By Jason Searle
February 20, 2018
The Michigan Journal of Law Reform (MJLR) recently held a symposium focusing on the status of energy and environmental regulation in today’s contentious political climate. Professor Adam Simon—who teaches a variety of courses at the University of Michigan—said in his opening remarks that coal is a good example of both the need for environmental regulation and the possibility of bipartisan agreement. He explained how, between the harmful environmental effects of burning coal and its greater cost in relation to other energy resources, phasing out coal has attracted support from both sides of the political aisle. “The only way coal could come back on the scene would be very high gas prices,” Simon said, nodding to the rising use of natural gas. “As long as the lights turn on in the morning, many people don’t care where it comes from.”
Throughout the symposium, participants echoed the importance of energy and environmental regulation that has appeal across the political spectrum, and how to get that message across to lawmakers under the current Congress and presidential administration. Particular attention was given to how energy and environmental regulation may be pitched to conservatives who generally shy away from perceived government overreach. Panels explored how regulation may interact with federalism, business, and the current administration’s position on climate change. While not pretending that these circumstances make it easy to fully address energy and environmental problems, speakers showed optimism that, if properly understood, energy and environmental regulation should not fall among the increasing list of divisive issues that seem hopelessly entangled in political gridlock.
In the keynote address, Robert Bilott, a litigator at Taft Stettinius & Hollister LLP, maintained this theme of energy regulation as a bipartisan interest, sharing how he exposed DuPont’s reckless use and disposal of hazardous chemicals. It started one day in 1998 when Bilott received a call from a farmer whose cows were experiencing mysterious health abnormalities and dying after drinking white, foamy water from the Ohio River. The cows’ watering area sat downstream from a DuPont landfill. Bilott took the farmer on as a client and eventually discovered that DuPont used a synthetic chemical, perfluorooctanoic acid (PFOA), in its Teflon products. Though DuPont had performed its own research on PFOA and knew about its detrimental health effects on both animals and humans, it continued to use the chemical and dispose of it into the air, water, and land—arguing that PFOA was not state or federally regulated at the time. Bilott worked over the next 20 years to continue to discover the extent of the harm of PFOA and seek justice for those who had developed diseases and adverse health conditions due to exposure. “One rat study found PFOA caused three different kinds of tumors, and DuPont itself classified PFOA as carcinogenic in animals, and a possible carcinogen in humans,” Bilott noted.
While he was representing the community affected by the DuPont plant’s PFOA in a class action lawsuit, Bilott also contacted state and federal officials, urging them to start regulating PFOA. Bilott’s efforts gradually paid off. Since 2002, the Environmental Protection Agency (EPA) started the process to begin possibly regulating PFOA under the Toxic Substances Control Act, and DuPont then stopped using PFOA. The class-action suit settled, and DuPont began using equipment to reduce PFOA emissions more aggressively. Almost immediately thereafter, PFOA emissions from DuPont’s plant dropped by approximately 99.9 percent. The EPA and state governments have been determining how to divide regulation duties with regard to PFOA and similar toxic substances that we now know are in the air and water worldwide. The discussion about regulating these chemicals and toxins has even made its way to international forums, as awareness has increased about their startling adverse health effects.
With how ubiquitous and threatening these chemicals have become, Bilott acknowledged that prolonged and expensive litigation is not the most efficient model going forward. Instead, robust regulation of the entire class of chemicals related to PFOA must be implemented. Bilott said a primary debate going forward will not be deciding whether or not to regulate, but how to divide regulation between state, regional, national, and international governments.
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