theintercept--2020-09-19--As the West Burns, the Trump Administration Races to Demolish Environmental Protections

millions of acres in California , Oregon , and Washington , and an unprecedented series of hurricanes cause historic flooding in the South , leaving parts of the region uninhabitable , the Trump administration has been racing to reverse rules designed to prevent exactly these kinds of climate disasters .
Throughout his presidency , Donald Trump has presided over the rollback of more environmental rules and regulations than any other president .
The result has been that , even as climate change is on track to soon force millions of Americans from their homes and eventually heat the Earth to @ @ @ @ @ @ @ , the leader of the country that bears more responsibility for the climate change than any other has doubled down on the decimation of efforts meant to combat both pollution and the climate crisis .
“ The Trump administration is the first in the history of the agency to devote itself so relentlessly to a rollback agenda without even a pretense of meaningfully reducing environmental pollution , ” said John Walke , an attorney and senior adviser to the NRDC Action Fund .
Starting with his choice of Scott Pruitt , a climate @ @ @ @ @ @ @ fueled by the oil and gas industry , to lead the Environmental Protection Agency , Trump has has signaled his disregard for the climate and public health throughout his time in office .
While Trump has called climate change a “ Chinese hoax ” and a “ con , ” federal agencies under him have taken countless actions — from the removal of information about climate change on the EPA website to the decision to withdraw from the Paris climate agreement ; the retooling of models used by the U.S. Geological Survey ; @ @ @ @ @ @ @ carbon monitoring program — that set back the effort to address the climate crisis , and ultimately endanger the environment .
In recent months , the pace of these assaults has quickened .
The frenzied efforts of federal agencies during the last months before a presidential election are often referred to as “ midnight regulation.
” But the work the Trump administration has recently been hurrying to complete would be more accurately described as “ midnight deregulation.
” In many cases , this deregulation will have a measurable human toll .
Changes to @ @ @ @ @ @ @ which the EPA made in April , undermined limits on mercury and other toxic air pollution coming from coal-fired power plants that were put in place in 2011 .
Those regulations had prevented between 4,000 and 11,000 premature deaths each year , according to the agency ’ s own calculations .
But under Trump , the EPA has decided that it is no longer necessary to regulate this pollutant , which causes brain damage in developing fetuses and increases heart attacks in adults .
If it stands , the methane rollback , which @ @ @ @ @ @ @ also result in illness and death .
In addition to hastening climate change , methane turns into ozone , which causes chronic diseases , including respiratory damage , cancer , asthma , and heart disease .
Fence-line communities , which are disproportionately made up of people of color , including the more than 1 million African Americans who live within a half-mile of an oil and gas facility , will be among the hardest hit by the pollution .
And the replacement of the Clean Power Plan is expected to lead to thousands @ @ @ @ @ @ @ weeks until the election , and the wildfires and flooding continuing to spread along with the recognition that they are part of a larger climate apocalypse , the Trump administration is still scrambling to finish the deadly destruction of some of the rules and processes that were put in place to protect human health .
Among other hugely consequential rules still hanging in the balance are the standards for particulate matter and ozone , both of which stem from power plants .
Since 1977 , the law has required that a Clean Air @ @ @ @ @ @ @ made up of independent scientists help set the standards .
While the committee still exists , the Trump EPA has gutted it , removing many of the independent scientists from it and all of the epidemiologists , and instead stacked it with industry-friendly experts .
CASAC is now headed by Louis Anthony “ Tony ” Cox Jr. , an industry consultant who disputes well-established science showing that particulate matter kills by increasing rates of heart and lung disease .
He has worked for Exxon Mobil , the American Chemistry Council , and the @ @ @ @ @ @ @ Wheeler fired a panel of scientists that historically advised CASAC on particulate matter — which includes dust , dirt , soot , and smoke — and dispensed with a panel of ozone experts in what he claimed was an effort to “ streamline ” the standard-setting process .
The result is that the EPA is now trying to finalize the current standards for both particulate matter and ozone , which independent scientists say are not protective of health .
Although weather affects ozone levels , the proposed standard doesn ’ t consider the @ @ @ @ @ @ @ standards for the air pollutants , both of which result from power plant emissions , is a “ sop to the oil and gas industry ” that will prove deadly , according to Bernie Goldstein , a physician who served as chair of CASAC and a Reagan-appointed EPA assistant administrator who is now a member of the Environmental Protection Network .
Already more than 100,000 people in the U.S. die because of air pollution , including particulate matter and ozone .
“ More people will die because the pollutant standards aren ’ t @ @ @ @ @ @ @ Goldstein is particularly concerned about the increased vulnerability to these air pollutants during the coronavirus pandemic — something the EPA did not factor into its standard-setting process , even though it issued its proposal after the pandemic began .
“ The idea that something that violently attacks the heart and lungs the way Covid-19 does will interact with air pollutants that also attack the heart and lungs is a no-brainer , ” he said .
Trump is working with the Agriculture Secretary Sonny Perdue to expand logging in Alaska ’ s Tongass National @ @ @ @ @ @ @ 10 million acres that absorb more carbon than any other national forest .
And the administration is attempting , through the Department of the Interior , to fast-track the environmental reviews of oil and gas drilling projects , including the Mountain Valley natural gas pipeline and a natural gas terminal in Oregon .
Also among the unfinished business at EPA is the rollback of 2015 protections that protect farm workers and agricultural communities from pesticide exposure .
If the Trump administration succeeds with its change , farm workers — who are overwhelmingly Latino @ @ @ @ @ @ @ to be poisoned by pesticides than non-farm workers — will face even greater exposure .
And the EPA is taking the last steps to finalize its “ Strengthening Transparency in Regulatory Science ” rule , which would limit the use of independent science in the agency ’ s decision-making by employing a strategy first devised by tobacco companies .
The proposal was sent to the White House regulatory review office earlier this week , and Wheeler said he hopes to finalize it by the end of the year .
Meanwhile , the administration @ @ @ @ @ @ @ rules affecting the Endangered Species Act : One will open up designation of critical habitat to challenges by industry , and the other will institute changes in the interpretation of the Migratory Bird Treaty Act , pushed by the oil and gas industry , that “ will result in the deaths of many birds , ” according to Noah Greenwald , endangered species director at the Center for Biological Diversity .
The Trump administration has already been “ devastating for endangered species , ” according to Greenwald .
“ It ’ s been @ @ @ @ @ @ @ a time when we don ’ t have four years , ” he said .
“ While scientists around the world have been raising alarms about the extinction crisis , they ’ re rushing to finalize these rules.
” The Center for Biological Diversity is just one of the environmental organizations that have been using the courts to challenge the Trump rollbacks .
Overwhelmingly , these suits have succeeded .
Only 12 out of 81 lawsuits related to environment , energy , and natural resources deregulation were decided in the Trump administration ’ @ @ @ @ @ @ @ according to the Institute of Policy Integrity at New York University School of Law .
If Trump loses the election , a Democratic administration could fairly easily resolve many of the suits that are still pending .
“ Biden could quickly signal that he won ’ t defend Trump rollbacks in court , ” said William Buzbee , a professor of law at Georgetown University Law Center .
“ Administrative law is flexible and always gives a future president the ability to reverse the damage of his predecessor.
” A Biden administration could @ @ @ @ @ @ @ s withdrawal from the Paris climate agreement — a move that won ’ t be finalized until a day after the election and will take a new president 30 days to reenter .
Depending on the date of the rollback , if Biden is elected and there is also a Democratic majority in both the House and Senate , some of the changes could be reversed through a law called the Congressional Review Act .
But other damage inflicted by the Trump administration on environmental protections will take longer to reverse .
Some @ @ @ @ @ @ @ rule-making to change .
And there will be no way to revive the Clean Power Plan .
“ It is pretty close to dead , ” Thomas McGarity , professor at the University of Texas at Austin School of Law , said of the centerpiece of the Obama administration ’ s climate initiative .
“ If the next administration wants to do something on climate change and they try to do it administratively they ’ re going to have to start over.
” Some of the harm that Trump has inflicted by disputing @ @ @ @ @ @ @ needed climate protections is irreparable .
“ It will be impossible make up for the four years spent ignoring and worsening the climate crisis , ” said Buzbee .
“ The amount of additional CO2 and methane in the atmosphere will linger for decades if not centuries .
That loading into the Earth ’ s atmosphere can not be recovered and that time can not be recovered.
” The climate reversals have irrevocably undercut the international effort to address the most pressing issue of our time .
“ Climate change is in the @ @ @ @ @ @ @ Buzbee .
“ Nations constraining their own polluters have to trust that others will step up and also do their part .
But by stepping back , the U.S. has lost credibility.
” Buzbee , who judges Trump as already “ the worst president for the environment in U.S history , ” predicts that the environmental impact of a second Trump term would be immeasurably more destructive .
“ They ’ d have the time to finish and defend all the first-term rollbacks , ” he said .
“ I ’ m not @ @ @ @ @ @ @ statutes could withstand the onslaught.
” While the administration is racing to complete its rollbacks , the Sunrise Movement has sent its members door-to-door to convey the stakes of the election to voters .
“ Our movement is talking to hundreds of thousands of young people in swing states across the country to communicate the opportunity we have to organize and mobilize under a Biden admin , ” said Stephen O ’ Hanlon , a co-founder of the Sunrise Movement .
“ Biden wasn ’ t the first choice of many young people @ @ @ @ @ @ @ ” Activist and writer Bill McKibben has put a finer point on the environmental consequences of unseating Trump .
“ This is going to be the most important election for the next few million years , ” McKibben tweeted on Tuesday , sending out a video of the president once again denying climate science even while being briefed on the fires that have killed dozens of people and destroyed millions of acres of land .
EPA Spokesperson James Hewitt provided the following comment in response to an inquiry from The Intercept : This @ @ @ @ @ @ @ isn ’ t rooted in fact .
Under this EPA , air pollution in this country has fallen 7 percent , we ’ ve delisted 61 Superfund sites , invested $ 40 billion in water infrastructure , collected more in criminal and civil penalties than the Obama Administration did in their first term , and are finalizing a final Lead & Copper rule .
All regulatory decisions are grounded in science and our legal statutes unlike the last administration .
Environmental experts took issue with all of the claims in the EPA ’ @ @ @ @ @ @ @ pollution reductions , Elena Craft , senior director of climate and health at the Environmental Defense Fund , said she was unclear of any measure by which air pollution has fallen by 7 percent and added that “ I can ’ t think of a single action that this administration has done that would result in a reduction of emissions.
” While the EPA has delisted many Superfund sites , it also has the largest backlog of unfunded construction projects at Superfund sites in 15 years .
According to Betsy Southerland , who @ @ @ @ @ @ @ the EPA , the agency is trying to take credit for work done under previous administrations .
“ Delisting is just a paperwork exercise documenting that a project was completed in previous years , ” she said .
“ This administration has the worst record of any previous in terms of the number of projects that were ready for construction that they did not fund .
Rather than request the funding needed for these sites , they actually asked for cuts in the Superfund budget every year.
” Southerland also said that the @ @ @ @ @ @ @ and copper rule was disingenuous : “ The proposed lead rule did not lower the concentration that would trigger lead pipe replacement .
And they slowed the required rate of replacing lead pipes.
” As for the penalties , EPA ’ s own data shows that in fiscal 2019 , the agency conducted the smallest number of inspections of polluters in at least 18 years , with about half the number of inspections conducted a decade earlier .
A 2019 report from The Environmental Integrity Project documents these trends and shows that the @ @ @ @ @ @ @ polluters charged fell sharply under Trump .

As wildfires destroy millions of acres in California, Oregon, and Washington, and an unprecedented series of hurricanes cause historic flooding in the South, leaving parts of the region uninhabitable, the Trump administration has been racing to reverse rules designed to prevent exactly these kinds of climate disasters.
Throughout his presidency, Donald Trump has presided over the rollback of more environmental rules and regulations than any other president. The result has been that, even as climate change is on track to soon force millions of Americans from their homes and eventually heat the Earth to temperatures not seen for 34 million years, the leader of the country that bears more responsibility for the climate change than any other has doubled down on the decimation of efforts meant to combat both pollution and the climate crisis.
“The Trump administration is the first in the history of the agency to devote itself so relentlessly to a rollback agenda without even a pretense of meaningfully reducing environmental pollution,” said John Walke, an attorney and senior adviser to the NRDC Action Fund.
Starting with his choice of Scott Pruitt, a climate denier whose rise through Oklahoma politics was fueled by the oil and gas industry, to lead the Environmental Protection Agency, Trump has has signaled his disregard for the climate and public health throughout his time in office. While Trump has called climate change a “Chinese hoax” and a “con,” federal agencies under him have taken countless actions — from the removal of information about climate change on the EPA website to the decision to withdraw from the Paris climate agreement; the retooling of models used by the U.S. Geological Survey; and the cancellation of NASA’s carbon monitoring program — that set back the effort to address the climate crisis, and ultimately endanger the environment.
In recent months, the pace of these assaults has quickened. The frenzied efforts of federal agencies during the last months before a presidential election are often referred to as “midnight regulation.” But the work the Trump administration has recently been hurrying to complete would be more accurately described as “midnight deregulation.”
Photo: Maren Hennemuth/Picture Alliance/Getty Images
Protections Obliterated
As soon as he entered office, Trump began the environmental reversals that will likely be the most enduring legacy of his administration. In March 2017, the Environmental Protection Agency signaled that it would not complete the planned ban of a neurotoxic pesticide called chlorpyrifos. The decision came after consulting closely with industry groups and after the Dow Chemical Company, which makes the pesticide, donated $1 million to the Trump inaugural committee. The Trump EPA has since completed dozens of other environmental rollbacks, including gutting the Clean Water Act; weakening restrictions on facilities that emit toxic air pollution; scrapping a rule that required mining companies to set aside money to cover the costs of cleaning up pollution; rewriting the National Environmental Policy Act so that it no longer requires government to consider the cumulative environmental impacts of major federal projects on communities; and ensuring that the coal industry is now able to dump mining waste in streams.
Among the recently finalized actions that will have devastating and long-lasting climate consequences are the rescinding of limits on methane emissions during oil and gas production and processing. Methane is a climate pollutant that traps over 80 times more heat than carbon dioxide in a 20-year period, and the U.S. is already releasing way too much of it. The rollback of methane rules, which was finalized in August — and opposed by many of the major oil companies that will be affected by it — is specifically designed to ignore climate considerations and is expected to increase the amount of the greenhouse gas released each year by 4.5 million metric tons. The additional pollution released will have the same impact as 100 coal-fired power plants each year, according to the Environmental Defense Fund, which is suing the administration over the rule.
Read our Complete Coverage Climate Crimes
The EPA’s weakening of fuel economy standards for cars and light trucks, which was finalized in March while most people were focused on the coronavirus pandemic, will also speed climate change and lead to more catastrophic weather events and wildfires. The change, which reduces fuel efficiency for these vehicles by 27 percent, is expected to result in at least 867 million metric tons of additional carbon dioxide pollution, the equivalent of the annual emissions from 216 coal plants.
The EPA has also reversed its policy of requiring businesses to inspect for leaks from refrigerators and air conditioners. The revision to the regulations, which was finalized in February, affects the release of hydrofluorocarbons, chemicals that can cause hundreds of times more warming than carbon dioxide and often leak from cooling equipment. According to the agency’s own science, the new rule will result in an increase of greenhouse gas emissions that has the same warming potential as 2.9 million metric tons of carbon dioxide each year.
Meanwhile, the Department of Interior finalized its plan to open up Alaska’s Arctic National Wildlife Refuge to oil drilling, a move that environmentalists expect to not only be devastating to the 700 species of plants and animals that live there but also greatly increase carbon emissions. In 2018, the Federal Energy Regulatory Commission limited its consideration of greenhouse gas emissions from natural gas projects. And, through an executive order, Trump weakened regulations that were put in place to mitigate flooding from sea-level rise.
Perhaps most devastating is the loss of the Clean Power Plan. That Obama-era plan was designed to reduce climate pollution by more than 400 million tons by 2030. Instead, Trump replaced it with the far weaker Affordable Clean Energy Rule in 2019.
An abandoned home stands near the Longview Power Plant, a coal-fired plant, in Maidsville, W.Va., on Aug. 21, 2018. Photo: Spencer Platt/Getty Images
Deadly Consequences
In many cases, this deregulation will have a measurable human toll. Changes to the Mercury and Air Toxics Standards, which the EPA made in April, undermined limits on mercury and other toxic air pollution coming from coal-fired power plants that were put in place in 2011. Those regulations had prevented between 4,000 and 11,000 premature deaths each year, according to the agency’s own calculations. But under Trump, the EPA has decided that it is no longer necessary to regulate this pollutant, which causes brain damage in developing fetuses and increases heart attacks in adults.
If it stands, the methane rollback, which is being challenged by environmentalists, will also result in illness and death. In addition to hastening climate change, methane turns into ozone, which causes chronic diseases, including respiratory damage, cancer, asthma, and heart disease. Fence-line communities, which are disproportionately made up of people of color, including the more than 1 million African Americans who live within a half-mile of an oil and gas facility, will be among the hardest hit by the pollution. And the replacement of the Clean Power Plan is expected to lead to thousands of deaths.
With less than seven weeks until the election, and the wildfires and flooding continuing to spread along with the recognition that they are part of a larger climate apocalypse, the Trump administration is still scrambling to finish the deadly destruction of some of the rules and processes that were put in place to protect human health.
Among other hugely consequential rules still hanging in the balance are the standards for particulate matter and ozone, both of which stem from power plants. Since 1977, the law has required that a Clean Air Scientific Advisory Committee, or CASAC, made up of independent scientists help set the standards. While the committee still exists, the Trump EPA has gutted it, removing many of the independent scientists from it and all of the epidemiologists, and instead stacked it with industry-friendly experts. CASAC is now headed by Louis Anthony “Tony” Cox Jr., an industry consultant who disputes well-established science showing that particulate matter kills by increasing rates of heart and lung disease. He has worked for Exxon Mobil, the American Chemistry Council, and the American Petroleum Institute.
EPA administrator Andrew Wheeler fired a panel of scientists that historically advised CASAC on particulate matter — which includes dust, dirt, soot, and smoke — and dispensed with a panel of ozone experts in what he claimed was an effort to “streamline” the standard-setting process. The result is that the EPA is now trying to finalize the current standards for both particulate matter and ozone, which independent scientists say are not protective of health. Although weather affects ozone levels, the proposed standard doesn’t consider the effects of climate change.
Maintaining the standards for the air pollutants, both of which result from power plant emissions, is a “sop to the oil and gas industry” that will prove deadly, according to Bernie Goldstein, a physician who served as chair of CASAC and a Reagan-appointed EPA assistant administrator who is now a member of the Environmental Protection Network. Already more than 100,000 people in the U.S. die because of air pollution, including particulate matter and ozone. “More people will die because the pollutant standards aren’t high enough,” said Goldstein.
Goldstein is particularly concerned about the increased vulnerability to these air pollutants during the coronavirus pandemic — something the EPA did not factor into its standard-setting process, even though it issued its proposal after the pandemic began. “The idea that something that violently attacks the heart and lungs the way Covid-19 does will interact with air pollutants that also attack the heart and lungs is a no-brainer,” he said.
Photo: David Howells/Corbis/Getty Images
Trump is working with the Agriculture Secretary Sonny Perdue to expand logging in Alaska’s Tongass National Forest, removing decades-old protections from the 10 million acres that absorb more carbon than any other national forest. And the administration is attempting, through the Department of the Interior, to fast-track the environmental reviews of oil and gas drilling projects, including the Mountain Valley natural gas pipeline and a natural gas terminal in Oregon.
Also among the unfinished business at EPA is the rollback of 2015 protections that protect farm workers and agricultural communities from pesticide exposure. If the Trump administration succeeds with its change, farm workers — who are overwhelmingly Latino and already dozens of times more likely to be poisoned by pesticides than non-farm workers — will face even greater exposure.
And the EPA is taking the last steps to finalize its “Strengthening Transparency in Regulatory Science” rule, which would limit the use of independent science in the agency’s decision-making by employing a strategy first devised by tobacco companies. The proposal was sent to the White House regulatory review office earlier this week, and Wheeler said he hopes to finalize it by the end of the year.
Meanwhile, the administration is still at work on two proposed rules affecting the Endangered Species Act: One will open up designation of critical habitat to challenges by industry, and the other will institute changes in the interpretation of the Migratory Bird Treaty Act, pushed by the oil and gas industry, that “will result in the deaths of many birds,” according to Noah Greenwald, endangered species director at the Center for Biological Diversity.
The Trump administration has already been “devastating for endangered species,” according to Greenwald. “It’s been a terrible waste of four years at a time when we don’t have four years,” he said. “While scientists around the world have been raising alarms about the extinction crisis, they’re rushing to finalize these rules.”
A melted pro-Trump sign remains at a burned residence during the Bear fire, in the Berry Creek area of unincorporated Butte County, Calif., on Sept. 14, 2020. Photo: Josh Edelson/AFP/Getty Images
Reversing the Damage
The Center for Biological Diversity is just one of the environmental organizations that have been using the courts to challenge the Trump rollbacks. Overwhelmingly, these suits have succeeded. Only 12 out of 81 lawsuits related to environment, energy, and natural resources deregulation were decided in the Trump administration’s favor as of August 31, according to the Institute of Policy Integrity at New York University School of Law.
If Trump loses the election, a Democratic administration could fairly easily resolve many of the suits that are still pending. “Biden could quickly signal that he won’t defend Trump rollbacks in court,” said William Buzbee, a professor of law at Georgetown University Law Center. “Administrative law is flexible and always gives a future president the ability to reverse the damage of his predecessor.” A Biden administration could also simply reverse the Trump administration’s withdrawal from the Paris climate agreement — a move that won’t be finalized until a day after the election and will take a new president 30 days to reenter.
Depending on the date of the rollback, if Biden is elected and there is also a Democratic majority in both the House and Senate, some of the changes could be reversed through a law called the Congressional Review Act.
But other damage inflicted by the Trump administration on environmental protections will take longer to reverse. Some finalized rules will require years of formal rule-making to change. And there will be no way to revive the Clean Power Plan. “It is pretty close to dead,” Thomas McGarity, professor at the University of Texas at Austin School of Law, said of the centerpiece of the Obama administration’s climate initiative. “If the next administration wants to do something on climate change and they try to do it administratively they’re going to have to start over.”
Some of the harm that Trump has inflicted by disputing established climate science and rolling back desperately needed climate protections is irreparable. “It will be impossible make up for the four years spent ignoring and worsening the climate crisis,” said Buzbee. “The amount of additional CO2 and methane in the atmosphere will linger for decades if not centuries. That loading into the Earth’s atmosphere cannot be recovered and that time cannot be recovered.”
The climate reversals have irrevocably undercut the international effort to address the most pressing issue of our time. “Climate change is in the end a trust game,” said Buzbee. “Nations constraining their own polluters have to trust that others will step up and also do their part. But by stepping back, the U.S. has lost credibility.”
Buzbee, who judges Trump as already “the worst president for the environment in U.S history,” predicts that the environmental impact of a second Trump term would be immeasurably more destructive. “They’d have the time to finish and defend all the first-term rollbacks,” he said. “I’m not sure the EPA and the major environmental statutes could withstand the onslaught.”
While the administration is racing to complete its rollbacks, the Sunrise Movement has sent its members door-to-door to convey the stakes of the election to voters. “Our movement is talking to hundreds of thousands of young people in swing states across the country to communicate the opportunity we have to organize and mobilize under a Biden admin,” said Stephen O’Hanlon, a co-founder of the Sunrise Movement. “Biden wasn’t the first choice of many young people, but he is the clear choice.”
Activist and writer Bill McKibben has put a finer point on the environmental consequences of unseating Trump. “This is going to be the most important election for the next few million years,” McKibben tweeted on Tuesday, sending out a video of the president once again denying climate science even while being briefed on the fires that have killed dozens of people and destroyed millions of acres of land.
EPA Spokesperson James Hewitt provided the following comment in response to an inquiry from The Intercept:
This story is pushing a false narrative that isn’t rooted in fact. Under this EPA, air pollution in this country has fallen 7 percent, we’ve delisted 61 Superfund sites, invested $40 billion in water infrastructure, collected more in criminal and civil penalties than the Obama Administration did in their first term, and are finalizing a final Lead & Copper rule. All regulatory decisions are grounded in science and our legal statutes unlike the last administration.
Environmental experts took issue with all of the claims in the EPA’s response. Asked about the air pollution reductions, Elena Craft, senior director of climate and health at the Environmental Defense Fund, said she was unclear of any measure by which air pollution has fallen by 7 percent and added that “I can’t think of a single action that this administration has done that would result in a reduction of emissions.”
While the EPA has delisted many Superfund sites, it also has the largest backlog of unfunded construction projects at Superfund sites in 15 years. According to Betsy Southerland, who retired after 30 years of working for the EPA, the agency is trying to take credit for work done under previous administrations. “Delisting is just a paperwork exercise documenting that a project was completed in previous years,” she said. “This administration has the worst record of any previous in terms of the number of projects that were ready for construction that they did not fund. Rather than request the funding needed for these sites, they actually asked for cuts in the Superfund budget every year.”
Southerland also said that the agency’s touting of the lead and copper rule was disingenuous: “The proposed lead rule did not lower the concentration that would trigger lead pipe replacement. And they slowed the required rate of replacing lead pipes.”
As for the penalties, EPA’s own data shows that in fiscal 2019, the agency conducted the smallest number of inspections of polluters in at least 18 years, with about half the number of inspections conducted a decade earlier. A 2019 report from The Environmental Integrity Project documents these trends and shows that the number of criminal environmental cases opened and polluters charged fell sharply under Trump.


theintercept--2020-09-20--Trump Prepares to Execute Christopher Vialva for a Crime He Committed as a Teenager

visiting federal death row for the first time when she caught a glimpse of a man she ’ d seen only on the news .
He was pale and recognizably ex-military , with a basic training buzzcut .
It was Timothy McVeigh .
“ Oh my God , he ’ s real .
That was the first thing that came to my mind , ” she said .
Until that moment , the man known as the Oklahoma City bomber was a kind of monstrous abstraction ; a persona whose crimes were too overwhelming to absorb .
But at that @ @ @ @ @ @ @ room with his attorneys as Brown walked toward the restroom , he looked like any other man in a prison jumpsuit .
“ I remember that was just really shocking to me.
” Brown was at the federal penitentiary in Terre Haute , Indiana , to see her son Christopher Vialva .
He had only recently arrived on death row .
In June 1999 , just over a month after his 19th birthday , Vialva and a group of younger teenagers had carjacked and killed a young married couple in Fort Hood , @ @ @ @ @ @ @ car on fire .
Vialva ’ s co-defendant , Brendan Bernard , was 18 at the time .
He too was sentenced to die .
Vialva and Bernard were the first people to get a federal death sentence in the Western District of Texas .
It was six years after Bill Clinton ’ s 1994 crime bill expanded the federal death penalty , and new death sentences were climbing .
Although all the cases involved coldblooded killings , they were not the kinds of terrorist acts or mass murders that Americans might have @ @ @ @ @ @ @ of the condemned were strikingly young .
Vialva told his mother that one man had spotted him in the recreation yard in Terre Haute and shaken his head .
“ Damn , man , ” he said .
“ They ’ re putting babies in here.
” The executions in Terre Haute stopped after Jones ’ s death .
Although capital prosecutions continued under the Obama administration — and his DOJ tried to set at least one execution date in 2010 — drug shortages and lethal injection litigation kept the killings on hold @ @ @ @ @ @ @ won the White House in 2016 , the writing was on the wall .
Executions would surely restart .
It was only a question of when .
Last year , U.S. Attorney General William Barr announced the first federal execution dates in 16 years .
All of the men had been convicted of crimes against children and the elderly , which Barr emphasized in his announcement .
“ And so I ’ m like , OK , they ’ re going through all the child murderers first .
Right ?
” Brown said @ @ @ @ @ @ @ for society to swallow.
” She told her son not to worry yet .
“ Little did I know.
” On July 31 , following the executions of Daniel Lewis Lee , Wesley Purkey , and Dustin Honken , Barr announced two new dates .
The first was for William LeCroy on September 22 .
The second was for Vialva .
In an email , Vialva described how he was informed by the Bureau of Prisons .
“ They brought me out of my cell and took me to the Unit Team office @ @ @ @ @ @ @ ” he wrote .
The warden wore a mask .
Vialva could not see his expression .
“ I sat down at the table .
There was a piece of paper in front of me .
The Warden then tells me that I have been scheduled for execution September 24.
” Later Vialva called his mother to tell her the news .
“ I spent the rest of the night thinking about my mother ’ s heart breaking , and what this was going to do to her.
” That same day , @ @ @ @ @ @ @ death watch range .
Two other men were already there : Lezmond Mitchell and Keith Nelson , who would die in August , two days apart .
In letters and emails to a friend , Vialva described the grim atmosphere that week .
Mitchell did not speak to anyone , he said .
But “ Nelson did a lot of talking his last 2 days .
… It was like he feared the silence , ” he wrote .
“ It was hard to listen to him go back & forth in his @ @ @ @ @ @ @ where he just wanted it to all be over.
” At one point , news broke that Nelson ’ s lawyers had won a stay of execution , which angered Nelson .
“ I know that may sound strange , but a stay is not always good news when you are preparing your mind for dying , ” Vialva explained .
“ We all know the stays won ’ t last .
All they will do is prolong an already stressed and agonizing situation.
” Before he was taken to die on August @ @ @ @ @ @ @ his affairs in order .
“ He told me I am a ‘ good dude ’ and he hates that I must follow him , ” Vialva wrote .
But his last memory of Nelson was disturbing .
“ Right before they grabbed Nelson for the death house he vomited violently.
” Shortly afterward , “ they chained and shackled him and led him away .
As he walked by he just said ‘ A ’ ight Will , a ’ ight Chris.
’ I saw redness in his eyes from all the @ @ @ @ @ @ @ same story .
“ Christopher said it was ‘ horrific , ’ ” Brown said .
“ And that ’ s a word my son doesn ’ t use very often.
” On September 24 , Vialva is set to be the seventh person executed in the federal death chamber this year .
He is the first Black man in line to die under Trump .
In a year that has seen historic nationwide protests targeting police violence against Black people , racism has gone largely undiscussed in the context of the federal @ @ @ @ @ @ @ Penalty Information Center released a major study reminding Americans that racism is inextricable from capital punishment , tracing its roots to slavery and lynching .
Although Lezmond Mitchell , the only person of color among the five men executed so far , was tried before a nearly all-white jury , his lawyers were barred from investigating the role that racial bias might have played during deliberations .
On the eve of Mitchell ’ s execution , one of his previous lawyers decried the racism at the heart of his case .
Vialva was @ @ @ @ @ @ @ .
But Brown , who is white , bristles at the emphasis on her son being the first Black man facing execution under Trump .
She stresses what his lawyer , advocates , and friends on death row have also said : that Vialva is simply not the same person he was at 19 .
He is a loving son and brother , a voracious reader , and a positive influence on his neighbors in Terre Haute .
After converting to Messianic Judaism , his mother ’ s faith , he has spent @ @ @ @ @ @ @ .
“ His mere presence stabilizes environments , ” one man recently wrote .
“ On the range where we are confined , fellow inmates rely on him for stimulating conversation , to relieve the boredom of our solitary confinement.
” Vialva is also known for his crocheting .
After a couple at Brown ’ s congregation in Texas had a baby , she said , “ He literally bartered with the other inmates to get the yarn to make blankets.
” The issue of Vialva ’ s race is also fraught for @ @ @ @ @ @ @ .
Although he has identified as Black since he was young , Brown feels like it erases part of who he is .
But as Vialva ’ s lawyers have emphasized aspects of his background that could have compelled jurors to spare his life — including childhood trauma , evidence of organic brain damage , and suicidal ideation beginning when he was 11 years old — Brown has also had to confront her own family ’ s scarring bigotry .
After the American Civil Liberties Union sent out a press release about the @ @ @ @ @ @ @ as including “ avowed white supremacists ” — a description she firmly rejected — Vialva ’ s attorney relayed a childhood memory that Brown had never heard .
At Brown ’ s wedding to her ex-husband , she said , Vialva had spotted a relative with an Aryan Brotherhood tattoo on his hand .
The man was not a close family member , Brown explained , and he had been in and out of prison .
“ There ’ s a lot of — what do you call it ?
— prejudice , @ @ @ @ @ @ @ she said .
“ But I don ’ t have no sheet-wearing relatives.
” Vialva was born in May 1980 .
His father was a soldier from Trinidad , who Brown met at Fort Benning , Georgia , and married at 19 .
Case records show that he was eventually court-martialed — and that in their brief time living together , he was violent and abusive toward Brown .
In an allegation Vialva ’ s father called a “ pathological lie ” in a 2004 declaration , Brown accused him of biting their @ @ @ @ @ @ @ She left him shortly afterward .
Although Brown says she was trying to protect Vialva from his dad , her own father compounded the trauma .
“ My father disowned me when he found out that I married Chris ’ s dad , ” she said .
“ I have one photo of my dad holding my son .
Other than that one time , he has never touched my son .
Barely even acknowledged he was alive.
” After that , Brown had relationships with men who were abusive and rejected Vialva @ @ @ @ @ @ @ “ He asked me one time , ‘ Why haven ’ t you ever dated Black men again ?
’ And I said , ‘ I don ’ t know , somebody shut off that switch.
’ ” Vialva ’ s longtime attorney , Susan Otto , met him in 2003 .
He was a “ work in progress , ” she said .
Like many who arrive in prison at a young age , he was angry and bitter .
Over the years , she came to understand how deeply he had @ @ @ @ @ @ @ confusion over his racial identity .
In high school , where he found friends who looked like him , he was often disciplined for being disruptive in school but was not known to be violent .
In declarations to his attorneys , classmates and friends said they were shocked when they heard about his crime .
On September 10 , Otto delivered a presentation to the Department of Justice ’ s Office of the Pardon Attorney .
Prosecutors in the office make a recommendation to the deputy attorney general , who then decides @ @ @ @ @ @ @ the president .
In ordinary times , Otto said , “ You ’ re offered the opportunity to come to Washington and make a personal presentation to the internal committee of the DOJ .
But because no one is in the building , we did it virtually.
” As the longtime public defender of the Western District of Oklahoma , Otto saw the evolution of the federal death penalty up close .
It was a bipartisan project , driven in part by high-profile crimes .
She remembers the murder that inspired Congress to @ @ @ @ @ @ @ renowned research chemist named Pam Basu had been brutally attacked by two young Black men — one was 16 — while driving her daughter to her first day of preschool in Maryland .
“ She got tangled up in the seat belt and ended up being dragged to death , ” Otto recalled .
“ And there was a huge outcry about carjacking and deaths associated with carjacking and how violent it was.
” Otto recalled how the death of basketball star Len Bias in 1986 had been weaponized to help launch the @ @ @ @ @ @ @ long afterward that Ronald Reagan revived the federal death penalty through a law that came to be known as the Drug Kingpin Act .
“ I think what people forget is that it all started with the Drug Kingpin prosecutions , ” Otto said .
“ We were going to put a stop to violent street crime.
” After Basu ’ s grisly murder made international headlines , Otto thought , “ OK , here it comes.
” In 1992 , the Anti-Car Theft Act made carjacking a federal crime .
Two years @ @ @ @ @ @ @ made it eligible for the death penalty .
But as Vialva has told Otto , “ Pablo Escobar isn ’ t anywhere around ” on federal death row .
“ To the extent that you started all of this thinking that you were going to chop off the head of the snake , and it was going to end drugs in America , it failed miserably , ” she said .
“ What you ended up with was a bunch of people of color , mostly African Americans , who were in what @ @ @ @ @ @ @ distributed drugs.
” Today , there are 57 people on federal death row .
Twenty-six are Black .
Seven are Latino .
None of them are there for treason , espionage , or terrorism .
And all of them could have been prosecuted in state court for their crimes .
Among those who have been executed so far , some , like Lezmond Mitchell , whose death sentence also hinged on federal carjacking charges , were sentenced to die only after the Department of Justice insisted on seeking death despite opposition from victims @ @ @ @ @ @ @ attorneys .
Despite the wide assumption that the federal death penalty is the “ gold standard ” for capital cases , in reality , these defendants often encounter the same poor lawyering and misconduct found in state trials — yet with the benefit of even less judicial scrutiny after the fact .
State death penalty convictions are subject to review , first at the state level and then by the federal courts .
But federal convictions only get the latter .
Although people on federal death row are in theory entitled to evidentiary @ @ @ @ @ @ @ were convicted — a chance to present evidence of ineffective assistance of counsel or other proof that a trial was unfair — district court judges have routinely denied such hearings .
Vialva ’ s case is a perfect example .
His trial records reveal myriad problems , from ineffective assistance of counsel to an expert who assessed his future dangerousness using junk science .
But these issues have never been heard in court .
The same judge who presided over his trial has rejected motions for an evidentiary hearing , decisions upheld by @ @ @ @ @ @ @ “ I spent 17 years in this case and never once stood up in a courtroom — either a district courtroom or an appellate courtroom — arguing on behalf of Christopher Vialva , ” Otto said .
“ And that has never happened to me in my career , ever.
” The murders that sent Vialva to die were undeniably cruel .
On the evening of June 21 , 1999 , a car was reported on fire in the Belton Lake Recreation Area on the grounds of Fort Hood , a large military @ @ @ @ @ @ @ and law enforcement found two burned bodies in the trunk of the vehicle .
They belonged to a 28-year-old woman named Stacie Bagley and her 26-year-old husband , Todd .
A group of Black youths was arrested shortly afterward .
Investigators quickly elicited incriminating statements .
The younger teens , who were between the ages of 15 and 17 , said Vialva had convinced them to target a random stranger by asking them for a ride , then robbing them of their money and belongings .
After one of the boys approached Todd @ @ @ @ @ @ @ a convenience store , three others got in their car with Stacie .
They led the couple to a remote location , then Vialva told them that “ plans have changed.
” They forced the Bagleys at gunpoint to get into the trunk .
After driving to collect money from different ATMs , Vialva reportedly said that the couple had seen too much .
He shot them both in the head .
The facts of the crime were galvanizing to those who were committed to narratives of Black criminality .
A year earlier @ @ @ @ @ @ @ been dragged to death in a murder so shocking and racist it would inspire federal hate crime legislation .
In a letter to federal prosecutors , white supremacist David Duke demanded that the Bagleys ’ murder be prosecuted as a hate crime .
“ This horrible interracial crime has gone completely unmentioned by the national media and is yet another example of the media ’ s bias against reporting Black on White crime , ” Duke wrote .
In fact , the case got considerable publicity , both in Texas and Iowa , @ @ @ @ @ @ @ front-page story in the Des Moines Register described how the Bagleys had been visiting Texas on vacation while also attending religious revivals in the area .
The two were youth ministers and devout Christians ; one relative told the newspaper that the couple read scripture to their attackers before being shot .
Another story described their life as devoted to their faith and to each other .
“ Their walls were mostly bare , except for a picture of Jesus.
” Vialva and Bernard were tried together less than a year later , @ @ @ @ @ @ @ Representing Vialva was Dwight Goains , who had gone to law school as a second career , after operating a business peddling medical supplies to surgeons outside Houston .
Within his first five years of practice , Goains developed a reputation for representing the “ baddest of the bad , ” according to a 1992 profile .
“ I want the difficult cases , ” Goains boasted .
“ To me they are a lot more challenging , and I enjoy the trial work.
” At least one client had already been sentenced @ @ @ @ @ @ @ .
Another would be sent to death row the following year .
Goains was assigned to accompany a less experienced lawyer , Stan Schwieger .
But in reality , neither was equipped to handle the trial .
In an affidavit submitted as part of Vialva ’ s appeals in 2004 , veteran death penalty lawyer Richard Burr of the Federal Death Penalty Resource Counsel explained that , under federal law , the district court was supposed to consider the recommendation of the local Federal Public Defender prior to assigning a lawyer .
But @ @ @ @ @ @ @ contacted that office .
Although Schwieger did reach out to Burr for assistance in July 1999 , by then it was too late for advice on qualified legal counsel — he and Goains had already been appointed to the case .
In a meeting in August 1999 , Burr wrote , “ I was struck by Mr. Goains ’ s apparent hostility to investigating and developing mitigation evidence.
” Although Schwieger appeared to grasp the importance of doing a psychosocial history and investigation into reports that Vialva had mental disorders and brain dysfunction @ @ @ @ @ @ @ resisted it.
” He appeared to consider it a distraction from the guilt phase .
“ By the end of the meeting , I felt like I had been trying to persuade a hostile decision-maker to pursue a course of action he had already ruled out , ” Burr wrote .
But perhaps most egregious is the fact that , at the time Vialva ’ s lawyers were supposed to be preparing for trial , Goains was actively seeking employment with the same U.S. Attorney ’ s Office that was trying to send @ @ @ @ @ @ @ wrote an email to Vialva ’ s mother just weeks before the trial telling her that Goains had “ become a front runner ” for a position in the Waco field office , while reassuring her that it had not impacted their work .
“ Dwight spoke personally with Chris about this yesterday , ” Schwieger said , “ and Chris wanted Dwight to stay on board.
” In fact , according to the former chair of the American Bar Association ’ s Standing Committee on Ethics and Professional Responsibility , who provided @ @ @ @ @ @ @ was a profound ethical breach as well as a conflict of interest .
Even if Vialva did not fully understand his rights on this matter , the trial judge should have recognized this red flag .
Nevertheless , in a hearing just three days before trial , U.S. District Judge Walter Smith elicited a waiver from Vialva that allowed the trial to proceed .
Goains presented no witnesses on Vialva ’ s behalf during the first part of the trial .
Nor did he or Schwieger cross-examine government witnesses to point out critical @ @ @ @ @ @ @ , such as the lack of forensic evidence linking Vialva to the crime .
The evidence against Vialva rested primarily on the testimony of two of the other teenagers , who had cooperated in order to save themselves .
The jury swiftly found him guilty .
During the sentencing phase , when Vialva ’ s lawyers were supposed to convince jurors to spare his life , their own expert instead cast him as dangerous , testifying that he would not share a cell with him .
This compounded testimony from the state ’ @ @ @ @ @ @ @ , who said it was his expert opinion that Vialva was a man without a conscience .
In 2010 , the Texas Court of Criminal Appeals would find that Coons should not have been permitted to testify in a different case because his expert opinions were neither scientifically valid nor reliable .
Goains went to work for the U.S. Attorney ’ s Office after the trial .
In 2007 Smith appointed him as a federal magistrate judge for the Western District of Texas .
Despite the obligation of capital defense attorneys to preserve @ @ @ @ @ @ @ that they may be used by appellate attorneys , Goains never provided his files to Vialva ’ s legal team .
When Otto went to see him at his office in Alpine , Texas , shortly after being appointed to the case , he told her he did not know what had happened to them .
Smith quietly retired from the bench in 2016 after facing an investigation by the U.S .
Judicial Conference into allegations of sexual misconduct .
Smith had been recently reprimanded for making sexual advances toward a clerk in @ @ @ @ @ @ @ accused Smith of smelling like alcohol at the time ; the investigation would reveal evidence that Smith had a drinking problem for years .
In Otto ’ s view , these revelations recast Smith ’ s handling of Vialva ’ s trial and appeals .
When she was assigned to the case in 2003 , she said , it took more than a month for Smith to approve her appointment — a significant delay , since it cut into the one year she had to file Vialva ’ s federal habeas petition .
@ @ @ @ @ @ @ supplemented it following the Supreme Court ’ s landmark 2005 decision striking down the death penalty for crimes committed by juveniles — Smith sat on the petition for years .
In 2012 , he denied everything .
Smith did not respond to emails about the case .
Neither did Goains or Schwieger .
In a phone call , the jury foreman , Calvin Kruger , who is now 76 , remembered being unimpressed with the defense attorneys .
Above all , he was deeply disturbed by the crime and Vialva ’ s apparent @ @ @ @ @ @ @ pure torture what he did to those two people , ” he said .
Jurors had been told that Stacie Bagley was still alive after being shot in the face and died of smoke inhalation .
A few years ago , Kruger said , he was asked by legal advocates if he would consider supporting a call to reduce Vialva ’ s sentence to life without parole .
He refused .
Still , “ it was not an easy decision , ” he said .
Nor was it easy to sign his name @ @ @ @ @ @ @ still think about it sometimes.
” Kruger was unaware of the five executions in Terre Haute earlier this year .
When I began to tell him about the cases as compared to Vialva ’ s , he interrupted with a question that reflected many people ’ s assumptions : “ Terrorists ?
” he asked .
In fact , until recently , the sole person under a federal death sentence for terror charges was Dzhokhar Tsarnaev , whose death sentence was vacated this summer .
I asked Kruger what he remembered about the @ @ @ @ @ @ @ and his co-defendant to death row .
Kruger did not remember any Black jurors , although one Black man did serve on the jury .
But he described the jurors as young and old , with different levels of education .
Did it concern him that the lack of Black jurors meant Vialva did not receive a jury of his peers ?
“ No , ” he said .
“ It had nothing to do ” with their decision .
“ Nothing at all .
And I consider myself a liberal person.
” @ @ @ @ @ @ @ plea as an innocent man , ” he went on .
“ But I am a changed and redeemed man .
I committed a grave wrong when I was a lost kid and took two precious lives from this world .
… Every day I wish I could right this wrong.
” As Vialva ’ s execution date approaches , one of his newest and most fervent supporters is an Indiana lawyer and activist named Ashley Kincaid Eve , who has published their correspondence on her website .
She has also helped compile @ @ @ @ @ @ @ Vialva in prison , some of which have been sent to the Trump administration .
Reading them has been comforting to Brown .
Along with one of the other young men involved in the case , Bernard , Vialva ’ s co-defendant , sent her money to help cover the cost of travel to see her son .
On Friday , she drove from her home in Killeen to Terre Haute , where she plans to witness Vialva ’ s execution .
In one of his most recent letters to Eve , Vialva @ @ @ @ @ @ @ on death row .
“ I keep hearing about the anxiety of the others here , ” he said .
“ They are all waiting in anticipation for new dates to be issued .
Some guys assume they are next .
Some won ’ t talk about it in fear they may speak it into existence.
” He predicted that the prison would move a couple more people to the death watch range before his execution date , giving some sense of relief to those who remained .
“ However once it hits @ @ @ @ @ @ @ will begin again .
Again they will start to wonder : Am I next .
While I don ’ t want anyone else to come over here , I really hope , whoever it is , it is not someone I am close with.
” On Thursday , Vialva sent me another email .
“ I am really on auto pilot now , ” he wrote .
“ I am just running out of emotional gas.
” For weeks he had been filling out forms to prepare for his execution date .
“ @ @ @ @ @ @ @ list .
I had to turn in a last meal request .
I then had to divvy up stuff to give away or throw away .
I had to decide what property I was going to give my mom .
Then there is the process of thinking of how to say goodbye to all my friends and family ; words just won ’ t come .
… I have less than a week now and I am just tired .
”

Lisa Brown was visiting federal death row for the first time when she caught a glimpse of a man she’d seen only on the news. He was pale and recognizably ex-military, with a basic training buzzcut. It was Timothy McVeigh.
“Oh my God, he’s real. That was the first thing that came to my mind,” she said. Until that moment, the man known as the Oklahoma City bomber was a kind of monstrous abstraction; a persona whose crimes were too overwhelming to absorb. But at that moment, seeing him in a visitation room with his attorneys as Brown walked toward the restroom, he looked like any other man in a prison jumpsuit. “I remember that was just really shocking to me.”
Photo: Liliana Segura/The Intercept
Brown was at the federal penitentiary in Terre Haute, Indiana, to see her son Christopher Vialva. He had only recently arrived on death row. In June 1999, just over a month after his 19th birthday, Vialva and a group of younger teenagers had carjacked and killed a young married couple in Fort Hood, Texas, shooting them and setting their car on fire. Vialva’s co-defendant, Brendan Bernard, was 18 at the time. He too was sentenced to die.
Vialva and Bernard were the first people to get a federal death sentence in the Western District of Texas. It was six years after Bill Clinton’s 1994 crime bill expanded the federal death penalty, and new death sentences were climbing. Although all the cases involved coldblooded killings, they were not the kinds of terrorist acts or mass murders that Americans might have associated with federal death row. Several of the condemned were strikingly young. Vialva told his mother that one man had spotted him in the recreation yard in Terre Haute and shaken his head. “Damn, man,” he said. “They’re putting babies in here.”
McVeigh was executed in June 2001. His death left 20 men awaiting execution. Thirteen were Black, including Vialva and Bernard. In a clemency petition for Juan Raul Garza, one of a handful of Latinos on death row, lawyers argued that the federal death penalty showed clear evidence of racial bias. But the U.S. Department of Justice rejected the claim. Garza was executed eight days after McVeigh.
In 2003, on the eve of the Iraq War, a Black man named Louis Jones Jr. became the third person executed by the George W. Bush administration. Brown remembers feeling that it was tragic and unfair. Jones, a former Army Ranger who raped and murdered a white soldier named Tracie McBride, had served in the Gulf War and returned with severe psychological problems. Testimony at his 1996 trial revealed that he had begun drinking heavily and gotten divorced. His ex-wife said he had become “very crazed … panicked … spinning out of control.”
Photo: Matthew Busch for The Intercept
Brown grew up in a military family; she was “an Air Force brat” who enlisted in the Army as soon as she graduated high school. The description of Jones reminded her of one of her exes, a pilot who returned from deployment “so messed up.” “We were promised when we served that they would take care of us for the rest of our life, as far as our medical and stuff,” she said. “And that is the furthest thing from reality.” It was disturbing to her that Jones had been shown no compassion when it came to his mental health issues. “He served his country and they damaged him,” she said.
The executions in Terre Haute stopped after Jones’s death. Although capital prosecutions continued under the Obama administration — and his DOJ tried to set at least one execution date in 2010 — drug shortages and lethal injection litigation kept the killings on hold for years. But after Donald Trump won the White House in 2016, the writing was on the wall. Executions would surely restart. It was only a question of when.
Last year, U.S. Attorney General William Barr announced the first federal execution dates in 16 years. All of the men had been convicted of crimes against children and the elderly, which Barr emphasized in his announcement. “And so I’m like, OK, they’re going through all the child murderers first. Right?” Brown said. “Because that’s easier for society to swallow.” She told her son not to worry yet. “Little did I know.”
On July 31, following the executions of Daniel Lewis Lee, Wesley Purkey, and Dustin Honken, Barr announced two new dates. The first was for William LeCroy on September 22. The second was for Vialva. In an email, Vialva described how he was informed by the Bureau of Prisons. “They brought me out of my cell and took me to the Unit Team office, where the Warden was waiting,” he wrote. The warden wore a mask. Vialva could not see his expression. “I sat down at the table. There was a piece of paper in front of me. The Warden then tells me that I have been scheduled for execution September 24.” Later Vialva called his mother to tell her the news. “I spent the rest of the night thinking about my mother’s heart breaking, and what this was going to do to her.”
“I spent the rest of the night thinking about my mother’s heart breaking, and what this was going to do to her.”
That same day, Vialva and LeCroy were moved to the death watch range. Two other men were already there: Lezmond Mitchell and Keith Nelson, who would die in August, two days apart. In letters and emails to a friend, Vialva described the grim atmosphere that week. Mitchell did not speak to anyone, he said. But “Nelson did a lot of talking his last 2 days. … It was like he feared the silence,” he wrote. “It was hard to listen to him go back & forth in his emotions. It got to the point where he just wanted it to all be over.” At one point, news broke that Nelson’s lawyers had won a stay of execution, which angered Nelson. “I know that may sound strange, but a stay is not always good news when you are preparing your mind for dying,” Vialva explained. “We all know the stays won’t last. All they will do is prolong an already stressed and agonizing situation.”
Before he was taken to die on August 28, Nelson encouraged Vialva to get his affairs in order. “He told me I am a ‘good dude’ and he hates that I must follow him,” Vialva wrote. But his last memory of Nelson was disturbing. “Right before they grabbed Nelson for the death house he vomited violently.” Shortly afterward, “they chained and shackled him and led him away. As he walked by he just said ‘A’ight Will, a’ight Chris.’ I saw redness in his eyes from all the vomiting.”
Vialva told his mother the same story. “Christopher said it was ‘horrific,’” Brown said. “And that’s a word my son doesn’t use very often.”
Lisa Brown keeps photographs of her son Christopher Vialva at her home in Killeen, Texas, on Sept. 16, 2020. Photo: Matthew Busch for The Intercept
A History of Racism
On September 24, Vialva is set to be the seventh person executed in the federal death chamber this year. He is the first Black man in line to die under Trump.
In a year that has seen historic nationwide protests targeting police violence against Black people, racism has gone largely undiscussed in the context of the federal executions. Last week, the Death Penalty Information Center released a major study reminding Americans that racism is inextricable from capital punishment, tracing its roots to slavery and lynching. Although Lezmond Mitchell, the only person of color among the five men executed so far, was tried before a nearly all-white jury, his lawyers were barred from investigating the role that racial bias might have played during deliberations. On the eve of Mitchell’s execution, one of his previous lawyers decried the racism at the heart of his case.
Vialva was sentenced by an almost all-white jury too. But Brown, who is white, bristles at the emphasis on her son being the first Black man facing execution under Trump. She stresses what his lawyer, advocates, and friends on death row have also said: that Vialva is simply not the same person he was at 19. He is a loving son and brother, a voracious reader, and a positive influence on his neighbors in Terre Haute. After converting to Messianic Judaism, his mother’s faith, he has spent the last decade worshipping alongside other men. “His mere presence stabilizes environments,” one man recently wrote. “On the range where we are confined, fellow inmates rely on him for stimulating conversation, to relieve the boredom of our solitary confinement.” Vialva is also known for his crocheting. After a couple at Brown’s congregation in Texas had a baby, she said, “He literally bartered with the other inmates to get the yarn to make blankets.”
As Vialva’s lawyers have emphasized aspects of his background that could have compelled jurors to spare his life, Brown has also had to confront her own family’s scarring bigotry.
The issue of Vialva’s race is also fraught for reasons that are harder to talk about. Although he has identified as Black since he was young, Brown feels like it erases part of who he is. But as Vialva’s lawyers have emphasized aspects of his background that could have compelled jurors to spare his life — including childhood trauma, evidence of organic brain damage, and suicidal ideation beginning when he was 11 years old — Brown has also had to confront her own family’s scarring bigotry. After the American Civil Liberties Union sent out a press release about the case that described Brown’s family as including “avowed white supremacists” — a description she firmly rejected — Vialva’s attorney relayed a childhood memory that Brown had never heard. At Brown’s wedding to her ex-husband, she said, Vialva had spotted a relative with an Aryan Brotherhood tattoo on his hand. The man was not a close family member, Brown explained, and he had been in and out of prison. “There’s a lot of — what do you call it? — prejudice, racial bias in my family,” she said. “But I don’t have no sheet-wearing relatives.”
Vialva was born in May 1980. His father was a soldier from Trinidad, who Brown met at Fort Benning, Georgia, and married at 19. Case records show that he was eventually court-martialed — and that in their brief time living together, he was violent and abusive toward Brown. In an allegation Vialva’s father called a “pathological lie” in a 2004 declaration, Brown accused him of biting their son when he was a newborn. She left him shortly afterward.
Although Brown says she was trying to protect Vialva from his dad, her own father compounded the trauma. “My father disowned me when he found out that I married Chris’s dad,” she said. “I have one photo of my dad holding my son. Other than that one time, he has never touched my son. Barely even acknowledged he was alive.” After that, Brown had relationships with men who were abusive and rejected Vialva. All of them were white. “He asked me one time, ‘Why haven’t you ever dated Black men again?’ And I said, ‘I don’t know, somebody shut off that switch.’”
Vialva’s longtime attorney, Susan Otto, met him in 2003. He was a “work in progress,” she said. Like many who arrive in prison at a young age, he was angry and bitter. Over the years, she came to understand how deeply he had been harmed by his home life and confusion over his racial identity. In high school, where he found friends who looked like him, he was often disciplined for being disruptive in school but was not known to be violent. In declarations to his attorneys, classmates and friends said they were shocked when they heard about his crime.
While in prison, Christopher Vialva crocheted a number of stuffed animals and blankets for his mother, Lisa Brown, that she keeps at her home in Killeen, Texas, on Sept. 16, 2020. Photo: Matthew Busch for The Intercept.
Condemned With Little Scrutiny
On September 10, Otto delivered a presentation to the Department of Justice’s Office of the Pardon Attorney. Prosecutors in the office make a recommendation to the deputy attorney general, who then decides whether to send the clemency application to the president. In ordinary times, Otto said, “You’re offered the opportunity to come to Washington and make a personal presentation to the internal committee of the DOJ. But because no one is in the building, we did it virtually.”
As the longtime public defender of the Western District of Oklahoma, Otto saw the evolution of the federal death penalty up close. It was a bipartisan project, driven in part by high-profile crimes. She remembers the murder that inspired Congress to make carjacking a federal crime. A renowned research chemist named Pam Basu had been brutally attacked by two young Black men — one was 16 — while driving her daughter to her first day of preschool in Maryland. “She got tangled up in the seat belt and ended up being dragged to death,” Otto recalled. “And there was a huge outcry about carjacking and deaths associated with carjacking and how violent it was.”
Otto recalled how the death of basketball star Len Bias in 1986 had been weaponized to help launch the war on drugs. It was not long afterward that Ronald Reagan revived the federal death penalty through a law that came to be known as the Drug Kingpin Act. “I think what people forget is that it all started with the Drug Kingpin prosecutions,” Otto said. “We were going to put a stop to violent street crime.” After Basu’s grisly murder made international headlines, Otto thought, “OK, here it comes.” In 1992, the Anti-Car Theft Act made carjacking a federal crime. Two years later, Clinton’s crime bill made it eligible for the death penalty.
Vialva’s trial records reveal myriad problems, from ineffective assistance of counsel to an expert who assessed his future dangerousness using junk science.
But as Vialva has told Otto, “Pablo Escobar isn’t anywhere around” on federal death row. “To the extent that you started all of this thinking that you were going to chop off the head of the snake, and it was going to end drugs in America, it failed miserably,” she said. “What you ended up with was a bunch of people of color, mostly African Americans, who were in what they classified as street gangs, who distributed drugs.”
Today, there are 57 people on federal death row. Twenty-six are Black. Seven are Latino. None of them are there for treason, espionage, or terrorism. And all of them could have been prosecuted in state court for their crimes. Among those who have been executed so far, some, like Lezmond Mitchell, whose death sentence also hinged on federal carjacking charges, were sentenced to die only after the Department of Justice insisted on seeking death despite opposition from victims’ relatives and its own local U.S. attorneys.
Despite the wide assumption that the federal death penalty is the “gold standard” for capital cases, in reality, these defendants often encounter the same poor lawyering and misconduct found in state trials — yet with the benefit of even less judicial scrutiny after the fact. State death penalty convictions are subject to review, first at the state level and then by the federal courts. But federal convictions only get the latter. Although people on federal death row are in theory entitled to evidentiary hearings in the same courts where they were convicted — a chance to present evidence of ineffective assistance of counsel or other proof that a trial was unfair — district court judges have routinely denied such hearings.
Vialva’s case is a perfect example. His trial records reveal myriad problems, from ineffective assistance of counsel to an expert who assessed his future dangerousness using junk science. But these issues have never been heard in court. The same judge who presided over his trial has rejected motions for an evidentiary hearing, decisions upheld by the 5th Circuit Court of Appeals. “I spent 17 years in this case and never once stood up in a courtroom — either a district courtroom or an appellate courtroom — arguing on behalf of Christopher Vialva,” Otto said. “And that has never happened to me in my career, ever.”
Photographs of Lisa Brown, now 61, and her son Christopher Vialva, now 41, when Christopher played football at Ellison High School, photographed at her home in Killeen, Texas, on Sept. 16, 2020. Photo: Matthew Busch for The Intercept
A Terrible Crime, a Troubling Trial
The murders that sent Vialva to die were undeniably cruel. On the evening of June 21, 1999, a car was reported on fire in the Belton Lake Recreation Area on the grounds of Fort Hood, a large military base in Killeen, Texas. Firefighters and law enforcement found two burned bodies in the trunk of the vehicle. They belonged to a 28-year-old woman named Stacie Bagley and her 26-year-old husband, Todd.
A group of Black youths was arrested shortly afterward. Investigators quickly elicited incriminating statements. The younger teens, who were between the ages of 15 and 17, said Vialva had convinced them to target a random stranger by asking them for a ride, then robbing them of their money and belongings. After one of the boys approached Todd Bagley while he used a payphone outside a convenience store, three others got in their car with Stacie. They led the couple to a remote location, then Vialva told them that “plans have changed.” They forced the Bagleys at gunpoint to get into the trunk. After driving to collect money from different ATMs, Vialva reportedly said that the couple had seen too much. He shot them both in the head.
The facts of the crime were galvanizing to those who were committed to narratives of Black criminality. A year earlier in Texas, James Byrd Jr. had been dragged to death in a murder so shocking and racist it would inspire federal hate crime legislation. In a letter to federal prosecutors, white supremacist David Duke demanded that the Bagleys’ murder be prosecuted as a hate crime. “This horrible interracial crime has gone completely unmentioned by the national media and is yet another example of the media’s bias against reporting Black on White crime,” Duke wrote.
In fact, the case got considerable publicity, both in Texas and Iowa, where the couple was from. A front-page story in the Des Moines Register described how the Bagleys had been visiting Texas on vacation while also attending religious revivals in the area. The two were youth ministers and devout Christians; one relative told the newspaper that the couple read scripture to their attackers before being shot. Another story described their life as devoted to their faith and to each other. “Their walls were mostly bare, except for a picture of Jesus.”
One of Vialva’s lawyers was actively seeking employment with the same U.S. Attorney’s Office that was trying to send his client to death row.
Vialva and Bernard were tried together less than a year later, at the federal courthouse in Waco. Representing Vialva was Dwight Goains, who had gone to law school as a second career, after operating a business peddling medical supplies to surgeons outside Houston. Within his first five years of practice, Goains developed a reputation for representing the “baddest of the bad,” according to a 1992 profile. “I want the difficult cases,” Goains boasted. “To me they are a lot more challenging, and I enjoy the trial work.” At least one client had already been sentenced to die by the state of Texas. Another would be sent to death row the following year.
Goains was assigned to accompany a less experienced lawyer, Stan Schwieger. But in reality, neither was equipped to handle the trial. In an affidavit submitted as part of Vialva’s appeals in 2004, veteran death penalty lawyer Richard Burr of the Federal Death Penalty Resource Counsel explained that, under federal law, the district court was supposed to consider the recommendation of the local Federal Public Defender prior to assigning a lawyer. But neither Schwieger nor the district court ever contacted that office. Although Schwieger did reach out to Burr for assistance in July 1999, by then it was too late for advice on qualified legal counsel — he and Goains had already been appointed to the case.
In a meeting in August 1999, Burr wrote, “I was struck by Mr. Goains’s apparent hostility to investigating and developing mitigation evidence.” Although Schwieger appeared to grasp the importance of doing a psychosocial history and investigation into reports that Vialva had mental disorders and brain dysfunction — potentially lifesaving information — Goains “resisted it.” He appeared to consider it a distraction from the guilt phase. “By the end of the meeting, I felt like I had been trying to persuade a hostile decision-maker to pursue a course of action he had already ruled out,” Burr wrote.
Schwieger recalled other missteps in his own 2004 declaration. Although federal law set a limit of $7,500 to pay for investigative work and experts in a capital case, it allowed defense attorneys to request approval for additional funds from both the trial judge and circuit court. But he and Goains failed to follow through, even though their own budget made clear that they would need more money to pay a mitigation expert. “When we exceeded the $7,5000 maximum, the funding stopped,” he wrote. By the time the trial judge signed off on more money, jury selection was moments away.
Photo: Matthew Busch for The Intercept
But perhaps most egregious is the fact that, at the time Vialva’s lawyers were supposed to be preparing for trial, Goains was actively seeking employment with the same U.S. Attorney’s Office that was trying to send his client to death row. Schwieger wrote an email to Vialva’s mother just weeks before the trial telling her that Goains had “become a front runner” for a position in the Waco field office, while reassuring her that it had not impacted their work. “Dwight spoke personally with Chris about this yesterday,” Schwieger said, “and Chris wanted Dwight to stay on board.” In fact, according to the former chair of the American Bar Association’s Standing Committee on Ethics and Professional Responsibility, who provided a declaration, Goains’s conduct was a profound ethical breach as well as a conflict of interest. Even if Vialva did not fully understand his rights on this matter, the trial judge should have recognized this red flag. Nevertheless, in a hearing just three days before trial, U.S. District Judge Walter Smith elicited a waiver from Vialva that allowed the trial to proceed.
Goains presented no witnesses on Vialva’s behalf during the first part of the trial. Nor did he or Schwieger cross-examine government witnesses to point out critical holes in the state’s case, such as the lack of forensic evidence linking Vialva to the crime. The evidence against Vialva rested primarily on the testimony of two of the other teenagers, who had cooperated in order to save themselves. The jury swiftly found him guilty.
During the sentencing phase, when Vialva’s lawyers were supposed to convince jurors to spare his life, their own expert instead cast him as dangerous, testifying that he would not share a cell with him. This compounded testimony from the state’s forensic psychiatrist, Dr. Richard Coons, who said it was his expert opinion that Vialva was a man without a conscience. In 2010, the Texas Court of Criminal Appeals would find that Coons should not have been permitted to testify in a different case because his expert opinions were neither scientifically valid nor reliable.
Goains went to work for the U.S. Attorney’s Office after the trial. In 2007 Smith appointed him as a federal magistrate judge for the Western District of Texas. Despite the obligation of capital defense attorneys to preserve their files in death penalty cases so that they may be used by appellate attorneys, Goains never provided his files to Vialva’s legal team. When Otto went to see him at his office in Alpine, Texas, shortly after being appointed to the case, he told her he did not know what had happened to them.
Smith quietly retired from the bench in 2016 after facing an investigation by the U.S. Judicial Conference into allegations of sexual misconduct. Smith had been recently reprimanded for making sexual advances toward a clerk in 1998. In a deposition, she accused Smith of smelling like alcohol at the time; the investigation would reveal evidence that Smith had a drinking problem for years.
In Otto’s view, these revelations recast Smith’s handling of Vialva’s trial and appeals. When she was assigned to the case in 2003, she said, it took more than a month for Smith to approve her appointment — a significant delay, since it cut into the one year she had to file Vialva’s federal habeas petition. After she did — and after she supplemented it following the Supreme Court’s landmark 2005 decision striking down the death penalty for crimes committed by juveniles — Smith sat on the petition for years. In 2012, he denied everything.
“It was pure torture what he did to those two people.”
Smith did not respond to emails about the case. Neither did Goains or Schwieger. In a phone call, the jury foreman, Calvin Kruger, who is now 76, remembered being unimpressed with the defense attorneys. Above all, he was deeply disturbed by the crime and Vialva’s apparent lack of remorse. “It was pure torture what he did to those two people,” he said. Jurors had been told that Stacie Bagley was still alive after being shot in the face and died in part from smoke inhalation. A few years ago, Kruger said, he was asked by legal advocates if he would consider supporting a call to reduce Vialva’s sentence to life without parole. He refused. Still, “it was not an easy decision,” he said. Nor was it easy to sign his name on the jury form. “I still think about it sometimes.”
Kruger was unaware of the five executions in Terre Haute earlier this year. When I began to tell him about the cases as compared to Vialva’s, he interrupted with a question that reflected many people’s assumptions: “Terrorists?” he asked. In fact, until recently, the sole person under a federal death sentence for terror charges was Dzhokhar Tsarnaev, whose death sentence was vacated this summer.
I asked Kruger what he remembered about the makeup of the jury that sent Vialva and his co-defendant to death row. Kruger did not remember any Black jurors, although one Black man did serve on the jury. But he described the jurors as young and old, with different levels of education. Did it concern him that the lack of Black jurors meant Vialva did not receive a jury of his peers? “No,” he said. “It had nothing to do” with their decision. “Nothing at all. And I consider myself a liberal person.”
Lisa Brown keeps childhood memories of her son Christopher Vialva at her home in Killeen, Texas, on Sept. 16, 2020. Photo: Matthew Busch for The Intercept
How to Say Goodbye
On September 15, Vialva’s attorneys released a link to a YouTube video featuring their client. It is titled “Christopher Vialva Message to the Media.” He is seated against a white background. He wears a beige prison uniform, a knitted kippah, and a white and blue prayer shawl over his shoulders. He reads from a piece of paper held awkwardly in his handcuffed hands, occasionally pausing to push up his glasses.
“I’m speaking out now because the U.S. government is trying to execute me and many others using your tax dollars, and there’s no substantial national media coverage on federal capital punishment,” he says, adding that Americans are not informed about the racial disparities, the lack of judicial review, and other problems with the federal death penalty. “People are unaware that many of us here were arrested before we were old enough to drink. … How many people do you know in their 30s or 40s that don’t have regrets about things that they’ve done at the age of 19?”
“Once it hits my week of execution, the cycle will begin again. Again they will start to wonder: Am I next.”
“I’m not making this plea as an innocent man,” he went on. “But I am a changed and redeemed man. I committed a grave wrong when I was a lost kid and took two precious lives from this world. … Every day I wish I could right this wrong.”
As Vialva’s execution date approaches, one of his newest and most fervent supporters is an Indiana lawyer and activist named Ashley Kincaid Eve, who has published their correspondence on her website. She has also helped compile testimonials from the men who have known Vialva in prison, some of which have been sent to the Trump administration. Reading them has been comforting to Brown. Along with one of the other young men involved in the case, Bernard, Vialva’s co-defendant, sent her money to help cover the cost of travel to see her son. On Friday, she drove from her home in Killeen to Terre Haute, where she plans to witness Vialva’s execution.
In one of his most recent letters to Eve, Vialva wrote about the rest of the men on death row. “I keep hearing about the anxiety of the others here,” he said. “They are all waiting in anticipation for new dates to be issued. Some guys assume they are next. Some won’t talk about it in fear they may speak it into existence.” He predicted that the prison would move a couple more people to the death watch range before his execution date, giving some sense of relief to those who remained. “However once it hits my week of execution, the cycle will begin again. Again they will start to wonder: Am I next. While I don’t want anyone else to come over here, I really hope, whoever it is, it is not someone I am close with.”
On Thursday, Vialva sent me another email. “I am really on auto pilot now,” he wrote. “I am just running out of emotional gas.” For weeks he had been filling out forms to prepare for his execution date. “I had to fill out a witness list. I had to turn in a last meal request. I then had to divvy up stuff to give away or throw away. I had to decide what property I was going to give my mom. Then there is the process of thinking of how to say goodbye to all my friends and family; words just won’t come. … I have less than a week now and I am just tired.”