Department of Homeland Security Sued for Chemical Weapons Use

Environmental groups sued the Department of Homeland Security and its acting secretary, Chad Wolf, in federal district court today over their use of what the suit called “a vast arsenal of weapons” on Black Lives Matter protesters in Portland. The weapons deployed by the federal agents during what the Trump administration dubbed “Operation Diligent Valor” pose potentially grave health and environmental hazards, according to the suit, which the ACLU Foundation of Oregon filed on behalf of the Northwest Center for Alternatives to Pesticides, the Willamette Riverkeeper, Cascadia Wildlands, Neighbors for Clean Air, and 350PDX.

The Department of Homeland Security did not immediately respond to a request for comment.

Among the weapons mentioned in the complaint are rubber bullets; CS tear gas; OC spray, also known as pepper spray; and hexachloroethane smoke grenades. As The Intercept reported earlier this month, the U.S. military began phasing out the smoke grenades years ago because of their toxicity. Along with a thick smoke, the grenades release chemicals associated with short- and long-term human health effects, including nausea, vomiting, central nervous system depression, kidney and liver damage, and cancer.

The groups detail the serious risks of CS tear gas, citing a 2014 report that showed it had “a profound effect on the respiratory system” and that U.S. Army recruits exposed to the tear gas in basic training had a nearly 2.5 times greater risk of acute respiratory illness. The complaint lists symptoms associated with the gas, including eye injuries, chronic pain, cough, neurodegeneration, and menstrual irregularities. And it presents evidence that “[e]ven at low concentrations, CS gas presents a risk of irreversible or other serious, long-lasting adverse human health effects.”

According to the suit, the Department of Homeland Security violated the National Environmental Policy Act by failing to consider the “potentially severe environmental and human health impacts” of the weapons. The National Environmental Policy Act requires federal agencies to weigh the impacts of proposed actions that “significantly affect the quality of the human environment.” And the suit lays out evidence that, in addition to imperiling protesters, who have described weight loss, lung damage, exhaustion, and other symptoms after being exposed to gas and smoke released by the federal agents, the weapons may harm the environment. Several of the chemicals released by the munitions are harmful to aquatic life, according to their safety data sheets.

The federal agents used so much tear gas and other weapons during the face-offs with protesters that its residue was visible on streets, sidewalks, and plants near the federal courthouse and ICE detention center where they were used. There are at least seven stormwater drains near the Justice Center and the ICE detention center, where the agents were stationed, and at least two of the drains feed directly into the nearby Willamette River. According to the suit, plaintiffs have identified “tear gas and other chemical munitions floating over the Willamette River” and have seen DHS agents “power washing” the residue from tear gas and other chemical weapons into the storm drains. The environmental groups conclude that the chemicals have likely already entered the nearby Willamette River.

While officials in Portland have acknowledged that residue from tear gas and other chemical munitions used by the Department of Homeland Security entered the city’s storm drains downtown, the federal agency has not provided a list of tear gas and chemical munitions used against protesters to the Portland Bureau of Environmental Services, according to the complaint. It also says that the federal government has denied the city environmental agency access to a catch basin behind the federal agents’ barrier where they want to test stormwater there for the presence of chemicals.

Operation Diligent Valor began when Department of Homeland Security Agents descended on Portland in July. But DHS agents remain in the city and have used chemical munitions as recently as October 18, when a thermal fogger released gas into a crowd of protesters gathered outside an ICE facility. The suit asks the court to stop DHS from using such weapons in Portland until its violation of the law is corrected.