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Excerpted From: Maxwell Nettler, Equity Through Efficiency: Rethinking Superfund Policy in Light of Tort Law-provoked Environmental Racism, 30 New York University Environmental Law Journal 267 (2022) (210 Footnotes) (Full Document)


MaxwellNettlerThe location selected for a hazardous waste site, as well as the amount of time that waste lingers there before being cleaned, are the two factors that dictate which communities will be plagued by hazardous waste for the longest durations. This Note labels the first factor the siting stage and the second factor the cleanup stage. At the siting stage, private polluters or local governments decide where to dispose of hazardous waste. At the cleanup stage, EPA decides which of these hazardous waste sites require cleaning and the appropriate order in which to clean those sites. Decisions made during the siting stage, therefore, determine the communities that will face the health risks posed by hazardous waste, and cleanup stage decisions inform a community's duration of exposure to those risks.

One might expect that decisions about where to site hazardous waste are based primarily on safety and are reached by comparing the environmental suitability of various proposed locations. But that expectation would not match reality. Evidence instead indicates that, in an attempt to minimize potential losses from hazardous waste-related lawsuits, both private polluters and local governments make siting stage decisions according to where court-awarded damages are most likely to be small. In other words, hazardous waste stalks the communities whose members are expected to be least compensated for their injuries.

Inadvertently or otherwise, tort law dooms communities of color to suffer this toxic stalking. It does so by linking the size of a damages award to the plaintiff's race. When calculating damages, expert witnesses use employment statistics that vary along racial lines. Due at least partially to past and ongoing workplace discrimination, these employment statistics are generally lower for people of color than they are for white tort victims. Communities with large populations of color thus become the locations that siting stage decisions favor for hazardous waste disposal. Indeed, scholarship confirms that hazardous waste is disproportionately sited in or near communities of color.

EPA, as the key actor of the cleanup stage, is poised to mitigate the effects of discriminatory siting stage decisions by ensuring that people of color are exposed to hazardous waste for the shortest time possible. Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or “the Superfund law”), EPA has the authority to remediate a hazardous waste site itself or to compel parties responsible for the hazardous contamination to conduct the cleanup. CERCLA also establishes the Superfund Trust Fund, which supplies EPA with financing for the remediation of certain hazardous waste sites--those that the agency deems most dangerous. To determine which of these sites warrant the highest priority for Trust Fund resources, EPA performs risk assessments designed to gauge the threat posed by each site. Properly framed, Superfund risk assessments could enable EPA to reduce the amount of time people of color must endure exposure to hazardous waste.

Currently, however, the agency is missing this opportunity. Risk assessments for Superfund sites fail to either consider the size of the exposed population or distinguish between risks that are already occurring and those that could possibly emerge at some point in the future. As a result, EPA often prioritizes sites that generate future risk to which relatively few people might be exposed, above sites that generate present risk to which many people are actually experiencing exposure. The agency thereby neglects to allocate its resources efficiently, spending money to remediate sites that are less certain to cause harm and which would harm smaller numbers of people. But more than that, the misallocation of resources exacerbates an issue of environmental justice, as perverse tort incentives at the siting stage make certain that the communities in closest proximity to hazardous waste are comprised disproportionately of people of color.

The environmental justice connection between Superfund policy and tort law is underexplored. Considerable research documents the environmental justice issue posed by the fact that people of color suffer greater exposure to hazardous waste than do white Americans. There is some literature explaining how the incentive structure created by tort law facilitates that phenomenon. And very little scholarship is aimed at the environmental justice implications of the risk methodology used to prioritize Superfund sites. But nowhere are the dots of Superfund policy and tort law connected to reveal that the two conspire, each one at its own stage of hazardous waste decision-making, to amplify environmental racism. This Note contends that, to avoid compounding the harm that tort law channels toward communities of color at the siting stage, EPA must reform its policy at the cleanup stage when determining the remediation priority assigned to Superfund sites.

The Note proceeds in three Parts. It works backward from the cleanup stage to the siting stage, with Part I demonstrating how EPA's risk methodology leads to inequitable treatment of large populations currently exposed to hazardous waste, and Part II showing that, due to perverse tort incentives, those populations are disproportionately communities of color. Part III asserts that alleviating the burden on communities of color that is put there by tort law and kept there by Superfund policy requires EPA to account for population size and risk type when conducting its risk assessments. By so reforming its policy, EPA can accelerate the march toward environmental justice rather than remain an accomplice to environmental injustice.

[. . .]

The methodology EPA uses to determine which Superfund sites warrant the highest priority disadvantages those sites that truly should be remediated most immediately. EPA refuses to account for population size and declines to distinguish between real people and hypothetical individuals, thereby misallocating the Superfund Trust Fund's depleted resources. Funneled through the incentive structure created by tort law, hazardous waste is disproportionately deposited in communities of color, which in turn means that Superfund sites emerge in these communities at disproportionately high rates. To prevent discrimination against people of color at both the siting stage and cleanup stage of hazardous waste decision-making, EPA should implement a framework of equitable risk tradeoffs when prioritizing the Superfund sites that demand attention first.

Articles Editor, New York University Environmental Law Journal. J.D. 2022, New York University School of Law.

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