What to do When You Find an Environmental Problem or Crime
SLAPP Suits: What to do when the Empire Strikes Back
Research Company Permits
If you have a particular facility that you want to research, here's how you can go about it. Normally, your state environmental agency will be the permitting agency for that facility for water, air, and hazardous waste permits. If not, then the U.S. EPA will be.
For mines, usually the state mining commission or some similar agency is the permitting authority. For wetland permits, the U.S. Army Corps of Engineers is the permitting authority.
You have a legal right to see all the documents in every permit file of every facility in the country, except for those limited documents that have trade secret information in them. All the documents regarding the discharge of pollutants will usually not fall into that trade secret exclusion.
Most agencies will not allow you to just walk in and see a file. As custodians of millions of pages of important documents, these agencies do not let people see their files without going through a procedure to make sure that the files are maintained. So, you will normally have to make an appointment with the agency to review the files you want. This is usually done by calling the agency and asking to talk to the document custodian or the person who oversees the public review of records. Talking with that person will give you the procedure the agency's requires you to go through to see a file. Sometimes, they may require that the document review request be in writing so that they can have that in their files too.
What do you tell them you want to see? For example, if you are interested in the water pollution a company is putting out, simply tell them you want to see all the files and documents on that facility's water pollution. You will have to identify the facility with some specificity, like "Big Dumper's herbicide plant in Hometown." Normally, telling them the name and location of the facility will be enough for them to find the right files. Also, they will want you to limit your review to a reasonable number of years. Unless you have an interest in knowing everything that facility has done since 1970, you will normally ask for the last five years' worth of documents, as the statute of limitations for holding them accountable for violations is five years. But if you want everything, demand it; you have a right to see it all.
Agencies often keep the documents on a facility's permit in different types of files. Letters to and from the company will be in a "Correspondence" file. The DMRs, which are usually the meat of what you want to see, may be in a "Monitoring" files. The permit and all the documents that went into the issuance of that permit may be in a "Permit" file. Unless and until you are familiar with your agency's filing procedures and know exactly what to ask for, ask for all the files on that facility's permit.
After you have set up an appointment,
Often, if an agency that wants to let some industry do something harmful will not let you see its files readily, you can get good documentation on the project from other agencies that disagree with the permitting agency. It is not uncommon for the U.S. Fish and Wildlife Service to be opposed to wetland fill permits proposed by the U.S. Army Corps of Engineers. If the Corps is playing hard to get with its files, call the loc office of the Fish and Wildlife Service and ask to speak to the person who wrote that agency' comments to the Corps on that proposed permit. If they are opposed to the permit, they will normally be glad to talk with you and to give you everything the Corps sent to them and their comments back to the Corps. Sometimes, those comments are so negative on the proposal's adverse impacts that you can get good press exposure for the project, especially when the press learns that the Corps tried to keep all that bad information secret.
State agencies that hide a company's DMRs from you can be bypassed as that facility is also required to file those DMRs with the EPA. Call the EPA, and normally, they will not be subject to the political pressure that an industry can amass against the more local state agency.
WHAT TO DO WHEN YOU FIND AN ENVIRONMENTAL PROBLEM OR CRIME
"The duty to disclose knowledge of crime rests upon all citizens." -- Justice Robert Jackson
What do you do when you find someone violating an environmental law? Unlike seeing someone rob a store, seeing someone violate an environmental law is not remedied by just calling 911.
A friend of mine was hiking in the woods one day when he found some old gravel pits filled with 55-gallon barrels of toxic waste. Now, dumping any kind of waste, garbage or toxic, somewhere is illegal; all wastes must be disposed of at approved and permitted facilities. So, my friend knew that he had stumbled onto an environmental crime, but he did not know what to do about it.
His dilemma is a fairly common one. The not knowing is complicated by the fact that even knowing what to do will often not remedy the situation. Being under-funded and understaffed, most state and federal agencies that are supposed to handle illegal dumps or other environmental crimes are already swamped with the number of illegal dumps that they have to deal with now; they do not want to know about any more such problems. Thus, calling your state environmental agency about the illegal dump that you found may often bring no action. If you truly want to do something about an illegal dump or other environmental crime, you must make a lot of noise in a great number of places.
By all means, call your state environmental agency; they may actually do their job. But do not rely upon them alone. Also call the regional office of the U.S. Environmental Protection Agency. Call the health department.
As the problem you found may be a federal crime, call the local and regional offices of the Federal Bureau of Investigation; often, the FBI will be interested in investigating an environmental crime as it makes them look good and gives them a break from the endless drug crimes they have to work on. Call the local U.S. Attorney's Office and notify them of the problem. Call the Justice Department in Washington, D.C. Call your state attorney general and your local district attorney; the problem may be a state crime as well, and some state prosecutors like to bring environmental cases. Also, state prosecutors may be able to bring a state civil action for penalties against the violator.
Call your two senators and your congressperson, and demand that they look into the situation and that they make the EPA and the FBI investigate. Contact any state and local elected officials that may help. Bring as much political pressure as you can to bear on the problem.
Perhaps the most important thing you can do is to notify the media; call all the environmental reporters for the papers in the region. Call all the television stations' news departments. In Alabama, the state environmental agency knew about a illegal garbage dump less than a mile from the agency's own headquarters; for over six years, the agency knowingly let this dump operate against the law. A local resident found out about it and contacted the press. The dump was shown on the evening news and the local paper ran an editorial about how bad the agency was to allow an illegal dump to operate and about how ironic it was that the dump was almost next to the agency building. Within days, the dump was ordered closed by the agency. However, despite more than five years passing since the dump was closed, it has still not been cleaned up. Why? Perhaps because the media lost interest once it was closed. Out of sight, out of mind. Thus, it is important to generate, and then sustain, media attention. Hold public meetings; hold press conferences; stage protests; have rallies to raise money to fight the problem; form your own grassroots group to fight your local problem.
Another thing to do is to contact all the environmental groups in your area and state. Let them know about what you found; find out if they will do anything about it. Often, they can give you more information about exactly whom to talk to in the government or in the media. Also, they can generate public exposure about the problem if they get interested in it. Do not rely solely on environmental groups, because they may not have the resources to deal with the problems you found or they may just not be interested. Environmental groups have limited resources and thus have their own agendas and priorities, and if the problem you have does not fit into those agendas, then you will get little, or no, help. You may have to form your own group.
Finally, if none of the above people will do anything about the problem or if they are not doing enough, then it is time for you to consider taking direct legal action yourself. If you own property next to or near the problem, you may be able to sue the land owners and dumpers for money for any damage they have done to your property, including the ground water. You may be able to initiate a citizen suit for the failure of the dumper to have the required permits to do what they did. Even if you never initiate any kind of legal action yourself, having a lawyer make some of your demands on public officials and politicians can make them take your problem more seriously.
What if the environmental problem is being caused by an arm of the government? Another friend of mine discovered that the U.S. Forest Service was logging public lands and that logging impacting on endangered species downstream. The Forest Service had done nothing to research the harm that might be done to the endangered mussels and turtle downstream, and they did nothing to prevent that harm. We publicized this action, and when the government still refused to abide by the law, we were able to sue then in federal court and stop the logging.
Whenever the "bad actor" is a government agency, you should still make all the contacts listed above. Contact other government agencies that may not like what the bad agency is doing. For instance, the Fish and Wildlife Service was opposed to what the Forest Service was doing in my friend's case, and the Fish and Wildlife Service gave us all the information we needed about the endangered species involved so that we could shut down the Forest Service. The EPA has veto power over permits to dredge and fill wetlands issued by the Army Corps of Engineers. So, if the Corps has done something wrong regarding a wetland, you can attack their action by getting the EPA involved. Often a federal agency and a state agency will see the impacts of a proposal with very different opinions as to the impacts and the desirability of the project. The federal and state governments are large, ponderous things, and often, one arm of the government will not agree with another's actions. Use that difference of opinion to your advantage if you can. Make sure to contact your senators and congressperson, or state representatives if a state agency is involved, as they each have a vote over the agency.
In addition to contacting others about the problem or crime that you have found, you need to document it as best you can. Videotape of someone dumping barrels into a ravine is great evidence and can really get a prosecutor's blood racing. Gather all the photographs, documents, video recordings, etcetera that you can. Of course, don't go so far as to put yourself in danger.
I contested the Forest Service's clearcut logging of a hardwood forest next to a designated national recreation trail. The local paper got interested in the story, but the Forest Service told the reporter that all that was going on was a thinning of a few pine trees and that the logging could not be seen from the trail. I showed the reporter a videotape I had made of the loggers cutting down 70-year-old hardwood trees right next to the trail and of the logging activity's having destroyed parts of the trail. Confronted with concrete evidence that refuted their statements, the Forest Service looked bad in the paper and changed their story, promising that such logging would never happen again.
Obviously, you may not need to contact everyone I have listed for each and every problem; use judgment on whom to contact. If a certain politician is a hard-core hater of anything environmental, then he will not be someone to contact to help you. Here is a quick, general checklist of people to contact if you think that you have found an environmental problem and/or environmental crime:
your state environmental agency;
the regional office of the EPA;
your local and state health departments;
the Federal Bureau of Investigation;
the local U.S. Attorney's Office;
the U.S. Justice Department in Washington;
your state attorney general's office;
your local district attorney's office;
any and all elected officials that may have an interest in the environment or who may bring political pressure on those agencies that can do something about this; this includes federal, state and local politicians, from your city council representative on up to the President (after all, they all work for you);
local, state and national environmental groups;
if a corporation is involved, contact your local, regional and national Better Business Bureaus and report the company to them;
newspaper, television and radio media;
friends, neighbors and others who need to know about the problem and who may want to get involved once they do know about it (if an illegal dump affects your children, it affects your neighbors' children as well);
an environmental attorney.
Most of all, do something. If you remain silent, then the problem will not be corrected, and the perpetrator will just be encouraged to violate the law some more. There are lots of companies out there violating the Clean Water Act; I found over 200 in Alabama alone in just a two-month period. There are lots of companies and people dumping garbage and toxic waste illegally; I have discovered over 50 illegal dumps myself. Most of these environmental crimes and violations, from improper logging practices to midnight dumpers of toxic waste, occur because of one thing: no one is watching. Few people would steal something if a cop was standing right next to them watching them at the time. For the environment, there are very few cops, and many of them are either unable or unwilling to do their jobs correctly. Therefore, there is a major need for just plain folks to find and to turn in these environmental criminals.
We must go out into the wilds that we care about and make sure that no one is doing something illegal to harm them. Some bureaucrats in the Forest Service feel that they can get away with improper logging practices because they think that no one of the public will be out there watching them. Usually, that is the case, especially since they close areas being logged to public access. Midnight dumpers get away with their crimes because they know that very few people go into the woods where they dump. As the great forester and environmental philosopher Aldo Leopold said:
"Unless there be wilderness-minded men scattered through all the conservation bureaus, the societies may never learn of new invasions until the time for action has passed. Furthermore, a militant minority of wilderness-mined citizens must be on watch throughout the nation and vigilantly available for action."
What is needed now is not a minority of citizens to watch for environmental degradation; we need everyone to be vigilant if we are ever again to have clean air, water and land and natural and wild ecosystems.
Basically, as with many other things, if you want to make sure that environmental protection is done right, you have to do it yourself, or at least, keep a vigilant eye on those who are supposed to do it for you. As much as anything else, that is the point of this course: YOU must get involved in the laws regarding our environment. If you want a clean, healthy and natural environment, if you want our environmental laws to work, YOU must do something.
SLAPP SUITS: What to do When the Empire Strikes Back
"Freedom cannot exist in a muzzled world. Free people must speak to each other and hear each other--they must test and protest and raise hell and shake their leaders by the napes of their necks." -- Gerry Spence
One thing that companies can do to thwart vocal adversaries who wish to hold the corporations accountable for their conduct is to sue their opposition. These are the Strategic Lawsuits Against Public Participation, SLAPP suits, mentioned in some of the other chapters of this book.
There have been several thousand SLAPP suits in the last decade or so. Several SLAPP suits that have been won by the citizens who were sued include those against the League of Women Voters who spoke out against a condominium project in the Los Angeles area, people who voiced their opinions about preserving wilderness areas, people who have complained about the pollution from a company killing fish, and even parents who spoke out in favor of better child care. Basically, SLAPP suits can, and do, occur in any area where a citizen speaks out about a project or activity of someone that is making money.
There is a disturbing trend in the United States to think of the right of property as the most sacred and inviolate of all constitutional rights such that developers and polluters actually think that their destruction of the environment and their harming the health of other, less-wealthy people is justified by the profits that they make. The SLAPP suit is the legal weapon of choice by unscrupulous business people to squelch the voice of those who bear the burden of the degradation and pollution cast off by the business in its goal of maximizing near-term profits. Although there is nothing wrong with making a profit and property rights are important, those things cannot be placed above the health and welfare of people, above the integrity of the environment and above the constitutional rights of free speech and petitioning the government.
For an example, when someone speaks out against a company that wants to build a garbage incinerator in their neighborhood, the incinerator company may sue that person for slander and interference with contractual relations. What happens is that the company uses the legal system to silence its opposition. Because most grassroots activists do not have much money, just fighting a SLAPP suit to the point of having it dismissed can bankrupt them. The idea behind SLAPP suits is to occupy the time, money and emotions of the activist with the lawsuit against them so that the activist cannot fight the proposed project; fighting even an obviously frivolous SLAPP suit can take months or years, cost tens of thousands of dollars, and involve a great deal of intense mental anguish. Even if the SLAPP suit loses, the company wins because it crippled its opposition with what is, to it, a minimal cost in crafty lawyers.
For the activists who are more persistent, when they win the SLAPP suit, they can then turn around and sue the company back for abuse of process, malicious prosecution, defamation, intentional infliction of mental anguish and other things, and sometimes, the activists win huge jury verdicts in the millions of dollars range. The Sierra Club and a group of individuals who opposed a resort development in Squaw Valley, California, recently received a $2.4 million settlement from the developer. The developer sued the individuals for a claimed $75 million for alleged losses due to delays in the project while they opposed the needed permits; the Club was later added as a party. After the developer's suit was dismissed, the Club and the others sued, and the developer agreed to settle the case for $2.4 million. As part of the settlement agreement, the lawyers from both sides were allowed to present their versions of what happened in articles in the Sierra Club's magazine Sierra; it makes for fascinating reading about how two sets of lawyers can see the same facts so differently. "Club SLAPPs Back," 78 Sierra 95 (No. 4, July/Aug. 1993); "Developer Sued Opponents Because It Believed They Failed to Honor Their Word," 78 Sierra 96 (No. 4, July/Aug. 1993).
Cases to fight back against a SLAPP suit, however, also take lots of time and money, and despite the threat of a huge jury verdict in a counter-suit, corporations continue to attempt to silence their opposition with SLAPP suits. That is because they are usually successful in breaking the spirit of the activist, who agrees to drop their opposition to the company's plans in return for the company's dropping the lawsuit. Corporations have large amounts of money, and suing a citizen to shut him or her up is much less expensive to many companies than actually fixing their problems so that they no longer pollute. What is happening with SLAPP suits is that corporations are abusing the legal process to prevent members of the public from exercising their constitutional rights, the rights of free speech and of petitioning our government for a redress of grievances.
These rights are some of the most fundamental constitutional rights. Obviously, free speech is vitally important if we are ever going to be able to expose the wrongs in our world and society and if we are going to hold our government servants accountable. The right to petition our government for a redress of grievances is equally essential to maintaining a democracy. If we cannot tell our government officials what is going on and voice to them our desires for the type of country we want to live in, then there is no representation of the citizens by the government. Unlike large corporations and special interest groups, the average person does not have hundreds-of-thousands of dollars to buy the ear of all the politicians and bureaucrats that serve her, but with the rights to speak out and to petition the government directly, the average person can be heard, and perhaps listened to, particularly if enough folks speak out. Also, SLAPP suits are attempts to quiet public debate on public, political issues by using the courts to turn that debate into a private controversy between litigants; courts are not designed to resolve political policy issues and should not be used as such by someone who wants to use their power and money to force citizens to accept public policy that they do not agree with. Abuse of the legal system by powerful, moneyed interests should not be tolerated. The Supreme Court of Colorado has adopted rules to make the dismissal of SLAPP suits easier and swifter, and people should demand of their state legislatures and their state supreme courts that similar rules regarding SLAPP suits be adopted and enforced.
As an illustration of a case where the citizen lost, a man contesting a planned landfill made statements about the garbage company that would build and operate that landfill, and he stated that the company was guilty of a number of environmental and criminal violations in the past. The company immediately sued the man, because that company had never been convicted or even charged with any environmental or criminal violations. The situation was that an associated company with a very similar name had been charged and convicted of the violations that the man was talking about, but when he spoke out, he accused the wrong company. Even though this company was very closely related to the company that had the violations, the law recognizes the difference as fundamental. Even with the same corporate officers and board of directors and with both companies being wholly-owned by the same people or parent company, Company A is not legally the same as Company B, and a statement attributing the crimes of Company A to Company B is legally considered defamatory against Company B. So, in law, this man was guilty of slandering this company, and the company's suit against him was not a SLAPP suit as it did have a legally correct foundation. Such a case illustrates the importance of getting one's facts straight before one speaks out about something. Also, if one has an opinion about a company's or person's reputation, make sure that you state that your opinion is just your opinion, and it would be better not even to voice an opinion about someone's reputation without well-documented facts to back it up. If you have concerns about how a project will effect the environment or about how the government agency involved did its research, then it is perfectly okay to voice those concerns. But do not let your concerns turn into unfounded accusations, or you will be facing a lawsuit that you will lose.
The nation's foremost experts on SLAPP lawsuits are law Professor George W. Pring and sociology Professor Penelope Canan of the University of Denver. They have tracked SLAPP suits in the United States as part of a national, interdisciplinary study sponsored by the National Science Foundation. Their studies show that most such lawsuits are indeed thrown out of court but that the average case tends to last for three years. If you want more information about SLAPP suits, contact Professor Pring at the University of Denver, College of Law, 1900 Olive Street, Denver, Colorado 80220; 303/871-6266.
According to Professors Pring and Canan, 71 percent of all SLAPP suits are against citizens who contacted a government agency about a project or activity that some third party needed approved by that agency. They advise anyone who is threatened with a SLAPP suit or actually sued to do the following:
Contact a lawyer and tell them that you are the subject of a SLAPP suit; mention specifically that your right to free speech and right to petition are being attacked. Contact the local branch of the American Civil Liberties Union; the ACLU has handled a number of SLAPP cases. If you are lucky enough to have a good environmental lawyer working on your issue already, perhaps he or she would represent you in a SLAPP suit; the huge potential monetary recovery from a SLAPP-back suit should make most lawyers interested.
Tell your lawyer to contact Professors Pring and Canan for detailed information on SLAPPs.
Talk with your lawyer about a swift motion to dismiss based upon your federal and state constitutional rights.
Consider counter-suing for the violations to your constitutional rights. If you have the stomach and the patience for it, a SLAPP-back suit on your part could make you and your attorney millions of dollars and will send a signal to those who would abuse the legal system that such conduct will not be tolerated. Also, it will make future activists less likely to be SLAPPed. All these points and many others are covered in the professors' papers "Citizens' Rights -- Communicating with Government" and "Strategic Lawsuits Against Public Participation," 35 Social Problems 506 (No. 5, Dec. 1988). These articles are available from the address above.