A Sweeping Bit of Judicial Activism

Recent reports paint an ugly picture of irresponsible behavior by oil and chemical companies in Texas and across the country.

In response to the BP Texas City tragedy, the federal agency responsible for policing workplace safety has started a review of the safety habits of U.S. refineries. The preliminary results paint a picture of carelessness, including 11 violations at a Port Arthur refinery. Meanwhile, the chemical industry continues to thumb its nose at Mayor Bill White's call to reduce caustic benzene emissions in and around Houston. The backdrop to all of this is Entergy v. Summers, a recent Texas Supreme Court decision allowing oil, chemical and manufacturing interests to escape accountability when they fail to ensure the safety of their work sites.

Hugh Rice Kelly of the self-styled Texans for Lawsuit “Reform” claims that the Entergy decision is an isolated case. Nothing could be further from the truth. The Entergy decision is a far-reaching departure from the public policy established by the legislature time and again. The Court ignored the fact that lawmakers opted to preserve the legal rights of these workers in six consecutive legislative sessions, making clear that shielding plant owners from accountability when they threaten the safety of workers is not the policy of this state. Unfortunately, in a sweeping bit of judicial activism, the Court supplanted the legislature’s clear intent with their own ideological agenda.

This decision has real and serious consequences for the men and women who work at these facilities, as well as those who live in the surrounding communities. Mr. Kelly and his organization fight tooth and nail to block access to the courthouse for individuals, but they applaud the courts when they expand special protections for their oil, chemical, and insurance backers. This is hypocrisy at its worst.

These corporate wrongdoers are using the legal scheme outlined in the Court’s ruling to be labeled as “employers” solely for the purpose of shielding themselves from accountability without taking any of the other traditional responsibilities borne by employers like providing fair wages, decent benefits, unemployment insurance, and overtime. This is a classic case of the Texas Supreme Court letting corporate polluters have their cake and eat it too.

The dangers of protecting these facilities from workplace safety lapses do not stop at the plant’s gate. When they cut corners on workplace safety, communities that surround these are placed in greater danger through increased chances of violent environmental disasters that spew pollution into our air, contaminate our water, and threaten the safety of the entire community.

Under pressure from a bipartisan group of lawmakers, as well as law professors and a host of labor, environmental and public interest groups, the Texas Supreme Court has decided to rehear the Entergy case. This is an opportunity for the Court to reconsider its position, and it should do so. In the meantime, big oil and chemical industries need to clean up their acts by putting public, workplace and environmental safety first.