Pursuing Environmental Justice
S.F., L.A. Prosecutors Work to Help Most-Vulnerable Constituents
Tuesday, January 3, 2006
San Francisco Daily Journal
By Dennis Pfaff
Around the summer of 2003, someone took a clandestine trip to a part of San Francisco that tourists rarely frequent.
The visitors left dozens of pails that had once been filled with printer's ink. Laced with metals in concentrations high enough to qualify the multi-hued liquids as hazardous waste, the ink oozed onto the ground from some of the 5-gallon pails, according to an investigator's report.
The buckets, some half full, had been dumped haphazardly by the side of a lonely road on the outskirts of the southeastern section of the area known as Bayview/Hunters Point.
It's not the first time someone decided that the neighborhood was a good place to dispose of unwanted rubbish. In fact, a lot of people in the largely black and Asian American part of town have concluded that the Bayview, which comprises only about 6 percent of the city's area yet houses a majority of its industrially zoned land, serves as San Francisco's trash heap.
"This small community has suffered from more than 50 years of apathy, neglect and environmental racism," charged a report prepared last year by local environmentalists. "Government agencies consistently allowed dirty and polluting industrial activities to take place without proper permitting, adequate environmental reviews or analysis of the cumulative impacts from the many pollution sources on the health of the community."
This time, however, instead of indifference, authorities met the dumping with action. An investigator with the state Department of Toxic Services in February 2004 followed up on the report of a witness who discovered the pails. The containers could have been lying there since the previous August.
Shortly after she was elected, San Francisco District Attorney Kamala Harris in December 2004 launched a prosecution that lasts to this day. The case highlights a newfound commitment by some of the state's top local law enforcement officials to crack down on urban polluters. But it also illustrates some of the problems inherent in this type of complex prosecution.
Among the leaders of the new effort are Harris and Los Angeles City Attorney Rockard Delgadillo, who launched a similar initiative in 2003. Delgadillo, who is running for state attorney general, and Harris met earlier this year to swap ideas on their respective projects.
Each vows to focus fresh attention on policing the environment for their most vulnerable constituents, including those in poor and minority neighborhoods. It's what is generally known as "environmental justice," a term around at least since the 1980s to describe efforts to rectify the allegedly unfair burden of society's pollution suffered by people in such communities.
In 1994 President Clinton signed an executive order making environmental justice part of the government's core mission.
But the concept has long remained largely a province of grassroots activists. Initiatives such as Harris' and Delgadillo's may help move the effort closer to the mainstream and, activists hope, provide new legal firepower for an economically defenseless population.
"The white folks in Pacific Heights, if there's a polluter, they're going to ... get the lawyer, they're going to do the citizen enforcement suit," said Luke Cole, an attorney and longtime activist on behalf of poor and minority pollution sufferers.
"If that same polluter is operating in a low-income community of color, they [residents] are not going to have the resources to find the attorney to do that enforcement suit," said Cole, who directs San Francisco's Center for Race, Poverty and the Environment. "Targeting governmental enforcement resources on environmental justice cases is a great idea."
Gale Filter, deputy director of the California District Attorneys Association and an environmental law expert, said the role of prosecutors in securing environmental justice is only now being defined. Filter heads a CDAA project that helps supply environmental prosecutors to rural counties.
There "has got to be some kind of equal access to the system that allows those people who are claiming that there is environmental injustice to at least address that," he said. Harris and Delgadillo have proceeded in such a way that "the community has direct access to the system. I think that's pretty innovative, to be honest with you. I don't know of anyone else that's doing it."
But he predicted the notion will gain statewide traction.
Filter said that next month, an annual Sacramento workshop for state and federal environmental prosecutors, this year focusing on air pollution, will feature presentations by Southern California community activists. He said training provided through the CDAA for prosecutors and investigators already includes a component dedicated to environmental justice.
Harris and Delgadillo, both in their 40s, are among the top-ranking minorities in law enforcement in the state. Delgadillo became the highest-ranking Latino to hold citywide office in Los Angeles in more than a century when he was first elected in 2001. He was re-elected in March 2005. Harris is the first black woman district attorney in California.
"I still look at the world of criminal justice through the eyes of a 5-year-old Latino boy on the east side of Los Angeles, and it's a different orientation," Delgadillo said. "That's why I think this program has had some success, because we approach it in a way that will allow us to improve the quality of life for people in our community."
Harris said anyone in such a position, regardless of ethnicity, has a responsibility "to think about every member of their community" and to "maybe listen to what we're not hearing and then go there and find out what's going on."
The ink case, progress on which has faltered on procedural delays, underscores the promise as well as the difficulties they face.
On the one hand, at least someone is paying attention. But results, if any, obviously will not be immediate.
"We are anxious to see some outcome," Marie Harrison, a Bayview/Hunters Point community organizer for Greenaction, one of the environmental groups involved in last year's report, said of the district attorney's overall initiative. "I haven't seen any outcome as of yet."
Harris said she understands such sentiments. She said community activists have long known about - and been frustrated by - the problems in their neighborhood.
"It can't happen too soon for them," she said.
Harris charged the Alameda Publishing Corp. of Oakland and two men with hazardous waste felonies stemming from the dumping. The company produces the Oakland Post, which calls itself the oldest weekly black newspaper in Northern California. Some of the buckets found at the dump site had "Post News" or "Post Newspaper" printed on them.
"The fact that they've been active in the African American community and empowering that community and then they go and dump this waste in another disenfranchised community - the ironies are replete," said Davina Pujari, the assistant district attorney prosecuting the case.
One of the men, William Araujo, identified by the investigator as one of the two-person crew who split a $500 fee to clean out a warehouse and dispose of the ink, later pleaded guilty to a misdemeanor. Araujo also agreed to testify against the other defendants, all of whom have maintained their innocence of the charges.
"The case just got a little bit better for me," said an elated Pujari after Araujo's guilty plea was accepted by a San Francisco judge in September.
Unfortunately for the prosecution, little else has gone forward.
Prosecutors and defense attorneys sparred in the fall over the alleged conflict of interest faced by one of the defense lawyers, a potential witness in the case. A judge ordered the attorney off the case.
Finally, in December the matter was scheduled for a preliminary hearing in early March.
Meanwhile, the company's corporate attorney belittled the severity of the case.
"Of all the toxic dumping that goes on in San Francisco, this was ink that was in sealed containers that did not damage or harm or expose anyone to any kind of injury," said Oakland lawyer Clinton Killian.
Retorted Harris, "I'm sure if it was happening in his back yard he'd have a different perspective." She noted the ink contained heavy metals and that neighborhood residents, including children, use the area.
"It's a neighborhood of people and families who live there," she said.
Killian said the company's current owner - who took control just days before Harris brought her charges - had nothing to do with the dumping.
"If you're looking for economic justice, it seems to me you should be looking at the perpetrators and not the innocent, to accuse of a crime," Killian said.
Days after he bought the company, said new owner Paul Cobb, the district attorney arrested one of his employees.
"I'm thinking - what did I walk into here?" Cobb said during a break in one of the hearings on the case earlier this year.
He said the previous owner had agreed to assume any liabilities for the corporation's actions prior to the December 2004 sale. Despite that, Killian said the criminal prosecution puts a cloud over the company's finances, credit and access to capital. He said the situation could "ruin an African American paper."
Killian said the company recently filed a lawsuit against the previous owner to, in essence, force her to hire a new defense attorney. That would allow the criminal case to move forward.
"This thing is a gun at our head," he said.
Pujari later declined to comment on what led her office to charge the person suspected of committing the crime. However, she gave no sign of backing down, saying whatever issues remain between the old owners and the new are up to them to resolve.
"My view is that the corporation is on the hook for what the corporation did, and for what its employees did," said Pujari, a former federal environmental prosecutor. "Somebody needs to be accountable for what happened to that community."
No matter the final outcome, however, the case is unlikely to be the last of its kind.
Harris in June announced the formation of a special unit in her office to focus specifically on environmental crimes primarily affecting the city's poor and minority areas.
"At least in the first instance that really means the Bayview/Hunters Point area, the southeast sector of the city, which is where most of the industrial facilities in San Francisco are sited," said Pujari, who heads the unit.
The neighborhood, now scarred by poverty and crime, once thrived as a hub for blue-collar workers, many of them drawn by the bustling Hunters Point Naval Shipyard that serviced the Pacific campaigns of World War II.
It was there that workers loaded aboard the ill-fated USS Indianapolis for shipment the uranium heart of the atomic bomb that destroyed Hiroshima. The ship, after delivering its cargo, was torpedoed by a Japanese submarine and sank in shark-infested waters in one of the worst sea disasters in U.S. history.
Federal officials ordered the shipyard, which had earlier been designated an EPA Superfund site, closed in 1991. By that time, much of it had been leased to a private ship repair company, which itself was later targeted by a previous San Francisco district attorney for pollution violations.
The environmentalists' report, largely drawn from official documents, catalogues a polluted and economically injured neighborhood.
Nearly 40 percent of the area's residents make less tan $15,000 a year - double the number of low-income residents for the rest of the city. The 2004 unemployment rate of 13 percent was more than twice that of the city as a whole.
Meanwhile, in addition to the shipyard, residents live near the city's large sewage treatment plant, a long-controversial electrical generating plant and scores of other facilities handling hazardous waste. On a per capita basis, the report said, the neighborhood houses many times more air and water polluters as does the remainder of the city.
The document also chronicled high rates of illnesses, such as asthma, that scientists associate with air pollution.
Nationwide, black Americans are 79 percent more likely than their white counterparts to live in neighborhoods where industrial pollution may pose the greatest health danger, a new study by the Associated Press found. The news agency also reported that residents in the most polluted areas tend to be poorer, less educated and more often unemployed than those living elsewhere.
"In terms of environmental issues, you've got an area that has been ... at least out of sight, if not forgotten, if not neglected," Harris said in an interview. "You have an economically poor community. You have a shipyard, you have the Navy, you have all of that and ... maybe it spells a recipe for disaster."
But not all is bleak.
San Francisco's public transportation system, the Municipal Railway, is on the verge of opening a new light-rail route through the neighborhood that could help end its long isolation from the rest of the city. Plans are moving ahead for turning a cleaned-up part of the old Navy base into a new housing development, with nearly a third of the estimated 1,600 homes reserved for low-income residents.
Harris noted that the Bayview still has one of the highest rates of home ownership in the city.
She outlined a three-pronged approach to attack environmental problems in the neighborhood as part of a larger effort to improve the quality of life there. Criminal prosecutions are part of that strategy, she said. "If the place looks like a wasteland, then people will continue to throw waste there," she said.
But by "doing the work we do," Harris argued, "everybody will hear about the fact that Mr. Smith and XYZ Corp., when they were doing this, were prosecuted and there were serious consequences."
Educating the public about environmental crimes and coordinating the work of various other agencies comprise the other two prongs of Harris' strategy.
Helping the public understand that some things are against the law - and that someone is prepared to do something about it - is a key step.
Then, following up with coordinated actions by several agencies, which Pujari calls "rollouts," can make a serious impression. Having a task force of multiple agencies on scene at once means that possible air, water or other regulatory violations can be witnessed and investigated at the same time.
"The basic idea is to identify noncompliant facilities or other environmental hazards such as [illegal] hazardous waste dumping grounds ... and to coordinate inspections and rollouts of those areas in a visible and collaborative way," Pujari said. "So that instead of having sequential environmental inspections by every agency, you have one day a visible presence" and the ability to go after a variety of offenses, involving, say, air and water violations, at the same time.
In recent months, Pujari said, the task force has conducted two rollouts, one executing a search warrant and the other performing a surprise inspection.
Pujari said a search could involve as many as 30 inspectors from various agencies, as well as armed officers from entities such as the Department of Fish and Game, which investigates a wide variety of offenses.
"Usually, you are making a big impression on the actual company that you're looking at," Pujari said. "They notice you."
Despite her wariness, Bayview activist Harrison applauded Harris' initial efforts. Harrison said the district attorney's lead lawyer and investigator have met with community leaders and that the prosecutor's office is looking seriously at the report the groups compiled, which outlines some of the neighborhood's worst pollution problems.
"I believe that she is actually on the right track," said Harrison.
Tapping into such community resources is vital, because the locals "know what's happening," the district attorney said. "They can be very powerful partners in going after these offenders."
Harris' shock and awe approach mirrors the tactics Delgadillo has employed since 2003 in areas such as Wilmington and Sun Valley. The city attorney said he likes to blanket an a neighborhood with inspectors and law enforcement personnel to pore over suspect businesses, such as metal platers.
"We make sure when we go there we don't leave any stone unturned," said Delgadillo. "That way we can feel confident that we can move on to the next community and the next community and the next community."
Delgadillo's efforts have so far accounted for more than $2 million in civil penalties, criminal fines, clean-up costs and reimbursements, according to figures compiled by his office.
"In two years, we've had incredible success," Delgadillo said.
One focus has been metal plating operations, which can use highly toxic chemicals.
In October, Delgadillo dropped misdemeanor charges and settled a civil lawsuit against a chrome plating business that had allegedly stored two unapproved containers holding hundreds of gallons of sulfuric and hydrochloric acid. The plater sat right next to a day care center with about 100 kids.
As part of the deal, the plater agreed to relocate the private children's center several miles away. It also put in place a re-engineered system for handling rainfall, to reduce the amount of untreated stormwater reaching the city's sewer system.
Nearly 150 of Los Angeles' 900 public schools sit near "high-risk" sites, such as industrial plants that emit pollutants or house hazardous materials, said Angelo Bellomo, director of the Los Angeles Unified School District's environmental health and safety office. He said it was a "no-brainer" that many of the schools are also in disadvantaged areas.
"The real crime is that some schools are still being sited near high-risk facilities," said Bellomo. Bellomo addressed a legislative hearing in San Francisco that is considering a bill to provide incentives for the construction of environmentally healthy schools.
Even Delgadillo conceded the magnitude of the task of securing environmental safety in marginalized neighborhoods.
"These communities are dying a death by a thousand paper cuts," he said. "This is the kind of behavior we're trying to change."
Cole, the San Francisco activist lawyer, said in the past regulatory agencies have been on the wrong side of the issue.
We are having to sue the government agencies to stop them from giving permits or permit renewals to these polluting facilities," he said. The group has also found that when penalties are assessed for violations they are often lower and the cases take longer to resolve.
At the federal level, progress has also been frustrating, according to officials. An Environmental Protection Agency inspector general's report last year found that Clinton's executive order has still not been fully implemented by the agency. A separate Government Accountability Office study also found that the EPA had devoted little attention to the subject in developing major clean air rules.
Delgadillo said in some cases targeted companies have also complained that the increased enforcement pressure could hurt them economically. But he said he just wants businesses to play by the rules - the same message he gives to kids thinking about joining gangs or dropping out of school.
"What this program does, is it says very clearly - almost in very stark ways - we do care about the community," he said. "We're going to do everything in our power to help improve the quality of life in our neighborhoods."