Abstract

From the Louisiana and Texas Gulf coasts to Wilmington, California, communities face disproportionately high cancer risks linked to excess hazardous emissions. This article examines the longstanding regulatory gaps that allow industrial facilities to emit excess levels of hazardous air pollution during startup, shutdown, and malfunction (SSM) events. Despite the Clean Air Act’s enacted framework for controlling emissions, the EPA has created exemptions and affirmative defenses that shield polluters from civil penalties even when emissions exceed legal limits. Excess pollution emissions occur when air pollution levels exceed what is considered safe for human ingestion. When communities are subjected to certain pollutants, they can suffer adverse health effects like cancer or birth defects. Moreover, some individuals and their families are at the highest risk for these diagnoses due to their proximity to industrial plants. Since the Clean Air Act’s enactment, the EPA has struggled to create emission control rules for SSM events that appease industry owners, environmental advocates, and the judicial branch.

Examining the history of SSM exemptions, the EPA’s regulatory approach, and related litigation, this paper explores the catalysts that have shaped the current regulatory landscape for SSM events. With this in mind, this article asserts that industries should face civil penalties for violating emissions limits regardless of whether an SSM event occurs. Additionally, eliminating affirmative defenses alone is an insufficient remedy to prevent SSM events and protect public health from hazardous excess emissions. In response, two proposals are offered for immediate and long-term reforms to ignite change for stricter laws regarding SSM events. In the short term, environmental advocates should pursue high-profile litigation, such as Administrative Procedure Act suits, to compel finalization of EPA rules and draw national attention to the frequency and harms of SSM events. In the long term, Congress must amend the Clean Air Act to remove SSM exemptions, adopt heightened technology requirements for all industrial plants regardless of age or size, and mandate industry practices that aid in reducing malfunctions during extreme weather. By adopting both proposals, real change can be achieved that will support clean air and public health for all Americans, including those most vulnerable to harm.

Recommended Citation

Spring, Gillian, Case Note, DON’T BREATHE IN: THE DANGERS OF SSM EVENTS AND WHY REPEALING AFFIRMATIVE DEFENSES FALLS SHORT, 66 Santa Clara L. Rev. 576 (2026).
Available at: https://digitalcommons.law.scu.edu/lawreview/vol66/iss3/4