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Will The Justice Department Go After Marijuana Grow Operations Using Environmental Laws?

Proposed Increase to Sentencing Guidelines for Marijuana Grow Operations’ Environmental Crimes Supported by DOJ

Last week, we discussed the recent statement made by Attorney General Eric Holder regarding the proposed changes to the Federal Sentencing Guidelines proposed by the United States Sentencing Commission. In his appearance before the Commission, the head of the Justice Department discusses several things and details the reasons why the Obama Administration supports the proposed changes to the current sentencing guidelines.

Changing the guidelines to lower levels and lessen drug crime sentencing is a good thing. Here, Holder and most criminal defense attorneys across the United States agree.

However, at the same time, the Justice Department is joining with some members of Congress to move for increased federal sentencing and harsher environmental penalties for marijuana growers who use toxic chemicals in their grow operations — which ends up characterizing these marijuana farmers similarly to methamphetamine makers cooking meth in their makeshift labs.

marijuana, marijuana plant

Sentencing Commission Proposed Federal Guideline Changes for Environmental Harm by Drug Operations

Specifically, the United States Sentencing Commission is proposing changes to environmental crime sentencing guidelines and in its press release announcing the proposed amendments requested:

The Commission also asked for comment on whether the guidelines adequately address the environmental and other harms of drug production operations, in particular the cultivation of marijuana, and requested comments on issues related to the alien smuggling guideline and on resolving circuit court conflicts regarding the sentencing guidelines, among other matters.

Here are the Comments provided by the Justice Department to the Sentencing Commission (read the full text here, pages 17 – 20, emphasis added):

The Commission seeks comment on the environmental and other harms caused by offenses involving drug production operations and whether the guidelines provide adequate penalties to account for such harms. We believe the Commission should indeed amend the guidelines to address the significant environmental harms and public safety risks associated with illegal marijuana cultivation. As set out in greater detail in written testimony by the U.S. Forest Service for the Commission’s March public hearing, our national forests are seriously harmed and threatened by large-scale, illegal marijuana cultivation, as are our national parks.

Those involved in the production clear-cut trees, divert, pollute and poison water supplies, apply dangerous pesticides, herbicides, and rodenticides, kill wildlife and fish, and endanger the safety of human visitors. These are not minor or victimless crimes; the lands in the Forest System are a treasured national resource, part of our history and culture that include high-quality wildlife habitats, diverse wildlife and fish populations, and abundant clean water. In fact, the National Forest System watersheds serve as the largest source of drinking water in the contiguous United States.

The harms caused by illegal marijuana cultivation are significant and should be accounted for under the current sentencing guideline structure. …

We do not believe the current guidelines sufficiently address the significant environmental harms and public safety risks associated with illegal marijuana cultivation. With the Environmental Protection Agency and the Forest Service, we think the Commission should consider amending the guidelines to better capture these harms and risks, just as the guidelines currently do for the environmental risks associated with the production of methamphetamine.

The guidelines currently provide for a three-level increase when there has been a substantial risk of harm to human life or the environment as a result of the production of methamphetamine. We believe that such an increase is also appropriate in the context of the illegal production of marijuana. We further believe guideline commentary should make clear that the presence of a significant amount of dangerous rodenticide, pesticide, or herbicide will normally trigger this enhancement.

Congressional Support to Increase Sentencing for Environmental Toxin Crimes

In an interview with The Nation, Congressman Jared Huffman who represents people in Northern California’s “Emerald Triangle,” is questioned about the Sentencing Commission’s proposed amendments with lowering drug crime guidelines, which will hopefully relieve the overwhelmed federal prison population, while at the same time seeking to increase federal sentencing in cases of illegal activity that results in harm to the environment.

Huffman’s answer? It is the “only responsive” approach. (Read the full article in The Nation here.)

If Marijuana Grow Operations are Found to Endanger Environment, Then What? Increased Federal Sentences for these Defendants. Very Clever.

It may well be that the MOST interesting story here is that Eric Holder and the Justice Department appear to be looking for new ways to increase sentences for marijuana growers, and cites to examples of illegal grow operations in California. He wants to do it under the flag of environmental concern.  Use a “dangerous rodenticide, pesticide, or herbicide” in a marijuana grow operation and you’re looking at a THREE LEVEL INCREASE in federal sentencing guidelines if Eric Holder gets his way.

Politically, this may be a brilliant political calculation — California’s left-leaning population would likely be angry if the federal government were to try and shut down the legal grow marijuana operations in their state.

However, if the Justice Department began taking action to shut down California marijuana legal grow operations under the banner of protecting nature and fighting against environmental catastrophe, then the left might well let it happen. Quite clever, isn’t it?

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