U.S. Chamber Protects Negligent Chemical Factory
by Matthew Hanna, March 24, 2021
Emergency vehicles wait at a roadblock after a chemical plant operated by the Arkema Group had an explosion during the aftermath of Hurricane Harvey on Aug. 31, 2017 in Crosby, Texas.Brendan Smialowski / AFP - Getty Images
The U.S. Chamber of Commerce is exceptional at supporting American businesses in a variety of aspects, including at court. The U.S. Chamber has supported large corporations in lawsuits triggered by environmental degradation they created. In these lawsuits, the U.S. Chamber helps corporations dodge claims by Americans directly hurt by the companies’ lack of environmental oversight and care. In supporting companies that either increase greenhouse gas emissions or companies that skirt around environmental regulation, the U.S. Chamber actively puts individuals in the United States at risk by obstructing their claims to recompensation and by making it more difficult for individuals to seek environmental justice and hold corporations accountable.
BACKGROUND OF THE CASE
One case in particular in which the U.S. Chamber has helped a large corporate polluter and subsequently made it more difficult for individuals to claim damages incurred by negligence on behalf of the company is Wheeler v. Arkema, Inc. This case opened in 2017 and was a class-action suit filed in the Houston federal court against the chemical plant, Arkema, Inc.
During the natural disaster of Hurricane Harvey in late 2017, the chemical plant failed to properly store volatile chemicals in Crosby, Texas. These chemicals combusted due to a lack of refrigeration and released toxic smoke, ash, and other contaminants into the community. Residents were evacuated within a 1.5 mile radius. The plaintiffs in this case are Crosby residents seeking redress for damages to person, property, and the environment.
Residents of Crosby, Texas alleged that there were multiple reasons for damages, including failing to properly store chemicals, failing to have backup refrigeration for chemicals, and failure of having the proper procedures to protect the wellbeing of the community. Residents alleged that Arkema, Inc. violated multiple environmental protection laws in failing to store chemical products. The argument follows that Arkema, Inc. should have been more prepared for Hurricane Harvey and what could come with it, especially since the chemical plant is located in a government flood plain.
The environmental negligence by Arkema resulted in physical injury to residents in and around Crosby, Texas. Residents reported physical symptoms of toxic smoke inhalation, rashes, headaches, eye irritation, blisters, and respiratory complications. Named plaintiff Shannan Wheeler discovered a “black layer of sludge and ash in his garden and after attempting to clean up his yard, he suffered chemical burns on his wrists.” Other residents discovered ash and chemical residue on the walls of their homes.
In order for the case to move forward, the class-action lawsuit had to be properly certified as a specific class. This means that the individual claims could not be too distinct from one another and that Arkema’s negligence is properly distributed among the class. After hearing oral arguments on why the class should be certified, the district court agreed and granted the plaintiffs’ motion for class certification. Now, the class-action lawsuit could take place—the plaintiffs could finally get compensation for the physical health and property damages inflicted due to Arkema’s negligence. The district court held that the class met the necessary elements for a class certification, meaning that this one case could effectively provide compensation to all residents affected.
The Arkema Inc chemical plant is flooded from Tropical Storm Harvey, Wednesday, Aug. 30, 2017, in Crosby, Texas. Godofredo A. Vasquez, AP.
HOW DID THE U.S. CHAMBER HELP CORPORATE POLLUTERS?
Arkema, Inc. appealed against the district court’s decision on class certification under four different arguments. If this appeal were to be granted, it would stall the ability for affected citizens to get the compensation they deserve from Arkema’s negligence. The U.S. Chamber, through the submission of their amicus brief, effectively aided Arkema in invalidating the claim to class certification:
“Arkema urges four arguments on appeal: (1) that the district court did not conduct the rigorous analysis required by Fifth Circuit and Supreme Court precedent, to ensure that the individual claims can be fairly and effectively adjudicated in a class action; (2) that the district court erred when it determined that the proposed class met Rule 23(b)(3)’s predominance requirement and Rule 23(b)(2)’s cohesiveness requirement; (3) that the benefits realized by classwide adjudication of common questions would be lost in the necessary sifting through individualized evidence on the causation and injury elements in addition to the intractably individualized nature of the damages and injunction inquiries; and (4) that the district court erred by relying on certain expert opinions in its certification decision without first ensuring those opinions would be admissible at trial under the Daubert standard.”
Prantil v. Arkema, Inc., Opinion, Southern District of Texas
In fact, Arkema’s argument stemmed directly from the amicus brief submitted to the Fifth Circuit Court of Appeals by the Chamber of Commerce. Due to the argument set forth by the Chamber of Commerce, the appellate court vacated the district court’s class certification and remanded the case, sending it back to trial court. This process will inevitably delay the plaintiffs’ compensation for an undue amount of time. The Chamber’s argument was simple, as detailed above, and rests primarily upon procedural issues rather than content.
The U.S. Chamber of Commerce succeeded in their argument to invalidate the plaintiffs’ claim to a class certification—thereby removing the case from further deliberation—despite the district court finding the case to be in favor of the plaintiffs. Through routine filing of amicus briefs in favor of large chemical companies just like in Wheeler v. Arkema, Inc., the U.S. Chamber of Commerce reifies structures of environmental injustice, ultimately protecting the interests of corporate polluters and showing complacency in the harm of American individuals.
RELEVANCE TO FURTHER CASES
This case is extremely important and relevant to further cases. As environmental degradation and injustice continues in the light of late-stage capitalism, increased greenhouse gas emissions, and climate change, cases like Wheeler v. Arkema, Inc.—where negligence on the behalf of large corporations will affect citizens—will become more and more apparent. If this case happened to conclude in favor of the plaintiffs, a legal precedent of environmental negligence may be established. This could help future cases in which environmental regulation protocols are broken or where they simply do not yet exist. If legal precedence could be ensured for large companies that are negligent on climate-related issues, this could mean a huge win for those affected by climate change and environmental degradation.
A class-wide certification (and the jury finding this case to be in favor of the plaintiffs) would set a precedent for fossil fuel companies to reward plaintiffs with compensation even if injuries or issues were not exactly cohesive across the class. Furthermore, this could be applied to different injuries and circumstances that are difficult to determine the exact source, including oil spills, air pollution, non-point-source pollution, and other more widespread effects of large corporate polluters and climate change.
What’s more, implementation of climate change adaptation and mitigation efforts for companies have to be accomplished throughout the United States. Companies with a high risk of environmental degradation and damage—like those in flood plains, subject to sea level rise, sensitive to power outages, and more—should take extensive preparation in order to avoid the damage done to persons and property. This case opens up a bigger discussion on environmental degradation related to chemical plant operations in the United States. As described by Lauren Mulhern in “The Arkema Chemical Facility Incident: How the Regulation of Reactive Chemicals and the Incorporation of Climate Change Risks in Emergency Response Planning Could Mitigate and Prevent Future Accidental Chemical Releases,” “[f]rom 2006 to 2016, 60 people died, 17,000 were injured, 500,000 were forced to evacuate their homes, and more than $2 billion in property damage occurred as a result of 15,000 incidents related to chemical plant operation safety in the United States.” Arkema, Inc. should have been more prepared. Businesses have to be more prepared for climate change.
This particular incident is just one example of the lack of environmental regulation and reactive chemical regulation that directly affects Americans. This is just the beginning of our future in a country where corporate interests predominate over those of the public good, especially in the light of climate change. Climate change already contributes to displacement and ecological damage. As citizens of the United States and at-large the globe, we must look towards holding large corporations (and those who support them) accountable for their actions that clearly affect us all.
In summary, this case Wheeler v. Arkema, Inc. effectively demonstrated the power of the U.S. Chamber of Commerce. In submitting an amicus brief to the court, the Chamber helped a large chemical company evade accusations of environmental damage to person and property. In doing so, the Chamber put the interests of large corporate polluters far before the interests of the American public and is complicit in the endangerment of communities affected by climate change and environmental injustice.