Speaker 1: When extreme weather hits, things stop working, things like the
Speaker 1: devices that are supposed to stop air pollution from getting
Speaker 1: into well the air. Today, on Parts Pavilion, we talk
Speaker 1: about whether someone other than Mother Nature should be held accountable. Hello,
Speaker 1: and welcome back once again two Parts Pavilion, the environmental
Speaker 1: podcasts from Bloomberg Law. I'm your host David Schultz. Last
Speaker 1: month's freakishly cold weather in Texas and other states caused
Speaker 1: all sorts of problems, several of which we spoke about
Speaker 1: recently on this very podcast. It started with widespread power outages,
Speaker 1: but certainly didn't end there. The Lone Star state is
Speaker 1: home to an enormous share of the country's oil refineries
Speaker 1: and petrochemical plants, and when they lose power, bad things happen. Specifically,
Speaker 1: the mechanisms that prevent emissions from seeping out of these
Speaker 1: industrial facilities break down, and they can release way more
Speaker 1: pollution than environmental regulars allow. Is there any way to
Speaker 1: prevent this from happening? Maybe? But the real question, or
Speaker 1: at least the question we're going to be examining today
Speaker 1: on this podcast, is can anyone be held legally liable
Speaker 1: when it does happen? Usually not according to Jennifer Higazzi,
Speaker 1: an environmental reporter with Bloombrig Law, she talked about the
Speaker 1: legal consequences of the Texas deep freeze and about how
Speaker 1: environmental enforcement works in situations like this, But first she
Speaker 1: tells us exactly what chemicals got released into the air
Speaker 1: in Texas last month. Benzene, carbon monoxide, sulfur dioxide, among others,
Speaker 1: and benzene is a carcinogen. The latter two are criteria
Speaker 1: air pollutants that are regulated under national ambient air quality
Speaker 1: standards and those route themselves in pulmonary and cardiovascular systems,
Speaker 1: contributing to heart problems, lung issues like asthma. Sulfur Dioxide
Speaker 1: is an ingredient in particulate matter, which we know embeds
Speaker 1: in the lungs and adversely affects free thing and prolonged
Speaker 1: exposure over years to the stuff can lead to heart,
Speaker 1: blood lung disease, and in some cases death. And of course,
Speaker 1: as we know, areas right on the funds line of
Speaker 1: these facilities, usually low income neighborhoods, usually communities of color,
Speaker 1: are always getting the brunt of any extra emissions on
Speaker 1: top of the chronic pollution problems they already face on
Speaker 1: a day to day basis. And what kind of facilities
Speaker 1: are we talking about. I mean, it's just like oil refineries,
Speaker 1: I know, those are typically the one of the biggest
Speaker 1: sources of pollution. Where there are other industrial facilities that
Speaker 1: you released a lot of pollution as a result of
Speaker 1: the freeze. Yeah, I think oil refineries, petrochemical facilities, heavy
Speaker 1: industry facilities, things like that, those are the the heavy
Speaker 1: hitters there. Yeah, And I mean one of the things
Speaker 1: that I thought was interesting is that it seems like
Speaker 1: this is pretty standard, like whenever there's a really extreme
Speaker 1: weather event, you know, there's always kind of excess pollution
Speaker 1: that gets released into the air. Is that right that
Speaker 1: this is just, you know, something that happens whenever there's
Speaker 1: a heat or a storm or a flood or I
Speaker 1: guess in this case, a severe freeze. Yeah. Well, I
Speaker 1: mean it seems to be a trend in Texas after
Speaker 1: severe weather. During severe weather, especially along the Gulf Coast.
Speaker 1: I mean, pollution controls work when the facility does so.
Speaker 1: Sudden malfunctions, shut down startups, those are going to impede
Speaker 1: the ability to mitigate emissions, or facilities will like burn
Speaker 1: off excess gas through flaring that you can't sit around
Speaker 1: safely unprocessed without power in cases you know where they
Speaker 1: lose power, you know last month when the electrical grid
Speaker 1: went down during flooding, things like that. So when Hurricane
Speaker 1: Harvey rolled through, refineries and chemical plants dumped upwards near
Speaker 1: like eight million pounds of extra emissions in the wake
Speaker 1: of the storms. Plants shut down, and all of this
Speaker 1: is made worse when I mean local air monitoring equipment
Speaker 1: also goes down in these storms. So like that means
Speaker 1: there isn't even a full picture of just how much
Speaker 1: people are exposed to when these emission spikes do happen
Speaker 1: in the wake of severe weather. I hadn't even thought
Speaker 1: about that. That not just the ability to contain the pollution,
Speaker 1: but the ability to even measure the pollution is affected
Speaker 1: by by these kinds of events. So there are federal,
Speaker 1: federal and state air pollution laws that allow facilities to
Speaker 1: release a certain amount of pollution but no more. Obviously
Speaker 1: they were releasing way more than that amount during this
Speaker 1: deep freeze. What kind of penalties will there be for
Speaker 1: the violations of these permits? These air pollution permits, historically speaking,
Speaker 1: not much and it's you know, their violations and they're
Speaker 1: not in a sense. So any Texas facilities that do
Speaker 1: release access pollution beyond their permit limits during these types
Speaker 1: of major events, they have many times a lot of
Speaker 1: the time buffers in their air permits that regulate these
Speaker 1: types of you know, accidental releases or violations. Plus, on
Speaker 1: top of that, the Texas Governor Greg Abbott, as was
Speaker 1: the case in last month's winter storm canon, does actually
Speaker 1: temporarily freeze certain environmental enforcement measures during the storms. So
Speaker 1: accidental releases are often already regulated and therefore allowed, you know,
Speaker 1: even if they are violations. So basically, when an event
Speaker 1: like this happens, companies have a certain time to self
Speaker 1: report their emission spikes during sudden startup, shutdown, malfunction to
Speaker 1: the Texas Commission on Environmental Quality. Then officials their decide
Speaker 1: if they want to pursue enforcement actions like penalties, which
Speaker 1: on a separate but related note, folks also say are
Speaker 1: far too low. So facilities have also have this really
Speaker 1: strong tool to shield themselves from immunity. Here they can
Speaker 1: claim something called affirmative defense, which basically they can say
Speaker 1: that emissions couldn't be predicted they couldn't be avoided. They
Speaker 1: did all they did within their permits given the suddenness
Speaker 1: and unexpectedness of this event, and thus are shielded from,
Speaker 1: you know, any kind of like major enforcement or liability.
Speaker 1: The Obama administration tried to quash the defense, but Texas
Speaker 1: retained the exemption under the Trump administration. Environmental groups really
Speaker 1: don't like this. They don't like the ability to, you know,
Speaker 1: have accidental releases of pollution with no penalties. On the
Speaker 1: one hand, I understand why you'd want to have an
Speaker 1: active God clause and some of these permits, because you know,
Speaker 1: there's not much that oil refinery can do about, you know,
Speaker 1: a hurricane or an insane like deep freeze that was
Speaker 1: very unexpected. On the other hand, though maybe there is
Speaker 1: something they can do, maybe they should have been more prepared.
Speaker 1: I mean, what do you make of this argument that
Speaker 1: these kind of Act of God clauses and air permits
Speaker 1: are being abused? Well, I think, I mean, at least
Speaker 1: the environmental groups and clean air advocates that I've spoken
Speaker 1: to in Texas and elsewhere say that these protections give
Speaker 1: emit little incentive to actually stem their emissions at all.
Speaker 1: So the penalties are too oh, the liability shields are
Speaker 1: too high, and with such broad protections, groups see the
Speaker 1: process as facilities doing the bare minimum within their permits.
Speaker 1: Utilizing affirmative defense essentially is a loophole and then continuing
Speaker 1: to emit pollution directly into oftentimes and usually, especially like
Speaker 1: in the Houston area, over burdened communities, without enough repercussions
Speaker 1: from the state's environmental enforcement body. And there are bills
Speaker 1: running through Texas legislature right now that would, I believe,
Speaker 1: increase the penalty fees per pound of pollution and eliminate
Speaker 1: the affirmative defense. But I would imagine they probably face
Speaker 1: an uphill battle there, right And it's I mean a
Speaker 1: because you know, Texas, the economy of the state relies
Speaker 1: really heavily on the oil and gas industry. Also, I
Speaker 1: have to imagine that it'd be a hard political cell
Speaker 1: to say, you know, we're going to go after these
Speaker 1: companies that were hurt by the deep freeze, you know,
Speaker 1: because they could say like, oh, you know, we were
Speaker 1: affected just like everyone else, and now the politicians are
Speaker 1: going after us. I mean, is there is there that
Speaker 1: political element to it as well? That you know, it's
Speaker 1: like adding salt to a wound. I guess, yeah. I mean,
Speaker 1: and you know I contacted you know, the Texas Commission
Speaker 1: Environmental Quality and you know, the Texas whil and Gas Association,
Speaker 1: and you know, they basically were like, we do everything
Speaker 1: we can in the wake of these really unprecedented disasters,
Speaker 1: which I mean, science tells us these are less and
Speaker 1: less unprecedented things to climate change. But you know, and
Speaker 1: that they were doing what they were doing considering these
Speaker 1: you know, massive kind of impediments to the way that
Speaker 1: the facilities run. They were literally shutting down or you know,
Speaker 1: they had to safely flare gas or in some like
Speaker 1: safely conserve energy to make sure that there was enough
Speaker 1: you know, for Texas generally. But you know, it's you know,
Speaker 1: environmentalists are still like, but the emissions, right exactly. Uh. Finally,
Speaker 1: let's talk about you know what you mentioned earlier that
Speaker 1: the Obama administration tried to roll back Texas' ability to
Speaker 1: shields it's emitters from these kind of penalties. The Trump
Speaker 1: administration did a one eighty. Will the Biden administration do
Speaker 1: another one eighty? That's two one eighties, which is a
Speaker 1: three sixty. Of course, will the Biden administration go back
Speaker 1: to having more enforcement on these polluters in Texas and elsewhere. Yeah,
Speaker 1: I mean, folks I spoke to certainly hope that Biden
Speaker 1: beefs up environmental violation enforcement all around, and I think
Speaker 1: advocates definitely want to see these Texas exemptions as part
Speaker 1: of that effort. Right. I'd say legal liability in this
Speaker 1: realm is an uphill battle, especially after big storms, but
Speaker 1: it's not impossible. I mean, Exon, for instance, was handed
Speaker 1: I think like a fourteen million dollar fine this month
Speaker 1: for emissions violations over a period of It was over
Speaker 1: a period of years, despite an Act of God defense
Speaker 1: for one of its Texas refineries, So you know, it
Speaker 1: does happen. But I think folks hope that increased enforcement,
Speaker 1: whether under Biden or depending on how these bills fair
Speaker 1: and state government, could increase incentive to do more on
Speaker 1: emissions mitigation in the wake of extream weather, which again
Speaker 1: science tells us is only going to get worse and
Speaker 1: more frequent. That's it for today's episode of Parts per Billion.
Speaker 1: If you want more environmental news, check us out on Twitter.
Speaker 1: We use the handle at environment I'm at David B. Schultz.
Speaker 1: If you want to talk to me about anything and everything.
Speaker 1: Today's episode, Parts per Billion was produced by myself and
Speaker 1: Josh Block. Partsurabilion was created by Jessica Coombs and Rachel Dagle.
Speaker 1: The music for today's episode is a message by Jassar
Speaker 1: and Historia day Amore by Evo a Body, Manuel Dante,
Speaker 1: Matthew Fivra and Miguel Saboga. They were used under a
Speaker 1: Creative Commons license. Thanks everyone for listening. Hi, This is
Speaker 1: Adam Allington, the hosting producer of Uncommon Law from Bloomberg Law.
Speaker 1: It isn't hyperbole to say that the murder trial of
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