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Supreme Court Ruling on Shell Bad for Environment

New America Media, Q&A, Annette Fuentes Posted: May 14, 2009

Editors Note: On May 4, the U.S. Supreme Court ruled that the federal government couldnt hold Shell Oil responsible for cleaning up pesticides it sold to a distributor in Arvin, Calif., where leaks became a Superfund site. The ruling will make it more difficult to hold companies liable for polluting and to collect for clean-up costs.

Sheila Davis, executive director of Silicon Toxics Coalition in San Jose, talked with NAM editor Annette Fuentes about the impact of the high courts ruling for the Coalitions work. The Coalition has been involved in the cleanup of 29 Superfund sites in Santa Clara County, the largest concentration of such sites in the country.

Is the Supreme Court ruling going to make it harder for community groups like yours to hold polluters responsible?

Sheila Davis
I think it will. The fact that the court said that Shell wasnt responsible and didnt hold anyone responsible fully makes the system almost impenetrable for local communities. Getting Superfund laws implemented is hard anyway. This adds another layer of difficulty in terms of holding anyone accountable.

Some say the Superfund law has been all but toothless in the last decade because the tax on polluting companies that funded it expired in 1995. Is it still a weapon?

Now its less of a weapon, after being further gutted by court. But the threat of liability is a high motivator for companies. Take recycling. For companies that generate lots of waste, the fear that they would end up in a Superfund site was a giant It provided the motivation to do some type of recycling program.

SVTC emerged in reaction to widespread pollution in Silicon Valley. Now, there are concerns about the emerging nanotechnology industry. Hasnt Silicon Valley learned its lesson?

You would think so. Over the last eight years, so many federal laws, whether it was the Superfund law, Toxic Substance Control Act, and the Resource Conservation and Recovery Act, have been diminished. Plus we have a lot of new technology that basically makes the laws archaic anyway. Nanotech is one of them.

All the older laws are based on the volume of material youre using. If you use 10,000 gallons of chemicals, it will be regulated. But what happens if you have really small materials. Then you dont have any reporting requirements or clean up. Because the materials are so small, they are flying under radar.

What are some of worst offenders in nanotechnology?

Carbon nanotubes are like asbestos. The material is so small, it behaves differently in your body and environments. While the government now tests only for certain toxicity, these nanomaterials may have 16 characteristics that are toxic, but only a few get tested. Lots of money is put into nanotech by every sectorfrom food to electronics to cosmetics and pharmaceuticals. All have applications for nanotechnology. People see big dollars and they dont want to slow down the train. That is one of main reasons you dont hear a lot about it from the companies.

The fact that its not regulated means that manufacturers kind of do what they want, make their own standards and laws. So consumers and workers and the general public are in a horrible position in terms of being protected by federal laws.

People are talking about a coming revolution in green technology and green jobs. Is there a potential dark side to this economic engine?

There is. We put out a recent report that looks at photovoltaics and outlines our concerns about toxics in solar panels, as well as new unregulated chemicals in the panels. A lot of new technology is based on technology transferred from the electronics industry. The supply chain looks a lot like the electronics industry-where our computers and cell phones made in factories overseas. These are low-paid jobs and unregulated industries, and workers arent always treated fairly. Theyre sweatshops in many cases.
Its a challenge for us to say were creating a green job installing solar panels if were not looking at the folks who make the panels and photovoltaic cells.

What is the legislative solution to preventing a new generation of Superfund sites and poisoned communities?

Just looking at Superfund ruling Companies need to monitor their supply chain. Shell knew chemicals were being spilled by the distributor, but it did nothing. That is not how it should be. For companies with so many contractors working for them, it is a way to avoid liability. That is one area in which laws must be strengthened. The companies must be held responsible for supply chain parts. Another thing is that chemicals must be tested before they are put on the market, and they are not. Then the consumer or worker who is exposed has to prove its toxic.

After the Bush years in which science took a back seat to industry concerns, do you think the Obama Administration will be more of an ally?

This administration will look closer at science, but they also want to see progress in jobs creation and technology. And thats fine. But progress in technology is also about protecting public health. I dont know that the administration has heard that message very strongly.

Related Articles:
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