The Politics of Risk: Pre-Litigation Site Assessment in Houston, Texas

Abstract

This Article provides a case study of agency decision-making under uncertainty, specifically the administrative process used by a state agency to investigate potential site contamination. Analysis of the Railroad Commission of Texas' use of site and risk assessment in a neighborhood built over crude oil storage tanks known as Kennedy Heights demonstrates how purportedly scientific processes can fail to embody the kinds of rational analytical approaches on which regulatory agencies publicly claim they depend. Primary documents outlining the efforts of the state agency, in coordination with a regulated party, suggest that these processes were shaped in different ways, used divergent assumptions, and ultimately yielded findings that more closely resembled arguments than results.

The rich history left behind by the story of Kennedy Heights gives us a chance to see the tasks of site characterization and risk assessment for what they are: inherently political exercises, riddled with limitations, and bounded in terms of what they can tell the expert or the layman. Given the changing standards of admissibility for scientific evidence in mass torts cases influenced by the holding in Daubert v. Merrill Dow Pharmaceuticals, Inc., this understanding has implications for the regulatory and common law uses of data gathering and analysis that extend far beyond the boundaries of one subdivision in Houston, Texas. The nature of risk assessment in the context of contaminated sites, where negotiation supplants analysis, should give us pause before we accept the growing expectation of scientific validity in the federal courts. Approaches to the admissibility of negotiated evidence in a post-Daubert context, where district court judges apply heightened tests of validity to expert-driven documents and testimony, are considered.

Keywords: risk assessment, scientific evidence, mass torts, Daubert, environmental justice