Vol. 51-2 Recent Publications
Review of Noah M. Sachs, Toxic Floodwaters: Strengthening the Chemical Safety Regime for the Climate Change Era
In Toxic Floodwaters: Strengthening the Chemical Safety Regime for the Climate Change Era, Noah M. Sachs discusses the seldom-discussed risks posed by toxic chemicals’ release from storage facilities as a result of flooding. Sachs defines “toxic floodwaters” as the dangerous floodwaters that flow through industrial sites and transport a mixture of contaminants (e.g. toxic chemicals, oil, sewage) to nearby communities. As floods grow more frequent and severe, as a result of climate change, and rising sea levels become more imminent, vulnerable communities face increased flooding and exposure to hazardous waste threats.
Sachs’s article is separated into three sections. First, Sachs examines toxic floodwaters’ threat. Then, he compares private versus public legal remedies’ suitability to combat the danger of toxic floodwaters and argues that public law is the better approach. Finally, he proposes specific changes to the existing chemical safety regime to better protect against these toxic floodwaters.
Examining Toxic Floodwaters
Sachs first documents some of the unique toxic-floodwaters challenges, which are most effectively studied in the aftermath of hurricanes, when toxic contaminant spread is the most intense and perceptible. Hurricane Katrina first brought attention to contaminated floodwaters after researchers studied the release of oil and toxic chemicals and their effect on nearby communities. Sachs also notes the long-term health risks of those Hurricane Harvey affected. Yet, studying toxic-floodwaters effects is difficult because waters are rarely tested at the high water mark during a flood, when the risk of human exposure is greatest.
It remains clear, however, that toxic-flooding harms are not borne equally across racial and class lines. The risk that a given facility poses to a community depends on the site’s substances’ volume and toxicity and those substances’ storage conditions. Communities of color and low-income residents of low-lying areas are the most vulnerable to toxic floodwaters. This is due in part to a transportation lack, which makes evacuation during a flood less practical. For the same reason, elderly communities and small children are especially at risk. Children also have a higher proportion of skin surface area to body weight, making them physically vulnerable.
Private Law Versus Public Law
Sachs then compares private and public legal solutions. Private law, which has been the main mechanism to address contaminant discharge, relies heavily on common law areas such as tort law, where behavior is modified by a facility’s perceived liability risk in the event of a disaster. Sachs argues that, unlike the private mechanisms such as tort liability or the insurance premium costs, public law might provide a more direct incentive to take preventive steps against floodwater dangers. In his analysis, Sachs draws heavily on factors set out by the economist, Steve Shavell, to support a public law approach. Sachs notes that toxic floodwaters create a magnitude of harm that exceeds potentially liable firms’ assets and that it is difficult to trace the harm’s source once contaminants mix and leave a facility during a flood. Furthermore, injured community members may not promptly bring a tort claim, because chemical exposure effects may not manifest for years. Once community members eventually bring a tort suit, they face the difficulty of proving causation and a facility’s failure to meet a standard of reasonable care in storing chemicals during a destructive flood. Therefore, Sachs argues, the threat of tort liability is insufficient and unlikely to deter firms from unsafe storage practices. Sachs examines government regulatory mechanisms and their success in preventing unsafe practices and mitigating vulnerable communities’ chemical exposure resulting from flooding.
Finally, Sachs proposes specific regulatory changes that could help prepare for toxic floodwaters’ inevitable crises. Sachs advocates a shift from the historical regulatory focus on toxic chemicals’ intentional discharge that reaches consumers and workers to a focus on chemical storage and accidental releases. For example, current statutes limit what can be discharged, but not where facilities can be sited, which, if regulated, could prevent future toxic floodwaters. Additionally, toxic floodwaters arise from chemical storage, not just chemical waste. Many otherwise harmless but commercially useful chemicals might be hazardous as chemical waste during a flood. Therefore, the 1976 Resource Conservation and Recovery Act (RCRA), which regulates only the storage of hazardous waste, is inadequate.
Sachs argues that, first, policymakers should compile an inventory of the most dangerous chemical storage facilities that are flood-exposed, so that they may be inspected before chemicals are discharged. Then, he proposes three steps: Establish federal standards that cover non-oil substances and accidental discharges; update requirements for emergency planning and notifying vulnerable communities by, for example, strengthening the 1986 Emergency Planning and Community Right to Know Act (EPCRA); and prohibit new facilities in at-risk areas.
Sachs’s article raises an issue that requires urgent attention. Not only will climate change increase the frequency of hurricanes and rainfalls generally, but rising sea levels will submerge coastal areas. Beyond correcting for toxic floodwater disasters that manifested during recent hurricanes, aggressive steps must be taken to prevent the crises on the horizon.
Sachs’s article also overcomes a very common challenge: When existing protocols are clearly inadequate, it can still be difficult to demonstrate that new ones will fill the gap. However, Sachs carefully illustrates our current public law mechanisms’ very clear shortcomings and offers concrete improvements. By creating an inventory of the most dangerous facilities and taking simple but aggressive steps to update our current regulatory regime, we might effectively mitigate some of toxic floodwater dangers that will otherwise be gravely exacerbated by future climate catastrophes.
Josh Katz is a partner at Bickerstaff Heath Delgado Acosta LLP and represents public and private entities before agencies and in state and federal court in the areas of environmental law, municipal law, water rights, and utilities.
Jackson R. Bright is a third-year student at The University of Texas School of Law and Staff Editor of the Texas Environmental Law Journal.
 Noah M. Sachs, Toxic Floodwaters: Strengthening the Chemical Safety Regime for the Climate Change Era, 46 Colum. J. Env’t L. 73 (2020).
 Id. at 75.
 See Melissa Denchak, Flooding and Climate Change: Everything You Need to Know, Natural Resources Defense Counsel (Apr. 10, 2019), https://www.nrdc.org/stories/flooding-and-climate-change-everything-you-need-know.
 Sachs, supra note 1, at 75.
 Id. at 79.
 Id. at 80.
 Id. (citing Danny Reible, Hurricane Katrina: Environmental Hazards in the Disaster Area, 9 Cityscape 53 (2007)).
 Id. at 85.
 Id. at 86.
 Id. at 84.
 Id. at 84–85 (citing World Health Organization, Summary of Principles for Evaluating Health Risks in Children Associated with Exposure to Chemicals 22 (2011)).
 Id. at 95.
 Sachs summarizes Shavell’s four factors to analyze liability-based versus regulatory approaches as “the knowledge gap between firms and regulators, the risk-producing party’s ability to financially cover any damage claims, the likelihood that firms may not face the threat of suit for harm done, and the relative administrative costs of relying on private law or public law.” Id. at 95–96 (citing Steven Shavell, Liability for Harm versus Regulation of Safety, 13 J. Legal Stud. 357 (1984)).
 Id. at 98.
 Id. at 101.
 Id. at 101–02.
 Id. at 100–01.
 Id. at 106.
 Id. at 78.
 Id. at 106.
 Id. at 107 (citing Agents Classified by the IARC Monographs, Volumes 1-127, Intl. Agency for Research on Cancer, https://perma.cc/Y56R-RZWF (last visited May 2, 2021); Known and Probable Human Carcinogens, Am. Cancer Soc’y, https://perma.cc/2ZQS-SKPX (last visited May 2, 2021)).
 Id. at 107.
 Id. at 108.
 Id. at 109.
 Id. at 89.