Corporate Environmental Crime and Environmental Victimization: Exploring New Legal Precedents for Securing Recognition and Restitution for Environmental Justice Communities

Introduction

In May 2007, the first federal criminal trial involving a petroleum refinery and violations of the U.S. Clean Air Act commenced in Corpus Christi, Texas, against CITGO Petroleum and Refining. Prior to sentencing in 2014, close to 1,000 members of a fenceline community living adjacent to the CITGO refinery petitioned the court to be declared victims of the company's criminal behaviors. The district court judge agreed (after a petition for writ of mandamus filed by the victims' attorneys was granted by the Fifth Circuit Court of Appeals) and declared them crime victims under the federal Crime Victims Rights Act (CVRA), affording them certain legal rights, but awarding no compensation or restitution. While this was a hollow victory for the local environmental justice (EJ) community, a more important legal precedent was set for similarly situated communities across the country. This article describes the trial with a focus on the victims' efforts, while discussing the benefits and limitations of this approach for other environmental justice communities across the United States.

U.S. v. CITGO

Corpus Christi is a coastal city of approximately 300,000 people located roughly 210 miles south of Houston in one of the most polluted counties in Texas. Thousands of predominantly low-income, minority residents live in close proximity to a lengthy corridor of petroleum refineries and chemical plants known locally as Refinery Row. Research into these communities finds many residents living within blocks of this corridor, who feel their health problems are intimately linked to their close proximity to heavy industry. ¹ Research by the Texas State Department of Health Services found that between 1996 and 2003 birth defect rates in the city were 84% higher than the rest of the state. ²

There are six petroleum refineries in the area operated by three large corporations. CITGO operates two refineries that were subjected to state enforcement actions in 1999, 2001, 2002, and 2004 totaling over $5 million in penalties. ³ In March 2002, more than 4.5 million gallons of oil were discovered in open top tanks during an unannounced inspection by Texas's environmental regulatory agency, the Texas Commission on Environmental Quality (TCEQ), which was undertaken in response to resident complaints. The TCEQ determined that tanks 116 and 117 were the source of continuous emissions into the neighboring community. ⁴ On August 9, 2006, a federal grand jury returned a ten-count indictment charging CITGO Petroleum Corporation, CITGO Refining and Chemicals Co., and the environmental manager at its Corpus Christi East Refinery Plant with criminal violations of the federal Clean Air Act (CAA) and the Migratory Bird Treaty Act (MBTA). The indictment alleged that the company operated two open top tanks as oil water separators between January 1994 and May 2003 without the required emission controls. ⁵

On May 17, 2007, a federal jury in Corpus Christi heard opening statements in the case against CITGO. Witness for the prosecution Jean Salone, a resident of Hillcrest, one of the predominantly low-income, minority communities bordering CITGO (Oak Park being the other EJ community nearby), claimed that a burning throat, watery, irritated eyes, and itchy skin are a common occurrence for her and many other residents of the community. September 23, 2001 was much worse than usual for Salone. She testified at trial that she awoke because of a “strong heavy smell from the refinery that was making me sick…the smell was indescribable.” ⁶

On June 27, 2007, the jury determined that CITGO knowingly operated two large open-top tanks as oil-water separators between January 1994 and May 2003. The result was that for over nine years uncontrolled amounts of benzene streamed into the adjoining neighborhoods potentially exposing Salone and many others to an unknown amount of this cancer-causing agent. On July 17, 2007, CITGO was additionally found guilty of three counts of violating the Migratory Bird Treaty Act, as multiple migratory birds were found dead inside of these same open-top tanks.

Seeking Victim Status

The sentencing phase of the trial dragged on for approximately seven years. Members of the environmental crimes task force, including the Department of Justice prosecutor from the Environmental Crimes Section of the Environment and Natural Resources Division, initially interviewed over 400 residents of Hillcrest and Oak Park. Residents signed victim impact statements at town hall meetings held in the local community center. The goal was to have residents of these two EJ communities describe their health problems they felt were linked to CITGO's crimes.

In 2008, fifteen of the residents that completed the victim impact statements were chosen to testify at pre-sentencing hearings. At the hearings, the federal government introduced evidence suggesting that emissions from the two tanks in question made these residents sick. Perhaps the strongest evidence came from the TCEQ investigator, Dorothy Daywood, who fell ill during her on-site investigation of the CITGO facility in March, 2002; the same aforementioned investigation that precipitated the federal indictment against CITGO. The prosecution presented further evidence at the hearings that CITGO was the only real source of benzene from 1994 to 2003. A toxicologist, Christopher Weis, from the Centers for Disease Control (CDC) testified that over 48 different chemicals were found in the tanks in question.

The legal strategy developed by the federal attorneys representing the EJ residents hinged on their ability to have the court recognize the link between CITGO's crimes and their sickness. This strategy involved a novel assertion that these individuals should be considered victims under the CVRA. The prosecution attempted to introduce evidence of victimization at trial and have the alleged victims participate in the trial proceedings, but with only one exception, Jean Salone, who was able to testify because she called and reported the emissions and odors to the TCEQ, the judge disallowed this as prejudicial.

The judge's decision generally comports with the way that the criminal justice system in the United States has traditionally excluded victims from playing an active role in criminal cases. Kenna v. U.S. District Court outlines this premise well; “that crime victims should behave like good Victorian children—seen but not heard.” The CVRA was signed into law in 2004 with the expressed intent of providing a more active role for victims in federal court proceedings. Section 3771(a) of the CVRA defines eight basic rights: ⁷

The application of the CVRA to EJ communities would represent a novel application of the law. In the CITGO case, being declared victims under the CVRA, would potentially grant such individuals the right to be heard at court proceedings, participate and confer with government attorneys, and seek restitution under the law for the harms they suffered. The CVRA defines a “crime victim” as a person “directly and proximately harmed as a result of a federal offense.” ⁸ Establishing a direct connection here is quite difficult, although it becomes somewhat obvious in the CITGO case that proximate harm was experienced by neighboring EJ communities. Judge Rainey, who presided over the case, noted this point in the court proceedings: ⁹

After numerous delays, Judge Rainey issued an order excluding the petitioners as victims under the CVRA. Given that the petitioners had little money to hire an appellate attorney, the authors of this article helped to locate and secure a proper advocate that would work on behalf of the community pro bono. Former federal judge and now law professor, Paul G. Cassell, agreed to lead the legal team on behalf of the victims. Over the next year, with the help of attorneys from a legal aid office in Austin, Texas, we worked on motions to file in the district court, as well as a petition for writ of mandamus to file with the Fifth Circuit Court of Appeals. Victims' attorneys filed additional motions with Judge Rainey to include the community members as victims under the CVRA. These motions were subsequently denied.

One week prior to the sentencing in late 2012, the victims' attorney filed a petition for writ of mandamus with the Fifth Circuit Court of Appeals, asking the appellate courts to overturn the district court's ruling, stating that the judge erred when he required medical proof of victimization. The Fifth Circuit quickly ruled that district judge needed to re-examine the victims' previous filing. At the initial sentencing in 2012, after hearing oral arguments from the victims' attorney, the district court judge reversed his previous order, declaring the community members as victims of CITGO's crimes. Over 100 victims requested to orally address the court prior to sentencing.

The Sentencing

In October of 2013, in a packed courtroom, Judge Rainey heard oral testimony from over 90 victims of CITGO's crimes. Victims were limited to five minutes of testimony each, which took place over the course of three days. Victims testified about their health problems, the health of their children, and future health concerns. The government and victims' attorneys presented the judge with simple methods for calculating a property buy-out and medical trust fund. At the conclusion of the victims' testimony, Judge Rainey stated that he needed more time to render a decision. On February 5, 2014, victims and observers once again packed into the courtroom to hear Judge Rainey's decision. The judge, instead, fined CITGO $2 million for the Clean Air Act violations and decided not to rule on restitution, leaving a bewildered audience to bombard the prosecutor and victims' attorney with questions as to what had just occurred.

Roughly two months passed and on April 30, 2014, Judge Rainey filed his opinion and order regarding restitution in writing on the court docket. The victims were not directly notified, instead many learned of the opinion on the local evening news. While the judge acknowledged the residents live in a “virtual dead zone” and still suffer from anxiety and fear, ¹⁰ he wrote that there was a lack of long-term medical records to substantiate evidence of chronic health effects and granting any restitution may “unduly delay the sentencing process.” The government is no longer challenging the judge's decision to deny restitution to the victims.

Extending Protection to Victims

One could argue that the CITGO case began with the unannounced TCEQ inspection in 2002 that uncovered the tanks leaking benzene into the adjacent neighbors and ended twelve and a half years later, when the government withdrew its petition challenging the court's ruling on victim restitution. We know living near heavy industry is damaging to EJ communities, but proving the direct cause of this harm is quite difficult. An equally large hurdle to justice in these cases is the sheer cost and time involved in pursuing a criminal case against a multi-billion dollar corporation. Expecting government to pursue a case on behalf of victims themselves is uncommon, and pursuing victim status under the CVRA is an extra burden government prosecutors have generally proven unwilling to bear on behalf of EJ communities across the United States (this case is an exception to be certain). Another legal avenue for EJ communities is to file a civil rights case against the offender and the city/county. Such a case was pursued in Corpus Christi in the 1990s and a rare, partial buyout was negotiated for some residents. Other private attorneys have expressed interest in filing a similar suit, meeting with the authors directly to discuss the possibility, but generally do not find it financially advantageous enough to move forward.

With these obstacles in mind, while using the CVRA to help find justice for EJ communities is by no means common legal praxis, we wish it would be and hope the precedent from CITGO can be expanded. One provision that may generate such an expansion is the right to “reasonable protection from the accused.” Even though there are rarely long-term medical records to justify compensation, it would be difficult to expect that such records would provide any further evidence that a particular company was responsible for acute or chronic illness. Yet the CVRA provides for reasonable protection from the offender that may be warranted simply because there is a recognition that living near industry puts people at risk, something Judge Rainey acknowledged in the CITGO case. This precedent of reasonable protection from the offender provides a strong basis for the courts to further consider just what kind of reasonableness standard should exist in specific cases of environmental harm, as well as proximate harm caused by simply living near sources of toxic pollution. This is a principle members of EJ communities understand well, where the courts have yet to catch up. We feel the district court's acknowledgement of this fact and recognition of the victims without medical records is a step in the right direction for case law in this area.

Prosecutors can learn from the CITGO precedent in similarly situated cases, especially since declaring someone a victim under the CVRA does not require medical records. Attorneys representing the government do not have an attorney-client relationship with victims, as they are not representing the victims. Other federal agencies need to step in and assist communities and support the efforts of prosecutors in environmental crime cases. The Office of Victims of Crime (OVC), under the Office of Justice Programs, administers the Crime Victims Fund (established by the Victims of Crime Act of 1984), and is financed by fines and penalties paid by federal offenders. The OVC provides support for programs and services for victims, including direct reimbursement for crime-related expenses and victim assistance. However, to date, the OVC mainly assists victims of assault, child abuse, and homicide. Aside from a brief mention of environmental crime in a web forum, environmental crime victimization is not included as focal point of crime victimization by the OVC, which should consider environmental crime victims in the same manner as victims of other crimes.

Conclusion

While victims in the CITGO case were able to invoke their right to be heard in court proceedings, and this no doubt provided some emotional relief, it was severely inadequate to secure justice for these victims. Designated victims under the CVRA are entitled to “full and timely restitution as provided in the law,” but no such restitution was provided in the CITGO case. The only way for case law to develop in favor of EJ communities is for private attorneys and government prosecutors to seek victim status under the CVRA. It is paramount that acknowledging and integrating victims of environmental crime into the legal process become more commonplace through such an application. Attorneys will rarely be able to directly link health outcomes to a particular victimizer that lives near an EJ community. They must continue to establish the precedent that living near heavy industry creates a toxic environment that produces communities of victims first, before the courts will be able to recognize that such an environment automatically creates proximate harm to those that live nearby. Only then, will environmental criminals be more likely to be held accountable for their harmful actions in fenceline communities and some semblance of justice and reform can take place in the United States.

In our view the CITGO case was important not because victims found justice (they did not), but the precedent that members of an EJ community can be legal victims of a corporate offender under the CVRA was established. Given that close to 1,000 petitioners were granted victim status, we believe this begins to establish a broader precedent that the community as a whole was a victim of a corporate offender's environmental crimes. Such precedents strengthen the idea that communities as a whole can be victims of proximate harm without direct medical evidence. We hope this fact can be expanded over time so that the courts recognize the obvious: living close to heavy industry is more likely than not going to make you a victim. We hope that the logical extension is that such victims require restitution to be made whole from these chronic injustices.