An El Paso abortion clinic will remain shuttered after a federal judge declined yesterday to issue a temporary restraining order that would suspend a provision of the new anti-abortion law requiring abortion clinics to obtain admitting privileges at nearby hospitals. Since filing suit against the state two weeks ago, Reproductive Services in El Paso learned that it had lost temporary admitting privileges. As a result, abortion services at the clinic have been illegal since Friday. Yesterday, the El Paso abortion provider asked District Judge Lee Yeakel to put a temporary hold on the admitting privileges rule so they could legally continue operations until the full case can be heard. While Yeakel said he believed the clinic was harmed by the admitting privileges requirement, he didn’t see the point in litigating the law piecemeal when it was destined ultimately for the U.S. Supreme Court.
Since Monday, the El Paso clinic has cancelled 34 patient appointments. As a result of Judge Yeakel’s ruling, patients will continue to be turned away.
The El Paso closure is more fallout from Texas’ new anti-abortion bill. The admitting privileges requirement is part of House Bill 2, the omnibus anti-abortion legislation that imposes stricter regulations on abortion providers and bans abortions after 20 weeks. Since HB 2 went into effect last fall, approximately one-third of abortion clinics in Texas have closed down because of an inability to obtain admitting privileges at nearby hospitals.
Like anything to do with House Bill 2, the backstory is somewhat convoluted. Earlier this year Reproductive Services gained temporary admitting privileges at nearby Foundation Surgical Hospital of El Paso in compliance. The privileges were set to expire on May 13. On April 2, Reproductive Services and Whole Woman’s Health abortion clinic in McAllen, filed a motion to permanently protect both clinics from HB 2’s admitting privileges provision, pointing to the scarcity of abortion providers in those parts of the state. But the day after the clinics filed the motion, the state health department informed the El Paso abortion clinic that they were already out of compliance with HB 2. The clinic then learned via a voicemail message from Foundation Surgical Hospital that their privileges were no longer valid, even though they still had four weeks to run on their permit. The hospital gave no explanation for the withdrawal.
Reproductive Services immediately filed a request for a temporary restraining order, asking for permission to legally continue operations until the court ruled on the full case.
Yeakel said that the clinic had met three of the four legal tests: that irreparable harm is imminent if temporary relief isn’t granted; that the benefit to the plaintiff outweighs injury to the defendant; and that the order serves the public interest.
Judge Yeakel ruled that the first three prongs had been met but that the final prong—that it wouldn’t be overturned by appeal—didn’t hold water.
“All challenges must be viewed through the prism of the Fifth Circuit as held in its March 28 opinion [that the admitting privileges provision is constitutional],” he said. “That is the law at this time. We can slice it and dice it … but it’s hard to see how there is a significant likelihood of success on the merits. I believe the Fifth Circuit will apply existing law.”
On the courtroom machinations surrounding HB 2, Judge Yeakel was fatalistic about his own place in the legal firmament.
“Everybody thinks it’s really important what the District Court does, and it is for a brief starburst of activity,” said Yeakel, likening court rulings to a train that starts in Austin, where he’s based, goes on to New Orleans, home of the Fifth Circuit, and then whistles on to its final stop in Washington, D.C.
“Nobody will talk about how the District Court dealt with HB 2 or even how New Orleans dealt with it,” he said. “It’s pretty clear to me that admitting privileges is going to the Supreme Court.”
The constitutionality of the fourth provision of HB 2—that abortions clinics upgrade their facilities in line with ambulatory surgical care requirements—is due to return to Judge Yeakel’s court in the next few weeks. Meanwhile the El Paso abortion clinic continues to turn patients away and the McAllen clinic, closed since March, has put its building up for sale.
Original post published at 1:40 p.m.: This afternoon in federal district court, a coalition of reproductive rights advocates and abortion providers announced their intent to file suit against the fourth and most draconian provision of Texas’ House Bill 2. The ambulatory surgical center requirement, which directs abortion clinics to upgrade their facilities to mini-hospitals, is set to go into effect on September 1. Abortion providers say that the renovations are so costly that fewer than ten clinics in Texas could afford to comply. The remaining abortion clinics in the state would close, forcing women in parts of Texas to travel up to 1,000 miles to access an abortion, say reproductive health advocates.
“There is no question that the politicians who passed this law intended this as the final blow in their assault on women’s constitutional right and ability to safely and legally end a pregnancy in Texas,” said Nancy Northrup, president and CEO of the Center for Reproductive Rights, which is litigating the suit on behalf of providers.
Today’s filing also requests a court order blocking the requirement that abortion providers at Whole Woman’s Health clinic in McAllen and Reproductive Health Services clinic in El Paso gain admitting privileges at nearby hospitals. The McAllen clinic recently closed because of doctors’ inability to gain privileges, leaving the entire Rio Grande Valley without an abortion provider. The El Paso clinic has been granted temporary hospital privileges but these are set to expire in May.
A third of abortion clinics in Texas have already closed as a result of the admitting privileges requirement of House Bill 2, which went into effect in November 2013. Last week the Fifth U.S. Circuit Court of Appeals ruled that the admitting privileges mandate is not unconstitutional, reversing the judgement of a lower district court. The appellate justices in New Orleans were not convinced that the extra travel mandated by clinic closures was unduly burdensome for rural Texas women seeking to access abortions.
A pro-life demonstrator holds up a plastic baby at the Texas Capitol in July.
In a move that surprised no one, the 5th U.S. Circuit Court of Appeals yesterday upheld the constitutionality of Texas’ new restrictions on abortion clinics. In doing so, the conservative appellate court handed a victory to the anti-choice phalanx in Texas who trumpeted the decision as good news (Rick Perry), a victory (Texas Right To Life) and a vindication of the Legislature’s careful deliberations (Greg Abbott).
It was widely expected that the 5th Circuit would side with the state. In October, the court allowed the most controversial provisions of Texas’ new abortion law—which state Sen. Wendy Davis famously filibustered last summer—to take immediate effect, granting an emergency request from Abbott before the justices had even heard oral arguments. That was a clear signal that abortion-rights groups weren’t likely to win.
Still, yesterday’s ruling is disappointment for abortion providers. They argue that the two provisions of the law they had hoped to overturn in this legal challenge have already caused considerable turmoil. In particular, the requirement that abortion providers have admitting privileges at nearby hospitals has led to the closure of at least 10 abortion clinics since last fall, providers say. Women seeking abortions in rural areas like the Rio Grande Valley, the Panhandle, and in vast swathes between El Paso and Interstate 35 must now travel greater distances.
But the appellate judges weren’t convinced that the need to travel further to access abortion was a big deal. At the oral argument in January, Chief Justice Edith Jones observed that the roads between the Rio Grande Valley and Corpus Christi were flat and uncongested. It seemed beyond Justice Jones’ imagination that a Texas road trip might not be an adventure—or more than a minor inconvenience—for a woman with a full-time job, child care responsibilities or visa restrictions that confine her to the lower reaches of the Rio Grande Valley.
The court’s ruling reprised this assumption by noting that the journey from the Valley to the nearest abortion clinic in Corpus Christi takes only three hours. Moreover, the judges added, these women are exempt from the mandatory 24-hour wait because they live in rural areas, so what’s unduly burdensome about that?
In another curtsy to the joys of the Texas road trip, the judges note in their ruling that women don’t lack access to abortion clinics, because major providers still exist in Austin, Dallas, Houston, El Paso, Corpus Christi and San Antonio. Yet the opinion overlooks the reality for many women whom this ruling will affect. Before the law was implemented, low-income women were already making difficult economic decisions to pay for their abortions. They were pawning their belongings or skipping their rent to save money. The closure of abortion clinics in all but major urban areas makes accessing abortion even more difficult for poor women in rural areas.
The last legal hope for Texas abortion providers is the U.S. Supreme Court. So far, the plaintiffs in the case—the Center for Reproductive Rights, The Planned Parenthood Federation and The American Civil Liberties Union of Texas—haven’t confirmed that they will appeal. However, both sides expect the case to end up before the nation’s highest court. Indeed, Supreme Court Justice Stephen Breyer wrote in a dissenting opinion about whether the bill should be delayed while the Fifth Circuit deliberated and that at least four members of the high court would be willing to consider law’s constitutionality, regardless of what the appellate court ruled.
Meanwhile, another more dramatic provision of the law looms. By Sept. 1, all remaining abortion clinics in Texas must upgrade their facilities to meet the standards of ambulatory surgical care centers. Abortion providers note that the upgrades are so expensive that only six clinics in Texas may survive.
No doubt, the state of Texas will trumpet this outcome as a victory for women’s health and safety. Poor women without the means to traverse Texas’ winding highways may not agree.
Activists and members of families separated by immigration detention leave a Father's Day gift outside the Polk County facility in June.
Immigrants in a for-profit detention center in Conroe are refusing to eat to protest conditions at the facility. The protests in Texas follow a similar hunger strike that began two weeks ago at a Tacoma, Washington, detention center. Both facilities are owned by scandal-plagued GEO Group, the second-largest private prison company in the world. The protests are part of a wave of hunger strikes that immigrants have started in detention centers across the nation to call attention to what they say is the unjust practice of locking up immigrants and separating families through deportation.
The families of the detainees on Wednesday gathered outside the all-male Joe Corley Detention Facility north of Houston to call on jail officials not to retaliate against the hunger strike leaders. Adelina Caceres said that her partner, David Vasquez, has been kept in solitary confinement at Corley as punishment for helping to start the strike. Vasquez has been in the detention center for nearly a year, she said.
As of Tuesday, 120 detainees were participating in the strike, according to Cristina Parker, an organizer with Grassroots Leadership, an Austin-based group that opposes private prisons. The detention center is capable of holding 1,517.
Vasquez and Manuel Martinez began the strike Sunday at midnight, according to advocates. In individual letters released Monday, the two men demand an end to deportations as well as the controversial Secure Communities program, which uses local law enforcement to funnel immigrants into the federal government’s deportation system.
The men say many detainees have already paid fines and done time in county jails, only to be picked up by Immigration and Customs Enforcement (ICE) upon release and put into immigrant detention centers.
This aggressive dragnet is partly driven by a mandate established by Congress in 2006, a quota requiring ICE to fill 34,000 prison beds every night. Advocates say the mandate leads to the detention of U.S. residents as well as undocumented immigrants who commit minor infractions. But it’s been a boon to private prison companies, essentially guaranteeing a steady stream of detainees.
Echoing those in Washington State, Texas detainees are decrying overcrowding and unjust treatment by guards, who they say are disrespectful and verbally abusive. They call for better food, affordable prices at the commissary and reasonable phone rates. Neither ICE nor the GEO Group responded to requests for comment.
A detention center in Elroy, Arizona, saw two different hunger strikes last summer, one by a group of activists called the “Dream 9,” who together attempted to cross the Mexican border and were placed in detention. They were eventually released while they pursue their asylum cases. In October, a group of DREAM Act students who named themselves the “Dream 30” and who together attempted to cross the border at Laredo, similarly began a hunger strike inside an El Paso detention center.
The most recent strike, in Tacoma, peaked at 750 participants. That number eventually dwindled to three, but those strikers continued into their 13th day on Wednesday. Yesterday, two of the three protesters sent messages of encouragement to the Texas strikers. In a recording in Spanish, Ramon Mendez Pascual says, “The only thing I want to say is don’t be afraid, we must keep going, so that we are heard and so that we can be free.”
Update: After publishing this story, GEO Group responded to an email for comment with the following: “Our company has had a long-standing public-private partnership with U.S. Immigration and Customs Enforcement (and its predecessor agency, the Immigration and Naturalization Service) that dates back to mid-1980s. GEO’s immigration facilities provide high quality services in safe, secure, and humane residential environments, and our company strongly refutes allegations to the contrary.” The company would not address the hunger strike.
Pro-choice protesters chant outside the Senate chamber minutes before lawmakers sent House Bill 2 to Gov. Perry's desk.
Following the legalization of abortion in 1973, the first abortion clinic to open in Texas was in the small town of McAllen. Today, after serving women from the Rio Grande Valley and northern Mexico for more than forty years, the McAllen clinic closed for good. Another clinic in Beaumont that had provided abortions to women from East Texas and Louisiana also closed its doors today. The two clinics were the last ones remaining in rural Texas.
Whole Woman’s Health, a network of abortion facilities that operates both the McAllen and Beaumont clinics, cited in a statement the “burdensome and medically unnecessary hurdles places by Texas legislators in House Bill 2” for the closures.
Specifically, Whole Woman’s Health points to a clause in HB 2 that requires all abortion doctors to have admitting privileges at nearby hospitals. Doctors who were unable to gain admitting privileges from their local hospitals because of bureaucratic obstacles or local politics stopped providing abortions on October 31, when portions of the bill went into effect. Overnight, 14 of Texas’ 36 abortion clinics ceased serving patients.
Neither the McAllen nor the Beaumont clinics could gain privileges at local hospitals and so haven’t provided abortions since November. Instead, they have provided follow-up care to women who’d previously had abortions at the clinic, or who had induced abortions themselves.
With today’s closures, there are only 20 abortion clinics remaining in Texas, according to Whole Woman’s Health. (Update: Research from RH Reality Check’s Andrea Grimes estimates the current number of open clinics at 25).”Women seeking to terminate a pregnancy must now travel to Dallas, Houston, Austin, San Antonio, Fort Worth, El Paso or Corpus Christi, a journey that could entail hundreds of miles for patients from the state’s far-flung corners. Whole Woman’s Health noted in a background brief that those most likely to struggle to obtain an abortion now will be low-income women, women of color and rural women. Indeed, more than 22 percent of Beaumont’s population is below the poverty line while McAllen has one of the highest poverty rates in the United States.
“A pre-Roe landscape is now emerging in Texas where your ability to receive abortion care is determined primarily by your socioeconomic class and zip code,” Whole Woman’s Health noted. The Beaumont abortion clinic treated 1,200 women annually while the McAllen facility provided abortions to roughly 1,700 women per year.
Proponents of abortion rights in Texas predict dire health consequences from the closures. “Valley residents who do not have the ability or the means to drive to San Antonio or Corpus Christi [may] take matters in their own hands,” Heather Busby, executive director of NARAL Pro-Choice Texas told the Observer. “Based on what we’ve been hearing from medical providers, women have already been attempting to induce by taking pills and herbs and other home remedies. These could be ineffective or dangerous.”
Amy Hagstrom Miller explained to MSNBC’s Rachel Maddow last night just how dangerous those practices might be. “People go over the border, they try to get medication to try to self-induce an abortion, and so sometimes they’ll come to us afterwards for an ultrasound to see if they’re still pregnant,” Hagstrom Miller said. “We have seen women putting things into their vagina, trying to dilate their cervix. We’ve seen women asking their partner to beat them, just the same stories we’ve heard pre-Roe. We’ve seen women douching with coke or douching with Lysol. We’ve seen people taking a lot of herbs.”
Meanwhile, the anti-abortion group Texas Alliance For Life, which argued that HB 2 was necessary to improve patient safety, was delighted by the closures. “We are pleased that women will never again receive substandard care from either of these abortion facilities,” said Joe Pojman, Texas Alliance for Life’s director in a press release.
Tonight in McAllen, abortion rights activists including NARAL Pro-Choice Texas, the ACLU of Texas, the Texas Freedom Network and Progress Texas, will rally outside the shuttered clinic to protest the law that brought about these closures.
A group of Denton residents launched an effort Tuesday to outlaw fracking within the city.
If the Denton Drilling Awareness Group succeeds in getting the ban on the ballot and if Dentonites pass the measure in November, Denton will become the first city in Texas to make fracking illegal. Cities in other states have already passed similar laws, but Denton would be the first with existing fracking permits to do so.
The possibility of a city in Texas—a state that accounts for one-third of U.S. natural gas production—making it illegal to frack is sure to rattle the industry. Dallas passed a de facto ban on fracking in December when it adopted prohibitive setback requirements for natural gas wells, but it still didn’t outright make fracking illegal. And Dallas isn’t Denton.
Denton sits atop the part of the Barnett Shale formation that’s richest in natural gas. The county is the fourth-highest producing within the Barnett Shale. It has 275 active gas wells within its city limits (Dallas didn’t have a single active gas well within city limits when it passed the de facto ban) and another 212 wells in the extraterritorial jurisdiction within five miles of city limits.
Nineteen operators own those gas wells. EagleRidge Energy, whose wells have been at the center of the debate between residents and city government, owns at least 107 active wells. The Observer contacted Mark Grawe, the chief operating officer and executive vice president at EagleRidge, but he refused to comment on the proposed ban. Asked how many gas wells EagleRidge operates in and around Denton, he said “in the hundreds,” and asked what percentage of its natural gas production is concentrated in the city, he only volunteered “a majority.”
Denton Drilling Awareness Group member Cathy McMullen moved to Denton when natural gas wells started springing up around her home in Decatur. She and her husband found homes for their farm animals and relocated to Denton with their rescue dogs, thinking they’d escaped drilling. But soon, a drilling rig went up 1,500 feet from their house.
“We were shocked because we’re in town, we’re next to a hospital and next to a city park so we thought they’ll never drill here,” she says. “Then they started drilling here and I told my husband, ‘That is my line in the sand. I’m not going anymore, we’re just fighting it.’”
Dentonites who support the fracking ban don’t expect it will be an easy battle, but they say they had no choice but to resort to a voter-adopted ban. Sharon Wilson, who has been organizing in Denton for five years, says residents have been trying to get city government to pass reasonable restrictions on natural gas drilling for years. The City Council passed a revised gas drilling ordinance last year, but residents were unsatisfied because it left out key protections such as prohibiting open pits, compressor stations, flaring and other measures they requested.
The ordinance also provides an important loophole. Energy companies can’t put new drills within 1,200 feet of homes, but that setback doesn’t apply to developers building new homes. Developers can build near existing gas wells, which energy companies can then return to redevelop, or re-frack. That’s what happened in a Denton neighborhood recently, where EagleRidge Energy bought existing gas wells and began operating them even though they are only 250 feet away from homes. In that case, the developer pledged to disclose the gas well locations to future homebuyers, but in general that isn’t required.
“The last straw was when they decided to allow fracking so close to the Vintage neighborhood,” Wilson says. “It’s been a horrible, horrible experience for these people … We had no choice, we were backed into a corner and the only way to protect families and future generations was to try to get it banned.”
The group has to collect 571 signatures in 180 days to get the ordinance change on the ballot. Wilson and McMullen are confident they can get the signatures easily because so many residents have complained about emissions, noise pollution and dropping property values, but whether a majority of voters decides to back the measure is another matter.
If they are able to muster enough support, the ordinance could still face legal challenges. In Dallas, a company with gas drilling permits sued the city after it passed the de facto ban, and in Colorado, the state joined oil and gas groups in suing the city of Longmont for its voter-adopted fracking ban. In Denton, the City Council can amend or repeal the ordinance even after it’s passed.
“And then we’d have to do the process all over again, which we’ve already decided we would,” McMullen says. “If we have to do this process 50 times we will do it.”
It’s only the beginning of a long battle for many of the cities attempting to ban or significantly restrict urban fracking, but what happens in Texas in the coming months (or years) will likely have an impact beyond the state’s borders.
Last week, a group of civil rights organizations including the ACLU and the Texas Criminal Justice Coalition called on Texas Education Commissioner Michael Williams to ban the use of Tasers and pepper spray on schoolchildren, citing the recent severe injury of a Cedar Creek High teen as an example of the devices’ potential to inflict serious damage.
Within the Texas juvenile justice system, guards are banned from using Tasers on young offenders. But in public schools, “resource officers” are allowed to use the devices—along with pepper spray—at the discretion of local school boards.
“Texas families deserve to send their children to school without fear, knowing they can trust their schools to be safe havens,” the letter reads. “Emitting a shock of up to 50,000 volts, Tasers are designed to restrain adults. They simply should not be used on children.”
Williams’ office responded Thursday that it doesn’t have the “statutory authorization” to impose a ban on the weapons, noting that the authority lies with local school districts and charter school boards.
“That is a conversation that has to take place among local elected officials,” he said in a statement.
Last year the same coalition of civil rights groups called on the Texas Commission on Law Enforcement to enact a ban on the “non-lethal” devices, and were met with a similar response. Commission officials, however, vowed to work with the criminal justice groups in providing specialized curriculum for school police officers. TCLOSE only requires school security to meet the “minimum standards” of peace officers as established by the Texas Education Code—generalized training that is not specific to dealing with minors.
John Helenberg, director of operations at the law enforcement commission, said the agency is forming an independent committee of “experts across the state from various law enforcement agencies,” to take a closer look at how peace officers should use force in schools. That review will begin in March, Helenberg said.
Texas Appleseed and the ACLU examined the policies of 18 school districts in the state which volunteered to supply data; the use of pepper spray was prevalent throughout. The 2011 ACLU study also revealed the use of other weapons among the school districts: Killeen ISD listed police batons as one option; El Paso ISD reported using police dogs. Two Houston school districts recently began using “pepper guns,” which are more accurate than pepper spray.
The tactics used to restrain students are also determined independently by each school district and vary widely. Austin ISD officers use “soft empty-hand control” techniques when a student doesn’t respond to two verbal warnings, whereas Tyler ISD officers report using pepper spray after the student’s third failure to comply.
In 2009, several Hillcrest High students in Dallas were given medical treatment for exposure after an officer used pepper spray to break up a fight. Despite these injuries, information on force used against students and the types of implements officers wield is difficult to obtain because there are no legislative mandates requiring schools to report that data to the state. A Taser International spokesman told the Los Angeles Times in a 2009 article that “‘well over 4,000” law enforcement agencies nationwide use their product in schools.
Texas Republicans in the U.S. House did something truly impressive in the last session of Congress: Their voting records on the environment were even worse than the previous session, according to the League of Conservation Voters’ latest legislative scorecard. While the Texas GOP members collectively cast pro-environment votes 7.5 percent of the time in the last session of the 112th Congress, they sided with the environment a little more than 4 percent of the time in the first session of the 113th. At this rate, zero is within grasping distance.
Only one of the 24 Republicans in the House, Houston Rep. John Culberson, scored more than 10 percent. Five congressmen got the special distinction of scoring zero, taking what LCV considers a non-green position on all 28 key votes.
Not surprisingly, Texas Republicans favored policies beneficial to the oil and gas industry, including expanding offshore drilling and fracking, and voted against measures to protect air, water and green spaces. Many of the bills or amendments they favored would strip the Environmental Protection Agency of its authority to oversee industry and regulate toxic emissions and byproducts, including coal ash. Along with a handful of Democrats, they voted against clean energy funding and for legislative approval of the Keystone XL pipeline, which would transport Canadian tar sands to Texas Gulf Coast refineries.
Five Texas congressmen managed a perfect score. Call them the Zero Club—Reps. Ralph Hall, Joe Barton, Mike Conaway, Pete Olson and Blake Farenthold.
Democrats in the House voted “for” the environment one percent more than they did the previous session, at just under 77 percent. Three Democrats got scores of 96, but two scored under 50 percent.
The greenest there were freshmen Beto O’Rourke of El Paso and Joaquin Castro of San Antonio. Long-time green stalwart Lloyd Doggett of Austin rounded out the trio.
Rep. Henry Cuellar, from Laredo, dropped from his already low score of 49 in the previous session to 29 this session, when he consistently favored fossil fuels and voted against measures protecting clean air and water. Cuellar joined four other Democrats in supporting legislative approval of Keystone XL, which requires a presidential permit. Rep. Filemon Vela, D-Brownsville, also scored under 50 percent, siding with the environment 46 percent of the time.
Every single Democrat sided “against” the environment when he voted in favor of a Republican-introduced amendment to the 2014 omnibus funding bill that would keep FEMA from ending highly subsidized flood insurance rates. The League of Conservation Voters argues that the “artificially discounted flood insurance rates” lead to the development, and ultimately destruction, of floodplains. Six Republicans sided with the Democrats on this one, making it the only issue where a majority of GOPers voted in favor of the environment, by the LCV’s standards.
In the Senate, John Cornyn’s only “pro-environment” vote went to approving President Barack Obama’s appointment of Sally Jewell, the former CEO of REI, as secretary of the interior, which all but 11 senators did. He sided against the environment on the remaining 12 issues. Ted Cruz also approved Jewell, and cast another “pro-environment” vote when he rejected an amendment that would support Paul Ryan’s alternative budget plan. Though that plan would have continued billions of dollars in subsidies to the oil industry and would have lowered corporate income taxes, Cruz’s problem with it was that it would have funded Obamacare and would have increased spending in the short term.
The senators agreed on everything else, including cutting $60 million from the Department of Defense’s budget for advancing biofuels. According to the League of Conservation Voters, the DOD is the single largest energy user in the nation. They also both rejected Obama’s appointment of Gina McCarthy to the EPA, and voted for measures that would prevent federal agencies like the EPA from reducing greenhouse gas emissions. Like their counterparts in the House, they voted against all clean air and water protections and for Keystone XL.
Seven years after Citgo was convicted of environmental crimes in Corpus Christi, a federal judge has finally sentenced the company—at least partially. U.S. District Court Judge John D. Rainey fined the multi-national oil company a little more than $2 million Wednesday for violating the Clean Air Act at its Corpus Christi refinery. Prosecutors had argued the company should pay up to $2 billion.
In a blow to the residents who live near the Citgo refinery, the judge failed to put Citgo on any sort of probation and delayed setting restitution for the residents. The victims, who attribute a spectrum of health problems to exposure to the plant’s toxic emissions, are upset at the glacial pace of the case and a fine they consider a pittance for Citgo’s crimes.
“That is a punishment that does not fit the crime,” says Melissa Jarrell, a professor of criminal justice at Texas A&M-Corpus Christi. “What message does it send when a multibillion-dollar corporation receives a $2 million fine?”
In 2007, Citgo was found guilty of illegally operating two uncovered tanks containing oil and toxic chemicals like benzene for nearly 10 years at its refinery in Corpus Christi. On Wednesday, about 80 men and women from the Hillcrest and Oak Park neighborhoods near the plant—most of them minorities and many of them elderly—stood in the courtroom to await the sentence. Many of them had been awarded protection under the Crime Victims’ Rights Act and were allowed to testify when the sentencing hearing began in October. The Citgo case marks the first time victims of an air pollution crime have received this designation and been allowed to share testimony in court, a precedent that could have broader implications for future victims of air pollution.
Despite this status, the victims may not receive compensation from Citgo. Jarrell has been following the case and attended the hearing with the residents yesterday. She says the judge said the victims might misconstrue what he had to say, so he would instead deliver his decision on restitution by written order within the next 90 days.
“What can I interpret from the fact that he doesn’t want to appear in court and talk to people?” she says. “It’s probably not very good information because with a written order he never has to talk directly to victims themselves.”
Confused by the judge’s decision to delay ruling on restitution, frustrated victims directed their questions to the prosecution. After waiting seven years to find out if they would receive any restitution that might help them with hospital bills or relocation, the residents didn’t understand why they now have to wait up to three more months to get an answer.
When the sentence was delivered, Citgo said it planned to appeal, which means it will likely be even longer before residents see compensation, assuming the judge orders Citgo to provide any.
“Even though we believe Judge Rainey was fair in this sentencing process, CITGO intends to appeal because the prosecution unfairly characterized the two water equalization tanks as oil-water separators,” Citgo said in a written statement.
Citgo has been arguing that the tanks don’t fit the regulatory definition of “oil-water separators,” since the U.S. government first indicted it in 2006. But a jury found the company guilty in 2007 nonetheless.
The Department of Justice had originally sought a much higher penalty for Citgo’s environmental violations—up to $2 billion. The prosecution based that figure on the $1 billion it estimated that the company had made from operating the refinery during the time it was breaking the law.
But in 2012, the judge agreed to capping Citgo’s financial penalty to the statutory maximum of $500,000 per felony count. That amounted to just $2 million, plus $15,000 for each misdemeanor count of violating the Migratory Bird Treaty Act after dead migratory ducks were found in the tanks, penalties that totaled $45,000.
There have been other major air pollution problems at the Citgo plant in Corpus since the company’s conviction, including an accidental release of at least 4,000 pounds of the highly corrosive and poisonous hydrofluoric acid in 2009. The company only notified a few residents of the release, and initially only reported a 30-pound leak. Residents complained of nausea, dizziness, burning throats and other problems at the time of the leak.
“These aren’t victimless crimes,” Jarrell says. “Citgo would like to paint a picture of a friendly neighbor in Corpus that provides jobs and donates to people in the community, which is true, but they were also poisoning people in the community for over 10 years and those people may not get anything.”
This is Part Thirteen in an occasional series of Q&As with Texans involved in issues of the environment and energy. (Read Part One with Bee Moorhead here, Part Two with Andy Sansom here, Part Three with Katherine Hayhoe here, Part Four with Patrick Kennedy here, Part Five with Michael Banks here, Part Six with Gabriel Eckstein here, Part Seven with John Nielsen-Gammon here, Part Eight with Tad Patzek here, Part Nine with Charles Porter here, Part 10 with Carlos Perez de Alejo here, Part 11 with Kate Galbraith here, and Part 12 with John Nielsen-Gammon here.)
Adele Houghton is the founder of Biositu, LLC, a Houston-based consulting firm dedicated to, in her words: “leveraging environmental sustainability to enhance community health.” The idea is that the buildings we occupy, the streets we walk and drive on and the landscapes that surround us can mean the difference between life and death when it comes to extreme climatic events. As the effects of climate change continue to threaten vulnerable populations across the world, Houghton believes it is more important than ever for cities and states to prepare their communities with that in mind.
Government agencies, professional associations and developers hire Biositu to help them plan and build in a way that safeguards the environment, but also protects communities from the current and future effects of climate change. After becoming a licensed architect at 29, Houghton pursued a master’s degree in public health at Johns Hopkins.
A native of Houston, Houghton currently splits her time between her hometown and Austin, and travels across the country to present her research. Our Q&A, edited for clarity and brevity, follows:
Texas Observer: You founded Biositu because you believe that smart planning and policy are based on the intersection of green building, climate change and public health. I think most people understand the connection between green building and climate change, but can you explain how public health fits in?
Adele Houghton:The way that green building and climate change are talked about most of the time focuses on one aspect of climate change, which has to do with the cause: greenhouse gas emissions. The building sector is a major contributor to greenhouse gas emissions so that’s why there’s been a big effort in areas around energy efficiency and renewable energy to reduce those emissions. But buildings … are also the places where we shelter during storms or other climatic events, and the rest of the built environment—sidewalks, roads, parks—can either contribute to or can reduce the impact of a climatic event.
A climatic event that’s been a major issue in Austin and Central Texas, and actually Texas in general, is extreme heat. [Some] cities and areas are more prone to the effects of a heat wave because they don’t have as much vegetation or as much tree cover, and then you add onto that that maybe there’s a population there that’s susceptible to negative health outcomes during a heat event. People who are not able to afford to keep their air conditioner running during a heat event tend to live in areas that also do not have as much vegetation or as much tree cover. So the built environment is exacerbating and underlying potential health vulnerability to extreme heat.
Other examples that we’ve seen recently are flooding, with the flood down in [Austin’s] Onion Creek a few months ago. That occurred in low-lying areas that are prone to flooding; [that development] probably shouldn’t have been allowed to be built there in the first place. A lot of the time the people who live in those areas are predisposed to being more vulnerable, for example, by not being able to get out. They don’t have a car because they may be from a population that doesn’t have a huge amount of resources. So what you see when you’re adding the public health layering to what’s already discussed in the climate change and green building world is that the type of population that lives or works or travels through a vulnerable area can either reduce the impact of an event [or exacerbate it].
TO: Do you think that this interconnectedness between the three things has gone ignored? Or do you think that now organizations and governments are catching onto the idea that planning for the impacts of climate change and protecting the public’s health go hand in hand?
AH: I think it’s a mixed bag. There’s definitely growing recognition that adaptation is something that needs to be considered alongside with mitigation (reducing greenhouse gas emissions), which has really been the focus of most climate programs until now. Adaptation means responding to and preparing for the changes that are occurring because of climate change … Just over the past two years a number of municipalities and states that have started down the road of reducing their greenhouse gas emissions have also realized they need to prepare for and start responding to these increased risks related to climate change. Whether or not they include a health component is another question. I think adaptation in and of itself is really useful and valuable; when you also bring in some of the population health data that the health department can contribute—particularly if you bring it in in a mapping or geospatial kind of way—it makes it easier to target which areas combine these two vulnerabilities, the vulnerability of the built environment and the vulnerability of the population.
A lot of the time adaptation work that’s going on is focusing almost entirely on infrastructure and buildings and isn’t providing that overlay of looking at how does the population change this equation. Does it make it more necessary to adapt or less necessary to adapt? Or do we need to adapt in a way that we don’t realize because we need to pay attention to the population? It gets even more complicated when you think about how the population is going to change in the future and in a state like Texas that’s particularly important because of the population growth that’s happening here.
TO: I’ve seen some climate change projections that say the higher temperatures are going to be leading to more heat waves and heat-related deaths in urban centers. So in what other ways is Texas especially vulnerable, and are urban centers more vulnerable than rural areas?
AH: That’s a really good question and I think that that’s a question where public health and health data can really help evaluate in a way that would provide information that wouldn’t be there if you were just looking at the infrastructure.
If you were just looking at the infrastructure you’d say because a rural area has got, by definition, mostly vegetative surface and not very many roads and buildings [it might not be as vulnerable]. But if you look demographically there are large areas of the state in rural areas that are lower income with an aging population that is already starting to face issues of mobility and they also potentially don’t have as much security in terms of electricity—if the electricity goes out in a rural area it’s probably not going to be repaired as quickly as in an urban area.
So I can’t tell you based on my own research what exactly is the difference between a rural and an urban area, but those might be some of the questions I would ask if I were to look at the relative vulnerability of rural versus urban areas. There hasn’t been much activity that I’m aware of in Texas in particular around climate change adaptation in rural areas. Most of it has been work in urban areas and again a lot of it has been focusing on greenhouse gas emissions reductions.
TO: Are any Texas cities catching on to the benefits of green building and planning? Are any of them considering public health impacts in their planning and projects?
AH: Most, if not all, of the major cities have started working in the realm of green building at the least. Houston, Dallas, San Antonio, El Paso have all made commitments around green building. Whether or not they explicitly mention climate change is related to the political climate of that city. In Houston, for example, there’s a big push to enhance energy efficiency, but it’s not necessarily talked about in relation to reducing the impact or the cause of climate change; it’s instead talked about in terms of making a building a better business investment because you’re not wasting energy.
There have been efforts to start focusing on climate change as well. For example in San Antonio and in Austin there have been pushes to radically increase the renewable energy use in the city and in particular in city buildings. Houston has also been trying to move their buildings over to renewable energy and they’ve been changing their vehicle fleet over to hybrid and electric vehicles. In terms of bringing public health into the conversation, I worked with the city of Austin a few years ago to develop some vulnerability maps that combine these two vulnerabilities that we’ve been talking about: the built environment and social vulnerability. We mapped out, at the neighborhood level in Travis County, where are the most vulnerable neighborhoods to extreme heat or flooding. The idea behind that project was that it could be used by the climate change program to help inform policy decisions so that resources could be distributed more to those areas that have that combined vulnerability. Since then, very recently the City Council in Austin [passed] a proposal to start addressing adaptation more directly.
In San Antonio they’ve been incorporating under the umbrella of this “green city of the future” a number of health and wellness initiatives. So the overall topic is green San Antonio, but as a component of it there’s a lot of emphasis on active living, on cycling, on trying to get people to start moving around the city in a way that doesn’t require a single person in a single car, and of course that will have many benefits in many ways. It will benefit their air pollution, because if you can get more people out of their cars that reduces the vehicle emissions. It also will benefit the population by culturally helping them to start reducing their obesity rate.
TO: So you’re talking about some Texas cities that are making efforts toward this, but overall how does Texas compare to other states in terms of at least climate change preparedness?
AH: At the city level I think there’s definitely work going on. … As a state, the politics in the state have made it very difficult to develop some sort of coordinated response to climate change. However, there’s also the fact that the death rate related to heat waves is a major priority of the state health department because it’s the number one killer from a natural disaster standpoint. Then of course flash flooding is also a major concern, in part because it’s the second killer, and it’s also a major cause of injury and is a lot more dramatic when it happens. You don’t see really dramatic images of a heat wave killing people the way that you see dramatic images of what happened in Onion Creek a few months ago.
So I think it gets more press in that sense, and similarly with hurricanes. … I think that we saw the vulnerabilities of Houston during Hurricane Ike in relation to the storm surge in a way that we hadn’t seen in real time in the past. There have definitely been studies done about it and warnings that this could happen and it definitely could become a Katrina situation—something like New Orleans could happen in Houston and I think that’s a growing realization in the city. So that’s definitely become more of a priority as well.
But because there’s no state coordination around the topic … it makes it difficult to justify economically making the changes to the built environment that are needed in order to enhance our resilience. In comparison, there are other states—California and Massachusetts are two great examples—where there’s been a real focus on combining an approach to reducing greenhouse gas emissions as well as changing policies, changing the built environment to enhance resilience and really working across state agencies to coordinate so that the health department becomes a major part of the process.
In California a few years ago they passed the first legislation, as far as I know, that combines green building land use policy with climate change mitigation and adaptation. It’s basically a requirement to the cities and metropolitan regions in the state saying when you’re developing your land use policy you need to be paying attention to how those plans are protecting the environment and reducing greenhouse gas emissions, as well as making your city or region more resilient to climate change. New York state has done something similar … And Massachusetts has done something similar. So it seems like there’s a movement with the states really taking this on in an active and vocal sort of way to say at the state level what we’re going to try to do is coordinate across agencies so that we understand what the vulnerabilities are, [and how] social infrastructure and policy infrastructure can either stand in the way of progress or can benefit resilience, and then leave it to the local [government] to develop strategies and policies and actual projects.
TO: Do you think that’s what needs to happen in Texas? What do you think is the most important change that needs to happen here, and does it need to happen at the state level?
AH: I do think that, assuming we could remove the politicization of the term “climate change” from the discussion, the approach of creating a statewide framework and then leaving it to the locals or to a metropolitan region to figure out what makes the most sense for that region, seems like something that would be politically palatable in Texas. I think the problem is that there’s been so much focus and wasted energy on denying whether or not climate change is happening, and why is it happening that it makes it difficult to take a step back and objectively look at this approach, [which] is very federalist as a foundation so it’s something that Texas politicians would be supportive of if they weren’t so concerned about denying that climate change is happening.