Short Wave - Is Failure To Prepare For Climate Change A Crime?

Episode Date: March 16, 2020

That's the central question of an unprecedented lawsuit against a company whose chemical plant flooded during Hurricane Harvey in August 2017. Containers and trailers there caught fire, sending up a column of black smoke above the facility for days. Now Arkema (the company), an executive, and the local plant manager are facing criminal charges — recklessly emitting air pollution, and a third employee with assault. Rebecca's latest reporting on the case is here. Email the show at [e-mail] pcm.adswizz.com for information about our collection and use of personal data for sponsorship and to manage your podcast sponsorship preferences.NPR Privacy Policy

You're listening to Shortwave from NPR. Maddie Safaya here with NPR science correspondent Rebecca Hirscher. Hey, Becky. Hey. So you are here to talk about something you've been reporting on for years. What is it? Okay. So it's a story that happened in 2017 at a chemical plant near Houston, Texas. And it's when this major hurricane struck. We are coming on the air for breaking news. This is Hurricane Harvey.

Hurricane Harvey barreling into the Texas coastline as a category four story. with 130-mile-hour winds. Yeah, I remember Harvey was kind of unique because it made landfall, and then it just kind of stopped and sat on top of Texas, just dumping and dumping rain. Yeah, some places got as much as 60 inches of rain. There was a lot of flooding. And early estimates of residential flood damage run as high as $37 billion.

And the Houston region, it has one of the largest concentrations of petrochemical manufacturing in the world, Like these huge refineries, tons and tons of chemical plants that make and store substances that can be dangerous. And a lot of those plants, they flooded during the storm. A lot of them leaked chemicals into the air or the water. Obviously, our primary layer of protection was our power supply. When the storm hit, we lost our primary power. You're hearing a guy who was a division president at one of those petrochemical companies that was overwhelmed by the flooding.

His name is Richard Renard. And the company he helped run is called Arkima. We brought in emergency generators to provide backup power. So what he's describing is in the aftermath of the storm, those generators were compromised. There's this intense effort to keep the power on at the Arkima plant outside Houston. The plant is near a major highway. It's in a relatively residential area.

So why were they fighting so hard to keep the power on? Basically because the plant was full of chemicals that have to be refrigerated. Otherwise, they catch fire. We are more than a mile from the plant. You can see the plume of black smoke. We can see the fire from here. We understand it is a very intensely burning blaze. The chemicals did catch fire, and they burned for days.

And now, the person who is in charge of managing the plant at the time, plus two other Arkima employees are facing criminal charges for what happened. Like, they could go to prison for not preventing the fire. So Becky, today on the show, you are going to walk us through this story. The trial is happening now. It's an unprecedented use of criminal courts to ask a question. Can companies and the people who work for them be held responsible, even sent to prison, for failing to adequately prepare for climate change? So Becky, tell me more about the Arkima chemical plan.

Right. So they make organic peroxides, which are volatile chemicals. they're used to manufacture plastics and other stuff. And organic peroxides are pretty hazardous because they can catch fire if they get warm. Right. And they don't even need a spark, right? So organic peroxides contain both fuel and oxygen. And when they become unstable, they heat up on their own and catch fire. Yeah, I can really hear that Ph.D.

Coming through strong for you right now. So the Arkma plant, it had a lot of refrigerated warehouses and buildings to keep these chemicals cold. And they also have a bunch of refrigerated trailers outside those warehouses. Okay, so talk me through it. What happened that resulted in the accident? So Harvey was stalled over the Houston area, just dumping rain for days. And the refrigerated warehouses, the buildings, they were flooding. As the warehouses flooded, the employees were using forklifts to move containers of these chemicals

from one refrigerated warehouse to another to try to keep them dry and cool. And the water just kept getting higher and high. higher, and the electrical generators for the buildings started to flood. That's not good. And then the forklift flooded. Okay. So what do you do when your forklift floods? So according to the U.S. Chemical Safety Board investigation, employees at the plant started carrying individual jugs of these highly flammable liquids in the dark

through chest high water while it was still raining to get it to the refrigerated trailers we talked about because only the trailers still had power. Yeah, I read this report and it was terrifying. Like I can't imagine being one of those people still there as they're in like chest deep water trying to move these chemicals. At one point, one of the trailers started to turn over on their side. It was really like super scary. Yeah. And you might be able to guess what happens next. The trailers flooded. They weren't refrigerated anymore. The chemicals got warmer and warmer until they caught fire. So did people get hurt when the fire started in the plant? Well, the plant had been evacuated. So the employees were okay that we know of. But there were some first responders who say they were injured while they were patrolling the area that had been evacuated, specifically that their eyes and respiratory tracks were irritated by air contamination. And there were some people who live nearby who also say they were injured by the smoke and the ash from the fires.

So I know the chemicals themselves can be toxic. Was the smoke from them toxic as well? That's a good question. So when the chemicals burned, they actually just turned into carbon dioxide and water. But I talked to multiple organic chemists, and they explained that the problem is actually the containers that were being burned. A chemist at Brinmore College named Michelle Fransell explained it this way. Everything from the labels on things to whatever plastic or metal that the containers are made out of, all that stuff is going to absorb other chemicals that didn't burn entirely.

So the ash is nasty. The ash is nasty. So that ash is made up of container junk and chemicals that didn't totally burn. And that's the stuff that potentially could have harmed the first responders and the people close by. And it's not something you ideally want in the air or water, right? So much so that in 2018, the district attorney's office for Harris County, Texas, announced criminal charges against the plant manager, who was actually one of the people carrying those chemicals through the water that night.

And Arcamas, North American CEO, And later, they also filed charges against a third person, an executive at the company, which was really surprising to a lot of people because in general, the criminal courts aren't used to punish companies and their employees for polluting the air and water, especially when it happens during big storms. And I went down to Houston and interviewed the district attorney about it. Her name is Kim Og. The charges are environmental. They are reckless emission of an air contaminant and endangerment of persons.

reckless emissions of an air contaminant. It feels like a bunch of words that mean polluting. Yeah, lawyers like big words. So why did she say she was filing these charges? You mentioned that there were a lot of petrochemical plants around Houston that flooded and leaked stuff during Hurricane Harvey. Is there something about these fires that was worse? Yeah, I asked her that. And one argument she made is that the fires happened because people at Arkima ignored the risk of flooding.

Like, they should have known that their plant could flood like that and prepared better. For example, the Arkima plant is in a floodplain. And even though Harvey dumped more rain than any U.S. storm on record, the argument the county is making is that there were signs that flood risk was increasing before Harvey, because of climate change. We've had a new normal in Houston. We've had three 500-year floods in just a short period of time. And it's true that flooding is getting more frequent and severe in Houston.

Houston, as it is in many parts of the country. And it's something that climate models have been predicting for a long time, that extreme rain will get more likely as Earth gets hotter, including rain from hurricanes. So in this case, the county is basically arguing that the company had a responsibility to recognize that flood risk was increasing and do more to keep their chemicals from catching fire. So obviously the company doesn't agree or they wouldn't be in the middle of a trial right now. What does the company say? So after the indictments were announced, I interviewed two of the lawyers representing Arkima and its employees. One of them is pretty well known in Houston.

He's been working for a really long time. His name is Rusty Hardin. Arkema did everything they were supposed to do here. Hardin says the company followed all the regulations it's required to follow. He seemed pretty galled that employees were facing criminal charges. Trying to find scapegoats and calling to individuals felons. Are you kidding me? This is outrageous.

It's morally, legally, ethically wrong. And the point he made is that if the current regulations for chemical companies in flood-prone areas aren't enough, then the regulations should be changed by legislatures, not by courts. And especially, he argues, not by criminal courts. Sometimes bad things happen that there's no crime, there's no responsibility. It's not anyone's fault. We need to look forward to the future and make sure that we are prepared for these kinds of things if this is going to be the new norm, and many think it is.

Okay, so Becky, like, what is at stake in this trial? If the county wins and the company loses, will that change how we think about climate change and the law? It could, actually, yeah. I talked to this guy, David Olman. He's an environmental law professor at the University of Michigan. And one thing he said that I think is really interesting is that environmental laws and regulations are generally based on this underlying assumption that the future will look like the past. Today already we expect companies to be prepared to handle what I might call ordinary rainfall. What climate change is going to do, among other things, is change our definition of what is ordinary rainfall. Another way to understand it in a legal context is that you can be held accountable and punished if you don't prepare for something you should have seen coming. It's the idea of foreseeability. So if you know that climate change is happening, does that mean it's foreseeable and you should prepare for it? Yeah, that's the big question, exactly. And how foreseeable extreme weather is hinges, in part, on how businesses inform themselves about the climate science that's available to them, right?

Yeah. Like, I talked to an environmental lawyer at the Conservation Law Foundation, Elena Mahally. That foreseeability isn't just a question of, did you personally know that this could happen? But it's really what kind of maps were available to you? What kind of. of experts did you hire to inform yourself about this decision? What kind of modeling is available to you? This trial is a test of those scientific questions. And the definition of what's foreseeable. Prosecutors have one definition. Arkima has another.

And a lot of people, lawyers, business leaders, are watching to see what happens. Okay, Becky Hirscher. Come back here and tell us what happens with the verdict. I will. The trial is supposed to wrap up by the end of the month. We've got a link to Becky's latest report. on Arkima in the episode notes. And a reminder, before we go, to subscribe to this podcast to make sure that you get the new

episodes as soon as they're available, which you want. Okay? Okay. This episode was produced by Brent Bachman and edited by Viet Le. I'm Maddie Safaya. Thanks for listening to NPR's shortwave. See you tomorrow.