The Politics of Risk: Pre-Litigation Site Assessment in Houston, Texas

By Macey, Gregg P. | Environmental Law, Winter 2007 | Go to article overview

The Politics of Risk: Pre-Litigation Site Assessment in Houston, Texas


Macey, Gregg P., Environmental Law


I.   INTRODUCTION

II.  THE SITE: KENNEDY HEIGHTS, TEXAS
     A. Preliminary Note
     B. History: The Racial Underpinnings of Site Redevelopment
     C. Residents Discover the Problem

III. AGENCY SITE AND RISK ASSESSMENT: TEN YEARS AND FEW ANSWERS
     A. The Early Focus on Murr Way.
     B. Chevron-Railroad Commission Joint Efforts
     C  Phase II of the RRC-Chevron Investigation Commences
     D. Comparison of Results by Party

IV.  THE LIMITS OF SITE CHARACTERIZATION AND RISK ASSESSMENT IN
     KENNEDY HEIGHTS
     A. The Importance of Sampling Frame Choice
     B. Site Characterization and Risk Assessment As a Negotiated
        Process Between RRC and Chevron
        1. Media Attention
        2. RRC Questions
        3. Lack of Balance in the RRC/Chevron Relationship
     C. Risk Assessment: The Final Stage in a Negotiated Process

V.   DISCUSSION

I. INTRODUCTION

The residents of Kennedy Heights in southeast Houston, Texas wrestle with a complex set of questions about their neighborhood. At base is their concern that something dangerous, potentially even poisonous, exists beneath the soil of their single family homes. To get answers, they called upon the appropriate state and federal regulatory agencies in the early 1990s, specifically the Railroad Commission of Texas and the U.S. Environmental Protection Agency (EPA), to investigate what earlier contractors hired by the city suspected was residual contamination from crude oil storage. The investigations took ten years and encompassed two of four elements of the scientifically accepted practice of risk assessment: exposure assessment (1) and risk characterization. (2) Residents of the subdivision also sought redress in the courts, filing toxic tort claims against the former owners of the site. (3) The two processes, risk assessment by the state and EPA and toxic tort litigation, are driven to varying degrees by questions of causation, which are answered by the same type of people: "experts." Before residents can be told whether the air they breathe or the water they drink is causing them harm or threatening them, a series of "experts," mostly contractors hired by an agency or potentially liable party, will first look at the totality of the evidence and make a series of judgment calls. (4)

This Article will demonstrate how one final product of either process, whether called a "site assessment" or "risk assessment," is merely a stylized account of a negotiated process between regulated entities and agencies that lack the wherewithal to participate in the give-and-take that is involved. Simply put, the thesis is that the institutional setting in which risk assessments are undertaken can subordinate intellectual form while elevating negotiation and compromise. The results of this politicized investigation might be clearly stated in a government document, but the assumptions underlying the findings and the process that led to the collection of data points will be obscured or left out.

Why does this finding matter for toxic tort litigation? It is important because, despite the shortcomings inherent in a politicized process and problems with communicating risk once it has been quantified by hired experts, this approach to risk assessment (5) is accepted practice among regulatory agencies. More generally, it comports with the received view of science first sketched by Karl Popper. Popper noted that, far from universal knowledge derived from formal logic, science is an imperfect process involving intuition, conjecture, inference, professional judgment, and repeated testing. (6) This sort of "deductive falsification" guides most of the progress of science today.

However, a relatively recent development in the courts offers a competing view of science, one that is more closely aligned with the logician's search for universal knowledge derived from formal logic. (7) The ascendancy of this new standard of scientific validity in the courts presents residents of contaminated communities and agency policymakers with a conundrum: the methods upon which they must rely to demonstrate that their properties pose a risk and should be cleaned up call for improvement and greater transparency, while at the same time a new judicial interpretation of scientific evidence threatens to discount the practice as a whole. …

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