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Ninth Circuit urged to allow look at use of chemical weapons by feds on Portland protesters

“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," an attorney for an environmental health group told the panel.

PORTLAND, Ore. (CN) — Throughout Portland’s protests in 2020, federal agents used more chemical weapons on civilians than ever before, and the government has no idea what the long-term effects are. That’s the argument made before a Ninth Circuit panel Friday, where Northwest Center for Alternatives to Pesticides challenges the dismissal of its case against the Department of Homeland Security for exposing protesters and the environment to potentially dangerous chemicals.

The center’s attorney Brenna Bell urged the three-judge panel to revive the case against the Department, claiming federal agents exposed Portlanders to chemical weapons in 2020 and 2021 and with residues running into and contaminating the Willamette River.

At first, Portlanders — and much of the nation — protested in response to the police killing of George Floyd 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.” Agents of the department, U.S. Customs and Border Patrol and Federal Protective Services appeared 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.

“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," Bell told the 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."

In October 2020, Northwest Center and other environmental groups sued Homeland Security and then-Acting Secretary Chad Wolf for failing to assess the environmental and health impacts of deploying chemical weapons near a major river — a requirement under the National Environmental Policy Act.

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. Justice Department attorney Paul Gerald Freeborne told Immergut laws requiring an environmental review don't apply because Operation Diligent Valor wasn't a "final action" by a government agency.

Immergut dismissed the case without prejudice in August 2021 for lack of jurisdiction — but also found Northwest Center lacks a claim for relief because the challenged conduct falls into National Environmental Policy Act’s exception for criminal enforcement actions. But Bell told the panel Friday a National Environmental Policy Act analysis of munition chemicals will justify relief.

“The heart of today’s argument is that this case deserves its day in court,” Bell said. “At the very least, to delve into the legal factual questions that came up in the government’s motion to dismiss. And barring the courtroom door to these appellants, which the federal government would have you do, leaves important questions unanswered and access to justice denied.”

U.S. Circuit Judge John Owens, a Barack Obama appointee, questioned whether Bell’s theory could apply to other cases involving protests. “Could someone today file a similar lawsuit about Jan. 6, 2021, or Seattle 1999?” Owens asked.

Bell said no, noting past cases lacked an imminent threat of future or ongoing injury. Here, she said, “the plaintiffs were injured in 2020 and again in 2021 intervening that we filed this complaint.”

Bell also argued relying on past protests is inapplicable because unlike this case, they weren't trying to obtain an analysis for the sake of active relief. Bell said providing Portlanders with an analysis of the chemicals used will 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.”

Arguing for the government, attorney Ariel Jeffries said the appeal is moot because Operation Diligent Valor ended on May 2, 2021. As such, Jeffries said the court cannot provide effective relief — yet she also had something to say about Northwest Center’s interest in an agency analysis.

“Plaintiff's argument that they are exempt from the constitutional limits of mootness because this is a NEPA case misunderstands NEPA and this court’s precedence,” Jeffries said, arguing that effective relief for an agency violation is ultimately an injunction against the proposed action — Operation Diligent Valor, which is no more.

U.S. Circuit Judge Eric Miller, a Donald Trump appointee, seemed to agree with this notion earlier when he asked Bell why Operation Diligent Valor is a reviewable final agency action.

Effective relief for a National Environmental Policy Act violation has to be tailored to the harm as well, Jeffries argued.

“Even if the court could order some sort of standalone NEPA analysis,” Jeffries said. “NEPA remedies have to be tailored to the harm asserted. Courts don't order NEPA as a prophylactic or a punitive measure. Rather, the goal is to allow the government to consider the environmental effects of a proposed future action. It's not a remedial statute, as this court just explained.”

An analysis cannot correct past harms either, Jeffries said, noting the Ninth Circuit has previously held a court “could not order mines unmined” or “order wells undrilled.” Moreover, Jeffries said plaintiffs can't prove Portland will have major protests again.

“Portland had sustained nightly protests for more than a hundred days and there were a large number of law enforcement officers in Portland,” Jeffries told the panel. “It's not reasonable to conclude that this unique set of circumstances is likely to happen again.”

U.S. Circuit Judge Harry Pregerson, a Jimmy Carter appointee, rounded out the panel, which did not indicate how or when they will rule.

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