http://www.texasobserver.org/citgos-corpus-christi-environmental-crimes-big-punish/
[links in on-line article]
Citgo’s Corpus Christi Environmental Crimes: Too Big to Punish
by Priscila Mosqueda
Published on Tuesday, May 6, 2014, at 9:00 CST
After seven years of waiting, Corpus Christi pollution victims finally
learned what restitution they’ll be receiving from Citgo Petroleum
Corp.: nothing. Last week, a federal district judge determined that
residents of a neighborhood exposed to toxic chemicals from Citgo’s
Corpus refinery weren’t due any compensation, including medical expenses
or relocation costs.
In 2007, a jury convicted Citgo of violating the Clean Air Act, a first
for a major oil company. The company had illegally stored oil in two
uncovered tanks, exposing nearby residents to toxic chemicals including
the carcinogen benzene. It took seven years for U.S. District Judge John
D. Rainey to sentence the company, finally ruling in February that Citgo
owed $2 million—a paltry sum next to the $1 billion prosecutors argued
the company had earned from its illegal operation. Still, victims held
out hope for some restitution.
On Wednesday, Rainey denied victims any restitution, including funding
to pay for annual cancer screenings and other diseases that could be
linked to chemical exposures. The Justice Department had requested that
Citgo set up a fund to cover relocation costs, and another for victims’
future medical expenses, for a total of $30 million in restitution for
victims and $25 million for the government.
Ironically, Rainey wrote that determining how much victims are really
owed would “unduly delay the sentencing process” and “outweighs the need
to provide restitution to any victims.”
The Citgo case is also the first in which victims of air pollution are
recognized as victims of crime under the Crime Victims Rights Act and
allowed to present oral testimony in court. Rainey had originally
rejected 20 victims’ request for that status, but the Fifth Circuit
Court of Appeals ordered Rainey to reconsider. He eventually did grant
more than 800 residents the status, but in his latest ruling Rainey says
the operation of the tanks only caused short-term health effects on “at
least two specific days.” He writes that there’s no evidence emissions
could have caused long-term effects.
Paul Cassell, a University of Utah law professor and former federal
judge who is representing 20 of the victims in the case pro bono, says
he is appealing the ruling.
“We intend to argue to the Fifth Circuit [Court of Appeals] that Judge
Rainey required indigent victims to come forward with expensive expert
testimony that simply isn’t realistic in these kinds of cases,” Cassell
says.
“In this situation when you have a wealthy company and many indigent
victims, we think in some ways the order was backwards, focusing too
much on the defendant’s interests and not giving enough attention to the
victims’ interests,” Cassell says.
The restitution ruling was the prosecution’s last hope that Citgo would
be made to pay more than the minimum fine of $2 million the judge set
months ago. The Department of Justice calculates that Citgo made $1
billion in profit as a result of illegally operating two uncovered oil
tanks. In February, Rainey ruled that empaneling a jury to determine
exactly how much money Citgo made—and therefore what the appropriate
fine would be—would “unduly” prolong the sentencing process that had
already lasted seven years. He applied the same logic to determining
restitution: Though in this case he wouldn’t have to empanel a jury, it
would take the court too long to determine what each victim is owed.
“Had he come to that conclusion [seven] years ago, he might have
something there. But after you’ve unduly prolonged it for [seven] years,
spending a little bit more time making a determination is not going to
unduly prolong it,” says Bill Miller, a former EPA attorney who worked
on the Citgo conviction but has since retired. “I think he’s completely
ignored the word ‘unduly.’”
The Observer contacted the Department of Justice for comment and
received this statement: “We are disappointed in the court’s decision,
especially for the residents of the community surrounding the refinery
who suffered as a result of Citgo’s crimes.”
The Justice Department wouldn’t comment on whether or not it intends to
appeal. It has less than two weeks to do so, and Miller isn’t optimistic.
“It doesn’t look like Department of Justice has any intention of
appealing the sentencing of Citgo, which is a crime in itself in my
opinion,” Miller says. “It basically emasculates environmental crime
prosecution in the United States completely.”
Miller says if Citgo’s sentence goes unchallenged, it will send the
message that some corporations are too big to punish simply because it’s
too hard to determine how much they profited from committing
environmental crimes. Environmental crimes cases rarely go to trial, as
corporations prefer to settle out of court. When the government succeeds
in taking corporations to court—and, even more seldom, secures a
conviction—it should take that opportunity to show that it will
aggressively prosecute environmental crimes, Miller says.
“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 the complexity of it.”
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