Stomping out Oregon’s polluters
By Camilla Mortensen
Get caught growing a pot plant in Oregon, and you’ll find yourself faced with prison — it’s a maximum sentence of 20 years and a $375,000 fine for anyone who isn’t licensed to grow medical marijauna and is caught cultivating cannabis. Burn an SUV or a building to protest environmental destruction without causing physical harm to a single person, and you’ll find yourself not only in prison, but labeled a “terrorist” to boot. Dump cancer-causing chemicals into one of Oregon’s pristine rivers, release toxins into the air or let pesticides drift onto schoolchildren, and the most you’ll face is a slap on the wrist: You might get a small fine from the Oregon Department of Environmental Quality (DEQ) that you won’t ever have to pay, and that’s about it.
Critics have called Oregon’s prosecution (or lack of it) pathetic, but there’s a new sheriff in town, and he says he’s going to put his foot down on environmental crimes. Oregon’s next attorney general, John Kroger, takes office in January. He says he’s ready to go after polluters “with a tough new approach to environmental enforcement.”
Lately it seems the phrase “environmental crime” gets confused with what the FBI likes to call “ecoterror,” but the two have become different ideas altogether. Before the term ecoterror gained popularity among the mainstream media as a way to refer to environmental activists, it was used to refer to polluters. In 1991, in an early use of the term, Time magazine called Saddam Hussein an ecoterrorist when he ordered five million barrels of oil to be poured into the Persian Gulf in 1991 and set more than 700 Kuwaiti oil wells on fire, causing 20 times the environmental impact of the 1989 Exxon Valdez oil spill in Alaska.
Local, state and federal government agencies in the Pacific Northwest have spent thousands of dollars trying to catch and prosecute what they call ecoterrorists. They have pursued members of the Earth Liberation Front, a group which claims never to have injured a person or animal in their arsons and other acts of environmentally motivated ecosabotage. Recently, the FBI upped the reward to $50,000 for information leading to the arrest of the four ecosaboteurs who are yet to be apprehended. On the other hand, the state of Oregon has put almost no money or effort into catching and prosecuting companies that contaminate and sicken our state’s people, plants and animals.
The Environmental Protection Agency’s (EPA) Oregon Environmental Crimes Task Force counts among its members the FBI, Immigrations and Customs Enforcement (ICE) and the Department of Defense (DOD), in addition to the attorney general’s office. Though the group is charged with working “together to strategize how to better support the enforcement of environmental crime and to deter crime before it happens,” the only environmental group on the task force is the Oregon Department of Environmental Quality. Other states don’t have ICE or the DOD on their task force, but they do list sanitation departments, the BLM and Forest Service as well as health departments and water quality groups as members of their environmental enforcement teams.
And despite our reputation as a “green state,” Oregon lags behind other states when it comes to enforcing environmental laws and protecting our natural resources. Portland was recently named by BusinessWeek as the third most toxic city in the country, and the Oregon Environmental Council says, “Every major river in Oregon violates water quality standards.”
Kroger, who will be on the environmental task force when he becomes Oregon’s AG, says it’s ironic that “while we have an environmental crimes task force, we don’t have any environmental prosecutors.” The group, he says, can identify environmental crimes, but there is no one to prosecute the crimes.
According to Kroger, “Oregon’s environmental laws in some cases aren’t perfect, but they’re adequate.” Environmental violations can be dealt with in one of two ways: through civil or criminal enforcement, he says. In civil enforcement, a person or company is issued a notice of violation and a penalty when found to be violating environmental laws.
For example, if a company is found to be releasing too much of a chemical into a river and the DEQ finds out about it, they send the company a letter notifying them of the violation. If it is suspected that the company is doing this deliberately, it can become a criminal case.
More commonly, after the notification, the company pays a fine calculated by the DEQ until the company gets into compliance or fixes the problem. When Hynix, before the company abruptly left Eugene, was found to have been exceeding the hydrogen fluoride limits in its air pollution permit issued by Lane Regional Air Protection Agency, the company was fined $800. The company was later allowed to increase the amount of the toxic gas it could legally release from 1.8 to 5 tons, putting it back into compliance.
Oregon’s laws and the DEQ encourage companies to “self-report” their own violations through a process in which a company that self-reports can reduce or eliminate fines and avoid a criminal investigation. In order for a company to be prosecuted, the DEQ or another agency must be made aware of a violation in the first place. Even if a suspected polluter is reported, it could still go unpunished in Oregon.
“If a nonprofit group, or a citizen or the DEQ spots an environmental crime, there’s no centralized environmental crimes unit to take that crime to,” says Kroger. “They have to shop it to the district attorneys.” Kroger says other states do have such units. “A state that’s serious about environmental protection has to have specialized environmental prosecutors,” he says.
According to Mark Riskedahl, executive director of the Northwest Environmental Defense Center (NEDC), criminal enforcement happens rarely in Oregon. He says Oregon, for the better part of at least the last decade, has had a “history of under-enforcement,” both “a lack of diligence in pursuing civil penalties and a woefully inadequate history of pursuing criminal violations.”
Riskedahl would know; a 2005 article in The Oregonian showed that Riskedahl and the NEDC, which is largely staffed by student volunteers from Lewis and Clark Law School, won more cash penalties from water polluters in one year than the far larger and better funded Oregon DEQ. So a small nonprofit with only one full time employee (and a new staff attorney as of this month, according to Riskedahl) is out-policing Oregon’s DEQ, which has more than 100 full time staff dedicated to environmental enforcement.
He attributes some of the history of this under-enforcement to the DEQ being “loathe, for many years, to plainly and simply require compliance with the law.” If the DEQ was perceived to be overly aggressive in regulating the polluting industries, says Riskedahl, the DEQ’s funding was threatened by Republican legislators in Salem, under pressure from industries such as pulp and paper mills.
In June 2008, one Oregon case resulted in an extremely rare prison sentence for an environmental crime. Donald Spencer, former owner of Spencer Environmental, was sentenced to six months in jail for mishandling waste streams of hydrofluoric acid (the same chemical Hynix released) and oil. It is thought to be the only time someone in Oregon has been ever been sent to prison for an environmental crime.
Unfortunately, it took a catastrophic fire at Spencer and the death of a college student, 21-year-old Tim Smith, whose lungs disintegrated from the hydrofluoric acid he inhaled while cleaning one of Spencer’s tanks, to bring the case to prosecution.
But critics would like to see Oregon’s environmental laws enforced without someone having to die to bring polluters to court.
The UO Law School’s Mary Wood says “Kroger is approaching his office from a new perspective; a perspective of representing the people, rather than defending the agency.”
Kroger didn’t campaign for the position of Oregon’s attorney general based on any ecocredentials; he campaigned on his background prosecuting the Mafia, drug traffickers and companies like Enron. He admits his background isn’t in environmental prosecution. But in addition to pledging to go after the meth industry and to protect civil rights, he also put going after polluters high on his list of priorities.
He says he is going work with the DEQ to improve the environmental enforcement process, raise fines and improve the collection of fines. But his main plan is to hire “two prosecutors, an investigator and some support staff,” all dedicated to environmental enforcement, he says. “They’ll prosecute crimes against the environment all over the state,” Kroger says, “and we think that will make a huge difference.”
He estimates that this will cost, in a ballpark figure, about $500,000 a year. This is, he says, “very small cost” compared to the Oregon Department of Justice’s $300 million a year biennial budget. He also says that it will save money on the civil enforcement side. “Companies understand that they may be charged with a crime, not just hit with a fine; they’re going to be much more eager to comply,” he says.
Wood agrees, “Polluters will pollute without the possibility of enforcement.”
Environmental lawyers like Riskedahl are looking forward to Kroger’s plans to crack down on ecocriminals. Riskedahl says, “The costs of pollution are borne by all Oregonians.” He says that Kroger will be “holding people accountable and requiring them to comply with the law out of a fundamental sense of fairness.”
Oregon’s environmental laws aren’t perfect, according to Kroger, “The environmental crimes statute is not well drafted, and I would love to see it changed,” he says, “but quite frankly the number one priority is to get the personnel in place to enforce the laws we’ve got. We have to have an option of charging people with a crime, and that’s what doesn’t happen very often in our state now.”
More on Environmental Crimes and Enforcement
• Eugene-based Environmental Law Alliance Worldwide (www.elaw.org) helps protect the environment across the world through providing training and resources to scientists and lawyers.
• The Oregon Department of Environmental Quality keeps databases of leaking underground storage tanks, environmental cleanup sites, and companies and individuals that have been cited for violation of environmental laws at www.deq.state.or.us/news/databases.htm
• The Environmental Protection Agency’s website (www.epa.gov) provides links to information on regulations, a place to report environmental violations and a plethora of databases.
• Want to know what toxics are being emitted in Eugene? Go to www.eugene-or.gov and follow the quick links to find the Fire Marshal’s office page, which houses the Eugene Toxics Right-to-Know database.
• See more on Oregon’s outgoing Attorney General Hardy Myers and incoming AG John Kroger at the Department of Justice www.doj.state.or.us
• Learn more about the work of the Northwest Environmental Defense Center’s at www.nedc.org
• Get ready to gather with lawyers, activists, scientists and others who are concerned about the environment at the Public Interest Environmental Law Conference at UO Feb. 26-March 1, 2009, and propose a panel of your own at www.pielc.org — Camilla Mortensen