By Brianna Potter*
When people think about the Environmental Protection Agency, they first probably think of bureaucrats who make rules and inspectors who write citations. This agency is responsible both for enforcing the statutes passed by Congress and for developing and implementing policies relating to the environment.[i] Creating and enforcing rules does much to help protect the environment, but the EPA goes further than telling companies and individuals what they must and cannot do and punishing them for failure to comply. It also can provide guidance to cities and corporations about individualized approaches to protecting the environment.[ii] The EPA could and should use their regulatory powers to create stronger incentives for companies to prepare for and mitigate the secondhand damage caused by their facilities in the event of major natural disasters.
Much of what how what the EPA helps prepare for is already natural disasters. It is sometimes tempting to think that all harm to the environment is man-made, but disease and storm can also be devastating. This issue gets even more complicated when we combine the effects of a major storm with a man-made chemical plant or factory. In those cases, while it may be the winds and waves that do the active damage, the mere fact that there is a store of dangerous chemicals built up can magnify the damage and create more lasting effects on individuals and the environment. Thus, the EPA requires that corporations create a Risk Management Plan.[iii]
In the wake of Hurricanes Harvey, Irma, and Maria, there was talk about the differences in the responses from the government and public, and debate about the reasons for those differences.[iv] On the side of the EPA, we might consider that one of the important differences in the storms is the type of industry which was dominant in the areas affected. For instance, Houston, home to numerous chemical and oil refineries, is a major center of the petrochemical industry.[v] Standing water is often considered to be dangerous because of it creates a vehicle for waste to transport and an environment where mold can thrive.[vi] While this is itself dangerous to human health, cities with major chemical processing facilities face another danger in connection to standing water. Severe damage to these facilities could could lead to poison seeping into the groundwater all over the city and surrounding area.[vii]
It does not take much to contaminate waterways. In the EPA’s report following Hurricane Maria, the portion which detailed debris management concerns specifically mentioned the dangers of batteries and aerosol cans.[viii] Simple, everyday items cause severe contamination such that water is unsafe to drink. This is always a danger in a severe storm. Yet, Harvey brought a greater problem, one which could have been worse than it was.[ix] It brought the potential water and air contamination on an industrial scale.[x]
One question that arises with this potentially devastating contamination regards responsibility. No one is blaming the citizens of Puerto Rico for having batteries in their homes before they were destroyed. But, corporations working within the regulatory system should have a greater responsibility to take precautions against dangers such as those that arise when their facilities may become compromised. Following a common intuition from the common law that those who benefit should bear responsibility for a risk, it seems fair to expect more out of companies that benefit from practices that have the potential to cause great environmental harm. Even without placing blame, we may feel that these companies are the “least cost avoider” when it comes to foreseeable harm.[xi]
This intuition of responsibility is stretched slightly when we run into major disasters such as hurricanes whose harm is dramatically increased by the failure of companies to adequately prepare against them. Suddenly, we get into an idea closer to that of failure to protect. Since corporations are in possession of the facilities that can cause damage, they have a duty to protect.[xii] The penalties for causing the scale of damage seen after storms would likely be significant if the contamination or pollution had not come about in a storm.[xiii] When it comes to human lives and the environment, corporations are expected to go to great lengths to prevent harm.[xiv] When such a storm is foreseeable, then, there should be greater punishments to incentivize the operators of plants to put priority on a Risk Management Plan.
When a devastating storm, such as Harvey, hits, the EPA looks different than usual. It uses its equipment and expertise in testing water and air quality to check levels, but not for the purpose of seeing if corporations and individuals are in compliance with regulations.[xv] Its only focus in these disasters is to see whether it is safe for individuals to remain where they are.[xvi]
Greater incentive to prepare may help though. These situations do not make for good negligence cases because causation is difficult to prove and, in some cases, of establishing the relationship between the facility and the dangerous chemical released. Stronger regulations by the EPA connected to preparation for these storms could be a major step in preventing or mitigating major damage to the environment, and consequently to humans. Corporations cannot control nature, but they can control how they prepare for its harsh winds.
Providing regulations that would require companies to create plans to mitigate harm which they do not cause would be nothing new. Car manufacturers, for example, often find themselves issuing recalls and battling lawsuits over crashworthiness.[xvii] This is connected, not to any sense that the manufacturers are even negligently at fault for an accident itself, but to a sense that they have a responsibility to lessen the damage that foreseeably will occur.[xviii] It cannot be said that it is unforeseeable that a hurricane will hit a facility just off the Gulf of Mexico. Thus, it is not a far stretch to extend this concept to companies in these positions. When the potential effects are so dire, it is imperative that there be strong incentive to take precautions that will protect the environment from the devastating effects of the combined powers of nature and man.
*Brianna Potter is a Junior Editor on MJEAL. She can be reached at firstname.lastname@example.org.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
[i] Environmental Protection Agency, Policy & Guidance, https://www.epa.gov/laws-regulations/policy-guidance.
[iii] US. EPA Hurricane Response 2017: Risk Management Plan (RMP) Program, EPA https://www.epa.gov/sites/production/files/2017-09/documents/rmp.pdf.
[iv] Eric Levenson. 3 storms, 3 responses: Comparing Harvey, Irma and Maria, CNN (September 27, 2017), https://www.cnn.com/2017/09/26/us/response-harvey-irma-maria/index.html.
[v] Jen Kirby. The Environmental Fallout of Hurricane Harvey. New York Magazine, (September 1, 2017), http://nymag.com/daily/intelligencer/2017/09/the-environmental-fallout-of-hurricane-harvey.html.
[viii] Environmental Protection Agency, Hurricane Maria Response (2017), https://response.epa.gov/site/site_profile.aspx?site_id=12403.
[ix] Infra, note 5.
[x] US EPA Hurricane Response 2017: TAGA: EPA’s Mobile Sampling and Analysis System. https://www.epa.gov/sites/production/files/2017-09/documents/taga.pdf.
[xi] Giuseppe Dari-Mattiacci & Nuno Garoupa, Least-Cost Avoidance: The Tragedy of Common Safety, JLEO (2009).
[xii] Neil A.F. Popovic, In Pursuit of Environmental Human Rights: Commentary on the Draft Declaration of Principles on Human Rights and the Environment, 27 Colum. Human Rights L. Rev. 487 (1996)
[xiii] Environmental Protection Agency, Pollution Prevention Law and Policies, https://www.epa.gov/p2/pollution-prevention-law-and-policies.
[xiv] David M. Driesen, Distributing the Costs of Environmental, Health, and Safety Protection: The Feasibility Principle, Cost-Benefit Analysis, and Regulatory Reform, 32 B.C. Envtl. Aff. L. Rev. 1, 12 (2005).
[xv] Infra, note 10.
[xvii] Donze v. GM, LLC, 420 S.C. 8 (SC 2017).