By Dr. Joshua Ozymy* and Dr. Melissa L. Jarrell**
As the U.S. Environmental Protection Agency turns 50, the federal government remains a laggard on environmental justice. We offer three forward-facing remedies to provide more just outcomes for environmental justice communities through the legal system: refocusing criminal enforcement efforts to prioritize environmental justice communities, further conceptualizing environmental justice communities as victims of crime in the legal system, and expanding the use of crime victim compensation targeted at environmental justice communities. These remedies will ensure that environmental justice communities are better protected from harm and will provide opportunities to better compensate victims.
INTRODUCTION
As the environmental justice movement argued some four decades ago, across the United States, industrial facilities that emit toxic pollution were and remain disproportionally located in low income communities and in communities of color.[1] As the U.S. Environmental Protection Agency (EPA) turns 50, it is important to reflect on the agency’s work to remedy these disproportionate environmental burdens and achieve environmental justice for these communities. Not long after the EPA’s founding in 1970, Dr. Robert Bullard began some of the earliest academic and legal research into why people in these communities are more likely to live near toxic sources of pollution and disproportionately face toxic burdens.[2] Around the same time, the environmental justice (EJ) movement emerged, which sought to force government to address the environmental racism inherent in the historical siting of incinerators, power plants, petroleum refineries, and other toxic facilities throughout the country, and to substantially lessen or remove the resulting harms faced by nearby communities.[3]
Environmental justice was not institutionalized as a policy issue at the EPA until almost a quarter century later. In 1994, President Clinton signed Executive Order 12898, which charged the agency with addressing EJ concerns throughout the country.[4] As a result, the EPA consolidated agency-wide EJ efforts by establishing the Office of Environmental Justice (OEJ).[5] OEJ has made progress in including EJ communities in the stakeholder participation process, issuing grants to communities and researchers, and engaging in research of environmental justice problems.[6] The agency has been much less successful in reducing or removing the harms faced by environmental justice communities that are near stationary sources that produce chronic and toxic emissions.[7]
To fill this gap, environmental justice communities have tried to bring attention to environmental injustice, force regulators to pay attention, and sometimes reduce harm to their communities as the result of prompting regulatory activity on their behalf.[8] In some cases, through buyouts or litigation, these communities may receive compensation for these harms.[9] Yet, regardless of these efforts, the regulatory regime does not sufficiently reduce or compensate these communities for the harms inflicted on them by living in close proximity to heavy industry.[10]
In this article, we propose that EPA could more effectively serve environmental justice communities by making changes to its criminal enforcement program. While recognizing that our recommendations will not remove structural racism or justly compensate all communities, we offer three paths forward for reaching more just outcomes in the current system: refocusing criminal enforcement efforts, treating environmental justice communities as victims under the law, and expanding crime victim restitution.
A. Refocusing Criminal Enforcement
Since environmental justice communities are innumerable and face disproportionate amounts of harm, we propose refocusing the investigative efforts of both the EPA and environmental prosecutors on reducing harm in environmental justice communities. Our own analysis of EPA investigations that led to criminal prosecution since 1983 reveals that about 2,588 prosecutions took place over the last 37 years. Investigations and prosecutions are predominately focused on narrower issues within the Clean Air Act (CAA), Clean Water Act (CWA), and Resource Conservation and Recovery Act (RCRA) that generally have little to do with harm reduction for environmental justice communities.[11]
Criminal penalties under the CWA and CAA have reached billions of dollars, but these numbers are skewed on outlier cases such as the Volkswagen AG prosecution for emissions rigging or Transocean and BP’s role in Deepwater Horizon, labor violations and environmental training violations against Wal Mart, or refinery explosions as in the BP Texas City Case.[12] None of these high-profile prosecutions involve penalizing industrial facilities near environmental justice communities. Very little is mentioned in prosecution summaries about environmental justice being a primary consideration or consequence of these enforcement actions.[13]
Criminal enforcement priorities must change to focus more systematically on what can be done within the regulatory system to deter malfeasance for both individual companies and to set an example for industries as a whole. A few examples can be given with the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), CWA, and CAA to demonstrate how criminal provisions within these statutes are often not used on behalf of environmental justice communities as much as they could be in practice.[14]
We find that CERCLA prosecutions rely almost exclusively on failure-to-notify of a hazardous release provisions or are done in conjunction with RCRA, CAA, or CWA. Prioritizing criminal investigation and prosecution of companies for failing to notify of hazardous releases near environmental justice communities would be a fruitful avenue for focusing criminal enforcement tools towards harm reduction in these communities. Engaging in more on-the-ground monitoring, real time data collection, and criminal investigation moves harm reduction in the right direction in this regard.[15]
Polluted water poses a significant harm to environmental justice communities.[16] From 1983 through the end of 2019, there have been over 828 criminal prosecutions of CWA violations that stemmed from EPA investigations, representing about a third of total environmental prosecutions.[17] Creating a taskforce or environmental initiative to protect environmental justice communities seems feasible.[18] Many of these CWA prosecutions could be refocused on policing illegal discharges at facilities that pollute near environmental justice communities as a matter of regulatory priority to reduce harm.[19]
Polluted air also causes significant health problems in environmental justice communities.[20] CAA criminal prosecutions stemming from EPA criminal investigations center on asbestos crimes, such as illegal removal and disposal, lack of a permit, sale of fraudulent asbestos certifications, failure to obtain proper accreditation, and failure to notify of the removal of asbestos containing materials (ACM); these crimes have very little to do with policing and prosecuting air pollution crimes at industrial facilities near environmental justice communities. We find that 59 percent of all CAA prosecutions since 1983 focus on asbestos crimes.[21] While important, asbestos enforcement seems to unduly dominate prosecutions over time, and resources could be put toward the criminal enforcement of air emissions at stationary sources, which affect environmental justice communities directly.
Instead of focusing on asbestos crimes, EPA could make reducing air emissions at stationary sources near environmental justice communities a key part of their National Compliance Initiative. This could spill over in enforcement resources, both civil and criminal, moving towards harm reduction in these communities. The Petroleum Refinery Initiative focused enforcement resources to gain compliance across the industry and reduce hazardous air emissions at refineries. This took the form of a Storage Tank Emission Reduction Partnership Program to incentivize installation of slotted guidepoles on storage tanks containing volatile organic compounds (VOCs), and to reduce emissions from other sources. EPA settled 37 cases with companies across 32 states over a series of years that covered 112 refineries, agreements to invest some $7 billion in pollution control technologies, and for companies to pay $116 million in civil penalties. Any community living near these refineries benefitted from harm reduction via reduced air emissions. EPA could create such a long-term initiative for environmental justice communities as a national priority in the coming decades to reduce harm via emissions reductions, where better health for these communities would be the cause of the initiative, rather than a consequence. [22]
B. Conceptualizing Communities as Crime Victims
Another approach to harm reduction and compensation for environmental justice communities is to properly view environmental justice communities as victims of environmental crime under the law, rather than considering their harms as an inevitable consequence of industrialization to be managed through a regulatory system. Environmental crime is more prevalent than street crime, but the public and legal systems often do not perceive them as such, as they are chronic and slow to manifest, and it can be difficult to find the guilty party.[23] However, considering individuals injured by environmental crimes as crime victims under the law has precedent in federal law.[24] EPA criminal investigators could work with DOJ prosecutors to conceptualize environmental justice communities in this manner and to prioritize criminal investigations in these communities.
Traditionally, crime victims played a passive role in the U.S. legal system.[25] However, in the 1980s and 1990s a conservative offshoot to the Civil Rights movement of the 1960s, the Victim’s Rights Movement, sought increasing representation of victims within the legal system.[26] The Crime Victims’ Rights Act (CVRA) was one response to this political pressure.[27] Signed into federal law in 2004, CVRA expands the role of victims in federal criminal prosecutions and provides guidance for better defining the role of victims in court proceedings.[28] Additionally, CVRA extends rights to victims under Rule 32 of the Federal Rules for Criminal Procedure.[29] The CVRA changes the nature of the role of victims from passive to one with enforceable rights.[30] Some legal critics, prosecutors, and judges have been wary of an expanded role for victims in court proceedings. They have argued at various points that procedural rights for victims can hinder the ability of prosecutors to negotiate plea bargains or can be prejudicial to the rights of defendants to allow victims to testify at trial, sentencing, or enter victim impact statements as evidence or read them at trial.
However, the application of the CVRA has thus far not borne these criticisms out.[31]
Three major corporate environmental crime cases have tested the application of the CVRA to environmental crime victims. In United States vs. BP Products, the trial court recognized environmental crime victims in the case of a refinery explosion, and the appellate court weighed in on the rights of crime victims to receive proper notification of a plea bargain prior to the public release of a plea agreement with British Petroleum. In United States v. W.R. Grace & Co. the appellate court granted the petition by environmental crime victims to testify and be heard at trial of a company that poisoned a nearby town for decades. In United States v. CITGO, the appellate court granted victim status to individuals living in an environmental justice community who had been poisoned by toxic benzene emissions emanating from an open tank at a petroleum refinery.
In United States v. BP Products, an explosion at the company’s Texas City refinery killed 15 workers and injured 180 others.[32] After British Petroleum agreed to plead guilty, the court agreed with prosecutors to notify victims after the press release, despite many victims petitioning the court prior to reject the plea as too lenient.[33] The 5th Circuit Court agreed the victims’ rights were violated but stated a CVRA petition was subject only to discretionary mandamus review by the court.[34] The appellate court found the victims had the right to be notified of the agreement but the court did not reverse the decision of the lower court to allow the plea agreement.[35]
Second, United States v. W.R. Grace & Co. centered on the company’s mining and processing of vermiculite ore near Libby, Montana.[36] Burdened by some 270,000 asbestos-related lawsuits, the company filed bankruptcy in 2001,[37] DOJ prosecutors indicted the company and several officials for knowingly releasing asbestos, improper disposal, fraud, conspiracy and other crimes.[38] The district court denied the government’s motion to allow thirty-four victims to testify, arguing there were no identifiable victims based on the charges indicated in the indictment.[39] The victims successfully filed a writ of mandamus under the CVRA, which allowed them to be recognized as victims and attend the trial, although the company was found not guilty and EPA declared the first state of emergency for a public health crisis under CERCLA.[40]
Third, United States v. CITGO focused on the company operating oil-water separator tanks without proper emissions controls in Corpus Christi, Texas and allowing VOCs including benzene, a known carcinogen, to be emitted for about nine years.[41] Prosecutors gathered victim impact statements from 300 alleged victims living in a nearby environmental justice community, arguing the illegal emissions were the direct and proximate cause of their negative health effects and that they should be acknowledged as victims under the CVRA.[42] The judge issued an order excluding the victims. The victims’ attorneys filed a writ of mandamus with the Fifth Circuit Court a week prior to sentencing in 2012, and the Fifth Circuit ruled that the judge had to re-examine the victims’ filings.[43] The district judge reversed his previous order and declared that the petitioners were victims under the CVRA and allowed oral testimony from 90 victims at sentencing. The judge noted the victims’ negative experiences could be at least partially attributed to their proximity to the group of refineries bordering their community, but the judge did not award restitution.[44]
These three cases acknowledge the legal right of environmental crime victims to appeal to the circuit courts, be heard in court, confer with prosecution, receive timely notice of court proceedings, and fundamentally to exist under the law.[45] The role of the EPA here would be to focus National Compliance Initiatives on stationary sources of pollution near environmental justice communities. The role of the EPA would be to enhance monitoring and investigations of emissions that harm environmental justice communities and to work with federal prosecutors to reduce harm via emissions reductions either through civil and civil-judicial compliance initiatives or through concerted criminal enforcement actions targeted at facilities that engage in serious or chronic violations.[46] Acknowledging toxic emissions and discharges as the proximate cause of harm for those living in close distance over time would open up many avenues for addressing environmental justice in appropriate ways through harm reduction. As the government noted in W.R. Grace & Co., facing an increased risk of disease should qualify one as a crime victim.[47]
C. Expanding Environmental Crime Victim Restitution
EPA can play an expanded role in affording compensation to environmental justice communities, as evidenced by their actions surrounding the W.R. Grace case in Libby, Montana where the agency declared a public health emergency under CERCLA.[48] This action allowed the agency to spend significant resources remediating contaminated areas. Libby was also declared a Superfund Site and placed on the National Priorities List to prioritize remediation in 2002 that continued until 2014 with ongoing maintenance activities.[49] In both instances EPA put forth substantial funding and effort to help a community of victims impacted by industrial pollution. Within the Patient Protection and Affordable Care Act is a provision to use Medicare funding to extend coverage to individuals in areas undergoing a public health emergency. [50] This provision was likely targeted at Libby. The same precedent could be applied to many environmental justice communities throughout the country.
From these aforementioned cases, prosecutors can begin to expand precedents on what qualifies as harm and how to go about receiving compensation for environmental justice communities as victims of environmental crime. The Crime Victims Fund (CVF) was established in 1984 and is funded through penalties levied on convicted federal offenders.[51] The Office of Victims of Crime was established in DOJ in 1988 to administer the fund. The CVF’s balance of $6 billion is used to fund formula grants for state crime victim compensation programs and victim assistance programs. Funds are allocated by statute to victims of crimes for resulting medical, funeral or burial costs, mental health counseling, or lost wages.[52]
The courts have historically collected such fees and assessments from offenders in certain environmental crime cases and prosecutors could build on this precedent.[53] Removing environmental justice communities from harm requires a buyout through voluntary means or via eminent domain. For members of environmental justice communities that do not wish to be relocated, harm reduction can be achieved through better regulation and enforcement actions that reduce harmful emissions. The CVF could be expanded and used to help fund medical costs for those that remain, or EPA could step in, as with Libby, Montana, to provide medical care and monitoring on a more systematic basis. The CVF should be altered to include property damage and loss, and be expanded to include environmental justice communities and environmental crimes. If these remedies were sufficiently considered, then restitution for damages would currently function to cover medical and mental health costs or lost wages via the CVF. In the alternative, the courts could order restitution as they have in the past with other environmental crime victims in a series of cases ranging from asbestos exposure to illegal taking.[54]
CONCLUSION
At the half-century mark the EPA has mostly failed to prioritize environmental justice through direct and systematic programs geared towards harm reduction and compensation. The government should go beyond stakeholder inclusion to prioritize criminal enforcement and compliance efforts towards harm reduction for environmental justice communities, should allow for the continued representation of these communities as victims under the law, and should expand the use of compensation programs to provide restitution. These are necessary steps towards a more just outcome for environmental justice communities.
________________________________
DOI: https://doi.org/10.15779/Z38F18SG08
*. Director of The Honors Program and Strategic Initiatives and Professor of Political Science at Texas A&M University Corpus Christi (United States)
**. Dean, University College and Professor of Criminal Justice at Texas A&M University Corpus Christi (United States)
[1]. Clair Bullock, Kerry Ard, & Grace Saalman, Measuring the Relationship between State Environmental Justice Action and Air Pollution Inequality, 1990-2009, 35 Rev. Pol’y Rsch. 466, 466-67 (2018).
[2]. Bullard’s early work came from a lawsuit, where his research showed that all of the landfills owned by the City of Houston, Texas were in Black neighborhoods, along with three quarters of private landfills and incinerators. Robert D. Bullard, Solid Waste Sites and the Houston Black Community, 53 Soc. Inquiry 273, 273–274 (1983).
[3]. The genesis of the environmental justice movement is often traced to the siting of a polychlorinated biphenyl (PCBs) landfill in Warren County, North Carolina in 1982. The grassroots group the Warren County Citizens Concerned (WCCC) organized to oppose the toxic dump. Later, the United Church of Christ Commission on Racial Justice issued an extensive report on hazardous waste dumps throughout the United States. United Church of Christ, Toxic Wastes and Race in the United States (1987).
[4]. See Environmental Justice Timeline, EPA, https://www.epa.gov/environmentaljustice/environmental-justice-timeline (last updated June 2, 2017).
[5]. Learn About Environmental Justice, EPA, https://www.epa.gov/environmentaljustice/learn-about-environmental-justice (last updated Sept. 24, 2020).
[6]. Suzie Canales, Joshua Ozymy, & Melissa Lee Jarrell, Risk Assessment or Risk Acceptance: Why the EPA’s Attempts to Achieve Environmental Justice Have Failed and What They Can Do About It, 5 Envtl. Just. 59, 60 (2012).
[7]. Robert D. Bullard, Glenn S. Johnson, & Angel O. Torres, Addressing Global Poverty, Pollution, and Human Rights, in The Quest for Environmental Justice: Human Rights and the Politics of Pollution, 279, 286–89, (Robert D. Bullard ed., 2005); Paul B. Stretesky & Michael J. Lynch, Corporate Environmental Violence and Racism, 30 Crime L. & Soc. Change 163, 165 (1998).
[8]. Jennifer A. Horney et al., Comparing Residential Contamination in a Houston Environmental Justice Neighborhood Before and After Hurricane Harvey, 13 PLoS ONE (Feb. 8 2018), at 1; Garrett T. Sansom et al., Domestic Exposures to Polycyclic Aromatic Hydrocarbons in a Houston, Texas Environmental Justice Neighborhood, 11 Envtl. Just. 183, 183–185 (2018).
[9]. Jacob Dick, West PA Residents Discuss Proposed Valero Buyout, Beaumont Enter. (Sep. 11, 2020), https://www.beaumontenterprise.com/insider/article/West-PA-residents-discuss-proposed-Valero-buyout-15558845.php.
[10]. A simple review of the annual accomplishments of the OEJ shows that most governmental efforts focus on stakeholder inclusion, grant opportunities, and community outreach and training, but not significant efforts towards direct harm reduction for affected communities. See EPA, EPA Annual Environmental Justice Progress Report FY 2019, https://www.epa.gov/sites/production/files/2019-11/documents/11.19.19_ej_report-final-web-v2s.pdf.
[11]. Clean Water Act 33 U.S.C. §§ 1251–1387 (2018); Resource Conservation and Recovery Act, 42 U.S.C. § 6901–6992k (2018); Clean Air Act, 42 U.S.C. §§ 7401–7671q (2018). Data came from EPA, Summary of Criminal Prosecutions Database, U.S. EPA, https://www.epa.gov/enforcement/summary-criminal-prosecutions (last updated Nov. 11, 2020). Investigations and prosecutions are predominately focused on narrower issues within the CAA, CWA, and RCRA (about 60 percent of historical prosecutions) that generally have little to do with harm reduction for environmental justice communities specifically. While pollution from air, water, and waste generated for industrial facilities causes great harm to environmental justice communities, prosecutions under these big three federal statutes almost exclusively focus on illegal or unpermitted discharges under the CWA, Asbestos National Emissions Standards for Hazardous Pollutants (NESHAP) violations, or one or more storage, transport, or disposal violations under RCRA. See Joshua Ozymy, Bryan Menard, & Melissa L. Jarrell, Persistence or Partisanship: Exploring the Relationship Between Presidential Administrations and Criminal Enforcement by the U.S. Environmental Protection Agency, 1983-2019, Pub. Admin. Rev., 1–15 (forthcoming 2021).
[12]. Ozymy, Menard, & Jarrell, supra note 11, at 7–8; see Deepwater Horizon, U.S. Dep’t Just., https://www.justice.gov/enrd/deepwater-horizon (last visited Nov. 20, 2020); Transocean Pleads Guilty, Is Sentenced to Pay $400 Million Criminal Penalties for Criminal Conduct Leading to Deepwater Horizon Disaster, U.S. Dep’t Just. (Feb. 14, 2013), https://www.justice.gov/opa/pr/transocean-pleads-guilty-sentenced-pay-400-millionin-criminal-penalties-criminal; Volkswagen AG Agrees to Plead Guilty and Pay $4.3 Billion in Criminal and Civil Penalties; Six Volkswagen Executives and Employees are Indicted in Connection with Conspiracy to Cheat U.S. Emissions Tests, U.S. Dep’t Just. (Jan. 11, 2017), https://www.justice.gov/opa/pr/volkswagen-ag-agrees-plead-guilty-and-pay-43-billion-criminal-and-civil-penalties-six; Wal-Mart Pleads Guilty to Federal Environmental Crimes, Admits Civil Violations and Will Pay More than $81 Million, U.S. Dep’t Just. (May 28, 2013), https://www.justice.gov/opa/pr/wal-mart-pleads-guilty-federal-environmental-crimes-admits-civil-violations-and-will-pay-more. Marian Wang, BP Agrees to Pay $50 Million for Earlier Texas City Problems, ProPublica (Aug. 12, 2010, 3:32 PM), https://www.propublica.org/article/bp-agrees-to-pay-50-million-for-earlier-texas-city-problems.
[13]. In analyzing environmental criminal prosecutions, including those with identifiable victims, we see little evidence of EJ playing a primary role. See Joshua Ozymy & Melissa L. Jarrell, EPA’s Criminal Prosecution and Punishment of Environmental Crimes, 50 Envtl. L.Rep. 10452,10455–10456 (2020).
[14]. Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601–9675 (2018).
[15]. While official monitoring of air, water, and hazardous waste emissions does occur at large stationary sources of pollution near environmental justice communities, much of the data generated is self-reported by industry and on-the-ground sampling in real time and/or analysis of self-reported data often reveals a much bleaker picture of the amount of pollution environmental justice communities are exposed to than official estimates admit. See Envtl. Integrity Project, Accidents Will Happen 27–28 (2002), http://environmentalintegrity.org/pdf/publications/Report_Accidents_Will_Happen.pdf; Joshua Ozymy & Melissa Jarrell, Upset Events, Regulatory Drift, and the Regulation of Air Emissions at Industrial Facilities in the United States, 21 Envtl. Pol. 451, 451–460 (2012); Joshua Ozymy & Melissa Jarrell, Upset over Air Pollution: Analyzing Upset Event Emissions at Petroleum Refineries, 28 Rev. Pol’y Res. 365, 372–374 (2011).
[16]. Yolanda J. McDonald & Nicole E. Jones, Drinking Water Violations and Environmental Justice in the United States, 2011-2015, 108 Am. J. Pub. Health 1401 (2018); Carolina L. Balazs et al., Environmental Justice Implications of Arsenic Contamination in California’s San Joaquin Valley: A Cross-Sectional , Cluster-Design, Examining Exposure and Compliance in Community Drinking Water Systems, 11 Env’l Health, 84 (2012).
[17]. Ozymy, Menard, & Jarrell, supra note 11, at 4.
[18]. As part of the EPA’s National Compliance Initiatives, reducing significant non-compliance with NPDES permits and management of contaminated stormwater is a priority under the CWA. National Compliance Initiatives, EPA, https://www.epa.gov/enforcement/national-compliance-initiative-reducing-significant-non-compliance-national-pollutant, (last updated Sept. 10, 2020). EPA could make non-compliance with water emissions at stationary sources near environmental justice communities their top priority or one of the top priorities in a National Compliance Initiative and make this ongoing for many years; the same could occur for an ongoing basis with air emissions. This approach would give more force and resources towards policing facilities that arguably do the most direct harm.
[19]. Joshua Ozymy & Melissa L. Jarrell, Exploring the History of Charging and Sentencing Patterns in U.S. Clean Air Act Criminal Prosecutions, 60 Nat. Resources J., (forthcoming 2021).
[20]. Susan A. Perlin, Ken Sexton, & David W. S. Wong, An Examination of Race and Poverty for Populations Living Near Industrial Sources of Air Pollution, 9 J. Exposure Analysis & Env’l Epidemiology 29, 29-32 (1999).
[21]. Joshua Ozymy & Melissa L. Jarrell, Exploring the History of Charging and Sentencing Patterns in U.S. Clean Air Act Criminal Prosecutions, 60 Nat. Resources J., (forthcoming 2021).
[22]. Petroleum Refinery National Case Results, EPA, https://www.epa.gov/enforcement/petroleum-refinery-national-case-results, (last updated Apr. 11, 2019).
[23]. Robert Adler & Charles Lord, Environmental Crimes: Raising the Stakes, 59 Geo. Wash. L.Rev. 781, 781–861 (2010); Ronald G. Burns & Michael J. Lynch, Environmental Crime: A Sourcebook (2004).
[24]. Melissa L. Jarrell & Joshua Ozymy, Real Crime, Real Victims: Environmental Crime Victims and the Crime Victims’ Rights Act (CVRA), 58 Crime, Law and Social Change 373, 376-378 (2012).
[25]. See, e.g., Kenna v. U.S. District Court, 435 F.3d 1011 (9th Cir. 2006). Victims of financial fraud were not allowed to speak at sentencing. The appellate court granted a writ of mandamus holding the district court erred in refusing to allow victims to speak at sentencing and supported their argument that they had the right to be “reasonably heard” under the CVRA.
[26]. The idea of giving crime victims procedural rights in the court system harkens back to colonial America, where it was not uncommon for victims to play a central role in court proceedings. Private prosecutions were often common in the United States through the early 1800s. See generally Douglas E. Beloof, Weighing Crime Victims’ Interests in Judicially Crafted Criminal Procedure, 56 Cath. U. L.Rev. 1135, 1135 (2007); Mario M. Cuomo, The Crime Victim in a System of Criminal Justice, 8 J.Civ. Rts. & Econ. Dev. 1, 3 (1992); William F. McDonald, Towards a Bicentennial Revolution in Criminal Justice: The Return of the Victim, 13 Am. Crim. L.Rev. 649, 649 (1976).
[27]. See History of Victims’ Rights, Nat’l Crime Victim Law Inst. (2011), https://law.lclark.edu/centers/national_crime_victim_law_institute/about_ncvli/history_of_victims_rights/. In Linda R.S. v. Richard D. the U.S. Supreme Court ruled that a private citizen cannot compel a prosecutor to act. Linda R.S. v. Richard D., 410 U.S. 614 (1972). This is a key case followed by Leeke v. Timmerman that affirmed the sole right of the prosecutor to bring charges and that such an act cannot be compelled by a private citizen. Leeke v. Timmerman, 454 U.S. 83 (1981). These cases may be considered pivot decisions that later resulted in the organization of groups to find an expanded role of victims in judicial processes leading up to state action and then federal action on the CVRA.
[28]. Court cases in the late 1980s and early 1990s show how the courts were starting to view the push to include victims in court proceedings. Booth v. Maryland ruled it unconstitutional for Juries to hear how a murder affected a victim’s family at trial. Booth v. Maryland, 482 U.S. 496 (1987). Payne v. Tennessee amended a previous ruling in South Carolina v. Gather that held victim impact statements are admissible only in the case that they relate directly circumstances of a crime. Payne v. Tennessee, 501 U.S. 808 (1991); South Carolina v. Gathers, 490 U.S. 805 (1989).
[29]. Crime Victims’ Rights Act, 18 U.S.C. § 3771 (2011). Other federal laws, such as the 2019 Amy, Vicky, and Andy Child Pornography Victim Assistance Act protect victims. Amy, Vicky, and Andy Child Pornography Victim Assistance Act, Pub. L. No. 115-299 (2018). This case changes the way that the courts award restitution in child pornography cases. We focus on the CVRA as it is a more expansive and general law meant to enhance the role of victims in federal court proceedings. Moreover, we see the potential of the CVRA to be further applied to EJ communities directly. See Paul G. Cassell & James R. Marsh, The New Amy, Vicky, and Andy Act: A Positive Step Towards Full Restitution for Child Pornography Victims, 31 Fed. Sent’g Rep., 9 (2019).
The lead up to the victims’ rights movement gaining prominence can be traced to Ronald Reagan Declaring April 19, 1982 to be “Victims’ Rights Week” and then the issuance of the President’s Task Force’s Final Report on Victims of Crime in December of that year. The Victims of Crime Act (VOCA) was passed in 1984 that created the Office of Victims of Crime in the Department of Justice and the Crime Victims’ Fund. 42 U.S.C. § 10601 (2018). This was further institutionalized in 1990 with the passage of the Victims’ Rights and Restitution Act. 34 U.S.C. § 20141 (2018). See Victims of Crime Act, RAINN (2020), https://www.rainn.org/articles/victims-crime-act; Office for Victims of Crime, Final Report of the President’s Task Force on Victims of Crime (2020) https://ovc.ojp.gov/library/publications/final-report-presidents-task-force-victims-crime.
While most states have constitutional or statutory provisions that protect the rights of crime victims in court proceedings, the modern social movement to codify a consistent set of rights in state constitutions is known as the Marsy’s Law Movement. This movement can be traced to the passage of Proposition 9, known as the California Victims’ Bill of Rights Act passed in 2008. See State Efforts, Marsy’s Law (2020), https://www.marsyslaw.us/states.
[30]. The CVRA provides rights to be protected, given timely notice, inclusion in court proceedings, heard at public proceedings, confer with an attorney of the Government, proceedings that are free from delay, to be treated with fairness and with respect to dignity and privacy, and full and timely restitution as provided in law. The Act thus provides a set of procedural rights during court proceedings. These have not always been enforced without legal action. For example, in Kenna v. U.S. District Court, the court construed a statutory right to be heard that applied to crime victims to make oral statements at sentencing. The right to be heard was granted under the CVRA, but making this an enforceable right at sentencing, during trial, or in pre-trial activities required court interpretation. See the following articles for rights conferred under the CVRA and subsequent court rulings that clarified those rights in judicial procedures: Paul G. Cassell, Recognizing Victims in the Federal Rules of Criminal Procedure: Amendments in Light of the Crime Victims’ Rights Act, 2005 BYU L.Rev. 835, 835; Paul G. Cassell, Treating Crime Victims Fairly: Integrating Victims into the Federal Rules of Criminal Procedure, 2007 Utah L.Rev. 861, 861; Douglas E. Beloof, Dignity, Equity, and Public Interest for Defendants and Crime Victims in Plea Bargains: A Response to Professor Michael O’Hear, 91 Marq. L.R. 349 (2007); Kenna v. U.S. District Court, 435 F.3d 1011 (9th Cir. 2006).
[31]. The following provide support and criticism for a larger role of victims under the CVRA in court proceedings: Paul G. Cassell and Steven Joffee, The Crime Victims’ Expanding Role in a System of Public Prosecution:
A Response to the Critics of the Crime Victims’ Rights Act. 105 Nw. U. L.Rev. 164 (2011); Douglas E. Beloof, Weighing Crime Victims’ Interests in Judicially Crafted Criminal Procedure, 56 Cath. U. L. Rev. 1135 (2007); Kenna, 435 F.3d 1011; Danielle Levine, Public Wrongs and Private Rights: Limiting the Victim’s Role in a System of Public Prosecution, 104 Nw. U. L.Rev. 335 (2010); Tresa Baldas, Is Crime Victims’ Rights Law Being Misused in Environmental Cases?, Nat’l L.J. (2009); Andrew Atkins, A Complicated Environment: The Problem with Extending Victims’ Rights to Victims of Environmental Crimes, 67 Wash. & Lee L.Rev 1623, 1624-1647 (2010).
[32]. United States v. BP Products North America Inc., No. 4:07-CR-434, 2008 WL 501321 (S.D. Tex. 2009); BP America Refinery Explosion, CSB, https://www.csb.gov/bp-america-refinery-explosion/.
[33]. Jarrell & Ozymy, supra note 24, at 376.
[34]. The victims filed a writ of mandamus with the 5th Circuit Court, arguing their rights under the CVRA to timely notification had been violated. The victims had been recognized by the court, but prosecutors reached a plea deal with BP to pay a $50 million fine for the CAA violations and the judge agreed that prosecutors were not required to notify the victims prior to negotiating the plea deal and notifying the public via a public press release. The Circuit Court ruled that mandamus review was discretionary. In re Dean, 527 F.3d 391 (5th Cir. 2008).
[35]. For a discussion of mandamus review under the CVRA see Paul G. Cassell, Protecting Crime Victims in Federal Appellate Courts: The Need to Broadly Construe the Crime Victims’ Rights Act’s Mandamus Provision, 87 U. Denv. L.Rev. 599 (2010); Jerry F. Davis, Mandamus-Compelling an Official to Perform Discretionary Duty, 29 Louisiana Law Review 570, 570-573 (1969).
[36]. United States v. W.R. Grace, 401 F. Supp. 2d 1065 (D.Mont. 2005).
[37]. Beth Swantek, Libby, Montana Asbestos Disaster: 20 Years Later, Mesothelioma Cancer Network (Dec. 18, 2019), https://www.asbestos.net/blog/libby-montana-asbestos/.
[38]. W.R. Grace and Executives Charged with Fraud, Obstruction of Justice, and Endangering Libby, Montana Community, Dep’t of Justice, (Feb. 7, 2005), https://www.justice.gov/archive/opa/pr/2005/February/05_enrd_048.html.
[39]. Petition for Writ of Mandamus, In re Melvin, No. 1:10-cr-00219-WMS-HKS (9th Cir. 2013), available at https://www.justice.gov/sites/default/files/usao-wdny/legacy/2014/01/10/supp1.pdf.
[40]. EPA Announces Public Health Emergency in Libby, Montana, EPA (June 17, 2009), https://archive.epa.gov/epapages/newsroom_archive/newsreleases/0d16234d252c98f9852575d8005e63ac.html; Kirk Johnson, Chemical Company Is Acquitted in Asbestos Case, N.Y. Times (May 8, 2009), https://www.nytimes.com/2009/05/09/us/09grace.html.
[41]. United States v. CITGO Petroleum Corp., 801 F.3d 477, 479-480 (5th Cir. 2015).
[42]. Jarrell & Ozymy, supra note 24, at 377-378.
[43]. Jarrell & Ozymy, supra note 24, at 375.
[44]. Memorandum Opinion and Order Granting Motion to Exclude Witnesses, United States v. CITGO Petroleum Corp., No. 2:06-cr-00563 (S.D. Tex. 2014); Memorandum Opinion and Order Denying Request for Restitution, CITGO, No. 2:06-cr-00563.
[45]. Jarrell and Ozymy, supra note 24, at 375-379.
[46]. Memorandum Opinion and Order Denying Request for Restitution, supra note 44. As in CITGO, the legal principle that living near major sources of stationary pollution is in itself hazardous has been recognized by the courts, but naming corporations as the direct and proximate cause due to chronic emissions is something they are more reticent to support.
[47]. The government petition for Writ of Mandamus in Grace argued that physical symptoms of injury are not always necessary for a person to be recognized as a crime victim. Prosecutors argued that, “[e]ach of the 34 victim-witnesses suffered harm as a result of their asbestos exposure directly and proximately caused by the conspiracy, knowing endangerment, and the obstruction of justice offenses alleged in the Superseding Indictment.” The CVRA allows for the recognition of crime victims that suffer proximate harm (physical, emotional, or financial). See Government Petition for Writ of Mandamus at 18, United States v. W.R. Grace, 401 F. Supp. 2d 1065 (D.Mont. 2005), available at http://www.volokh.com/files/governmentpetition.pdf; Rights of Victims, U.S. Dep’t Just., https://www.justice.gov/enrd/rights-victims (last updated May 28, 2020).
[48]. EPA Declares Public Health Emergency in Libby, Montana, Environmental News Service (June 17, 2009), http://www.ens-newswire.com/ens/jun2009/2009-06-17-093.asp.
[49]. EPA deletes portion of Libby, Montana Superfund site from National Priorities List, EPA (May 26, 2020), https://www.epa.gov/newsreleases/epa-deletes-portion-libby-montana-superfund-site-national-priorities-list-0.
[50]. Robert Pear, Deep in Health Bill, Very Specific Beneficiaries, N.Y. Times (Dec. 20, 2009), https://www.nytimes.com/2009/12/21/health/policy/21healthcare.html.
[51]. For a timeline see Crime Victims’ Rights in America: A Historical Overview, OVC, https://www.ncjrs.gov/ovc_archives/ncvrw/2005/pg4b.html
[52]. The OVC and CVF were established following the passage of the federal Victims of Crime Act (VOCA) in 1984. Victims of Crime Act of 1984, 42 U.S.C. § 10601 (2018); Victims of Crime Act, RAINN (2020), https://www.rainn.org/articles/victims-crime-act; Crime Victims Fund, Office for Victims of Crime, https://ovc.ojp.gov/sites/g/files/xyckuh226/files/pubs/crimevictimsfundfs/intro.html.
[53]. A few examples of fees for victims collected during environmental crime prosecutions include Kevin Deiter, who was convicted of unlawful taking and off-label use of a pesticide for killing bald eagles and other wildlife. Faulkton Man Charged and Sentenced for Wildlife Violations Involving Bald Eagle Deaths, U.S. Dep’t Just. (May 15, 2020), https://www.justice.gov/usao-sd/pr/faulkton-man-charged-and-sentenced-wildlife-violations-involving-bald-eagle-deaths. He was ordered to pay $29,400 in restitution and $40 to the Fund. Id. Alan Elias was prosecuted for knowing endangerment for directing his employees to clean out a 25,000-gallon tank filled with cyanide sludge. Summary of Criminal Prosecutions, EPA, https://cfpub.epa.gov/compliance/criminal_prosecution/index.cfm? (search defendants field for “Elias”; follow “VIEW” hyperlink). One worker was overcome from the fumes and suffered permanent brain damage and disability. Id. When investigators arrived on the scene Elias lied to them to cover up the crime. Idaho Man Given Longest-Ever Sentence for Environmental Crime, EHS Today (May 2, 2000), https://www.ehstoday.com/archive/article/21908293/idaho-man-given-longestever-sentence-for-environmental-crime. At sentencing, Elias was sentenced to 17 years incarceration, one of the most severe sentences for a federal environmental crime in the U.S. history. Id. He was ordered to pay roughly $6.3 million in restitution to the victim, but the legality of the restitution was later challenged in court. Summary of Criminal Prosecutions supra; see United States v. Elias, 269 F.3d 1003 (9th Cir. 2001).
[54]. Marvin and Isaac Rubenstein injured workers by having them improperly remove ACM from a building thus exposing them to environmental harm. Summary of Criminal Prosecutions, EPA, https://cfpub.epa.gov/compliance/criminal_prosecution/index.cfm? (search defendants field for “Isaac Rubenstein”; follow “VIEW” hyperlink). Marvin was ordered to pay $10,000 in restitution to each known victim. Id. The Rubensteins appealed the ruling. United States v. Marvin and Isaac Rubenstein, 403 F.3d 93 (2d Cir. 2005).
In 2015, Joseph Cuellar and his co-defendants were sentenced for unlawful asbestos abatement of a building. Summary of Criminal Prosecutions, EPA, https://cfpub.epa.gov/compliance/criminal_prosecution/index.cfm? (search defendants field for “Cuellar”; follow “VIEW” hyperlink). Sixty-five victims who were exposed to ACM petitioned for medical monitoring costs and restitution related to potential health costs of exposure. Id. The court ordered Cuellar to pay $1,801,833 in restitution. Id. The case was appealed. United States v. Cuellar, 646 F. Appx 574 (9th Cir. 2016).
