Is The EPA Doing Enough To Stop Corporate Polluters?

Due to “the reality of budget cuts and staffing reductions,” the EPA has had to make hard choices, including the choice to only pursue “high impact cases.”
By @katierucke |
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    A new investigative report, published by The Crime Report, alleges that the Environmental Protection Agency and the Department of Justice often fail to hold corporations criminally accountable for violating environmental laws, including knowingly discharging raw sewage into water or killing a bald eagle.

    As Graham Kates, author of the report, which was partly funded by the Fund for Investigative Journalism, wrote, “Every violation can technically be treated as a crime, but federal environmental law gives agencies discretion to pursue civil or administrative charges instead.”

    “In fiscal year 2013, the EPA’s Criminal Enforcement Division launched 297 investigations. In 2012, 320 investigations were opened,” but Kates noted that “the total [number of investigations] has steadily decreased since 2001.”

    A similar report from AllGov said that although there are more than 64,000 facilities in the United States run by corporations that have a history of violating U.S. environmental laws, fewer than 0.5 percent have ever faced prosecution or criminal charges for violating environmental laws.

    “That’s because the government has consistently preferred to take administrative or civil actions against corporate polluters, even though laws like the Clean Air Act, Clean Water Act and the Resource Conservation and Recovery Act make it possible to charge executives criminally during investigations,” wrote Noel Brinkerhoff and Steve Straehley, the report’s authors.

    However, an EPA spokesperson told MintPress News that allegations of the EPA and DOJ choosing not to criminally prosecute companies for violating environmental laws “do not square with the facts.”

    “In Fiscal Year 2013, EPA’s criminal cases assessed more than $1.5 billion in criminal fines and restitution, and more than $3 billion in court-ordered environmental projects to benefit communities, the largest amounts ever for a single year,” the spokesperson said.

    “We charged 281 defendants and recorded 161 years of incarceration, the strongest year in criminal sentencing since ’05. Big cases like the Deepwater Horizon disaster and Wal-Mart’s illegal handling of pesticides and hazardous waste resulted in nationwide reforms and billions of dollars to help affected communities.”

    With only 38 prosecutors in the DOJ’s Environmental Crimes Section and 200 agents in the EPA’s Criminal Enforcement Division, the government doesn’t have the manpower or the financial means to pursue criminal cases against every single company and individual found violating environmental laws. But it will use its limited resources to prosecute the companies blatantly disregarding environmental laws, especially in the name of profit.

    Another EPA spokesperson, Jennifer Colaizzi, told Kates that due to “the reality of budget cuts and staffing reductions,” the EPA has had to make hard choices, including the choice to only pursue “high impact cases.”

     

    Financial power

    According to David Wilma, a former EPA criminal investigator who also used to work as an investigator for the Drug Enforcement Agency, part of the reason more companies are not criminally prosecuted is because it’s easier to get people to testify against bosses who work in the criminal underbelly than in the corporate world.

    “It’s at least as hard to flip somebody in a corporation as it is in a Colombian drug cartel, maybe harder,” Wilma said. “It’s hard to get somebody to flip against a paycheck.”

    Part of the concern with ratting out a boss for an environmental violation is that the companies that run mines, refineries, processing plants, etc., are often operating in small towns where they are the town’s main, if not sole, employer.

    Many people in these towns worry that if they pursue cases against these employers for environmental concerns, the company may pack up and go, creating an economic disaster for the town’s residents. This is why cases like Citgo Petroleum Corp.’s violation of the Clean Air Act, in which residents spoke up and shared their concerns, are so rare.

    In the Citgo case, a Texas jury found the company guilty in 2007 of knowingly allowing the known-carcinogen benzene, as well as other toxic fumes, into the air in the town of Corpus Christi, Texas, for about a decade.

    Residents of Hillcrest, Texas, who lived near the refinery where the chemicals were emitted, reported that the chemicals were stored in roofless tanks. This allowed the chemicals to drift into the air and be absorbed into everything — clothes, food, skin and eyes — and resulted in mysterious illnesses and physical symptoms, such as headaches, dizziness, scratchy throats and nausea.

    Many residents were unable to sell their homes after real estate values plummeted because the amount of toxic chemicals like benzene found in the air was around 10 times the legal limit. Of the more than 300 people who came forward, saying they were negatively impacted by the chemical, many were not in the financial position to simply move or hire their own legal representation, as they were predominantly low-income families.

    While many applauded the DOJ and EPA’s efforts to hold the company responsible for its environmental crimes, U.S. District Court Judge John D. Rainey didn’t sentence the company until February 2014 for violating the Clean Air Act — seven years after the company was found guilty. Despite prosecutors’ pleas for the company to pay around $2 billion for its violations, Rainey fined the company a little more than $2 million.

    He also ruled against restitution for the victims, as Rainey said they failed to provide thorough evidence that their illnesses were a direct result of the chemical leaks at the Citgo plant.

    Prosecutors cautioned that the fine wasn’t enough to prevent Citgo from continuing to violate environmental laws, as the company reported around $1 billion in profits due to its illegal operation. Neither Citgo nor the DOJ appealed Judge Rainey’s decision, which Bill Miller, a former EPA lawyer who worked with the Justice Department on the Citgo prosecution and has since retired, said sends a message that corporations are too big to punish.

    Miller further explained that environmental crime cases are often settled out of court, so when the government does successfully prosecute a company, they should “aggressively punish environmental violators.”

    “If you’re not going to do anything about it then it behooves every large corporation who gets caught violating a complex statute like Clean Air Act to go to trial and hide behind complexity of it,” Miller said. “If I was a company like Citgo and I got caught doing something like this again, I’d litigate it.”

    Mark Roberts, an attorney and international policy advisor with the Environmental Investigation Agency, a nonprofit advocacy group based in Washington, D.C. and London, agreed with Miller that corporations willing and able to spend millions of dollars to ensure they won’t be labeled as a “criminal,” but said these companies often spend more on legal fees fighting these charges than they would have had to spend for violating the law.

    Wilma, the former EPA criminal investigator, noted that the typical corporate case takes between two to three-and-a-half years, compared to two months for small businesses, which adds to the list of reasons of why it’s hard to convict a large company.

     

    Setting a precedent

    Not every company is able to shake off the criminal charges for violating environmental laws, even those with large bank accounts. As a DOJ spokesperson pointed out to MintPress, not all criminal prosecutions result in time spent behind bars, before adding that legally a “fine” is indicative of a criminal prosecution, while a “penalty” is a civil charge.

    For example, in the case of British Petroleum, the company ended up agreeing to a record-breaking $4.5 billion criminal settlement after its Deepwater Horizon oil rig exploded on April 20, 2010.

    As a result of the explosion, 11 BP workers were killed, 17 employees were injured, and more than 200 million gallons of crude oil spilled across about 16,000 miles of coastline in Texas, Louisiana, Mississippi, Alabama and Florida. In addition to the historic settlement, which was negotiated by the DOJ and BP, four company officials were also hit with criminal charges, including Kurt Mix of Katy, Texas.

    Mix, 50 years old at the time, was charged with two counts of obstruction of justice for intentionally deleting more than 300 text messages proving that the amount of oil that spilled into the Gulf of Mexico was much larger than the company was reporting and that the company’s efforts to contain the oil leak had failed.

    Before Mix was charged, a federal judge presiding over the case in New Orleans had considered asking BP to pay a $7.8 billion civil settlement to a committee of plaintiffs, but the new evidence proving the company was covering up a crime changed things. Mix was charged with two counts of obstruction of justice and was allegedly fired by BP. If found guilty on both counts, he faces up to 20 years in prison and a total fine of $500,000.

    Ultimately, BP pled guilty to multiple counts of federal criminal violations and paid the DOJ around $4.5 billion in fines. BP was also ordered to pay for cleanup efforts in the Gulf of Mexico and to pay some $8.5 billion BP to those affected by the spill. The oil giant and repeat environmental law offender also lost its ability to bid on U.S. government contracts for five years.

    However, in March this year, two years into BP’s five-year contract suspension, the EPA announced that BP was eligible to contract with the U.S. federal government once again.

    While the announcement came as a shock to many, as Rena Steinzor, president of the Center for Progressive Reform and law professor at the University of Maryland Carey School of Law, told MintPress in March, the EPA is often forced to backtrack on its decisions due to pressure from conservatives and right-leaning political groups such as the Tea Party, who argue that strict regulations are the source of the country’s financial troubles.

    Additionally, Steinzor speculated that the EPA was likely forced to allow the feds to contract with BP again because of political pressure put on the agency by British Prime Minister David Cameron. She said Cameron is concerned about BP’s success because the energy giant helps fund British pension programs.

    Steinzor also shared that one of BP’s largest and most loyal customers is the U.S. Defense Logistics Agency, which reportedly purchased $2 billion worth of oil from BP when the agency was fully deployed in Afghanistan a few years ago.

     

    Environmental criminology

    Although the EPA has recently been accused by conservatives of overreaching and by liberals of not doing enough, David Uhlmann, director of the environmental law and policy program at the University of Michigan and former chief of the DOJ’s Environmental Crime Section, has argued that the EPA often cites companies for environmental violations, but many of those cases don’t become well known unless deaths or explosions occur.

    When environmental violations intensify, Uhlmann said, prosecutors and government regulators get involved. This is why he said the DOJ prosecutes companies more for criminal environmental violations than any other area of corporate crime, and also why there is a growing number of people studying environmental criminology.

    However, Uhlmann told PBS’ “Frontline” that criminally prosecuting companies and individuals for environmental crimes is tricky because there needs to be proof that officials at the company knew there was a violation and that they were either carrying out the action themselves or failed to take the necessary steps to prevent the violation.

    Instead of prosecuting a few companies, Uhlmann suggested that the federal government’s time and money would be better spent in efforts to enforce environmental laws throughout the country before people are killed or explosions occur.

    But not all environmental lawyers agree that the EPA and DOJ should stop prosecuting big cases like those against Citgo, BP and Wal-Mart. Instead, some, like Melissa Jarrell, an associate professor of criminal justice at Texas A&M University in Corpus Christi who helped represent Hillcrest residents affected by the Citgo chemical leaks, argue that there needs to be an entirely separate court for environmental crime cases.

    “You can’t treat them as you do with other cases,” Jarrell said. “If you’re trying to follow regular sentencing guidelines, you can’t do that … you need to have a different system, particularly for the corporate cases.”

    Jarrell has a point. Earlier this month, the Texas Attorney General’s Office explained that since state criminal statutes were stronger than federal ones, the state opted to pursue a case against the Fort Worth-based XTO Energy Inc., a natural gas company accused of improperly disposing of hazardous wastewater.

    The EPA was reportedly ready to file criminal charges against the company, which is a subsidiary of Exxon Mobil Corp., but as Senior Executive Deputy Attorney General Linda Dale Hoffa wrote in a brief, the federal agency didn’t have enough evidence to criminally charge XTO under the Resource Conservation and Recovery Act.

    The state of Texas, however, has a law that would allow the company to be held criminally responsible for dumping about 50,000 gallons of wastewater containing barium, strontium, chlorides and total dissolved solids. While the EPA has left it up to Texas to hold the company criminally responsible, the federal agency held XTO responsible for civil violations and agreed to a $100,000 civil penalty settlement with the company.

     

    Slowly coming to power

    Part of the complexity of environmental law cases is related to the fact that it wasn’t until 1970, when the Clean Air Act became law, that it was even possible for the agency to criminally prosecute individuals and companies who polluted water, land or air.

    Though most of the violations would only result in misdemeanor sanctions, the law was seen as a step toward ensuring that environmental laws were enforced and taken seriously.

    For example, after Allied Chemical Corporation dumped the pesticide kepone in the James River in Virginia in 1975, and the owner of an unnamed Kentucky-based company and two of his employees were caught dumping pesticide wastes and raw sewage into the Ohio River, the EPA was able to hold the corporations and individuals criminally responsible for violating environmental laws, which led to the evolution of the federal environmental crimes program in the 1980s.

    The EPA’s Criminal Enforcement Special Agents program was officially established in 1982 and was granted full law enforcement authority by Congress in 1988, meaning these agents could investigate cases, collect evidence, conduct forensic analyses and provide legal guidance on cases perceived as a threat to public health and the environment.

    While the EPA has federal authority, the environmental agency says that there are still some common environmental concerns handled by state or local authorities, such as the improper disposal of vehicle or lawnmower oils, molds and sewage in a person’s yard.

    Given that the EPA’s ability to hold companies responsible for environmental violations is so new, cases like those involving Citgo and BP could be used by EPA officials to argue that Congress should grant the agency greater authority to ensure that ecological and wildlife resources are protected.

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