. .. mi? 4.4%. was, , , .3. at“: s 1-» «tuna. H .. A; s ,n ,- V fig, um r». A ‘ ._ . 2 Ida .1: . tau-I‘m . .L»..Veurmmw. cal! [1.13 .1. an x V 5.1!.f3-I . . [Olrlthx 1. Z . mm 2000! LIBRARY Michigan State University This is to certify that the dissertation entitled TOXIC DECISIONS: A SOCIOLOGICAL STUDY OF THE CONTAMINATION OF US WATER SUPPLIES BY METHYL Ph' TERTIARY BUTYL ETHER (MTBE) presented by CHRISTOPHER SCOTT OLIVER has been accepted towards fulfillment of the requirements for the degree in Sociology m1 / Major Professor’s Signat‘ure €21 A1111LQM Date MSU is an afinnative-action, equal-opportunity employer -.-<—.—u---u-u-n-0-t-u- .—._.—._.-o-.-a-.A_-A....u-.-—u-a—r-v-u—a-ann-n---—-—.—. DD-'-¢-U-I-I-fl-I—v-I-I—o-—‘— -._ PLACE IN RETURN BOX to remove this checkout from your record. TO AVOID FINES return on or before date due. MAY BE RECALLED with earlier due date if requested. DATE DUE DATE DUE DATE DUE 5/08 KthroilAccaPreleIRCIDateDue.indd TOXIC DECISIONS: A SOCIOLOGICAL STUDY OF THE CONTAMINATION OF US WATER SUPPLIES BY METHYL TERTIARY BUTYL ETHER (MTBE) By Christopher Scott Oliver A DISSERTATION Submitted to Michigan State University in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY Sociology 2008 ABSTRACT TOXIC DECISIONS: A SOCIOLOGICAL STUDY OF THE CONTAMINATION OF US WATER SUPPLIES BY METHYL TERTIARY BUTYL ETHER (MTBE) By Christopher Scott Oliver In this dissertation I develop a comparative case study approach to the controversies around methyl tertiary butyl ether (MTBE) use in gasoline and its consequences for public and domestic water supplies in the United States (US). The dissertation follows a three paper approach which involves a) an overall introduction to the substantive issue — MTBE use in the US; b) producing three separate and stand alone articles of publishable quality to be submitted to professional journals; and c) an overall conclusion. The three articles are as follows: 1) an examination of two cases brought under the North American Free Trade Agreement (NAFTA). One was brought by the Ethyl Corporation (US) and deals with the use of methylcyclopentadienyl manganese carbonyl (MMT) in Canadian reformulated gasoline (RFG) supplies; the other case involved the use of MTBE in RF G in the US and was brought by the Methanex Corporation (Canada), the largest producer of methane, which is used in the production of MTBE; 2) a theoretical work examining the role of material agency in the production of environmental problems, using MTBE as a case to examine the important role of material objects within what I refer to as “agential networks”; and 3) a comparative case study of the use of MTBE and the consequences of its use in two US states - New York and Michigan. All of these articles are based on extensive qualitative interviews and archival research on MTBE and its associated water pollution issues. Finally I will provide an overall conclusion that brings together the most significant findings of each individual article in anticipation of new synthetic approach to the study of environmental problems from a sociological perspective. Copyright by CHRISTOPHER SCOTT OLIVER 2008 This dissertation is dedicated to my parents, Lawrence Oliver and Gloria Oliver. Their unyielding support and love has seen me through the most difficult of times, for which I am forever grateful. ACKNOWLEDGMENTS I would like to begin by thanking my Ph.D. committee members, Larry Busch, Craig Harris, and Toby Teneyck, for their support and suggestions. I also want to thank my colleague and fiiend, Alan Rudy. Alan changed not only how I look at the world, but also how to think about how others see the world. I would also like to thank my friends, Peter Cunningham, Michael Koot, David Randels, Sara Kramer, and Jill Higgins. I would also like to thank Ben Gross, Julie Hartman, and, especially, Victor Torres Velez, who mulled over numerous versions of this work. Also this dissertation would not have been possible without a generous grant from the National Science Foundation section on Science and Society. I would like to thank my family, including my parents and my sister, Tamara and her family, my cousin, Stephanie Economakos, as well as my mom’s sisters, Faythe Parks and Joanna Economakos, both of who have had a tremendous influence on my passion for learning and an equal passion for travel. I would also like to give special thanks to two of the best friends’ one person could have: John Tucci, my childhood friend who has always remained not only a great friend but has gone above and beyond to remain an important part of my life; and Josh Woods, whose friendship and intellectual discussions have supported and guided me through both difficult times and wonderful excursions — whether this be our numerous “working” lunches or our Friday golf outings. Last, but not least, I would express my gratitude to my committee chair and mentor, Tom Dietz. There is no doubt in my mind that without his guidance, support, and critical suggestions, as well as his positive reinforcement at times when I needed it the most, this dissertation would have not been possible. vi TABLE OF CONTENTS LIST OF TABLES .................................................................. KEY TO ABBREVIATIONS ...................................................... INTRODUCTION .................................................................. Why Lead in Gasoline? Why MTBE? The Politics and Economics of Toxic Decision-making in the Oil Industry ............ LUSTs, Petroleum Spills, and Remediation: MTBE and US Water Supplies ........................................................... Scientific Uncertainty and MTBE: The Toxic Consequences of the Unknown ............................................ A Brief Introduction to the Three Articles ................................. CHAPTER 1 THE TREADMILL OF PRODUCTION UNDER NAFTA: MULTILATERAL TRADE, ENVIRONMENTAL REGULATION, AND NATIONAL SOVEREIGNY ................................................ Introduction .................................................................... Premise and Structure of the Paper ................................ The Expansion of Free Trade during the Late Twentieth Century... .. Globalization, Trade and the Expansion of Production: The Treadmill Approach ..................................................... Globalization, Markets and Empire: Shifting Sovereignty in the Twenty-first Century ........................ Trade Disputes and Environmental and Public Health Regulations: NAFTA and Reformulated Gasoline (RFG) ............................. Ethyl Corporation v. Canada ...................................... Methanex Corporation v. the United States .................... Conclusion: Trade, Environment and Regulation under the Treadmill and Empire ....................................................... Afierword: Dissemination of Decision Making to Local Communities or Protecting Government Interests? ........................... The Methanex decision, supranational organizations, and Empire: theoretical implications ................................. CHAPTER 2 A SOCIOLOGY OF MATERIAL AGENCY: GETTING REAL ABOUT ENVIRONMENTAL PROBLEMS ................................. Introduction: The Question of Agency ............................... Sociological Approaches to Agency .................................... Approaches to Material Agency within the Sociology of Science, Knowledge and Technology (SKAT) Tradition ............ vii xi xii 15 15 16 19 20 23 29 30 33 38 4o 42 47 47 49 54 Tools for Navigating “the Great Divide”: A Symmetrical Approach .......................................... Material Agency: Approaches from Science, Knowledge, and Technology .................................................................... Winner: The Politics of Artifacts Revisited ..................... CaIIon, Latour and ANT: A Sociology of Actants .............. Pickering: Material Agency and the Mangle of Practice ...... Feminist Science Studies and Material Agency ......................... Does a Fetus Have Agency? Revisiting Casper and Nonhuman Agency .................................................. Donna Haraway: Situated Knowledges, Partial Perspectives and Material-Semiotics ..................... Karen Barad: Agential Reality and Material Agency ........... Mappings: Developing a Symmetrical Approach to Agential Reality .............................................................. The Production of Environmental Problems: Using Symmetry and Agential Reality to Map Agential Networks .............................. Material Agency and Normal Accidents: The Agential Network of Disasters ................................................. A History of Gasoline in the Environment and in the Body: Material Agency and the Automobile ...................................... Methyl Tertiary Butyl Ether (MTBE) as an Environmental Problem and Agential Network .................. Conclusion: Agential Networks, Material Agency and the Trouble with Environmental Problems, or When Nature “Misbehaves” ................ Environmental Sociology and Science, Knowledge and Technology Studies: What Role for General Sociological Theory? (Can We Teach an Old Dog a New Trick?) .............. CHAPTER 3 TOXIC DECISIONS: THE STATE, INDUSTRY, AND ENVIRONMENTAL HEALTH UNDER THE REGULATORY REIGN OF MTBE ....................................................................... Introduction ....................................................................... Premise of the Paper ................................................... The Study of Environmental Problems: An Organizational Approach... Organizational Cultures, Crescive Troubles and Normative Failures: When Environmental Problems Slowly Creep Along... Routine Regulatory Failure and Toxic Icons ........................ Environmental Policy and Regulation in the 21St Century: Federal versus State Responsibility ............................................. When Solutions Become Problems: The Use of Methyl Tertiary Butyl Ether .......................................................................... Research Strategy and Methodology ................................. Studying Organizational Cultures, Fields of Interaction, and Normative Practices with Regard to Environmental Issues ........ viii 55 58 59 61 65 69 69 72 75 77 80 81 85 88 95 99 104 104 106 109 112 115 119 122 127 129 Institutional Context and Setting: A Comparative Case-study Approach ................................................... 131 An Introduction to the Cases: A Comparative View of New York and Michigan ........................................................ 133 Establishing drinking water standards and actionable MCL for the state remediation of MTBE in New York and Michigan ............................................... 136 MTBE Use and the Remediation and Clean-up Costs of LUSTs: New York ...................................................... 137 MTBE Use and the Remediation and Clean-up Costs of LUSTs: Michigan ....................................................... 138 Case #1— Cadillac, MI (Wexford County) ........................... 142 Case #2 — Independence Township (near Clarkston), MI (Oakland County) ....................................................... 144 Case #3 — City of Albany, NY (Albany County) ................... 146 Case #4 — Hyde Park, NY (Dutchess County) ...................... 148 Discussion: Comparative History of MTBE Use in New York and Michigan ........................................................ 150 Early Use and Detection of MTBE in Water Supplies ............ 151 Conclusion: MTBE Contamination and the Production of Environmental Problems ........................................................ 158 CONCLUSION What Does Material Agency Have to do with MTBE? ......................................... 165 LITERATURE CITED .................................................................... 173 ix LIST OF TABLES Table 1: Approaches to Social and Material Agency: The Role of Intentionality ...... 78 BTEX CAAA CERCLA CEA ETBE Ethyl EU FTAA GATT GM HSWA LUSTs Methanex MERCOSUR MCL M1 M1 DEC MI DEC/RRD MI DEC/WQD MMT KEY TO ABBREVIATIONS Actor network theory benzene, toluene, ethylbenzene, and xylene Clean Air Act Amendments (1990) Comprehensive Environmental Response, Compensation and Liability Act Canadian Environmental Act ethyl tert-butyl ether Ethyl Corporation European Union Free Trade Agreement of the Americas General Agreement on Trades and Tariffs General Motors Corporation Solid Waste Amendments leaking underground storage tanks Methanex Corporation Mercado Comun del Sur maximum contaminant level Michigan Michigan Department of Environmental Quality DEC Remediation and Redevelopment Division MI DEC Water Quality Division methylcyclopentadienyl manganese carbonyl xi MTAs MTBE MUSTFA NAAEC NAFTA NO NPS NTP NY NY Spill Fund NYSDEC PCE RCRA RFG RVP SDWA SIP SKAT TAME TBA TCE TEL multilateral trade agreements methyl tertiary butyl ether MI Underground Storage Tank Financial Assurance Act North American Agreement on Environmental Cooperation North American Free Trade Agreement nitrogen oxides national primary standards National Toxicology Program New York NY Environmental Protection and Spill Compensation Fund New York State Department of Environmental Conservation perchloroethylene Resource Conservation and Recovery Act reformulated gasoline Reid vapor pressure Safe Drinking Water Act state implementation plan science, knowledge and technology tertiary arnyl methyl ether tertiary butyl alcohol trichloroethylene tetraethyl lead, or leaded gasoline xii TCSA US US EPA USTs VOC WTO Toxic Substances Control Act United States United State Environmental Protection Agency underground storage tanks volatile organic compounds World Trade Organization xiii INTRODUCTION Methyl tertiary butyl ether (MTBE) has the dubious distinction of being one of the top chemical polluters of groundwater and surface water in the US history. MTBE is a chemical additive that when blended with gasoline stocks increases the oxygen content of the new, reformulated gasoline (RFG). The use of MTBE in RF G in the US is the consequence of a complex set of relationships involving public regulatory policy, energy policy, science and technology, corporate and political decision making as well as other political economic influences.l MTBE was originally approved use in the US in 1979, as replacement for leaded gasoline (tetraethyl lead, known hereafier as “TEL”), which was being phased out of use in the US. Lead gasoline had been used for over 60 years to boost octane levels of gasoline and reduce knocking during combustion in automobile engines. Oil companies decided to replace lead with MTBE for two primary reasons: a) the companies wanted to continue to produce fuel with a higher oxygen content, which is used in high performance (high compression) engines such as those in sports cars and compact cars. Since these higher grade fuels (medium and grade) were sold at higher prices than standard grade fuels (low grade) they generated substantial revenues for the companies; b) MTBE is produced through the chemical reaction of methanol and isobutylene. — Methanol (also known as methyl alcohol or wood alcohol) is derived from natural gas, and isobutylene is derived fi'om crude oil during the refining process by one of a number of processes ' Reformulated gasoline (RFG) is gasoline specifically mixed to reduce harmful exhaust emissions during combustion by either increasing the oxygen content and/or lowering the Reid Vapor Pressure (RVP). Additionally gasoline additives (including some forms of oxygenates) act to inhibit corrosive characteristics allowing for higher compression ratios for greater engine efficiency and power. However there are a number of different fuel additives used in gasoline supplies; consequently not all gasoline that contains additives would be considered to be RFG. including butane dehydrogenation of isobutane or the dehydration of tertiary butyl alcohol (TBA). This process can be accomplished using existing refining technologies present at most of the existing US oil refineries. Consequently the replacement of TEL by MT BE served a two-fold purpose for oil companies — one, helping to dispose of byproducts associated with refining oil into gasoline at minimal cost; and two, keeping the cost of the end of product -— higher grade oxygenated gasoline — relatively high by comparison to lower grade fuels. Why Lead in Gasoline? Why MTBE? The Politics and Economics of Toxic Decision- making in the Oil Industry In the early part of the twentieth century Henry Ford introduced the world to his new invention — the mass produced combustion engine automobile. Ford’s cars, which included the Model T as well as the Model A, were the first vehicles to rtm on alcohol- based fuel. While not the only car on the market — General Motors (GM) had been established by this time -- Ford’s car was distinct in that it was mass produced, reducing the overall cost of the car and setting the stage for the development of standardized system of production and consumption. In response, GM decided to change its manufacturing emphasis towards more powerfiil, faster, and larger vehicles. Consequently the engines of the new line of GM cars needed to run on a fuel with a higher oxygen level for increased performance (Warren 2000).. In 1921, research scientist Thomas Midgley Jr., an employee of the General Motors Research Corporation, a research lab owned by GM, discovered the effectiveness of using TEL in gasoline to reduce “knocking” in internal combustion engines.2 Midgley had experimented with a number of agents by adding them to traditional fuel compositions, none of which had been effective until the introduction of iodine, which when mixed with fuel reduced premature combustion in accordance with the fuel-air ratio. This ratio, which came to be known as the octane level in fuel, was increased by the introduction of iodine. However due to the combined corrosive qualities of iodine and TEL, both of which quickly degraded engines, as well as its prohibitive costs led Midgley to continue to experiment with other octane-boosting alternatives. In 1922, Midgley enlisted the help of Dow Chemical Corporation, the only domestic supplier of bromine. Bromine, Midgley discovered, could reduce the corrosive effects of TEL and do so without the necessary addition of iodine to boost octane levels. However, the production of bromine involved its extraction from the brine of seawater, and at this time Dow was unable to provide for the increased demand for bromine supplies. So again Midgley and GM turned to another important chemical company, the Du Pont Corporation, to help them scale up the production of bromine from seawater.3 Finally in late 1922 Du Font and GM sign a contract to manufacture TEL using the ethyl bromide process. Immediately following this — in 1924 — GM and Standard Oil of New Jersey created the Ethyl Gasoline Corporation (renamed the Ethyl Corporation in 1942) with patent rights for the manufacture and distribution of TEL in the US.4 2 This section is primarily based on Markowitz and Rosner (1985, 2002), Robert (1983), and Warren (2000). 3 Initial production involved the use of a seawater extraction plant built on board a cargo ship aptly named the SS. Ethyl. However the ship only made one voyage with limited success. With the advent of the Ethyl Corporation, the company turned to land based facilities for the extraction of bromine from seawater. It should also be noted that in 1922 the president and chairman of General Motors Corporation was Pierre 8. du Pont, who was also the brother of the president of the Du Pont Corporation, lrénée du Pont. ‘ Standard Oil of New Jersey would eventually become ESSO, then Exxon, and now is known as ExxonMobil. Interestingly by this time engineers had discovered the octane-boosting effects of ethyl alcohol (or ethanol) - either when mixed with traditional fuels or used as a fuel itself. However a number of factors led to the adoption of TEL (named “Ethyl” by Charles Kettering, Midgley’s boss and head of the GM Research lab). First, as a newly created compound (an “invention”), TEL could be patented for use and thereby profitable for the owner of the patent, a joint venture company of GM and Standard Oil of New Jersey. Ethanol, on the other hand, could not be patented. Second, adding the substance TEL to refined oil - or gasoline - would not significantly reduce the amount of oil needed for fuel production, whereas, the use of ethyl alcohol could result in the complete replacement of petroleum-based fuels, which was not in the best interest of one of Ethyl’s parent companies, Standard Oil of New Jersey. Third, the production of ethyl alcohol is a relatively simple process that can be undertaken without great investment in technology, and at the time corn stocks for the production of ethyl alcohol were relatively plentiful — however, Standard Oil of New Jersey had significant investment in the extraction of oil and its refinement into fuels. The relative abundance of corn stocks coupled with the relative ease of production made alcohol-based fuels a competitive alternative to oil — an issue not lost on oil companies and their ability to influence Washington DC politicians and US automakers. By the time of its introduction into firel supplies, some research suggested that lead was highly toxic to human in relatively small amounts - whether directly ingested, inhaled, or absorbed through the skin by direct contact (Markowitz and Rosner 2002; Warren 2000). In fact, just a few years after Midgley “discovered” the effects of TEL he became seriously ill as result of acute lead poisoning from exposure during his research.5 Then in 1924, five workers at the Standard Oil’s Bayway ethyl production facility in New Jersey were struck down by a mysterious illness that included “ranting” and “disorientation”, eventually followed by convulsions and death. Autopsies indicated that all five of the workers have severe hemorrhaging as a consequence of the inhalation of lead during the TEL production process. Afier six more workers died in another TEL production plant, and at the request of US Surgeon General, Ethyl stopped production. However, the powerful interests of Etlryl’s parent companies - GM and Standard Oil, as well as Du Pont’s interests in TEL — were able to convince government regulators that TEL production posed no substantial public health risk (Warren 2000). Consequently the economic incentives created by the patent process as well as its material properties and the ability to use lower quality crude oil to produce high octane fiiel, coupled with the intimate link between GM, Du Pont, and Standard Oil, made the use of TEL in combustion engines a profitable choice, and would remain so for over 60 years. Finally, in the 19705 the US, Canada and most western European countries banned the use of TEL in gasoline due to numerous studies demonstrating various neurotoxicological effects to human health and widespread environmental contamination by the substance. The US oil industry decided to use MTBE as the primary replacement for TEL. The Canadian oil industry opted for the use of methylcyclopentadienyl manganese carbonyl (MMT), a gasoline additive produced by Ethyl Corp., the same company which has produced TEL. Ethyl attempted to market MMT in the US as an alternative to MTBE but US EPA banned its use based on research indicating its 5 It should be that Midgley was also credited with the invention of a number of important chemical compounds, many of which have had severe environmental consequences, most notably the creation of chloroflucarbons and hydrochloroflurocarbons, more commonly known as Freon, used in refrigerants. chemical constituents may interfere with catalytic converter technology newly required in all new US vehicles. Ethyl argued that MMT did not affect the catalytic converter technology and therefore should not have been banned. After a protracted legal battle in 1995 a federal court ruled that there was no substantial evidence indicating the claims of US EPA and, consequently, the agency must reverse its ban on MTBE. However by this time MTBE was the primary oxygenate used throughout the US and therefore making a shift to MMT would not be cost effective. As described previously, MTBE was introduced into US gasoline supplies in 1979 to replace TEL as an octane booster and to reduce air pollution issues associated with the combustion of fuel fi'om automobile engines.6 Then in 1990 the US Congress with the support of President George H.W. Bush enacted the Clear Air Act Amendments (CAAA of 1990). These amendments included the establishment of a federal RFG program intended to substantially reducing carbon monoxide emissions and the volatile organic compounds (V OC) and nitrogen oxides (N 0,.) that react with other pollutants to form smog (McCarthy and Tiemann 2003). MTBE was chosen as the primary oxygenate used by most oil refiners to produce RF G. Under the CAAA, 39 cities — referred to as “non-attainment” areas — were required to use gasoline that contains oxygen at 2.7% by weight. About 80% of this oxygenate requirement was met by MTBE, with the remainder met through the use of ethanol.7 The RFG program was mandated in nine major metropolitan areas with the worst air 6 Initially MTBE was used as replacement for lead (tetraethyl lead) in gasoline to reduce knocking and also to boost octane levels for higher grade gasoline sold in the US as mid-grade and supreme quality fuel. However, early research indicated that MTBE also could serve to reduce harmful emissions produced during combustion. 7 About 1% of the RFG requirement was met by other ether-based oxygenates (ethyl ten-butyl ether, or ETBE, Tertiary amyl methyl ether, TAME) or other alcohol-based oxygenates (methanol) at various times during the RFG program. emissions issues. Most cities chose to use RFG using MTBE. However, Chicago and Milwaukee chose to use ethanol instead of MTBE. Many additional areas voluntarily joined the RFG program (under the RFG “Opt-in” program); in total MTBE was used in 17 states and the District of Columbia under the federal RFG program.8 California alone, with a population of over 30 million, at the peak of the federal RFG program, accounted for over thirty percent of MTBE use. The US counties that were mandated to use MTBE- laden RFG have a combined population of nearly 70 million (McCarthy and Tiemann 2003). But since MTBE-laden RFG was sold in many areas not specifically mandated for its use, the number of people at potential risk is most likely significantly higher. Further, some researchers argue that the RF G program has had little effect on levels of harmful emissions, crediting instead other programs unrelated to the RFG requirement (McCarthy and Tiemann 2003, 2006). LUSTs, Petroleum Spills, and Remediation: MTBE and US Water Supplies While MTBE can enter surface and groundwater supplies due to spills and handling issues in transit, the primary cause of water contamination by the additive is leaking underground storage tanks (LUSTs).9 There are approximately 760,000 federally regulated active underground storage tanks (USTs) in the US that store hazardous substances including fuels (US EPA 2006).'0 Since 1985 federal and state LUSTs clean ’ There were four (4) classifications under the federal RFG enacted by 1990 CAAA (and implemented in 1995): a) mandated non-attainment areas requiring RFG; b) areas not mandated as non-attainment areas but who voluntarily chose to use RF G (“Opt-in” areas); c) areas that voluntarily chose to use RFG but then chose to stop using RFG as some point (“Opt-out” areas); and areas without any RFG requirement (or voluntarily using another form of fuel, such as gasoline with a lower RVP, to meet their non-attainment goals under their state implementation plan, SIP) Also referred to as leaking underground fuel tanks (LUFTs). '° US EPA estimates there are an additional 3 to 4 million USTs are exempt from federal regulation (US EPA 2006). up programs throughout the country have remediated over 350,000 leaking tanks. However, in September 2006 federal and state officials confirmed that between 1985 and 2006 more than 465,000 UST sites have experienced some form of leakage. Further, the same records indicate that there are 436,000 sites in the process of remediation and 351,000 sites in which cleaned up have been completed. But this still leaves approximately 32,000 sites nationwide in which remediation has yet to have been initiated (GWPC 2008). Initial estimates indicated that MTBE could be found in groundwater and well water in 17 states and 82 counties, affecting areas with a combined population of over 55 million (Johnson et a1. 2000; McCarthy and Tiemann 2000; Public Citizen 2001). However, more recent data identify 44 states that have reported groundwater contamination by MTBE; other estimates indicate that all 50 US states have a least some level of MTBE contamination of either soil or water sources (Stephenson 2002). By 2002, a US Geological Survey report found MTBE in 86 percent of wells sampled in industrial areas, 31 percent sampled in commercial areas, 23 percent in residential areas and 23 percent in areas of mixed urban land use, parks, and recreational areas. Additionally, 24 states have found MTBE present in groundwater over sixty percent of the time when they sample (Stephenson 2002). Estimates of the cost of MTBE clean up range from a low of $1.5 billion (reported by industry sponsored study by the American Petroleum Institute, or API) to a mid range of $25 to $35 billion to a high of $85 billion, with the latter cost based on a reduction of contamination levels to less than 1 part per billion (1 pg/L) (American Metropolitan Water Agencies 2005; American Water Works Association 2005). The US EPA responded to initial reports of groundwater contamination by providing information, intensifying research, and focusing on the need to minimize the number of LUSTs. However, as reports of contamination spread in 1998 and 1999, the EPA decided to reverse its original position. On March 20, 2000, the US EPA announced it was beginning the process of reducing and eventually phasing out MTBE-use under Section 6 of the Toxic Substances Control Act (TSCA of 1976). However, since this type of regulatory action may have taken several years to complete, the US EPA urged Congress to repeal the CAAA to provide specific authority to reduce or eliminate use of oxygenates such as MTBE in RFG. In 2000, the Senate Environment and Public Works Committee introduced Senate Bill 2962 (S. 2962), the first such bill to provide such regulatory authority. As with four subsequent bills introduced after 2000, these attempts to overturn the RFG requirements in the US Congress failed prior to reaching either the House or Senate floors. Finally, after two years of debate in the US Congress in August 2005 President Bush signed the Energy Policy Act of 2005 (Public Law 109-58), ending the formal requirement of a federally mandated reformulated gasoline (RFG) program, and thereby reversing its oxygenate requirement and allowing states to phase-out or eliminate MTBE-laden fuels. Scientific Uncertainty and MTBE: The Toxic Consequences of the Unknown MTBE has been associated with numerous physiological effects in humans including dizziness, nausea, and headaches. For years the US Environmental Protection Agency (US EPA) did not list the substance as either a “probable” or “possible" carcinogen (US EPA 1997). But many scientists have argued that when ingested MTBE is a significant carcinogenic risk, even when consumed at very low levels (Joseph 1996a, 1996b; Health Effects Institute 1996; Mehlman 1998).” or equal import, at the time of the introduction of MTBE into US fuel supplies no clinical studies had been undertaken examining the consequences to human health when the substance is ingested; all studies prior to its use had been done with regard to inhalation only. Mehlman (2000) asserts that the initial regulatory process of deciding upon the toxicological characterization of MTBE was not based in sound regulatory science. Mehlman argues that the National Toxicology Program's (NTP) Board of Scientific Counselors ruling with regard to MTBE in December 1998 was counter to established protocols. According to Mehlman, despite the strong evidence indicating its negative potential health effects, the NTP Board defeated a motion to list MTBE as “reasonably anticipated to be a human carcinogen” by a reported vote of 6 to 5. According to Mehlman (2000, 507), “This decision directly contravenes rules and procedures previously established by NTP for assessing carcinogenicity of chemical compounds.” He adds, “There is no question that the data presented demonstrate that MTBE is a probable human carcinogen.” Up until 1998, the US EPA had strongly opposed measures to reduce the use of MTBE. Based on available research, the agency concluded that although MTBE use posed some risk, that risk was no greater than that posed by other gasoline components such as benzene, toluene, ethylbenzene and xylene (know collectively as “BTEX”). However, new research soon discovered that MTBE’s unusual physical characteristics — " See Joseph, Peter M. 1996a. “Reformulated Gasoline: A Source of Illness?” June 15. Unpublished report on author’s website, http://shallowsky.com/RFG/RFG.txt. Retrieved August 18, 2005 and Joseph, Peter M. 1996b. “Health Effects from MTBE in Gasoline.” April 15. Unpublished report on author’s website, http://shallowsky.com/RFG/health.txt. Retrieved August 18, 2005. 10 MTBE is more soluble in water than BTEX — created a potential contamination problem much more significant than those posed by BTEX alone. Since MTBE does not bind well with soil constituentsit is more easily transported in groundwater. It also has strong negative aesthetics including odor and taste in water supplies even at low levels. Further, the biodegradation of MTBE takes considerably longer than BTEX or other gasoline components, possibly leaving contaminated soil and water sources polluted from decades without proper remediation (Johnson et a1. 2000). In 2005 an internal EPA memo did indicate that on-going research has identified MTBE as a “likely” carcinogen, thereby posing a much more substantial risk to public health that previously thought (Baltimore 2005).12 Fortuitously the perception of MTBE — through taste and smell — in water supplies by users at very low levels appears to have translated into lower exposure rates than previous estimates indicated. Also these characteristics of MTBE may have reduced the likelihood of long-term exposure to the public. Still the actuality of these assertions have yet to be determined; and, based on existing knowledge regarding the difficulty of determining a causal link between environmental contaminants and public health risk and effects, these efficacy, or refutation, of these claims may never be able to be determined (Brown and Mikkelson 1990; Cranor 1993; Dietz and Rycrofi 2987; Durant 1985; Edelstein 2004; Fiorino 1995; Jasanoff 1990, 1992, 1995; Landy, Roberts, and Thomas 1990; Mintz 1995; Powell 1999; Tesh 2000; Yeager 1991). Regardless of the existing or potential health consequences, by 2004 most US oil producers had “voluntarily” withdrawn MTBE from RFG supplies '2 US EPA had established a “weight of evidence descriptors” to classify whether or not a particular chemical is or is not causally linked to particular health effects. This system is based on a five classifications: l) carcinogenic to humans; 2) likely to be carcinogenic to humans; 3) suggestive evidence of its carcinogenic potential; 4) inadequate information to assess carcinogenic potential; and 5) not likely to be carcinogenic to humans. 11 in light of pending litigation and the potential liability for clean up costs which may run into the billions of dollars. A Brief Introduction to the Three Articles The three articles I chose for my dissertation each provide a distinct perspective on the MTBE controversy. The first article — involving NAFTA and the use RFG - illustrates the powerful institutions associated with international trade and the transforrnative nature of these agreements and some of the consequences for state and local government with regard to environmental regulation and public health. These case studies allowed me to examine the macrosociological effects of trade and international economic policy and if there are specific consequences for local communities and state governments to establish and maintain their own laws and regulations. This paper starts with my published work (Oliver 2005) but expands upon it substantially, drawing on articles detailing the settlement of Methanex case.13 The second article - on material agency, environmental problems and MTBE use — is an attempt to demonstrate the importance of the two interrelated ideas: a) the significance of examining linkages between the political and economic institutions associated with the production, distribution and remediation of MTBE; and b) the need for new interdisciplinary approaches to the study of these types of environmental (and, therefore, social) problems. I argue that as the production of environmental problems become more complex and multifaceted at various scales and across various boundaries (economic, political and geographic), scholarly research examining such problems needs to be equally flexible to '3 At the time of the publication of previous work, a decision on the Methanex case had not been handed down by the NAFTA tribunal. However a decision in the case came in 2005. 12 respond to this complexity. Research examining these environmental problems needs to be interdisciplinary and able to take into account macrosociological and microsociological phenomena and how to link these processes across conceptual as well as practical boundaries. The third article - examining four case studies in two US states through both archival and in-depth qualitative interviews —- links the macrosociological processes of large state bureaucratic institutions (New York State Department of Environmental Conservation and Michigan Department of Environmental Quality) to midrange and local level institutions and organizations, using MTBE contamination and remediation as the guiding substantive environmental issue. 13 CHAPTER ONE This chapter is a revised version of an earlier publication: Oliver, Christopher. (2005). “The treadmill of production under NAFTA: Multilateral trade, environmental regulation and national sovereignty.” Organization and Environment. 18: 55-71. 14 CHAPTER ONE The Treadmill of Production under NAFTA: Multilateral Trade, Environmental Regulation, and National Sovereignty Introduction With the increased expansion of capitalist production and free markets throughout the world, there has been a dramatic rise in the number of multilateral trade agreements (MTAs). MTAs such as the General Agreement on Trade and Tariffs (GATT) and World Trade Organization (WTO) have played a significant role in guiding commerce between member nations on a global scale. More recently, regional MTAs, such as the European Union (EU) and the Mercado Comt'rn del Sur (MERCOSUR) have become of equal import in terms of the expansion of free market liberalism (Boas 2000). These agreements have given regional consortiums of countries the collective ability to compete with the more powerful nation-states, which, individually, possess a more substantial share of the global market. With the growth and diffusion of these MTAs, new trade regimes will continue to expand “free market zones” throughout the hemispheres (e.g., the proposed Free Trade Agreement of the Americas, or FTAA). MTAs have had significant consequences for post-Fordist capital-state-society relations. One effect has been the creation of new rules regarding corporate private property (Panitch 1996). With MTAs, domestic and foreign corporations have the same basic private property protections under the law. In many cases MTAs have actually provided private property rights to foreign corporations beyond those typically extended to domestic enterprises. Another related consequence has been a consolidation of legal and jurisdictional power at increasingly higher levels of government (Swyngedouw 2000; 15 Swyngedouw et a1. 2002). In many instances, this consolidation has led to a loss of political control among national, and especially subnational, governmental bodies in their efforts to establish and regulate their own internal policies—specifically, their ability to set and enforce their own environmental and public health regulations (Drumbl 2002; Hufbauer et a1. 2000; Gaines 2002; Soloway 2002).‘4 For example, under MTAs some corporations have filed claims against member nations for their alleged violations of the terms specified by the agreements, including clauses such as unfair protection of domestic production, least trade restrictive alternatives, and expropriation of property (or “tantamount to expropriation”). Another troubling aspect of MTAs involves a growing discord between trade policies and environmental regulations, especially those related to environmental and public health policies (Macmillan 2001 , Rao 2001). Typically governmental bodies create these regulations to protect and maintain the integrity of their own local environment and community health; yet often the jurisdictional influence of MTAs have influenced or even superseded their power. Premise and Structure of the Paper I argue that one such MTA—the North American Free Trade Agreement (NAFTA)——has had such an effect. Established on January 1, 1994, NAFTA is a free trade bloc between Canada, Mexico and the United States. Although negotiations under NAFTA did attempt to address concerns about environmental conditions, through its North American Agreement on Environmental Cooperation (N AAEC, or “environmental " I refer to “subnational governmental entities or bodies” as a state or province, or regional entity, such a multi-state group, or local entity, such as a city, community, or township. l6 side agreements”), economic considerations have typically overshadowed environmental protections. Further, the increasing number of trade disputes pursued under NAFTA appear to only further confirm the existence of this growing conflict between trade and environment (Friends of the Earth 2001; Grossman 2000; Hufbauer et al. 2000; Gaines 2002; Soloway 2002; Sanchez 2002). In this paper I will illustrate the role of NAFTA in the undermining of national, state and local attempts to regulate their own environmental conditions—specifically the protection of environment and public health. My argument is that under the rules of NAFTA national and subnational governmental bodies are limited in their ability to regulate and enforce their own environmental and public health standards. I argue that this erosion of power has been a consequence of two historical global macro-phenomena: (a) the expansion of trade liberalization under the neo-liberal ideology of free market systems—what Schnaiberg (1980, 1994) refers to as the “treadmill of production”; and (b) the late twentieth century shift in sovereignty from the nation—state and multinational corporations to consortia of the former two and newly created “supranational organisms”—a system Hardt and Negri (2000) refer to as “Empire.”ls As an illustrative example of these conditions, I examine two case studies involving trade dispute claims under NAFTA Chapter ll—the Ethyl Corporation v. Canada and Methanex Corporation v. United States—to ground my theoretical contentions. The two case studies were chosen for three reasons: 1) both involve '5 I argue that there has been fundamental shift in sovereign power away from nation-states to supranational organizations. I would add that this shift is both complicated and complex. For instance, some nation-states have actually increased their sovereign power by using supranational organizations as vehicles for consolidating their interests. Further, many corporations rely upon the power of sovereign nation-states for protecting their corporate interests abroad, and yet subvert or ignore this sovereignty when in conflict with their own interests by utilizing supranational agreements in their own interests. Nevertheless, this process has been limited to a small number of more powerful nation-states (e.g., the industrialized nations) and their post-Fordist institutions. 17 NAFTA arbitration disputes brought under Chapter 1 1, or investor’s rights, and does not specifically address environmental concerns; 2) both are disputes brought in regard to reformulated gasoline (RFG), a product developed to improve air quality conditions, but which has recently has been implicated in polluting water sources; and 3) both are illustrations of the effects of NAFTA on the ability of national and subnational governments to regulate their own environment and public health. The Ethyl case, which involved the use of methylcyclopentadienyl manganese carbonyl (MMT) in Canadian RFG supplies, has been a resolved. The other case, involving the Methanex Corporation, the US and the use of methyl tertiary butyl ether (MTBE) in RFG, is still in the arbitration process. While Schnaiberg’s (1980) contribution to the understanding of the environmental costs of the treadmill could be applied to both case studies, I have instead opted to focus on Schnaiberg’s discussion of institutions in this process, especially with regard to the state and its ties to monopoly (or post-Fordist) capital.16 The reason I do so is two-fold: 1) while post-Fordist capital institutions have had, and continue to have, detrimental effects on global environmental conditions, my interests here is primarily in the role of state in regulating both economic and environmental conditions; 2) even though the use '6 I use the term “post-Fordist capital” to refer to the institutions and their practices which control the flows of capital throughout global networks. While the term “post-Fordism” has a somewhat checkered past, especially when viewed vis-a-vis the concept of “Fordism” itself (cf. Foster 1988), in my opinion it captures the changing nature of the relationship between global capitalist institutions and nation-states in the twenty-first century. “Post-Fordist” refers to the current historical period in which capital no longer adheres to the ideals espoused by Henry Ford, and his manufacturing production model, in which “mass production meant mass consumption, a new system of the reproduction of labour power, a new politics of labour control and management, a new aesthetics and psychology, in short, a new kind of rationalized modernist, and populist democratic society” (Harvey 1989, 126). “Post-Fordism”, on the other hand, refers to a new network of capital that relies upon “flexibility with regard and respect to labour processes, labour markets, products, and patterns of consumption,” as well as, “entirely new sectors of production, new ways of providing financial services, new markets, and, above all, greatly intensified rates of commercial, technological, and organizational innovation” (Harvey 1989, 147; cf. Castells 1996). This network is also referred to by others as “disorganized capitalism,” “post-industrial society,” “postmodernism,” “late capitalism,” and “flexible accumulation” (Lash and Urry 1987; Bell 1973; Jameson 1984; Harvey 1989). 18 of the treadmill thesis to illustrate the direct detrimental effects on environment conditions would be particularly salient in reference to these case studies, this approach would be better addressed through a separate work. Instead I strategically use the treadmill approach to emphasize the role of government and treadmill institutions, as related to trade policy, in facilitating environmental destruction in spite of their efforts to establish “good governance” through regulation. The Expansion of Free Trade during the Late Twentieth Century The grth of foreign trade has been predicated on the neoliberal ideal of expanding “free” markets to accommodate expanding capitalist production. These new global markets act as extensions of domestic markets by providing new outlets for excess production. One important legal and jurisdictional mechanism necessary for maintaining the logic and integrity of the extension of these markets abroad is the trade agreement, through which the terms of trade between nations are established, codified and enforceable. In examining free trade and its effects on environmental conditions, Steinberg (1997, 2002) asserts that the following trade-environment issues have received the most attention during the last decade: (a) domestic health, safety and environmental protection; (b) extrajurisdictional activity; (c) transboundary remediation; and (d) trade-environment institutions. It is this fourth concern that I attempt to address in this paper. The potential effects that accords have on the various trade-environment institutions are of substantial significance under globalization. MTAs frequently create new institutions, or change existing ones, to establish new regulatory regimes to handle shifting environmental concerns. Administrative, legislative, judicial or advisory bodies may be utilized to 19 address or adjudicate these concerns, and parties external to the agreement are often provided with special standing to participate in this process (Steinberg 2002). Globalization, Trade and the Expansion of Production: The Treadmill Approach While not specifically anticipating the tremendous expansion of global capital during the 19903 and early 21St century, Schnaiberg (1980) does identify some of the fimdamental processes at the nation-state level that are directly analogous to similar processes at the global (or intrastate) level.l7 Consequently, any discussion concerning the importance of the treadmill thesis and the growth of MTAs under post-Fordist capital is done so by theoretical extrapolation. Nevertheless, the tenets of Schnaiberg’s (1980) argument, especially his notion of the important transformation in monopoly capital that called for a shift from “confronting scarcity of capital to one of confronting surplus capital disposal” (1980: 244, italics authors), is an effective theoretical framework for illustrating contemporary movements of post-Fordist capital. One important form of surplus capital disposal is through the expansion of free trade zones, which limit or eradicate state impediments (e.g., tariffs, quotas, and other domestic production policies) to the unfettered flow of capital over traditional political boundaries. Schnaiberg and Gould (1994: 92-93) have convincingly argued, "the major institutions of modern society are 'addicted' to economic growth and treadmill expansion." I argue that this expansion has only served to exacerbate the conditions of inequality and environmental degradation associated with treadmill processes '7 Although not specifically anticipated in his The Environment (1980), Schnaiberg does discuss the importance of trade institutions relative to the treadmill in later works (Schnaiberg 1994, 2002; Schnaiberg and Gould 2000; Schnaiberg et a1. 2002; Gould et a1. 2003). 20 (Schnaiberg 1980; Schnaiberg and Gould 1994). In discussing the role of monopoly capital in government regulation, Schnaiberg (1980: 244) asserts: there is a growing acknowledgement that much of the regulation of the treadmill has in fact been regulation by the treadmill. That is, policies ostensibly to correct the abuses of monopoly capital have been turned toward the suppression of competition and the enhancement of monopoly capital. ...The general process is: (1) capture of regulatory agencies by the monopoly capital sectors they purport to regulate, and/or (2) elimination of competitive capital by the high costs of conforming to regulation. Schnaiberg (1980: 244) argues that state regulation—in terms of capital investment and allocation, economic regulatory incentives, and resource depletion—of the treadmill has actually been the regulation of monopoly capital by monopoly capital. In the case of NAFTA, there appears to have been a “capture” of regulatory agencies by post-Fordist capital. For example, in addition to being an active participant in the negotiation process, post-Fordist institutions also formed intimate bonds with national regulatory agencies. Further, NAFTA Chapter 11 has had the effect of protecting post- Fordist capital at the expense of the political efficacy of national, state and local government regulation, as I demonstrate through the case studies presented here. Another important shifi during the 19903, one arguably anticipated by Schnaiberg’s treadmill, was the changing face of neoliberalism under globalization as embraced by the Clinton administration, and demonstrated by the administration’s push 21 to liberalize markets through trade agreements (e. g., NAFTA). This policy of liberalization was met with increasing expenditures on domestic social programs, which served to balance the govemment’s role as facilitator of capital accumulation and its need to maintain legitimation with its constituents for its current policies (of. Habermas 1973; O’Connor 1973). At the outset, the Clinton administration’s support of trade liberalization appeared disingenuous to most labor leaders and manufacturing workers, who argued that NAFTA would only serve to push jobs either Mexico (by opening labor markets and circumventing local regulation and costs) or overseas (if, under NAFTA, the costs of US labor became too prohibitive), over time (primarily through opening of overseas markets for US products) labor was eventually won over. Politically, this opened the door for the Clinton administration to push for further trade liberalization, including new arrangements under the WTO as well as the quest for the FTAA. All of these policies seem to fit well with Schnaiberg’s (1980: 418) claim that the “logic of the treadmill is. . .an ever-growing need for capital investment in order to generate a given volume of social welfare—a trickle down model of socioeconomic development.” In direct reference to the growing power of MTAs, Schnaiberg, Pellow and Weinberg (2003: 416) assert: social distributional features of the treadmill include the changing nature of the workforce, the relationship between social inequality and environmental inequality, the growing autonomy of firms from control by local and national governments, and the growing dependency of governments on treadmill organizations for fiscal and political support. . . .Furtherrnore, ecological risks 22 within communities and workplaces have increased markedly (Erikson, 1994), while nation-states have ceded significant policy-making authority to corporate- run global trade organizations (emphasis mine). As the authors indicate, under the auspices of post-Fordist capital treadmill institutions have been able to wrest away regulatory power from national and local governments. Further, with the growing dependence of national governments upon the returns on trade investments made by treadmill institutions, these firms have been afforded both greater autonomy from regulatory control by nations, and greater power— not only in determining whether trade agreements are pursued, but they are also given a significant role in shaping their structure and regulatory authority. Additionally, trade organizations themselves, through the authority granted by signatory national governments, have been vested with significant and widespread power and authority over national, state and local regulatory agencies. Globalization, Markets and Empire: Shifting Sovereignty in the Twenty-first Century Critics of NAFTA argue that free trade agreements are primarily organized to support the existing institutions of post-Fordist global capitalism, in addition to being the primary vehicle for their own expansion. Ultimately this leads to a further consolidation of global capital, an increase in economic, political and social disparities, and an acceleration of production at various scales and in various but pervasive spaces. A fundamental effect of this acceleration of production is the increased exploitation of social labor and environmental conditions (Anderson 1993; Magraw 1995; Johnson and 23 Beaulieu 1996; Hufbauer et a1. 2000; Chambers and Smith 2002). While many critics typically cite both the issue of labor as well as environment in their critiques of the agreement, in this paper I have chosen to examine only the latter concem—the potential and actual negative environmental effects associated with NAFTA. However, it should be noted that as with many pressing global issues, in addition to environmental conditions, NAFTA has had significant consequences for social labor throughout the North America (Bensusan 2002). Some authors argue that the current process and structure of the globalization of trade is not particularly unique (Chase-Dunn et a1. 2000). Others assert that the “myth of globalization” has advanced an almost folklore type discourse about “renegade” global corporations (Doremus et al. 1999). But for others its effects are not only clearly distinct, and clearly real, but also are significantly more pervasive (and perhaps ominous) than past trade expansion (Hardt and Negri 2000; Harvey 1989, 1996; Sassen 1995). One important consequence of the expansion global free markets under neo-liberal ideologies has been the consolidation of sovereign power at increasingly higher levels of government. Whereas in the past international trade arrangements were based primarily in bilateral arrangements, whose terms of trade could be breeched by either of the two nation-states (and often without reproach”), these new forms of supranational agreements are far more encompassing and powerful, politically as well as economically, than in the past. This has been especially true in regard to NAFTA. One glaring effect of the agreement has been a crucial erosion of power and sovereignty of national and " Albeit, not entirely without consequence for the violating nation-state—but with some exceptions, such as the US, whose relative economic status gives it considerably more flexibility in avoiding the consequences of such violations. 24 subnational governmental bodies. Hardt and Negri (2000, xii) argue that the many globalizing forces at work today have resulted in a shift in sovereignty that repositions the relationship between the nation-state and post-Fordist capital into a power sharing consortia of newly created “supranational organisms, (which have become) united under a single logic of rule” (cf. Sassen 1995). The authors refer to this single logic of rule perpetrated by supranational organizations as “Empire.” Sassen (2003: 242) argues, the embeddedness of much of globalization (is) in national territory; that is to say, in a geographic terrain which has been encased in an elaborate set of national laws and administrative capacities that constitute the exclusive territoriality of the national state. The embeddedness of the global requires at least a partial lifting of these national encasements and hence signals a necessary participation by the state, even when it concerns the state’s own withdrawal from regulating the economy. Sassen asserts that while changes in the global economy have had pronounced effects on the role of nation-states, especially in regard to their own sovereign power, these nation-states have also been actively duplicitous in these new forms of collusion. In other words, nation-states are inextricably “embedded” in globalization and all its processes, and even though their authority, sovereignty and hegemony has been severely altered—in some ways adversely; in other ways, beneficially—these state actors often choose to participate to achieve certain economic and political returns. 25 Sassen (1995: xii) further emphasizes the relationship between sovereignty and national territory: I argue that globalization under these conditions has entailed a partial denationalizing of national territory and a partial shift of some components of state sovereignty to other institutions, from supranational entities to the global capital market. . .(e)conomic globalization has transformed the territoriality and sovereignty of the nation-state. Hardt and Negri (2000) argue that the forces of Empire have taken the issue of territory and sovereignty even further. They contend that Empire has worked to reproduce the deterritorialized nature of autonomous capital, as well as serving to deterritorialize nature itself (i.e., environmental conditions from natural conditions), which further uproots social and organized labor by producing systems of flexible workforces and malleable “natures”, all of which must yield to these forces through equally fluid, social reproductive processes, or face the possibility of obsolescence (i.e., in the case of organized and social labor—unemployment; in the case of environmental conditions—denatured and disorganized material conditions) (Smith 1984; Jameson 1984; Harvey 1989, 1996). Foucault (1991) argued convincingly that the rise of “governmentality,” a characteristic of the modern era of statehood, while generally working to coalesce sovereignty and post-Fordist capital in a system with a singular logic has, at the same time, led nation-states and social labor (as both citizens and workers) down diverging 26 social paths. What would appear at first glance to be a paradox of sorts—the divergence between the states’s professed interest in supporting social labor and its true actions vis- a-vis post-Fordist capital—is actually exposed as an illusion—a shell game of sorts— when viewed through the lens of Empire. For Hardt and Negri, the singular logic of Empire has itself repositioned Foucault’s govemmentality outside its typical nexus of the nation-state and placed it within the realm of supranational organizations—sovereignty and post-Fordist capital are no longer aligned exclusively with nations—now these new “modes of c00peration” (cf. O’Connor 1998) have come to supersede the traditional power of “the state” (i.e., no longer residing exclusively within the nation-state), creating a new spatial configuration of post-Fordist capital in supranational organizations (Harvey 1989, 1996, 2000; Kuehl 1996; Urry 2000). However, Hardt and Negri (2000, xi-xii) are careful to qualify that this shift in sovereignty has not by any means lessened sovereignty’s grip: The decline in sovereignty of nation-states, however, does not mean that sovereignty as such has declined. Throughout the contemporary transformations, political controls, state functions, and regulatory mechanisms have continued to rule the realm of economic and social production and exchange. Our basic hypothesis is the sovereignty has taken a new form, composed of a series of national and supranational organisms united under a single logic of rule. This new global form of sovereignty is what we call Empire (emphasis authors’). 27 Accordingly, sovereignty based in supranational organizations has increased post-Fordist control over production, all the while gaining an even stronger hold on national, state and local regulation (and thereby, often making local politics and local social movements irrelevant). As Swyngedouw et al. (2002: 107) argue in their work on governance and sustainability under the European Union, recently there has been an “alleged ideological shift from ‘government’ to ‘govemance’,” shaped through the reorganization of “modes of governing” as well as a shift in “power geometries that flow from these new political and economic forms of organization.” According to the authors, “this process has created new institutions and empowered new actors, while disempowering others” (Swyngedouw et al. 2002:108). Another important change consistent with this shift in governance is the process of “rescaling” (Swyngedouw et al. 2002: 114): Scales of governance are rapidly ‘rescaling’ (Swyngedouw 1998, 2000), i.e. competencies and terrains of policy intervention have shifted in recent years. . .upwards from the national scale to the scale of the EU (or beyond)....This process of ‘jumping of scales’ (Smith 1984) is not neutral in terms of power relations. In fact, with changing scalar configurations, new groups of participants enter the frame of governance or re-enforce their power position, while others become or remain excluded. In the case of NAFTA, this process of rescaling and governance has clearly led to a (continuing) disproportionate control over production and regulation by post-Fordist 28 capital, while excluding state and local governments’ ability to control either production or, more significantly, regulation, in terms of both the regulation of production and the regulation of environmental conditions. Hardt and Negri’s conceptualization of Empire, as well as Swyngedouw et al.’s concepts of rescaling and governance and Sassen’s contentions about the nation-states’ own role in global processes are all effective theoretical instruments for examining MTAs. These “forces of Empire” have had significant and often detrimental effects on the balance of power and spatial configurations throughout the world (Brenner 1999; Sassen 1995; Smith 2003). These issues of power and place relate directly to issues of sovereignty for national and subnational governmental entities, especially with regard to environmental conditions. Further, the exercise of power—economic, political and social—under the reign of Empire has had direct, negative consequences for the regulation of internal legislative, judicial and social welfare-orientated policies. Trade Disputes and Environmental and Public Health Regulations: NAFTA and Reformulated Gasoline (RFG) During the past decade, there have been a number of NAFTA trade disputes initiated in regard to national and subnational environmental regulations. Most of these disputes were initiated under Chapter 1 l, a clause intended to protect the investors’ rights of foreign corporations in the face of unfair trade practices. In one case, Sun Belt Water, Inc., a bulk water importer-exporter from California, filed a claim under Chapter 11 against the Canadian government in regard to the 1995 moratorium by the province of British Columbia on all bulk water exports (Public Citizen 2001). In another example, the Metalclad Corporation sued Mexico under Chapter 11, for the failure of the 29 municipality of Guadalcazar to grant a necessary construction permit for Metalclad’s already-built industrial toxic waste treatment facility. In the claim, Metalclad argued that the Mexican municipality’s denial of the construction permit, after national and state officials had issued similar permits, was “tantamount to expropriation” of Metalclad’s existing property (Gaines 2002). Both cases had important implications for state, provincial, and local control over the regulation of environmental matters within their jurisdiction. While a decision in the former case is still pending, in the latter case the arbitration tribunal ruled in favor of Metalclad, eventually requiring Mexico to pay the company nearly $17 million for lost revenue (Public Citizen 2001; Soloway 2002). In the next section I explore two case studies involving trade dispute claims filed under NAFTA Chapter ll—the Ethyl Corporation v. Canada (1997) and Methanex Corporation v. United States (1999). Both cases involve the use of reformulated gasoline (RF G) in Canada and the US. Both are illustrations of the potential effects of MTAs on national and subnational governmental bodies attempts to regulate their own environmental and public health policies. In the Ethyl case there has been a subsequent resolution; in the Methanex case, the dispute is still in the resolution process. Ethyl Corporation v. Canada The first case study involves a dispute filed by a US-based chemical company, the Ethyl Corporation, against the government of Canada in reference to a national ban on the importation and transprovincial transport of methylcyclopentadienyl manganese carbonyl (MMT). By the early 19903, MMT, a manganese-oxide based fuel additive, had 30 been used in RF G in Canada for nearly twenty years. Based on industry data, in 1996 the Canadian government concluded MMT had numerous potentially negative environmental and human health consequences and thereby enacted its ban (Swan 2000; Gaines 2002). Ethyl is the world’s largest producer of MMT, with its primary export market being Canada. Logistically, Ethyl imports and distributes MMT through its wholly owned Canadian subsidiary for use in RFG. At the time of the Canadian ban, MMT had already been deemed a public health threat by the US EPA. Further, up until just a year prior to the Canadian ban, MMT was banned in the US. However, in December 1995 a US federal appeals court ruled that the US EPA had no credible scientific basis for the MMT ban, and subsequently reversed the agency’s decision. Initially, the Canadian government argued that MMT was a potential danger to human and environmental health and attempted to ban the substance outright. However, since existing scientific data had yielded contradictory assertions about the potential toxicity of MMT, under the Canadian Environmental Act (CEA) the government did have sufficient regulatory evidence to ban its use. Subsequently, the government decided to pass a bill that regulated the importation and intraprovincial movement of MMT. However, even in light of the ban domestic production of MMT was still allowed. In response, Ethyl invoked the “investor-state” provision under NAFTA Chapter 11, arguing ban: (a) was in violation of the “national treatment requirement”; (b) introduced unreasonable “performance requirements”; and (c) was an act “tantamount to expropriation” without just compensation (Hufbauer et al. 2000; Swan 2000). Under the claim, Ethyl was asking for damages in excess of $251 million. 31 Before the claim reached the arbitration tribunal, the Canadian government settled with Ethyl for $13 million—covering the corporation’s legal expenses and lost revenues. The government also agreed to repeal the ban on the transport of MMT. Hufbauer et al. (2000, 12) argues that there are two dictates of trade which were affirmed by the Ethyl C336 2 Discriminatory rules that ban imports but do not forbid domestic production are not permitted by the NAFTA; and sound science is the touchstone for environmental regulations (emphasis mine). The implications of the Ethyl case on national and subnational governmental regulation of the environment and public health are mixed. On one hand, the lack of scientific evidence presented in the Ethyl case as a standard for assessing claims under the CEA meant that the Canadian govemment’s ban on MMT was not justified either under Canadian environmental regulatory law or under the dictates of NAFTA. Further, the govemment’s attempt to regulate the importation and intraprovincial transport of MMT, without a decision to ban the substance outright, allowed domestic producers to fill the RFG shortage created by the ban, a move which was an unjustified act favoring Canadian RFG distributors. On the other hand, the CEA and NAFTA Chapter 11 requirement that any change in national or subnational environmental regulation must be accompanied by credible “scientific evidence” in order to justify the change subverted efforts by the Canadian government to invoke the standard of the “precautionary principle” in regard to measures 32 its deems “necessary and prudent” to protect public and environmental health, even in the face of conflicting scientific evidence.lg Still, in this case Canada’s own internal standard for establishing regulatory policy prohibited the govemment’s ban on MMT. Consequently, the Canadian govemment’s decision to circumvent its own national regulatory standard by invoking a regulation established under a MTA was tantamount to undermining their own national regulatory power through a supranational regulatory mechanism. In the end, Canada’s ban on the transport of MMT compromised the effectiveness of its own statutory power, and did so at the peril of providing a supranational regulatory regime—NAFTA—with the power to override national and subnational regulations. Fortunately, the Canadian government recognized the implications of such a decision and repealed the ban prior to any NAFTA ruling. Methanex Corporation v. the United States In 1999, the governor of California, reacting to a study commissioned by the state assembly, ordered an immediate phase-out of methyl tertiary butyl ether (MTBE). The phase-out was to culminate with a complete ban by end of 2002.20 The RFG program was established in 1990 under the federal Clean Air Act Amendments, which requires all fuel in areas identified by the RF G program to contain a specified level of oxygen. In addition to ether- and methane-based additives, alcohol-based oxygenates such as ethanol are also used to meet the RFG requirement. However at the insistence of the oil industry '9 The precautionary principle has a number of historical roots and definitions (Raffensberg and Tickner 1999; Tickner 2003). 2° In fall of 2002, Governor Davis extended the complete ban to the end of 2003. However, as of July 2004 the ban has been held up by federal regulators. 33 and their powerful congressional lobbyists, most distributors opted to use MTBE to meet the RFG requirements. As of 1998, MTBE accounted for approximately 85% of all RFG used in the US fiiel supply (Keller et al. 1998). For many years prior to the California govemor’s ban, environmental activists, public health officials, and members of the public have asserted that the ingestion of MTBE may have negative potential health consequences. However, the scientific evidence concerning carcinogenity, the level of MTBE contamination necessary to induce acute health effects, and the pervasiveness of MTBE contamination in well water and groundwater has been inconclusive. As a consequence of this uncertainty, federal, state and local governments did not have the statutory power to ban the chemical substance due to the RFG program’s congressional mandate. The only action that could reverse this mandate is a congressional bill repealing the RF G requirement. Nevertheless, California Governor Gray Davis made the decision to ban MTBE in 1998, invoking the assembly-sponsored report which concluded that MTBE: (1) is a “probable carcinogen”; (2) had the “potential” for numerous negative consequences on human and environmental health; and (3) faced with a number of equally effective alternatives in terms of reducing harmful emissions such as ethanol, the substance should be taken out of the state of California’s RFG supply (Keller et al. 1998; Johnson 1998). Based on these findings, Governor Davis argued that the state had the “credible scientific evidence” necessary to regulate MTBE as a “substantial” threat to the environment and human health of its citizens. However, by this time the US EPA had already backed down for its original findings concerning the dangers of MTBE, eventually listing the regulated substance as a 34 “possible carcinogen,” and thereby relegating it to a much lower threat status than that of a “probable” listing. Further, based on existing evidence the US EPA was unable to determine at what level of contamination, both in terms of substance levels in water and in the human tissue, was necessary for MTBE to be considered “harmful” or “potentially harmful”. Consequently, state legislatures, state environmental agencies and local health boards were unable to institute their own bans on the substance. The question of the conflict between federal and state statutory powers to establish and regrlate their own internal environmental and public health standards has yet to be decided in the federal courts. However, in addition to this legal challenge, a Canadian corporation’s filing of a trade dispute under NAFTA would become equally significant in terms of the internal sovereignty of national and subnational governmental bodies. In June 1999, the Methanex Corporation filed a claim under Chapter 11 against the US government and the state of California for $970 million. Methanex also asserted that since the US EPA had decided not to establish a ban on MTBE, the California governor’s ban was inconsistent with application of the federal statutory regulation requirement that guides the action of the US EPA. Methanex’s statutory basis for this claim rests on three NAFTA principles (Friends of the Earth 2001): (1) Chapter 11 (Article 1105), through which Methanex argues the phase-out and eventual ban was not the least trade restrictive alternative, since there exists contradictory evidence as to the dangers of MTBE, thereby making California’s action inconsistent with “credible scientific evidence” clause, and therefore a violation of NAFTA’s fair treatment clause for member country investors; (2) Methanex 35 asserts that the phase-out favors US ethanol producers, whose product would replace MTBE in RFG, and is therefore a form of domestic protectionism; and (3) the California ban constitutes what is tantamount to expropriation of property under Chapter 11. As of July 2004, the tribunal established to arbitrate the Methanex case had yet to finish with their dispute resolution hearings. In contradistinction to the other example presented in this paper, the Methanex case did not concern a form of regulatory discrimination. For instance, the Ethyl case, while indirectly addressing an environmental regulatory policy, actually involved the differential treatment of transport methods associated with distribution of MMT. Conversely, the Methanex case is specifically concerned with a subnational governmental body’s ability to define, establish and regulate its own internal environmental and public health issues, even when a national regulatory body had chosen to act differently. Further, the case focuses on the standards through which subnational government are able to determine their own criteria for establishing regulatory policies. Hufbauer et al. (2000) claims, The main concern of the California authorities is the presence of MTBE in drinking water. The “sound science” issue is whether a use ban is a better way to prevent MTBE from entering the water supply than closer attention to leaks and spills. The key question is whether a total ban on MTBE can be supported by sound science. I argue that the conclusion by Hufbauer et al. is based on a distorted view of the California MTBE situation. First, the regulation of leaking underground storage tanks 36 (LUSTs) has typically fallen under the supervision of the federal government, specifically the US EPA and its Superfund Program. US EPA, and other federal and state authorities had known for many years prior to the introduction to MTBE in RF G that LUSTs existed, were widespread, and were a potential contamination problem. However, at the time MTBE was introduced into the US fuel supply, little evidence was presented to the US Congress concerning MTBE’s water solubility and its potential for water contamination, even though there were numerous reports illustrating this potentiality. Additionally, all the available evidence presented to federal and state authorities in regard to MTBE’s was in regard to the potential inhalation dangers to public health. Yet not a single clinical study had been, or has been, undertaken concerning the potential health effects from the ingestion of MTBE. Second, data indicate that there has already been widespread contamination of water wells and groundwater throughout the state of California (Couch and Young 1998). Since the removal and replacement of LUSTs may take up to 10 years to complete (assuming that past federal appropriations to the US EPA’s Superfund Program remain constant—an unlikely scenario given the current US presidential administration and the disposition of the Republican-led US Congress), then allowing the continued use of MTBE in RFG will only result in an increase in the current levels of MTBE in the California water supply. This lack of prudent action will only firrther widen the problem, and place the state’s water supply and human and environmental health at greater risk. Additionally, the cost of meeting the terms of settlements determined by NAFT A’s dispute resolution process might have two possible and important financial effects for the various institutions involved. First, in accordance with the dispute 37 resolution process, the member nation is responsible for payouts to filing corporation from other nations for losses incurred due to changes in regulatory policy that are determined, by independent arbitration panels, to be without justification (e.g., not based in “credible scientific evidence”). Second, the nation-state may in turn choose to force the party (or parties) responsible for the change in regulation to assume the costs of any dispute settlements under NAFTA. In the case of MTBE, the possible institution which may be adversely affected by such a course of action(s) may include: 1) post-Fordist capital (e.g., oil companies that produce MTBE); 2) state and local governments and agencies (e.g., the state of California, and the cities of Santa Monica, CA and South Lake Tahoe, CA); or 3) the local merchants deemed responsible for the MTBE contamination (e.g., distributors of MTBE-laden RFG and/or those responsible for maintaining leaking underground storage tanks). In the Methanex case, the likely target of such paybacks will probably be the state and local governments of California that enacted the original MTBE ban. These governments may in turn choose to sue the oil companies, as well as local distributors, to recover the costs of any NAFTA dispute settlements. However, currently the outcome remains unknown. Conclusion: Trade, Environment and Regulation under the Treadmill and Empire Charles Perrow (1997: 66) contends that, “There as few significant man-made environmental problems (or woman-made) that do not have organizations behind them.” While MTAs do not (usually) directly propagate environmental destruction, these agreements can be indirectly implicated in the processes that can lead to issues of environmental disorganization. As I identify in this paper, MTAs have the potential for 38 eroding the sovereignty of nations, especially in regard to environmental and public health regulation. These new supranational organizations have, at the very least, facilitated the consolidation of economic and political power outside the typical nexus of hegemonic forces—the nation-state. This new configuration of power—Empire, following Hardt and Negri (2000)—has led to an erosion of power among national and subnational governmental bodies. And, judging by the large number of NAFTA disputes filed against member nations for their suspected violations of trade agreement clauses, there is a “bumpy” road ahead regarding MTAs and policymaking among governmental bodies. Another significant issue related to the case studies I have presented here concerns the issue of “credible scientific evidence” as a litmus test for assessing the efficacy of potential violations of fair treatment or least trade restrictive clauses under MTAs. According to NAFTA, in order for a member nation, including subnational governments, to take regulatory action to ban a particular substance or process that adversely effects the investments of a corporation (or corporations) based in another member country, the particular regulatory action has to be based in “credible scientific evidence.” Consequently, if a member nation, or any subnational government entity within that nation, chooses to invoke a precautionary approach to setting internal environmental regulatory policy, this action may be reversed by a NAFTA tribunal, or the member nation may have to pay reparations to corporations for lost revenues as a result of the regulatory action. In other words, even if a local or subnational government (such as the state of California in the MTBE issue) takes regulatory action in regards to an environmental protection issue out of concern for public health, if the decision is made 39 on the basis of controversial or inconclusive evidence, the ban can be invalidated under NAFTA—regardless of public interest or support for such a regulatory policy. The issue of “credible scientific evidence” and the precautionary principle is one that I have only tangentially addressed in my paper. However, this issue needs to be examined in more detail in the future Further research needs to be undertaken to explore the implications presented here and the possible consequences of these institutional relationships on sovereignty and regulatory policy, especially as they relate to environmental and public health protections. Undoubtedly, the future of multilateral trade, especially under the auspices of the WTO and other proposed MTAs, and its effect on national and subnational governmental environmental regulation will continue to be at the forefront of international economic and political relations well into the twenty-first century. And while the financial fallout of these trade disputes remains to be fully realized, the implications for social, political and environmental conditions are clear—post-Fordist capital and production concerns trump social labor and environmental conditions (again). Afterword: Dissemination of decision making to local communities or protecting government interests? Since the original publication of this article in March 2005, the NAFTA tribunal established to rule on the Methanex case has since issued its final judgment and award in the case.” First, the tribunal ruled that Methanex’s claim that the state of California’s decision to phase out and eventually ban MTBE was neither “arbitrary or capricious” nor without scientific merit, asserting that the state demonstrated cause and due process in 2' The NAFTA arbitral panel ruled on the case the Methanex Corp. v. The United States in August 2005. 40 their plan to ban a substance of potentially dangerous risk to the public. Second, in doing so, the tribunal ruled that parties involved in NAFTA (in this case, the state of California) can expropriate foreign investment, if the expropriation is: (a) for a public purpose; (b) on a nondiscriminatory basis; and (c) in accordance with due process of law and Article 1105(1), and if the expropriating entity compensates the investor in accordance with NAFTA’s provisions (Dougherty 2007, 735). Consequently the tribunal argued that California’s ban on MTBE was for public purpose (protecting the health of its residents), was nondiscriminatory (based on the fact that California banned an entire chemical substance, MTBE, and did so in conjunction with bans passed and some cases already enacted in numerous other US states, and that this banning was not directed at one company’s investment, since Methanex produces methanol, only a component of MTBE), and was in accordance with law and the provisions set forth in NAFTA (the process of banning MTBE did involve public officials, culminating with a vote by the California State Assembly and signed by California Governor Gray Davis). The NAFTA tribunal pointed out that just because the Methanex Corporation owned a disproportionate share of the methanol market in the US, this did not have direct affect on the public decision making process by which California came to its decision (or in other states in banning MTBE). Further the tribunal asserted that there was no evidence that California, or its governor or any other state agents, acted to protect or enhance the domestic production of ethanol (in the form of the US com 41 industry and the US ethanol producing companies), the primary alternative additive used in RFG supplies, at the expense of foreign investments. In closing the tribunal ruled that Methanex would have to pay $4 million to cover the legal costs of the US in the suit. One important aspect of this case was the inclusion of the public in the process. Numerous environmental groups were allowed to participate through amicus curiae briefs provided to the tribunal. This inclusion was significant because the NAFTA provisions establishing the rules regarding the arbitration process do not include wording allowing for any form of public participation, even in light of the fact that liability for any decisions against one of the three NAFTA counties would be paid by government funds (i.e., taxes paid by the public). In previous arbitration cases, the public was not allowed to participate except in the capacity as witnesses for either party (IISD 2004). Consequently allowing groups not directly involved in the case to participate in a meaningful manner was a significant departure from previous precedent and helped to quash criticisms by numerous groups that the NAFTA arbitration process was “undemocratic” and was only established to protect large corporations and their investments. The Methanex decision, supranational organizations, and Empire: theoretical implications In the earlier version of this paper I argue that the NAFTA was undermining of national, state and local attempts to regulate their own environmental conditions, with particular interest toward the ability for local communities to protect their environment and public health. My argument was that under the rules of NAFTA national and subnational governmental bodies are limited in their ability to regulate and enforce their 42 own environmental and public health standards. I placed this erosion of power on two historical global macro-phenomena: (a) the expansion of trade liberalization under the neo-liberal ideology of free market systems—what Schnaiberg (1980, 1994) refers to as the “treadmill of production”; and (b) the late twentieth century shift in sovereignty from the nation-state and multinational corporations to consortia of the former two and newly created “supranational organisms”—a system Hardt and Negri (2000) refer to as “Empire.” Reexamining the two case studies I illustrated in the earlier version of this paper — the cases of the Ethyl Corp., v. Canada and the Methanex Corp., v. the United States — provides a glimpse into the circumstances, process and outcomes of the NAFTA arbitration provisions. However before I proceed I will provide a caveat —— these two cases are just two among 31 cases filed under the NAFTA since it took effect in 1994 (US State Department 2008).22 Nevertheless the commonalities between the two cases - both involved the regulation of a gasoline additive used to reduce air pollution but suspected of causing adverse public and environmental health risks, and both cases involved the ability of state, regional and local government agencies to regulate their own environmental risks through the setting of regulations — do allow for an interesting comparison about the process of the NAFTA arbitration tribunals. As described in the earlier version, the issue put forth to the NAFTA tribunal involving the Ethyl Corp., v. Canada was not whether the Canadian ban on the interprovincial transport and importation of MMT (as opposed to a national ban on the chemical) was justified sufficiently to disrupt Ethyl investments associated with MMT 22 According to the US State Department website, there have been 31 cases brought under the NAFTA investors-state arbitration process: 13 brought against the US, 4 brought against Canada, and 14 brought against Mexico. 15 of these cases have already been ruled upon or settled as 2008. 43 sales in the Canada; the issue was whether or not the ban was “differentially” applied to domestic and foreign investors. In the Ethyl case there was significant evidence that the Canadian government had banned the interprovincial transport and importation of MMT so in essence to disallow the Canadian subsidiary of Ethyl to sell its product in Canada; but the ban did allow for other Canadian producers to sell their MMT product unfettered as long as it was within a single province. Another important aspect of the Ethyl case was that the Canadian government decided to settle the case prior to any arbitration by the NAFTA tribunal, there by removing the possibility of an illustration of the actual arbitration process. By agreeing to the settlement, Canada reversed its ban on MMT and as of 2008 it is still used in some areas of the country as an octane booster in gasoline. On the other hand, the Methanex case did involve the banning of a substance specifically due to concerns regarding the environmental and public health risks associated with its use. In 1997, California Senate Bill 521 (SB 521) required the state to provide funding for an expert panel report examining these potential health risks. Subsequently the report issued by this panel concluded that MTBE was a significant risk to public health and should be removed from RFG supplies to reduce the risk of human exposure (Keller et al. 1998). Following this the USEPA also commissioned a blue ribbon panel to examine MTBE - the results of this panel were similar to the California. panel. In response to the California panel, Governor Gray Davis made the decision to ban MTBE in California, concluding that MTBE: (l) is a “probable carcinogen”; (2) had the “potential” for numerous negative consequences on human and environmental health; and (3) faced with a number of equally effective alternatives in terms of reducing harmful 44 emissions such as ethanol, the substance should be taken out of the state of California’s RFG supply (Keller et al. 1998; Johnson 1998). Based on these findings, Governor Davis argued that the state had the “credible scientific evidence” necessary to regulate MTBE as a “substantial” threat to the environment and human health of its citizens. The NAFTA tribunal’s decision to dismiss the Methanex case further supported the conclusions made in both the California report and US EPA report. Further the NAFTA tribunal concluded that local, state and national governments had the right to establish their own laws and regulations protecting public and environmental health when there credible evidence exists demonstrate the potential for such harm. From a theoretical perspective, the NAFTA tribunal’s decision appears to be counter to my contention that supranational organizations are a further consolidation of power at higher and higher levels of government. However I would still contend that these tribunals do hold a great deal of power over the distribution of resources based on their decisions. In the Methanex case, one part of the claim made by the Methanex Corp. was that California and the US government agreed to the MTBE ban based on the influence of the powerful US corn and ethanol lobby. While there was not sufficient evidence to support these claims, it is clear that both of these lobbies do have substantial influence on government policies as well as both being recipients of large federal subsidies. Nevertheless the NAFTA tribunal did side with California (and by extension, numerous other US states) in its ban and its attempt to protect its state water supplies. To reiterate what I put forth in the earlier version of this paper, more research needs to undertaken comparing other NAFTA arbitration cases. Further, as the number of MTAs continues to grow, researchers need to be vigilant about examining the consequences of these agreements. 45 Lastly, more work needs to be done comparing these agreements to decisions made under the largest MTA -— the World Trade Organization — and how this agreement has affected state, regional and local public health conditions throughout the world. 46 CHAPTER TWO A Sociology of Material Agency: Getting Real About Environmental Problems Introduction: The Question of' Agency Sociological debates with regard to structure and agency have existed since the earliest conceptions of sociology as an intellectual enterprise.” Although the theoretical and substantive aspects of this debate have varied through the years, it nevertheless has remained (and remains) vibrant within the field. While these debates are both important and fruitful, for the purposes of this paper the author will sidestep (at least in part) the debate to engage one-half of the argument — the question of agency. In this paper the author calls for new integrated perspective on the issue of agency, one that takes into account the works of a number of sociological subfields — environmental sociology, a sociology of science, knowledge and technology, and a sociology of theory - and illuminates some of the most significant and interesting elements of these works in an effort to tie them together to develop a general theoretical position that would be of use to all sociologists interested in the concept of agency. To do this the author will define and illustrate a new approach for navigating the assumed divide between social and material agency; a theoretical and substantive tactic that attempts to avoid the epistemological and ontological traps of such a division — an approach the author refers to as a symmetrical approach to agential realism. This 23 A discussion of the history and the various aspects of this debate are too numerous to provide for a complete account in this paper. Further, the purpose of this paper is not to directly debate this relationship but is instead focused on a discussion of the conception and practices of ‘agency’ itself. However for a overview of the debate between structm'e and agency, see Alexander (1992), Archer (1982, 1988, 2003), Barnes (2000), Coleman (1986, I990), DiMaggio (1988), Emirbayer (1997), Emirbayer and Mische (1998), and Hays (1994). Also for discussions from a social psychological viewpoint, see Hyman and Steward (2004) and Musolf (2003). 47 approach attempts to draw general sociological theory into a new engagement with a number of theoretical perspectives which have gained currency within sociological subfields but are often absent from works in mainstream sociology.24 This approach draws most extensively on the works of Latour, Pickering, Barad, and Haraway.25 However to build the paper’s primary theoretical proposition the author will first examine the past and current debates surrounding social and material agency through an examination of the various perspectives on agency in general sociological theory (Ashmore, Wooffrtt and Harding 1994; Emirbayer 1997; Emirbayer and Goodwin 1994; Emirbayer and Mische 1998; Fuchs 2001; Hays 1994; Jones 1996), the sociology of science, knowledge and technology (Gieryn 1983, 1999; Pickering 1993, 1995; Winner 1980) and science and technology studies (STS) (Latour 1987, 1993, 1994, 1999, 2005), and feminist science studies (Barad 1996, 1998a, 1998b, 2007; Haraway 1988, 1991, 1992; Harding 1994). Then the author will explore in detail Haraway’s material- semiotics and Barad’s agential reality illustrating how these theoretical perspectives address social and material agency in a new and interesting manner. Lastly, the author will illustrate the importance of examining social and material agency, and the social and 2‘ The author makes this claim based on noticeable absence of published works from the subfields of environmental sociology and the sociology of science, knowledge and technology (including feminist science studies works) in the major sociology journals - primarily the American Journal of Sociology, American Sociological Review, Annual Review of Sociology, and Social Forces. There have been a few notable exceptions to this assertion (Buttel 2000; Foster 1999; Frank, Hironaka and Shofer 2000; Gieryn 1993; Molotch 1976; Molotch, Freudenburg, and Paulsen 2000; Pickering 1993; Risman 2001; Udry 1995, 2000, 2001; York, Rosa and Dietz 2003). It should be noted that works in human, industrial or population ecology are not included in the above discussion due to a lack of engagement between these fields and the subfields of environmental sociology or the sociology of science, knowledge and technology (again, with some exceptions; see especially a number of works in the journal Human Ecology Review) 2’ Throughout this work I will refer to the navigation of social and material agency, as opposed to human and nonhuman agency. 1 do so because I argue that agency is a product and process of inter-action/intra- action, not an attribute possessed by an entity such as a “human” or “nonhuman” (Barad 1996, 1998a, 1998b, 2000, 2001, 2007). In the end, I assert that the distinction between social and material is both necessary, on one hand, due to their intra-construction (Barad 2007), and unnecessary on the other, due to their inseparability and therefore a “fictitious divide” between the two (Latour 1993a. Nevertheless for heuristic and literary purposes they will remain separate. 48 material conditions of environmental “problems” through a symmetrical approach to networks of agential practices (or, what this author refers to as an “agential networ ”). To do this the author will draw upon extensive historical, archival and qualitative research on the environmental problem of the contamination of public water sources by methyl tertiary butyl ether (MTBE) in the United States. 26 Sociological Approaches to Agency agent n. l a person who acts on behalf another. 2 a person or thing that takes an active role or produces a specified effect. -- The New Oxford American Dictionary, 2“‘1 Edition Although not necessarily the definitive authority on the particularities of defining complex concepts, a dictionary does provide an interesting opening for any discussion of agents and, consequently, agency. As the above definition illustrates, agents are both a person who takes action, or acts on the behalf of another, and a thing that also acts or produces a particular effect. While relying solely upon this definition fails to capture the nuanced complexity of the concept as practiced in the world, it does provide an interesting starting point for a discussion of social and material agency. A decade ago Emirbayer and Mische (1998) published their influential paper, “What 13 Agency?,” a work that outlined the vast history surrounding the structure and agency debate including a discussion of the numerous approaches inside and outside of sociology, starting with the Enlightenment thinkers, continental philosophers, and 2" Although initially placed in quotations marks, throughout the rest of this paper the author will refer to the term “problem” without placing it in quotations -— the author does this only to avoid the unnecessary tediousness of such a repetitive, rhetorical device. However, as will be demonstrated in this paper, the author asserts that the issue of what constitutes a “problem” is a complex negotiation within agential networks that constitute such problems, which brings into question the often assumed to be self-evident as well as self-referential aspect of problem construction. 49 pragrnatists to the foundational and contemporary social theoretical perspectives. The authors state: What, then, is human agency? We define it as the temporally constructed engagement by actors of difl'erent structural environments — the temporal- relational contexts of action —— which, through the interplay of habit, imagination, and j udgment, both reproduces and transforms those structures in interactive response to the problems posed by changing historical situations (authors’ italics) (Emirbayer and Mische 1998, p. 970). Emirbayer and Mische (1998) argue for the existence of a “chordal triad of agency” involving “three constitutive elements”: iterative, projective and practical- evaluative. The iterative dimension incorporates practice theories involving the maintenance of routine and practical activities in the establishment of routine which gives rise to stability in the sustaining of identities, interactions and institutions through time. The projective dimension is concerned with the individual’s ability to conceive of “possible future trajectories of action” as reflected in, and also working to reconfigure, the existing structures that enable and constrain these thoughts. The works associated with this dimension primarily stem from phenomenology, psychoanalysis, narrative psychology and drarnaturgic anthropology. The practical-evaluative dimension involves “the capacity of actors to make practical and normative judgments among alternative possible trajectories of action. . .” (1998, p. 971; emphasis in original). This approach has long history in Aristotelian ethics and other works in moral philosophy but, according to 50 Emirbayer and Mische, this area has been inadequately theorized by sociological scholars. According to the authors of fundamental importance is the conception of agency as being “intrinsically social and relational” (1998, p. 973). Further agency is “. . .always agency toward something, by means of which actors enter into relationship with surrounding persons, places, and meanings, and events” (authors’ italics) (1998, p. 973). In a parallel work, Emirbayer (1997, p. 294) adds that agency involves “concrete transactions within relational contexts (cultural, social structural, and social psychological)” Consequently for Emirbayer and Mische any conception of agency is simultaneously temporal and spatial, contextual and relational, path-dependent and yet reconstitutive, and dialogical and transactional. Similar to poststructuralist conceptions of power, such as those espoused by Foucault (1977, 1978, 1980), and discussed by Emirbayer (1997), agency is neither held (e.g., by the individual) nor can it be expressed, enacted, or wielded, except within a field of power and through relations of power. Emirbayer (1997) asserts that power and agency can not be “attributes or property of actors” but instead must be, and always are, embedded within “matrices of force relations.”27 Emirbayer further argues that social identities, even those assumed to be held by an individual, are embedded in similar sets of power relations (or what this author refers to as agential networks); consequently, identities are embodied in the agential relations of actors within temporal and spatial contexts, and therefore are — 27 Emirbayer (1997) also discusses the significance of “freedom” and “equality” in his work on relational sociology, arguing that as measure of scale within a transactional approach these two terms fall along a sociological conceptual continuum with power at one end, followed by equality, freedom and then agency. This author asserts that there are important distinctions between power and agency, on one hand, and freedom and equality, on the other. Power and agency are both the cause and consequence of temporally and spatially embedded relations between actors, whereas conceptions of freedom and equality are the effects of such power and agential relations (cf. Foucault’s “power effects”); power and agency are both expressed and embodied, whereas freedom and equality can only be embodied. 51 similar to power — not possessed by the individual but are instead expressed by the individual within these networks (see also Emirbayer and Goodwin 1994). Another important issue taken up by Emirbayer (1997) in his influential work, “A Manifesto for a Relational Sociology,” involves the theoretical context for the construction of dualism in sociological thought. Emirbayer (1997, 281) argues that a “fundamental dilemma” facing sociology scholars — and by extension, all social theorists - is “whether to conceive of the social world as consisting primarily in substances or in processes, in static ‘things’ or in dynamic, unfolding relations”; Emirbayer refers to this as the debate between substantalism and relationalism.28 According to Emirbayer the substantialist perspective includes rational-choice theory, norms theory, inter-action theory, and a variable-centered approach. In each case the emphasis of the theoretical model is on the “substances of various kinds (things, beings, essences) that constitute the fundamental units of all inquiry” (1997, 282) (italics’ authors). Relational perspectives, on the other hand, take as their unit of inquiry transactions: “the very terms or units involved in a transaction derive their meaning, significance, and identify from the (changing) functional roles they play within that transaction” (Emirbayer 1997, 287). Emirbayer clarifies this further with regard to agency: Agency is commonly identified with the self-actional notion of “human will,” as property or vital principle that “breathes life” into passive, inert substances (individuals or groups). . . .By contrast, the relational point of view sees agency as 2’ It should be noted that the debate between substantialist and relationalist positions is analogous to the debate between essentialism and nominalism (McLaghIin 1998, 2001). See also Dietz and Burns (1992) for an interesting parallel discussion involving essentialist and nominalist perspectives with regard to human agency and evolutionary theory. 52 inseperable from the unfolding dynamics of situations, especially from the problematic feature of those situations. . .agency entails the “engagement by actors of different structural environments [which] both reproduces and transforms those structures in interactive response to the problems posed by changing historical situations” (Emirbayer and Mische, quoted in Emirbayer 1997, 294). So if agency is something relational, simultaneously temporally and spatially embedded and expressed, as well as transactional and in flux — why does this limit agency to human actors? As Emirbayer (1997) and Emirbayer and Mische (1998) illustrate, agency is always toward something, whether it be “person, places, meanings or events.” In discussing Giddens (1990), Emirbayer relays Giddens’ conception of social reproduction, which relies upon the “routinization” or “recursivity” of structures; however, according to Emirbayer, these “. . .structures (which Giddens defines as ‘rules and resources’) are really only ‘virtual’ structures (paradigmatic patterns) that must be recursively activated within social practices. The agentic dimension of routinized action lies precisely in the recursive implementation of structures by human actors” (1997, p. 978) Again, this author asks, why only human actors? If rules and resources, which can be assumed to include material objects (and material subjects), are critical to the formation (and reformation) of structures, then why are material objects not afforded their place within the agential realm? 53 Approaches to Material Agency within the Sociology of Science, Knowledge and Technology (SKAT) Tradition Various debates over the epistemological and ontological efficacy of a conceptual fi'amework that examines human, or social, versus nonhuman, or material, agency have played out in the science, knowledge, and technology (SKAT) literature for more than two decades (Ashmore et al. 1994; Callon 1986; Callon and Latour 1992; Collins and Yearley 1992; Latour 1987, 1993, 1994).29 The crux of these arguments center on the appropriateness and effectiveness of examining science, technology and society through a theoretical position that attempts to reexamine the privileging of human over nonhuman agency — variously described as the agency of objects, nature, or the material realm.30 While clearly a crude oversimplification, for the sake of brevity and clarity this author will reduce the arguments that frame this divide into two poles. On one side lie those who argue that by attributing agency to material objects researchers and theorists risk: a) reifizing the material as a knowing, speaking subject; b) disempowering the individual by deluding s/he’s ability to enact change; and c) potentially fetishizing material or natural objects (Collins and Yearley 1992). On the other side of the debate are those who argue that only by incorporating nonhuman agency (hence, material 29 The theoretical area of study known as “science, technology and society” is sometimes referred to as “science and technology studies”. However, science and technology studies (also STS) is often equated with the work of actor-network theorists such as Latour, Callon, Law and others. Throughout this paper the author will make use of the term, science, knowledge, and technology (SKAT) — an organized subfield of the American Sociological Association (ASA) — to include the theoretical positions of ANT and other diverse schools of thought within STS, including the sociology of science, the sociology of technology, the social construction of technology (SCOT), the sociology of scientific knowledge (SSK), and cultural studies of science and technology. For an excellent overview of SKAT, see Hess (1997). For a more theoretically in-depth philosophical analysis of SKAT, see Rouse (1996). 3° Throughout this paper the author will use the terms, “human” and “nonhuman” and “social” and “material” interchangeably (“human” corresponding to “social” and “nonhuman” corresponding to “material”). The author does this because much of the sociological literature on agency does not delineate or provide nuanced distinctions between the terms, often either relying upon one set or the other, or using the terms synonymously. However this author would add that from an epistemological, ontological, and practical perspective there are important distinctions between these four concepts. Nevertheless for the sake of brevity these distinctions will not be discussed in this work. 54 objects) into theory and practice can researchers explore the frameworks that define, guide and produce the socio-material networks (again, what this author calls agential networks) which in turn produce the objects/subjects that “act” and are “acted upon” in the world (Barad 1992, 1998a, 1998b, 2000, 2001, 2007; Callon 1986; Callon and Latour 1992; Callon and Law 1997; Haraway 1988, 1991, 1992; Latour 1987, 1993, Law 1986; Pickering 1993, 1995). This author argues that only the latter position is sufficient for developing a theoretical and substantive program for tracing and illuminating the agential practices as they proceed within the socio-material world. In this next section the author will discuss the various SKAT approaches to material agency, including some criticisms of such approaches. Tools for Navigating “the Great Divide”: A Symmetrical Approach To better understand the relationship between the production of agential networks, social and material agency and socio-material conditions, the author will first identify the role of institutions in the framing of the separation between human and non- human, and social and material. Traditionally, in public and professional discourse it has become routinely accepted (and reified) that the materiality of environmental problems are to be addressed by the occupational fields and academic disciplines typically charged with their investigation — these fields range from the agricultural, biological and chemical sciences to engineering and the physical sciences and, to a lesser extent, some areas of research housed in the social sciences. Conversely, the sociality of environmental problems is assumed to be strictly the domain of the social sciences and the humanities, including (but not limited to) anthropology, cultural studies, history, literature, 55 philosophy and sociology. This division of labor among scientific research disciplines — in and outside of academia — is the consequence of an assumed epistemological and ontological break between social and material conditions; this is a fundamental part of what Latour (1993a) refers to as “the Great Divide.” In actuality, Latour argues that there exists two “Great Divides” in what is typically referred to as modern society: one divide is the separation between “Us”, the modems and “Them”, the pre-modems or “Orientals”; the other divide is between humans (also “Us”) and nonhumans (“Them”). 3 l The origin of this distinction is a product of society’s (and therefore, science’s) ontological assumptions about the nature — literally as well as figuratively - of social and material conditions as both object(s) and subject(s); these assumptions stem from the socio-historical and philosophical divide between: culture / nature, mind / matter, nature / nurture, ideal / material, etc. This divide has also served to flame what is generally considered to be appropriate in terms of methodologies for investigating social and material conditions, traditionally as separate but, arguably, more recently as interactive and integrated. This epistemological concern is of special significance with regard to whether the former—the appropriate methodologies—are suflicient for the examination of the latter—the socio-material conditions (Latour 1987, 1993). 3' Within this paper and in regard to material agency, the author is primarily referring to the latter - although, as Latour points out, they are inseparable: “In order to understand the Great Divide between Us and Them, we have to go back to that other Great Divide between humans and nonhumans that I defined above. In effect, the first is the exportation of the second’ (Latour 1993a: 97)(author’s italics). Fuchs (2001) also identifies a “Great Divide” in sociological theory—that of agency/structure (along with micro/macro, mind/body, subject/object, etc.). However, Fuchs argues that the division also encompasses the separation of intentions (a correlate to agency and “action”) and mechanism (a correlate to structure, but also “behavior”). In the end, Fuchs asserts that agency is question of scale; this author would agree with that argument in part, but would add that agency is a question of temporal and spatial as well as scalar attributes of an agential network. 56 Latour (1993a) argues that contemporary society (and consequently, the associated institutions of science) proceeds under the assumption that the current historical period in which we live is that of “modernity”. According to Latour, under modernity there exist two sets of practices — translation and purification. Corresponding to each of these sets is their respective episteme: translation corresponds to what Latour refer to as “networks”; purification relates to what Latour calls the “modern critical stance”. According to Latour (1993:10), the work of translation involves practices that create “. . .mixtures between entirely new types of beings, hybrids of nature and culture”. Purification involves: ...two entirely distinct ontological zones: that of human beings on the one hand; that of nonhumans on the other. Without the first set, the practices of purification would be fruitless or pointless. Without the second, the work of translation would be slowed down, limited, or even ruled out. (Purification). . .establish(es) a partition between a natural world that has always been there, a society with predictable and stable interests and stakes, and a discourse that is independent of both reference and society (Latour 1993a:10). Accordingly, keeping these two sets of practices—translation and purification— separate has become the fundamental (pre)occupation of modern societies. This simultaneous process (involving both sets of practices), led predominantly by the work of empirical scientists, is embodied in the form of modern techno-science. 57 Next Latour (1993: 12) introduces what he refers to as the paradox of the modern critical stance; he argues, “the more we (society, and by extension, science) forbid ourselves to conceive of hybrids, the more possible their interbreeding becomes. . .”. In other words, the work of purification, a fundamental component of modern techno- scientific practices, is about the maintenance of this separation; however, the work of translation, also facilitated through techno-scientific practices, is about the creation of hybrids; but the creation of these hybrids is done through a simultaneous denial of their own existence and their imperative role in the work of purification. This type of “socio- institutional amnesia” is necessary for the work of translation to proceed; without purification the process for separating culture from nature, social from material, and vice- versa, and the ability for techno-science to demarcate, translate and represent nature and natural conditions — and, consequently, materiality -— would be impossible. Material Agency: Approaches from Science, Knowledge, and Technology In this section the author will briefly discuss three early approaches to social and material agency: a seminal article by Langdon Winner; the work of Michel Callon and Bruno Latour and ANT; and the work of Andrew Pickering and his illustration of material agency through the mangle of practice. In the section immediately following the author will explore the work of two important feminist science studies scholar: Donna Haraway and Karen Barad. This author asserts that by adopting a theoretical perspective that draws upon and extends the work of ANT theorists and Pickering, and combines these perspectives with Haraway’s material-semiotics and Barad’s agential reality, a new, innovative approach emerges that can guide social theorists and environmental 58 sociologists (as well as other environmental researchers) in their effort to identify, understand and mediate the complex agential networks that produce environmental problems. Winner: The Politics of A rtifacts Revisited One of the earliest works in SKAT to take up the issue of the agency of material objects is Winner’s (1980) article, “Do artifacts have politics?” In the piece Winner takes up the debate regarding the ascription of power to things, including the role of technologies and the context of their conceptualization, development, and use.32 Winner starts by providing the converse position that posits technologies are embedded in social relations and, therefore, are absent the politics of such social interaction: It is no surprise to learn that technical systems of various kinds are deeply interwoven in the conditions of modern politics. The physical arrangements of industrial production, warfare, communications, and the like have fundamentally changed the exercise of power. ...But to go beyond this obvious fact and to argue that certain technologies in themselves have political properties seems, at first glance, completely mistaken. ...Hence, the stern advice commonly given those who flirt with the notion that technical artifacts have political qualities: What is not technology itself, but the social or economic system in which it is embedded? (Winner 1980, 123)(author’s italics) 32 Winner prefers to use the term “technologies” in the plural to avoid conceptions of technology as associated with the notion of “technique” as posited by Jacques Ellul (and, one would assume, the work of Michel Foucault). 59 Winner refers to this view as the “social determination of technology”. He then juxtaposes this position with what he calls, “a theory of technological politics”. This view, “. . .draws attention to the momentum of large-scale sociotechnical systems, to the response of modern societies to certain technological imperatives, and to the ways human ends are powerfully transformed as they are adapted to technical means” (Winner 1980, 124). Another important aspect that Winner draws attention to involves the political intentions associated with technologies: “Many of the most important examples of technologies that have political consequences are those that transcend the simple categories ‘intended’ and ‘unintended’ altogether (Winner 1980, 129). Drawing upon the work of Engels and Marx, Winner goes on to discuss the crucial role of material conditions in not only guiding but literally defining, enabling and constraining the procession of actions that produce social relations and social conditions. He further asserts that while certain possibilities for society will always exist, there is also always a certain level (or multiple levels) of intractability associated with any action. But, for Winner, this does not limit us to the more study of politics as practiced by social actors; on the contrary, this emboldens us to attentively and with painstakingly necessary detail to examine the technical objects themselves: “To understand which technologies and which contexts are important to us, and why, is an enterprise that must involve both the study of specific technical systems and their history as well as thorough grasp of the concepts and controversies of political theory (Winner 1980, 130). While not an explicit expose of the agency of objects as such, Winner does introduce the notion of the politics of technical objects and the implications of such thought. He concludes that people have taken a position of “willingness to accommodate” technical innovation on the grounds 60 that nature is intractable, politics are tractable and technologies are somewhere in between, exploiting the tractability of society while still being constrained by the irnmutability of nature. In response, Winner argues society must be willing to discern the tractability of both nature and society and, in turn, be willing to take technical objects seriously in their role in the co-construction of our world. Callon, Latour and ANT: A Sociology of A ctants In 1986 Callon published his influential work on the relationship between scallop fishers, the local community, and local and national governmental regulatory agencies. The primary importance of Callon’s article, and why it was distinct from previous articles exploring regulatory practices and local resource users, was the introduction of an additional actor (what Callon refers to as an “actant”) to the network—that of the resource itself—in this particular instance, the scallops. Callon’s work opened the door for a new approach to social and material agency; one in which agents / actors / actants are viewed as duplicitous in the production of their own agential network of socio- material conditions. Callon argues that scallops have had as much influence on the discourses and practices of regulatory agencies and fishers as any of the other actors within their particular agential network. Consequently Callon asserts that scallops could no longer be viewed as mere passive agents over whom other agents exert their agency upon; instead, the actions of scallops are an equal force in the ontological existence of agential networks produced by the socio-material actors in the network. In other words, the action, or as Latour (1988) refers to non-human action, the actancy of scallops has had a substantial 61 material and semiotic effect on the forces associated with the agential network that produces and maintains scallops as both a resource and material object (and material “subject” under study). Here Callon also introduces his concept of radical symmetry, a bipartite approach to the study of technoscientific networks. The first aspect of this approach relates to the need for SKAT researchers to address their object of inquiry — in this case the products of techno-scientific practices — symmetrically; instead, SKAT researchers must ignore whether the networks are successful in terms of achieving their “intended outcome”. In other words, all SKAT inquires into technoscientific networks need to be handled — methodologically and ontologically - in the same manner regardless of the intended or actual consequences, or the outcomes of said networks. Second, and as a direct corollary to the first point, all agents enrolled in the network, non-human as well as human, must be addressed as active participants in the production and maintenance of that network— tlrere are no passive agents within an agential network. In parallel vein, in his book, Science In Action: How to Follow Scientists and Engineers Through Society, Latour (1987) provides the first expanded treatise on his (as well as his other ANT colleagues, Callon and Law) new theoretical approach to STS and social and material agency—actor-network theory (ANT). ANT would become one of most influential theoretical schools in STS during the late 19803 and into the 19903.33 Latour (1987) argues that non-humans are integral in the process of doing science and the act of black boxing scientific outcomes. By black boxing, Latour is referring to the manner in which products of STS are disassociated from the agential networks that are firndamental to the work of scientists including the social and material outcomes of 33 See Law (1999) and Latour (1999) for an interesting view of current state of ANT approaches. 62 these networks. Thus, these practices and products are placed in a black box that is not to be opened, so as to avoid acknowledging the integral and fundamental intra-actions and consequences of these intra-actions that produce and maintain these agential networks. According to Latour, non-humans, or actants, are an essential part of these agential networks; actants are not merely passive agents that are acted upon; actants are instrumental in producing and maintaining their own agential networks of socio-material conditions. In further clarification of this relationship between actors and actants, Latour states, An ‘actor’ in ANT is a semiotic definition—an actant—that is, something that acts or to which activity is granted by others. It implies no special motivation of human individual actors, or of humans in general. An actant can literally be anything provided it is granted to be the source of an action (1997: 4, emphasis original; quoted in Suchman).34 Consequently, Latour argues for an approach to social and material agency that neither ignores nor privileges the motivation or intentionality of actors, but instead focuses on the actions, or practices themselves as well as their effects, in an effort to help illuminate the role of non-humans in enabling, producing and maintaining agential networks. In their description of ANT, Ashmore et al. (1994) write, 3‘ Suchman, Lucy. n.d. Human/Machine Reconsidered. Lancaster: Department of Sociology, Lancaster University. http://www.comp.lancs.ac.uk/sociology/soc040ls.htm|. Retrieved May 10, 2003. 63 In ANT, then, assumption of the ontological primacy of humans in social research and theory is suspended. Nonhuman entities, traditionally overlooked in sociological accounts of the social world, take their rightful place as fully-fledged actants in associations, relations, and networks. One critique of the ANT position, led by Collins and Yearley (1992), asserts that the tenet of non-human actancy requires a form of agency that ascribes human characteristics to non-humans without correctly identifying the relationship between agency and power/knowledge, ontologically as well as epistemologically. Collins and Yearley (1992: 321) state, If nonhumans are actants, then we need a way of determining their power. This is the business of scientists and technologists; it takes us directly back to the scientists’ conventional and prosaic accounts of the world from which we escaped in the early 19703. This leads directly to one of Collins and Yearley’s other main criticism of ANT— the role of the researcher as expert in their area of inquiry. According to Collins and Yearley, by virtue of their professional training as sociologists, and not marine biologists or technical engineers, Callon and Latour are neither properly situated nor adequately prepared to understand or interpret the claims they make about the non-human entities that they attempt to study. In direct response to these assertions, Callon and Latour (1992) argue that since Collins and Yearley subscribe to an ontological and, most significantly, epistemological schism that privileges human perception and the anthropocentric mediation of nature as crucial and integral to any methodology for analyzing the material world, then as a consequence of their theoretical and substantive allegiance to this schism for Collins and Yearley the agential realism approach is necessarily untenable. However, Callon and Latour assert that if Collins and Yearley do not actually subscribe to such a schism (and Callon and Latour argue that they believe this to be the case), then any reservations Collins and Yearley have concerning ANT are analogous to “throwing the baby out with the bathwater.” In an indirect response to these claims, Haraway (1991: 331, fir. 11) clarifies, Actants are not the same as actors. . .. Non-humans are not necessarily “actors” in the human sense, but they are part of the functional collective that makes up an actant. Action is not so much an ontological as a semiotic problem. This is perhaps true for human as non-humans, a way of looking at things that may provide exits from the methodological individualism inherent in concentrating constantly on who the agents and actors are in the sense of liberal theories of agency. Pickering: Material Agency and the Mangle of Practice In his book, The Mangle of Practice: Time, Agency and Science, Pickering (1995) provides an approach to material agency as it relates to the scientific work of physicists; specifically, Pickering illustrates material agency through an examination of Glaser’s 65 research on the bubble chamber, an instrument for experimental research in elementary- particle physics. Pickering’s approach draws upon material agency not as an ontological framework but instead as a methodological device for demarcating the structure of scientific research, or what Pickering refers to as “the mangle”. His effort in doing so is to develop a methodology for understanding science that permits for a “posthumanist approach”; that is, a more “. . .realist, decentered analysis” of human and material agency as they are intertwined, as opposed to the many approaches that investigate them as symmetrical but dualistic (see Jones 1996: 298). However, one fundamental manner in which Pickering’s approach becomes problematic relates to his discussion of the role of intentionality in social and material agency. According to Pickering (1995: 17), We humans differ from nonhumans precisely in that our actions have intentions behind them, whereas performances (behaviors) of quarks, microbes, and machines do not. I think that this is right. I find I cannot understand scientific practice without reference to the intentions of scientists, though I do not find it necessary to have insight into the intentions of things. . . .Human intentionality, then, appears to have no counterpart in the material realm. Departing from his professed intention of using a symmetrical approach, Pickering describes how the distinction between social and material agency is one area in which symmetry necessarily breaks down. However, why this is the case becomes an interesting question, especially in light of Pickering’s own discussion of material agency, 66 generally, and his analysis of the bubble chamber, specifically: “my analysis of scientific practice is posthumanist not simply in its twining of human with material agency but, more profoundly, in its insistence that material and human agencies are mutually and emergently productive of one another” (1995b: 375). This author concurs with Jones’ (1995: 296; emphasis in original) assertion that, “this. . .(conception) severely limits the utility of (Pickering’s approach) in terms of understanding the human condition, for if material agency is not to be taken literally, then neither is human agency.” Further this author argues that Pickering, by his own admission, constructs an inescapable paradox in which material agency cannot be treated symmetrically with reference to human agency, thereby making Pickering’s claim of their “mutual emergent production” an apparent impossibility. As a further consequence, Pickering’s conceptualization of intentionality only serves to further reify the categorical separation of human and non-human by (re)investing humans with knowable intentions, and relegating materiality to the malleable and inscribable features of Aristotelian metaphysics. Nevertheless, this author is sympathetic to Pickering’s position with regard to human versus non-human intentionality. However Pickering resorts to a position of providing material agents with the ability to only “resist” other agents with these mutually emergent production networks. While resistance and reaction —- possibly two sides of the same coin — are important elements within agential networks, action is an inherently central and fundamental element as well. Further, while the intentions of agents can have an important role in the network (both in establishing the network and facilitating its practices and actions), the intentionality of agents are one among many elements that must be enacted within the network for the network to proceed. 67 Consequently, the intentions of agents are neither wholly or exclusively central to the network, nor do they inevitably lead to a causal relationship between the intentions of agents and the outcome of networks. Do quarks, microbes or machines have “intentions”? Probably not, at least not in the sense that we, as social beings, have constructed, produced and reproduced ourselves in society (including the various manners in which humans construct, produce and reproduce intentions - a priori, ad hoc and post-hoc to events and actions). Similar to calls by many theorists to avoid inscribing material objects with human attributes, this author asserts that we need to be equally careful not to divest material objects with socially constructed conceptions of ourselves out of fear of divesting humans with the so- called essence of what constitutes “us” as humans. We are not merely reflections of ourselves, nor are material agents unreflective of us - we are complex networks of social and material agents, simultaneously projecting and reflecting each other in mutually emergent productions. Are the material agents in laboratories quantitatively and qualitatively distinct from the material agents outside the lab? Latour has convincingly dissolved the “inside” and “outside” environs of the lab as an artificial distinction. Still, if one takes seriously the idea that material agents have actions and reactions (if not intentions), then the idea that quarks, microbes and machines have effects and consequences must be maintained. And, as the death of Nobel laureate pioneering radiation researcher Madam Marie Curie illustrated, material agents in the lab can have profound — and even fatal - consequences to social agents inside the lab as well as in the world. 68 Feminist Science Studies and Material Agency In this section, the author will outline the works of three major science studies, feminist theorists of social and material agency: Monica Casper, Donna Haraway, and Karen Barad. First the author will identify and critique Casper’s discussion of nonhuman agency. Then the author will draw upon the approaches of Haraway and Barad, paying particular attention to the significance and usefulness of Haraway’s conception of “material-semiotics” and Barad’s ideas in regard to “agential realism.” This author will attempt to both illuminate these important concepts and develop a synthesis of their ideas as they apply to material agency. Does a Fetus Have Agency? Revisiting Casper and Nonhuman Agency In her article on nonhuman agency and the human fetus, Casper (1994) writes about the Collins and Yearley’s debate with Callon and Latour in regard to attributing agency to nonhuman entities (discussed previously in this work). This academic dispute — known (affectionately) as the epistemological chicken debate — centers on whether or not giving agency to nonhuman entities (material agency) “. . .requires a method of analyzing their potency” (Collins and Yearley; quoted in Casper, 2994, p. 846). For Collins and Yearley (1992) such a necessity means a return to (scientific) politics as usual, imputing the sciences with sole domain, responsibility, and legitimacy over the means to determine the agency of things. On the other side, Callon and Latour (1992) assert that by denying the agency of nonhuman entities, one plays into the normative conception of science and its experts as the primary observers (actors) positioned to “speak” for natural objects. Instead using their symmetrical approach to examine the 69 outcomes of debates a priori allows ANT scholars a more complete and, therefore, apolitical (and “amodern”) view of the consequences of their (technoscientific) practices. Casper (1994) appears to take issue with both sides of this debate. On the one hand, she argues that “. . .by accepting the categories of human and nonhuman at the outset without examining their constitutions, ANT scholars tend to ignore how their own analytical activities confer these statuses on entities” (Casper, 1994, p. 846). She adds: “. . .I take issue with (ANT’s) use of agency as a criterion for defining nonhuman participation in technoscience. These conceptualizations rely upon constructions of agency that have, like definitions of humanness, historically excluded certain classes of entities” (1994, p. 848). In both statements, providing agency to nonhuman entities is merely another power move made by those who have the power and ability to “speak” for these entities — be it human or nonhuman. On the other hand, Casper asserts that she is “. . .somewhat suspicious of the argument that that we must attribute agency to nonhuman entities,. . ..This ‘granting’ of human agency to nonhumans maintains an intrinsically human-centered conceptualization of power” (1994, p. 852). She concludes that, We are not superior beings granting ‘subaltems the right to speak,’ although there most definitely is a politics of interpretation engendered by human-nonhtunan interactions. Like humans, non-hmnans have their own voices, whether or not we can (or choose to) ‘hear’ them, and are not only capable of but have long exercised resistances” (1992, p. 854; quoting Mani). 7O Even in light of this seemingly paradoxical claim with regard to Casper’s position (“speaking” for nonhuman entities is dangerous, but no less dangerous than excluding them from the dialogue), there lies a significant political quandary of sorts — epistemologically and ontologically as well as practically speaking - with regard to the firndamental aspect of sociological inquiry (and, consequently, Casper’s own positionality): Casper appears to be arguing that addressing nonhuman agency is akin to the problems addressed by subaltem theorists with regard to “who speaks” and “for whom” (Spivak 1988). In this author’s opinion, the problem with Casper’s argument is that whether or not non-scientists (or scientists) attempt to provide accounts of material agency - a practical and ontological aspect distinct from the notion of “speaking” for objects - scientists have traditionally and normatively always “spoken” for the non- human subalterns. Decentering and recentering the subject of inquiry (with regard to material objects) will, of course, be no less controversial or political than that of decentering and recentering the subject with regard to humans. These efforts are not an attempt to deny the reflexivity of humans, as theorized by some authors (Archer 2003); instead, they are an attempt to acknowledge that as subjects — social or material -— “they” (the Other) should be, by definition, entitled to express and represent (or be represented in) their reflexivity.” But shall we leave the task to the politics of experts, or expert politics? 13 this about the politics of power? Of course —- how is it anything other than power? But leaving these politics to the (assumed) experts with regard to non-humans is no less 3’ As an acknowledgement of Archer’s (2003) thorough and often compelling assertions regarding the “internal conversation” and the “irreducible personal property” of human reflexivity, it could be argued that sociology may have entered into an era of post-reflexivity, in which the mediation of structure and agency is (and has always been) the property and domain of material subjects and human objects, as well as material objects and human subjects (or, possibly, “we have never been reflexive”?). 7l problematic than letting the experts speak for the human subaltem. Did all accounts of subaltem practices disappear since the linguistic turn and the rise of poststructural, subaltem accounts of human subjugation? Of course not — if anything they have proliferated. However, now scholars, experts, and others are generally more aware of the dangers associated with this power and the range and extent — and most importantly, the consequences - of the politics of experts when the subaltem are not allowed (or never “aske ”) to participate in the process of tracing the networks within which they (and “us”) exist. So why, as sociologists, would we not wish to include (to “ask”?) non-human entities into our accounts of the world that always (and has never otherwise) involved both humans and non-humans? If negotiating and renegotiating the subject with regard to humans is always political, then why should the negotiation and renegotiation of non- humans be anything less — or, more efficaciously, since the negotiation and renegotiation of the subject with regard to non-humans has always been political, why should scientists have all the fun?36 Donna Haraway: Situated Knowledges, Partial Perspectives and Material-Semiotics Efforts to travel into “nature” become tourist excursions that remind the voyager of the price of such displacements - one pays to see fun-house reflections of oneself. ---Donna Haraway, The Promises of Monsters: A Regenerative Politics for Inappropriate/d Others3 7 ’6 This statement is both meant to be tongue-in-cheek and deadly serious -— while we should have fun in our work, there is nothing fim about the literal embodiment of toxins in the body, as will be explored in a subsequent section. Just to be clear this author takes Casper’s point very seriously and hopes to elaborate on this in subsequent sections. ’7 Haraway (1992). 72 In her influential work on situated knowledges, Haraway (1991: 187) argues, ...“our” problem is how to have simultaneously an account of radical historical contingency for all knowledge claims and knowing subjects, a critical practice for recognizing our own ‘semiotic technologies’ for making meanings, and a no- nonsense commitment to faithful accounts of a ‘real’ world... In the article Haraway goes on to develop her concept of “material-semiotic actors”-—a process and product of constructing objects of socio-material interaction and socio-material conditions through boundary and mapping practices. Haraway (1991: 183) argues that “bodies as objects of knowledge are material-generative nodes”, and that bodies and objects can never pro-exist their own construction. In other words, bodies are neither natural nor purely social (i.e., socially constructed, as such); bodies are socio- technical and socio-material entities, an intersection of “apparatuses of bodily production” based in the power of discursive constructions. These discourses include biological research, writing and publications, industry practices, metaphors and narratives of cultural production, and the specific technologies that prescribe, describe and inscribe (and re-inscribe); in other words, the discourses and practices that “produce” bodies (Haraway 1992: 298). Haraway’s position on the usefulness of a social and material agency approach is best illustrated by her quote concerning the role of non-humans and scientific approaches in the co-construction of “nature”: 73 If the world exists for us as “nature,” this designates a kind of relationship, an achievement among many actors, not all of them human, not all of them organic, not all of the technological. In its scientific embodiments as well as in other forms, nature is made, but not entirely by humans; it is a co-construction among humans and non-humans (Haraway 1992: 298). One of the most significant aspects of Haraway’s work is breakdown the assumed distinction between theory, on one hand, and practice, on the other. This conception corresponds with similar dualistic notions concerning the social and material, and the material and discursive: “This sketch of the artifactuality of nature and the apparatus of bodily production helps us towards another important point: the corporeality of theory. Overwhelmingly, theory is bodily, and theory is literal. Theory is not about matters distant from the lived body; quite the opposite. Theory is anything but disembodied” (Haraway 1992, 299)(author’s italics). Haraway’s fundamental assertion is that a severing of material and social (similarly to the material and discursive) only serves obfirscate the important material dimensions of the lived experiences of people in the world. The world — and therefore nature/material/object — are all embodiments of socio- material practices — agential networks through which all lives (human and non-human alike) proceed. 74 Karen Barad: Agential Reality and Material Agency Learning how to intra-act responsibly within the world means understanding that we are not the only active beings—~though this is never a justification for deflecting that responsibility onto other entities. The acknowledgment of nonhuman agency does not lessen human accountability; on the contrary, it means that accountability requires that much more attentiveness to existing power asymmetries. ---Karen Barad, Getting Real: T echnoscientific Practices and the Materialization of Reality In her article, “Getting Real: Technoscientific Practices and the Materialization of Reality,” Karen Barad (1998) asserts that in an effort to understand the body or “matter,” materiality must be addressed not only as a semiotic construct and representation but also as the cause and consequence of material production(s). Through her approach of “agential reality,” Barad (1996: 180-184) provides the following framework for understanding material agency: i) agential realism grounds and situates knowledge claims in local experiences; objectivity is literally embodied; ii) agential realism privileges neither the material nor the cultural: the apparatus of bodily production is material- cultural, and so is‘agential reality; iii) agential realism entails the interrogation of boundaries and critical reflexivity; and iv) agential realism underlines the necessity of an ethics of knowing. Barad argues that agential realism, similar to Haraway’s material- semiotics, provides a unique program for illustrating and understanding the relationship between humans and non-humans. In this next section the author will use Casper’s critique of non-human agency as an ironic illustration of the importance of non-human agency within agential networks. In her critique of Judith Butler’s (1993), Bodies That Matter: 0n the Discursive Limits of “Sex”, Barad (1998b) asserts that Butler does not adequately address material 75 agency in regards to matter itself; instead, according to Barad, Butler utilizes an analysis of peforrnativity with regard to bodies that solely explores material agency in and through its discursive forms. Barad (2007, 209-10) argues, In contrast to Butler’s more singular focus on the human body and social forces, crucially, the fiamework for agential realism does not limit its reassessment of the matter of bodies to the realm of the human (or to the body’s surface) or to the domain of the social. In fact, it calls for a critical examination of the practices by which the differential boundaries of the human and the nonhuman, and the social and the natural, are drawn, for those very practices are always implicated in particular materializations. . . .Matter is substance in its intra-active becoming — not a thing, but a doing, a congealing of agency. Matter is a stabilizing and destabilizing process of iterative intra-activity. . . .That is, matter refers to the materiality and materialization of phenomena, not an assumed, inherent, fixed property of abstract, independently existing objects (italics author’s). Barad (1998b, 9]) argues further that Butler’s analysis fails with regard to three fundamental aspects: 1) it fails to identify the “material constraints and exclusions” of agency; 2) it fails to explore the “material dimensions of agency”; and 3) it fails to illustrate the “material dimensions of regulatory practices”. In the next section the author will draw upon the concepts presented by SKAT theorists such as Latour, Callon, and Pickering, and combine these with the perspectives presented above by Haraway and Barad in an effort to put forth a synthesis that draws 76 these positions together into one conceptual framework for examining social and material agency, collectively and simulateously — an approach this author refers to as a symmetrical approach to agential reality. Mappings: Developing a Symmetrical Approach to Agential Reality In an effort to move away from this epistemological, ontological and practical quagmire, this author will outline three possible ontologies for examining social and material agency: 1) the first approach involves an analysis that necessitates an exploration of intentionality in regards to social agency, but does so without reference to material agency; this is what is referred to as an asymmetrical approach to agential intentionality (Pickering 1995); 2) the second approach is an analysis that necessitates a discussion of intentionality in reference to both social and material agency; this is what is referred to as a symmetrical approach to agential intentionality; and 3) the third approach is an analysis of social/material agency that does not necessitate a discussion of intentionality in regard to either; this is what is referred to as a symmetrical approach to agential reality (Barad 1996, 1998a, 1998b, 2000, 2001, 2007). This third approach draws directly upon Barad’s (1998: 96) conception of intra-action, a “neologism. . .to signify the inseparability of “objects ” and “agencies of observation ” (in contrast to “interaction,” which reinscribes the contested dichotomy)” Barad (1996: 183) adds, “agency is a matter of intra-acting; that is, agency is an enactment, it is not something someone has.” 77 The following table (Table 1) provides an illustration of this author’s framework for theorizing the relationship between intentionality and social and material agency within agential networks: Table l. Approaches to Social and Material Agency: The Role of Intentionality A roach Social Material Sources pp Intentionality Intentionality Asymmetrical approach to Yes No Pickering (1995) socral intentional ity Symmetrical Callon (1986); Latour approach to (1987)* agential Yes Yes (*as asserted by Collins intentionality and Yearly 1992) . Barad (1996, 1998); Symmetrical Callon (1986); Latour approach to No No agential reality (1987); Callon and Latour (1992) This third approach, as espoused by ANT theorists as well as Haraway and Barad, provides the framework for exploring the complex intertwining of social and material agency within agential networks without falling into the ontological trap of ascribing intentionality to material entities. Instead it is argued that under certain conditions, and with certain ends in mind, sociologists need only to examine and illustrate the particular actions, or agential practices of the social and material agents that frame and intra-act within any agential network under study. Further, this symmetrical approach to agential reality allows researchers to develop a methodology for analyzing these relationships in terms of effects and consequences, and subsequently, the procession and outcomes of socio-material agency and agential networks. 78 This is not to deny the social actor intentionality per se; this is an effort to resist the temptation to ascribe meaning to action as the singular path to understanding outcomes.38 More often than not, particular outcomes and the consequences of these outcomes are the result of the complex intra-actions of social and material agents of which have little or no relationship to the intended (or expressed) consequences of social actors (Perrow 1984; Tenner 1996; Vaughan 1996). Again this is not to deny that intentions have no relationship to outcomes; instead this is an effort to develop of methodology for illuminating how outcomes are facilitated by the collective agency of social and material agents, often which cannot be reduced to the intentions - individual or collective — of the social agents alone. The assemblage of social and material agents by human actors in the pursuit of particular means never involves only those agents anticipated by the actors. Contrary to Taylor (2006), the co-construction of agential networks by social and material agents involves more than just the psychology of human agents, and acknowledging so does nothing to “diminish” this psychology. However affording too much responsibility to social agents as the cause of particular outcomes of agential networks does diminish, or even ignores, the role of material agents in the network and, consequently, hampers any attempt at understanding how the co- construction of these networks are affected by material as well as social agents. And, as many researchers have demonstrated, the resulting consequences can be catastrophic (Perrow 1984; Tenner 1996; Vaughan 1996). 3' As well as effort to avoid what Barnes (2000) refers to as “powerful dualist myths as rationalisations of moral judgments” such as those propagated by Habermas’ theory of communicative action. 79 The Production of Environmental Problems: Using Symmetry and Agential Reality to Map Agential Networks . As discussed in a previous section, Barad (1998b, 91) argues that Judith Butler’s analysis of bodies does not identify the “material constraints and exclusions” of agency, nor explores the “material dimensions of agency”, and does not illustrate the “material dimensions of regulatory practices”. These three failures pointed out by Barad can serve as important points of illustration in regards to social and material agency of public environmental regulatory policies and practices such as those embodied by the production of environmental problems. To do this I will briefly discuss a number of agential networks of environmental problems including the pollution of US water supplies and the pollution of bodies by tetra-ethyl lead (TEL, or “leaded” fuel) and methyl tert-butyl ether (MTBE), both chemical compounds created to reduce air pollution from vehicle emissions as result of combustion. In this section the author will first discuss the role of material agency within the agential networks associated with technological disasters by examining Perrow’s conceptualization of “normal accidents” — normative failures of complex, technological systems. Next the author will examine the contamination of bodies by TEL through an illustration of the network associated with its use in US fuel supplies between the 19203 and the 19803. Lastly the author will illustrate the agential networks associated with the use of TEL and MTBE in gasoline supplies and the subsequent environmental problem associated with its use. As a part of this illustration the author will draw upon Barad’s three, overlapping points concerning social and material agency — as discussed previously - to explore the agential practices associated with production of MTBE as an 80 environmental problem. This effort will involve illustrating the socio-historical and socio-material processes through which MTBE came to be used as the primary oxygenate in RFG throughout the US, paying specific attention to the identification of the significant exclusions and constraints that led to this situation. Material Agency and Normal Accidents: The Agential Network of Disasters At first glance, the causal factor for the decision to use MTBE appears to be directly attributable to political economic decision-making, as well as the politics of the bureaucratic structure (e.g., the US Congress and the US EPA) and its relationship to industry (e. g., regulatory capture by industry, or the direct influence of regulation by lobbyists and other powerful economic interests) and the public (e.g., the possibility of increasing fuel prices which typically have negative consequences for politicians) (Andrews 1999; DeLong 1992; Durant 1985; Nakarnura and Church 2003; Percival 1997; Yeager 1991). If one argues further that scientific research is susceptible to the political relationships that often dictate funding for further research (e.g., the relationship between science and governmental funding agencies, a point that does need to be addressed regardless) then the controversy over how MTBE was adopted for use in light of a lack of clear evidence as to the safety of its use is again easily accounted for by political economic considerations (Greenberg 2001)(cf. Sarewitz 1996). However, if one argues, as this author does, that the reason for conflicting or lacking evidence is more adequately illustrated as a consequence of the relationship between social and material agency, socio-material practices and socio-material conditions -— and thus, agential networks - then the MTBE controversy becomes not 81 merely more interesting but more significant, especially with regard to the potential for similar environmental problems in the future. As will be illustrated in this section, this author argues that these failure are a consequence of existing normative understandings of agential networks, which lack an adequate conceptualization of material agents in the network; these failure are not merely based in the normative failures of social agents to anticipate the consequences of complex interactions between social and material agents within the system per se (e. g., conceptualizing normal accidents as merely the failure to adequately account for the relative coupling of parts in the systems)(cf. Perrow 1984). As Barad (1998: 112) indicates, if agency is understood as an enactment and not something someone has, then it seems not only appropriate but important to consider nonhuman. . .forrns of agency as well as human ones. This is perhaps most evident in consideration of fields such as science, where the “subject” matter is often “nonhuman.” For as surely as social factors play a role in scientific knowledge construction (they are not the sole determinant-things don’t just come out any way we’d like them to be) there is a sense in which “the world kicks back.” The illumination of networks of socio-material conditions requires the mapping of agential practices as well as the identification and analysis of the role of socio-material agency in the production of agential networks.39 Agential networks are fluid, dynamic operators that connect resources—socio-material agents, processes, products and ’9 See Gieryn (1983) for a discussion of the importance of boundary mapping practices in science and technology. While taking what this author would consider a more instrumental, Mertonian approach to the study of scientific boundary practices, this author would add that the processes Gieryn identifies fits within the theoretical arguments advanced in the paper. 82 outcomes—to one another along often seemingly ambiguous, random, or disarticulated paths. The consequences for ignoring the role of agency — especially material agency — within complex yet fluid agential networks can be catastrophic and yet normatively so (Perrow 1984; Vaughan 1996) Still with regard to most catastrophic disasters there remains a missing piece to the puzzle — the so-called “unanticipated” consequences of many agential networks. The question of anticipated versus unanticipated consequences ~— a question at the center of our debate with regard to agency and its proper location within the social and material realm — serves only to mask the nature of agential networks and role of the material agents in producing complex yet normative interactions (Perrow 1984). Assessing “blame” or inadequate “cognition” to the social agents in the network again only serves to obscure the role of material agents in constructing these networks of complex interactions. As an example, we can turn to Perrow’s Normal Accidents (1984) and the events described surrounding various technological disasters. In his book Perrow develops of model for examining “normal accidents” which he asserts are not accidents at all, but are instead normative failures which can and should be anticipated by the system’s designers. These normative failures are consequences of the type of system (linear or complex) and the relative separation of the elements within the system (loosely or tightly-coupled). However it is also Perrow’s failure to explicate the role of material agents in the system (or agential network) which leads to a conceptual misappropriation of “blame” within his theoretical framework. On the one hand, Perrow’s discussion of “hidden interactions” within loosely- and tightly—coupled systems correctly illustrates the 83 contribution of material agents to the network; however, it is exactly his handling of these components — similar to the handling of these components by engineers and technicians — as outside the agential network that leads to a “breakdown” of the complex system. These interactions between component and component, between component and human agent, and between component and “natural” laws were not adequately “anticipated” because the components were treated as exogenous to the network - the components were treated as if they had no agency, lacking the ability to produce any actions (and reactions) beyond that which is anticipated by prior knowledge (i.e., the material agents which construct the agential networks that define other material agents, such as the laws of momentum, thermodynamics, gravity, etc.) within the network. This author does not wish to argue that Perrow fails to identify material agency with regard to the systems he describes; on the contrary, Perrow’s illustrations are an ideal model for framing material agency. Perrow (1984, 78) identifies the two types of interactions: a) linear interactions, which are “. . .those expected and familiar production, or maintenance sequence, and those that are quite visible even if unplanned;” and complex interactions, which are “. . .unfamiliar sequences and unexpected sequences, and either are not visible or not immediately comprehensible.” In this first instance, social agents in the network are situated in such a manner that only allows them to identify the assumed (“anticipated”) role of material agents (natural laws, technical apparatuses, technical discourses, etc.) in the network; in the second instance, the social agents — again, based on their situatedness within the network — fail to identify the potential role of material agents in the network. What Perrow does in his model is overtheorizes the role of human agents in the network and undertheorizes the role of material agents in the 84 same network. The particular situatedness of the social agents within the network has been determined by the prior social and material agents in the very same network - their education, their training, their reliance upon technical documents based in mathematical and physical equations and other technical specifications, their relative position within organizations with regard to power asymmetries and hierarchal structures, etc. — all of which set the context for any future interpretations of the network as it proceeds. This procession of constant intra-action between social and material agents necessitates an equally constant reevaluation of the network. However, as described by Perrow, often social agents fail to account for the dynamic nature of complex systems when addressing existing fluxes or changes; but what Perrow illustrates, and yet fails to address in his model, is the dynamic nature of material agents within complex systems. Perrow’s argument appears to conceptualize complex systems as the proverbial left-hand not knowing (“unable to anticipate”) what the right-hand is (will be) doing; however, this author asserts that Perrow’s model actually assumes a left-hand (social agents) that assumes that the right-hand (material agents) is tied behind one’s back (and done so by nature, or natural laws), and therefore there is no need to account for the potential dynamics of the right-hand in the network as it proceeds. The right-hand is understood, fixed, immobile and immutable. The right-hand is nature. A History of Gasoline in the Environment and in the Body: Material Agency and the Automobile In 1921, research scientist Thomas Midgley Jr., an employee of the General Motors Research Corporation, a research lab owned by General Motors (GM), discovered the effectiveness of using tetraethyl lead (TEL) — a compound of metallic lead - in 85 gasoline to reduce “knocking” in internal combustion engines. Midgley had experimented with a number of agents by adding them to traditional fuel compositions, none of which had been effective until the introduction of iodine, which when mixed with fuel reduced premature combustion in accordance with the fuel-air ratio. This ratio, which came to be known as the octane level in fuel, was increased by the introduction of iodine. However due to the corrosive qualities of iodine, which quickly degraded engines, as well as its prohibitive costs led Midgley to continue to experiment with other octane-boosting alternatives. Interestingly by this time engineers had discovered the octane-boosting effects of ethyl alcohol (or ethanol) - either when mixed with traditional fuels or used as a fuel itself. However a number of factors led to the adoption of TEL (interestingly named “Ethyl” by Charles Kettering, Midgley’s boss and head of the GM Research lab): first, a newly produced compound (“invent ”), TEL could be patented for use and thereby profitable for the owner of the patent, a joint venture company of GM and Standard Oil of New Jersey (now the Exxon Corporation); second, adding a substance to refined oil — gasoline — would not significantly reduce the amount of oil needed for fuel production, whereas, the use of ethyl alcohol could result in the complete replacement of petroleum- based fuels, which was not in the best interest of one of Ethyl’s parent companies, Standard Oil; and third, the production of ethyl alcohol is a relatively simple process that can be undertaken without great investment in technology, and at the time corn stocks for the production of ethyl alcohol were relatively plentiful. By the time of its introduction into fuel supplies, some research suggested that lead (the primary component of TEL) was highly toxic to human in relatively small 86 amounts — whether directly ingested, inhaled, or absorbed through the skin by direct contact (Markowitz and Rosner 2002). In fact, just a few years after Midgley “discovered” the effects of TEL, he became seriously ill as result of acute lead poisoning from exposure during his research. So while there were clear political and economic interests in the agential network of TEL, the compound itself was “acting up”. Further, the professed “intentions” of Midgley, and the other researchers at the GM lab was to “find a compound or substance to reduce engine knocking” which would lessen the wear on the engine as well as increase compression, and thereby, increase fuel efficiency. Consequently the economic incentives created by the patent process as well as its material properties would make the use of TEL an obvious choice. Nevertheless the particular material agent to be used was neither arbitrary nor pre- ordained; and whether one sees this as how the specific agent was “chosen” by Midgley (or by Charles Kettering, head of research for General Motors, or by the executives of GM), or if the agent “chose” Midgley is a matter of perspective. The number of alternative agents reportedly explored by Midgley ranged from as low as 144 to as high as 33,000. But to find the substance that would both increase octane (reducing “knocking”) and be patentable, and therefore, profitable involved more than just the agency of the researchers; it involved a complex intermingling and mutually emergent production of an agential network -- a network that was comprised of material and social agents. The actions of the social agents had professed (“intended”), unprofessed (still “intended” yet not explicated) and unforeseen (albeit sometimes normative) consequences; however, the actions of material agents also had consequences as well. Researchers working with lead became ill, and some cases died. Workers producing TEL 87 also became ill and in many instances died as well. And, after the widespread adoption of TEL by fuel suppliers, tens of millions of the public were adversely affected by its use, including estimates from hundreds of thousands to several million dying due to chronic, long-term exposure to lead (Markowitz and Rosner 2003; Warren 2000). Methyl Tertiary Butyl Ether (M TBE) as an Environmental Problem and Agential Network After a protracted political battle, TEL in gasoline was eventually banned by the federal government; by 1986, unleaded fuel was the sole gasoline available for vehicle consumption. However, the air pollution issues that led to the enactment of the Clean Air Act during the early 19703 had not be resolved by the time TEL was removed, even with the advent of new pollution technologies such as the catalytic converter. Consequently, the federal government attempted to remedy this deepening air pollution issue with the adoption of the 1990 Clean Air Act Amendments. These amendments established a federal reformulated gasoline (RFG) program intended to reduce emissions of carbon monoxide, volatile organic compounds (VOC) and nitrogen oxides (N O) that form smog (McCarthy and Tiemann 2000, 2003). By 1995, MTBE accounted for over eighty percent of oxygenates used in the RF G program.40 The RF G program was mandated in thirty-nine cites nationwide as well as nine major metropolitan areas with the worst air emissions problems."1 Many additional areas voluntarily joined the RFG program under the “Opt-in” program including cities in seventeen states and the District of Columbia. California, with a population of over 30 ‘0 Ethanol, the other primary form of oxygenate used in the US, accounted for additional 15-18 percent, with additional forms of ethyl-based oxygenates (ETBE, TAME, etc.) accounting for the difference. " Chicago and Milwaukee, two major metro areas required to use oxygenates, chose to use ethanol instead of MTBE. 88 million, accounted for over thirty percent of MTBE use by 1998. At that time US counties using MTBE-laden fuel supplies had a combined population of nearly 70 million (McCarthy and Tiemann 2003). Additionally excess supplies of MTBE-laden fuel were supplied to areas not under the RFG mandate resulting in its use in all 50 US states. MTBE has the dubious distinction as one of the top chemical polluters of groundwater and surface water throughout the US. Initial estimates indicated that the additive could be found in groundwater and well water in 17 states and 82 counties, affecting areas with a combined population of over 55 million (Johnson 1998; McCarthy and Tiemann 2000). However, more recent data identified that all 50 states have reported groundwater contamination by MTBE (McCarthy and Tiemann 2006). By 2002, a US Geological Survey report found MTBE in 86 percent of wells sampled in industrial areas, 31 percent sampled in commercial areas, 23 percent in residential areas and 23 percent in areas of mixed urban land use, parks, and recreational areas. Additionally, 24 states found MTBE present in groundwater over sixty percent of the time when they sampled (Stephenson 2002). Estimates of the cost of MTBE clean up range from a low of $1 .5 billion to a mid range of $25 to $35 billion to a high of $85 billion, with the latter cost based a reduction of contamination levels to less than 1 part per billion (American Metropolitan Water Agencies 2005; American Water Works Association 2005).42 As a public health issue, MTBE has been associated with numerous minor neurotoxicological effects in humans including dizziness, nausea, and headaches. But many scientists argue that when ingested MTBE is a significant carcinogenic risk, even ‘2 The $1.5 billion figure was reported by an industry sponsored study by the American Petroleum Institute. 89 when consumed at very low levels (Health Effects Institute 1996; Mehlman 1998).43 US EPA currently lists the substance as a “probable” carcinogen (US EPA 1997).“4 Of equal import, at the time of the introduction of MTBE into US fuel supplies no clinical studies had been undertaken examining the consequences to human health when the substance is ingested; all studies prior to its use had been done with regard to inhalation only. In 1996, Santa Monica, California, was forced to shut down half of its municipal wells due to MTBE contamination. Consequently the city was forced to spend $3 million annually to obtain potable water from outside sources (Iritani 2002). By 1997, MTBE had been detected in over 30 public water systems and 3,500 groundwater sites throughout the state. Equally alarmingly, MTBE has been detected in two of California’s most important bodies of fresh water—Lake Tahoe and Shasta Lake (Greider 2001). In 1998, a report commissioned by the state indicated that MTBE posed “significant risks and costs associated with water contamination” and, therefore, should be immediately phased-out of use (Keller et al. 1998). In response to growing public health concerns, in March 1999 the governor of California ordered a phase—out MTBE use in RFG by 2003 (California Executive Order 1999; McCarthy and Tiemann 2000). ‘5 Twenty other states, including New York, attempted to enact limits, phase-outs or bans of the chemical additive. Additionally, a ’3 See Joseph, Peter M. 1996a. “Reformulated Gasoline: A Source of Illness?” June 15. Unpublished report on author’s website, http://shallowsky.com/RFG/RFG.txt. Retrieved August 18, 2005 and Joseph, Peter M. 1996b. “Health Effects fi'om MTBE in Gasoline.” April 15. Unpublished report on author’s website, http://shallowsky.comfRFG/lrealth.txt. Retrieved August 18, 2005. 4‘ Initially, the US EPA listed MTBE as a “probable” carcinogen. However, later the agency reclassified it as a “possible” carcinogen - the official position of the agency in 1997 was that while MTBE may be a possible carcinogen, since no clinical research has been completed on such a relationship their classification is without direct scientific support. But in 2005 the EPA reclassified the substance as “probable” based on new evidence and a similar reclassification by the US Center for Disease Control (CDC). ‘5 Amended by the California legislature for implementation December 31, 2003; however, federal courts have upheld the RFG requirement in California, forcing the state to continue to use some form of oxygenate in RF G. 90 number of state attorney generals and private litigators representing both public municipalities and private well owners filed lawsuits against the major oil companies. In one instance, New Hampshire filed a lawsuit against 22 major oil companies over the cost of cleanup of MTBE, involving an estimated 40,000 private wells as well as 15 percent of public water supplies in the state (Beattie 2003). At the federal level, up until 1998 the US EPA had strongly opposed measures to reduce the use of oxygenates in RFG, arguing that their use had significantly reduced air pollution.46 The agency also concluded that although MTBE use posed some risk to public health, this risk was no greater than those posed by other gasoline components such as benzene, toluene, ethylbenzene and xylene (BTEX). However, additional research soon discovered that MTBE’s unusual characteristics — MTBE is more soluble in water than BTEX, does not bind well with soil constituents and has strong odor and taste when present in drinking water even at low levels — created a potential contarrrination problem much more significant and widespread than those posed by BTEX.47 Further, natural attenuation of MTBE takes considerably longer than BTEX, potentially leaving contaminated soil and water sources polluted from decades. The EPA responded to initial reports of groundwater contamination by providing information, intensifying research, and focusing on the need to minimize the number of leaking underground storage tanks (LUSTs)."8 However, as reports of contamination spread, the EPA decided to reverse its original position. In 2000, the EPA announced its ‘6 It should be noted that the federal government did not mandate the use of MTBE as the primary oxygenate, although the federal government was aware that oil companies chose MTBE due to relative costs when compared to other forms of oxygenates. ‘7 There is evidence that oil companies were aware of the dangers posed by MTBE water contamination before its use in the federal RFG program. Others have claimed that the federal government and regulators were also aware of these dangers prior to implementation of the federal RFG program. ‘3 Also referred to as leaking underground fuel tanks (LUFTs) or underground storage tanks (USTs). 91 plan to phase out MTBE-use under authority of the Toxic Substances Control Act (TSCA). However, since this type of regulatory action could take several years, the EPA urged Congress to repeal the oxygenate mandate under the CAAA. In response the US Congress introduced five bills to reverse the mandate between 2000 and 2004; all failed to reach either the House or Senate floor. Finally, under the 2005 US Energy Act, the US Congress repealed the RFG requirement in US fuel supplies. By 2006, even though only a handful of US states had actually enacted complete bans on MTBE-use, the oil industry itself decided to stop using MTBE in light of pending litigation against these companies for cost of clean-up and remediation. Recently eight major oil companies settled a class action suit involving 153 public water systems in fifteen US states, agreeing to pay over $423 million to the plaintiffs as well as pay for seventy percent of future clean-up costs over the next thirty years (Mouawad 2008). While the above account provides an illustration of the advent of MTBE in US fuels supplies, it does not provide for a full agential account of its production as an environmental problem: the production of MTBE as an environmental problem involves the mapping of MTBE as an agential network. Agential networks are always both synchronic and diachronic: all agential networks have a history and chronology, as well as socio-spatially fixed at any given moment. Consequently any mappings of a agential networks much be simultaneously historical, temporal and political accounts of their production. Some of the social agents involved in the agential network of MTBE include physical scientists, engineers, corporate executives, federal, state and local politicians, political lobbyists, and petroleum workers. However the network did not stop there — in 92 addition, there were automobile workers, gas station owners and their workers, meteorologists and other atmospheric scientists, water scientists, planners, public health scientists, and independent researchers. And lastly, this list of social agents included the public (homeowners, private well owners, and any person that either drives a vehicle or consumes water). In addition to the social agents, there was complex set of material agents within the network. The previous form of oxygenate — tetraethyl lead, leaded gasoline — had already been banned in the US. Other forms of oxygenate included ethyl- based compounds and methyl-based compounds were available as an alternative choice. MTBE, though, had a number of identifiable attributes —- socio-materially — which led to its adoption as the primary oxygenate under the RFG program. First MTBE is relatively more cost efficient to produce than other oxygenates. MTBE is produced through the chemical reaction of methanol and isobutylene. Methanol (also known as methyl alcohol or wood alcohol) is derived from natural gas, and isobutylene is made from crude oil during the refining process by one of a number of processes including butane dehydrogenation of isobutane or the dehydration of tertiary butyl alcohol (TBA). Second, the production of MTBE could be undertaken by the existing oil production and supply network. Current oil refining facilities could produce MTBE and the existing system of pipelines, tankers and trucks could transport MTBE-blended fuels with ease. Consequently the use of MTBE serves a two-fold purpose for oil companies —— one, helping to dispose of byproducts (isobutylene) associated with refining oil into gasoline at minimal cost; and two, keeping the cost of the end of product — gasoline — relatively low while still meeting the mandate of the RFG program. 93 Alcohol-based fuels, on the other hand, could not be produced as easily for a number of reasons: one, the production of alcohol-based fuels relies upon a large surplus of biotic stocks (corn, the primary type of alcohol -based fuel produced in the US is not in plentiful supply to cover but a fraction of domestic needs); and two, the production of alcohol ~based fuels requires a different technology than conventional fuels or ethyl- based blended fuels, including the need to build new production facilities and new transport technologies, all at a substantial cost. As stated previously, at the peak use of RFG only about fifteen percent of supplies were met by alcohol -based fuels; this was mainly due to the use of existing alcohol -based production facilities as well as federal subsidies to offset operation and deliver costs in the Midwest US com-producing states. So by mapping this agential network, one begins to see the role of material agency in the network unfold. Economic decisions are also and always about political decision making and, as we see above, political decisions are also about the material constraints and enablements within the agential network in which these decisions are made. This constraining and enabling is material agency in action and an important illustration of how material agency is enacted within the agential network. Consequently social agency cannot proceed intra-acting with the material agents in the agential network; consequently, these mutually emergent conditions are such that inadequate understanding of the material agents involved can have profound effects. In the case of technological disasters as well as environmental toxins, the consequences for an inadequate understanding of the agential network can be for society — and the body — not only significant but fatal. 94 Conclusion: Agential Networks, Material Agency and the Trouble with Environmental Problems, or When Nature “Misbehaves” Who speaks for the jaguar? Who speaks for the fetus? Both questions rely upon a political semiology of representation. Permanently speechless, forever requiring the services of a ventriloquist, never forcing a recall vote, in each case the object or ground of representation is the realization of the representative’s fondest dream. As Marx said in a somewhat different context, “They cannot represent themselves; they must be represented.”49 But for a political semiology of representation, nature and the unborn fetus are even better, epistemologically, than subjugated human adults. The effectiveness of such representations depends on distancing operations. The represented must be disengaged from surrounding and constituting discursive and non-discursive networks and relocated in the authorial domain of the representative. Indeed, the effect of this magical operation is to disempower precisely those—in our case, the pregnant woman and people of the forest—who are “close” to the now-represented “natural” object. . ..The represented is reduced to the permanent status of the recipient of action, never to be a co—actor in an articulated practice among unlike, but joined, social partners. ---Donna Haraway, The Promises of Monsters: A Regenerative Politics for Inappropriate/d Others” The issue of what constitutes an environmental “problem” can illicit some important, yet often unanswered, questions. For instance, how does the environment speak? Who speaks for it? Who allows the environment to speak? How is a “problem” delineated and demarcated from a non-problem? What agents are involved in the production of environmental problems? Which agents—experts, lay persons, subjects, and objects—must be enrolled in the agential network for problems to be (or become) significant, pressing and real and, therefore, a risk to society (Wynne 1996; cf. Rosa 1998)? These processes, through which an environmental problem becomes produced, ’9 Marx, The Eighteenth Brumaire of Louis Bonaparte. Quoted by Haraway fi'om a quote by Said (1978: XIII). 5° Haraway (1992). 95 identified, demarcated and defined as a problem are important embodiments of agential networks of social and material agency that produce, reproduce and navigate socio- material conditions. However as Haraway contends in the above quote, we must avoid representations in which the represented are “reduced to the permanent status of the recipient of action.” As others have illustrated (Barad 1998a, 1998b, 2007; Callon 1986; Latour 1987, 1993, 2005; Pickering 1993, 1995), material agents are active within the agential networks of their own existence, similar to — and no less important than — the role of human agents in the agential networks of their existence, regardless of if and how they are represented (and, of course, they are always represented). In the past most research illustrating material agency — led primarily by sociological and anthropological studies of science and technology — has been concentrated in examining the world of the laboratory or developing expositions on the interface of human-machines. Interestingly, in the case of the laboratory the central reason for establishing such a controlled environment was to account for, and to reduce the agency of material objects so as to not interfere with the purpose at hand — whether that be creating a vacuum or understanding the behavior of quarks or microbess I On the other side, research on the development of human-machine interfaces attempt to control (primarily, through the effect of reducing) social agency by relying upon the interface of material agents to provide consistent, predictable outcomes. However as many science and technology researchers have illustrated often these attempts fail to recognize, or to 5' See Shapin and Shaffer (1985) for an excellent discussion of the politics of the laboratory in the construction of the vacuum by Boyle, and the important role of material agency and reducing the effects of material objects to study “natural processes”. Also see Latour and Woolgar (1986) and Latour (1983, 1993b) for discussions of the construction of the laboratory as an artificial environment for the production of science. For an interesting perspective on the literal and figurative configuration of science, including laboratories, see Galison and Thompson (1999). 96 account for, the elements of social agency in the process including how social assumptions about the world can be, or are, built into the machines we produce. And while these machines are typically produced to reduce social agency — in effort to reduce error and increase efficiency - in the end they are not just mere reflections of the sociality of our world, but they can actively reproduce (or newly produce) error and inefficiency as normative outcomes of these interfaces (Perrow 1984; Vaughan 1988). As Suchman points out, with regard to engineering and its relationship to social agents, machines have reigned supreme: Far from being excluded, “the technical” in regimes of research and development are centered, whereas “the social” is separated out and relegated to the margins. It is the privileged machine in this context that creates its marginalized human others (2007, 269-70). Laboratories, on the one hand, are produced to decrease material agency and increase social agency; machines, on the other hand, are produced to decrease social agency and increase material agency — and yet in each case, as had been extensively documented by SKAT and feminist science scholars, the inextricable link between social and material agency — in their mutually productive emergence — cannot be fully overcome. In the case of environmental problems, an understanding of the link between social and material agency is not only necessary but fundamental to the production of socio-material conditions (Smith 1984; see also Castree and Braun 1998; Braun and 97 Castree 2005). Historically within environmental research this has clearly not always been the case: early work in natural history assumed a division between nature and society, creating an artificial tension between the world as it existed prior to humans and the world after human intervention (Marsh 1864)(cf. Denevan 1992). Nature was something that had meaning and consequence inscribed upon it by human action; humans had the power to change nature, but nature’s power was more ephemeral, yet more brutish and less contrived due to its deep historicism vis-a-vis human existence. Nature has had very little regard for humans and human society, or so the story goes; but as many environmental historians have illustrated, conceptions of nature have been deeply imbibed with both conceptions of ourselves and of others (and “Others”) (Merchant 1980; Cronon 1991; Crosby 1972; Haraway 1989; White 1995). These conceptions have as much to do with how we conceive of ourselves as they have to do with “nature-out- there” (Haraway 1989, 1992). Nature is neither a “blank slate” nor “pristine”, whether that is first nature or second nature (cf. Smith 1984). Nature-society has always been about mutually emergent production involving material and social agents. Further, human-environment intra-action has always been a mutual struggle to overcome the agency of the other; but, similar to the laboratory and machines, “overcoming” this agency can never be fully achieved. Herein lies the importance of material agency - similar to our inability to fully account for the social agency of agents, we can never fully account for the material agency of agents. The predictability of human and non-humans alike is never a precise science; all understandings are a complex meldings of scientific and interpretive practices. Examining the role of both in the mutually emergent production of agential 98 networks is an imperative for any attempt to illustrate the trajectory of such agential networks with the hope of at least partially accounting for the agency of material and social agents. Further, drawing upon Haraway (1988, 1991, 1992), we must recognize that all accounts can only be partial at best; but nevertheless the more viewpoints that are examined the better our view along the agential network — and these perspectives must always include material as well as social agents. Environmental Sociology and Science, Knowledge and Technology Studies: What Role for General Sociological Theory? (Can We Teach an Old Dog a New Trick?) Nature, environment, context, location, space — all of these concepts are both literal and figurative embodiments of structure and agency; but these embodiments are no more or less “real” or “material” in the figurative sense, nor more or less “social” in the literal sense. The investment of bodies with social and material agents is simultaneously literal and figurative, and both have had profound effects on our bodies and our environs.52 Consequently, general sociology (and its various other subfields) may have a great deal to gain from a sociological conceptions (involving theoretical as well as practical approaches) of the intra-action between material and social agency with regard to environmental conditions (i.e., drawing upon works in environmental sociology, as well as science, knowledge and technology studies). The co-construction of nature and society depends upon the actions and representations of both social and material agents, and the actions of one always has profound effects and consequences on the actions (and reactions) of the other; they are always mutually emergent in their production of agential networks. Contemporary ’2 Literal and figurative embodiments are outcomes of agential networks, which are themselves the mutually emergent products of the intra-action of social and material agency. 99 research in the environmental social sciences has begun to engage nature and society are mutually linked and emergent, but much of this work has placed more emphasis on society-nature dualisms than issues surrounding social and material agency (or at least the absence of explicit discussions about their relationship). However this author suggests that these two conceptual models — nature-society and social-material agency - are similarly inextricably linked, and any discussion of material agency and its role in the agential networks of environmental problems necessarily acknowledges these linkages and their inseparability. Consequently most environmental social science has implicitly engaged material agency; however, if we are to provide firller accounts of environmental problems, and if we are to move from descriptive to prescriptive narratives with regard to these issues, we must address, or “get real” about the role of material agency in co- producing agential networks. So after much discussion of agency the conversation necessarily returns to the issue of structure, and what this author refers to as “agential networks”. Drawing upon Emirbayer and Mische (1998), it is clear that agency must be enacted within agential networks, which incorporate both fields of power and relations of power. The embeddness of agency within agential networks should be without question, as this author has attempted to illustrate; what is at question is the role of material agents in effecting these networks through fields of power and relations of power. As this author has attempted to explicate, a theory of material agency - coupled with existing theories of social agency — is not incongruent to most general sociological theories of agency (Archer 2003; Emirbayer 1997; Emirbayer and Goodwin 1994; Emirbayer and Mische 1998; Fuchs 2001; Giddens 1984; Hays 1994). On the contrary, 100 as has been demonstrated previously (Ashmore, Wooffitt and Harding 1994), and as this author has attempted to elaborate on in this work, agency is necessarily social and material. Numerous researchers in various social fields of inquiry have been hard at work illustrating this point for over two decades (Barad 1996, 1998a, 1998b, 2000, 2001, 2007; Butler 1993; Callon 1986; Callon and Latour 1992; Callon and Law 1997; Castree and Braun 1998; Dietz and Burns 1992; Haraway 1988, 1991, 1992; Jones 1996; Latour 1987, 1993, 1994, 1999, 2005; Law 1986, 1999; Pickering 1993, 1995; Suchman n.d.). As Latour has argued, one important task of social researchers — be those that study science and technology, environmental problems or other issues related to human- environment intra-actions — is to map these agential networks to understand how these intra-actions not only produce, reproduce and maintain themselves but also how to analyze and illuminate the existing conditions and potential consequences of these intra- actions. Latour (1993: 6) points out that these agential networks are multifaceted and are a complex melding of socio—material conditions that have important consequences and, therefore, should be taken seriously: Either the networks my colleagues in science studies and l have traced do not really exist, and the critics are quite right to marginalize them or segment them into three distinct sets: facts, power and discourse; or the networks are as we have described them, and they do cross the borders of the great fiefdoms of criticism: they are neither objective nor social, nor are they effects of discourse, even though they are real, and collective, and discursive. Is it our fault if the 101 networks are simultaneously real, like nature, narrated, like discourse, and collective, like society? (author’s italics) This author asserts that a combined theoretical and methodological fusing of a symmetrical approach to agential reality, as espoused by ANT theorists as well as Barad and Haraway and drawing upon other important works on agency including Pickering’s “mutually emergent production”, provides an efficacious fi'amework for exploring the socio-material agency of agential networks without either falling into the ontological trap of ascribing intentionality to material entities nor ignoring the role of material agents in mutually producing these networks. As Perrow (1984) has demonstrated, an understanding of the intentions of human actors is not sufficient (nor entirely necessary) for illuminating the potential effects and consequence of the dynamic intra-action between agents within highly complex systems. This author has attempted to identify that assuming material agents (being understood as “fixed, immobile, and immutable”) merely “resist” social agents may fail to capture the manner in which agential networks intra-act in the world (cf. Pickering 1993, 1995). Accounting for material agency is more than just taking nature seriously; it’s about accepting, chronicling, anticipating, and, most importantly, accommodating its role in the world we share. If Mazur’s (1998) conception of environmental problems as exhibiting a “Rashomon effect” involving multiple and various perspectives, none of which are necessarily congruent nor adequate to the task of establishing “the truth” in regard to the events which gave rise to the particular environmental conditions is accurate, then why 102 shouldn’t the role of material agents be investigated as not only duplicitous in constructing additional and alternative viewpoints but also examined with regard to their role in producing the very conditions themselves. As we should know by now, all perspectives are merely partial and transitory, and always socially-embedded and socially-situated in the very agential networks that allow “us” to see “them” (Haraway 1988, 1991, 1992); but these perspectives are materially-embedded and materially- situated as well. Seeing “them” is about taking material agency seriously and “getting real” about environmental problems. Unless we adopt such an approach, society will continue to hold on to “nature”, “science”, and “tru ” as false prophets. And, as Haraway (1992) has so eloquently and forcefully chronicled, the proliferation of “monsters,” and the “promises” they engender will remain. 103 CHAPTER THREE Toxic Decisions: The State, Industry, and Environmental Health under the Regulatory Reign of MTBE Without a doubt, MT BE is the star of petrochemical industry. -- March 30, 1992, Chemical Marketing Reporter” Protecting the MT BE industry fiom common law liability would undermine state and private efforts to remove widespread contamination fi'om our waters and to ameliorate the significant risks to human health posed by MT BE. Moreover, it would lead to numerous similar requests fiom manufacturers of other dangerous products, seeking Congressional immunity from liability regardless of the risks to public health The courts are the proper forum for determining whether harmful products are “defective in design or manufacture, ” and there simply is no basis for creating a special exemption to the general rule solely for the benefit of MT BE manufacturers. -- a letter dated June 16, 2003, sent to US Senator Barbara Boxer (D-CA), Chairwoman, US House Committee on Environment and Public Works, signed by the attorney generals of 13 US statess4 No court has ruled that gasoline with M. T.B. E. is a defective product... This settlement does not concede the point. Quite the contrary, the settling companies are prepared to vigorously defend the product. -- Rick Wallace, the attorney representing Chevron and Shell in a multimillion dollar class action suit settlement against the two oil companies for MTBE contamination in 17 US states, quoted in the New York Times, May 8, 2008” Introduction In May 2008 eight multinational oil companies agreed to a settlement of $423 million in direct cash payments as well as financing for up to 70 percent of the cost of clean up efforts over the next 30 years regarding the contamination of public water supplies by methyl tertiary butyl ether (MTBE), a chemical additive blended with gasoline to increase its oxygen content and reduce harmful air pollution.56 This ’3 Naude, Alice. 1992. “MTBE: The Art of the Deal.” Chemical Marketing Reporter. 241(13): 1. 5‘ http://www.oag.state.ny.us/environment/MTBE_oppo__letter.pdf ’5 Mouwad (2008) ’6 In August 2005, President Bush signed the Energy Policy Act of 2005 (Public Law 104 settlement remedied in part a class action suit brought in federal court by 153 public water systems in seventeen US states, including the two states with the largest populations, New York and California. Six additional oil companies named in the suit, including the world’s largest, Exxon-Mobil, did not agree to the deal. This settlement, the largest in the history of MTBE litigation, was the latest in a series of court cases against oil companies with regard to MTBE contamination. While these settlements had provided some legal and financial remedy to efforts by local water supply systems and their associated state agencies to recoup costs associated with the mitigation and remediation of MTBE pollution, these suits have not (and cannot) provided the complete story of MTBE contamination in the US.” This paper does detail important interactions within and between the organizational cultures of the agencies responsible for the oversight of MTBE contamination, including how the processes and effects of these organizational cultures enabled and constrained attempts to remedy MTBE contamination of water supplies in two US states (New York and Michigan).58 109-58). As a result of the act the federally mandated reformulated gasoline (RFG) program and the associated oxygenate requirement was eliminated. ‘7 Throughout the paper I discuss the role of the federal, state and local governments in regulating environmental and public health issue. However I use the term “the state” in reference to all forms of government at the various levels as they exist as a set of interdependent bureaucratic institutions, but I will reserve the term “state” for the state-level governments under the federal system. When I refer to the United States government 1 will use the term “US government” or “federal government”, or 1 will identify specific federal agencies. 5 The two primary sources of water supplies in the US are surface waters, accounting for only 10% of supply systems but serving over 66% of the US population, and groundwater, accounting for 90% of supply systems but serving only 33% of the US population (US EPA 2003). There are three main systems in the US as defined by the Safe Drinking Water Act (SDWA) are: a) public water supply systems (systems that have piped water serving 25 persons or 15 service connections for at least 60 days each year - these systems can be publicly or privately owned); b) community water systems (systems that serve people year round in the homes); and c) domestic water supply systems (used in individual households). All three types can rely upon either surface water or groundwater, or a combination of both, for their water needs. Only the public water supply systems and community water supply systems are regulated by US EPA under the SDWA. However for the purposes of this paper I will the term “public water supply system” to refer to either public water supply systems or community water supply systems as defined by the SDWA (and it should be noted that in my research the systems under investigation are only public owned water supply systems); on the other hand, I will use the term “domestic water supply systems” to refer to private wells 105 Premise of the paper This paper illustrates the organizational implications and consequences of the current jurisdictional and functional relationships between federal, state and local environmental regulatory agencies. My research attempts to assess the efficacy of the primary public agencies (at the federal, state and local levels) vested with the establishment and enforcement of environmental protection through regulatory policies and practices. In this paper I will explore the MTBE controversy through two conceptual perspectives on environmental management and regulation and government responsibility: 1) an examination of the slow, creeping, and silent physical and social characteristics of MTBE pollution and the consequences of these characteristics on federal, state, and local-level responses to the contamination of public and domestic water supplies; and 2) an assessment of claims made by a number of environmental regulatory scholars regarding new federalism and the decentralization of the responsibility of environmental management, regulation, and remediation from the federal government to state and local governments (and their agencies). To do this I use a comparative case study approach, utilizing the following methods: a) an historical and comparative analysis of archival documents including national, state and local media sources, and policy and research documents; and b) semi- structured, intensive interviews of key organizational actors. The four (4) case studies of MTBE contamination of public water systems and private wells are the following: two (2) cases involving the state of Michigan (the city of Cadillac, a public water system, and for individual households. Approximately 268 million people rely upon public water supply systems for their water needs (US EPA 2003). 106 a neighborhood in Independence Township, involving private wells) and two (2) cases involving the state of New York (the Greenbush neighborhood in the town of Hyde Park, involving private wells, and the city of Albany, involving a public water system). First, I discuss past research on the growing number of environmental crises throughout the US. Second, I discuss various works that examine the organizational cultures of environmental management organizations, paying particular attention to how these theoretical and substantive perspectives informed my research on how and to what extent the organizations under study responded to MTBE contamination of water supplies. Third, I will illustrate works by a number of environmental regulatory researchers that describe the changing regulatory relationship between the federal government (and its associated agencies) and state and local government (and their associated agencies). Fourth, I will examine the history of MTBE use in the US, including its use in the federal reformulated gasoline (RFG) program. Fifth, I illustrate my research methodology including a detailed description of each individual case. Also in this section I examine and analyze the various responses by state and local government environmental agencies in their attempts to address MTBE contamination of water supplies. Sixth, I will provide some reflections on the overall results and their implications for identifying and addressing the organizational relationships of the current environmental regulatory system within each state. Lastly I will link my theoretical and methodological ideas to the results of my case studies in an attempt to further draw together the important relationship between environmental social science approaches and their use in identifying and analyzing public policy processes and outcomes. 107 With this research I attempt to establish a synthetic approach to the study of environmental issues in multiple, varying contexts, drawing upon what Szasz (1994) refers to as an “issue history” to environmental problems. Further, I attempt to develop an organizational approach to the understanding of environmental problems as related to human-induced disasters of a “silent, creeping” and long-term “accumulating” nature (Beamish 2002).59 Through the lens of these organizational perspectives I will address the question of whether the nature of certain organizational cultures is such that human induced disasters are inherent to certain systems and based in concepts such as “normal accidents”, “routine regulatory failure”, and a “culture of silence” regarding “cresive troubles” as illustrated by Perrow (1984, 1997), Szasz (1994), and Beamish (2000, 2002a, 2002b). Further I will address the issue of federal-state-local government relations and the question of the “decentralization” of environmental management, regulation, and remediation from federal to the state and local government, as posited by Rabe (2003), and under the framework that Lester (1995) refers to as “new federalism.” This work attempts to contribute to both environmental sociology as well as more general interdisciplinary works in the environmental social sciences and regulatory policy and environmental management. I also attempt to advance comparative case study research by using a mixed methods approach (historical, archival, and qualitative methods). I also anticipate that my conclusions will be of use to federal, state and local environmental regulators, and local communities and their residents as they continue to strive to work together in establishing and enforcing environmental regulatory standards to protect public health. ’9 Here I wish to acknowledge the work of Turner (1978) and his important contribution of “man-made disasters”. However 1 have chosen to employ the term “human-induced” to avoid a gendered bias to such events and the associated contributing actors. 108 The Study of Environmental Problems: An Organizational Approach The number and impact of environmental problems in the United States has grown dramatically over the past fifty years (Hays 1987, 2000; Mangun and Henning 1999; O’Connor 1998; Schnaiberg 1980; Vig and Kraft 2003). Some have been adequately resolved through regulatory action (Durant 1985; Mintz 1995; Nakamura and Church 2003), while others are still awaiting remedy, a consequence of either ineffective bureaucratic institutions or inadequate scientific information (DeLong 2002; Landy et al. 1994; Powell 1999). Social scientific arguments about the cause of these crises range from explanations such as the “tragedy of the commons” (Commoner 1971; Hardin 1968) to the rampant and unchecked industrialization of “treadmill” processes (Schnaiberg 1980; Oliver 2005) to fiscal crises as precepts to environmental crises (O’Connor 1998) to the disruption of natural processes by humans such as the “metabolic rift” as described by Marx (Clausen and Clark 2000; Foster 1999, 2000). More recently theories of modernization have attributed environmental destruction to shifts in the nature of modem institutions and their relationship to ecological society. These perspectives include the reflexive modernization theory of risk society by Beck (1992, 1995, 1996) and ecological modernization theory of M01 (1995, 1997) and Spaargaren (1992; with M01), as well as various approaches to the relationship between production technologies and wealth production (Cable, Shriver, and Mix 2008). Perhaps the most important development in recent sociological work on environmental problems is the emerging synthesis of work in environmental sociology, science and technology studies and the sociology of organizational decision making. 109 Environmental sociology has long emphasized the importance of localized environmental problems and community mobilization (Buttel 1978; Buttel 2002; Buttel et al. 2002; Catton and Dunlap 1978; Dunlap 2002; Dunlap and Catton 1979, 1983; Schnaiberg 1980). The literature in science and technology studies has introduced a critical analysis of the use of risk assessments in making decisions about hazardous technologies (Bimber and Guston 1995; Cozzens and Woodhouse 1995; Gieryn 1995; Lewenstein 1995; Martin and Richards 1995; Nelkin 1995; Wynne 1995).60 Most recently organizational sociology has contributed to our understanding of how environmental crises are defined and managed (Beamish 2000, 2001, 2002a, 2002b; Ehrenfeld 2002; Frank 2002; Hironaka and Schofer 2002; Levy and Rothenberg 2002; Mendel 2002; Morrill and Owen-Smith 2002; Scott 2002; Starik et al. 2000). Scott (2002) argues that an institutional perspective on environmental organizations as afield of interaction, as opposed to the study of particular organizations, has two distinct advantages. First, by studying the interaction of organizations “. . .an enriched social world is depicted, including (that of) competitors, partners, and various types of funding and governance units. In short, the dyadic relation linking regulatory agency and target organization is shown to be embedded in a broader social environment” (2002, 456). The second advantage of an institutional perspective is that researchers are able to identify the “broad array of control mechanisms at work in all fields. In addition to regulatory processes, organizations are variously subject to 6° 1 refer to the broader field of science and technology studies (ST&S) but do so in an effort to avoid the more narrow science and technology studies (STS) of Latour (1987), Callon (1986) and Law (1987)(cf. Hess 1997). While not adverse to their work, I find many of the more contemporary and broader works of the field to also be of particular interest in identifying the ST&S aspects of environmental crises. 110 competitive or market forces, normative constraints, and cultural-cognitive controls” (2002, 457). Scott (2002, 461) concludes, An institutional perspective supports a broader and longer view of organizational and social change. It encourages us not to restrict our attention to the legal or regulatory aspects of environmental controls, but to consider also the changing normative systems and cultural-cognitive frames. . .Until recently, (institutional researchers) have done little to advance attention to and analysis of this broader view of organizational-environment interdependence. But efforts are now under way. Landmark studies have been carried out that provide the underpinnings of a necessary scholarly base. ...If all goes well, these early efforts will. . .produce specialists who will devote their careers to enhancing our knowledge of organizations and the natural environment. One common thread within each one of these theoretical perspectives is the role of bureaucratic institutions in regulating environmental conditions. While some perspectives may place more emphasis on industry than others, all emphasize the important role of the state and its institutions in either establishing environmental policies and practices, or having a significant impact on environmental management and enforcement. In this study I attempt to draw upon Scott’s concept of a field of interaction involving institutional and bureaucratic organizations in environmental management as well as the actors associated with these organizations. By linking individual 111 microsociological perspectives with macrosociological processes in a field of interaction, the study of the MTBE controversy can used to illuminate important issues at the various scales involving federal, state, and local government and agencies. In this next section I will relate Scott’s concept of a field of interaction to various other sociological approaches to the study of organizational cultures with these fields. Organizational Cultures, Crescive Troubles and Normative Failures: When Environmental Problems Slowly Creep Along In his book, “Silent Spill,” Beamish (2002: 1) refers to the largest petroleum spill in US history as a “. . .result of leaks and spills that accumulated slowly and chronically over thirty-eight years,. . .” He also chronicles how an oil company covertly released between 8 million and 20 million gallons of crude oil into the Guadalupe, California dunes and its surrounding environs. His work illustrates how oil company engineers, field personnel, and executives knew of the on-going leak, and yet regulators and the public appear to have either been oblivious to the spill or, in some instances, chose to turn a blind eye, possibly as a consequence of the importance of the oil company revenues and employment to the local region. Eventually Beamish demonstrates how this spill slowly and unceasingly overwhelmed the local environment causing widespread contamination but doing so without raising any regulatory alarms or public concerns for over 30 years. Widespread contamination of the US public and domestic water supplies by MTBE is similar to the Guadalupe spill described by Beamish in a number of important ways. First, MTBE is a product of oil refining and produced by the major oil companies. Consequently similar the Guadalupe spill, MTBE use and its associated water contamination issues as a consequence of a complex “field of interaction”, such as that 112 described by Scott (2002), involving the organizational cultures of the oil industry, their lobbyists, the federal, state, and local governments, and the public (and its need for energy). Second, similar to the oil spill, MTBE slowly and almost silently made its way into surface waters, groundwater, and domestic wells in all 50 US states over a 30-year period, potentially affecting the usable water supplies of over 70 million people.6| The estimated cost for the clean up of MTBE-contaminated sites and associated water supplies range from a low of $2 billion to high of over $200 billion (API 2005; AWMA 2005; AWWA 2005). Beamish (2000, 2002a, 2000b) makes the distinction between acute environmental problems and “crescive troubles.” He asserts that most environmental regulatory agencies are organized with specific guidelines for addressing acute environmental problems — those environmental disasters that have immediate and relatively widespread and yet geographically contained consequences, and impacts that are readily identifiable by some set of scientific and technical operations (and thereby typically measurable or quantifiable, based on some existing metric or unit of equivalence). Crescive troubles, on the other hand, are environmental problems that grow by gradual accumulation, typically unnoticed, for years and even decades. These problems typically “. . .surface as a crisis at the end of histories of inattention” (Beamish 1992, p. 151). Beamish argues that one important characteristic of crescive troubles is their relations to organizational culture (or cultures) that fail to acknowledge and respond to issues and their respective ‘signals of danger’ as they accumulate slowly over long periods of time. Beamish asserts that much of the organizational culture established to 6' Estimates range from 70 to 130 million people that have been or potentially will be affected by MTBE contamination of water supplies (McCarthy and Tiemann 2006). 113 remedy environmental disasters has been structured to respond only to acute and immediate issues, and not chronic, crescive troubles. Consequently these agencies are inherently unable to respond to such situations by virtue of an organizational culture that is unprepared and inherently inflexible in its internal organizational and intra- orgarrizational relations. MTBE is just such a problem: however, one distinction between the crescive troubles involving the Guadalupe spill and those of the MTBE controversy was that the latter not only grew gradually and accumulated over time but also involved pollution issues on much larger and more expansive geographic scale, involving not one specific location but thousands of sites throughout the US and potentially affecting millions of people. Still, similar to Guadalupe, these spills were only silent to local environmental and public health agencies, local water managers, and the public. In addition to oil company personnel, the federal government and its associated regulatory agencies, and numerous state technical personnel and government officials had access to the information that clearly indicated that MTBE contamination of water supplies was not only likely but was almost assured. Based on existing data regarding the significant number LUSTs throughout the US, coupled with the known solubility of MTBE in surface and groundwater, it seems high unlikely that not one individual involved in the production, distribution or regulation of MTBE anticipated or foresaw the potential for tremendous and widespread pollution of US water sources by the contaminant. 114 Routine Regulatory Failure and Toxic Icons Szasz (1994) provides a useful illustration of the relationship between the media, environmental policy, and perceptions and knowledge of the general public. Integral to his approach are two important theoretical concepts related to the construction of environmental problems as “problems”. One he refers to as routine regulatory failure, a complex field of interaction by which the organizational cultures involved in the process establish a field of regulatory institutions that are unable to anticipate and prevent environmental problems and do so as a normative part of their creation and existence. Szasz asserts that these conditions as best exemplified by the institutional regulatory setting involving the passing of the Resource Conservation and Recovery Act (RCRA) in 1976. Under the RCRA, the US Congress provided the first comprehensive national program to regulate the treatment and disposal of hazardous industrial waste. However Szasz illustrates how the organizational cultures and institutional setting, or field of interaction to use Scott’s (2002) terminology, was such that the RCRA had very little effective regulatory control over its adjudicated jurisdictional areas of environmental management and enforcement. Szasz argues that typically for an environmental problem to become of issue it must be widely perceived by the public as alarming or dangerous to human or environmental health. But in the case of the RCRA, hazardous industrial waste did not become a significant environmental issue or, more importantly, a compelling political or public issue until well after the implementation of the regulatory policy. Consequently, according to Szasz the events surrounding the RCRA provide a clear illustration of his idea of routine regulatory failure. Szasz contends that these events actively “conspired” 115 as a catalyst for the passing of the congressional legislation prior to the issue becoming of mass concern; the act was passed before public and political support for the new set of regulations were properly mobilized. As a consequence, the institutional and social settings were not conducive to the effective implementation of the act. The act and its associated policies and practices were therefore doomed to fail a priori and normatively. The other concept coined by Szasz is toxic waste as icon. This term is a reference to the rise of toxic waste as an important and salient issue for mass media, and therefore, public consumption. According to Szasz, in the past legislative action on environmental problems did not occur until the rise of the issue to public and, therefore, political significance. Szasz illustrates this idea with the following statement: To the degree that political messages are carried by images rather than words, so that meaning or signification takes place more through nonverbal spectacle than through narrative, the term political icon is a more appropriate expression for this occurrence. . .Political communication increasingly relies on the production and display of political icons rather than symbols, iconography rather than rhetoric, both because the means of communication require it stylistically and because it is assumed that displays of spectacular images are the only way to break through the indifference of the intended audience (author’s italics). Szasz demonstrates how toxic waste “rose” to national public prominence through the media. Initially toxic waste was an uninteresting story, primarily seen as a normative and therefore accepted consequence of the continuing industrial expansion of the US 116 economy over decades. Pollution was often viewed at its root to be a necessary evil to maintain US economic productivity and prosperity. Then during the 19603, environmental “scares”, such as those described by Rachel Carson in Silent Spring with regard to the dangers of DDT, began to take on new public significance. By the 19703, a majority of the American public agreed that environmental problems were of significant concern (Szasz 1994). Further, in the latter part of this same decade the proliferation of environmental social movements led to the increasing exposure of environmental problems to the news media. As Ssasz (1994: 41) argues, “Contamination protests were made for television.” This increase in media exposure held true for newsprint media as well. In his discussion of the contamination and protest surrounding Love Canal, NY, Szasz indicates that up until the toxic pollution was discovered there in 1978, the Carter administration and the US Congress were unconcerned with hazardous waste as a serious political issue. However, Szasz adds that the (m)edia coverage’s wonderful power attract and focus politicians’ attention was again demonstrated by events following the transformation of Love Canal from local to national event in August 1978. After that, both the [US] administration and Congress hurried to get in front of the issue, to appear to be leading the effort to make new policy to deal with this most alarming development (Szasz 1994: 52). 117 Through the media, toxic waste had now become such a significant public issue that it was eventually seen as an important political and environmental issue as well. Consequently, the federal government was forced to act. With the passing of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) by US Congress, toxic waste was codified as an economic, political, environmental, and, most importantly, social policy issue such that it could no longer be ignored by the government. Through its rise in importance within the media, and through the effects of this on public perception, toxic waste had become an “icon.” Drawing upon the Guadalupe spill — and contrasting this with Ssasz’s toxic waste as icon - I argue that the contamination of water supplies of MTBE lacked this media salience. MTBE was never a toxic icon on the scale of solid waste during 19703 and 19803. Other than a national report on the television news program 60 Minutes in 2000, and a short media half-life surrounding a potential safe harbor provision in congressional debates concerning the passage of the US energy bill in 2004-2005, MTBE has escaped most major news coverage for more than two decades.62 One possible reason for this has to do with the on-going debate concerning the dangers of its use; specifically its carcinogenic characteristics and toxicological effects as well as the perceived limited pervasiveness of the problem. Since most evidence provided during the 19903 and early 20003 indicated that the potential toxicity of MTBE was low except at very high levels of ingestion, and since most polluted wells had contamination levels well below this threshold, the issue of MTBE pollution was given a low media priority. Another possible reason for the low media exposure has to do with ‘2 The contamination of water supplies by MTBE was for the most part absent from the national media until the past decade; this was most likely a result of a number of state governments’ efforts to ban the substance. 118 the lack of information provided to state and local governments concerning the potential for MTBE to contaminate public and domestic water supplies. Until state and local environmental agencies began testing specifically for the substance, MTBE contamination had not been detected in a sufficient enough number of water supply systems to draw media and public interests. Environmental Policy and Regulation in the 21’t Century: Federal versus State Responsibility One important issue taken up by scholars of US environmental policy concerns government responsibility for environmental management, regulation, and enforcement.63 Kraft and Vig (2003) argue that currently environmental policy as at a "crossroads" in which two competing approaches are vying for power — one, environmental federalism and the other, the decentralization of environmental regulatory responsibility to the state and local levels. Fiorino's (1995) text offers an even more detailed analysis of environmental policy. Discussing first the institutional framework of regulatory policy and then identifying the role of various institutions including the US Congress, the executive branch, the judicial system as well as intergovernmental and nongovernmental organizations, Fiorino illustrates how the regulatory process is both highly structured and ‘3 I would add to this list the “remediation” of environmental problems. However there are a number of reasons why this could be considered distinct from the other three concepts (management, regulation, and enforcement) with regard to MTBE pollution of water supplies. One, MTBE pollution issues have been widespread and acute, due to issues associated with water quality and potability, and consequently often state and local governments were forced to respond prior to any assessment of liability to a specific party (or parties). Subsequently state and local governments were forced to expend state resources in MTBE clean up. Two, the perception of the problem being a consequence of a direct political action - the use of MTBE being associated with federal and state RFG programs - translated into the public expectation of a direct government response to remedy existing acute water quality issues. Third, the relative dearth of clinical studies regarding the health risks of MTBE contamination of water supplies meant that government inaction may have led to future litigation against state and local governments - brought by affected citizens - if new clinical research was to discover any linkage between MTBE contamination and public harm. 119 often paralyzing convoluted. Arguably this paralysis can be applied to state bureaucratic agencies as well. Ringquist (1993) illustrates the role of US states in environmental regulation as well as the relationship between states and federal environmental regulatory agencies. Ringquist argues that the Reagan Administration ushered in a shift in responsibility for environmental regulation from federal agencies to state governments. This "new federalism" sought to "give" more power to states to regulate their own environments but ultimately had the effect of decreasing the federal government's costs of environmental regulation and passing it on to the fiscally-strapped state governments. Consequently instead of increasing the states capacities to regulate their environment, the policy shift worked to undermine their power and decrease their effectiveness, further jeopardizing the health and welfare of their populations. Laskowski, Morgenstem and Blackman (2005) attempt to illustrate the past and current relationship between the EPA and state environmental agencies, especially with regard to the decentralization of environmental management and the push by EPA and US government to "reinvent" the federal-state relationship. Lester (1995) discusses the role of "new federalism" is redefining the relationship between the federal government and state and local governments in regard to environmental policy and regulation. Lester argues that there have been three important shifts under this new federalism: a) the implementation by states of environmental laws enacted during the last three decades; b) a greater significance has been placed on intergovernmental relations; and c) a fundamental restructuring of the "institutional capacities" within states that has dramatically affected their ability to implement federal 120 programs. Lester concludes that the success of individual states in managing environmental quality is directly related to two characteristics — one, a particular state's specific commitment to environmental management, including making it a political and therefore budgetary priority; and two, the state’s existing institutional capacity to resolve environmental quality issues. While only briefly discussing the importance of environmental policy in conjunction with individual state governments, Teske (2004) does provide a thorough general view of the role of the states in regulatory policy. Teske argues that understanding the role of states in regulatory policy is important due to a recent re-emphasis on reducing the role of the federal government in regulating industry and the environment. In a similar vein, Rabe (2003) asserts that decentralization of environmental policy making power to the state level has had mixed results. Rabe argues that initially the disposition of individual state governments was such that the federal environmental policy makers felt it unnecessary to cede power to the state level for environmental management. However over time the federal government has been not only willing but actively asserting a restructuring of the role of state governments in environmental management, especially with regard to fiscal responsibility. In conclusion, Rabe argues that there needs to be a better integration of both federal and state oversight and more cost sharing, especially between the federal government and states without adequate resources to enforce environmental statutes. He adds that states should develop a system of cross-state cooperation to help mitigate the increasing number of common boundary environmental problems. 121 One of the fundamental questions I attempt to address in this study is this relationship between federal government and their associated agencies and state and local government (and agencies). Was the fundamental responsibility for the regulation, enforcement, and remediation of MTBE contaminated water supplies placed upon state and local government? What was the role of the federal government is this process (if any)? 13 there any evidence for Lester’s “new federalism” in regard to MTBE contamination? In this research I attempt to directly assess two of Lester’s contentions regarding the effectiveness of state-level environmental management: a) each state’s political and budgetary commitment to environmental problems; and b) each state’s institutional capacity — in the form of what I refer to as “organizational culture” — to resolve environmental issues. Couched within this is my assessment of Rabe’s assertion regarding the necessity for cost-sharing between federal and state governments to facilitate effective environmental management. Now I will turn to a historical, descriptive narrative of the problem of MTBE. When Solutions Become Problems: The Use of Methyl Tertiary Butyl Ether The use of MTBE in reformulated gasoline (RF G) in the United States is the consequence of a complex set of relationships involving public regulatory policy, energy policy, science and technology, corporate and political decision making as well as other political economic influences.64 MTBE was introduced into US gasoline supplies in 1979 as an octane booster to reduce air pollution issues associated with the combustion of 6’ Reformulated gasoline (RFG) is gasoline specifically mixed to reduce harmful exhaust emissions during combustion by either increasing the oxygen content and/or lowering the Reid Vapor Pressure (RVP). Additionally gasoline additives (including some forms of oxygenates) act to inhibit corrosive characteristics allowing for higher compression ratios for greater engine efficiency and power. However there are a number of different firel additives used in gasoline supplies; but not all gasoline is RFG. 122 fuel from automobile engines.65 Then in 1990 the US Congress with the support of President George H.W. Bush enacted the Clear Air Act Amendments (CAAA of 1990). These amendments included the establishment of a federal RFG program intended to substantially reducing carbon monoxide emissions and the volatile organic compounds (V DC) and nitrogen oxides (N 0,) that react with other pollutants to form smog (McCarthy and Tiemann 2003). MTBE was chosen as the primary oxygenate used by most oil refiners to produce RFG. Under the CAAA, 39 cities - referred to as “non-attainment” areas — were required to use gasoline that contains oxygen at 2.7% by weight. About 80% of this oxygenate requirement was met by MTBE, with the remainder met through the use of ethanol.66 The RFG program was mandated in nine major metropolitan areas with the worst air emissions issues. Most cities chose to use RFG using MTBE. However, Chicago and Milwaukee chose to use ethanol instead of MTBE. Many additional areas voluntarily joined the RFG program (under the RFG “Opt-in” program); in total MTBE was used in 17 states and the District of Columbia under the federal RFG program.67 California alone, with a population of over 30 million, at the peak of the federal RFG program, accounted for over thirty percent of MTBE use. The US counties that were mandated to use MTBE-laden RFG have a combined population of nearly 70 million (McCarthy and 6’ Initially MTBE was used as replacement for lead (tetraethyl lead) in gasoline to reduce knocking and also to boost octane levels for higher grade gasoline sold in the US as mid-grade and supreme quality fuel. "6 About 1% of the RFG requirement was met by other ether-based oxygenates (ethyl tert-butyl ether, or ETBE, Tertiary amyl methyl ether, TAME) or other alcohol-based oxygenates (methanol) at various times during the RFG program. 67 There were four (4) classifications under the federal RFG enacted by 1990 CAAA (and implemented in 1995): a) mandated non-attainment areas requiring RFG; b) areas not mandated as non-attainment areas but who voluntarily chose to use RFG (“Opt-in” areas); c) areas that voluntarily chose to use RFG but then chose to stop using RFG as some point (“Opt-out” areas); and areas without any RFG requirement (or voluntarily using another form of fuel, such as gasoline with a lower RVP, to meet their non-attainment goals under their state implementation plan, SIP) 123 Tiemann 2003). But since MTBE-laden RFG was sold in many areas not specifically mandated for its use, the number of people at potential risk is most likely significantly higher. Further, some researchers argue that the RFG program has had little effect on levels of harmful emissions, crediting instead other programs unrelated to the RF G requirement (McCarthy and Tiemann 2003). MTBE has the dubious distinction as one of the top chemical polluters of groundwater and surface water throughout the country. While MTBE can enter surface and groundwater supplies due to spills and handling issues in transit, the primary cause of water contamination is leaking underground storage tanks (LUSTs).68 There are approximately 626,000 federally regulated active underground storage tanks (U STs) in the US that store hazardous substances including fuels (US EPA 2008).69 Since 1985 federal and state LUSTs clean up program throughout the country have remediated over 350,000 leaking tanks. However, in September 2006 federal and state officials confirmed that between 1985 and 2006 more than 465,000 UST sites have experienced some form of leakage. Further, the same records indicate that there are 436,000 sites in the process of remediation and 351,000 sites in which cleaned up have been completed. But this still leaves approximately 32,000 sites nationwide in which remediation has yet to have been initiated (GWPC 2008). Initial estimates indicated that the additive could be found in groundwater and well water in 17 states and 82 counties, affecting areas with a combined population of over 55 million (Johnson et al. 2000; McCarthy and Tiemann 2000; Public Citizen 2001 ). However, more recent data identify 44 states that have reported groundwater 6‘ Also referred to as leaking underground fuel tanks (LUFTs). 69 US EPA estimates there are an additional 3 to 4 million USTs are exempt from federal regulation (US EPA 2006). 124 contamination by MTBE; other estimates indicate that all 50 US states have a least some level of MTBE contamination of either soil or water sources (Stephenson 2002). By 2002, a US Geological Survey report found MTBE in 86 percent of wells sampled in industrial areas, 31 percent sampled in commercial areas, 23 percent in residential areas and 23 percent in areas of mixed urban land use, parks, and recreational areas. Additionally, 24 states have found MTBE present in groundwater over sixty percent of the time when they sample (Stephenson 2002). Estimates of the cost of MTBE clean up range from a low of $1 .5 billion (reported by industry sponsored study by the American Petroleum Institute, or API) to a mid range of $25 to $35 billion to a high of $85 billion, with the latter cost based on a reduction of contamination levels to less than 1 part per billion (1 jig/L) (American Metropolitan Water Agencies 2005; American Water Works Association 2005). Toxicologically MTBE has been associated with numerous physiological effects in humans including dizziness, nausea, and headaches. Many researches have argued that when ingested MTBE is a significant carcinogenic risk, even when consumed at very low levels (Joseph 1996a, 1996b; Health Effects Institute 1996; Mehlman 1998, 2000). Nevertheless, for years the US Environmental Protection Agency (US EPA) did not list the substance as either a “probable” or “possible" carcinogen (US EPA 1997). However, Mehlman (2000) asserts that the initial regulatory process of deciding upon the toxicological characterization of MTBE was not based in sound regulatory science. Mehlman argues that the National Toxicology Program's (NTP) Board of Scientific Counselors ruling with regard to MTBE in December 1998 was counter to established protocols. According to Mehlman, despite the strong evidence indicating its negative 125 potential health effects, the NTP Board defeated a motion to list MTBE as “reasonably anticipated to be a human carcinogen” by a reported vote of 6 to 5. According to Mehlman (2000, 507), “This decision directly contravenes rules and procedures previously established by NTP for assessing carcinogenicity of chemical compounds.” He adds, “There is no question that the data presented demonstrate that MTBE is a probable human carcinogen.” In 2005 an internal EPA memo did indicate that on-going research has identified MTBE as a “likely” carcinogen, thereby posing a much more substantial risk to public health that previously thought (Baltimore 2005).70 Up until 1998, the US Environmental Protection Agency (EPA) had strongly opposed measures to reduce the use of MTBE. Based on available research, the agency concluded that although MTBE use posed some risk, that risk was no greater than that posed by other gasoline components such as benzene, toluene, ethylbenzene and xylene (know collectively as “BTEX”). However, new research soon discovered that MTBE’s unusual physical characteristics in the soil matrix — MTBE is more soluble in water than BTEX, meaning that it does not bind well with soil constituents and has strong negative aesthetics including odor and taste in drinking water even at low levels - created a potential contamination problem much more significant than those posed by BTEX alone. Further, the biodegradation of MTBE takes considerably longer than BTEX or other gasoline components, possibly leaving contaminated soil and water sources polluted from decades without proper remediation (Johnson et al. 2000). 7° US EPA had established a “weight of evidence descriptors” to classify whether or not a particular chemical is or is not causally linked to particular health effects. This system is based on a five classifications: l) carcinogenic to humans; 2) likely to be carcinogenic to humans; 3) suggestive evidence of its carcinogenic potential; 4) inadequate information to assess carcinogenic potential; and 5) not likely to be carcinogenic to humans. 126 The EPA responded to initial reports of groundwater contamination by providing information, intensifying research, and focusing on the need to minimize the number of LUSTs. However, as reports of contamination spread in 1998 and 1999, the EPA decided to reverse its original position. On March 20, 2000, the EPA announced it was beginning the process of reducing and eventually phasing out MTBE-use under Section 6 of the Toxic Substances Control Act (TSCA of 1976). However, since this type of regulatory action may have taken several years to complete, the EPA urged Congress to repeal the CAAA to provide specific authority to reduce or eliminate use of oxygenates such as MTBE in RF G. In 2000, the Senate Environment and Public Works Committee introduced Senate Bill 2962 (S. 2962), the first such bill to provide such regulatory authority. However, similar to four subsequent bills introduced after 2000, these attempts to overturn the RFG requirements in the US. Congress failed prior to reaching either the House or Senate floors. Finally, after two years of debate in the US Congress in August 2005 President Bush signed the Energy Policy Act of 2005 (Public Law 109-58), ending the formal requirement of a federally mandated reformulated gasoline (RFG) program thereby reversing its oxygenate requirement and allowing states to phase-out or eliminate MTBE-laden fuels. Research Strategy and Methodology The work presented in this article is based on intensive field work involving qualitative semi-structured interviews over a one-year period as well as extensive archival data collection over a three-year period. I conducted field, phone and electronic mail interviews with key informants involved in the regulation and remediation of MTBE 127 water contamination in Michigan and New York. These key informants were drawn from the following groups: state and local public health agency personnel, state and local environmental management personnel, state and local water management personnel, and local residents impacted by MTBE contamination of their water supplies. Most field and phone interviews were taped recorded; all of the interviews were transcribed and systematically analyzed using both a direct interpretive analysis as well as making use of computer-mediated qualitative analysis software (NV ivo). All quotations identified in this paper are verbatim unless otherwise noted. Additionally I analyzed thousands of pages of archival sources including policy documents, legal documents, agency summaries involving directives as well as informational documents, oil industry documents, and scientific research documents. Further I examined hundreds of federal, state, local and private websites associated with MTBE use, water and soil contamination, and remediation as well as sites concerning MTBE litigation. Lastly I examined thousands of media articles from as early as 1979 through 2008. These articles include national news media as well as regional and local sources. While I did not complete a systematic content analysis of these media sources, I did utilize these documents as ancillary data for structuring the overall research strategy.71 7' I did conduct a systematic, interpretive media content analysis of national news articles (defined as the largest ten US newspapers based on circulation) between 1997 and 2002 as part of an unpublished master’s paper (Oliver 2004). 128 Studying Organizational Cultures, Fields of Interaction, and Normative Practices with Regard to Environmental Issues In his book, Ecopopulism, Szasz (1994) argues that in an effort to contextualize and arrive at generalizable positions from qualitative narratives he develops a conceptual framework that crosses many of the traditional (albeit often arbitrary) disciplinary boundaries. In his work on toxic waste, Szasz (1994: 162) states: Studies in environmental sociology or political sociology tend to privilege one or another individual zone of society’s total field of political practices, be that people’s perceptions (media studies, public opinion, risk perception), popular action at the base (social movements), or formal policy (policy studies, studies of regulation). In doing this research, I found it impossible to confine myself to any single subfield of inquiry. “Hazardous waste” exists as representations in mass media and as a perceptual object in the popular imagination. . .I have come to think of this approach as the study of issue history (author’s italics). To illuminate these processes, important case study research in environmental sociology by Beamish has illustrated how complex interactions between economic, corporate, technological and political organizations have coalesced to “create” environmental crises (Beamish 2000, 2001, 2002a, 2000b). Drawing on the work of Perrow (1984), Clarke (1989) and Vaughan (1996), Beamish discusses the role of organizational attributes in setting the stage for environmental crises. Beamish demonstrates how technological regulatory organizations, often organizations established to deal with a particular industrial setting or potential crisis, can actually contribute to 129 future environmental calamities through a process of normative yet destructive behavior. In the case of the Guadalupe oil spill, by the 19803 oil leakages had become one of the “normative costs” of moving large quantities of crude oil and refined petroleum through an intricate and aged network of pipes and supply depots. As Beamish (2002, 5) sums up, “What is one more oil leak if oil leakage is the norm?” 1 will attempt to draw upon Bearnish’s assertion regarding the normative nature of certain types of oil and fuels spills. In the case of the Guadalupe oil spill, Beamish relied upon only one case to illustrate these normative processes within the organizational cultures associated with the spill. In my research 1 will draw upon four cases to attempt to illustrate a similar set of processes. By comparing four cases, my work will provide a framework to further what Beamish refers to as the “consilience of induction”. Drawing upon the work of Gould (1986), Beamish (2002a, 146) states, “Consilience literally means the accordance of two or more inductions drawn from different groups of phenomena over time.” Beamish (2002, 145) argues further that in “. . .addressing how an environmental crisis was generated and responded to, (one needs to) also address issues and concepts that relate to problems and to social change more generally, ranging outside the confines of an ‘environmental dilemma.”’ Beamish adds that to do this he adopted an initial phase he refers to “induction and exploratory research.” In this phase, he explored the “. . .case and the issues that emerged...” through “historiographic attention.” Drawing upon these concepts and methods, I attempted to examine the setting for each of the cases by investigating and documenting the socio-historical relationships and contexts of the issue at hand — MTBE contamination of water supplies in four US locations. .130 Institutional context and setting: A comparative case-study approach In this paper I examined the organizational cultures and fields of interaction of state regulatory agencies associated with four identified cases of MTBE spills in two states (Michigan and New York): 1) a residential neighborhood in Independence Township near Clarkston, MI, in Oakland County; 2) the city of Cadillac, MI, in Wexford County; 3) the city of Albany, NY, in Albany County; and 4) the Greenbush neighborhood in southern part of the town of Hyde Park, NY, in Dutchess County. This work attempts to address two fundamental questions with regard to MTBE contamination in each case: a) How did the selected regulatory agencies (state environmental agencies and local water agencies) determine the potential risks and remedies of MTBE contamination of public and private water supplies?; and b) What were the extent, nature and consequences of regulatory interaction between the selected local agencies and state and federal regulatory agencies? Comparative case studies are an important approach to understanding social controversies (Berg 2001; Ragin 1992; Stake 2000; Travers 2001; Yin 2003a, 2003b). Stake (2000) identifies six conceptual and procedural responsibilities for researchers utilizing a qualitative approach to a case study: 1) bounding the case in an effort to clearly identify the object of study; 2) selecting the issues, through research questions, that will be emphasized; 3) identify patterns of data in effort to demarcate relevant issues; 4) triangulate key observations and foundations for interpreting their importance and relevance; 5) identify and examine alternative interpretations; and 6) develop assertions that are generalizable to other relevant social issues. 131 Research examining case studies involve a suite of methods that serve to inform the examination of a particular issue or event. One potential pitfall in utilizing a case study approach involves the “study of the particular” (Stake 2000)(cf. Lieberson 2000). In order to avoid such a situation, I attempted to be systematic in identifying generalizable elements of any specific case in order to make the case study more useful for understanding broader concerns. Further, a comparative approach to case study research can broaden the merit of the work by avoiding the “particular issue” without losing the detail and richness that makes qualitative work so fruitful in identifying, describing and analyzing complex environmental events (Ragin 1987, 1992; Schofield 2000; Stake 2000; see also Mazur 1998). As Hammersley et al. (2000) identify: ...Yin (1994) argues that (a comparative case study approach) aims at ‘analytical’ not ‘empirical generalization, while Mitchell (2000) claims that it involves ‘logical’ rather than ‘statistical’ inference. Similar to Yin, King et al. (1994) argue that using comparative case studies are an excellent methodology for establishing scientific inference in examining important political events. King et al. (1994, 4546) add, If quantification produces precision, it does not necessarily encourage accuracy, since inventing quantitative indices (sic) that do not relate closely to the concepts or events that we purport to measure can lead to serious measurement error and 132 problems for causal inference. . .(c)omparative case studies can, we argue, yield valid causal inference when the procedures described. . .are used. King et al. (1994, 45), citing Alexander, illustrate the importance of using “. . .a method of ‘structured, focused comparison’ that emphasizes discipline in the way one collects data.” Emphasizing the importance of using theory to guide methodology, they identify how using well constructed, theoretically informed explanatory questions systematically in qualitative interviews can produce powerful and precise explanatory results. In this research design and analysis, I attempt to use a number of approaches identified by King et al. (1994) to obtain results that can be systematically compared in an effort to provide both rich detail and also explanatorily salient factors for the events surrounding MTBE use and contamination. An Introduction to the Cases: A Comparative View of New York and Michigan The cases in this study were chosen to reflect a number of important characteristics with regard to MTBE use, water contamination, and the organizational context in which the local problems were addressed. The state of New York was under federal mandate to use an oxygenate in their fuel supplies in specific metropolitan areas — referred to as “non-attainment areas” — as part of the federal RFG program starting in 1991. These areas included the metropolitan areas surrounding New York City, Long Island, and the counties of the southern Hudson Valley (Orange and Dutchess counties). However, areas surrounding metropolitan Albany were not considered non-attainment 133 areas under the federal RFG program; however, Albany County chose to use RFG as part of the federal “Opt-in” option. On the other hand, Michigan was never under federal mandate to use oxygenated fuels (and therefore, was not required to use MTBE-laden firels) nor did the state opt-in to the RFG program. Instead Michigan officials in non-attainment areas - areas with air emissions problems during at least one part of the year, usually the summer months — opted for the use of fuels with a lower Reid Vapor Pressure (RVP) to meet reduced emission targets. Lower RVP firels do not need to contain an additive oxygenate to reduce emissions. It should also be noted that both states have since enacted bans on the use of MTBE in fuel supplies.72 Although a number of federal regulatory acts could have guided the remediation of MTBE contaminated sites, the two primary federal laws driving the clean up were the Safe Drinking Water Act (SWDA) of 1974 and the Hazardous and Solid Waste Amendments (HSWA) of 1984, the latter stemming from the Resource Conservation and Recovery Act (RCRA) of 1976. The SDWA was established to protect surface and groundwater supplies used for drinking water throughout US. However the SDWA was not intended to regulate the discharge of pollutants into water supplies (this was regulated by the RCRA and Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA, and also commonly known as “Superfund”) but instead established National Primary Standards (N PS) for water quality, giving regulatory authority to US EPA to develop maximum contaminant levels (MCL) for regulated chemicals thought to be a risk for drinking water supplies (Cohen, Karnienieki, and Cahn 2005; also see Berry and Dennison 2000). 72 MI banned the use of MTBE as of June I, 2003. NY banned its use as of January 1, 2004. 134 The HSWA was created specifically to regulate the disposal of waste products, but additionally has provisions establishing rules associated with the storage of hazardous materials in USTs. This section of the HSWA requires detailed specifications for the design, construction and operation of USTs including monitoring, clean up and financial liability for spills. Further the HSWA requires certain owners and operators to notify state and local officials as the existence, location, size, and contents of USTs. One important commonality between the SDWA and the HSWA is the requirement that individual states develop their own state implementation plan (SIP) to meet federal regulations. These SIPs can establish standards that exceed the requirements under federal law but they must meet at least the minimum standards set forth by the federal rules. The SDWA gave authority to states to determine drinking quality standards with regard to MCLs that must meet the federal standards, although in many cases federal agencies only develop advisory standards to help guide states in their SIPs. Under the HSWA individuals states had set up SIPs with regard to the growing problems of LUSTs throughout the US. In this section I will discuss the history and current regulatory mechanisms established by officials in New York and Michigan in regard to SIPs involving USTs as regulated under the HSWA and drinking water standards with regard to MTBE under the SWDA. 135 Establishing drinking water standards and actionable MCL for the state remediation of M T BE in New York and Michigan One important issue concerns how US EPA, New York and Michigan established their actionable MCL for MTBE contamination spill sites.73 In 1997 US EPA issued a drinking water advisory with regard to water supplies contaminated by MTBE (US EPA 1997). This advisory was not a regulatory document meaning the standards set forth was to be a guideline for states to develop their own drinking standards and actionable MCLs for MTBE contamination. US EPA document recommended an advised MCL for MTBE in drinking sources to range from 20 jig/L and 40 ug/L or below. The document also stated that this criterion was established to be well below the threshold indicated by clinical research with regard to the specific carcinogenic potential of MTBE. Alternatively this threshold was set up to take into account the unpleasant aesthetic characteristics of MTBE in drinking water, which reportedly has an odor and taste similar to paint thinner. The US EPA advisory did admit that some individuals may be able to detect MTBE concentration below this range, and this was further supported by a report issued by Congressional Research Service (CRS) in 2000 (McCarthy and Tiemann 2000, 2003, 2006). Initially New York adopted the US EPA drinking water advisory MCL of a range between 20 jig/L and 40 jig/L.74 However due in part to concerns about a lack of clinical studies regarding the public and environmental health consequences of MTBE in 73 Actionable MCL can have a variety of definitions and varies from state by state. Typically, an actionable MCL for drinking water pertains to the threshold for providing funds for alternative water supplies, or a new well (if necessary) for residential contamination, and the costs of remediation of the spill including affected surface water and groundwater. 7‘ Prior to this the NYS Department of Health has established a drinking water standard of 50mg/L. However NYSDEC set an “action level” — the level in which will “trigger” a state investigation of “. . .source and trends” — at any level of contamination by MTBE (NEIWPCC 2000). 136 drinking water, and also in part to undesirable aesthetic qualities of MTBE contaminated water, New York lowered their actionable MCL to 1011g/L.75 On the other hand, MI DEQ did not have a threshold for their initial actionable MCL for MTBE contamination. The state would provide remediation and alternative sources of water to residences that had any level of MTBE contamination (1 jig/L or higher). However due to growing concerns about the cost associated with MTBE remediation, coupled with the rising costs of the remediation of other groundwater and well contaminants, MI DEQ adopted a new actionable MCL for MTBE of 240ug/L in 1994. M T BE Use and the Remediation and Clean-up Costs of L US Ts: New York The state of New York has long history of anticipating and addressing environmental spills from LUSTs through financial and technical measures as demonstrated by the state’s spill fund established by legislature in 1977. The New York Environmental Protection and Spill Compensation Fund (here forth referred to as the “NY Spill Fund”) is administered by the NYS State Comptroller. The NY Spill Fund pays for the remediation of petroleum spills conducted under the direction of the New York State Department of Environmental Conservation (N YSDEC). The NY Spill Fund's major sources of revenue are a license fee charged on each barrel of petroleum to be sold within the state and annual tank fee, based on tank capacity, charged to petroleum distributors (ASTSWMO 2008). The NY Spill Fund is responsible for carrying out the provisions of Article 12 of the Navigation Law, which states tha “. . .any person who sustains a financial loss as a result of a petroleum spill may file a damage claim with the 7’ NYSDEC officials indicate that “actionable” MCL may be lower if the MTBE contamination data indicate an upward trend (N EIWPCC 2000). 137 NY Spill Fund to cover the cost of said damages”.76 This provision also provides for a process for any alleged parties assumed to be responsible for the spill to have notice filed with them concerning any damage claims and the state will attempt to secure a settlement between any willing responsible parties and the claimant. If there is no responsible party identified or the party is unwilling to pay, the NY Spill Fund must conduct an investigation to determine the validity and the amount the claim. If the alleged responsible party (or parties) contests the claim the fund is required by regulation to hold an administrative hearing pertaining to the amount proposed to be recovered by the claim. Over the past thirty years, the NY Spill Fund has disbursed over $US 644 million in funds for the costs associated with clean up and remediation of petroleum spill sites. In the fiscal year 2007, the fund took in over $US 61 million in revenues and had total expenditures of $US 48 million. While in any given year the net cash balance for the fund varies in terms positive and negative, as of 2007 the NY Spill Fund had a net balance of $US 1.7 million. The state initiated testing for MTBE at petroleum spill sites in 1992 (NEIWPCC 2000). M T BE Use and the Remediation and Clean-up Costs of L US Ts: Michigan As stated previously, the state of Michigan was chosen as a case due to its non- participation in the federal RF G program. Under the rules of the CAAA (1990) the US EPA did require eight counties in southeast Michigan (including metropolitan Detroit and the County of Oakland) to use gasoline reformulated to reduce harmful emissions from automobile exhaust. However Michigan officials chose gasoline produced with a lower RVP content to achieve the required emission standards. This option for producing lower 7° http://www.osc.state.ny.us/oilspill/index.htm 138 emissions was available prior to the implementation of the CAAA (1990) and RFG program (Wald 1989; Dwyer 1994). Despite the decision to use fuels without oxygenates (either ether-based additives such as MTBE or alcohol-based additives such as ethanol) the state’s public water supplies have been contaminated by the additive MTBE. The explanation for this appears to rest with the oil companies’ decisions to sell excess supplies of MTBE-laden fuels to distributors in states not mandated for RF G use. The state began testing for MTBE in soil and groundwater contamination sites in 1996 (N EIWPCC 2000). Interestingly, according to a 2000 survey by the New England Interstate Water Pollution Control Commission (NEIWPCC) of MTBE contamination at LUSTs sites throughout the US Michigan officials detected MTBE in soil or groundwater at gasoline spill sites more often than their counterparts in New York." However, another intriguing finding relates to a comparison between the 2000 NEIWPCC survey and updated 2006 survey by the organization. In the 2000 survey NYS indicated that the presence of MTBE in petroleum spills increased the cost of remediation for twenty percent of the sites, whereas Michigan officials indicated that the presence of MTBE did not impact the cost of remediation. However in the 2000 survey NYS officials reported that one hundred percent of their petroleum spills sites had increased costs ranging from twenty to fifty percent, but Michigan officials, while stating that they did not have an exact estimate, commented, “don’t know the percentage of sites, but it increases cost significantly” (NEIWPCC 2006). 77 Ml officials detected MTBE in forty and sixty percent of the petroleum spill sites; New York officials detected MTBE in only twenty to forty percent of petroleum spills (NEIWPCC 2000). Note: the survey asked only for the range of estimates based on twenty percent intervals. 139 As opposed to New York, the Michigan program responsible for funding the clean up of MTBE contaminated sites has been restructured a number of times over the past thirty years. Initially remediation for MTBE contaminated sites fell under the Michigan Underground Storage Tank Financial Assurance Act (MUSTFA) adopted in 1988 and expanded by Part 215 (Refined Petroleum Fund, RPF) set forth in Public Act 451 of 1994 (Natural Resources and Environmental Protection Act). The act created a fund to reimburse owners for the cost of remediating contaminated sites and paying third- party claims. Funding for the MUSTFA program was generated by an annual fee of 7/8 cent for every gallon of refined petroleum sold within the state. As a consequence of state fiscal issues in 1992 Michigan officials declared the MUSTFA insolvent. As a result of pressure fi'om the legislature, large and small business operators, and the then Michigan Michigan Governor John Engler, the legislature adopted a short term remedy. By extending collection of the annual petroleum fee until January 1, 2005, the state was able to declare the MUSTFA to be solvent. This allowed for a newly revised plan to phase out fund coverage by December 22, 1998. Nevertheless by 1994 the overall number and total cost of claims for reimbursement being filed again raised concerns about the longer term financial viability of the firnd. A report issued in 1995 determined that MUSTFA had a $230 million in outstanding claims with the number of claims continue to growth each month. The report projected that the fund would be insolvent before 1998 deadline. In April 1995, state officials again declared the fund insolvent. All new claims had to be submitted by June 29, 1995 in order to be eligible for reimbursement. However it was unclear if and when reimbursement payments would be made to tank owners or affected well owners. Some 140 state officials asserted that claimants may have to wait up to ten years to receive reimbursements. Others argued that some claims may never be paid since the state legislature held that if the fund was bankrupt, the state would neither pay nor be liable for said payments. After June 29, 1995, all underground storage tank (USTs) owners and operators had to obtain their own pollution liability insurance or use another approved mechanism to remain in compliance with the federal financial responsibility requirements. As result of this decision, the state was able to better manage its existing liabilities. However this action did not address the financial difficulties of UST owners in regard to cleanup costs. Numerous remediation contractors who had already completed cleanups but had not been paid by the UST owners due to slow reimbursements fiom the state faced financial difficulties and sometimes bankruptcy. Additionally many small business owners with USTs faced liens on their business and property. Many of these small proprietors have also faced bankruptcy as their only option. In 2004 the Refined Petroleum Cleanup Advisory Council was created under Section 21552 of Part 215 (Refined Petroleum Fund) under Act 451 of 1994. This advisory council made recommendations in June 2005 to the Michigan governor and the state legislature on how $60 million that had been transferred into the Refined Petroleum Fund (RPF) from the former MUSTF A program should be spent. In March 2006, the council provided a letter of support for the authorization of $15 million for an initial RPF Cleanup Program and $45 million for a Temporary Reimbursement Program. The legislation was signed by the Governor and went into effect on July 20, 2006. 141 However this was not the end of financial issues with regard to the remediation of LUSTs. Between 2005 and 2007, the state legislature usurped $30 million from the RPF for the general budget to make up for shortfalls. Then in June 2007, state lawmakers drained the remaining $70 million from the fund leaving the program without financing (Kolker 2007). The proposed state budget for the fiscal year FY 2008-2009 (ending September 30, 2009) includes financing to replenish some of the redirected RPF monies. This proposal includes $30.7 million for the RPF and additional $20 million for salaries to M1 DEQ personnel. My Cadillac, MI (W exford County) The city of Cadillac, MI is located approximately one hundred thirty miles north by north west of Lansing, M1 (the state capital), and about three and half hours from the city of Detroit (the state’s largest city). The city has a population of approximately 10,000 as of the 2000 US Census. The median household income and Cadillac was $29,899 as of 2000. The median price for a home was $72,500 as of 2000 and 64.6% of all housing units were owner-occupied. The primary economy of the area is tourism-based due the regions many lakes and scenic beauty. Cadillac is also the county seat of Wexford County. Additionally Cadillac is the local district headquarters of the MI DEQ. The primary water supply for the city is through a single city well located in the northwest section of the city, serving a population of 11,800 residents and with an average daily capacity of 2.5 million gallons. Residents outside the city supply wells must rely upon private subsurface wells for their water. Management of the city’s water 142 supplies is administered by the Department of Utilities for the city, led by the Director of Utilities. According the city utilities director, MTBE was first identified as impinging upon the city’s well in 2002 as part of a routine series of tests authorized by the MI DEQ and administered by an environmental consulting firm.78 However, one local MI DEQ geologist indicated that the state was aware of the MTBE contamination of local groundwater as a consequence of the same source that has been identified as the responsible party as early as 1993.79 By 2007 the MTBE plume had moved from its identified source — the Peterson’s Standard gasoline station located in downtown Cadillac - to within just a few hundred feet of the city’s single well located downhill from the spill location. According to both the city utilities director and one MI DEQ geologist, the MTBE plume had moved farther and deeper than any of the other gasoline constituents — benzene, toluene, ethylbenzene and xylene (BTEX) - as well as other potential water contaminants such trichloroethylene (TCE) and tetrachloroethene (also known as perchloroethylene, or PCE).80 As of 2007, nearly all costs associated with prevention of further MTBE movement as well as remediation of the existing MTBE in the groundwater has been paid for through state (MI DEQ) sources.“ The proposed state budget for FY 2008-2009 7‘ Larry C. Campbell (Director, Water Utilities, City of Cadillac, MI), in discussion with the author, October 2007. 79 Jim Ferrito (MI Department of Environmental Quality - Cadillac Office), in discussion with author, December 2007. 8° Larry C. Campbell (Director, Water Utilities, City of Cadillac, MI), in discussion with the author, October 2007 and Jim Ferrito (MI Department of Environmental Quality — Cadillac Office), in discussion with author, December 2007. 8' The Cadillac utilities director did indicate that the city has absorbed some minimal costs for testing wells to identify the source and direction of the MTBE plumes prior to state involvement. 143 includes specific financing for clean up activities at Peterson’s Standard gasoline station site. .C_a&#_2_ - Independence Township (near Clarkston), MI (Oakland County) Independence Township, MI is approximately 50 miles north of Detroit, MI. Independence Township has a population of 32,581. The median annual household income in Independence Township is $74,993 as of 2000. The median price for a home is $203,600 and 83.2% of all housing units are owner-occupied. The township has seen tremendous growth in population during the last thirty years as a consequence of people leaving the more urbanized areas within Detroit and its surrounding suburban communities. Most residents work in the fields of professional management, manufacturing, or educational and health services. The area under study in this project is a small housing development located near the city of Clarkston (just outside the city limits). Residents living in areas that are outside the city limits of Clarkston rely upon private wells for all water supplies. These private wells are the responsibility of the individual homeowners. The area of study for this case is a small residential neighborhood just south of MI Interstate 75 off MI Highway 15 (N. Main Street). The neighborhood is located about two-thirds of a mile north of the Village of Clarkston. The neighborhood is under the political jurisdictions of Independence Township and Oakland County. The source of the MTBE plume is alleged to be two gasoline stations near the Interstate 75 and MI Hwy. 15 interchange. Based on location, elevation and geology, the primary responsibility for the MTBE contamination is alleged to be a Shell Station about 144 one-quarter mile east of the affected neighborhood. This source was identified by Oakland County Public Health and MI DEQ LUST assessment monitoring wells as early as 1994.82 In 1995, M1 DEQ officials sent letters to local residents that the state agency was concerned about MTBE contamination in private wells and the agency would be intermittently sampling their wells to test for the substance. Eventually MTBE began to show up at levels above the state MCL in a number of residences as well as local businesses just to the east of the neighborhood. The first known detection of MTBE by individual users in the plume zone was through drinking sources at an office in this commercial zone just to the east of neighborhood. Many residences in the area have test readings indicating MTBE levels well below the state MCL; but in some instances residents have still been able to detect MTBE in their drinking water even at these lower levels. However, only residences with contamination levels greater than the state MCL received state financial assistance in the form of bottled water or, in some cases, provided with newly-drilled wells. In one particular case, the state had to pay the cost for the drilling of three separate wells in an effort to provide the residence with non-contaminated water.83 In this instance, the state paid the cost of drilling successive wells and in each case the well showed traces of either MTBE or arsenic above the state MCL. As of the end of 2007, this residence still had to rely upon bottled water for their domestic uses.84 ‘2 Initial testing indicated the presence of benzene and toluene in 1994 - this led to additional testing of wells that eventually were determined to have various levels of contamination of MTBE. ’3 This was a combination of the continued presence of MTBE and the discovery of arsenic at deeper points in the accessible aquifer, a common issue in this particular area of the state. 8‘ A new well is planned for the residence but had yet to be approved because of fiscal issues associated with the state budget and RPF program. 145 As of early 2008, state, county, and local officials were still in negotiation with the former owner of the Shell gasoline station to help cover some of the costs of MTBE remediation and clean up. Attorneys for the former owner claim that there is no definitive evidence that the Shell station is responsible for the MTBE plumes. Additionally, the lawyers assert that another gasoline station approximately one-quarter to the north could be responsible for the MTBE contamination and should bear at least some liability, although state and county environmental technicians and at least one contracted environmental consultant disagrees with this assertion. As of June 2008, neither government officials nor private individuals have sought litigation in Michigan to cover the costs of MTBE contamination. QM; — City of Albany, NY (Albany County) The city of Albany, NY is located upstate approximately four hours north from New York City. The city, which serves as the seat for the state’s capital, is surrounded by the metropolitan regions of Schenectady and Troy, as well as a number of other suburban communities. As of the 2000 US Census, the population of Albany was 95,658. The median annual household income and Albany was $30,041 in 2000. The median price for a home in 2000 was $90,300. The primary water source for the city of Albany is the Alcove Reservoir, which is surface water supply located on the Hannacroix Creek in the Town of Coeymans approximately fifteen miles southwest of downtown Albany. The Alcove Reservoir has a capacity of 13.5 billion gallons with an average depth of 25 feet and a maximum depth of 75 feet. The city also has a secondary source of Basic Creek Reservoir near the town of 146 Waterloo to augment the primary source during periods of low flow. The city water supply system serves approximately 101,000 residents. In 2007 the city delivered over 6.8 billion gallons to its customers.85 Reports indicate that Albany has had a minimum of eighty-nine MTBE spill sites at various locations throughout the city.86 Consequently this case was chosen due to its high level of MTBE spill sites combined with the fact that it was not required to participate in the RF G program as a non-attainment area. However due to its primary water source being supplied by surface waters (and its storage reservoirs) from areas (rivers, streams and tributaries) both uphill and away from industrial parks and residential sites (those locations more likely to contain fuel supply retailers and distributors), the city of Albany has had no significant MTBE contamination of its water supplies.87 The physical geography and geology of the water source - most wells are in unconsolidated (non-bedrock) and a majority of water supplied by surface sources — and the relative location of fuel distributors and retailers away from significant surface supplies has had a significant role in limiting MTBE contamination (as well as contamination by other fuel constituents). Nevertheless this case does serve as an example of how the physical location of wells can have a substantial impact of potential contamination by LUSTs. ‘5 Source: City of Albany website, http://www.albanyny.org/Govemment/Departments/WaterAndWaterSupply/2007DrinkingWaterReport.asp x 86 Albany Business Review. 2005. “Schumer calls gas additive clean up bill “give away to polluters’.” May 5. http://albany.bizjoumals.com/albany/stories/2005/05/02/daily39.html 87 Warren Lavery, P.E., Director, Bureau of Water Permits, Albany, NY, email correspondence with author, December 11, 2007. 147 QM - Hyde Park, NY (Dutchess County) The town of Hyde Park is located about two hours north of New York City and two hours south of Albany, along the Hudson River in Dutchess County. As of 2006 the estimated population of the town is 20,697. The median annual household income in the town of Hyde Park was $50,870 in 2000. The median price for a home in the town of Hyde Park was $130,400 as a 2000. 74.1% of all housing units are owner-occupied, whereas 25.9% are rented. Although the Hudson River does supply some water to Dutchess County, most water is supplied by groundwater sources. The wells that serve communities throughout Dutchess County are located in shallow fractured bedrock which has a high potential for MTBE contamination and are be difficult to remediate with regard to water contaminants (Wehland 2003; Hale 2004). The fourth case under involves the Greenbush neighborhood which is part of southern Hyde Park. When Dutchess County began its participation in the RFG program the residences within Greenbush relied upon their own private wells for water. At that time the neighborhoods within the town of Hyde Park were a mix of homes with private wells with others being supplied by a central water supply system under jurisdiction of the County of Dutchess Water and Waste Authority. In 2000 Greenbush residents were told by NYDEC officials that numerous private wells in the area had been contaminated with MTBE. Initially NYDEC officials provided those individual homes MTBE water contamination above the state MCL of 10 ug/L with alternative water supplied by trucks. Eventually some residents had carbon filtration systems installed to clean their wells. 148 Residents were told by NYDEC officials that the source of the MTBE leaks were LUSTs at four gasoline retailers (former retailers included BP, Cenco, Citgo and Sunoco) located just uphill from the Greenbush neighborhood. By December 2000 over 120 Greenbush homes had wells showing signs of MTBE contamination. Consequently the residents asked state and local officials to connect the neighborhood to the existing water system of Dutchess County. In 2001 state and local officials made the decision to provide partial funding for connecting the Greenbush neighborhood to the Poughkeepsie Water Treatment Facility. NYSDEC stated that the agency would provide $1.6 million, drawn from the NY Oil Spill Fund, of the reported $3.45 million cost of linking the homes to the existing water system, with the additional cost being absorbed by individual homeowners through a twenty-year bond (Lewis 2001a, 2001b, 2001c). This figure was later revised to $4.3 million and the total number of parcels to be included in the water system plan had grown to 272, of which 238 were residentially zoned. The annual cost to individual homeowners was to be capped at $626.16 (Lewis 2001d). However some residents whose wells were not found to be contaminated by MTBE were angry that they would have to also cover the cost of the new system even if they do not want their homes tied into the new water system (Lewis 2001d). Another source of contention revolved around the state’s efforts to get residents to sign a petition to waive their rights to sue the state at some future date for MTBE contamination (Coppola 2003a, 2003b; Weiss 2003). The state held that funding for the new water system would only be approved if all of the residents in the proposed water district signed the petition. 149 Eventually the state approved funds for the new construction without all the required signatures. Additionally New York State Senator Steve Saland (R- Poughkeepsie) was able to arrange for a $300,000 state grant for the construction. In early 2005 the newly created Greenbush Water District started delivering water to local residents in the Greenbush neighborhood. Shortly thereafter a spokesperson for the then New York State Attorney General Elliot Spitzer announced that the state would eventually attempt to recover the costs of MTBE clean up and for the building of the new Greenbush water supply system by suing the responsible fuel distributors for the spills. The state also announced that Greenbush residents, regardless of whether they signed the waiver protecting the state from litigation, would still sue the fuel distributors as well. The state of New York eventually filed a major class action suit in federal courts involving seventeen states and hundreds of water districts throughout the US. Additionally two local families have chosen to sue independent of this class action suit. Discussion: Comparative History of' MTBE Use in New York and Michigan In this section I will draw upon my archival research and interviews to compare and contrast each state’s experience with MTBE contamination and remediation. First I will discuss the issue of early detection of MTBE in water supplies in New York and Michigan. Next I will examine existing information with regard to the high number of LUSTs in both states, and whether or not this information was shared between federal, state and local environmental agencies. Lastly in this section I will compare and contrast the response to LUSTs and to the contamination of water supplies by MTBE by personnel in both states in effort to assess whether the MTBE controversy serves as an 150 illustration of the decentralization of environmental management, regulation, and remediation to state and local government through a process of new federalism as theorized by Lester (1995) and Rabe (2003). Early Use and Detection of M T BE in Water Supplies A seemingly fortuitous aspect of the mandated use of MTBE within New York under the federal RFG program is that state environmental officials discovered and began testing more regulme for the substance in water supplies at a much earlier date than Michigan. But, as one environmental geologist for the NYSDEC pointed out, MTBE was being used, and began showing up in the water supplies, even in the years prior to the CAAA of 1990: (We began to see MT BE) in late 1988 to early I 989. We were seeing chromatograms, which is a lab output of analysis of water where it shows peaks and valleys, detections of contaminants, and we had an unknown peak at the beginning of chromatogram, that we were seeing in analyses that we didn ’t know what it was. We had our suspicions; we ’d asked around, they said probably MT BE. We started researching it more and found out that was it. That peak that was unknown for a time period became identified as MT BE in fitture analysis. One clear negative consequence of this early, widespread use in New York is that the extent of the state’s MTBE water contamination issues has been much greater in magnitude — in terms of both pervasiveness and costs — than in Michigan. Further 151 auditors in each state estimate that the reported costs regarding MTBE contamination may be artificially low since for many years each state’s accounting process only registered the most prominent chemical contaminates for each spill site. Consequently if MTBE was not one of the most prominent contaminants in terms of relative concentration at a particular site then it would not have shown up in the state’s database as a MTBE spill site. Another issue revolves around whether Michigan environmental personnel were adequately informed about the potential for MTBE contamination of state water supplies. As discussed previously Michigan was not part of the federal RF G program, opting to meet the state’s non-attainment area goals using gasoline with lower RVP. Consequently all local and some state Michigan water managers and environmental technicians I spoke with had no knowledge of the use of MTBE-laden RFG in Michigan; subsequently they were not anticipating any MTBE contamination issue nor testing for MTBE in water samples. As one water management director for a rural Michigan city indicated, No, MT BE had never been a problem until there’s several plumes in the greater Cadillac area. Of course there ’s the superfund site which is classified as the greater Cadillac area superfund site, that is all industrial solvents — TCEs, PC Es... (T)here are several other contaminant sources that DE Q is tracking. One of them is the AAR facility, and through chemical analysis on their plume (DEQ) detected the MT BE, that’s the first that we knew about this. And I’m guessing that goes back to probably a year ago now, maybe a year and a half. So really this is 152 kind of a new thing on our radar screen, they were drilling new wells and looking for T C E and up popped MT BE, in some pretty significant concentrations. 88 But in other instances some state environmental technicians and fuel quality personnel I interviewed did have knowledge that MTBE-laden fuels may have been being distributed in Michigan given the nature of US fuel distribution system. One MI DEQ hydrogeologist in the Remediation and Redevelopment Division stated, even though (the state of Michigan) weren’t (sic) in a mandated area to use MT BE a lot of our supply comes fi'om Chicago, so it ’s all what ’3 in the supply and it’s very difficult to say this site never used MT BE because depending on what pipeline, what refinery, what transport truck. it ’3 very difficult, and each batch is slightly difiizrent. And so that ’s kind of one of the difficulties in dealing with MT BE is that you pretty much have to assume in unleaded gasoline that it was there. 89 Another respondent — a technician with the Michigan Motor Fuels Quality Program, a state unit established to verify and register the quality of retail fuels sold within the state — supported the previous quote with the following statement: The Motor Fuel Quality Act, which is public act 44 of 1 984, as amended, requires that the presence of oxygenates be listed on the bill of lading and all the delivery “8 Larry C. Campbell (Director, Water Utilities, City of Cadillac, MI), in discussion with the author, October 2007. 89 Interview with M1 DEQ hydrogeologist, April 9, 2007. 153 documents, so in this state they should have been notified of MT BE in their gasoline. Yes, the retailer should ’ve been notified by the fact that it was required to be on the bill of lading. It ’3 always been required to be on the bill of lading.... Yeah actually (Michigan Motor Fuel Quality Program) was enacted in ’84, (but) they didn ’t have any funding to do the program until ’89, and we did not have full testing capability until ’92.90 So based on this quote local suppliers were required to be notified of the contents of the fuel they received from oil companies in the bill of lading. Additionally under federal regulations set forth by the HSWA, UST owners and operator are required to notify local and regional managers about the contents of their tanks. But, based on my interviews, this was clearly not the case in the city of Cadillac. To further support this a presentation by Michigan Department of Agriculture personnel indicates that fuel samples throughout the state contained the highest concentrations of MTBE in firel in 1994 — over forty percent of fuel sampled in the state contained MTBE at one percent (by volume) or higher — one year prior to full implementation of the federal RFG program nationwide.” However this information was never provided to the local environmental managers in Cadillac. Another key aspect regarding the ability for water managers and water quality personnel to anticipate the potential for contamination, or to institute testing for MTBE in 9° Interview with M1 Motor Fuels Quality Program technician, June 21, 2007. 9' Ml Department of Agriculture, “MTBE Analysis,” unpublished presentation, provided to the author by Department of Agriculture personnel. In regard to sampling, my interview with one Ml Motor Fuels Quality Program illustrated the program’s sampling regime as having four (4) approaches: a) random sampling of all stations; b) stratified sampling based on cities and counties; c) complaint sampling, based on a registered complaint regarding a specific station; and d) compliance sampling, to follow up a previous complaint. However in the above presentation the specific sampling regime utilitzed is not indicated. 154 water supplies, is whether or not these water technicians were aware of the high number of LUSTs (especially in rural cities and towns, where the remediation of gasoline stations with outdated tank technologies as well as the remediation of closed or abandoned sites has been moving much more slowly). For instance Michigan state tank remediation officials report that there are in excess of 9000 LUST sites, many of which may be contaminated with MTBE. In NYSDEC spill program technicians indicate that there are over 13,000 spill sites with LUSTs with measurable levels of MTBE in the soil and groundwater. One environmental quality analyst for M1 DEQ indicated that over 90% of USTs in the Cadillac region of the MI DEQ leak: And I’m not sure they ’ve really scratched the surface with what ’3 out there too. These are known cases but we, I mean, you know you can dig up any underground storage tank and 90% of them, easily 90% of them are leakers. And you know we get new releases reported to this office every year, and you know it ’3 just the way it is, gee what’s this? Oh there’s a tank in the middle of the road, we got to, and whatever odd things like that show up. 92 However, it appears that in MI DEQ and local water quality personnel were not made aware of the potential severity of some many LUSTs. For instance, as I quoted earlier in this section, the utilities director of Cadillac was unaware of the potential contamination of water supplies by MTBE up until 2005. The director did not indicate whether or not he was aware of the large number of LUSTs in the region - but even so, if he was unaware of the use of MTBE in gasoline being sold in Cadillac, the likelihood of 92 Jim Ferrito (MI Department of Environmental Quality —- Cadillac Office), in discussion with author, December 2007. 155 anticipating or testing for MTBE contamination of the city’s wellhead protection area was very low. The experience of water administers and environmental analysts in both Oakland County, MI (Independence Township neighborhood) and Dutchess County, NY (Greenbush neighborhood) were very different from those of the local water management personnel in Cadillac, M1.93 M1 DEQ personnel with jurisdiction over water quality and remediation in Oakland County did foresee the potential for the contamination of water supplies by gasoline additives including MTBE. This may have been the consequence of their knowledge about the federal requirement under the CAAA (1990) for fuel with a lower RVP in Oakland County. However whether Oakland County public health officials understood that fuel suppliers could deliver MTBE-laden RF G to the region even in light of the state’s choice to use non-RFG fuel to meet their SIP non-attainment goals (i.e., lower RVP fuel) is unclear},4 While MI DEQ water quality personnel were aware of the possible co-mingling of MTBE-laden RFG with non-RFG, due to the division of tasks between the MI DEQ Water Quality Division (MI DEQ/WQD) and MI DEQ Remediation and Redevelopment Division (MI DEQ/RRD). For instance, the former division has primary responsibility for identifying and remediating existing water quality issues with regard to public and domestic water supplies. When a residential well is determined to be contaminated with MTBE at or above the state MCL, only then will their administrative superiors authorize financial support for providing alternative water 93 As noted previously, the case of the city of Albany was such that there was not reasonable expectation of the contamination of local water supplies due to the geology of the area and location of the water source supplies. That said there have been substantial MTBE release sites throughout Albany County which have had an impact on other local water systems and, most significantly, those residences using domestic wells. 9" During this study I attempted to interview officials from the Oakland County Department of Public Health. Initially I had two interviews scheduled but shortly thereafter both appointments were “postponed” until the individuals were able to obtain “permission from their superiors.” After this 1 received no further responses from the individuals even following repeated phone messages and emails. 156 or, if more cost effective, replacing the existing well. The latter division’s primary responsibility is to remediate contaminated sites with LUSTs. Consequently their job duties do not focus on (and therefore do not anticipate) the contamination of public or domestic water supply systems. This distinction is especially pronounced with regard to the distance in which MTBE can migrate from LUST sites — MTBE spill plumes often travel 10-20 times further than the other primary constituents in fuel (e.g., BTEX). This leads to another important distinction regarding how each state’s environmental officials respond to the contamination of water supplies. MI DEQ analysts and technicians in the field have a more arduous process for obtaining approval for funds to provide alternative water or to secure funding for the construction of a new well for a private residences affected by contaminants. Field personnel must have all funds approved by their superiors through a formal written request for each individual case in conjunction with a MTBE-contaminated site. In contrast, NYSDEC environmental field personnel have standing authorization to expend financial resources for sites preapproved for remediation. Usually with only a phone call, field technicians can authorize expenditures in the hundreds of thousands for remediation, reducing both the time aspect of remediation and decreasing the costs of bureaucratic oversight. Potential reasons for the difference may be one of two possibilities (or a combination of both): New York’s much larger spill fund and the state’s broader experience with MTBE contamination on a much wider scale. Based on my interviews with personnel in both states, the organizational culture of NYSDEC - based partially in the state’s response to the scale and pervasiveness of the problem as well as the state’s more extensive financial 157 resources — is such that remediation of MTBE-contaminated sites in New York has been more effective than such efforts in Michigan. Based on my research I would conclude that with regard to the MTBE controversy — specifically with regard to the environmental management, regulation, and, most importantly, remediation of contaminated water supplies - the federal government has placed nearly all the responsibility for these processes on state governments and their associated agencies. While US EPA did provide information and logistical support, and in some cases limited financial support, for the most part environmental managers and regulators in both Michigan and New York were given the primary responsibility for dealing with MTBE pollution issues. My research appears to support the contentions made by Lester (1995) and Rabe (2003) of a new federalism involving the firrther decentralization of environmental management, regulation, and remediation to state governments. However I will note that in both Michigan and New York the state governments did work effectively with local governments and their agencies (especially through local offices of state agencies) to deal with MTBE contamination issues; but based on the limited data on hand for an assessment of state costs I would tentatively conclude that both states have become fiscally overwhelmed by the costs of MTBE remediation. This is issue of the availability of funds for MTBE clean up has been particularly acute in the state of Michigan. Conclusion: MTBE Contamination and the Production of Environmental Problems A great deal of speculation exists as to the reason why oil companies chose MTBE as the primary oxygenate to meet the RFG requirements. Internal memorandums 158 and other documents circulated by the oil companies indicate that the industry was well aware of the physical characteristics of MTBE including its high solubility in groundwater and surface water, which could potentially and directly lead to the widespread contamination of these waters if the substance was to be released from LUSTs. Further, oil industry executives and technicians as well as the government regulators were also acutely aware of the widespread presence of LUSTs throughout the country at the time of the introduction of MTBE into the nation’s gasoline supply (EWG 2002). Even today many environmental professionals recognize the continuing potential for MTBE contamination of LUSTs even in light of the more advanced design of USTs. Additionally, as discussed earlier, some environmental remediation technicians I interviewed in both Michigan and New York estimate that 90% or more of the current USTs in their respective regions have some form of leakage.95 A recent report by US EPA indicates that MTBE’s resistance to natural attenuation and biodegradation in certain hydrogeologic conditions coupled with the larger number of LUSTs that have yet to be remediated (or even identified as “leaking”), MTBE contamination issues may persist in the US water supplies for “tens to hundreds of years” (US EPA 2006). Even in light of this knowledge, and with an opportunity to chose from range of alternative oxygenates with substantially less risk of water contamination, the oil industry went ahead and blended MTBE with gasoline for the RF G program. The oil industry 9’ Jim Ferrito (Ml Department of Environmental Quality - Cadillac Office), in discussion with author, December 2007, and interviews with NY DEC remediation technicians, January 18, 2008 and January 19, 2008. 159 made this choice under supervision of the US EPA and in total absence of any clinical studies identifying the potential health risks to the public from the ingestion of MTBE.96 Federal regulators assert that there was no specific oxygenate identified by the RFG program requirement - for instance, ethanol was considered an acceptable form and was in fact used in number of Midwestern metro areas. There were a number of other alternatives to MTBE including other forms of ether-based oxygenates such as tertiary amyl methyl ether (TAME) and ethyl tertiary butyl ether (ETBE) as well as other forms of alcohol-based oxygenates such as methanol. Additionally, as Michigan chose to use, there was the alternative of producing fuel with a lower RVP to meet the federal non- attainrnent regulations under the CAAA (1990). According to federal officials and regulators, the choice of MTBE was one made by the oil companies and subsequently any water pollution issues stemming from its use was not the responsibility of the federal government. However if the federal agencies had access to information indicating that MTBE was a potential carcinogen and a likely pollutant of water resources, why did these agencies not block its use? One position concerns the relative low cost of producing MTBE. MTBE is produced through the chemical reaction of methanol and isobutylene. Methanol (also known as methyl alcohol or wood alcohol) is derived from natural gas, and isobutylene is made from crude oil during the refining process by one of a number of processes including butane dehydrogenation of isobutane or the dehydration of tertiary butyl alcohol (TBA). Further this process of production can be accomplished using existing 9‘ Clinical studies cited by the US EPA had been completed prior to implementation of the federal RF G program; however these studies only examined the health risks associated with the inhalation of MTBE, both prior to combustion and post-combustion. No clinical studies had examined the health risks when MTBE is ingested by animals or humans. 160 refining technologies present at most oil refineries. Consequently the use of MTBE serves a two-fold purpose for oil companies — one, helping to dispose of byproducts associated with refining oil into gasoline at minimal cost; and two, keeping the cost of the end of product — gasoline — relatively low while still meeting the mandate of the RFG program. A second position relates to the actual price of RF G fuel. While the process described above would arguably reduce the cost of the end product — RFG fuel — by eliminating some of the disposal costs associated with byproducts of the refining process, fuel prices actually increased with the introduction of MTBE. Financial statements of companies that produced MTBE and MTBE blended fuels — all major oil refining companies — indicate these companies made large profits from the production of MTBE. One reason for this may to do to with the original use of MTBE as an octane booster as far back as 1979. Due to new federal regulations in early 19703 phasing out the use of lead (tetra ethyl lead) in gasoline supplies, oil producers searched for alternative octane booster as a replacement. In response the oil companies turned to the use of MTBE for the medium and premium grade fuels. On the one hand, as discussed previously, the use of MTBE in fuel supplies would seemingly decrease the cost of finished gasoline since fuel blended with MTBE reduces the relative mixture of refined fire] by 7-15% and eliminates costs for disposal of some byproducts of this refining process.97 One respondent, an environmental technician for NYSDEC, discussed this: 97 Initially US EPA allowed for MTBE use at up to 7% by volume, but most uses ranged between 2% to 3%. Then in 1984 US EPA approved MTBE levels up to 11%, and then in 1988 up maximum MTBE levels by volume to 15% (Cohen, Kamieniecki, and Cahn 2005). 161 If there was difihrence in costs, the thing is, you would expect and I don ’t know for certain, but when you add more [WT BE to the fuel that you ’re actually decreasing the price. That was the main thing driving the use of MT BE, not only the air regulations but the fact that by-products of the refining process are combined to form MT BE, it’s such an easy economical process to create the MT BE and then you ’re cutting gasoline by 15% when you’re using reformulated gasoline, so the total cost should go down tremendously. And I think the use of MT BE was clearly one of the things that was keeping the price of gasoline nationwide depressed. Unoflicially depressed, but you know depressed. And clearly once it was banned the lack of MT BE was responsible in part for increased costs in gasoline. 98 In the end there remains two important, yet intertwined issues, both of which I was not able to firlly address in my research: a) full disclosure with regard to the issue of federal funding and logistical support to individual states, which appears to be primarily the result of limited accounting of each state to determine the specific costs of particular contaminants at individual clean up sites; and b) how federal and state officials may have been compelled or dissuaded from adequately addressing MTBE contamination problems in light of pending or future litigation. According to the New York state officials with which I spoke, the state did receive some federal funding and logistical support from the US EPA in support of their LUSTs remediation efforts. While the financial amount was relatively small by comparison to the current overall costs for MTBE clean up, there was significant information sharing between US EPA and NYSDEC. 9" Interview with NYSDEC environmental technician, January 17, 2008. 162 On the other hand, according to the MI DEQ personnel I interviewed they had no knowledge of the state receiving federal firnding in support of LUST remediation or MTBE clean up. Further the Michigan state officials received logistical support only upon the discovery of widespread MTBE contamination throughout the state. This may relate back to the issue of whether or not federal agencies (specifically, US EPA) were anticipating MTBE contamination issues based on the federal requirements for RFG. To meet the mandates set forth in the CAAA (1990), each state was required to submit a state implementation plan (SIP) on how those areas targeted as nonattainment zones will meet the requirements of the CAAA. New York’s SIP involved the use of RFG using MTBE-laden fuels supplies. Even though Albany County opted out of the RFG program, it appears that state officials understood the potential for local distributors to still receive MTBE-laden RFG. Michigan, on the other hand, submitted a SIP requiring the use of lower RVP fuel in the mandated nonattainment zones (eight counties in southwest Michigan, including Oakland). Whether or not US EPA personnel had knowledge of the possible use of RFG containing MTBE in these nonattainment zones could not be established within the scope of this project. However, I plan to expand on the research presented in this paper to include interviews with federal officials and state administrators at the highest levels of government at a future date.99 In closing I would like to return to the issue of organizational cultures and fields of interaction. Drawing upon the work of Scott, Ssasz, and Beamish, I have attempted to define and examine the organizational cultures associated with MTBE contamination and remediation at the state and local levels in Michigan and New York. Scott’s discussion 99 Initially I planned to include interviews with these officials; however, time constraints in my doctoral program coupled with a perceived reticence by these officials, possibly as a consequence of pending federal litigation on MTBE contamination costs, made these interviews prohibitively difficult. 163 of fields of interaction and their importance to research examining environmental organizations is useful model for conceptualizing important linkages between agencies at the state and local level, between divisions within agencies, and between individuals at each level and within each organization. Due to a number of methodological impediments, including the vast number of organizations involved in the MTBE contamination issues, the large number of communities and water systems affected by MTBE, and the contentious aspects associated with pending litigation against a number of major oil companies (and, I suspect, the reticence of certain public officials to speak candidly and openly about the MTBE issue due to the possibility of future litigation against state and local agencies), my research was limited somewhat narrowly in scope. However, by drawing upon four cases in two states — both of which have been significantly impacted by MTBE pollution in terms of the number of communities affected and the large amount of state financial resources expended for the cost of clean up — makes the work presented in the paper of some significance. Additionally since I was able to speak with a number of environmental field personnel working in both state environmental agencies, I was able to draw some important conclusions with regard to how each agencies organizational culture impacted each agency’s ability to respond to the needs of local communities and individual residents. Lastly I will add that much more work needs to be done on the issue of MTBE contamination, including more research examining the organizational cultures involved with the process at the federal levels and the US govemment’s relationship to the various corporate interests behind much of the decision making that led to the infiltration of the gasoline additive into the water supplies of millions of US homes. 164 CONCLUSION What Does Material Agency Have to do with MTBE? I will argue that laboratory machines can command our attention if they are understood as dense with meaning, not only laden with their direct functions, but also embodying strategies of demonstration, work relationships in the laboratory, and material and symbolic connections to the outside cultures in which these machines have roots. -- Peter Galison, Image and Logic: A Material Culture of MicrophysicsI 00 Along with this transformation came an unfortunate piece of baggage, what I call the “engineering fallacy.” This fallacy involves the assumption that problems can be solved unto themselves, isolated from the complicating factors and uncertainties of an overly complex world. ...The engineering fallacy illustrates a key point: contamination reflects a fundamental defect in our process of social learning. ...First we must realize that our “solutions” to environmental problems are often rhetorical, leaving behind substantial problems, causing new problems, and leaving in place practices that caused the problems to begin with. The result is that we pass along substantial baggage for future generations. -- Michael R. Edelstein, Contaminated Communities: Coping with Residential Toxic Exposure/0' At first glance one would assume that the two statements above have little if any relationship with the other. The first appears to make reference to the world and work of the laboratory, involving instruments and machines, apparatuses and experimenters, and devices for making images and constructing logic. The second statement appears to emphasizing the role of complexity and fallacy, uncertainty and naive (or vain) faith, social learning and rhetorical solutions for problems created by human action. The first concerns material culture and its relationship to its social counterpart, the scientist. The ‘°° Galison (1997, 2) '°' Edelstein (2004, 247-48, 290) 165 second involves social culture and its relationship to its material counterpart, toxic pollution. Both have processes and outcomes, involving numerous components which must be brought together under certain conditions using certain materials and perpetrated by certain people at a specific time and place. History is never arbitrary; but neither is it wholly random nor wholly predictable. I assert that the two statements above have much in common: in fact, I would argue the author’s are discussing exactly the same thing — the intra-action of material objects and social subjects, and material subjects and social objects. Galison’s (1997) work is an intricate and detailed chronicling of the “material culture of microphysics.” He asserts that these stories are not merely cases, but are histories in the making; they do not purport to expose the “universal structure of ‘modern science,”’ but are instead stories “about the culture of experimental science in the twentieth century and the complexities of its wider cultural spheres of theory, industry, warfare, professional identify, and philosophical inquiry” (Galison 1997, 62). They are stories about the intra-action of the material and the social in various locations with regard to a complex suite of actions and consequences; but they are also about the material and social out there beyond the walls of the laboratory. Galison recognizes that the construction of the laboratory is derived from this complex assemblage including the construction of image and logic devices is as much about keeping society out as it is about controlling, or controlling for, nature. Edelstein (2004), on the other hand, chronicles the actions and consequences when society does not properly account for nature in the process of constructing society. Toxins are no more or less natural than society; but they are no more or less social than society either. Accounting for the duplicity and duality of toxins in co-constructing our 166 world is the responsibility of society; but relying upon science and technology to take responsibility away from society, and putting back on “nature,” has only furthered to exacerbate many of our toxic problems.102 What does this have to do with MTBE contamination of water supplies in the US? I would assert that the use of MTBE in RF G supplies in effort to reduce harmful air emissions, the pervasiveness of dilapidated LUSTs in the US, the complex, convoluted, and often imperfect process of determining the toxicity of MTBE in drinking water supplies, the establishment of liability for the costs of remediating MTBE in soil and water, and the jurisdictional, political, and economic entanglements associated with the responsibility for the oversight of all of the above are exactly what Galison and Edelstein are attempting to illustrate in their respective works. The organization of an environmental problem involves the complex intra-acting of material and social, human and non-human, and society and nature. Similarly, society and its all of its associated organizational cultures were instrumental in establishing the conditions and context for the production of MTBE: the production of energy, transportation networks, automobiles, a fuel system network (requiring distribution and storage), exhaust emissions and air pollution, water use and water pollution — all of which are part of the process of establishing “society.” But did the material conditions give rise to environmental problems, or did the social conditions give rise environmental conditions? In my opinion, this question is not only moot but irrelevant. What is relevant is how “we” come '02 I believe this one part of what Edelstein refers to as “rhetorical solutions,” thereby going beyond simply implicating politics and economics as providing rhetoric — in the literal sense -— instead of actively pursuing “real” solutions. By rhetorical solutions I believe Edelstein is implicating a general, naive faith in technological solutions to environmental problems (e.g., the engineering fallacy), a faith which chooses to ignore the intertwined social and material relations and conditions that gave rise to the environmental problem in the first place. Rhetorical solutions put the onus on nature (and technology) to solve environmental problems. 167 to understand and contend with the environmental conditions that at both materially and socially relevant simultaneously. Ignoring either aspect of these intra-actions places “us” in the same perilous state which produced these toxic environmental conditions. In the first article of my dissertation I discuss the important role of macrosociological institutions — in this case, trade institutions — and their potential influence on how environmental management, regulation, and remediation proceeds in different contexts and at differing scales. To determine the particular outcome of the MTBE case, the NAFTA tribunal weighed a wide variety of “evidence” involving a certain set of social and material conditions. In the end the tribunal decided that a “lack of specific and definitive evidence” does not preclude a government entity, or its governing populace, from determining the socio-material conditions of their own choosing. If the California state assembly — the assumed representative of the people of the state - decided that the risks of MTBE use outweighed its benefits, then according to the NAFTA tribunal, the state should be free to act on behalf of the population. In the MMT case, which was settled before the NAFTA tribunal could make a ruling, the primary argument made by the plaintiff - the Ethyl Corporation (US) — was that while there was limited evidence indicating that MMT posed any significant risk, the actual issue brought before the tribunal was a ban on the transportation of MMT across international borders. This argument was no less about socio-material conditions than the MTBE case: the complex network of MMT production and supply, including the economic benefit to each company involved in its distribution, is about a complex intra- action within the MMT agential network. 168 My second article is an attempt to address a particular set of concepts — agency and structure — within a specific field of inquiry — sociology. While many important works in science, knowledge and technology (SKAT) have rather substantially addressed, examined and illustrated the concepts I present in the article, especially with regard to material (or non-human) agency, I argue that SKAT scholars have made little attempt to engage sociology more generally (especially American sociology). In fact, Latour (2005) has clearly explicated a disdain for general sociology for its lack of engagement with material conditions, generally, and science and technology, specifically. Other ANT scholars and some European social scientists have either joined in this harangue or, more often, they have just ignored their American counterparts. But some American sociologists are equally to blame for this process of scholarly disinterest.103 In this second article I try to draw each group into a discussion about what I assert are very similar fields of inquiry, dealing with very similar subjects, and, most importantly, how each group (general sociology, plus the various subfields within sociology that I explore in the article) has something very important to contribute to the discussion. I also attempt to make clear that the importance of this open dialogue is more than just an intellectual or academic pursuit. The narratives we create with regard to environmental issues tell important stories about people’s lives and the adverse effects that agential networks, as fields of inter- and intra-action, have on the body. These narratives are not just figurative but are literal - they are literal embodiments of society and nature that become part of the body in significant, and often deadly, ways. My third article emphasizes the importance of understanding the relationship between organizational cultures within the agential networks associated with '03 See footnote #3 in the second article for some notable exceptions. 169 environmental issues. I attempt to illustrate this through the study of a particular toxic contaminant — MTBE and its associated water pollution issues - and by making use of a comparative case study methodology involving archival sources and qualitative interviews with individuals embedded in the process. However I also try to demonstrate how the particular history and context which gave rise to the use of MTBE “speaks” to the process of how MTBE made its way into the water. The production of these socio- historical processes is no less important than the “voices” of those human agents involved in the same process. I chose to examine the organizational cultures and fields of interaction as described by Beamish (2000a) and Scott (2002) because both concepts have gained a certain level acceptance and purchase in the organizational literature on environmental issues (see also Perrow 1997). Further works illustrating organizational cultures in the field of the sociology of disasters have been efficacious in examining many of the same processes that environmental sociologists attempt to examine in our work; consequently environmental sociology can use much of these works as models when we examine environmental problems that spread slowly over a long period and are widespread in terms of their pervasiveness and consequences. What I attempt to do in this third article is to take my own theoretical perspective on agential networks and the importance of material agency as coupled with social agency, and draw these ideas into the article; but I attempt to do this through a different approach than my second article — in which I used theory and models. Instead I chose to use examine a substantive issue through a particular research methodology (e.g., comparative case study approach using archival and interview data). To understand 170 MTBE as a substantive environmental issue, I have attempted to illuminate its agential network through a combination of historical and archival sources (e.g., media documents, policy documents, scholarly journal articles, and other reports) and the qualitative experiences of individuals within the network. I argue that my approach is similar to what Bennett (2005) refers to as the “agency of assemblages.” In this work, Bennett describes how a complex agential network — an assemblage of social and material agents, or actants — directly contributed to the North American blackout of August 2003. Bennett (2005, 447) asserts, “. . .the agency of assemblages (are). . .the distinctive efficacy of a working whole make up, variously, of somatic, technological, cultural, and atmospheric elements. Because each member-actant maintains an energetic pulse slightly “off” from that exuded by the assemblage, such assemblages are never fixed blocks but open-ended wholes.” More importantly, especially with regard to agential networks of environmental problems, Bennett (2005, 463) asserts the following in regard to material agency: Does the acknowledgment of nonhuman actants relieve individual humans of the burden of being held responsible for their actions?...In emphasizing the ensemble nature of action and the interconnectness between persons and things, a theory of vital materialism presents individuals as simply incapable of bearing fill] responsibility for their effects. A distributive notion of agency does interfere with the project of blaming, but it does not thereby abandon the project of identifying (what Arendt called) the sources of harmful effects (author’s italics). 171 In closing I concur with Bennett’s contention regarding the importance of examining the relationship between material agents and “sources of harmful effects.” Similar to Barad (1996, 2007), Bennett asserts that illustrating the role of material agents in assemblages (agential networks) does not lessen the responsibility of humans, or society, in their actions: on the contrary, bringing the material actors into the mix provides a fuller, more complete perspective — albeit, always partial and incomplete —- on these networks in terms of both the sources of harmful effects and, possibly, an understanding about how these networks proceed and where they may be going in the future. Can we fully predict the trajectory and speed of networks? Probably not. 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