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| Fri, 19th Mar 2021 9:00:00 |
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The citizen regulators taking on big polluters when the EPA won't |
The headaches, asthma attacks and serious nosebleeds that plagued Diego Mayens as a child in West Long Beach, California were all triggered by one basic activity – playing outdoors. He suspects the foul emissions from nearby refineries and other heavy industry were behind his problems.
“It had to do a lot with the air quality in the area,” Mayens told the Guardian. “I feel particularly bad seeing kids playing outside and people who live here walking around who might not know what they’re breathing in.”
Among the toxins hanging in the air was benzene, a dangerous carcinogen that a 2017 California investigation found two nearby Phillips 66 refineries were emitting levels over 200 times higher than the company had reported. In the investigation’s wake, residents expected swift and forceful action from regulators at the South Coast Air Quality Management District, but that never happened.
Instead, in 2018, the community took action. Activists and environmental attorneys raised awareness of the health threat, documented Phillips’ ongoing benzene violations and filed a federal citizen lawsuit under the Clean Air Act. Facing clear evidence of wrongdoing and a court battle it was unlikely to win, Phillips quickly settled and is beginning to address its benzene leaks.
The case represents a major win for the communities near the refineries, but the larger narrative isn’t unique. Environmental attorneys and activists around the country are increasingly holding industry and regulators accountable when environmental agencies fail to protect residents, becoming, in effect, “citizen regulators”.
“Many of these environmental agencies view the community as lacking political power and resources to hold them accountable, but what we’re seeing now is a shift – communities are increasingly prepared to take on industry and hold agencies to their missions, which are to reduce emissions and protect public health,” said Oscar Espino-Padron, an attorney with San Francisco-based Earthjustice. The firm, which takes cases around the country, partnered with East Yard Communities for Environmental Justice, an organization with about 150 people, to sue Phillips.
The battles are a defense to the decades-long Republican-led assault on regulatory agencies that peaked under the Trump administration. Many agencies are gutted, defunded and demoralized. Some are also run by industry allies or former executives and are unwilling to take on polluters.
Data shows the fallout from lax oversight and industrial pollution disproportionately harms low-income communities of color – the NAACP recently found Black people are 75% more likely to than white people live in “fenceline” communities next to industrial polluters.
Over the last decade a new generation of activists has significantly grown, while focusing on “the intersection of race, class, environment and colonialism – how they’re all interconnected”, said Jan Victor Andasan, an East Yard organizer.
“There’s more collaboration and more understanding of all the ‘isms’ that we’re facing – like environmental racism,” they said. “It’s not like everyone said five to 10 years ago, ‘Let’s care about the environment’ … but it’s that there’s a lot more cohesion, there’s a lot more ground game in Black, indigenous, people-of-color communities, and there’s new leadership.”
And while largely white-led national environmental groups once made most decisions about lawsuits, attorneys have become more “culturally competent”, Andasan said, and residents living near polluters are taking on leadership roles in the court cases.
The confluence of these developments has led to more significant wins around the country, and the legal weapons commonly employed are citizen lawsuits under the Clean Air Act, Clean Water Act and other federal environmental statutes.
“Citizen suits are designed to wake up slumbering agencies and give them a chance to do their job,” Espino-Padron said. “It’s an important accountability tool that allows communities to hold polluters accountable when regulatory agencies are unwilling to act or lack political courage.”
‘Protecting the financial interest of the oil industry’
Andason describes the region around the Phillips refineries in Carson and Wilmington as “inundated and overburdened”, with pollution. Rail yards, the west coast’s largest docks, busy freeways and industrial polluters pump the region full of toxins.
Phillips, however, had “by far has the worst record of all”, Espino-Padron said. Though the company allegedly reported releasing 508lb of benzene at one refinery in 2018, Earthjustice and East Yard found it had really emitted an alarming 102,616lb. Meanwhile, the company had allegedly emitted up to eight times more volatile organic compounds (VOCs) than reported, and flares are a regular problem.
The South Coast AQMD in 2017 ordered Phillips to check hundreds of thousands of parts in its refineries for leaks, as is required by state rules, Espino-Padron said. Phillips agreed to comply, but turned in “sloppy and incomplete” progress reports, and it was clear the company wasn’t repairing components, maintaining an accurate database or following state rules.
Though the South Coast AQMD issued violation notices, it didn’t meaningfully pressure Phillips to address benzene leaks, Espino-Padron said. However, Earthjustice and East Yard monitored records as they prepared the suit, “basically doing the work of the agency” in the process.
He pointed to “industry-friendly” political appointments in the South Coast AQMD’s management who he alleged “are very much invested in protecting the financial interest of the oil industry, even at the expense of public health” as the likely reason for the agency’s weak response. The South Coast AQMD and Phillips declined to comment.
Industry influence over environmental agencies is a hallmark of such cases, especially in recent years at the EPA, which the Trump administration packed with former industry executives.
Regulatory apparatuses suffer “longstanding problems” like underfunding, understaffing and underenforcement, said Richard Revesz, an environmental law professor and dean emeritus at New York University School of Law. But since 2016, the overall problem grew to be much more acute “when combined with the shocking disregard for environmental enforcement that we saw during the Trump administration”.
‘We’re going to figure out how to defend our neighborhood’
Following the state’s 2017 benzene investigation, East Yard began researching Phillips’ operation and knocking on neighbors’ doors to alert them to the health threat. That’s when the nearby plants’ human toll came into focus, Andasan said. At house after house, they heard similar stories – nearly every family had someone in it who suffered or died from cancer.
Most households had multiple people with respiratory illnesses, and Andasan and their brother each suffer from asthma, while their mother, who moved to the largely working-class and immigrant neighborhood from the Philippines, struggles with asthmatic bronchitis.
Similarly, each member of East Yard member Maria Reyes’s family, which lives within a mile of the Phillips 66 Carson refinery, suffers from respiratory illnesses. Reyes testified that she twice lost consciousness while exercising outdoors, and her doctor advised her and her three children to stop doing outdoor activities to limit exposure to air pollution.
She reported “yellow droplets” that fall from the sky and irritate her family’s skin, and said she was worried that the pollution was harming her family, but they can’t afford to leave the neighborhood.
“We are unable to spend lots of time outside as a family because of air pollution, including bad odors from Phillips 66 that are unbearable, make me nauseous and irritate my throat,” Reyes added.
Andasan noted a study that found West Long Beach residents’ life expectancy is shorter than those in Long Beach, who live further away from the refineries. In a neighborhood short on resources, organizing is the only way to protect families from these issues, Andasan said.
“We’re fighting even if there aren’t resources – we’re going to figure out how to defend our neighborhood, organize with other families and build out our power,” they said.
Beyond canvassing, East Yard began engaging regulators, policymakers and polluters. It made comments during South Coast AQMD’s permitting process, organized a climate march and held “toxic tours” that educated residents about the area’s worst polluters.
The action around the issue caught the attention of Earthjustice, which was monitoring the situation and approached East Yard about working together on a suit. East Yard internally discussed a potential partnership, and viewed it as an opportunity to use the neighborhoods’ compelling stories to effect change, Andasan said.
“There are stories that residents can recall, painful stories about how pollution has affected their entire lives, that are part of this lawsuit,” they said.
In short, East Yard brought ground knowledge and stories that can move courts, juries and judges. Earthjustice provided the legal resources, and that’s the sort of synergy that can make these cases difficult for regulators and industry to defend against, attorneys say.
“The courts are very strict in requiring standing and showing that there are people who are injured, and people from the communities can write very powerfully about the nature of the harm that they are suffering,” Revesz said.
In April 2020, after two years of collecting data, Earthjustice and East Yard filed a notice of intent to sue under the Clean Air Act, naming the South Shore AQMD, Phillips 66, and the EPA as defendants. Phillips soon approached Earthjustice about a settlement, Espino-Padron said, and agreed to reduce its emissions, document its work and be transparent about the process.
While those who spoke to the Guardian say activism shouldn’t have to be a substitute for a robust regulatory system, it’s an example of a community successfully defending itself.
“What you’re seeing in this case, and this is the trend – communities are stepping into this legal space and reclaiming their power,” Espino-Padron said.
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