Fisher went on to explain that grand jury proceedings are, by law, kept secret and those who provide grand jury information to the press can be prosecuted. Once charges are filed, however, they are public information. “And more often than not,” he said, “the Department of Justice prosecutors we work with file what’s called a speaking indictment that tells you more than just, ‘the government alleges that XYZ Company committed this particular offense under the Resource Conservation and Recovery Act.’ It tells the story of the criminal conduct and then it has the allegation at the end of that document.” In addition, search warrant affidavits are almost always available to reporters.
“So there are places in this process, even before trial, for the media to get access to public information,” Fisher said. “But we, especially the prosecutors, are always going to be concerned about preserving the defendant’s ability to get a fair trial, and lawyers are subject, both at EPA and DOJ, to bar ethics obligations that tell us things ought to be tried in courts and not in the press. That’s a very proper constraint on us.”
Jerry Phillips, the director of the Florida chapter of Public Employees for Environmental Responsibility (PEER), said that to ferret out information about ongoing investigations, it helps “to be a geek.” He recommended perusing the Quarterly Non-Compliance Reports issued by state agencies for pollution violations, paying particular attention to facilities that wind up on the Significant Non-Compliance (the term used in the Clean Water Act and Resource Conservation and Recovery Act programs), the High Priority Violation (the term used in the Clean Air Act program), or the Serious Violator (the term used in the Safe Drinking Water Act program) lists. These are the most serious violations in the EPA database.
That information is available at the agency’s Enforcement & Compliance History Online (ECHO) website, which launched a new interactive mapping tool in September that allows reporters to access federal and state enforcement information and to compare enforcement actions by state.
There are ways for journalists to play a slightly more active role in environmental law enforcement, however. Fisher cited the example of Texas’s McWane Industries, one of the world’s largest manufacturers or cast-iron water and sewer pipes. In 2003, a nine-month investigation by The New York Times, the PBS television program Frontline, and the Canadian Broadcasting Corporation, which found that since 1995 there had been 4,600 recorded injuries (“many hundreds of them serious ones”), nine deaths, and more than 400 Occupational Safety and Health Administration (OSHA) violations at McWane’s foundries. Following the report, the EPA and DOJ launched investigations that resulted in numerous convictions and tens of millions of dollars in penalties.
On the opposite end of the legal process, Fisher cited the example of Albania Deleon, who issued fraudulent asbestos-removal training certificates to hundreds of untrained workers in Massachusetts from 2001 to 2006. Deleon fled to the Dominican Republic two days before her sentencing in 2010 and landed on the EPA’s fugitives list. Dominican authorities found and arrested her nineteen months later, and handed her over to the US Marshalls.
“There was a lot of press in The Boston Globe and other places about her absconding from justice,” Fisher said. “So, whether the word got out that way and somebody gave us a tip, or whether it wasn’t a media article, but a direct website view, I don’t know. But that’s one way that there’s a real role for media to publicize something that helps our cases a lot.”
It’s important to understand that press-police collaboration is not the goal and that journalists are not there to help law enforcement, however. If reporters do an investigation into something illegal, and the cops end up pursuing charges, that is one thing. But looking for ways to help the police is another.
Nonetheless, Luis Santiago, a special agent in US Fish and Wildlife Service’s Office of Law Enforcement, said that stories about ongoing investigations can generate useful tips and coverage of successful prosecutions can act as a deterrent for other would-be criminals. He also pointed out that journalists need to be careful not disrupt the enforcement process.
CNN’s 2007 “Planet in Peril” series featured an episode in which Anderson Cooper and Jeff Corwin tagged along with Thai police officers during a raid of illegal animal trading operations at a local market. But the illicit vendors saw the group, camera crew and all, coming and closed their shops before any busts could be made.