species. There environmental laws affecting a wide variety of activities, including air and water pollution. However, causing the slightest change in the environment without government approval, could mean there has been a violation of the law.

If a new business will cause any change in the environment, a so-called "Environmental Impact Report" must be prepared before such a business can obtain the necessary government permits to allow it to be opened for business.

Any change in the environment must be addressed in the Environmental Impact Report if such change results from the operation of the business. In some cases this could mean the report must include any changes in auto traffic volume, or the effect lights from the business will have on nearby neighbors.

An Environmental Impact Report, often as thick as a book, is a public document, meaning that any individual or organization can have access to it. Consequently, representatives of environmental protection organizations will study the report carefully. If they find one little thing which they feel is detrimental to the environment, project owners agree to set aside a certain amount of land for environmental protection purposes.

It should be pointed out that it isn't only small entrepreneurs such as Taung and his few acres of bamboo that are affected by the environmental laws. The billion dollar timber industry in the northwest U.S. has seen many of its lumber enterprises go out of business because of a little bird.

The little bird is the spotted owl which happens to be on the federal government's endangered species list, and this particular owl likes to build its nest in old growth timber. As a result, on hundreds of thousands of acres of forest land, timber harvesting is no longer permitted in order to protect the habitat of the spotted owl.

While the spotted owl has its nesting areas protected, several thousand timber workers lost their jobs because of the reduced timber production. The loss of these jobs was a major political issue in the last U.S. presidential election.

Potential investors shouldn't be frightened off from opening businesses in the U.S. merely because of the strict environmental laws. The investor must have to be aware of such laws and prepare accordingly. If he seeks competent professional advice in advance, likely his project will go through as planned. And if the investment is for the purchase of an existing business, and doesn't plan any major expansion, there likely will be no environmental problems.

The writer is an American attorney specializing in U.S. immigration and investment matters.