Police use chemical irritants and crowd control munitions to disperse protesters during a demonstration in Portland, Ore., Saturday, Sept. 5, 2020. Hundreds of people gathered for rallies and marches against police violence and racial injustice (photo by Noah Berger / AP).

Lawsuit accuses Homeland Security of violating environmental law with Portland tear gas deployment

By Monica Samayoa (OPB)
Article published by OPB, Oct. 21, 2020 6:38 a.m.

Federal law enforcement officers fire impact munitions and tear gas at protesters demonstrating against racism and police violence in front of the Mark O. Hatfield federal courthouse in Portland, Ore., on July 16, 2020. Jonathan Levinson / OPB

Several Oregon environmental groups sued the federal government Tuesday over its use of tear gas to control crowds during Black Lives Matter protests in Portland.

The suit, filed in U.S. District Court in Portland, alleges that the Department of Homeland Security violated the National Environmental Policy Act by failing to analyze the potentially severe human health and environmental impacts of tear gas before it was deployed. It was filed by the ACLU of Oregon, Cascadia Wildlands, Willamette Riverkeeper and the firm Markowitz Herbold. Additional plaintiffs are Neighbors for Clean Air, Northwest Center for Alternatives to Pesticides and 350PDX.

Cascadia Wildlands Legal Director Nick Cady said the organization attempted to contact the agency to gather more information about what chemical munitions were being used to disperse demonstrators and to inquire about an environmental impact statement, but with no success.
“One of the basic requirements of NEPA is that you at the very least disclose what you are doing and analyze the potential impacts of that,” Cady said. “When there’s unknown impacts that means you need to do an even fuller analysis and perhaps even commissions studies of your own to determine what the impacts are before you release something on the public or the environment.”

Cady said this sort of activity has stopped other agencies projects in their tracks.

“There’s a history of a lot of cases in which NEPA applies … at the very least people should know what they are being sprayed with and what to tell health care professionals and medics,” Cady said.

The lawsuit seeks a court order for DHS to stop using tear gas — something it started doing last summer and has continued to deploy sporadically, as recently as last weekend against protesters at the Immigration and Customs Enforcement facility on Portland’s South Waterfront. They described in their lawsuit what appears to be a thermal fogger used by DHS agents “to emit tear gas or another chemical munition at people.”

Green water from cleanup runs down a storm drain near Lownsdale Park across from the Mark O. Hatfield federal courthouse in Portland, Ore., July 30, 2020, the morning after law enforcement deployed tear gas to disperse protesters. Environmental specialists know little about the long-term effects of tear gas on plants, water and wildlife. Monica Samayoa / OPB

The lawsuit declared that “The weapons Defendants and their agents used and are using for Operation Diligent Valor present potentially grave health and environmental hazards. And Plaintiffs and the public have a right to know about those risks.”

The suit also alleges that the Portland Bureau of Environmental Services tested for an inadequate number of chemicals from too few locations before determining there was no significant environmental impact.

DHS did not respond to a request for comment.