Bloomberg Law
April 7, 2022, 9:30 AM

Pollution Shields for Faulty Plants Need Better Fix, Groups Say

Jennifer Hijazi
Jennifer Hijazi

The Biden administration proposed last week to scrap an exemption for accidental pollution releases, a step environmentalists insist is only one of many needed to close multiple emission shields for industry.

The proposal removes a protection called “emergency affirmative defense” from federal operating permits, which is one way facilities can avoid lawsuits if they accidentally release excess emissions during extreme weather that disrupts operations.

The impact of the proposal, published in the Federal Register March 31, could be big for areas with large industrial facilities, according to University of Houston law professor Victor Flatt.

“It would force regulated entities to more carefully plan on avoiding ‘accidents’ in order to avoid potential liabilities,” Flatt said in an email.

Environmental groups have long called for affirmative defense and other similar provisions to be scrapped from compliance frameworks, particularly because “acts of God” are increasingly more frequent and predictable under worsening climate change.

But there is still a “complicated and messy” landscape of other exemptions that companies can fall back on, according to Andrea Issod, a senior attorney for the Sierra Club.

“It’s just going to take a very long time to undo all these various provisions,” Issod said.

More Work Needed

There are multiple liability shields similar to the affirmative defense provision that companies can use during accidental releases, though they stem from different directives and can appear in places including permits or Clean Air Act State Implementation Plans.

Texas is a state that provides broad protections for facilities under these types of exemptions, which protected companies during last year’s deep freeze that caused widespread shutdowns. Estimates last year from Texas environmental groups placed the excess emissions violations from the shutdowns at 3.5 million pounds of pollution.

The Texas Oil and Gas Association declined to comment about the impact of Biden’s proposal on affirmative defense, which doesn’t have the authority to remove liability shields in state-led programs.

On the federal level, the Trump administration issued guidance in 2020 that provided an exemption from Clean Air Act requirements during periods of accidental “startup, shutdown, and malfunction.” That was tossed by Biden last year.

“They all basically do the same thing, in that they allow polluters to release massive amounts of emissions during startup, shutdown, or malfunction, into fenceline communities, creating pretty serious harms,” she said. “And there’s no consequences.”

Issod calls them “SSM loopholes.” She and her team argued against yet another exemption last week at the U.S. Court of Appeals for the District of Columbia Circuit, claiming these loopholes are inconsistent with the Clean Air Act and ignore steps that “good actors” can take to avoid these types of pollution releases.

In actual “act of God” cases that are unpredictable, states or the EPA could still adjust penalties if they see fit, according to Flatt.

But facilities should still be “armoring up” against extreme weather, “and this increases their incentive to do so,” Flatt noted.

The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

To contact the reporter on this story: Jennifer Hijazi in Washington at

To contact the editors responsible for this story: Zachary Sherwood at; Meghashyam Mali at