Corporate Media Failed To Report A Major Taxpayer Victory Against Corporate Polluters

*The following is an opinion column by R Muse*

In America it is good to be a corporation for various reasons; whether it is enjoying advantageous tax breaks for killing Americans’ jobs, hiding outrageous profits offshore, discriminating against women in the workplace, or dumping toxic waste into the air and water supply with veritable impunity. In fact, over the course of the past decades there have been several instances of corporate polluters poisoning water and watching as taxpayers are tasked with paying for the cleanup as well as suffering the effects of contamination.

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After an eight-year court battle, earlier this month the D.C. Circuit Court of Appeals issued an order to the Environmental Protection Agency (EPA) to enact and enforce long-established laws to “break this cycle” of industrial contamination. The new rules will not stop corporate pollution by any means, but they will “help ensure that the worst industrial polluters are on the hook for cleaning up their own contamination.

The idea behind the court’s ruling is that if corporate polluters know they can no longer force taxpayers to pay to clean up their contamination, they will have a financial incentive to either set aside the funds to clean up their own messes and more importantly, follow safety standards to ensure they never poison the environment in the first place.

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The court’s ruling has nothing to do with Congress making new environmental laws or regulations. It simply forces the EPA to enforce rules under authority given to them 36 years ago by legislation passed by the U.S. Congress. The so-called “Superfund Law” sought to pre-allocate funding to clean up “horribly contaminated sites in existence,” but also to “incentivize” the dirtiest industries to reduce risks of future contamination by requiring “financial assurances” that they will clean up their own contamination.

Because the Republicans in Congress have been on a tear to dismantle, under-fund, and abolish the EPA, it has been woefully inadequate in applying the “Superfund” law. So, the new rules will likely require financial assurances such as bonds, insurance policies, or some other kind of financial mechanisms that ensure taxpayers that dirty industries will have the funds “on hand” to clean up their contamination. Besides an incentive to not poison the environment, the cost of cleanup, typically in the hundreds-of-millions of dollars, will not be borne by taxpayers who were likely poisoned by the contamination.

It is worth briefly looking at why the Superfund law, and the EPA’s apparent unwillingness to act, required an 8-year long federal lawsuit ordering the EPA to do its job according to the law. According to the 1983 law, the EPA was tasked to implement rules guaranteeing polluters pay for their contamination.

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The Superfund law depended on “dedicated tax on oil and chemical companies” to fund cleanup of toxic spills and emissions. But due to industry opposition Republicans aided with perpetual defunding mechanisms, the Superfund “fund” went bankrupt according to Republican machinations. Congress did allot a pittance to cleanup Superfund sites very early on, but Republicans continued “systematically and drastically cutting the level of funding” to relieve all responsibility off the polluters and place it squarely on taxpayers’ shoulders. That ends with the D.C. Circuit Court ruling and it would have been beneficial to American taxpayers two years ago; the Obama Administration had to task the Federal Emergency Management Agency (FEMA) to handle the Elk River chemical spill and cleanup.

What the EPA found had been happening in no small number of cases was that corporation’s prone to polluting the environment would intentionally set up parent and subsidiary corporations. The idea was that profits from subsidiary industrial facilities likely to pollute would be funneled to the parent company. That way when they contaminated, say a drinking water source, instead of cleaning up the mess, the subsidiary declared bankruptcy, the parent company kept the profits, and taxpayers were left poisoned and footing the bill.

That is precisely what happened two years ago when a Koch-related chemical company allowed toxic chemicals (MCMH) used to “wash coal” to leak into the Elk River on or around January 9, 2014 in West Virginia. The chemical company, Freedom Industries failed to report the chemical spill and once it was discovered by sickened West Virginians, the company acted quickly to file bankruptcy and change its name to Lexycon LLC.

Lexycon LLC is almost certainly the same company, albeit with a new name. Lexycon registered with the state of West Virginia as a business with the same exact addresses and phone numbers as Freedom Industries; the company responsible for the pollution.  And, its “founder” is listed as a former Freedom Industries high-ranking executive. However, because Freedom Industries is bankrupt, there is no possible way it could be forced to pay for anything; not for the Elk River cleanup, not to compensate sickened West Virginians, or the significant fines levied by a County Circuit Court judge just a couple of months ago.

This court ruling did not make the evening news, and likely will never be covered or acknowledged by the corporate mainstream media, but it is a fairly big deal in holding corporate polluters accountable for their carelessness that poisons the environment and American people. The environmental organization that brought the lawsuit, EarthJustice, was thrilled that the EPA is being forced to do its job according to the law, but for all their well-meaning environmental advocacy and principled actions, they are seemingly missing a very important point; the EPA is and has been under constant attack by the corporate polluters’ legislative arm, Republicans in Congress and state legislatures, for decades.

Republicans and their billionaire funders the Koch brothers have done everything in their substantial power to break the EPA; either by defunding it or dragging it into decades-long litigation. This has been witnessed over the course of President Obama’s tenure when congressional Republicans have filed suit, slashed EPA funding, and attempted to sabotage his agreements with world leaders to combat climate change. There is little doubt they will continue unabated by a Circuit Court ruling and with unlimited funds at the ready, they will drag it through the appeals process all the way to the Supreme Court.

The ruling and order is not a perfect, or final, solution to rein in corporate polluters, but it is a good “start.” The atrocity is that there even has to be “a start” to holding corporate polluters accountable for their contamination; especially when Congress passed laws back in the 80s forcing industrial contaminators to pay for cleaning up their own pollution, and incentivized them to use care when playing with poison. American citizens are already paying inordinately for corporate profits according to lax tax laws, and now maybe they won’t have to pay to clean up toxic contamination from industrial polluters as they cart their profits offshore to avoid taxes.

h/t EarthJustice