Burning Man, the transient bacchanal that attracts more than 70,000 party-goers to the remote Nevada desert for eight days every August, prides itself on its environmental bona fides. One of the festival’s main operational tenets is “leave no trace,” an essentially impossible feat for an event of its size. The Burning Man Project, the organization that runs the festival, has set a goal of becoming “carbon negative” — removing more emissions from the environment than the festival produces — by 2030. 

It’s a tall order: The festival generates around 100,000 tons of carbon dioxide every year, the equivalent of burning over 100 million pounds of coal. A series of disasters at this year’s festival have brought the gap between Burning Man’s rhetoric and reality into sharp relief: First, a half dozen protesters demanding stronger environmental commitments from the organization blocked the festival’s entrance for roughly an hour before they were forcibly removed. Days later, torrential rain — the kind of event made more likely and extreme by climate change — stranded revelers in a dystopian free-for-all. But the greatest irony of all may be Burning Man’s less-publicized opposition to renewable energy in its own backyard.

Burning Man’s problems began on August 27, the first day of this year’s festival, when a blockade of climate protesters created a miles-long traffic jam on the two-lane highway into the dry lakebed of the Black Rock Desert, about 120 miles north of Reno, Nevada, where Burning Man takes place. In addition to calling for “systemic change,” they demanded that festival organizers take immediate steps to decrease the event’s carbon footprint. Burning Man, which started out as a small gathering of artists on a beach in San Francisco in the 1980s, has grown into a massive event that attracts a growing percentage of the world’s ultra-wealthy every year. The protestors, who were ultimately dispersed by police, demanded the festival “ban private jets, single-use plastics, unnecessary propane burning, and unlimited generator use per capita,” among other requests. 

Then, torrential rain spurred by a late-August hurricane and the onset of monsoon season in the desert turned the festival into a gargantuan mud pit, stranding attendees and forcing Burning Man to close the roads into and out of the festival from Friday until Monday afternoon, when conditions improved. Since no supplies could be trucked in or out, partiers were forced to ration water and other supplies. Some people, including the DJ Diplo and the comedian Chris Rock, abandoned their vehicles in the desert and walked out of Black Rock City, as the festival site is known, on foot. (It’s 15 miles from Black Rock City to Gerlach, the nearest town.) The rain caught festivalgoers off guard, but experts say floods like the one that inundated Black Rock City are a forecasted consequence of climate change. 

“The well-known southwestern summer monsoon is expected to yield larger amounts of rainfall in a warming climate,” Michael Mann, presidential distinguished professor in the University of Pennsylvania’s Department of Earth and Environmental Science, told Wired. 

A broad consensus exists, of course, on how to slow the climactic changes that are beginning to wreak havoc like this: replace the fossil fuels that currently power much of the world with a wide variety of carbon-free sources. In fact, the federal government approved one such project, a geothermal energy initiative in the Nevada desert a mile outside of Gerlach, last year. The exploratory project, funded by an international renewable energy company called Ormat Technologies, aims to find out whether geothermal — which taps naturally-occurring heat under the earth’s surface to produce clean energy — is commercially viable in the Nevada desert. 

But the venture faced immediate pushback from the Burning Man Project, one of a group of plaintiffs that sued the Bureau of Land Management, or BLM, over its approval of up to 19 exploratory geothermal wells in the Black Rock National Conservation Area. The Burning Man Project, the lead plaintiff in the lawsuit, also worked with residents of the tiny town of Gerlach, the hamlet closest to the geothermal development, to appeal the BLM’s decision. The wells, the organization said, would “threaten the viability” of Burning Man’s various projects in Nevada by potentially jeopardizing local hot springs in the area and disrupting the desert ecosystem. The plaintiffs argued that BLM had approved the project without adequate environmental review and hadn’t sufficiently consulted local communities, including the Summit Lake Paiute Tribe, in its permitting process. 

“People travel to Gerlach to experience the solitude of the vast open spaces and undeveloped vistas present in the Black Rock Desert,” the lawsuit said, “as well as to attend numerous events and to pursue a variety of recreation experiences in the undeveloped desert.” 

After the lawsuit was filed, the Washoe County Commission in Reno ultimately voted 3-2 against the proposed geothermal project, a move that baffled clean energy experts and overturned the county’s prior approval of the project.

The claim that the region remains relatively undisturbed, given the 70,000-person party that rolls in every year, rang particularly hollow.

“Some of the hype around Gerlach has been disturbing from a scientific point of view,” James Faulds, Nevada’s State Geologist, told Grist. “The Gerlach area has already been disturbed by man.” 

Faulds added that no hot springs in the area besides the ones located immediately above the actual geothermal wells would be affected by the development, and that the geothermal power plant itself wouldn’t be visible from the Burning Man festival. (The Burning Man Project did not respond to Grist’s requests for comment.) 

Ormat may try to appeal the county’s decision or scrap the project and apply to build new geothermal development elsewhere in the state instead. “Ormat will continue to press forward with exploration and development of its renewable energy projects throughout the State of Nevada to help the state and federal government meet their renewable energy goals,” the company said in a statement following the county commission’s vote. 

A single megawatt of geothermal energy can provide enough power for up to 1,000 residential homes year-round. That gives it a smaller land-use footprint than either wind or solar power, Faulds pointed out.

“Let’s say that power plant is producing 30 megawatts. You could drive by that and say ‘huh, that’s 30,000 homes,’” Faulds said. “That could be a big chunk of homes in a city in southern California or northern California, wherever the power is being sold to — where a lot of the Burning Man folks, of course, come from.” 

This story was originally published by Grist with the headline Burning Man’s climate reckoning has begun on Sep 5, 2023.

In March 2022, 175 countries agreed to write a global treaty to address the plastic pollution crisis. Now, a year and a half later, they finally have a rough draft.

The chair of the Intergovernmental Negotiating Committee on Plastic Pollution on Monday released a “zero draft” of the global plastics treaty, laying out a long list of proposals and sub-proposals for how the world can stem the tide of plastic pollution. It includes language on reducing plastic production and eliminating hazardous chemicals, steps that experts say are needed to mitigate the industry’s harms. But advocates say negotiators need to do more work to establish how much reduction is needed, and to prevent an outsize focus on recycling.

“This draft is only the starting point,” Eirik Lindebjerg, plastic policy lead for the nonprofit WWF Global, said in a statement. “We need countries to dial up ambition and finalize a plastics treaty that is globally binding, with bans on high-risk, single-use products.”

Perhaps the most significant part of the draft is its focus on plastic reduction, which environmental groups say is necessary in the face of plastic companies’ plans to triple plastic production by 2060. Those plans would lead to 44 million metric tons of plastic pollution being generated every year, up from about 22 million metric tons in 2019.

The document lays out a number of options for scaling back the use and manufacturing of plastic, whether by having countries set their own mandatory reduction targets or asking them to adhere to a global target established in the treaty. To meet those yet-to-be-determined targets, countries could ban particular types of plastic, remove subsidies for plastic production, or implement market-based measures like a plastic tax.

The draft also proposes that countries phase out microplastics — fragments of plastic that are under 5 millimeters in diameter — that are intentionally added to products, like the microbeads added to some types of body wash. It also suggests winding down the use of “problematic and avoidable plastic products,” such as single-use cutlery. One article proposes additional targets for “reuse, repair, repurposing, and refurbishment” of plastic products, something advocates have called a “potential game changer.”

Additional sections propose tighter controls on some of the 13,000 chemicals used in plastic production, whether by requiring more transparency from plastic companies about the ingredients they use or restricting the export of plastics containing hazardous chemicals.

The options represented in the draft are meant to reflect a broad spectrum of opinions based on input from the parties to the treaty. Delegates will discuss them in greater detail this November, when they’ll gather in Nairobi, Kenya, for their third major round of negotiations.

Some of the details to be ironed out include whether reduction targets and timelines should be set at the national or global level, and whether countries should be required or just “encouraged” to implement specific parts of the treaty.

In general, plastic companies have lobbied for a voluntary, bottom-up approach in which countries are free to set their own agendas on their own timelines. Instead of reducing plastic production — which they argue would “hinder progress toward a more sustainable, lower carbon future,” since plastic is used in renewable energy infrastructure — they’d prefer a treaty focused on recycling, cleanup, and other waste management efforts. The draft document nods to this approach with references to “increased recyclability” of plastics and “environmentally sound” disposal, which it doesn’t define further. Globally, only 9 percent of plastic waste is ever recycled due to technical and economic barriers — it’s usually cheaper just to make virgin plastic — and experts say the recycling rate is unlikely to significantly improve.

The American Chemistry Council, or ACC, a trade group whose members include major fossil fuel and petrochemical companies, told Climate Home News last May that “restricting the production of plastic materials essential to delivering clean water, renewable energy, and sanitary medical and personal care products is the wrong approach.”

Environmental groups have called the draft an “important milestone” toward an ambitious global plastic treaty, although they remain wary of language on recycling and waste management, which they say could be used to avoid reducing plastic production. 

Many are now urging countries to rally around a more concrete reduction target based on plastic production’s contribution to climate change. According to a recent report from the nonprofit Pacific Environment, the industry’s global carbon footprint was 1.3 billion metric tons in 2020 — twice as big as Canada’s.

“The Global Plastics Treaty must cut plastic production by at least 75% to ensure that we are staying below 1.5° Celsius,” or 2.7 degrees Fahrenheit, Graham Forbes, global plastics campaign lead for the nonprofit Greenpeace USA, said in a statement. “For the sake of our collective future, we cannot waste this moment.”

This story was originally published by Grist with the headline After a year and a half, negotiators finally have a draft of the global plastics treaty on Sep 5, 2023.

Hello, and welcome to this week’s edition of Record High. I’m Zoya Teirstein, and today, we’re looking at why the United States undercounts heat-related deaths.

Every week between May and October, the Maricopa County Department of Public Health in Arizona releases a heat morbidity report. The most recent counted 180 people who have died from heat-associated illness in the county this year so far. But in the course of reporting on the topic this week, I found out most people agree that that number is off. 

If previous years are any indication, the true number of heat-related deaths in Maricopa County, which includes Phoenix, is much higher: At the end of last summer, the county revised its initial reports upwards by a factor of five, ultimately reporting a sobering 425 heat-related deaths in total.

Nick Staab, a medical epidemiologist for the Maricopa County Department of Public Health, works in the department responsible for compiling the county’s weekly mortality reports. His office is sent cases in which the county’s medical examiner or Department of Vital Records, the office that documents deaths, marriages, divorces, and other life events, has identified heat as a primary or secondary cause of death. Then, he and the other epidemiologists determine what factors contributed to that death. They look at where the death occurred, whether there was air conditioning present, if substance use played a role, and other risk factors.

But undercounting is likely baked into the system even before Staab and his colleagues begin their painstaking work: Any one individual along that reporting chain, from the doctor declaring the cause of death to the medical examiner writing the death certificate, might overlook heat as a contributing factor.

“It’s imperfect,” Staab said. “It relies on human reporting.” In some cases, a provider will make their best educated guess as to the cause of death. If there are comorbidities — heart disease, obesity, mental illness — heat might not make it on the list, and Staab’s office will never see the death certificate to add to the county’s tally of heat-associated deaths.

“When you have something like heat-related kidney disease or heat-related heart attack,” said John Balbus, the acting director of the federal Department of Human and Health Service’s Office of Climate Change and Health Equity, “there’s no reliable way that every doctor is going to think about it in the same way.”

Collecting data on heat-related deaths gets even trickier when you zoom out. Counties with fewer resources, limited know-how, and infrequent exposure to extreme heat events are ill-equipped to record data on climate-related illness and morbidities, let alone report them to the federal government. 

But there are ways to harness data to change the status quo.

Last month, the federal government unveiled a new national dashboard aimed at improving how public health officials track heat-related illness. The tracker, modeled after an opioid overdose tool deployed by the Biden administration in 2022, seeks to provide more complete data on heat-related illness across the nation by mapping emergency medical services, or EMS, activity. The online dashboard, run by the Department of Health and Human Services in collaboration with the National Highway Traffic Safety Administration, tracks heat-related EMS activations — that is, calls to 911. 

The tracker is an example of how data can help the government visualize trends across the whole country and deploy resources to the areas where EMS activations are most concentrated. 

“This is another innovative use of data to show where people succumb, as opposed to tracking it from the emergency room,” Balbus said. Read the full story here.

By the numbers

A gap in reporting exists between deaths directly attributed to heat exposure and those in which heat was listed as either the direct or indirect cause.

Data Visualization by Clayton Aldern

What we’re reading

Citrus squeezes into the Peach State: A new citrus industry in Georgia is growing rapidly, thanks to a changing climate that makes the fruits easier to grow. As my colleague Emily Jones reports for Grist, there were very few citrus trees in the state a decade ago — now, there are more than 500,000 trees across nearly 4,000 acres.

Read more

Even the bayous of Louisiana are now threatened by wildfires: Record-breaking heat and dryness across Louisiana have helped ignite a spate of wildfires across the state. In an average year, wildfires burn roughly 8,000 acres in Louisiana; fires in August alone have set alight more than 60,000. Lylla Younes reports for Grist.

Read more

Heat is eroding shade in Nevada: Southern Nevada is at risk of losing its limited tree-cover to extreme heat, a loss that would further expose communities to climate change-fueled extreme temperatures “in one of the fastest-warming metros in the nation,” Jeniffer Solis writes in the Nevada Current.

Read more

Extreme heat is making working in Asia’s factories unbearable: We know it’s dangerous to work outside in extreme heat, but experts who spoke to the Washington Post say indoor laborers in Southeast Asia’s manufacturing hubs are also being imperiled by high humidity and scorching temperatures.

Read more

50 Cent postpones concert in Phoenix: The rapper was scheduled to perform at an outdoor amphitheater in Phoenix last week but canceled his show due to the intense heat, according to the Arizona Republic: “116 degrees is dangerous for everyone,” 50 Cent said in a tweet.

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This story was originally published by Grist with the headline How many people are really dying from heat? on Sep 5, 2023.

It was the winter of 2015 and Ken Paxton, the newly elected attorney general of Texas, stood before a lunchtime crowd of conservatives at the Texas Public Policy Foundation’s downtown headquarters in Austin. He was giving an opening keynote on “The Clean Power Plan, the War on Coal, and Why I Sued the EPA” alongside coal baron Robert Murray.

Paxton was in familiar company. The foundation, a right-wing think tank, had organized an energy and climate policy summit and stacked it with a who’s who of climate deniers. Over the next two days, attendees would sit in on discussions that touted carbon dioxide as the “gas of life” and condemned the federal government’s efforts to “shackle energy.”

As the sounds of clinking cutlery filled the room, Paxton broadcast what would become the defining crusade of his tenure: repeatedly suing the federal government — in particular over environmental regulation.

“Governor [Greg] Abbott told me as he swore me in, and I put my hand down, he said, ‘You will be the busiest attorney general in Texas history,’” Paxton recalled. “We’ve actually sued the Obama administration now six times,” he added to applause. 

Paxton’s political rise was swift; he went from state representative to state senator to attorney general in just three years. Brasher and more brazen than even his arch-conservative predecessor, Abbott, Paxton would become a prominent ally of President Trump.

He shared not only the former president’s anti-environmental and anti-immigration views, but also his Teflon-like quality for deflecting his own legal troubles. Less than six months into his first term as attorney general, Paxton was indicted for securities fraud for allegedly persuading investors to buy stock in a tech firm without disclosing that he was being paid by the company to promote its services. He managed to escape trial for the next eight years, all the while maintaining the support of the Texas Republican party and the state’s voters, handily winning re-election in 2018 and 2022. 

Like Trump, however, Paxton’s brazenness is now catching up to him. The attorney general’s undoing began in 2020, when senior officials in his office alleged that he had used his elected post to serve the interests of real estate investor Nate Paul, a friend and campaign donor. According to the staffers, Paxton directed his office to investigate Paul’s rivals; in return, Paul allegedly helped him remodel his Austin home and hired a woman with whom Paxton was having an affair. When Paxton fired the employees who spoke out, they filed a whistleblower lawsuit for retaliation. That suit was settled earlier this year for $3.3 million. (Paxton has denied all allegations by the whistleblowers.) 

Texas taxpayers were on the hook for that payout — a fact that didn’t sit well even with the lawmakers who had previously turned a blind eye to Paxton’s indiscretions. By then the federal Justice Department had also begun investigating the whistleblowers’ claims, and his own party finally turned on him. In May, legislators in the Texas House voted to impeach Paxton by a count of 121 to 23, a stunning rebuke from the Republican-led chamber. His trial in the Texas Senate begins on Tuesday.

Nevertheless, Paxton fulfilled Abbott’s prediction that he would be “the busiest attorney general in state history.” During his eight years in office, Paxton participated in multistate lawsuits against the federal government 45 times, a rate three times that of Abbott. Nearly half of those cases concerned energy or environmental issues, and they fought to stop rules that would have reduced carbon dioxide emissions from power plants, increased protections for rivers and streams, cut pollution from cars and trucks, and applied other environmental protections.

At the same time, Paxton centralized state authority over environmental litigation in the attorney general. His office backed legislation requiring community groups and counties to give the attorney general first dibs on environmental lawsuits. The resulting law has hamstrung environmental groups and county attorneys in Houston and Port Arthur from suing major polluters. Local officials and environmental advocates say that Paxton’s office has in turn let companies off with just a slap on the wrist.

As a result, Paxton’s tenure has been “a disaster for Texas’ air, water, and climate,” said Luke Metzger, executive director of the nonprofit Environment Texas. (Paxton’s office did not respond to a request for comment.)

State attorneys general suing the federal government is not a new phenomenon, but Paxton has been one of the most adept at using lawsuits to influence federal policy. After Democratic attorneys general first found success suing the Bush administration in attempts to force it to address climate change, Republicans increased the popularity of the tactic by batting back federal rules through lawsuits against the subsequent Obama administration. Texas was at the forefront of this type of litigation. 

As a state with significant fossil fuel resources, the country’s largest petrochemical hub, and a concentration of conservative judges who may be sympathetic to fossil fuel and business concerns, Texas became an ideal venue to file cases challenging environmental regulation. During Abbott’s time as attorney general, Texas joined in 15 multistate lawsuits and filed 28 other independent lawsuits against the federal government. Abbott famously described his job as such: “I go into the office, I sue the federal government, and then I go home.”

Though Abbott lost more than half of the multistate cases, Paxton has had much more success: Texas has won more than 40 percent of the 45 multistate cases it has filed since Paxton took office in 2015. 

“Paxton has been very aggressive, much more so than Abbott, in going to the courts that are the most favorable,” said Paul Nolette, a political science professor who studies attorneys general at Marquette University. Nolette calls this “platform shopping” — cherry-picking venues with sympathetic judges. “The fact that platform shopping has gotten so much more prominent is a big reason why they’ve seen more success — definitely at least at the district court level, if not on appeal,” Nolette added.

In multistate cases, states can file suit in any federal court in any one of the states involved in the litigation. As a result, states have wide latitude in picking the venue where their legal arguments will be heard. Increasingly, Paxton’s office has chosen to file in one Texas court: the Amarillo division in northern Texas. 

According to a recent Justice Department brief, Paxton has sued the Biden administration 28 times in various Texas courts. Of those, 18 were filed in Amarillo, a division with a single judge. The issue came to a head in a recent lawsuit filed by Texas and other states over new Labor Department rules that give retirement-plan sponsors more leeway to consider environmental, social, and governance factors when considering investment options. Paxton and other attorneys general filed suit against the federal government in the Amarillo division, and the case landed before Judge Matthew J. Kacsmaryk, a Trump appointee. 

In February, the Justice Department filed a motion to have the case reassigned to another judge. “Plaintiffs’ and other litigants’ ongoing tactic of filing many of their lawsuits against the federal government in single-judge divisions, or divisions where they are otherwise almost always guaranteed to procure a particular judge, undermines public confidence in the administration of justice,” attorneys for the Justice Department noted in a brief. 

Nolette, the political science professor, also attributed Paxton’s success to the fact that staff in the attorney general’s office are increasingly involved in federal rules earlier on. Staff attorneys often file  comments during the rulemaking process, which gives them a longer lead time to develop arguments that can eventually be used in lawsuits that are filed after the rules are finalized. While it previously took months for attorneys general to file suit after a rule got on the books, now lawsuits are filed within days of a rule being finalized. In the last year, Paxton’s office has sent letters to the EPA opposing proposed new clean air standards and updated environmental rules for the oil and gas industry. 

Nolette attributes Paxton’s success to aggressive tactics like these. “He’s been savvy in that way, at least in terms of being able to make the most out of the opportunities that are in front of him,” he said.

Paxton’s savviness also extended to environmental lawsuits at the local level. The attorney general is the top cop in the state. Paxton used this feature of the hierarchy to police the actions of county attorneys, who can bring civil environmental cases against polluters. In 2017, Paxton’s office pushed for legislation that required local entities (including community groups filing citizen suits) to provide a 90-day notice to the attorney general’s office before filing suit. The attorney general could then intervene and take over the case. 

The bill was passed after it was revealed in 2015 that Volkswagen had installed defeat devices in 11 million vehicles sold worldwide to cheat emissions tests. Attorneys across the world rushed to file suit against the German carmaker for defrauding the public. In Texas, then-Harris County Attorney Vince Ryan was among the first to sue Volkswagen. For years, Harris County had been in “non-attainment” of the Environmental Protection Agency’s smog standards. Ryan argued that by installing defeat devices that masked the true level of nitrogen oxide emitted by its cars, Volkswagen had prevented the county, which includes the city of Houston, from meeting the EPA’s air quality standards.

Paxton, however, wanted the matter solely in his hands. He requested that Ryan drop Harris County’s lawsuit and let the state “achieve a comprehensive and just statewide resolution of this matter on behalf of Texas.” When Ryan refused, Paxton turned to state lawmakers, who passed the law requiring local entities to give his office 90 days’ notice before filing environmental lawsuits. Paxton could then determine if he wanted to take over the case, thereby barring local groups from bringing the suit themselves. 

“The bill will provide consistency in interpretation of state law and regulation,” Craig Pritzlaff, an attorney in the environmental protection division of the attorney general’s office, told lawmakers at a legislative hearing in 2017.

But local attorneys’ offices and environmental groups saw the legislative push as yet another effort by the state to limit consequences for polluters. In 2015, the state had passed a law that capped the penalties that counties could collect from environmental violators at about $2.2 million. The law was a direct response to Harris County suing three companies for allowing dioxins to leak into the San Jacinto River and Galveston Bay for decades. Two of the companies eventually settled for $29.2 million, one of the largest civil penalties for solid waste violations in the state. 

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A Texas county wants to punish polluters. The state won’t let it.

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The 2015 and 2017 laws limiting when local entities could bring environmental lawsuits and how much they could collect in penalties typified the battle between local city governments that tended to lean Democratic and state leaders, who were Republican. Those laws also came on the heels of the state legislature overturning the city of Denton’s ban on fracking. 

The 2017 law “essentially ended the period of aggressive civil litigation of the county,” said Terence O’Rourke, a former special assistant in Ryan’s office. Another 2019 law requires county attorneys to seek permission from the attorney general’s office when hiring outside counsel. Since counties have limited staff and resources and may not have the expertise to bring specialized cases, they often hire lawyers in private practice on contingency fee contracts to represent their interests. After these laws were passed, O’Rourke said the county was only able to bring cases through backdoor political maneuvering. 

For example, when Harris County wanted to file suit against the e-cigarette manufacturer Juul, it retained a group of lawyers with Republican connections, O’Rourke said. One lawyer was a former Texas Supreme Court justice; the political connections helped the office get the approval to hire outside counsel and file the case.

“We got in the door on that one,” O’Rourke recalled. “That’s reality. How do you make it through and not have them taken over before they even begin?”

Grist obtained a list of 90-day notices sent to the attorney general through a public records request. Since the law passed in 2017, Paxton’s office has received 100 such notices; 62 were filed by Harris County. Of the 62 cases, the attorney general’s office has intervened in at least nine. While the number of times the office has intervened remains low, Paxton’s office appears to take over cases when they involve larger corporate polluters. The vast majority of cases in which Harris County has been allowed to take the lead involve small mom-and-pop operations, midsize chemical companies, and waste-disposal companies. 

“Whenever we get a large-scale emissions event, they take the case,” said Harris County attorney Christian Menefee. “That is just kind of a regular occurrence, and these cases often end up getting settled for pennies on the dollar.”

For instance, when a waste-processing facility had a fire in 2021, the state took over the case from Harris County and settled for a $11,250 administrative penalty — 3.75 percent of the $300,000 statutory maximum. In another case involving a fire at a bulk liquid-storage facility the same year, the state environmental agency settled for about 1 percent of the more than $1 million maximum statutory penalty. 

“It’s very clear that there’s a concerted effort in the [attorney general’s] office with the [state environmental agency] to take these cases from local governments and then to settle for 3 or 4 or 5 percent of the statutory maximum,” said Menefee, “instead of truly seeking the amount that’s going to be representative of the harm that was done to these communities, and that’s going to disincentivize companies from allowing these things to continue to happen.”

At least three cases have also stalled in the courts. After receiving much publicity for suing polluters responsible for massive fires and air pollution in 2019 and early 2020, lawsuits against Intercontinental Terminals Company, Valero, and TPC Group have languished in the courts. Grist’s review of the filings shows that few preliminary legal documents have been submitted to the courts over the last three years. The lawsuit against Valero was initially planned by environmental groups including the Sierra Club, Environment Texas, and the Port Arthur Community Action Network. The Sierra Club has had success filing similar lawsuits against polluters. In 2017, the group’s lawsuit against another Exxon facility resulted in a $20 million penalty.

“Four years is a long time to go on with litigation like this with little to show for it,” said Environment Texas’ Metzger. “We’re very concerned that the attorney general’s office isn’t aggressively litigating these cases.” If the environmental groups had been allowed to proceed with the cases, he argued, the lawsuits would’ve gone to trial and received verdicts by now.

Menefee said that his office has used creative legal strategies to get around the attorney general’s office, including citing federal environmental laws and suing in federal court. When the Texas Department of Transportation planned an expansion of a major highway that would harm communities of color, Menefee said his office chose to file a lawsuit against the agency under the National Environmental Policy Act in federal district court.

Similarly, when a cancer cluster was discovered in Houston’s Fifth Ward, Menefee said the agency notified the company responsible that it would sue under the Resource Conservation and Recovery Act, a federal hazardous waste law. But suing under federal laws in federal court comes with significant downsides. Bringing a case before a federal court is time-consuming, costly, and cumbersome. 

On the other hand, convincing the attorney general’s office to allow the county to bring its own case requires the expenditure of significant political capital, Menefee said. “Each time that I have to go up and ask them for their permission, there’s a price,” he said. Ultimately, it means that the county cannot pursue polluters as vigorously as it might otherwise. 

“It’s demoralizing, and it’s harmful to Harris County communities, because now they don’t get to have their day in court on environmental issues,” Menefee said.

This story was originally published by Grist with the headline Ken Paxton may be impeached, but his anti-environment legacy will live on on Sep 5, 2023.