Judge goes outside box on mercury case

PROVIDENCE, R.I. — Apparently frustrated by a U.S. Supreme Court decision that struck down an $18-million penalty for a Texas natural gas firm, a federal judge is taking the unusual step of asking the environmental community for suggestions on how to sentence the company in a way that will have “the broadest possible impact.”

U.S. District Judge William Smith said in a preliminary sentencing memorandum filed April 25 that the high court’s decision means he is limited to fining Southern Union Co. $500,000 or the equivalent in community service, rather than the $6-million fine and $12 million in charitable contributions he previously imposed as punishment.

“This result is manifestly unsatisfactory and even unjust,” Smith wrote.

Saying he was doing the best he could in a bad situation, Smith wrote that he has decided a community service sentence would be most appropriate. He then gave prosecutors, Southern Union and unspecified members of the greater environmental community 90 days to suggest a community service sentence valued at no more than $500,000.

Smith wondered aloud during a hearing on the matter in December whether he could order “higher-ups” at the company to perform community service as punishment, and it was unclear Tuesday whether he would consider that.

He hopes his invitation will spur “creative ideas,” said David DiMarzio, clerk of court for U.S. District Court in Providence. DiMarzio likened the request to letters submitted by family members and those affected by a crime when defendants are being sentenced, but said he had never seen such a request by a judge.

It’s highly unusual for a judge to invite those other than victims of the crime to weigh in on a sentence, said David Uhlmann, a University of Michigan law professor who was the top environmental crimes prosecutor at the U.S. Department of Justice when the case was brought. But he said he believes the judge is allowed to do it.

Smith said Southern Union had broken the law for more than two years by illegally storing liquid mercury without a permit inside a neglected building in a densely populated section of Pawtucket. The mercury came from old gas regulators the company was removing from customers’ homes, and was left around in glass jars, a plastic jug and other containers.

In 2004, teenagers broke into the building and dumped mercury there and at a nearby apartment complex, which had to be evacuated.