The Blue Eco Legal Council advocates environmentally effective remediation of hazardous waste on public lands. Leaving waste in place, dilution, or institutional controls limiting access to public lands are not environmentally effective cleanup options. Our goal is to be a watchdog over the regulatory community, litigate lapses in environmental protection on behalf of stakeholders, and to help other grass roots organizations to do the same in their communities. The marine environment is not federal property. According to U.S. Supreme Court precedent and federal law, ownership of the lake beds and ocean beds are vested in the states bordering the water, in trust, for the benefit of the state residents as beneficiaries. When federal agencies will not police themselves at federal facilities, at the expense of their responsibility to faithfully execute the law of the land, a Constitutional imbalance exists between Congress and the Executive. When courts give undue deference to federal violators being sued under citizen suit provisions authorized by Congress in its statutes, the imbalance becomes rule by decree rather than rule by law.
If you would like to contact us, please email Director Steven Pollack.
Waste streams produced by current industry are heavily regulated under RCRA, the Clean Water Act, The Clean Air Act and other environmental statutes. No un-permited discharge of pollutants is allowed into the water or air, period. No proof of specific harm to human health or the environment is required for violation of the prohibitions of the CWA or RCRA. The primary mechanism is the cradle to grave manifest system under RCRA which requires all hazardous waste to be reported, tracked, and for financial assurances to be in place for lifetime care. It is a good system that only tends to break down when the regulatory community overlooks ongoing and continuous violations.
These violations are, by law, publicly available and citizens are empowered to bring suit under citizen suit provisions for compliance if the regulatory officials won't. Imagine that Congress contemplated the Executive failing to enforce known violations and empowering private attorneys general to act in its place, with broad waivers of sovereign immunity. But then imagine federal courts being hostile to these suits and allowing clever twists on facts to defeat them on standing.
If you are dealing with a site that is not currently operating but contains hazardous waste from prior operations then you will be dealing with CERCLA. This environmental statute creates liability for past and present owners of the property, specifically including the federal government. Most people believe the US EPA will administer these sites but Executive Order 12580 lets federal agencies administer the cleanup of past pollution at sites of their own creation and where the chosen remedy comes out of their own budget. EPA simply oversees the documents and analysis of the agency. This creates conflicts where the financially responsible party is making decisions affecting their own pocketbooks. Where the agency of the Executive operating a site, fails to address past pollution, it fails at the Congressional mandate to administer the statute in the first place, according to Congress and the Executive's Constitutional roles. At Blue Eco, we watch over the federal polluters to make sure they are properly applying the law to themselves.
Congress purports to empower citizens to bring suit under this statute for violations that are not being diligently prosecuted by the federal violators. The federal courts, however, have not always followed the law in this regard and have instead erected barriers to these suits by demanding proof at early stages of a case as regards standing, facts that are not normally required to be proved until later in the case at trial.
One example is our suit against the Coast Guard and FBI for both past and ongoing discharges of lead munitions into the Great Lakes. The Court treated standing as an evolving concept where, when one fact asserted by the FBI/DOJ could not be supported, the Court moved on to other factual issues that had not been briefed, finally deciding that the distance of our membership, 13 miles to the south of the range on Lake Michigan, was too far for us to prove we could be harmed by FBI discharge of lead training bullets in Lake Michigan. We insisted the lake rotates to the south and that our municipal water intake pipe draws water from the lake. We eventually proved not only that the lake rotates to the south, but that the DOJ attorneys defending the named agencies knew this to be true. They withheld a 1986 environmental assessment despite a federal judge's order to produce it. The DOJ instead gave us 19 pages out of a 180 page study, redacting pages referencing studies by the Illinois State Geologic Survey describing a southern migration of nearshore sediments. The DOJ, who also act as attorneys on behalf of all federal agencies that are sued, came to our court to lie in order to deny us our day in court. What does that say about this issue of U.S. munitions policy? Abandonment of munitions in marine environments is the official policy and the Executive Branch, acting under the name of the past and current President, will stop at nothing to overrule the will of Congress. And the federal appellate courts, all the way up to our denied petition for writ of certiorari to the U.S. Supreme Court, went along with the lie despite our bringing it to their attention on several petitions for review.
The federal courts go out of their way to clear a path for federal scofflaws despite Congressional statutes containing federal facilities provisions requiring use of the same standards as private facilities. Federal courts abuse standing requirements to deny hearings to citizens despite clear waivers of sovereign immunity according to the citizen suit provisions of all environmental laws. Without citizen suit enforcement at federal facilities, there is no enforcement.
Here is the problem in a nutshell: Executive Order 12580 delegates the President's general enforcement authority under federal environmental laws to the federal agency operating each federal facility, instead of to the US EPA as for all other environmental enforcement. Non-enforcement by facility owners polluting the environment is thereby allowed unimpeded. EO 12580 is an impediment to cleanups that are protective of human health and the environment and should be struck by Congress. Congress specifically needs to delegate all cleanup authority to US EPA and not to the President's discretion generally. Or the Executive needs to rescind Executive Order 12580.
It is important to remember which branch of government controls lawmaking in the United States according to the Constitution. It is Congress.
As another example, the US EPA is required to concur that all remedies are in place and operating properly and successfully prior to any transfer of contaminated federal property. In a case at Fort Sheridan where US EPA does not concur that the cap on Landfill 7 is operating properly and successfully, the Army and Navy transferred the property anyways.
Blue Eco brought suit for this transfer (and development of homes surrounding the landfill) of property without the concurrence of US EPA as required by law. The Seventh Circuit Court of Appeals ruled, however, that the part of the statute barring suits to ongoing cleanup decisions also barred suit to property transfers where the cleanup is not complete. How can that be? The Executive cannot transfer property before the cleanup is complete but citizens cannot sue for an illegal premature transfer because the cleanup is still ongoing?
This decision is one that allows federal property transfers to go forward without requiring protective cleanups so long as the agency is still working on the cleanup, the very thing Congress meant to preclude by requiring US EPA concurrence with the protectiveness of a final cleanup. The Executive, by defending obvious violations of law in court, shows its hostility to Congressional mandates that it clean up its act. The very nature of Executive non-enforcement against itself, and success in federal courts defending itself leads to the conclusion that the Constitutional structure is not being followed, and is in fact totalitarian.
When a development requires government approval, funds, or participation there are strict requirements that the government study the environmental impacts of the project prior to making the decision to develop. These requirements are found in the NEPA review mandate and the Endangered Species Act. Even though these requirements are well known, for some reason executive decision makers often brush them aside in favor of their developer friends.
Citizens are empowered to stop these developments until the environmental impacts are assessed.