AG Kroger could cast wide net in pursuit of polluters, lawyers warn

Chris Rizo Nov. 30, 2009, 4:48pm

Christopher Rycewicz

Brian Sniffen

SALEM, Ore. (Legal Newsline)-Oregon Attorney General John Kroger's push to prosecute environmental polluters could create problems for small businesses in the Beaver State, two leading lawyers say.

Kroger's new Environmental Crimes Enforcement Unit and the attorney general's pursuit of criminal charges for not just large-scale polluters could create "uncertainty" for many businesses, said natural resources attorneys Christopher Rycewicz and Brian Sniffen.

"Mr. Kroger's plan to dramatically increase the number of criminal prosecutions for environmental noncompliance is a departure from past practices," the lawyers said in a statement. "Historically, most of the environmental noncompliance in Oregon has been punished by way of civil and administrative penalties. Criminal prosecutions, which have been handled by harried county district attorneys, have been spotty and reserved for only the most egregious violations."

Rycewicz and Sniffen -- of Miller Nash LLP in Portland, Ore. -- say even small business should be worried about being targeted by the attorney general's Environmental Crimes Enforcement Unit.

"Mr. Kroger has made it clear that not just so-called big-time polluters are being targeted," they said. "Rather, the ECEU will also target small noncompliant businesses -- businesses that Mr. Kroger believes have a competitive advantage because they are not paying the costs associated with compliance."

The lawyers added that there are currently no guidelines are in place to control the prosecutorial discretion of the attorney general, noting that "prosecution may be pursued or dropped based solely on whether Mr. Kroger wishes to pursue it."

Kroger has appointed two senior aides to pursue polluters: former Clackamas County prosecutor and an attorney who represented environmental groups in the state for more than a decade.

Patrick Flanagan, a former prosecutor for Clackamas County and law enforcement officer the U.S. National Park Service, heads the new environmental crimes unit, while environmental attorney Stephanie Parent will work in the Oregon Department of Justice's Special Litigation Unit.

The Democratic-led state Legislature in June authorized the creation of an environmental crimes unit within the attorney general's office.

Kroger had asked lawmakers for $500,000 in annual funding for the unit. But the Legislature, grappling with a $3.85 billion revenue gap, said he would have to use existing funds for the new Environmental Crimes Enforcement Unit.

In his campaign last year, Kroger vowed to defend Oregon's vast natural resources and go after polluters and other environmental scofflaws.

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