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Feds dodge environmental claims over tear gas in Willamette River

While the long-term effects of the federal government’s chemical munitions on protesters in 2020 is unknown, a Ninth Circuit panel found the claims brought against the feds are too speculative to survive dismissal.

PORTLAND, Ore. (CN) — A two-year legal battle to hold the Department of Homeland Security accountable for chemical munitions used on Portland, Oregon, protesters in 2020 ended Friday after a Ninth Circuit panel ruled the case as moot.

The appeal at hand involves the Northwest Center for Alternatives to Pesticide’s lawsuit filed in October 2020, in which it and four other organizations sued Homeland Security and then-Acting Secretary Chad Wolf for failing to assess the environmental and health effects of deploying chemical weapons near a major river — a requirement under the National Environmental Policy Act.

At the time, Portlanders joined much of the nation in protesting the killing of George Floyd by a white police officer and continued in support of racial justice. But as protests dwindled around government facilities, federal agents showed up under the guise of “Operation Diligent Valor” — later known as “Operation Team Titan” — appearing by the dozens, shooting tear gas, rubber bullets and other weapons at protesters.

An ecologist documented months of collecting munitions from the streets and river and noted chemicals caked on storm drains and lingering clouds of hexachloroethane.

The department asked U.S. District Judge Karin Immergut to dismiss the lawsuit in January 2021 — the same month federal agents left chemical weapons on an elementary school playground — claiming the protests justified their use of weapons. Immergut dismissed the case without prejudice in August 2021 for lack of jurisdiction — but also found the center lacked a claim for relief because the challenged conduct fell into the National Environmental Policy Act’s exception for criminal enforcement actions.

Attorneys for the center appealed to the Ninth Circuit, arguing at a hearing this past October that federal agents exposed Portlanders to chemical weapons in 2020 and 2021, with residues running into and contaminating the Willamette River.

“As far as we know, this is the first and only time that a civilian population has been exposed to this kind of chemical munitions in this concentration over this amount of time," the center's attorney Brenna Bell told the three-judge panel. "No one has any idea what the impacts are, and the federal government has a statute that should prevent it from putting people in that situation."

The center claimed the department violated the National Environmental Policy Act by not preparing an environmental analysis for Operation Diligent Valor, which would, at least, allow them to seek treatment for exposure and make informed decisions about their health and protest involvement.

“There was effective relief available that does not exist for things wholly in the past,” Bell said. “This is not wholly in the past. People are still very worried about what they were exposed to, in what concentrations, what the long-term things are — and no one knows.”

However, government attorney Ariel Jeffries argued the appeal was moot because Operation Diligent Valor ended on May 2, 2021, and, as such, the court cannot provide effective relief.

In an unpublished opinion issued Friday, U.S. Circuit Judges John Owens and Eric Miller, Barack Obama and Donald Trump appointees, respectively, and U.S. District Judge Dean Pregerson — a Bill Clinton appointee sitting by designation from the Central District of California — agreed the center’s arguments were “too speculative.” They also found the possibility that a belated analysis would improve mitigation or change the department’s conduct in the future is too remote or speculative under precedent.

“As for the possibility that DHS’s use of chemical agents is capable of repetition and would otherwise evade review,” the judges wrote. “NCAP has not met its burden to invoke this exception. Specifically, NCAP did not establish that DHS regularly causes the injuries alleged here, let alone that DHS is likely to inflict the same injuries on NCAP in the future.”

The panel added: “Because we find NCAP’s claim moot, we decline to reach DHS’ other arguments.”

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