Background
In the 1920s, three unlined underground storage tanks for oil were connected to the Pierce Junction Oil Well near Houston, Texas. The tanks, connected by pipeline, were known as the Mykawa Tank Farm. In 1927, a hurricane partially destroyed the wooden tank covers, making them virtually unusable; thus, the company abandoned them. In the 1960s, Gulf Oil, the owner of the land, decided to sell it.
John Lester of the Log Development Company bought the land six years later, hoping to develop the land as a "Negro residential and commercial development." Lester built the subdivision on top of the filled-‐in oil pits, disregarding contractors' advice that he should remove them entirely. At this time, Chevron owned the oil pits.
People in the neighborhood began to notice strange colors in the soil, strange phenomena with the plants of the region (like trees with fruit on only one side), and deaths of animals that happened to dig in the backyard. Residents fell ill, and began to wonder if there was a connection with the oil pits beneath their homes. The ensuing law suit, John R. Simmons et al. v. Chevron U.S.A., was taken to the state district court on March 24, and became one of our nation's most well-‐known environmental justice cases.
The EPA performed tests on the site to determine the science behind the residents' claims. The City of Houston, as well as the Texas Water Commission and the Texas Rail Commission, also performed tests of their own. In its own defense, so did Chevron. Each test contradicted another one, but the EPA had its say and determined that the levels of surface methane and underground hydrocarbons were not enough to be detrimental to human health. The court case ended in a $12 million settlement, allocated among Houston Heights residents based upon zoning.
Case Details
In the 1920s, three unlined underground storage tanks for oil were connected to the Pierce Junction Oil Well near Houston, Texas. The tanks, connected by pipeline, were known as the Mykawa Tank Farm. Each pit had an oil capacity of 300,000 barrels of crude oil. In 1927, a hurricane partially destroyed the wooden tank covers, making them virtually unusable; thus, the company abandoned them. In the 1960s, Gulf Oil, the owner of the land, decided to sell it because the pits were no longer economically viable. Gulf Oil had the land appraised in hopes of passing it off to another owner and, during the appraisal, determined that the area would be a prime location for a mostly-‐black neighborhood. The document stated:
Should this land be developed for low-‐to medium-‐priced housing with FHA or VA financing, it would have to be a bi-‐racial development according to present regulations. It is felt that
eventually this would be the highest and best use of this property because it would then serve as a buffer between the white residential area in Crestmont Park and the heavily colored
property is committed to a use, either for subdivision purposes or other, by this element. Eventual industrial use may be foreseeable; although, this seems unlikely with the nearest trackage available two miles away.
John Lester of the Log Development Company bought the land six years later, hoping to develop the land as a "Negro residential and commercial development." Lester built the subdivision on top of the filled-‐in oil pits, disregarding contractors' advice that he should remove them entirely. This intentional and knowing disregard later would serve as the Kennedy Heights residents' evidence for racial
discrimination. People in the neighborhood began to notice strange colors in the soil, strange
phenomena with the plants of the region (like trees with fruit on only one side), and deaths of animals that happened to dig in the backyard. Residents fell ill, and began to wonder if there was a connection with the oil pits beneath their homes.
For nearly twenty years after the area was settled, the residents had issues with their water pipelines repeatedly breaking, at a rate of 20 to 30 breaks per mile of pipe per year. In the early 1990s, Houston's Capital Projects Department finally took their complaints seriously, deciding to overhaul the entire water pipeline system. When a member of the work crew collapsed during the project, however, the contractor shut down the operation and ordered tests.
People continued to get sicker in the neighborhood, suffering from lupus, cancer, and pregnancy problems. The people of Kennedy Heights formed an association -‐ the Kennedy Heights Civic Association, or KHCA -‐ that met with the EPA and pushed for an examination of the toxicity of their drinking water. The organization formed a Contamination Committee to collect money to fund a private
environmental consultant. They held that petroleum byproducts, particularly carcinogenic polyaromatic hydrocarbons (PAHs), contaminated drinking water during the frequent pipeline breaks and that this unclean water led to their poor health and rampant disease (especially lupus and cancer, both plausible results of exposure to PAHs).
Testing was carried out by Chevron, the Texas Railroad Commission (RRC), the Texas Water Commission, the City of Houston, a contractor hired by the pipe excavation company, a contractor hired by the residents, the American Home Dream Corporation (a developer interested in building 53 new units in Kennedy Heights), and eventually the Environmental Protection Agency (EPA) at different times throughout the case. Chevron's comprehensive testing found TPH, methane, benzene, arsenic, and mercury at above-‐regulation levels, but risk analysis by the RRC determined that they did not pose a significant threat to human health. Pas-‐Key Construction's testing found that "the contaminant is creosote mixed with crude oil which will cause skin rash, dermatitis, and breathing difficulties." The contamination was highest below the soil surface, at depths ranging from 2 to 11 feet: outside of normal direct human contact but potentially in contact with the water pipes.
The original lawsuit, John R. Simmons et al. v. Chevron U.S.A., was filed in state district court on March 24, 1995 (Plaintiffs' Summary of the Case, Adams et al. v. Chevron U.S.A., Inc. et al., 96-‐CV-‐1462 (S.D. Tex. 10 September 1997). John Simmons, who headed the Kennedy Heights Civic Association at the time, sought assistance from one of the most well-‐known attorneys in the area, who urged him to seek temporary injunction against any further contractors after Pas-‐Key. Injunction was granted. Plaintiffs (having consolidated) alleged that:
The three pits upon which the Kennedy Heights Subdivision had been built were utilized, stored, removed, and filled in an unreasonably dangerous and unlawful manner. They claimed that chemicals from these operations had volatized and remained in the soils and groundwater in toxic and explosive quantities, exceeding federal and state regulatory limits. Further, it was believed that "these chemicals and other unknown chemicals have infiltrated the water supply and may infiltrate the water system servicing the residents in and around the site." It was argued that defendants failed to disclose or falsely represented the historical uses of the site and
presence of residual contamination in order to obtain government financing that would facilitate the purchase of the property from Chevron.
However, during the trial, one particular challenge was proving a causal link between the known contamination of the site and the residents’ cluster of disease, as the plaintiffs’ attorney described:
[C]ausation was going to be a difficult issue. Essentially, you may have a toxin, and it may have a vehicle by which it could reach the victims, but the measuring of what level of intake would be required to cause certain manifested injuries, the science was not as aggressive as the
accusations, and so I felt that that was going to be difficult. We believed that it would be easy to show the presence of the toxins. We believed it would be easy to show how the toxins were being delivered to the victims. Quantifying the delivery system and qualifying the amounts of the toxins in a diluted substance were going to be incredibly difficult because the science was just
not established with the requisite level of certitude… We had the injury, and we had the search for the cause, and when you have cumulative effects that have a certain pattern, we use science as probabilities that if you have a common occurrence that is the effect, there should be in all reasonable probability a common cause, and so we used the strategy of going for the effect first, because that we could prove with certainty, and then the causal link we thought would
necessarily follow… Our victims were the predominant vessels of the effects. They had the lupus that had been fully diagnosed by scientists who had no prejudice one way or the other in the case. And their proximity to each other, those were easily establishable facts.
Chevron, however, successfully cast doubt on the plaintiffs’ witnesses who built computer models to estimate the exposure levels residents experienced. The Kennedy Heights residents also struggled to prove racial intent. Then, after 31 days of testimony, the judge – the fifth assigned to the case – recused himself after Chevron repeatedly accused him of bias in favor of the plaintiffs. He declared a mistrial. In 1997, the final judge ordered the case to mediation. The master met with the 1,700 plaintiffs in groups of 20-‐30, attempting to put together a settlement model. The plaintiffs were resistant to a settlement and distrusted the mediator, but eventually a monetary settlement of $12 million was reached. The case is still up in the air, because there were some residents who truly could not leave because of financial issues. Unlike the Love Canal Tragedy, in which the government helped fund relocation of the residents, the Kennedy Heights residents had no help in that regard. The case remains up in the air for many dissatisfied residents.
Key Actors
The People of Kennedy Heights
A neighborhood outside of Houston, Texas made up of mostly black residents. They claimed that the crude oil residue left by the oil pits of Chevron, initially owned by Gulf Oil Company, has had a devastating impact on human health in the neighborhood. They said that the residue has seeped into the water system in their neighborhood, plaguing its residents with cancer, illnesses, birth defects, and even death. Sixty of the 1,400 residents reported major illnesses and they attributed the lack of cleanup effort to the predominantly black proportion of residents in the Kennedy Heights neighborhood, making this an environmental justice issue. However, it is important to note that Kennedy Heights, among black neighborhoods in Texas, is one of the more affluent in the category. Though the area's relative wealth does not change its standing of a case of environmental justice, its money may have played an
influential role in the neighborhood's ability to hire lawyers and to take the issue to court.
Chevron
After a merger with Gulf Oil, the company is responsible for the oil pits because it originally owned them. It eventually sold the site to John Lester, who developed it, but the pits were their creation and responsibility. The company and its lawyers maintain that while the people of Kennedy Heights may indeed be experiencing adverse health effects, their problems are not associated with the company or
the oil pits. They argue that there was no racial intent in the lack of cleanup effort, especially because there is no pressing health need for cleanup based on their company's and the EPA's tests.
John Lester
President of the Log Development Company, interested in "acquiring the site for a Negro residential and commercial development." Lester bought the land from Gulf Oil in 1968, and despite an appraiser's suggestion to remove the oil pits entirely before building on the site, Lester simply filled them in and built on top of the crude oil remnants. The marketing techniques and subtle details like its name and location suggested a lower-‐middle class African American target market.
Houston’s Capital Projects Department
After twenty years of complaints about continually rupturing water pipelines, the Capital Projects Department finally began major work on pipe excavation and replacement in the beginning of the 1990's. When a worker collapsed during the excavation, the contractor decided to shut the project down, beginning the testing of the area in certainty.
Pas-‐Key Construction Services
The contractors who undertook the water pipeline excavation.
The EPA
The EPA conducted two series of tests on the site -‐ first after the suspected problems encountered during the water pipeline excavation project, and second, when the people of Kennedy Heights brought their suit to court. Their tests for surface methane and petroleum hydrocarbons were conflicting with those of the Chevron Corporation and of Exploration Technologies, Inc., the consulting firm hired by the residents.
Kennedy Heights, Houston, Texas: The Kennedy Heights Civic Association (KHCA)
An association of the residents of Kennedy Heights, headed by John Simmons. With the association, he surveyed the people living in the Kennedy Heights neighborhood, finding outrageously high rates of lupus and cancer. His study encouraged the people to file a suit against Chevron.
The Media
PBS, the New York Times, and CNN all covered the Adams et al. v. Chevron case. PBS was the most sympathetic, portraying the case as a clear example of environmental injustice. The New York Times was more neutral but still leaned toward the Kennedy Heights citizens' plight, while CNN took a very neutral approach to reporting on the case.
Proceedings
There were many tactics used to work toward the best alternative to a negotiated agreement. The first step the residents took was to form an organization: the Kennedy Heights Civic Association (KHCA), to have a source of community power. The residents themselves had little to no political power previously,
because of their low income and minority status. Assessments were carried out by the EPA, Chevron, the Texas Railroad Commission (RRC), the Texas Water Commission, the city of Houston, a private water pipe contractor, and the American Home Dream Corporation. The assessments were conflicting, causing even more dispute. John Simmons, the KHCA's community organizer and leader, took matters into his own hands, informally surveying the community and finding enormously elevated rates of cancer and lupus. The residents thus filed a suit against Chevron, Gulf, and their subsidies.
The final judge assigned to the case, David Hittner, had to consider several options for resolving the case. In 1997, he ordered the case to mediation. The mediator held meetings with approximately 20-‐30 plaintiffs at a time, eventually meeting with all 1,700 over 20 months. In the end, they agreed to a $12 million settlement, decided through bargaining. The total was allocated to the plaintiff’s legal counsel, the mediator, and the residents, to be divided among residents based on some combination of their proximity to the pits, longevity in the community, diseases suffered, and other considerations. (The details are not public.) Despite some inclusion of disease in this metric, Chevron refused to include diseases resulting from contamination in the mediation process.
After the settlement, some residents moved out of the neighborhood, though data doesn't specify exactly how many. The settlement amounts were individual, based on personal damages, among the residents, but some feel it was not enough to repay their physical issues.
After the settlement, EPA did another round of testing on soil, groundwater, and soil gas, but not drinking water because City and State records indicated that the neighborhood water supply met drinking water standards. During this testing, EPA found contamination by TPH and hydrocarbons in areas below the surface but estimated that health risks even from excavating such soils were low. EPA subsequently decided that the site did not qualify for Superfund listing.
Lessons from this process include a look at mediation. In civil litigation, mediation is shifting toward negotiations among lawyers, without their clients’ involvement. In this case, the mediator had discussions with the plaintiffs that included a wide range of their proposed solutions, but the only solution he took back to Chevron was the financial settlement that he from the outset believed Chevron would accept – an evaluative form of mediation, rather than a facilitative form, which assumes that parties can work collaboratively together. During mediation, Chevron refused to enter into discussions about contamination or its connection to disease; thus, residents’ experiences of disease were not included. In the mediator’s reading of the case, he had a firm interpretation that differed from many of the residents’ interpretations; much of their time meeting with him was spent defending their
understanding or adjusting to his perspective rather than discussing their interests and options. The mediator did not refer parties to neutral sources of professional advice and gave strong statements about the viability of the legal case based on recent tort reform and related court rulings; at this time, it is difficult to determine whether this information gave them a realistic sense of their options or
pressured them to settle quickly. That residents did not understand the way in which financial
allocations were determined has led to ongoing resentment and distrust. And, lawyers for the plaintiffs did not prepare residents well for what a settlement would mean, especially if the final resolution were
decided in a manner that was race-‐neutral, not linked to diseases resulting from contamination, and about individuals rather than the community.
Another question that arises out of this case has to do with the process by which agencies assess sites to determine risk. An analysis by a professor at the Brooklyn Law School, Gregg Macey, suggests that the site sampling and analysis at Kennedy Heights by different entities used different assumptions and “ultimately yielded findings that more closely resembled arguments than results… Site characterization and risk assessment [are] inherently political exercises, riddled with limitations, and bounded in terms of what they can tell the expert or the layman.” Simultaneously, courts increasingly expect scientific data to provide definitive answers, which Gregg Macey argues is especially unrealistic given the negotiations between agencies and companies like Chevron that go into risk assessments.
As of 2009, the water lines had still not been replaced in Kennedy Heights. Today, people remain fearful and anxious about living in Kennedy Heights, and that may well continue to be an issue unless the EPA finds a definitive connection between the hydrocarbon exposure and the health risks the residents suffer.
Sources
Macey, Gregg. Uploaded June 27, 2009. Negotiating with a captive audience in Kennedy Heights, TX: Settling environmental justice ligation with a special master. Accessed January 8, 2013. URL:
http://www.docstoc.com/docs/7868224/Negotiating-‐with-‐a-‐Captive-‐Audience-‐in-‐Kennedy-‐ Heights-‐Texas
Macey, Gregg. 2007. The politics of risk: Pre-‐litigation site assessment in Houston, Texas. Environmental Law 37 (pp. 15-‐59). Accessed January 8, 2013. URL:
http://www.elawreview.org/elaw/371/the_politics_of_risk_prelitiga.html
Nixon, Frances. Uploaded in 2008. Houston v. Chevron: A case of environmental justice. Colby College Wiki: Case Studies in Environmental Justice. Accessed December 2012. URL:
