Toxic Floodwaters: Strengthening the Chemical Safety Regime for the Climate Change Era

Abstract

Extreme flooding linked to climate change has caused toxic chemical spills across the United States, yet policymakers are not prioritizing industrial chemical safety in planning for climate change.  Many scholars and industry executives have argued that existing private law mechanisms, such as insurance and tort-based deterrence, can adequately manage the risk of flood-induced chemical releases from industrial sites.  But private law mechanisms have failed to prevent past incidents of mass contamination, and there is little evidence that tort law deters industrial firms from the practices that put communities at risk.  In this Article, I engage in a comparative analysis of private law and public law approaches and conclude that the United States needs a robust effort, grounded in public law, to prevent toxic floodwaters incidents.  The new effort should involve regulations and performance standards for chemical storage as well as other reforms to close gaps in toxic-chemical management statutes enacted nearly fifty years ago.  These changes are necessary to make our chemical regulatory regime more protective as industry faces new risks from floods and rising seas.