Federal environmental law began with a plea: that agencies and other parties consider, and mitigate, the environmental impacts of their work. The task remains unfulfilled given the nature of those impacts: They feature system effects, nonlinear interactions, feedback loops, discontinuous and threshold dynamics, and uncertain boundaries. The administrative state has limited means to address them. It relies on artificial constructs to assess and respond to impacts, such as worst-case scenarios, reasonable foreseeability, and scales that are either inappropriately narrow (“linked” projects) or large and vague (“program-level”). Right-to-know laws share this shortcoming, a product of the disasters that led to their enactment and the laws to which they were appended. In place for a quarter century, the framework is under renewed scrutiny. Recent accidents reveal risks from new and repurposed infrastructure, and point to chemical listing, threshold, labeling, and other potential reforms. But these are incremental adjustments to a baseline approach to chemical risk that operates under longstanding temporal and spatial constraints. Right-to-know privileges annualized data and the state of knowledge shortly after a release beyond a facility boundary. These choices limit data available for emergency response, particularly when chemical processing, oil and gas production, and other infrastructure are placed under stress. To explore how right-to know laws can better account for system effects, I focus not on the black swan events or worst case scenarios that shape new legislation and consume an outsized portion of administrative resources, but rather on increasingly common, geographically dispersed, and temporally discontinuous infrastructure stressors known as natechs. A natech event occurs when a natural hazard such as a storm, earthquake, or flood triggers technological accidents that result in the release of chemical agents into the environment. Natechs share several traits, including simultaneous releases, cascading and domino effects, and scattered or inaccessible infrastructure. They often occur under “best case” conditions, due to the weakness of the natural hazard trigger or the readiness of infrastructure in its path. They lead to non-state responses that identify, reconstruct, and track cumulative impacts that would be lost to regularized reporting at discrete scales. These non-state responses ensure situational awareness in emergent spaces, irrespective of facility boundary. And they suggest event sequences that can be leveraged for hazard mitigation. By focusing on a growing inventory of mundane infrastructure stressors, natechs can serve as proxies for some of the cumulative, delayed, distributed, and nonlinear impacts that environmental laws find difficult to address.
Available at: http://works.bepress.com/gregg_macey/13/