Water Pollution

The Housatonic River is a favorite of New England fly-fishers, kayakers, and hikers. Flowing through the rolling hills of Berkshire County, Massachusetts, the river makes an idyllic backdrop to the region’s famous fall foliage. It meanders under covered bridges and through Connecticut, eventually emptying into the Long Island Sound.

“It’s heartbreaking to know that behind the scenes of that serene, beautiful natural world is a severely polluted system,” says Lauren Gaherty, a senior planner with the Berkshire Regional Planning Commission.

The “WARNING” signs dotting the river’s banks in Berkshire County hint at the less-than-tranquil reality teeming below the surface: “HOUSATONIC RIVER FISH & WATERFOWL CONTAMINATED WITH PCBs. DO NOT EAT.”

First synthesized in the late 19th century, polychlorinated biphenyls (PCBs) are pervasive chemicals once used in hundreds of industrial applications, from plasticizing paint to insulating electrical equipment. General Electric was a major user of PCBs, including at its riverside plant in Pittsfield, Massachusetts, from the 1930s until the U.S. Environmental Protection Agency banned the production of the chemicals in the late 1970s. By then, GE had already discharged an estimated 600,000 pounds of PCBs into the Housatonic.

And this was wasn’t GE’s only instance of PCB contamination in a northeastern river. The company also dumped an estimated 1.3 million pounds of PCBs into the Hudson River, triggering a high-profile legal battle that NRDC has been involved with since the 1970s—and is still fighting today.

There’s good reason to fight so long and hard on the contamination. PCBs—all 200-plus types of them—are, to varying degrees, toxic to people and wildlife. “PCBs are just thoroughly horrible,” says Dan Raichel, an NRDC staff attorney. Multiple studies have proved the chemicals cause cancer in animals, and the EPA classifies them as probable human carcinogens. PCBs can also do significant harm to the immune and endocrine systems, affect reproduction, impair neurological development, elevate blood pressure, and cause skin rashes that can last for years. “It pretty much runs the gamut in terms of illness-causing,” Raichel says.

Now, nearly 40 years later, Berkshire communities, state governments, and environmental groups are still pushing GE to clean up its mess—a responsibility it has been avoiding. Decades may seem like a long time for contaminants to linger in a moving body of water. But PCBs were deliberately designed to persist under conditions that would cause other molecules to break down. “And persist,” Raichel says, “is exactly what they do in the environment.”

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PCBs bind to soil, sediment, and the fatty tissues of animals. From there they work their way up the food chain, starting with the small invertebrates that find their food in the riverbed and eventually accumulating in the bigger fish and waterbirds that eat them. People living near the former GE plant in Pittsfield can be exposed to PCBs when they come into direct contact with contaminated soil or river sediment, consume contaminated fish, or even eat crops grown in the Housatonic floodplain.

The Massachusetts Department of Public Health warns against eating fish, frogs, turtles, or ducks from the river, and though the Housatonic is a popular recreational fishing destination, it’s strictly catch and release. “It’s a lost resource to people in Berkshire County,” Gaherty says. The state of Connecticut, too, regularly releases advisories on eating Housatonic fish.

But even if you’ve never supped from this river—or live nowhere near it—you almost certainly have PCBs in your body. Yes, you. To add to the list of their nightmarish qualities, certain PCBs can volatilize, or evaporate into the air, where they can be inhaled or spread by weather systems and fall back down to the ground in rain or snow. Wind and ocean currents have facilitated their long-distance travel around the world—not even denizens of the poles or the bottom of the Marianas Trench have escaped the reach of PCBs.

In short: Once PCBs enter the environment, it’s not easy to get them out.

GE, a $260 billion company, has used its considerable resources to argue that it shouldn’t get them out. “GE has been digging its heels in the whole way,” says Dennis Regan, the Berkshire director for the Housatonic Valley Association’s Water Protection division. And the company’s reasoning has shifted over the years. Originally, GE contradicted the prevailing science by claiming there was no evidence that PCBs are harmful to human health. As pressure from the EPA and affected towns grew, GE changed tactics, arguing that disturbing the river sediment in a cleanup effort would make the contamination worse.

In 2000, the U.S. Department of Justice, EPA, and GE managed to finalize a consent decree requiring GE to clean its PCBs from the Housatonic. Since then, the company has dredged the first two miles downstream of the Pittsfield plant, along with some other properties nearby, including an elementary school playground.

Slight progress is still progress, but 125 miles of contaminated river still remain. The EPA unveiled a $613 million plan last October that would span 13 years and require GE to dredge another 10 miles.

“These environmental battles can take a long time,” says Sarah Chasis, a senior attorney at NRDC who worked on the Hudson case against GE 40 years ago. And with only a partial cleanup effort for that river completed, the PCB levels in its fish are still not safe for human consumption. “It’s always an uphill fight to get companies to take responsibility for their pollution and to make real headway,” Chasis says.

And sure enough, GE is again pushing back against the EPA’s Housatonic plan. “This is their M.O.,” Gaherty says. “Delay and fight, delay and fight—they’re just hoping to wear everybody down so they can get away with a lesser cleanup.”

The latest point of contention is where the PCBs should go once removed from the river. Under the EPA’s plan, GE must take the contaminated soil out of state to a licensed toxic waste facility. GE, one of the richest companies in the world, argues that doing so would be too expensive and recently took its complaints to the EPA’s Environmental Appeals Board, an independent panel of judges sometimes referred to as the agency’s “Supreme Court.” GE’s preferred solution is to create a local PCB dump in the towns of Lee and Lenox or Great Barrington, something the Housatonic Rest of River Municipal Committee—which represents the six most affected towns—is not happy about.

Complicating things further is Scott Pruitt, the EPA administrator under President Trump. Because Pruitt has a history of siding with industry over public health, the future of the fight for the Housatonic’s remediation now looks more uncertain than ever.

Shortly before the Environmental Appeals Board hearing in June, the EPA circulated a memo saying it wanted to reopen negotiations with GE over the case. “Looks like Massachusetts is about to become Exhibit A in the Trump administration’s efforts to go easy on polluters,” Matt Pawa, an environmental lawyer representing the Housatonic Rest of River Municipal Committee, told the Boston Globe at the time.

Still, the hearing went forward as planned. “You don't put a hazardous waste site next to a river,” Pawa told the board. “You don't plunk it down in the middle of a community. People live there.”

And now, those people await the board’s decision.

In 1972, federal lawmakers made a commitment to protect the “waters of the United States.” Thus began a heroic undertaking to turn our waterways from the flammable waste dumps of the 1960s into places where our children could swim again. And the resulting 1972 Clean Water Act was a landmark legislative achievement. But in recent years, polluters and their political allies have argued that certain language in the act―intended to provide the federal government with broad authority to prevent pollution―actually restricts that authority. Today it’s still not entirely clear which bodies of water are covered, and which are not.

In February, President Trump, backed by groups that represent corporate agriculture, developers, and other highly polluting industries, ordered the U.S. Environmental Protection Agency and the Army Corps of Engineers to consider changing the rules that spell out what the law protects. The President’s rhetoric in signing this order made clear he intended for the agencies to eliminate wide swaths of American waters from federal protection and dismantle a critical buffer that protects our lakes and rivers from pollution. EPA Administrator Scott Pruitt quickly began delivering on Trump’s order in June, when the EPA and the Corps proposed to revoke an Obama-era rule that clarified which waters are subject to the law.

It will ultimately fall to the courts, perhaps even the U.S. Supreme Court, to settle this dispute. And the justices will likely begin with this basic question: What did Congress mean by “waters of the United States” way back in 1972?

Given the nasty state of our environment in the early 1970s and the grossly inadequate efforts to prevent water pollution, it made sense for Congress to apply the Clean Water Act’s safeguards throughout watersheds, not just to bigger water bodies. Back then, iconic waterways like the Hudson River were contaminated with chemicals and littered with garbage. Ohio’s Cuyahoga River was so polluted that the surface caught fire (more than once). And it wasn’t just the rivers and lakes you know by name—America’s marshes, tributaries, and wetlands were contaminated, and they channeled their pollutants to much larger bodies of water.

By embracing the protection of all of the nation’s waters, Congress recognized that “[w]ater moves in hydrologic cycles and it is essential that discharges of pollutants be controlled at the source.”

That power was intended to be far-reaching. During the 1970s, federal lawmakers were united in their determination to reverse their environmental legacy, passing a wave of conservation laws that included the Clean Water Act, the Clean Air Act, the Resource Conservation and Recovery Act, and the Endangered Species Act. Broad consensus held that state and local governments could not protect the environment without significant help from the federal government. States didn’t have the money or the scientific expertise required, and without a federal baseline of safeguards the law would encourage a race to the bottom as states competed to attract industrial employers with lax regulation. The Clean Water Act explicitly envisioned a national leadership approach to clean water.

Executive agencies, in particular the EPA, took into account the ambitious conservation goals of Congress and appropriately interpreted the Clean Water Act’s coverage broadly. In the legal climate of the 1970s, that meant the federal government had strong authority to clean up waterways. Congress accepted this decision from the beginning, as did the U.S. Supreme Court in 1985. The federal government’s authority over our waterways was settled for nearly two decades.

In more recent years, however, persistent polluter attacks on the Clean Water Act succeeded in unsettling water protections. In two deeply divided opinions, in 2001 and 2006, the Supreme Court upended the implementation of the Clean Water Act. In the more significant of the two cases, the nine justices couldn’t form a majority to identify those bodies of water meriting protection under the act. For the next 10 years, even expert scientists and lawyers who focused on water quality did not understand the limits of the country’s most important water protection law.

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The Obama administration came to the rescue in 2015. After years of research and public comment, the EPA published a clarifying regulation that came to be known as the Clean Water Rule. It determined that the landmark 1972 law provides federal protection for most wetlands, marshes, and tributaries that perform important functions. It also reaffirmed historic protection to waters adjacent to waterways covered by the act, because pollution travels.

The rule provided exactly what big business and conservative politicians extol so frequently—regulatory certainty. However, Big Ag and other corporate lobbying groups opposed it. And in doing so, they showed a preference for hazy laws they can mold to their advantage rather than responsible and predictable regulation. Meanwhile, Republican politicians and their allies—including EPA Administrator Scott Pruitt—also criticized the rule through wildly incorrect statements, such as the claim that the Clean Water Rule gives the EPA authority over puddles. (It explicitly excludes puddles.)

The Trump administration has now officially proposed to repeal the Clean Water Rule. If this effort succeeds, it will plunge the environment and the rule of law back into the decade of confusion and uncertainty that preceded the rule. The administration claims it will issue its own clarifying regulation, but its track record on acting responsibly in the public’s interest is not good, and early indications are that the rule it intends to pursue would radically roll back protections and make them weaker than even the pre–Clean Water Rule approach.

The proposed repeal of the Clean Water Rule is a potential disaster. Roughly 60 percent of streams in the United States flow only seasonally or after rainfall. (That’s nearly two million miles of streams.) It’s possible that Trump will attempt to remove those from federal protection, and thereby threaten our drinking water, since one-third of all Americans get their supply from headwater, seasonal, and rain-dependent streams. Weakening regulation of streams and wetlands also puts at risk billions of dollars in recreational fishing, swimming, and tourism spending.

Congress moved to protect the “waters of the United States,” rather than naming individual bodies of water, because legislators understood that water is wild. It flows and intermingles, right into our taps and into our children’s bodies. Segmenting regulation of our water is a mistake of historic proportions.

In February 2016, at the height of the Flint water crisis, Anjali Waikar found herself with a team of NRDC staff going from house to house, knocking on doors, and asking residents about the specific hardships they were facing.

“Some people didn’t talk; others lived in pretty challenging situations,” Waikar, a staff attorney on NRDC’s environmental justice team, remembers. One woman in her mid-60s said she walked a mile and a half with her son each way to pick up bottled water from a distribution center for her family—nearly every single day. For another woman with a broken faucet, simply talking about water made her sob. Yet others hadn’t even heard of the water crisis, despite its already receiving widespread national news coverage.

Waikar was with fellow NRDC and ACLU staffers in Flint as part of an effort to help get justice for the tens of thousands of people, including 9,000 children, exposed to the city’s poisoned water supply. The problems had begun in April 2014 after officials, looking to cut costs, switched the city’s drinking water supply from Detroit’s Lake Huron to the Flint River. Because they failed to have it treated properly, the highly corrosive water leached lead from Flint’s aging pipes, and the lead went directly into people’s drinking glasses.

Residents began noticing the effects right away—dark-colored, foul-tasting, bad-smelling water; skin rashes; hair loss—but it wasn’t until the following summer that government officials began to take the problem seriously. Investigations by the ACLU of Michigan uncovered widespread water issues, and at the group’s invitation, NRDC stepped in to help. The team came together quickly. “It was a crisis, so we were trying to respond accordingly,” says Dimple Chaudhary, who was NRDC’s lead counsel on the Flint case. Joining Waikar and Chaudhary were Sarah Tallman, a Chicago-based attorney, and Evan Feinauer, a Chicago-based legal fellow, both part of NRDC’s litigation team. Jared Knicley, an NRDC attorney in the Washington, D.C., office, rounded out the team several months later when the legal proceedings ramped up.

The lawyers worked seamlessly from the start, and Chaudhary was struck by her teammates’ energy, passion, and commitment to the work, evident from day one. “I would often feel guilty,” she says. “I’d say, ‘It’s Saturday night, you should be out having fun!’ Instead we’re passing sections of briefs back and forth to each other all night.”

Knicley also highlights the unique rapport that grew out of the group’s constant communication around their mission. “It was something I’ve never experienced before,” he says. “We really were finishing each other’s thoughts and would even wake up in the middle of the night with the same ideas about the case.”

Above all else, the team members were united in their devotion to the community they were serving. As Waikar, an extrovert who helped with much of the relationship-building in Flint early in the case, points out, “This is about them, not about us.”

In that spirit, they began by filing an emergency petition with the U.S. Environmental Protection Agency seeking immediate help getting Flint residents safe drinking water. Then, in January 2016, NRDC—along with Concerned Pastors for Social Action, Flint resident Melissa Mays, and the ACLU of Michigan—filed a federal lawsuit seeking to require the city of Flint and the state of Michigan to replace the lead pipes and to follow federal regulations for treating and testing the water.

In March, the team filed a preliminary injunction motion, supported by 1,200 pages of evidence and the resident testimonies NRDC had collected, asking the court to require delivery of bottled water to people’s homes. That was a long shot, Tallman admits, but in the end the court granted the request. “It was not fair just to expect people to go out and track down their own water, day in and day out,” she says.

The victory, though just one step in the legal battle, made an especially strong impact on Tallman, who had always wanted to practice public interest law―and whose passion, her teammates say, jump-started NRDC’s response to the case. “To know that we had at least a small part to play in making sure that happened has been empowering for me as a young attorney—to really see the impact that lawyering and this kind of advocacy can have.”

Meanwhile, the lawyers kept up their fight outside the courthouse, too. “This kind of case really requires multiple tools in the toolbox to litigate, and not just people who can write beautiful briefs at their desks,” says Waikar, who emphasizes the importance of building local trust. “It requires boots on the ground, especially when the relief you’re seeking has the potential to impact an entire community.” Ultimately, those front-stoop meetings held by the team served to get locals affected by the crisis into the courtroom themselves; many testified as witnesses at the preliminary injunction hearing or shared their stories in written declarations provided to the judge.

Waikar also cites the importance of addressing the immediate needs of the citizens of Flint, rather than just the long-term aims of the lawsuit. In one case, that meant accompanying a woman affected by the tainted water on a trip to get dentures. She adds that sensitivity is an especially important quality in lawyers. “It’s very easy to mess up relationships,” she says. “We’re coming in at a place of deficit to begin with, because already people don’t trust us, so the slightest misstep can really impact people.”

And as a legal team of mostly young women, the NRDC crew had to overcome ingrained prejudice on many fronts. “I think some on the other side underestimated us at first,” says Knicley. “But they didn’t make that mistake for very long. When Dimple and Sarah are in the room, it doesn’t matter if they’re surrounded by men, surrounded by women, surrounded by aliens, they’re going to run the show. Because this was their case. they knew the facts; they knew the law; they knew what was in our clients’ interest.”

In March 2017, just a little over a year after NRDC filed its suit, the city of Flint and state of Michigan agreed to replace the lead pipes and put an effective lead-monitoring system in place. As part of the $97 million settlement, authorities have three years to examine water service lines for at least 18,000 homes and replace those made of lead or galvanized steel.

Margie Kelly, a communications officer in NRDC’s Chicago office, remembers the feeling in the courtroom that came over her just before the settlement was announced. “Dimple’s up there running the show, and Sarah’s up there, and you look at the other side, the Michigan lawyers—and they’re the cream of the crop, the governor’s lawyers—and they’re all older guys, mostly white,” she recalls. “They’re just sitting there looking at their shoes because these two young women crushed them. There’s no way around it.”

But the team is careful not to take too much credit for the victory, citing the courage and determination of Flint’s residents and community activists, as well as collaboration with colleagues from ACLU and other parts of NRDC chipping in over the course of 14 months. “The four of us worked as one unit,” Knicley says. “But it was really the product of 20 or 30 people that came together and pitched in and made sure NRDC was doing the best we could for the people of Flint.”

Though the settlement represents a major step forward, Flint’s problems are far from over. Residents continue to receive bills for water they can’t drink unfiltered. There will be long-term impacts of the lead ingestion on public health, and concerns about other contaminants in the water remain. There’s still a lot of work to be done in Flint—not the least of which is ensuring that city and state officials follow through on their obligations to the people they serve. The situation remains deeply troubling, but, says Chaudhary, “that’s why you get into this work to begin with, so you do what you can to help people in those circumstances.”