Making the Law More Than Words on a Page

Our system of environmental protection has three pillars: laws that set policy and standards; permits that define what people and facilities have to do to meet those standards; and monitoring and enforcement to make sure they comply. From day one, the Trump administration worked to undermine each of these pillars. It tried to weaken environmental regulations, issued flawed permits, and looked the other way when the rules were violated.

After four years of playing whack-a-mole defense against this agenda (and there were a lot of moles — we whacked over 200), we are beginning to see some daylight in our dockets, and that gives us the opportunity to play more offense. One facet of that will be that we’ll take on more affirmative cases against polluters. This is critical work: Our laws don’t mean anything if polluters think they can ignore them without consequences. And while the government is supposed to police compliance, politics and budget concerns mean there’s never enough government enforcement, even under Democratic administrations.

Fortunately, most of our environmental laws offer communities a backup plan: the right to go to court to vindicate the laws themselves. As the nation’s premier environmental law organization, Earthjustice often represents people, tribes, and municipalities that want to use the law to stop actions that can harm the climate, communities, and species.

Here are two good examples of the kind of enforcement work we’ve been doing.

1. Stopping “fugitive emissions” at SoCal oil refineries

The Los Angeles region is home to the largest collection of petroleum refineries on the West Coast, many of which are tucked among marginalized communities of color in East and South LA and Long Beach. These neighborhoods have sky-high rates of asthma, cancer, and cardiovascular disease — all of which are conditions linked to pollution levels.

One of the most important ways that these refineries discharge pollution is through “fugitive emissions,” AKA “leaks.” A modern refinery consists of an endless maze of pipes, tanks, reactors, fittings, and valves… all of which leak, dumping an enormous amount of pollution into the air. That’s 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, so long as they promise to fix those leaks after they occur, is a testament to the grip the industry has on our politicians.)

But over the last five years, Phillips 66 failed to repair leaks at its Southern California facilities more than 600 times. Instead, it discharged fugitive emissions far in excess of its permit. In one case, it dumped into the air 12 times more VOCs (volatile organic compounds) and 200 times more carcinogenic benzene than it was supposed to. The refinery didn’t even try to hide its maintenance failures. It actually reported these violations to the local environmental agency), which dutifully recorded them. But the South Coast Air Quality Management District didn’t do anything to stop the problem.

So Earthjustice, in partnership with East Yard Communities for Environmental Justice, built our own enforcement case with the use of public information. Last year, we notified the Environmental Protection Agency (EPA), local permit agency, and Phillips 66, that we were going to sue Phillips 66 for persistently violating its federal permit and poisoning local communities. The law and facts were so clear that Philips 66 settled before we even filed suit and has committed to replacing equipment several leak detection and repair actions to reduce pollution.

2. Uncovering the not-so-mysterious source of mercury poisoning the Ohio River

Louisville, KY, prides itself as the “River City,” and three million people get their drinking water from the nearby Ohio River. Then Kentucky’s state environmental agency warned that the river just downstream from the city was “impaired” by mercury, a chemical that affects the brain, nervous system, and kidneys, especially in children. The cause, according to the agency, was “unknown.”

But if you looked on Google Earth, you would have been able to hazard a guess. Images of the area showed what appeared to be a manmade stream running from the Louisville Gas and Electric’s Mill Creek Generating Station directly into the Ohio River.

That image set off a multi-year investigation by Earthjustice and our partner organizations, including Sierra Club. Through diligent sleuthing, we discovered that the stream in the picture carried toxic coal ash from a waste storage pond straight into the Ohio River almost every day.

LG&E did have a permit for discharging coal ash wastewater, but the permit only allowed for “occasional” discharges into the Ohio River. And for good reason: coal ash contains arsenic, lead, selenium, cadmium… and mercury: LG&E’s own measurements showed that it was dumping mercury into the Ohio River at concentration levels 20 times the legal limit.

We filed an enforcement action to stop the illegal discharge. It took three years of litigation and negotiation, but LG&E finally agreed to stop illegally dumping in the Ohio River, upgrade its wastewater treatment, and close its coal ash ponds. The utility also committed $1 million to rehabilitating the river quality downstream from the power plant.

Enforcement is a team effort

While Earthjustice has the skills to give our partners a fighting chance against polluting industries, the reality is that we can’t do it alone. The U.S. government has chronically underfunded enforcement programs in agencies like the EPA, the Justice Department, the Bureau of Land Management, and the Fish and Wildlife Service. Their budgets have been mostly flat, and enforcement isn’t popular with the industries that support politicians on both sides of the aisle. As a result, federal agencies have been doing less and less enforcement work — a trend predating the Trump administration. The burden of this inattention has fallen disproportionately on poor communities and communities of color.

The Biden administration has made broad promises to center the environment and environmental justice in its governing agenda. If it wants to do that, it must make environmental enforcement a government priority once more.