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