Abstract
Just as populations of whales and salmon are declining, so too are the ways to protect them. The United States Supreme Court has continuously narrowed the Environmental Protection Agency’s authority to protect waterways under the Clean Water Act (CWA). If the CWA is not protecting the water, then perhaps other acts, such as the Endangered Species Act (ESA), can be used to protect the Southern Resident killer whales.
6PPD is a preservative used in tires that, when mixed with the gas ozone, turns into the toxic compound 6PPD-quinone. When tires hit the road, the 6PPD-quinone particles are released and washed into the groundwater and streams. As a result, 6PPD-quinone often kills salmon before they can spawn, which has a devastating effect on the Coho salmon population. A reduction in salmon has a severe effect on the population of Southern Resident killer whales, an endangered species that feeds on Coho salmon during the fall and winter.
The article proposes and analyzes using the citizen suit provision of the ESA to prevent tire manufacturers from using 6PPD in tires. The first proposal is to sue the tire manufacturers directly. The second proposal is to hold the Environmental Protection Agency accountable through vicarious liability. The third proposal is to hold the Department of Transportation liable for allowing the import of tires that contain 6PPD.
