As an environmental lawyer, I love the happy ending part of environmental lawyer movies. The part where the dedicated environmental advocates lead the victims of a big polluter in a groundswell of public outrage that forces the polluter to back down from its hubris and evil ways. Erin Brockovich finally hammering PG&E. The EPA vindicating the beleaguered trial lawyer at the very end of A Civil Action.
So as much as anyone else, I would really like to believe that what happened three years ago regarding BP’s permit to dump additional toxic sludge in Lake Michigan was another happy ending. As you may recall, Chicagoland citizens – roused in part by a coalition of environmental lawyers such as myself – responded with deep and vibrant outrage in the summer of 2007 after the Chicago Tribune ran a front-page story discussing the permit issued by the Indiana Department of Environmental Management (IDEM) allowing BP to greatly increase its discharge of ammonia and “suspended solids” at its Whiting, Indiana refinery so it could process dirty Canadian tar sands oil. A couple months of picketed gas stations, City Council hearings, and angry political speeches later, BP finally said uncle. The company publicly pledged – solemnly in a press release no less – that it would not make use of the right granted by the permit to dump additional pollution in the Lake. It promised that it would either find a way not to increase its discharge, or it would not build the refinery expansion at all. A happy ending, right?
Well, not so much. Three years later, BP is busily constructing the expansion, and every indication is that it has done nothing – nada – to eliminate the increased discharge. Back in 2007, when BP was applying for the water permit and no one was paying much attention, the company was emphatic with IDEM that the increased dumping in Lake Michigan was completely unavoidable. The only way to stop the pollution increase, it told the agency, would be a costly technical fix (too much of a hit, I suppose, from the transnational giant’s multibillion dollar profits). Yet when BP was asked recently about what it’s doing to keep its promise, the company’s evasive dance made one thing clear: that technical fix, the one it insisted to IDEM is necessary to stop the pollution, has not been made. Nothing is being done except exactly what BP planned to do all along, public outrage be damned.
Indeed, the company’s response to inquiries about its promise is both sad and laughable. The company’s PR machine smoothly insisted to Gitte Laasby of the Northwest Indiana Post-Tribune that BP will keep its promise. Yet when pressed for details as to how it’s going to do that, the PR rep fired off a litany of technical measures – all of which were already part of the original expansion plan. They’re right there in BP’s 2007 permit, the one that allows the increased dumping, just as it was written back in the summer of ‘07 before the tar sands hit the fan. But the really amusing part of this snow job was that the technical measures were, in a couple of cases, the actual source of the increased pollution – again, as documented in the 2007 permit fact sheet, which I assume the PR flak was hoping no one would actually dig up and read.
Of course, we won’t really know until the expansion project is up and running in 2012 whether BP’s discharge is actually going to increase. It’s possible, I suppose, that BP had the means all along, without any new technical fix, to hold pollution to current levels. But if that’s the case, what on earth were they doing telling IDEM that this wasn’t possible? Back to the lawyer movies again – the B-grade ones with the prosecutor wheeling around to point at the witness and demand, were you lying then or are you lying now?
The really unfortunate part is that none of this particularly comes as a surprise. Many of us realized three years ago that BP’s unenforceable promise not to pollute and $4.25 would buy us a latte at Starbucks. Yet when we asked that BP request a permit amendment from IDEM memorializing its pledge, the company demurred. It was evident then, and increasingly evident now, that BP’s plan all along was to say whatever was necessary to make the public look the other way, and then continue with business as usual and hope no one noticed.
Well, sorry, but we’ve noticed. What is more, we’ve noticed that three years down the road, Indiana still has not fixed the broken regulatory system that allowed BP’s woefully inadequate permit to be issued in the first place. So once again, the public and its elected officials need to demand accountability from BP and IDEM. Time to start filming the sequel.