The Observatory, Transparency — October 28, 2011 02:00 PM
Cracking the Case
Why is it so difficult to cover investigations of environmental crimes?
The federal civil and criminal investigations of the 2010 oil spill in the Gulf of Mexico continue to be a source of frustration for the press, not in and of themselves, but rather because they thwart reporters’ access to certain information and data.
At the Society of Environmental Journalists annual conference in Miami last week, the issue came up during multiple panels and in hallway conversations. Asked about journalists’ complaints about a lack of government transparency, Jane Lubchenco, the administrator of the National Oceanic and Atmospheric Administration, cited the ongoing investigations as reasons that her office can’t discuss certain aspects of the Gulf spill:
I think there’s a lot of confusion about what we know and what we’re able to talk about with respect to the impact of Deepwater Horizon as it relates to the legal case under the Natural Resource Damage Assessment Process and I think this is worth describing because there’s a huge amount confusion about it.
The federal government is in the process of building a case against the responsible parties to take them to court and get the most damages recovered to do the restoration that’s needed. Part of building that court case is to assemble information, but typically in a court case you don’t tell the person on the other side of the case what you know because that tips your hand and lessens the likelihood that your case will be successful.
Walter Cruickshank, the deputy director of Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE), which replaced the Minerals Management Service in the wake of the spill, cited the investigations while parrying a question about whether or not the government should have approved, in the last two weeks, BP’s plans to drill up to four exploratory wells in the Gulf of Mexico and to bid on new oil leases in the Gulf in a December auction:
As of this time, BP is still legally qualified to hold a lease and to be an operator. You’re right, there are ongoing investigations. There are ongoing legal processes. I’m not going to guess how those turn out, but I think that both in the work we’ve seen in that exploration plan and in the work that BP has done over the past many months, that there’s certainly a strong effort on their part to perform better in the future than they have in the past.
The restrictions on sharing information that could be used in civil and criminal litigation are, in theory, logical and important, but the government often applies them unevenly, and perhaps unfairly. Mark Schrope, a freelance science writer and editor who is writing a book about the Gulf oil spill, said he contacted BOEMRE last May to request an interview related to the final capping of the Macondo well and the debate over whether or not to leave it capped. A public affairs officer declined his request, saying that with the ongoing investigation, the bureau’s staff was “not able to participate in media interviews at this time.” But the US Geological Survey (USGS) readily granted an interview with a scientist involved in the same events.
“There is some important context here,” Schrope said. “Since USGS is not a regulatory agency, they don’t face the same constraints. And because BOEMRE was so under fire because of questions about their drilling oversight, it’s easy to see why they would be very cautious about speaking publicly, or even clam up as they did with me. However, their message suggests that talking would somehow compromise the litigation, and if that were the case then the same should be true for USGS. So, it seems clear that they were/are hiding behind that to avoid participating in public discussion. Again, I understand the motivation for that, but it doesn’t necessarily make it a healthy policy.”
Such inconsistencies notwithstanding, journalists do have to respect the investigative process when the authorities are making an honest and concerted effort to catch the bad guys. During a panel dedicated to the topic of the enforcement of environmental laws, I asked Mike Fisher, the acting deputy director of the Environmental Protection Agency’s Office of Criminal Enforcement, Forensics and Training, about ways that the press can dig into, and shed light upon, ongoing investigations.
“The way to best address the issue, from my perspective as somebody working inside the criminal justice system, is not the way you sometimes see on cop shows, where you’ve got a detective who’s kind of slipping information to somebody who writes the story,” he said, “but rather for you all, and for us, to explain what portions of the process are public information.”
Fisher went on to explain that grand jury proceedings are, by law, kept secret and those who provide grand jury information to the press can be prosecuted. Once charges are filed, however, they are public information. “And more often than not,” he said, “the Department of Justice prosecutors we work with file what’s called a speaking indictment that tells you more than just, ‘the government alleges that XYZ Company committed this particular offense under the Resource Conservation and Recovery Act.’ It tells the story of the criminal conduct and then it has the allegation at the end of that document.” In addition, search warrant affidavits are almost always available to reporters.
“So there are places in this process, even before trial, for the media to get access to public information,” Fisher said. “But we, especially the prosecutors, are always going to be concerned about preserving the defendant’s ability to get a fair trial, and lawyers are subject, both at EPA and DOJ, to bar ethics obligations that tell us things ought to be tried in courts and not in the press. That’s a very proper constraint on us.”
Jerry Phillips, the director of the Florida chapter of Public Employees for Environmental Responsibility (PEER), said that to ferret out information about ongoing investigations, it helps “to be a geek.” He recommended perusing the Quarterly Non-Compliance Reports issued by state agencies for pollution violations, paying particular attention to facilities that wind up on the Significant Non-Compliance (the term used in the Clean Water Act and Resource Conservation and Recovery Act programs), the High Priority Violation (the term used in the Clean Air Act program), or the Serious Violator (the term used in the Safe Drinking Water Act program) lists. These are the most serious violations in the EPA database.
That information is available at the agency’s Enforcement & Compliance History Online (ECHO) website, which launched a new interactive mapping tool in September that allows reporters to access federal and state enforcement information and to compare enforcement actions by state.
There are ways for journalists to play a slightly more active role in environmental law enforcement, however. Fisher cited the example of Texas’s McWane Industries, one of the world’s largest manufacturers or cast-iron water and sewer pipes. In 2003, a nine-month investigation by The New York Times, the PBS television program Frontline, and the Canadian Broadcasting Corporation, which found that since 1995 there had been 4,600 recorded injuries (“many hundreds of them serious ones”), nine deaths, and more than 400 Occupational Safety and Health Administration (OSHA) violations at McWane’s foundries. Following the report, the EPA and DOJ launched investigations that resulted in numerous convictions and tens of millions of dollars in penalties.
On the opposite end of the legal process, Fisher cited the example of Albania Deleon, who issued fraudulent asbestos-removal training certificates to hundreds of untrained workers in Massachusetts from 2001 to 2006. Deleon fled to the Dominican Republic two days before her sentencing in 2010 and landed on the EPA’s fugitives list. Dominican authorities found and arrested her nineteen months later, and handed her over to the US Marshalls.
“There was a lot of press in The Boston Globe and other places about her absconding from justice,” Fisher said. “So, whether the word got out that way and somebody gave us a tip, or whether it wasn’t a media article, but a direct website view, I don’t know. But that’s one way that there’s a real role for media to publicize something that helps our cases a lot.”
It’s important to understand that press-police collaboration is not the goal and that journalists are not there to help law enforcement, however. If reporters do an investigation into something illegal, and the cops end up pursuing charges, that is one thing. But looking for ways to help the police is another.
Nonetheless, Luis Santiago, a special agent in US Fish and Wildlife Service’s Office of Law Enforcement, said that stories about ongoing investigations can generate useful tips and coverage of successful prosecutions can act as a deterrent for other would-be criminals. He also pointed out that journalists need to be careful not disrupt the enforcement process.
CNN’s 2007 “Planet in Peril” series featured an episode in which Anderson Cooper and Jeff Corwin tagged along with Thai police officers during a raid of illegal animal trading operations at a local market. But the illicit vendors saw the group, camera crew and all, coming and closed their shops before any busts could be made.
“What if there’s an operation going on, and then you get in the way?” Santiago said, when asked about CNN’s report. “Maybe there was surveillance going on or something bigger happening—years invested in tracking the bad guy. If it’s an international case, there’s a lot of risk in terms of the time, effort, and money that get put in, so [reporting efforts] could have a negative impact. How you strike a balance? There’s not really a clear reference for that, but if there’s information out there, why not bring it to law enforcement agencies, because you never know what’s in the making. It could help them to do a better coordinated investigation.”That might be a tough sell for a journalist working on a big scoop, however, and again, it’s not the press’s job to help law officers do theirs. Journalists and cops may often wind up following the same sordid trails, but ultimately, their primary responsibility is to dig up information in a responsible manner and give it public airing, regardless of what may or may not happen in the courts.