Environmental Groups Sue Homeland Security To Force Review of Tear Gas Munitions in Portland

Wed Nov 11th, On Litigation, by

In recent months, the city of Portland has been subject to near-nightly barrages of tear gas and other chemical munitions in response to protests. Though local police used some tear gas munitions in response to early protests, the sustained, repeated, high-volume use of CS gas (2-chlorobenzylidene malononitrile) has been deployed by federal troops sent by the Department of Homeland Security (“DHS”) at the behest of the White House, in fulfillment of an Executive Order signed by Donald Trump.

Tear gas is best known for the short-term eye irritation it causes immediately upon impact with human eyes. The lawsuit, filed this week by the Northwest Center for Alternatives to Pesticide (NCAP), Willamette Riverkeeper, Cascadia Wildlands, Neighbors for Clean Air (NCA), 350 Portland and the ACLU of Oregon, argues the airborne chemical irritants go beyond landing on people and irritating their eyes. CS gas can also cause breathing problems, eye damage, and asthma. In some instances, the lawsuit alleges, tear gas can be “lethal.” The suit claims long-term exposure may have particularly harmful effects to humans. The effects on humans are not the only concern, either, as the chemicals settle on the ground, and may eventually make their way into storm drains. From there, the chemicals may make their way into local rivers.

These long-term effects of chemical irritants are the subject of the lawsuit against DHS, which aims to force DHS to analyze the impact of the use of teargas munitions on the environment and human health in Portland. The suit describes the unusual sustained, repeated, and high-volume deployment of CS gas in Portland by Federal officials, and accuses the federal government of violating requirements set by the National Environmental Policy Act (“NEPA”). The suit claims the federal agency failed to assess the health and environmental consequences of using teargas and other chemical munitions on protestors during the past few months under the heading of “Operation Diligent Valor.”

In June, DHS sent over one hundred federal officials to Portland after granting federal officers the authority to aid in the protection of any federal property. Protests around the Multnomah County Justice Center and Portland’s Immigration and Customs Enforcement Detention Center drew these federal officers to respond. Both of these properties are located near the Willamette River, where residue from the gas flows into storm drains and from there, into the Willamette River. The suit alleges that type of flooding into rivers with tear gas sediment can be harmful to wildlife.

In support of the suit’s claim that chemical residue has built up on Portland’s streets, and that some of the chemicals used by the federal forces have washed into the Willamette River, Portland’s Bureau of Environmental Services found cyanide and several heavy metals (e.g., chromium, zinc) at much higher levels in stormwater catch basins near a protest site than in stormwater catch basins in other parts of the city. The city reported high levels of cyanide, hexavalent chromium, and barium in sediment in catch basins near the courthouse. This suggests there may be an accumulation from chemical munitions. These contaminants may accumulate over time and then begin to leach out, or be released into the water column. The City does note that, although there were contaminants found in the stormwater taken from near the river, the samples taken from a protest site further away from the waterway were higher.

Though the chemical residue from protest sites may be lower near the river, this does not preclude the presence of chemical residue reaching the river. It also does not preclude the components of tear gas projectiles and pepper balls reaching the river. City officials say they have found dozens of such projectiles in the river and storm runoff system. These objects suggest there may be more contaminants in the river than they can measure from the storm basins alone.

The groups hope to keep the Department of Homeland Security from using tear gas and/or other chemical munitions again, at least until a thorough proper environmental impact analysis is completed.

There is little research into the effects of repeated exposure to tear gas on human health and the environment. Environmental groups argue that the Department of Homeland Security has a legal duty research these effects and, by failing to conduct such research before submitting the people and environment of Portland to repeated gassing attacks, the Department of Homeland Security caused significant environmental harm.

The suit holds DHS responsible in particular because Operation Diligent Valor began when local police had already started to curb their own use of tear gas. The federal officials, by contrast, arrived and immediately started deploying tear gas on a regular, sustained, and heavy-duty basis. According to the compliant, the chemical was used without any warning and directly aimed at people, in counterindication to how it is meant to be deployed.

The National Environmental Protection Act requires the federal government consider the environmental impact of its actions. The lawsuit alleges that part of this requirement involves conducting a thorough environmental review of tear gas use during Operation Diligent Valor. This did not happen, according to environmental action groups. They contend that, even if the deployment of federal troops was done on an “emergency” basis, the agency was still required to comply with NEPA as soon as it was possible. This also did not happen, according to the environmentalists.

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