John Rumpler is senior environmental attorney at the National Association of State PIRGs and Alex Fidis is superfund advocate at U.S. PIRG.
In the aftermath of Katrina, the contaminated floodwaters of New Orleans are a grim reminder that toxic chemicals are still ubiquitous in our allegedly “post-industrial” economy. In fact, the catastrophic and widespread release of hazardous substances—from oil refineries, chemical plants, pesticides and even household cleaning products—have turned much of the Gulf Coast into a toxic wasteland. And as our nation tallies up the health, economic and ecological costs of this tragedy, we are faced with two questions: Who will pay for the cleanup, and how can such disasters be prevented in the future?
Recent White House statements project that total response costs for Katrina will exceed $200 billion. And while the proportion of this cost attributable to hazardous waste cleanup is unknown, it is likely to be substantial.
Sound public policy dictates that industries should be liable for the toxic contamination they create in the pursuit of profit. And it is hard to believe that the multibillion-dollar oil and chemical companies residing in Cancer Alley, along with their insurers, did not contemplate the risks their facilities and products would pose in a severe hurricane.
However, it is unlikely that American taxpayers will receive one dime of reimbursement from these powerful polluters. When Superfund became law in 1986, the oil and chemical industries persuaded Congress to include two liability loopholes. First, petroleum is exempted from the definition of hazardous waste. Second, “acts of God” constitute an affirmative defense for toxic spills. In exchange, the industry agreed to the imposition of “polluter pays” fees to provide a steady and reliable source of money to pay for toxic cleanups—especially in cases where liability could not be imposed.
Up front, this Faustian bargain with the likes of DuPont and Shell might appear as a reasonable and pragmatic calculation. In hindsight, the public was shortchanged by legislative sleight of hand: While the loopholes were drafted as permanent, the polluter pays provision required reauthorization by Congress.
And that’s where the chemical companies went to work—launching a multi-year PR campaign to smear Superfund and undercut support for polluter pays. In 1995, their efforts paid off; Congress failed to reauthorize the fees. As a result, the Superfund is now officially bankrupt. The Oil Spill Liability fund is expected to be bankrupt by 2009, although costs to clean Katrina oil spills may advance this date. And in case you hadn’t heard, Exxon/Mobil just reported record-breaking profits on the order of $8 billion earnings last quarter.
But the injustice does not end there. A combination of wars and tax cuts has left the federal treasury ill-equipped to finance the grand “Marshall Plan for New Orleans” that has been heralded in recent days. With limited resources, the pressure to cut corners will be great. Will cleanup standards be compromised to ensure adequate funding for jobs, food and housing? With no polluter money on the table, the risks of such unconscionable choices become graver by the day.
And so, absent some change in policy, taxpayers will pick up the tab for toxics in the Big Easy.
Of course, the simplest way to redress this problem would be for Congress to reauthorize Superfund and Oil Spill Liability Fund polluter pay fees without delay. But if Congress will not act, perhaps the Gulf States should consider imposing their own fees on large industrial facilities in the affected hurricane area. Such a Katrina cleanup fee would mirror the equitable policy of Superfund’s polluter-pays fees by imposing cleanup costs on sources of toxic contamination. The fee would also spread costs across the industry, and it avoids placing significant financial burdens on any one corporation. The industrial facilities that release toxic contamination into the environment and nearby communities have a responsibility to assist with the cleanup and to protect the public from their toxic substances.
In addition to the immediate solution of the Katrina cleanup fee, other forward-looking actions can help prevent a recurrence of the Katrina toxic disaster.
First, industries can implement existing safe alternatives for many toxic chemicals. A policy of toxic use reduction and chemical substitution will do more to protect public health from toxic contamination both now and in the future. For example, many petroleum facilities use the toxic hydrofluoric acid in production processes when more than 100 refineries currently use safer alternatives. Switching to safer chemicals will reduce or eliminate public health risks in the event of a catastrophic event, and state and federal officials must renew efforts to implement these protective changes.
Second, toxic release reporting and public right-to-know laws must be strengthened. Stronger and broader reporting and disclosure requirements provide the public and first responders with the information necessary to immediately assess potential health threats. A well-informed public helps everyone to prepare and plan for potentially disastrous situations. In the wake of Katrina, responders and residents are still attempting to learn what toxins are present in the floodwaters and remaining sludge. With stronger toxic release reporting, future uncertainties of this nature can be prevented.
Finally, Congress should remove the liability loopholes in the Superfund law. Absent comprehensive regulation, liability is one of the best tools we have to induce changes in corporate behavior.
In this case, the toxic stew simmering in the streets of New Orleans was not the inevitable result of some natural force; rather, it is the foreseeable result of industrial producers choosing to use toxic chemicals in every facet of our economy. Moreover, as more evidence links storm intensity to global warming, such tragic storms are not merely “acts of God,” but forces made worse by many of these same polluters. With liability firmly re-established, corporate insurers are likely to demand pollution prevention and measures to reduce emissions.
As Katrina has shown, the nation is not prepared to deal with toxic contamination caused by catastrophic events. Policies that create toxic cleanup funds, reduce the use of toxic chemicals and increase public awareness of potentially hazardous situations will help prepare community and federal responses across the country—and limit the public health and environmental damage that occur when nature and industry collide.