At a little after midnight on Dec. 22, 2008, over a billion gallons of coal ash slurry burst through a retaining wall next to a power plant in a small Tennessee city during what remains the largest industrial spill in United States history.

The coal ash crossed the Emory and Clinch Rivers, both tributaries of the Tennessee River, and spread out over 300 acres on the edge of the city of Kingston. It destroyed and damaged dozens of homes and critical infrastructure and killed wildlife. The slurry, in this case enough to fill 22 million bathtubs, is the remnants from burning coal to produce electricity. It contains highly toxic and cancer-causing chemicals like mercury, cadmium, and arsenic.

The cleanup cost the Tennessee Valley Authority (TVA), the largest public power company in the country, over $1 billion and took seven years to complete.

However, the toxic spill was decades in the making. The Environmental Protection Agency had warned the TVA about the safety of its coal ash pond for more than twenty years, even after a smaller blowout of the pond occurred in 2004.

A 2009 Congressional Investigation noted that the bigger spill was “caused by regulatory neglect, a lack of government oversight, and irresponsible coal ash practices.”

In short, the TVA didn’t act, and the EPA didn’t enforce its warnings, a familiar pairing of regulatory and corporate inaction that has dogged communities throughout the country for decades, allowing for a dangerous increase in the pollution of the nation’s air, water and the rapid deterioration of its biodiversity. 

From the hundreds of coal ash ponds and landfills that exist all over the country to the numerous examples of environmental racism in Louisiana’s pollution-filled Cancer Alley to the lead water crisis that continues to harm communities in Flint, Mich and every other state in the country.

Just this week, the Supreme Court made it even worse. It narrowed the scope of the 51-year-old Clean Water Act, which governs water pollution in streams, oceans, rivers, lakes, and wetlands.

The ruling means about half of the nation’s wetlands in the contiguous United States are no longer protected, threatening safe drinking water for millions of citizens. Judicial and political decisions have joined in undermining the country’s strict environmental goals and are likely to harm the two things that the EPA is supposed to protect: people and the environment.

“The current system where government agencies are basically designed to do industry’s bidding is obviously a real problem,” said Anne Rolfes, executive director of the Louisiana Bucket Brigade, a New Orleans-based environmental non-profit that targets polluters in the Cancer Alley region.”That’s the system the EPA is in. It’s very frustrating that what seem like pretty basic laws are not enforced, and these companies get away with so much.”

So, what does it mean for climate change?

Over the last year, the EPA has passed multiple new rules to help meet the country’s strict climate goals. The United States, under the current administration, has vowed to cut emissions by 50% by 2030 compared with 2005 levels and then to net zero by 2050. Congress also passed the Inflation Reduction Act, which pumps $370 billion into the economy to help tackle climate change. As part of that agenda, the EPA has announced proposals to reduce some harmful chemicals from petrochemical plants, emissions from light and medium-duty vehicles, pollution from fossil-fueled power plants, and restrictions on the oil and gas industry.

However, the array of potential new rules, including the coal ash proposal, will likely be hard to enforce and subsequently undermine Biden’s climate change agenda of tackling climate change. The consequences will also hurt communities closest to areas of severe pollution, like Uniontown in Alabama and other neighborhoods across the nation with predominantly residents of color.

“In the absence of enforcement, fenceline communities bear the burden of industry’s avoided costs and pay with their health and water resources,” said Evans.

However, as various administrations have changed, enforcement action has become harder than ever.

Over the last decade, the number of enforcement officers at the EPA has dropped by about a third, falling from 3,294 a decade ago to 2,253 in 2022, according to the Environmental Integrity Project, a Washington, D.C.-based group that advocates for enforcing environmental laws.

The stats indicate that during Trump’s presidency, the number of federal inspections and evaluations conducted by the EPA plummeted to about 10,000 per year from a high of 21,500 during George W. Bush’s second term. Between Barack Obama’s first and second terms, the figure dropped by about 25%.

Under Biden in 2022, the number of civil enforcement cases, the most severe kind of prosecution, has dropped to a 22-year low. Only 72 were adjudicated in 2022, down from an average of 94 per year under Trump, 160 under Obama, and 176 under Bush.

In short, the EPA has become far weaker since the Kingston slurry disaster. That has also been exacerbated by recent Supreme Court decisions that have narrowed the EPA’s ability to function.

In July 2022, the nation’s highest court restricted the EPA’s power to put state-level caps on carbon emissions using the 1970 Clean Air Act. The court said the authority to decide how the country generates power must come from Congress.

Charlotte Roscoe, a professor of environmental epidemiology at Harvard University, said the decision was “regressive” and a setback for climate change.

“Climate change impacts all people’s health and well-being and disproportionately impact the most vulnerable,” she said.

Alongside the Clean Water Act, both decisions will vastly delay climate action in the world’s largest economy, undermining Biden’s international leadership in tackling the world’s biggest environmental problems. He called the decision “disappointing.”

While Biden’s administration sets the agenda for the EPA, it should also be noted that he hasn’t fully embraced his label as an environmentally-friendly president. In March, the administration approved a major drilling project in Alaska’s portion of the Arctic Circle. He also approved the sale of oil and gas leases for more than 73 million acres of federal waters in the Gulf of Mexico.

Despite having its hands tied by politics and the law, the EPA has well-established powers regarding civil rights, and those are supposed to be backed by Biden’s promise to crack down on polluters in poor, minority areas.

However, the EPA has a very poor track record when defending the environmental rights of communities of color.

New EPA rules but still no enforcement

New safety rules were finally approved seven years after the 2008 Kingston toxic spill. They were supposed to prevent toxic chemicals from leaching into the environment and required leaking and unlined coal ash ponds to close and stop receiving waste.

However, there was a loophole. The 2015 rule only covered about half of all sites.

A 2022 analysis by Earth Justice, a San Francisco-based nonprofit public interest environmental law organization, noted that 566 landfills and ponds at 242 coal plants in 40 states were excluded from the ruling. Most were discontinued coal ash ponds and landfills close to dormant power stations.

Today, 94% of all coal ash ponds remain unlined, meaning they have no protective barrier between the toxic waste and the soil. That has led to contaminated groundwater at nearly every site tested in the country, according to Earth Justice’s analysis.

Despite its lack of enforcement on the 2015 rule, the EPA proposed yet another new rule in May aimed at closing that loophole. While environmental advocates celebrated the EPA’s new proposal, it comes with hesitation.

“There’s no point in establishing environmental regulations if they aren’t going to be enforced,” said Lisa Evans, senior counsel for Earth Justice. “Almost without exception, coal plant owners are violating the EPA’s 2015 rule [and] the success of a new, stronger rule depends on the EPA’s ability and willingness to enforce it.”

What has been the human impact of the EPA’s failure to enforce?

The corporate and regulatory failings in Kingston didn’t simply disappear when the billion gallons of coal ash slurry was cleaned up. Some workers who helped clean up the mess developed serious forms of cancer. To date, 50 people have died, and another 150 are sick.

Not long after the clean-up, around four million cubic feet of coal ash was moved from Kingston, a 90% white majority city, to the 90% Black majority town of Uniontown in Alabama’s Blackbelt. The city sits about 30 miles west of Selma, a city and region that led the civil rights movement in the 1960s. The Alabama Department of Environmental Management allowed the slurry to be dumped in Uniontown’s landfill, and the county received $4 million for its troubles.

At the time, Tennessee classified the slurry as hazardous material, but when it arrived in Alabama, it was labeled as non-hazardous. Residents in Uniontown have complained about the landfill for years and have fought with the EPA, the state of Alabama, and the landfill owners, claiming environmental racism. They have had multiple applications to the EPA’s civil rights decisions denied for “lack of evidence.”

“Uniontown’s story is very sad,” said Evans of Earth Justice. “And it all began decades ago in Tennessee.”

Another example of the EPA’s failure to enforce is Cancer Alley, an 85-mile stretch of the Mississippi River where thousands of Black residents have lived next to over 150 multibillion-dollar petrochemical plants and refineries for decades. Complaints to local, state, and federal officials have been mostly ignored — all while the long-suffering residents developed serious medical problems and died from various types of cancer.

The cancer rate in the region is higher than in other parts of the country. The EPA had rarely intervened until recently when it warned one of the massive chemical companies in the area to significantly reduce emissions from a chemical known as chloroprene coming from its manufacturing facility. The EPA identified the chemical as a dangerous carcinogen in 2010 but didn’t warn the cancer alley community about those dangers until 2016 and waited until this year to merely propose reducing its effect.

“The EPA, which I’ll firstly say has many great people who care about the environment, is trying to enforce the laws on the books,” said Rolfes. “But Joe Biden’s policies facilitate more construction and pollution in these Black communities. And that’s really counter to his professed value and the mission of the EPA.”

The public has until July 17, 2023, to comment on the EPA’s new coal ash rule. Leave your comments here.