3p Contributor: Michael Kourabas

Michael Kourabas Trained as a lawyer, I now focus on legal business development, corporate social responsibility (CSR), and business & human rights. My past experience includes work on complex commercial litigation, international human rights advocacy, education policy, pro bono legal representation, and analysis of CSR challenges in both the private and public sectors.

Recent Articles

Cambodian “Reintegration” Program Sends Sex Workers to Sweatshops

Michael Kourabas
| Wednesday October 22nd, 2014 | 0 Comments

Screen Shot 2014-10-21 at 4.17.22 PMIn case you still weren’t sure how you felt about labor practices in Cambodia’s growing apparel manufacturing sector, maybe this will help get you off the fence.  According to a short video posted by VICE News last week, female sex workers arrested in Cambodia are being forced into jobs in the country’s infamously inhumane garment industry.  If this is true, what to make of it?

The VICE documentary

Here’s how the claim arises in VICE’s “The High Cost of Cheap Clothes” mini-documentary, in which VICE founder, Suroosh Alvi, travels to Cambodia’s capital to investigate “what is happening to those swept up in the country’s trafficking crackdown.” The video opens with Alvi reminding us that, although Cambodia is one of the capitals of the sex tourism industry, the country has been cracking down on the sex trade since 2008 when, at the supposed behest of the U.S., the government initiated an “aggressive” anti-trafficking and prostitution campaign.

Alvi’s investigation takes him first to a ride along with the anti-trafficking unit of the Ministry of the Interior, which quickly turns into the raid of a building allegedly housing sex traffickers.  The raid leads to a few very young-looking women (girls?) being handcuffed.  Over screams and much crying, we are shown a tiny room, barely illuminated by a creepy, red light.  On the floor are a few mattresses and a roll of toilet paper.  “This is about as dark as it gets,” Alvi says.

After the girls have been rounded up, Alvi turns to one of the cops and asks, “Where will you take the girls?” The cop responds that they will first be brought to the “anti-trafficking department,” then on to the unfortunately named “re-education training department.”

And now we have arrived at what Alvi tells us is the “crux” of Cambodia’s anti-trafficking program.

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This is Water: Lessons From My ‘4 Liters Challenge’

Michael Kourabas
| Thursday October 16th, 2014 | 6 Comments

10689547_750193981709206_6747488843991222514_nOn an average day, I waste a shameful amount of water.  So do you.  We all do, and we do it while hundreds of millions of people in other parts of the world live in “water poverty,” consuming less water in an entire day than most of us use flushing the toilet a few times.

I learned all of this when I decided to take DIGDEEP’s4 Liters Challenge” — a pledge to use a total of only 4 liters of water for one entire day.  The challenge was not pleasant.  Far worse than the experience was coming to terms with just how much water we waste.

Context

Does the 4 Liters Challenge sound hard?  I actually wasn’t sure until I put it in context.  First, most of us use nearly 4 liters of water — in other words, all of the water allotted in the challenge — every time we wash our hands or face.  Most Americans use more than 400 liters of water (!) every single day, or 100 times what the challenge requires.  A single toilet flush uses about 6 liters of water, and a mere three flushes amounts to more water than most other people in the world use all day to clean, cook, drink and bathe.  The average dishwasher uses 23 liters of water, and running the water while you brush your teeth could waste 9 liters. The all important shower?  Newer shower models use about 9.5 liters of water every minute, so a quick, five-minute shower uses about 47.5 liters of water and a 10-minute shower — a little longer than the average — uses (wastes?) almost 100 liters.

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Walmart Commits to More Sustainable Food. Is it Serious?

Michael Kourabas
| Thursday October 9th, 2014 | 0 Comments

14010430133_b901245d34_zOn Monday, Walmart held its second semi-annual Global Sustainability Milestone Meeting — webcast live and re-aired the following day — and announced a new pledge to help create a more sustainable food system. Taken at face value, the country’s largest food retailer appears to be making a real commitment to help develop a healthier, more affordable, and less environmentally damaging food supply.  Walmart’s real legacy in this area, though, will be measured by how much concrete action follows its ambitious commitments.

At the outset of the milestones webcast, the company’s CEO, Doug McMillon, proclaimed that in order to meet the population’s increasing food demands, Walmart and its suppliers need to become more sustainable players in the global food supply chain.  According to this new commitment, Walmart will aim to achieve this by ensuring that the food it sells, and the supply chain from which that food comes, is: (i) more affordable (to the environment, society, and customers); (ii) safer and more transparent; (iii) healthier; and (iv) more accessible.

Like many corporate marketing efforts, in both the webcast and the company’s concurrent announcements it is difficult to parse the genuine commitments from the hollow promises; the real passion from the empty rhetoric meant to patronize the most environmentally conscious consumers and NGOs.

To look strictly at its pledges, Walmart sure seems to acknowledge that bold action is required if it is to contribute to reversing the trends of environmental degradation and resource scarcity.  The company, which claims that environmental sustainability is now an “essential ingredient” in its business model, already says that it strives to sell only products that “sustain people and the environment.”

So, how exactly is the company planning to increase the sustainability of the food it buys and sells?

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U.S. Promises Action on U.N. Human Rights Principles

Michael Kourabas
| Wednesday October 1st, 2014 | 0 Comments

2767099314_77272ba8b8_zLast week, the U.S. State Department announced that the government would develop a National Action Plan to “promote and incentivize responsible business conduct,” in line with the United Nations Guiding Principles on Business and Human Rights (UNGPs).  Once complete, the U.S. will join the U.K., the Netherlands, Denmark, Italy and Spain as the only states to have released National Action Plans on business and human rights (BHR NAPs).  According to the U.N. Working Group on Business and Human Rights, Switzerland and Finland are also in the process of developing their own plans.

The announcement comes in advance of official United Nations guidance on the subject, promised by the U.N. Working Group for December 2014, which ought to inform the U.S. process.  While this news may barely register on the radar of even those most interested in corporate social responsibility, organizations like Human Rights Watch, Human Rights First and the International Corporate Accountability Roundtable (ICAR) have been publicly pushing President Barack Obama to develop a BHR NAP for some time. (ICAR is also working with the Danish Institute for Human Rights on a larger NAP project that aims to provide guidance for governments in the development, implementation, and review of BHR NAPs.)

What is a BHR NAP and why does it matter?

In short, a BHR NAP is a policy document that explains how a particular state intends to go about fulfilling its duty to protect human rights from corporate abuse.  In general, NAPs are useful tools in the advancement of any particular policy objective in that, among other things, they tend to mobilize various stakeholders, promote collaboration and outline the parameters of expected action. Three years after the United Nations Human Rights Council unanimously endorsed the UNGPs, it called on all Member States to develop BHR NAPs in order to promote the implementation of the UNGPs within each state’s national legal framework.

In a sense, the creation of a NAP is akin to the crucial step of domestic implementation of a treaty or other international instrument (and the future of the rights or obligations it purports to protect/enforce), including international human rights treaties, like the International Covenant on Civil and Political Rights (ICCPR), or those creating international institutions, like the Rome Statute and the International Criminal Court (ICC).

By ratifying the ICCPR, for instance, the U.S. committed to “prevent and protect against discrimination and ensure equal treatment for all … without any limitations or exceptions.”  Yet, domestic implementation of the ICCPR has been lacking.  Who, for instance, can argue that the federal government has come close to accomplishing this (admittedly lofty) aim?

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In Wake of New Protests, H&M and Others Commit to Living Wages in Cambodia

Michael Kourabas
| Friday September 26th, 2014 | 0 Comments

74486342_826562872a_oA group of eight international fashion retailers, including H&M, Inditex (the owner of Zara) and Britain’s Primark, announced last week that they would support fair living wages for Cambodian garment workers and were prepared to factor such wages into their pricing.  The official support came just days after the Cambodian government, for the second time this year, deployed armed troops in response to rallies by garment workers seeking higher minimum wages.

On Sept. 17, thousands of textile workers gathered in and around Cambodia’s capital, Phnom Penh, demanding a significant increase in the monthly minimum wage, from $100 to $177.  A previous demand for a wage hike to $160 had been rejected by employers, who earlier this year raised wages to $100 from around $80. Importantly, no incidents of violence against either police or protesters were reported, in contrast to the government’s response to a January 2014 protest, when Cambodian troops opened fire on striking workers — killing at least four and injuring many more.

The retailers’ commitment

H&M and the other retailers made their support for the garment workers known in a letter to the deputy prime minister and the chairman of the local Garment Manufacturers Association, written just one day after the latest protests.  The letter states that “[w]orkers in all production countries have a right to a fair living wage.”  As such, going forward the retailers’ “purchasing practices will enable the payment of a fair living wage and increased wages will be reflected in our prices.”  The retailers also wrote that they expect and will support “the installation of an annual industry collective bargaining process for wages that is fair and takes into account the [International Labor Organization’s] technical expertise.”

(The letter goes on to note, however, that the retailers anticipate that the higher cost of wages will be offset by remedying perceived inefficiencies in Cambodian factories.  The letter is also light on specifics and does not explicitly endorse the workers’ demand for $177/month or any other particular figure.)

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Can the Great Barrier Reef Be Saved?

Michael Kourabas
| Friday September 19th, 2014 | 1 Comment
According to a 2012 report by the Australian Institute of Marine Science, the reef has lost over half of its coral in the past quarter-century.

According to a 2012 report by the Australian Institute of Marine Science, the reef has lost over half of its coral in the past quarter-century.

In 1981, the United Nations Educational, Scientific and Cultural Organization (UNESCO) designated Australia’s Great Barrier Reef a World Heritage Site.  Just 25 years later, however, UNESCO warned that climate change and other anthropogenic causes were threatening the reef’’s existence.  In fact, according to a 2012 report by the Australian Institute of Marine Science, the reef has lost over half of its coral in the past quarter-century.

Earlier this year, UNESCO’s World Heritage Committee noted that conservation efforts at the reef were making some progress, but that significant dangers still remained.  The committee encouraged the Australian government to submit an updated progress report by early 2015, which the committee would consider when determining whether or not the reef deserves placement on the List of World Heritage in Danger.

Earlier this week, the Australian and Queensland governments released a draft of the Reef 2050 Long-Term Sustainability Report, which they hope will allay UNESCO’s concerns.  Critics, however, think bolder action is required.

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The End of Apartheid Litigation and the Future of Corporate Accountability

Michael Kourabas
| Thursday September 11th, 2014 | 2 Comments
Late last month,

Late last month, a New York District Court judge tossed the last of the apartheid-related cases pending against two American corporations, Ford and IBM.

The quest to hold corporations liable for alleged human rights abuses committed abroad was dealt another blow late last month when a New York District Court judge tossed the last of the apartheid-related cases pending against two American corporations, Ford and IBM.

In a begrudging bow to current precedent, U.S. District Judge Shira Scheindlin, of the Southern District of New York, denied plaintiffs’ motion to amend their complaint because they would be unable to meet the stringent demands of a test announced by the Second Circuit Court of Appeals earlier in the year.  More importantly, if the law of the Second Circuit becomes the law of the land, U.S. corporations could be effectively immune from civil liability for violations of international law that are perpetrated exclusively by foreign subsidiaries on foreign soil.

The Alien Tort Statute and a refresher on the Supreme Court’s Kiobel decision

The Alien Tort Statute (ATS) grants jurisdiction to U.S. District Courts “of all causes where an alien sues for a tort only in violation of the law of nation or of a treaty of the United States.”  As I described in an earlier piece for TriplePundit, the question of the ATS’ application to corporations is muddy.  In the seminal 2013 case, Kiobel v. Royal Dutch Petroleum (Kiobel), the Supreme Court affirmed the dismissal of a suit brought by Nigerian citizens who alleged that Shell and other oil companies aided in the Nigerian government’s violent suppression of resistance to drilling operations in Nigeria.  In affirming the holding of the Second Circuit, the majority held that, because all of the alleged human rights abuses occurred abroad, the plaintiffs could not overcome the presumption against the application of U.S. law to conduct occurring outside of the U.S. (aka “extraterritorial” application).

“Touch and concern”

In Kiobel’s most important passage, the Court added that:

 [E]ven where [plaintiffs’] claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.  (my emphasis)

The Supreme Court did not define the all-important phrases, “touch and concern” or “sufficient force,” leading lower courts and pundits to fight about whether or not the opinion completely closed the door to lawsuits against corporations that allegedly violated international law in a country other than the U.S.  Further confusing the matter is that the Second Circuit, in its decision in the Kiobel case, held that the ATS “simply does not confer jurisdiction over suits against corporations,” and though the Supreme Court did not appear to go this far, it did affirm the Second Circuit’s holding.

Thus, after Kiobel, whether and/or how a corporation could be held liable under the ATS remains an open question.

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Berkshire Beyond Buffett? Not So Fast

Michael Kourabas
| Friday September 5th, 2014 | 1 Comment
Berkshire Hathaway CEO Warren Buffet speaks at the Fortune Most Powerful Women conference in 2013. Can Berkshire survive without its

Berkshire Hathaway CEO Warren Buffet speaks at the Fortune Most Powerful Women conference in 2013. Can Berkshire continue to thrive without its ‘Oracle-in-Chief?’

A few weeks ago, Class A shares of Warren Buffett’s Berkshire Hathaway topped a staggering $200,000 a share.  Berkshire, which came in at No. 4 on the latest Fortune 500 list, has 300,000 employees spread across 59 subsidiaries, and more cash on hand — $55.5 billion — than any other company in America.  Its market value is roughly $330 billion, and it is often cited as one of the “most admired” companies in the world.  Berkshire has achieved all of this in the fashion of an old-school American conglomerate, refusing to focus on just one sector or industry.  As a result, Berkshire’s stock and subsidiary portfolios include such behemoths as American Express; Burlington Northern Santa Fe; Coca-Cola; GEICO; Heinz; IBM; Walmart; and Wells Fargo, to name just a few.

Yet, the company’s growth has slowed: Over the last five years, it underperformed the S&P 500 for the first time in its history — and Berkshire skeptics question whether such a large and tentacular entity can continue to thrive without its Oracle-in-Chief.  Lawrence Cunningham, a law professor at George Washington University and author of the thoughtful “Berkshire Beyond Buffett:  The Enduring Value of Values” (Columbia Business School Publishing), is betting that it can.  While Cunningham’s book works quite well as a testament to Warren Buffett’s unassailable vision and leadership, as well as to what Berkshire embodies and may continue to embody after Buffett, it comes up a bit short as an argument for why Berkshire’s greatness will outlive its leader.

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Towards a Greener Beer: Craft Brewer Rolls Out the Evercan

Michael Kourabas
| Thursday August 28th, 2014 | 0 Comments

Evercan-1st-ed-front-186x300As any regular reader of this site knows, sustainability and beer are two things the TriplePundit community takes very seriously.  This is, after all, the place that brought you 2012’s Green Brewhaha, an exhaustive series on the sustainability movement in the brewing industry.  So, it goes without saying that when a craft brewer begins packaging its beer in a can made of almost-entirely recycled aluminum, it is big news here; it should also be big news to the rest of the beverage industry.

The Red Hare partnership

In April, Georgia-based craft beer manufacturer, Red Hare Brewing Co., announced that it was partnering with the multinational aluminum producer Novelis, to package its beer in an “almost-entirely recycled” aluminum can.  Developed by Novelis in 2013, the “evercan” is the only aluminum can sheet containing at least 90 percent recycled content — nearly double the amount of recycled material in a standard aluminum can.  And this is just the beta version.  According to Novelis’ chief sustainability officer, the company aims to be at 100 percent recycled content within a few years.  Last week, Red Hare began rolling out the new packaging.

When Novelis was searching for evercan buyers, Red Hare seemed a natural partner.  For one, Red Hare is small enough for a test run.  (Illustrative of the company’s size, despite being a dedicated craft beer drinker I had never before heard of Red Hare and, according to the beer locating website Beer Menus, the nearest Red Hare purveyor is some 400 miles away.  So a plea to Red Hare: ship the evercan to New Orleans distributors!  We’re a drinking — and caring — city!)  For another, Red Hare has been can-only since the company’s inception in 2011.  As Novelis described it, Red Hare is a “small company with big ideas.”  (Of course, both companies also happen to be headquartered in the Atlanta, Georgia area.)

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The 2015 European Games in Azerbaijan: Human Rights Violations Already

Michael Kourabas
| Friday August 22nd, 2014 | 4 Comments
Baku, Azerbaijan will host the inaugural European Games next year.

Baku, Azerbaijan will host the inaugural European Games next year.

As oil-rich Azerbaijan prepares to host next year’s inaugural ‘European Games,’ the Azerbaijani government has stepped up its crackdown on activists speaking out against its abysmal human rights record.  As of this writing, more than 20 human rights defenders have been detained by the government, including four of the country’s most prominent activists.

Meanwhile, the European Games’ lead organizer has claimed that it is not his job to criticize the host country; denied any knowledge of the government’s oppressive habits; and declared Azerbaijan an “incredibly free society.” Current and future corporate sponsors of the games should take notice and carefully consider their decision to be affiliated with the event.

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Jay-Z’s Got 99 Problems, But Prop 47 Aint One

Michael Kourabas
| Wednesday August 13th, 2014 | 0 Comments

7606416730_26cb8b5536_zCriminal justice reform advocates (and hip-hop fans) rejoice: Avowedly apolitical rap mogul Shawn Carter (aka Jay-Z) used the stage at a recent San Francisco concert to throw his support behind California’s Proposition 47 (Prop 47).

Not known for forays into politics, Jay stepped out of his comfort zone just three months before Californians will have a chance to vote on what could be the most important ballot initiative in the state’s history.  (No, I haven’t forgotten about Prop 8.)

If approved, Prop 47, known as the Reduced Penalties for Some Crimes Initiative, will reduce the penalty for most nonviolent crimes from a felony to a misdemeanor and direct the money saved from incarcerating fewer individuals — estimated to be between $150 million and $250 million each year — to a Safe Neighborhoods and Schools Fund.

Prop 47’s potential effects

If passed, Prop 47 will have an immediate impact on California’s prisons and the state’s otherwise prison-bound population.

First and foremost, the initiative would reclassify low-level shoplifting and theft, possession of narcotics, and possession of marijuana — all currently felonies — as misdemeanors.  In California, three-quarters of those incarcerated are serving time for nonviolent offenses, and roughly one in six is locked up for nothing more than drug possession, so the future impact would be great.  In addition to keeping low-level, nonviolent offenders out of prison in the future, the initiative would also allow roughly 10,000 current prisoners to seek re-sentencing.

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Right Action: Blocking a Dam in Cambodia’s Sacred Forest

Michael Kourabas
| Thursday August 7th, 2014 | 0 Comments
A buddhist monk rests in Sra Damrei, a peaceful spot in the Phnom Kulen mountain where the monks have been coming to meditate for centuries. Groups of monks have traveled miles to

A buddhist monk rests in Sra Damrei, a peaceful spot in the Phnom Kulen mountain where monks have been coming to meditate for centuries. In recent weeks, groups of monks have traveled miles to the Cheay Areng region to help save the endangered forest from Sinohydro’s proposed dam.

In another example of the collateral damage caused by the relentless march of economic development, a sacred Cambodian forest and its residents are fighting for their very survival against the Cambodian government and the largest hydropower company in China.

The fight is over a hydroelectric dam being planned for the Cheay Areng region at the base of Cambodia’s Cardamom Mountains, just one piece of a larger government plan to build a network of 17 dams across the country.  Four have been built already, all in supposedly unoccupied forests.  This project, however, is different, as the valley is home to more than 1,600 mainly indigenous people.  If the dam were completed, almost 2,000 hectares of land belonging to the indigenous Khmer Daeum would flood, a territory which includes 500 hectares of sacred land in the Central Cardamom Protected Forest.

The Areng dam project has been fraught from the beginning.  The first company on the project, China Southern Power Grid, pulled out due to environmental concerns; next up was China Guodian Corp., which abandoned the project citing questions about its economic viability.  Sinohydro, China’s largest hydropower company and the world’s biggest dam producer, took over from there but has thus far been stymied by protests from the local Chong people and some Buddhists from Cambodia’s capital.

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New World Bank Policies Potentially Devestating to Poor, Indigenous People

Michael Kourabas
| Friday August 1st, 2014 | 0 Comments

10336635_887297174629373_3240410610220556304_nIt looks like the World Bank is succumbing to budgetary pressures and choosing to neglect its human rights responsibilities as the world’s largest and most influential development bank.

Proposed revisions to the World Bank’s Safeguard Policies and Environment and Social Framework — which are meant to protect people and the environment in the investment projects that the World Bank finances  — leaked last week and were immediately and uniformly criticized as potentially devastating to indigenous people, the poor and the environment.

On July 28, 99 non-governmental organizations and civil society networks across Asia, Africa, Latin America, North America and Europe sent a letter to the World Bank’s board, urging it not to adopt the draft.  Yet, despite the viscerally negative reaction of rights groups around the world, the draft was cleared by the World Bank Board’s Committee on Development Effectiveness on July 30, and it will now be subject to a period of broad public consultations.

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A Proud Day To Be A Hockey Fan: NHL Releases First Sustainability Report

Michael Kourabas
| Monday July 28th, 2014 | 2 Comments

2552191337_240b64d637_zGrowing up as a hockey-obsessed kid in a small New York suburb, there was no single event to which I looked forward more than The Day the Lake Froze Over.

For most of my hockey-playing years, I had the great fortune of living across the street from a large lake (Lake Mahopac), and a short drive from a smaller pond (Teakettle Spout), the latter of which attracted a disproportionate amount of pickup hockey talent.  I still remember rushing out the front door on Saturday mornings to check the integrity of the ice — “Solid enough to skate on?” — or waiting for the inevitable phone call imploring me to get down to Teakettle because a game about to get underway.  None of us who gathered on those lakes and ponds took for granted the free ice-time we were afforded, but I don’t think any of us considered that these opportunities might, some day, disappear.

This same spirit — that of the eager kid entertaining his or her professional hockey playing fantasies on the local lake or pond — animates much of the National Hockey League’s (NHL) first Sustainability Report, which was released last week.  The NHL’s report is the first of its kind in major professional sports, and its scope and ambition are impressive.  Hopefully, the work the NHL did on its inaugural report will set the tone for the rest of professional sports and encourage the other major leagues — the MLB, NBA and NFL — to follow-suit.

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Giving a Pass to Corporate Polluters

Michael Kourabas
| Monday July 21st, 2014 | 0 Comments

1383478361_260969c3f6_zHas there ever been a better time to be a corporation?  I doubt it.  Corporations might disagree, and we’re all familiar with corporate lamentations regarding the increasingly challenging web of federal regulations (Dodd-Frank; the FCPA) they supposedly struggle to navigate.  Yet, it’s hard to dispute that these are good times for big business, and “Exhibit A” could easily be the utter dearth of criminal prosecutions for corporations that are guilty of pollution.

Funding Woes.  According to a recent study published by the Crime Report (TCR), criminal prosecutions of corporate polluters are becoming less and less common by the day.  One explanation for this phenomenon is the dwindling funding allotted to the government entity responsible for the protecting the environment, the Environmental Protection Agency (EPA).

In case you missed it, Congress has made a recent habit of slashing EPA funding.  (Yes, this is the same do nothing Congress that is currently contemplating spending American tax dollars on a lawsuit against the President.)  Unsurprisingly, these cuts have come primarily at the hands of Congressional Republicans, whose most recent transgression has been the approval of a 9 percent decrease in EPA funding, but President Obama has done some damage as well (the President’s proposed 2015 budgetlowered EPA funding by some $300 million).  And this is not just a 2014 trend.  As Congressional Republicans boasted when the federal government nearly imploded (again) in January, they have successfully cut the EPA’s funding by 20 percent since 2010.

One result of these money troubles is a serious lack of manpower.  For instance, the Department of Justice’s Environmental Crimes Section is equipped with just 38 prosecutors, and the EPA’s Environmental Crimes Section has just 200 agents.  These are the folks who are given primary responsibility for monitoring environmental violations across the country.  Yet, with such a pitifully understaffed roster, the federal government’s capacity to pursue America’s worst environmental offenders is seriously hampered.

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