Who’s Going to Take Responsibility for Air Pollution in Texas?
The chemical disaster at the Intercontinental Terminals Company in March 2019 was the beginning of the end of AJ Cole’s time in Houston. After thousands of gallons of a liquid used to make gasoline leaked out of a tank and caught fire in Deer Park, just about 15 miles from the skyscrapers of oil and gas companies downtown, a plume of dirty particulate matter and other cancer-causing toxic chemicals like benzene drifted through the air for days.
As some nearby communities were ordered to shelter in place and jam blankets against doors and windows, Cole’s asthma became “uncontrollable.” She had to rush to her doctor for treatment, she says, though what was new? She’d already spent thousands of dollars managing her disease in a city whose air has never met federal health-based standards for another kind of air pollution, ground-level ozone.
Ground-level ozone can be especially tough on the lungs of people with asthma like Cole, who’s 30. She and her husband, both white, were living in Uptown, near the Galleria, close enough to be able to hear the nearly constant congestion on Loop 610. Then, they moved downtown to a high-rise within earshot of Interstates 45 and 10. They had been trying to start a family, but experienced miscarriages, which have been linked to exposure to air pollution. Cole worried: Was it the air?
When she again became pregnant in 2019, she worried all over again that she wouldn’t be able to deliver enough oxygen to her twin fetuses. Fearing developmental issues, she and her husband decided at the start of her second trimester to move away from Houston, to the outskirts of Dallas, even with several months still to go on their lease. “We had to get out,” she says.
The same summer Cole gave birth and brought two healthy boys into their new home in Dallas, Houstonians faced a week solid of ozone action days when the best advice for everyone, especially children, is just to stay home inside. All year, every year, nearly half of Houston’s schools are exposed to too much air pollution. The year the Coles were trying to conceive, private companies released air pollution illegally—that is, beyond the amount they are already permitted by the state to release—somewhere in Texas every single day, according to a report by the nonprofit group Environment Texas.
And this illegal air pollution, researchers at Indiana University estimated, causes at least 42 deaths and more than $240 million in economic damages in Texas every single year. Who’s responsible? “People are being harmed, seriously harmed” by air pollution, says Kelly Haragan, who teaches law at the University of Texas at Austin’s environmental clinic. “But there isn’t much of a remedy for most people.”
Even the unprecedented case of Ella Kissi-Debrah, the first person in the world whose death certificate lists air pollution as a cause, reveals to Haragan a “basic problem with our legal system.” Ella was a 9-year-old girl who died in 2013 in London after a severe asthma attack caused a seizure. Living near a notoriously polluted road, she’d been hospitalized nearly 30 times. It took seven years after her death for a government inquiry to conclude in late 2020 that she wouldn’t have died if she hadn’t been exposed to air pollution. But Haragan says that Ella’s mother, Rosamund, would have a very hard time winning a case and collecting damages. That’s because statutes of limitations can expire years before symptoms appear. Cancer can take decades.
And the burden of proof also falls entirely on a mother like Rosamund to show causation between her particular harm and someone else’s particular pollution. That science is improving, she says, but it’s not there right now.
Besides, whom do you sue? “The person who lives surrounded by pollution has it even harder,” Haragan says, “because whomever you sue is going to point to everybody else and say, ‘It’s not me, it’s them.’”
The better response,…