Of Carts, Horses, and Climate Change

I teach an introductory Environmental Law class as well as two seminars on environmental topics, Global Climate Change and U.S. Law and International Environmental Law.  Figuring out how to apportion climate change coverage between these courses proves a challenge.  In part because of a diligent and successful public interest litigation strategy (that has forced the consideration of climate change under statutes ranging from environmental impact review to endangered species and clean water), climate change has both practical and legal ramifications under a host of environmental statutes.

I have long thought of hazardous waste site remediation as one of the few core areas of environmental law relatively unaffected by climate change (and thus a safe, climate-free topic for the introductory course).  However, recent articles describing the projected climate change-related increase in the frequency of major (100-year) storm events as well as draft policy regarding green remediation issued by the New York State Department of Environmental Conservation (recommending, in particular, that hazardous waste sites be remediated with an eye to reducing associated greenhouse gas emissions), prompted me to think about ways that climate change may impact hazardous site remediation as well.  

By way of general background, the primary strategies for remediating a hazardous waste site are to remove the contaminated materials and treat/dispose of them elsewhere or leave the contamination in place and either treat the materials in situ or impose institutional controls (such as deed restrictions) and/or engineering controls (such as caps) designed to limit future exposure.  Leaving contamination in place with institutional and/or engineering controls is frequently far less expensive than removal, treatment, and disposal, and is thus often the remedial option favored by potentially responsible parties. However, one of the key considerations for environmental regulators in deciding whether to approve a remedy that leaves contamination in place is whether future exposure to the remaining contaminants may occur as a result of extreme weather events, like 100-year storms.  (So, for example, where sediments are contaminated but have naturally been covered by a layer of uncontaminated sediments, will erosion during a 100-year storm event bring the buried contaminated sediment to the surface?)  Similarly, one of the key considerations in the design and evaluation of engineering controls (containment systems) is whether they will withstand extreme events like 100-year floods and 100-year storms.  For a description of how the EPA models storm events during site remediation, see EPA’s Contaminated Sediment Remediation Guidance for Hazardous Waste Sites. In light of the above, does climate change – and the associated increased frequency in extreme weather events – raise the bar for the selection of remedies reliant on institutional and/or engineering controls?

These same considerations inform a related inquiry that looks backward instead of forward.  Many sites have already been remediated pursuant to the terms of a consent decree that sets forth the terms for resolving the PRPs’ liability at the site, including describing the final remedy that the PRPs agree to implement (or pay for).  Consent decrees generally include a provisions referred to as a reopener that allows the government to require additional clean up by the PRPs under certain conditions, as where "information is received after entry of the consent decree regarding previously unknown site conditions or new scientific determinations, and such information indicates there is an imminent and substantial endangerment to public health or the environment."  Superfund Program:  Covenants Not To Sue, 52 Fed. Reg. 28,038 (Jul. 27, 1987).  Do predictions about the increased number and severity of storms provide grounds for the government to reopen existing consent decrees and require additional work?  Notably, these remedies were approved based on now outdated modeling of extreme weather events; exposure to contaminants (and hence endangerment) could occur if institutional and engineering controls are not adequate to withstand such weather events.

The above discussion highlights an uncomfortable paradox in this country's current response to climate change.  On the one hand, we are convinced enough about the perils of climate change (at least as a legal matter) to have designated species as endangered primarily on grounds of climate change-related threats, require consideration of climate change in environmental impact review, and alter the way we remediate hazardous waste sites.  On the other hand, the legal adaptation of our existing environmental statutes seems to have greatly outpaced the public and political will to meaningfully mitigate climate change by reducing domestic emissions.  Designate species as endangered as a result of projected climate harms?  (Cart.)  Check.  Evaluate projects and remediate sites with an eye to conserving energy? (Cart.)  Check.  Actually require significant reductions in greenhouse gas emissions?  (Horse.)  Errr, ummm . . . get back to you on that.  Still debating in Congress as EPA (after a trip to the Supreme Court) begins the monumental process of developing regulations under the Clean Air Act subject to talk of a congressional override of its authority to do so.