Private law no longer works to protect communities from toxic floodwaters



A sign on Crescent Beach reads ‘Area Closed Due to Oil Spill’ after an oil spill off Newport Beach, California in October 2021. Approximately 126,000 gallons of oil spilled into the Catalina Channel from a pipeline from the port of Long Plage to the Elly offshore oil platform. EFE/EPA/ETIENNE LAURENT

Climate change has intensified decade after decade since the industrial revolution. This global phenomenon with terrifying consequences for the environment is unequivocally the result of reckless human activities, such as the excessive felling of forests and the burning of fossil fuels. Its consequences are undeniable: Greenland lost around 279 billion tonnes of ice every year between 1993 and 2019, and global sea levels rose by around 20 cm in the last century.

One of the most devastating effects of climate change is the increased frequency and intensification of natural disasters such as hurricanes and floods, which pose a significant threat to chemical facilities located in low-lying coastal areas. In addition to the destruction caused by natural disasters alone, when extreme weather conditions collide with industrial facilities, it can lead to industrial disasters such as explosions, fires and chemical releases. These industrial disasters not only pose a huge danger to the environment, but they also threaten the communities living near these facilities.

For example, there are 872 chemical facilities within 50 miles of the US Gulf Coast, a place often hit by hurricanes. If a chemical spill were to occur, triggered by a natural disaster, more than 4.3 million people living near these chemical plants would experience severe toxic exposure to dangerous floodwaters. This threat extends far beyond the United States, as chemical plants around the world are at high risk of releasing toxic substances and are in no way sufficiently prepared to deal with such crises.

Are chemical facilities prepared to prevent the leakage of hazardous substances?

When a technological accident occurs as a result of a chemical release triggered by climate change, it is known as a “Natech” event, or technological event triggered by a natural hazard. Even though chemical facilities around the world are responsible for assessing all potential causes of emergencies, numerous reports have revealed that the risks associated with natural disasters resulting from climate change are rarely considered.

This leaves chemical facilities vulnerable to loss to respond to severe threats such as hurricanes.

The impact of Natech events on chemical facilities, offshore platforms and other infrastructure that process, store or transport hazardous substances can cause fires, explosions and toxic leaks. Some of the most telling examples of recent major Natech events are the 2002 floods in Europe, which resulted in massive releases of hazardous substances, including chlorine and dioxins; the 2011 Tōhoku earthquake and tsunami, which caused a meltdown at a nuclear power plant and explosions at oil refineries; and Hurricane Sandy, which occurred in 2012, causing multiple oil spills.

Undoubtedly, the implementation of stricter regulations for chemical installations on a global scale is necessary and should take place as soon as possible. However, leaving new regulations aside, we should ask ourselves whether private law is sufficient to protect communities living near chemical installations from toxic floodwaters that may arise from a leak of hazardous substances.

Protecting Vulnerable Communities from Toxic Floodwaters—Private vs. Public Law

Toxic floodwaters affect communities through poor decisions about land use, facility locations, engineering, and environmental regulations. Contractual arrangements, insurance and tort law, all private law tools, fail to address the dire threat of hazardous substance leaks because they are unable to identify the companies responsible for product leaks. chemicals and holding the right people accountable.

For many countries, the current regulatory regime for chemical facilities has existed for decades. Because it was developed for another era, it reflects other priorities and is no longer effective for the status quo. Regulations governing chemical facilities in the United States, for example, date back to 1972, when the Clean Water Act was implemented. At the time, climate change was not perceived as such a serious and imminent phenomenon. Therefore, it is not mandatory for chemical facilities to consider Natech events when developing their emergency plans. Most nations have long relied on private law to govern the storage of chemicals. Yet there are no mandatory performance, inspection or record keeping standards for storage tanks. This lack of regulation leads to companies storing millions of gallons of chemicals in areas prone to natural disasters caused by climate change without the necessary preparation.

In contrast, public law is a viable and effective alternative to private law for regulating chemical facilities and protecting nearby communities. Indeed, public law concerns matters that affect society as a whole and includes administrative and municipal law. Public law bodies and civil servants have the power to make decisions and act from Parliament. Some public bodies that can help solve the problem of outdated regulations for the chemical industry are ministries, agencies and health authorities. Instead of regulating relationships between individuals or industries, public law regulates the legal system itself.

It is undeniable that private law is failing, so countries need public law efforts to prevent chemical disasters, including standards for the storage of hazardous substances and other reforms to close the gaps in laws on the chemical management.

Chemical industry executives often argue that new regulatory regimes are unnecessary because companies have their own programs to prevent accidental releases of hazardous substances during natural disasters. They also believe it because companies are subject to security mandates from their own insurance companies. Nevertheless, despite these private law beliefs and mechanisms, more and more Natech events are happening around the world. Up to 86% of these industrial disasters are the result of thunderstorms, extreme temperatures and lightning, which are becoming more frequent due to climate change.

It is undeniable that private law is failing, so countries need public law efforts to prevent chemical disasters, including standards for the storage of hazardous substances and other reforms to close the gaps in laws on the chemical management. Authorities should reduce the vulnerability of communities residing near chemical plants, and the government should strengthen the current chemical regulatory regime to become more responsive to natural disasters caused by climate change. Following the terrible events at Natech, Japan and some EU countries introduced building codes and land use controls that specifically address potential chemical leaks.

Policy makers and emergency managers should draw up a comprehensive inventory of vulnerable chemical facilities as a first step in the right direction. They must also have a thorough understanding of the hazardous substances stored at each chemical plant and the extent of the facility’s exposure to natural disasters. Additionally, environmental agencies must establish performance, construction, and leak detection requirements for chemical storage tanks and require facilities that store chemicals above a specific volume to prepare spill prevention and response.

Authorities and policy makers should learn from past disasters

The impact of climate change on the environment will intensify over decades, and there is nothing we can do to stop it. Nevertheless, we can urge authorities and policymakers to take drastic action as soon as possible to prevent vulnerable communities from being exposed to toxic floodwaters in the event of a chemical release. Superiors must learn from past disasters such as the Tōhoku earthquake and Hurricane Sandy and take drastic action to prevent future Natech events.

Policy makers and authorities should not assume that current weather conditions or chemical plant infrastructure will remain the same. For this reason, they must build adaptability and resilience in emergency response. Similarly, they should not assume that chemical facilities that have not experienced a toxic substance leak in the past will not experience one in the future, as climate change increases the frequency of natural disasters.

Good examples of international efforts to promote Natech risk management and raise awareness include the Natech Addendum to the Organization for Economic Co-operation and Development (OECD) Guiding Principles for Accident Prevention, Preparedness and Response chemicals and the United Nations Sendai Framework for Disasters. Risk Reduction 2015-2030, which emphasizes the need to improve preparedness for Natech events.

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