Make the law more than words on a page
Our environmental protection system is based on three pillars: laws that define policies and standards; permits that define what people and facilities must do to meet these standards; and monitoring and enforcement to ensure they are compliant. From day one, the Trump administration has worked to undermine each of these pillars. He tried to weaken environmental regulations, issued flawed permits and looked away when rules were broken.
After four years of playing a mole defense against this agenda (and there were a lot of moles – we’ve hit over 200), we’re starting to see some light in our roles, and it’s giving us the opportunity. to play more offensive. . One facet of this will be that we will take more affirmative cases against polluters. This is essential work: our laws mean nothing if polluters think they can ignore them without consequences. And while government is supposed to monitor compliance, political and fiscal concerns mean there is never enough government enforcement, even under democratic administrations.
Fortunately, most of our environmental laws provide communities with a back-up: the right to go to court to enforce the laws themselves. As the nation’s premier environmental law organization, Earthjustice often represents individuals, tribes, and municipalities who wish to use the law to stop actions that can harm the climate, communities, and species.
Here are two good examples of the kind of law enforcement work we do.
1. Stop “fugitive emissions” in SoCal oil refineries
The Los Angeles area is home to the largest collection of oil refineries on the West Coast, many of which are nestled among marginalized communities of color in eastern and southern Los Angeles and Long Beach. These neighborhoods have extremely high rates of asthma, cancer, and cardiovascular disease – all of which are conditions linked to pollution levels.
One of the most important ways for these refineries to release pollution is “fugitive emissions”, AKA “leaks”. A modern refinery is made up of an endless labyrinth of pipes, tanks, reactors, fittings and valves… all of which leak, dumping an enormous amount of pollution into the air. This is why the Clean Act requires refineries to conduct inspection and maintenance programs that detect leaks, fix them, and then confirm and document that they are fixed. (Side note: The fact that oil and gas companies are allowed to build refineries that will inevitably leak, as long as they promise to fix these leaks after they happen, is a testament to the industry’s grip on our politicians. .)
But in the past five years, Phillips 66 has failed to repair leaks at its Southern California facility more than 600 times. Instead, he released fugitive emissions far beyond his license. In one case, it spilled into the air 12 times more VOCs (volatile organic compounds) and 200 times more carcinogenic benzene than expected. The refinery didn’t even try to hide its maintenance failures. He actually reported these violations to the local environmental agency, which dutifully recorded them. But the South Coast Air Quality Management District has done nothing to stop the problem.
So Earthjustice, in partnership with East Yard Communities for Environmental Justice, built our own law enforcement case using public information. Last year, we informed the Environmental Protection Agency (EPA), the local licensing agency, and Phillips 66, that we were going to prosecute Phillips 66 for continuing violation of its federal license and poisoning local communities. The law and the facts were so clear that Philips 66 settled before we even sued and committed to replacing the equipment with multiple leak detection and repair actions to reduce pollution.
2. Uncover the not-so-mysterious source of the Ohio River mercury poisoning
Louisville, KY, prides itself on being the “River City,” and three million people get their drinking water from the nearby Ohio River. Then, the Kentucky State Environmental Agency warned that the river just downstream from the city was “weathered” by mercury, a chemical that affects the brain, nervous system, and kidneys, especially in children. children. The cause, according to the agency, was “unknown”.
But if you looked on Google Earth, you might have made a guess. Images of the area showed what appeared to be a man-made creek running from Louisville Gas and Electric’s plant at Mill Creek directly into the Ohio River.
This image sparked a multi-year investigation by Earthjustice and our partner organizations, including the Sierra Club. Through diligent research, we discovered that the creek in the photo carried toxic coal ash from a waste storage pond directly into the Ohio River almost every day.
LG&E had a permit for the discharge of coal ash wastewater, but the permit only allowed “occasional” discharges into the Ohio River. And for good reason: coal ash contains arsenic, lead, selenium, cadmium … and mercury: LG & E’s own measurements have shown that it was dumping mercury into the Ohio River at 20 concentration levels. times greater than the legal limit.
We have taken enforcement action to stop the illegal dump. It took three years of litigation and negotiations, but LG&E finally agreed to stop dumping illegally into the Ohio River, improve its sewage treatment, and shut down its coal ash ponds. The utility has also committed $ 1 million to rehabilitate the quality of the river downstream from the power plant.
Law enforcement is teamwork
While Earthjustice has the skills to give our partners a chance to tackle polluting industries, the reality is that we cannot do it alone. The US government has consistently underfunded enforcement programs at agencies like the EPA, the Department of Justice, the Bureau of Land Management, and the Fish and Wildlife Service. Their budgets have been mostly stable, and law enforcement is not popular with industries that support politicians on both sides of the aisle. As a result, federal agencies are doing less and less enforcement work – a trend predating the Trump administration. The burden of this inattention fell disproportionately on poor communities and communities of color.
The Biden administration has made broad promises to center the environment and environmental justice in its government agenda. If he wants to do that, he must make environmental law enforcement a government priority once again.