Environment

The Lax Prosecution of Corporate Crime

When an individual commits a serious offense, chances are that he or she is going to face a criminal charge. When a corporation breaks the law in a significant way, in most cases it faces a civil penalty.

This disparity between the treatment of human persons and corporate ones became increasingly apparent to me as I finished processing the data for the expansion of the Violation Tracker database my colleagues and I at the Corporate Research Project of Good Jobs First are releasing on June 28.

Violation Tracker 2.0 adds data on some 700 cases involving banks and other financial services companies brought by the Justice Department and ten federal regulatory agencies as well as 600 involving non-financial firms in areas such as price-fixing and foreign bribery. These 1,300 cases account for well over $100 billion in fines and settlements.

These plus the environmental, safety and health cases that made up the initial version of Violation Tracker bring the total number of entries in the database to 110,000 for the period since the beginning of 2010. Of that number, only 473 — less than one half of one percent — involve criminal charges.

It may come as a surprise that the largest portion of the criminal cases involve serious environmental matters referred to the Justice Department by the Environmental Protection Agency and a few from agencies such as the Coast Guard. The largest of these was a $400 million settlement with Transocean in connection with the Deepwater Horizon disaster in the Gulf of Mexico but most have penalties below $1 million.

The next most common category is price-fixing, with 99 cases that imposed penalties ranging up to the $500 million paid by the Taiwanese company AU Optronics. There are 82 tax cases, most of which involve charges against Swiss banks for helping U.S. taxpayers keep their offshore accounts hidden from the IRS. Foreign Corrupt Practices Act cases brought by the Justice Department account for 53 cases, with the biggest penalty, $772 million, paid by the French company Alstom.

Other categories include serious food safety violations, market manipulation and failure to adhere to rules against doing business with countries deemed to be enemies of the United States.

The significance of the 473 cases is diminished by the fact that in 35 percent of them the companies weren’t really prosecuted. Instead, they paid a penalty and signed either a non-prosecution agreement or a deferred prosecution agreement. These are gimmicks that allow companies to avoid the consequences of a criminal conviction.

Of the 308 cases in which there was an actual guilty plea or verdict, 161 were environmental matters, many of which were brought against small companies for things such as toxic dumping. Relatively few large corporations were targeted.

The category with the largest number of big business convictions is price-fixing, which in recent times has often meant Asian automotive parts companies. Seven big U.S. and foreign banks (or their subsidiaries) have had to enter guilty pleas. In just two cases did U.S. bank parent companies — Citigroup and JPMorgan Chase — enter those pleas. These were in a case involving manipulation of the foreign exchange market. After their pleas, they and the foreign banks also charged got waivers from SEC rules that bar firms with felony convictions from operating in the securities business.

So here’s what it comes down to: Apart from when they engage in price-fixing, large corporations rarely face criminal charges. When they do, they are often allowed to settle without a formal prosecution. And when they do plead guilty, these can get waivers from the consequences of their conviction.

Keep this in mind the next time a corporate lobbyist complains about excessive regulation.

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Note: Violation Tracker 2.0 will be released on June 28.

Monsanto’s German Suitor Has Its Own Tainted Record

Monsanto, one of the most controversial corporations in the United States, now finds itself the target of a takeover campaign by German pharmaceutical and chemical giant Bayer. Would a change in ownership improve the behavior of the biotechnology company dubbed “Mutanto” by its critics?

Answering that question requires a look at Bayer’s own track record, which is far from unblemished. Most Americans associate Bayer with aspirin. The company created the analgesic in 1899, but during World War I the U.S. government seized Bayer’s American assets and allowed other firms to sell aspirin under the Bayer name until the German company bought back the rights in 1994.

In the 1920s Bayer was absorbed into the massive IG Farben cartel, which used slave labor and supported the Nazi regime. After the Second World War it re-emerged as one of the companies created through the break-up of IG Farben. During the 1950s it began to return to the U.S. market through efforts such as a joint venture with Monsanto (in its pre-agribusiness era) called Mobay Chemical.

As Bayer has stepped up its U.S. involvement over the past two decades it has gotten embroiled in one scandal after another. In 1997 one of its subsidiaries based in New Jersey pled guilty to criminal price-fixing and had to pay a $50 million fine. In 2000 Bayer had to pay $14 million to the federal government and the states to settle allegations that it inflated prices on drugs sold to the Medicaid program. In 2001 it was accused of price-gouging on the antibiotic Cipro, which was then in high demand because of the anthrax scare. It later had to pay $257 million to settle a federal lawsuit on Cipro overcharging.

In 2003 documents emerged suggesting that Bayer was aware of serious safety problems with its cholesterol drug Baycol long before the medication was withdrawn from the market. In 2004 Bayer had to pay a $66 million fine in another criminal price-fixing case. A 2008 explosion at a Bayer pesticide plant in West Virginia that killed two workers led to regulatory penalties including a $5.6 million settlement with the EPA. A report found that management deficiencies played a significant role in creating the conditions that caused the explosion.

That’s just the quick version of Bayer’s controversies. For more see the website of the Coalition against BAYER-dangers, a German watchdog group that has been monitoring the company for more than 30 years.

Perhaps most troubling is the fact that Bayer has already been active in the businesses in which Monsanto has gained its checkered reputation: agricultural chemicals and genetically modified seeds. Before the Monsanto bid, Bayer was in the news most often because of concerns that its pesticides were responsible for sharp drops in bee populations.

The chances that a Bayer takeover of Monsanto will get the U.S. company to clean up its act seem slim indeed. In fact, the combined company will probably be an even bigger threat.

Emission Cheating and Lead Poisoning

Michigan Attorney General Bill Schuette announces Flint charges

Two legal cases involving egregious harm to public health have moved forward in recent days, though in very different ways. In one case an aggressive prosecutor, defying expectations, filed criminal charges against three individuals and vowed that they “are only the beginning. There will be more to come — that I can guarantee you.” In the other case, a large company reached a deal in which it will pay to modify or buy back hundreds of thousands of defective products.

The case in which the culprits are deservedly having the book thrown at them is the Flint water crisis, while in the other the boom is not yet being lowered on Volkswagen. The first involves misconduct by public officials, the second is a case of brazen corporate crime.

Admittedly, the settlement framework announced in the VW case does not necessarily reflect the full scope of the legal issues facing the automaker in connection with its systematic cheating in auto emission testing. It is not yet known whether the Justice Department’s reported criminal investigation of the matter will result in the filing of charges, nor is it clear whether the civil penalties that may be imposed on VW will come close to the theoretical maximum of $18 billion.

Yet the decision to announce the tentative buyback deal by itself creates the impression that it is the centerpiece of the resolution of the VW case. It’s being estimated that the U.S. buyback would cost the company about $7 billion. If that turns out to be the main cost imposed on VW, the automaker would be getting a bargain.

Causing financial harm to car owners is far from the only sin for which VW has to be held accountable, and it is probably not the most serious one. Of far more consequence are the environmental and public health impacts of the enormous amount of additional pollution that the VW engines have been spewing into the air. What started out as an effort to circumvent regulations will end up causing an unknown number of cases of asthma, bronchitis, emphysema, and possibly lung cancer.

There’s also the issue of deterrence. If VW and its relevant officials do not face serious consequences for their actions, people at other corporations may think they can also flout vital regulations. It’s already clear that VW’s emission fraud was not an anomaly. Mitsubishi just admitted it has been doing the same thing in Japan for at least one of its vehicles.

We don’t yet know the full story of what happened at VW much less Mitsubishi, yet it is likely that flagrant emissions deception arose out of a corporate mindset that sees regulations as obstacles to be overcome rather than legitimate rules designed to protect the public. That mindset will not change until corporations and individuals within them pay as heavy a price for their transgressions as that facing the public officials who poisoned the children of Flint.

Will Big Oil Survive Long Enough to Pay for Its Climate Sins?

“Times are tough, you’d almost call them brutal right now. But we will adapt. We will make it.” So insisted the deputy chief executive of BP at a conference in Houston where industry leaders put on a brave face amid a worsening crisis for the petroleum sector.

Other speakers were even more explicit about the Darwinian environment. “We will be one of the last guys standing,” declared the CEO of Suncor Energy, which once prospered from the tar sands boom in Alberta and is now selling off assets.

Several dozen oil and gas producers have had to file for bankruptcy protection since the beginning of last year. More such moves are expected. The business consulting firm Deloitte has issued a report estimating that more than one-third of all petroleum exploration and production companies are in precarious financial condition, with dozens likely to make the trip to bankruptcy court.

Even the oil majors are in trouble. Chevron reported a fourth-quarter loss of $588 million, while BP lost over $2 billion in the quarter and more than $5 billion for 2015 as a whole. Exxon Mobil and Shell are still in the black but their profits are down sharply. The industry’s problems are already depressing stock prices and are starting to cause heavy losses at the banks that lent extravagantly to the energy sector during the boom time.

It’s difficult to summon much sympathy for the oil companies, given the damage they have wrought. As shown in the Violation Tracker database I and my colleagues created, the petroleum industry has racked up more than $31 billion in environmental, health and safety penalties since the beginning of 2010, far more than any other industry. Much of this is the result of the massive fines and settlements paid by BP in connection with the Deepwater Horizon disaster in the Gulf of Mexico.

Yet there is one reason to hope for the survival of the petroleum producers: we need them to survive in some form so they can be taken to court over the role they’ve played in denying the reality of the climate crisis.

As Bill McKibben notes in a recent article, we’re now at the beginning of an investigation of what may prove to be one of the biggest corporate scandals in American history — the climate coverup.

At the center of the scandal is Exxon Mobil, the biggest fossil fuel corporation on earth and the one that is probably most culpable for suppressing evidence of the impact of its products on climate change. As path-breaking research by Inside Climate News showed, Exxon — reported to be the subject of current investigations by state prosecutors in New York and California — knew about global warming as early as the 1970s and quietly used that knowledge for its own benefit while keeping it from policymakers and the public.

Forty years later, the nature of the climate crisis is public information, but Exxon Mobil and the other oil companies continue to do business as usual. In fact, their obsession with exploration and production even at a time of softening demand has helped bring about the current price nosedive.

Exxon Mobil today has assets of more than $340 billion. Soon it may have to stop using those resources to produce more harmful fossil fuels and instead pay out substantial sums in damages to communities struggling to deal with the climate mess the industry has caused.

A Struggling Arch Coal Deserves Little Sympathy

archcoal Arch Coal recently became the latest and largest coal producer to seek protection in Chapter 11. The company has also lost its listing on the New York Stock Exchange. Arch vows to go on operating but faces a very uncertain future.

It’s difficult to summon much sympathy for Arch or its struggling competitors. While its workers deserve a just transition to new livelihoods, Arch deserves to fade away. The main reason, of course, is the coal industry’s outsize contribution to the climate crisis, but a look at Arch’s track record shows a string of other major negative impacts.

Pollution. Arch’s first big environmental controversy occurred in 1996, when a massive mine waste spill at the operations of its Lone Mountain subsidiary in Virginia contaminated 30 miles of rivers and streams, killing thousands of fish. The company was hit with a $1.4 million state fine, one of the largest in Virginia’s history.

Arch also became a bigger target for environmental activists when it escalated its involvement in mountaintop-removal mining in Appalachia. It took advantage of the Bush Administration’s support for the controversial practice and resisted when the Obama Administration moved to tighten the rules. In 2010 an Arch subsidiary sued the Environmental Protection Agency over the planned revocation of a permit for a large mountaintop project in West Virginia that the agency decided would do irreversible damage to the environment. The EPA stood its ground, and when the revocation for the Spruce No.1 Mine was formally announced, Arch said it was “shocked and dismayed” and charged that the decision “will have a chilling effect on future U.S. investment.” Arch took the case all the way to the Supreme Court and was rebuffed at every stage.

In 2011 the EPA and the Justice department announced that Arch would pay $4 million to settle alleged violations of the Clean Water Act in Kentucky, Virginia and West Virginia. As part of the settlement, Arch was required to take steps to prevent an estimated two million pounds of pollution from entering waterways, including the implementation of a system to reduce selenium discharges. That same year, Arch paid $2 million to settle a lawsuit brought environmental groups over the selenium issue in West Virginia.

In 2015 Arch had to pay another $2 million to the federal government to settle similar alleged violations by 14 subsidiaries connected to its International Coal Group operations in five states.

Federal Leasing. Arch is one of a handful of companies taking advantage of a non-competitive program that allows coal operators to lease federal land at below-market rates. A 2012 report by the Institute for Energy Economics and Financial Analysis estimated that over 30 years the Treasury lost $28.9 billion in revenue from the failure to obtain fair market value for the coal extracted from the Powder River Basin of Wyoming and Montana, the country’s largest coal-producing region. A report released by the U.S. Government Accountability Office in 2014 also found a pattern of undervaluing coal leases, as did a 2015 report by Headwater Economics estimating that two reform options would have generated additional revenue ranging from $850 million to $5.5 billion for the 2008-2012 period.

In 2014 the Western Organization of Resource Councils and Friends of the Earth filed a lawsuit asking that the Interior Department’s Bureau of Land Management be required to prepare a comprehensive environmental impact review of the federal leasing program. The last time such an assessment was done was in 1979. Arch’s Chapter 11 filing came just days before the Obama Administration announced the suspension of new federal coal leases.

Mine Safety. A 2003 inspection of Arch Coal’s Black Thunder mine in Wyoming by the federal Mine Safety and Health Administration resulted in more than 50 violations. Two miners had been killed at the massive operation in the previous 12 months. In 2015 MSHA issued an imminent danger order at Black Thunder.

There have been other fatalities at Arch operations, including one at a Kentucky mine in 2013 that MSHA found had occurred after the company knew of a significant danger but failed to take proper precautions.

The most serious accident associated with Arch was the 2006 disaster at the Sago Mine run by a subsidiary of International Coal Group, which became part of Arch in 2011. Twelve miners died in a methane gas explosion at the West Virginia operation, which had been cited by MSHA for “combustible conditions” and “a high degree of negligence.” During 2005 the mine had received more than 200 violations, nearly half of which were serious and substantial. Investigations of the accident by the state and the company suggested that lightning had set off the explosion, whereas a United Mine Workers report concluded that sparks generated by falling rocks inside the mine were the cause.

According to the Violation Tracker database, Arch’s current operations have been fined a total of more than $6.4 million by MSHA since the beginning of 2010.

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Note: This post is drawn from my new Corporate Rap Sheet on Arch Coal, which can be found here.

DOJ’s Sputtering Case Against Volkswagen

There’s a scene in “The Wolf of Wall Street” in which a federal prosecutor tells Jordan Belfort (played by Leonardo DiCaprio) that the case against him for securities fraud was a “Grenada,” meaning that it was as unloseable as the 1983 U.S. invasion of that poorly defended Caribbean island.

The Justice Department has had another Grenada in recent months with the case against Volkswagen for systematically cheating on auto emissions tests. As the scope of the deception broadened to include millions of vehicles, VW effectively admitted guilt and put aside the equivalent of about $7 billion to resolve the issue, later acknowledging that sum would not be enough.

After three months of preparation, Justice has filed its case yet is failing to make full use of its leverage against the automaker. As a result, it could end up with only a modest win against one of the most egregious cases of corporate environmental fraud this country has ever seen.

The biggest disappointment is DOJ’s decision to forgo criminal charges and handle this solely as a civil matter. Admittedly, prosecutors were confronted with the fact that a little known loophole in the Clean Air Act exempts the auto industry from criminal penalties. Yet there appeared to be ways to get around this limitation by alleging fraud, for instance, given that there was apparently a deliberate effort to deceive the federal government about emissions. It’s not clear why DOJ rejected this approach and did not even use the frequent gambit of pursuing a criminal case and then offering the company a deferred- or non-prosecution agreement. Those options are problematic, but with them criminal charges are at least part of the picture rather than being left out entirely.

Also frustrating is the failure of Justice to bring charges (civil or criminal) against individual VW executives. This flies in the face of the department’s hyped announcement in September of a new policy of holding individuals accountable for corporate misconduct. Charging senior VW officers was all the more important in light of indications that the company has been seeking ways to place the blame on lower-level engineers.

It is disturbing to think that VW may have intimidated DOJ away from an aggressive prosecution. Although the scope of the scandal has widened, taking in more of the company’s brands in more countries, VW seems to be adopting a less conciliatory posture than it did earlier in the case. In fact, the DOJ complaint accuses the company of impeding and obstructing the investigation through “material omissions and misleading information” — accusations that make the absence of criminal charges all the more bewildering.

It is likely that VW will have to pay billions of dollars to resolve the charges against it. This is right and proper, but is it enough? Corporations from BP to Bank of America have gotten used to buying their way out of legal jeopardy, treating fines and settlements as (often tax deductible) costs of doing business. Those costs have been rising — BP has had to pay out more than $24 billion in connection with its Gulf of Mexico disaster — but there is little evidence that the penalties are having the intended deterrent effect.

Criminal charges are not a panacea. They’ve been brought against BP, several large banks and other companies yet no longer have the same bite. Several banks, for instance, have received waivers from SEC rules barring criminals from the securities business.

Yet at least there is the possibility of applying criminal penalties more aggressively. Going the purely civil route, as Justice is doing with VW, guarantees from the start that the case will be little more than a financial transaction. In a case of deliberate and widespread deception with severe environmental and health impacts, that’s simply not good enough.

The 2015 Corporate Rap Sheet

The ongoing corporate crime wave showed no signs of abating in 2015. BP paid a record $20 billion to settle the remaining civil charges relating to the Deepwater Horizon disaster (on top of the $4 billion in previous criminal penalties), and Volkswagen is facing perhaps even greater liability in connection with its scheme to evade emission standards.

Other automakers and suppliers were hit with large penalties for safety violations, including a $900 million fine (and deferred criminal prosecution) for General Motors, a record civil penalty of $200 million for Japanese airbag maker Takata, penalties of $105 million and $70 million for Fiat Chrysler, and $70 million for Honda.

Major banks continued to pay large penalties to resolve a variety of legal entanglements. Five banks (Citigroup, JPMorgan Chase, Barclays, Royal Bank of Scotland and UBS) had to pay a total of $2.5 billion to the Justice Department and $1.8 billion to the Federal Reserve in connection with charges that they conspired to manipulate foreign exchange markets. The DOJ case was unusual in that the banks had to enter guilty pleas, but it is unclear that this hampered their ability to conduct business as usual.

Anadarko Petroleum agreed to pay more than $5 billion to resolve charges relating to toxic dumping by Kerr-McGee, which was acquired by Anadarko in 2006. In another major environmental case, fertilizer company Mosaic agreed to resolve hazardous waste allegations at eight facilities by creating a $630 million trust fund and spending $170 million on mitigation projects.

These examples and the additional ones below were assembled with the help of Violation Tracker, the new database of corporate misconduct my colleagues and I at the Corporate Research Project of Good Jobs First introduced this year. The database currently covers environmental, health and safety cases from 13 federal agencies, but we will be adding other violation categories in 2016.

Deceptive financial practices. The Consumer Financial Protection Bureau fined Citibank $700 million for the deceptive marketing of credit card add-on products.

Cheating depositors. Citizens Bank was fined $18.5 million by the CFPB for pocketing the difference when customers mistakenly filled out deposit slips for amounts lower than the sums actually transferred.

Overcharging customers. An investigation by officials in New York City found that pre-packaged products at Whole Foods had mislabeled weights, resulting in grossly inflated unit prices.

Food contamination. In a rare financial penalty in a food safety case, a subsidiary of ConAgra was fined $11.2 million for distributing salmonella-tainted peanut butter.

Adulterated medication. Johnson & Johnson subsidiary McNeill-PPC entered a guilty plea and paid $25 million in fines and forfeiture in connection with charges that it sold adulterated children’s over-the-counter medications.

Illegal marketing. Sanofi subsidiary Genzyme Corporation entered into a deferred prosecution agreement and paid a penalty of $32.6 million in connection with charges that it promoted its Seprafilm devices for uses not approved as safe by the Food and Drug Administration.

Failure to report safety defects. Among the companies hit this year with civil penalties by the Consumer Product Safety Commission for failing to promptly report safety hazards were: General Electric ($3.5 million fine), Office Depot ($3.4 million) and LG Electronics ($1.8 million).

Workplace hazards. Tuna producer Bumble Bee agreed to pay $6 million to settle state charges that it willfully violated worker safety rules in connection with the death of an employee who was trapped in an industrial oven at the company’s plant in Southern California.

Sanctions violations. Deutsche Bank was fined $258 million for violations in connection with transactions on behalf of countries (such as Iran and Syria) and entities subject to U.S. economic sanctions.

Air pollution. Glass manufacturer Guardian Industries settled Clean Air Act violations brought by the EPA by agreeing to spend $70 million on new emission controls.

Ocean dumping. An Italian company called Carbofin was hit with a $2.75 million criminal fine for falsifying its records to hide the fact that it was using a device known as a “magic hose” to dispose of sludge, waste oil and oil-contaminated bilge water directly into the sea rather than using required pollution prevention equipment.

Climate denial. The New York Attorney General is investigating whether Exxon Mobil deliberately deceived shareholders and the public about the risks of climate change.

False claims. Millennium Health agreed to pay $256 million to resolve allegations that it billed Medicare, Medicaid and other federal health programs for unnecessary tests.

Illegal lobbying. Lockheed Martin paid $4.7 million to settle charges that it illegally used government money to lobby federal officials for an extension of its contract to run the Sandia nuclear weapons lab.

Price-fixing. German auto parts maker Robert Bosch was fined $57.8 million after pleading guilty to Justice Department charges of conspiring to fix prices and rig bids for spark plugs, oxygen sensors and starter motors sold to automakers in the United States and elsewhere.

Foreign bribery. Goodyear Tire & Rubber paid $16 million to resolve Securities and Exchange Commission allegations that company subsidiaries paid bribes to obtain sales in Kenya and Angola.

Wage theft. Oilfield services company Halliburton paid $18 million to resolve Labor Department allegations that it improperly categorized more than 1,000 workers to deny them overtime pay.

A Chemical Industry Marriage Not Made in Heaven

dow-dupont A corporation once known as the Merchant of Death because it dominated the gunpowder market wants to unite with a company that became notorious for its production of napalm and Agent Orange during the Vietnam War. The proposed merger of DuPont and Dow Chemical is not a marriage made in heaven.

The more recent track records of the two chemical giants are also seriously tarnished, raising questions as to whether the plan for a merger and then breakup is really a ploy to evade liability — something each of the companies has done in the past.

DuPont’s feel-good postwar campaign promoting “better living through chemistry” gave way to a series of environmental controversies. In the 1970s and 1980s the issue was the company’s production of chlorofluorocarbons (CFCs) like Freon, which were destroying the earth’s ozone layer. After resisting for years, DuPont finally agreed to phase out production of CFCs but sought to use substitutes that were also harmful.

In 1989 evidence emerged that the Savannah River nuclear weapons plant, which DuPont had built and operated for the federal government since 1951, had serious structural flaws and safety problems that the company failed to report. Numerous accidents at the South Carolina facility, which made plutonium and the tritium gas needed in nuclear warheads, were also kept secret.

DuPont was a pioneer in developing perfluorinated compounds (PFCs), one of the most highly toxic, extraordinarily persistent and likely carcinogenic group of chemicals that work their way into the bloodstream of humans and wildlife. DuPont’s highest profile PFC-based product was Teflon, best known for its use in non-stick cookware. In 2004 the EPA charged that for two decades DuPont failed to report signs of health and environmental problems linked to perfluorooctanoic acid (or PFOA), the PFC used in making Teflon. Residents living near the plant in West Virginia where DuPont produced PFOA sued the company, which agreed to pay about $100 million to settle the case and spend up to $235 million on medical monitoring of residents, which is ongoing. DuPont also paid $16.5 million to settle the EPA charges and later agreed to gradually phase out PFOA.

In 2014 a leak of methyl mercaptan (used in the production of pesticides) at a DuPont plant in LaPorte, Texas caused the death of four workers. In July 2015 OSHA proposed fines of $273,000 in connection with the accident and put DuPont on its severe violator list.

This year, DuPont spun off numerous facilities with tainted environmental and safety records into a new company called Chemours. There was immediate concern expressed by groups such as Keep Your Promises DuPont that the ownership change would impair the commitments DuPont had made to deal with toxic waste sites and other contaminated areas. One of those areas was Parkersburg, West Virginia, where DuPont had produced Teflon.

DuPont’s initial SEC filing about Chemours disclosed that the new company would begin life with some $298 million in environmental liabilities but acknowledged that the total could rise to 3.5 times that amount.

Dow Chemical was involved in one of the most controversial cases of liability evasion: its decision to do nothing for the victims of the Bhopal disaster after acquiring Union Carbide, the company whose subsidiary operated the pesticide plant where in 1984 a vast quantity of highly toxic methyl isocyanate gas was released. More than 8,000 people died in the immediate aftermath of the incident, and many thousands more suffered serious harms from exposure to the gas, including genetic damage that affected their offspring.

Union Carbide paid compensation of $470 million, far below what many advocates felt was necessary to care for the victims and their families. After the merger, Bhopal advocates began to pressure Dow to do more, but the company insisted that it had not assumed Union Carbide’s liabilities and thus had no responsibility to help.

Dow’s sins are not all inherited. In the 1980s its Dow Corning subsidiary was hit with class action lawsuits filed by women claiming that they had developed autoimmune diseases as a result of silicone leakage from breast implants produced by the company. In 1992, following a review of Dow Corning internal company documents suggesting that the implants had been rushed to market without complete safety tests, the U.S. Food and Drug Administration called for a moratorium on new implants. The New York Times reported that the documents revealed that Dow Corning executives had delayed conducting critical safety studies for more than a decade.

In 2011 Dow had to pay $2.5 million to settle EPA allegations that the company’s complex in Midland, Michigan violated the Clean Air Act and Clean Water Act in a host of ways at its chemical, pharmaceutical, and pesticide plants.

Given the histories of these two companies, the proposed merger of DuPont and Dow deserves the utmost scrutiny so that the needs not only of shareholders but also their victims are addressed.

The Corporate Wrongdoers Sticking with ALEC

If a group of major drug dealers, identity thieves and bank robbers were to put out a statement calling for relaxation of the criminal code, no one would take it very seriously.

Yet complaints about the regulatory system coming from large corporations — including many with repeated environmental and safety violations — are regarded as important pronouncements by too many policymakers and political candidates. Corporate interests don’t simply complain. They use their money and influence to urge lawmakers to alter the rules in their favor.

One of the main vehicles by which big business pushes its deregulatory agenda is the American Legislative Exchange Council. ALEC, which is currently holding one of its periodic gatherings of corporate lobbyists and legislators, takes aim at agencies such as the EPA, which it likes to call a “regulatory train wreck.”

Since my colleagues and I at the Corporate Research Project of Good Jobs First released our Violation Tracker database recently, I’ve been comparing notes with the ALEC watchers at the Center for Media and Democracy. What we’ve found is a substantial overlap between the corporations that remain loyal to ALEC (more than 100 have left in response to public pressure) and the companies in Tracker with the largest penalty totals. Mary Bottari of CMD has posted a piece that focuses on the energy companies in the two groups. Here I look at the full overlap.

The current list of ALEC corporate members includes 11 corporations that rank in the Violation Tracker top 100 (in a few cases the membership is held by a subsidiary). These parents and their subsidiaries have racked up a total of $1.7 billion in federal environmental, health and safety penalties and settlements since the beginning of 2010:

Pfizer: $563,357,650
Novartis: $422,569,368
WEC Energy Group: $310,621,475
Duke Energy: $112,150,534
Honeywell International: $93,641,829
Berkshire Hathaway: $46,810,063
Exxon Mobil: $46,285,706
Energy Transfer: $25,467,251
Dominion Resources: $14,168,658
Norfolk Southern: $11,675,325
Chevron: $11,373,376

Pfizer is in the news because of its deal to merge with a smaller drug company and move its legal headquarters to Ireland, all to dodge federal taxes. It has amassed more than half a billion dollars in penalties in the past five years largely because of cases involving the illegal marketing of drugs for purposes not approved as safe by the Food and Drug Administration. In 2009, the year before Violation Tracker’s coverage begins, Pfizer had to pay $2.3 billion to settle Justice Department civil and criminal charges relating to the illegal marketing of the painkiller Bextra and three other medications. John Kopchinski, a former Pfizer sales representative whose complaint helped bring about the federal investigation, told the New York Times: “The whole culture of Pfizer is driven by sales, and if you didn’t sell drugs illegally, you were not seen as a team player.”

Novartis has also been accused of illegal marketing of drugs and has had to pay more than $400 million in penalties. Not yet included in Violation Tracker is a case in which federal prosecutors are seeking $3 billion in penalties from the company for paying illegal kickbacks to get pharmacies to encourage use of expensive drugs for kidney-transplant patients covered by Medicare and Medicaid.

WEC Energy Group, whose subsidiaries North Shore Gas and Peoples Gas are ALEC members, is on the top violators list mainly because of a $307 million settlement another subsidiary, Wisconsin Public Service Corporation, reached with the Justice Department and the EPA to resolve Clean Air Act violations at two of its power plants. Most of the settlement involves mandatory spending on new pollution control technology at the facilities.

Duke Energy earned its spot on the top violators list mainly because of a case from earlier this year in which three of its subsidiaries pled guilty to criminal violations of the Clean Water Act and paid $102 million in penalties in connection with a massive coal ash spill into the Dan River in North Carolina.

The largest portion of Honeywell International‘s $93 million in penalties comes from a 2013 case in which it agreed to pay a $3 million civil penalty and spend $66 million on new pollution control equipment to resolve Clean Air Act violations at its plant in Hopewell, Virginia.

Conglomerate Berkshire Hathaway is on the list because one of its major subsidiaries, BNSF Railway, is an ALEC member. While it has not been involved in any large cases like those above, since 2010 BNSF has accumulated more than 600 violations from the Federal Railroad Administration with total penalties of $7 million (the FRA’s fines tend to be less than onerous). BNSF was also pressured by OSHA to change its practices that the agency said discouraged workers from reporting on-the-job injuries.

Exxon Mobil‘s penalty total comes largely from its subsidiary XTO Energy, which focuses on fracking. For example, in 2013 XTO had to pay $20.1 million to the EPA to settle Clean Air Act violations linked to the discharge of wastewater in Pennsylvania.

These cases illustrate the track record of the companies that are sticking with ALEC, presumably with the hope that the organization can bring about policy changes that will allow them to continue business as usual and pay less in the way of penalties. ALEC may be correct that the regulatory system is a “train wreck,” but that’s because the rules are too weak, not too stringent.

Breaking Up Is Hard to Do

Alcoa is doing it. So is Hewlett-Packard.

They’re following the lead of corporations such as General Electric, Time Warner, Gannett and W.R. Grace. The “it” is splitting up the company into two independent firms.

The reasons for these break-ups are not always clear. In announcing the plan for Alcoa, Klaus Kleinfeld declared: “In the last few years, we have successfully transformed Alcoa to create two strong value engines that are now ready to pursue their own distinctive strategic directions.” Why those “engines” cannot remain under the same corporate roof was not explained. Kleinfeld described the split as “the next step” for two businesses ready to “seize the future.”

What are really being seized are the giant fees charged by investment banks to cook up these schemes, often for companies that previously retained their services to arrange marriages they are now seeking to undo. Like much of what passes for corporate strategies, “demergers” as well as mergers are expensive guesses as to what will result in maximum profits. They need not be taken too seriously.

Yet sometimes breakups are a lot less benign. Take the case of chemical giant DuPont, which a few months ago split itself up with the creation of a spinoff called Chemours. Sounding like the Alcoa guy, then-DuPont CEO Ellen Kullman announced the plan late last year by saying that the parts of the company being divided from one another had “distinct value creation strategies.”

Yet it turned out that the businesses to be transferred to Chemours included those with the most serious environmental, health and safety problems. There was immediate concern expressed by groups such as Keep Your Promises DuPont that the ownership change would impair the commitments DuPont had made to deal with toxic waste sites and other contaminated areas.

One of those areas was Parkersburg, West Virginia, where DuPont had produced Teflon. In 2004 the Environmental Protection Agency charged that for two decades DuPont failed to report signs of health and environmental problems linked to perfluorooctanoic acid (or PFOA), which is used in making Teflon. Residents living near the plant sued the company, which agreed to pay out about $100 million to settle the case and spend up to $235 million on medical monitoring of residents, which is ongoing. That obligation has presumably transferred to Chemours, but there are concerns that the new firm may not be able to handle the costs.

If DuPont thinks that it has washed its hands completely of these liabilities as a result of the Chemours spinoff, a case involving Anadarko Petroleum suggests that it may be mistaken. A decade ago, Anadarko acquired Kerr-McGee, on oil and nuclear fuel company made infamous in the scandal involving Karen Silkwood. In preparation for the takeover, Kerr-McGee had broken itself up, dumping its major liabilities into a new firm called Tronox, which later when bankrupt.

A legal battle over Tronox’s environmental obligations was finally resolved earlier this year with Anadarko having to pay more than $5 billion to cover cleanup costs. DuPont and Chemours, like Anadarko and Kerr-McGee and Tronox, may learn that breaking up can indeed be hard to do.

Note: The Anadarko settlement turns out to be the second largest entry in the Violation Tracker database my colleagues and I at the Corporate Research Project of Good Jobs First will release on October 27.