Feds ask judge to dismiss environmental claims over tear gas in Willamette River

PORTLAND, Ore. (CN) — Environmental groups, scientists and parents say federal agents let the chemical weapons they used against protesters drain into the Willamette River and pile up in an elementary school playground. But a government attorney told a federal judge Friday that months of copious chemical use is not subject to review.

This past summer, after a police officer in Minneapolis murdered George Floyd, Portland erupted in sustained protests in support of the movement for Black lives, with crowds often numbering in the thousands. After several weeks, protests centered around the Mark O. Hatfield Federal Courthouse downtown and the Multnomah County Justice Center next door started to dwindle. Then federal agents showed up.

Under Operation Diligent Valor, the Department of Homeland Security, U.S. Customs and Border Patrol and Federal Protective Services appeared by the dozens in Portland’s streets, wearing all black or desert camouflage uniforms and shooting copious amounts of tear gas, rubber bullets, pepper balls and other so-called “less lethal” weapons at largely peaceful crowds.

The streets surrounding the courthouse were soon covered in residue from the chemical weapons. Even during daytime visits, when protesters and police were scarce, there was enough residue in the air to cause itchy skin and coughing. Irritating chemical dust settled in Lownsdale Square, the park across the street from the courthouse, and easily kicked up into dusty clouds when people walked through.

The park lies just two blocks from the Willamette River. Dr. Juniper Simonis, an aquatic ecologist with a doctorate from Cornell University, says in court documents that they spent months collecting empty and unexploded munitions from the streets, storm drains and even bioswales near the courthouse. They also found munitions in the river, at the spot where the storm drains in the street near the courthouse empty. Simonis documented chemicals caked on storm drains and lingering clouds of hexacloroethane smoke, a lethal carcinogen that causes reproductive harm.

This past October, Northwest Center for Alternatives to Pesticides, Willamette Riverkeeper, 350PDX and other environmental groups sued the Department of Homeland Security, claiming the government didn’t assess the environmental or health impacts of deploying copious amounts of chemical weapons just blocks from a major river — a legal requirement under the National Environmental Policy Act.  

The city announced in September that stormwater samples from spots near the courthouse showed elevated levels of barium, zinc, chromium and other metals and contaminants. Though elevated, contaminant levels didn’t exceed the state’s standards, according to the city’s report. This past fall, the city cleaned the storm drains near the courthouse and installed protective liners to help protect the river from future use of tear gas and other chemical weapons, according to Diane Dulken, spokeswoman for the city’s Bureau of Environmental Services.

But the contamination continued. In January, federal agents left spent and unexploded chemical weapons on an elementary school playground, according to a report by Oregon Public Broadcasting. The school is next to a downtown facility run by Immigration and Customs Enforcement, where protests were centered during the days surrounding the inauguration of President Joe Biden.

The city told Simonis on Jan. 27 that it wouldn’t do further testing for riot control chemicals in the city’s stormwater system, according to Simonis’ declaration.

The Department of Homeland Security says U.S. District Judge Karin Immergut should dismiss the lawsuit, essentially claiming “the situation in Portland” justified their use of weapons including a "Ghostbusters"-style thermal fogger. In its motion to dismiss, the department lists a litany of criminal activity it says was happening during the protests.

Arguing on behalf of the government Friday, attorney Paul Gerald Freeborne said laws requiring an environmental review don't apply because Operation Diligent Valor wasn't a "final action" by a government agency.

“This was routine law enforcement action so this should be dismissed,” Freebourne said.

He added the phrase “Operation Diligent Valor” is “just a title” for an operation he said now goes by a new name: Operation Team Titan.

Attorney Kelly Simon, legal director for the Oregon ACLU, said federal agents carrying out Operation Diligent Valor used hoses to wash chemicals down storm drains into the Willamette River.

“Our position is if the agency is going to design an operational plan and implement it, if that operational plan might have a significant effect on the environment, then we think NEPA applies,” Simon said.

Judge Immergut asked Simon if that logic meant government agencies should have done an environmental review before using chemical weapons in their response to the Jan. 6 insurrection at the U.S. Capitol. Simon said that yes, they should have done so — after responding to the emergency. She said Homeland Security's own operational handbook requires it to conduct an environmental review if impacts to the environment arise during the course of its response to an emergency situation.

“Here we had a federal agency plan to come use a high volume of munitions in city parks, near a significant river, on human beings and so on,” Simon said.

Immergut asked Simon whether the criminal enforcement exception to NEPA applies here.

"If sending enforcement to Portland to fight criminal behavior — if that's not criminal enforcement, then what would be?” Immergut said.

Simon responded that federal agents Portland last summer were mostly here to quell historic protests. She said that was something that discovery would show, if Immergut allowed the suit to continue.

"I'm not denying that criminal behavior happened here last summer, but Operation Diligent Valor was not a criminal enforcement plan," Kelly said.

Immergut took the arguments under advisement and said she would issue a ruling “as quickly as possible.”

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