The Vermont Journal of Environmental Law (VJEL) is pleased to announce the publication of its new podcast series: VJEL Talks. VJEL Talks is a student-produced podcast featuring VJEL Staff and various experts within the environmental law field to discuss current trends, issues, and solutions to contemporary topics in environmental law and environmental justice.
Travis and Hope sit down with Vermont Law and Graduate School President Rod Smolla to discuss how VLGS can address various ongoing and contemporary issues in environmental law, including how students can address concerns to environmental justice in the current state of United States politics and culture.
Joined by Professor John Coppas and Chris Adamo, Travis and Hope break down the recent negotiations of the Farm Bill as it came up for reauthorization by Congress—from working directly with farmers to members of Congress. At the end of the day, Farm Bill policy focuses on one thing: our food system, including providing affordable and sustainable food for all stakeholders involved.
Professor, Director of the Animal Law and Policy Institute, and VJEL Faculty Advisor Delci Winders gives a broad overview of the transformation of animal law across the United States and how it connects to both environmental law and environmental justice.
Professor Ben Varadi breaks down the modern development of cannabis law, including why States and the federal government are so fractured on cannabis regulation from a cultural, agricultural, business, and government viewpoint.
VJEL would like to thank the experts who contributed their time and expertise to create a dynamic, though-provoking conversation. Their contributions continue to add exemplary and accessible work to the environmental law field.
VJEL Newsroom
Published: Volume 25, Issue 4 of the Vermont Journal of Environmental Law
By VJEL
May 23, 2024
The Vermont Journal of Environmental Law (VJEL) is pleased to announce the publication of Volume 25, Issue 4. Issue 4 features two Articles and one Student Note. First, Keith Rizzardi examines the decline in water quality in Florida, attributing it largely to what the author terms “micro-deregulation.” It identifies various subtle forms of deregulation, such as the liberal use of exemptions and the discretion granted to agency decision-makers, as well as practical effects like budget cuts for water managers. The Article concludes by proposing comprehensive changes to Florida’s regulatory framework to address the worsening water quality issue. Next, Zhiyu Huang argues that while Chinese environmental law incorporates nature-based solutions for natural disaster preparedness and response, the current perception of disasters as force majeure events limits effectiveness. The Article suggests integrating scattering nature-based solutions into a more cohesive framework within China’s forthcoming “Ecological Environment Code,” emphasizing the need to reframe disasters as often human-induced as and proposing a systematic integration approach. Finally, Aashini Choksi addresses lead service line replacement efforts in Washington D.C., emphasizing the need for a clear, comprehensive policy to ensure equitable access to safe water across all neighborhoods. The Note outlines the prevalence of lead service lines in BIPOC and low-income areas, discusses ongoing replacement plans, and highlights the challenges faced by vulnerable communities in accessing these programs. Recommendations include banning partial replacements, diversifying funding sources, and creating opportunities for private funding through municipal bonds to prioritize vulnerable communities.
VJEL publishes exclusively online, and this Issue may be accessed on our website by clicking this link to view our Volume 25, Issue 4 Publication or accessing our Volume 25 Publications from the navigation header.
This Article surveys the diminution in Florida’s water quality, largely because of what the author describes as “micro-deregulation.” As the Article makes clear, some of these deregulatory efforts—like outright repeal of statutes or rules—are obvious, and some are less so. The Article focuses on these latter, more insidious forms of deregulation. “Open” deregulation, for example, includes the liberal use of exemptions, presumptions, and preemption to sidestep regulation altogether. “Hidden” deregulation, on the other hand, is exemplified by the vast discretion granted to agency decision-makers under Florida law. The Article describes “deregulation through blindness,” meanwhile, as the de facto deregulation that results when concepts like judicial restraint, standing doctrine, and fee-shifting provisions with respect to citizen suits serve to restrict potential plaintiffs’ willingness to seek redress in court. Finally, the Article briefly describes the practical deregulatory effects of shrinking budgets for water managers in Florida. Rizzardi concludes by recommending a series of comprehensive changes to Florida’s regulatory framework that would help address the state’s rapidly diminishing water quality.
This Article asserts that, although Chinese environmental law contains various mechanisms for utilizing nature-based solutions to prepare for and respond to natural disasters, the current understanding of natural disasters as force majeure events has resulted in a framework that is discrete rather than comprehensive and that thereby fails to be optimally effective. The solution, Huang suggests, is for China to integrate these scattered aspects of its nature-based solutions for disaster risk reduction (“NbS-DRR”) into a more comprehensive scheme as the country drafts its “Ecological Environment Code.” The Article begins by surveying the global disaster-related landscape and overviews some of the more serious recent natural disasters in China. It goes on to reframe natural disasters as “unnatural”—often resulting from a combination of climate change and poor land management—and discusses the achievements and potential detriments with respect to some of the more massive ecological engineering projects China has undertaken over the past five decades. The Article continues by assessing the 42 pieces of Chinese environmental legislation that currently utilize NbS to respond to and mitigate disasters and describing the various shortcomings of this disparate approach to disaster risk reduction. It concludes by briefly proposing how China should approach integrating NbS systematically into the Ecological Environment Code.
This Note summarizes ongoing lead service line (LSL) replacement efforts in the District of Columbia and calls for a clear, comprehensive policy for the District that ensures equitable access to safe water, regardless of neighborhood. The Note begins by briefly providing a history of lead drinking-water pipes in the United States and explaining the prevalence of LSLs in the District, particularly in BIPOC and low-income areas. It continues by discussing the replacement plans currently ongoing while highlighting the relative inaccessibility of these programs for vulnerable communities. Choksi concludes by providing recommendations for the District to prioritize vulnerable communities by banning partial replacements, seeking a wider variety of funding options through local and federal programs, and offering opportunities for private funding through municipal bonds.
VJEL would like to thank the authors for their submissions, as well as the Editorial Staff for their hard work to produce Volume 25, Issue 4. Their contributions continue to add exemplary and accessible work to the environmental law field.
EcoPerspectives Blog
India’s Climate Diplomacy in 2024: Reflections on Climate Tech and Environmental Diplomacy
By Akshith Sainarayan, third-year student, School of Law, Christ (Deemed to be University and Calvert Nazareth, fourth-year student, School of Law, Christ (Deemed to be University)
May 9, 2024
Introduction
The World Meteorological Organization’s provisional State of the Global Climate Report recently confirmed that 2023 was the hottest year in history. The report noted that the effects of climate change and global warming are evident, courtesy of the increased number of climate disasters and extreme weather conditions. The impacts of climate change are worsening in frequency and intensity. Counterfactually, however, innovation and technology will play a pivotal role in the pursuit to overcome climate crises in the years to come. This niche branch of technology, often referred to as climate technology or climate-driven tech, aims to secure a symbiotic relationship between technological growth and environmental safe-keeping.
The United Nations Framework Convention on Climate Change defines climate technologies as “technologies that are used to address climate change . . . including technologies that help to reduce GHGs [greenhouse gasses], renewable energy technologies and adaptation technologies such as drought-resistant crops, early warning systems and sea walls.” The synergy between technology and environmental protection manifests through understanding the various opportunities and risks, building strong resilience against climate impacts and responding effectively when such impacts occur. Technology can not only tackle climate change, it also has the potential to create new jobs, promote economic growth, and lead to more innovation.
India is a global leader in climate technology, as the nation has been ambitious in achieving its net-zero targets for 2070 and its interim climate commitments for 2030. According to the Impact Investors Council Report, India boasts of housing over 120 funded climate-tech-driven start-ups, which have received funding from 272 investors from across the country. India’s push towards reducing its carbon footprint by exploring sustainable technology has three characteristics: allowing pathways for greater private investment in climate technology, collaboration through public-private partnerships, and technology transfers as a part of its global commitments.
Through the course of this discussion, we examine India’s internal business model and external trade policies concerning climate technology. This includes an analysis of the market for climate tech in India, as well as the latest trends in climate diplomacy from the 13th Ministerial Conference (“MC-13”) against this backdrop. Through this, we attempt to create a holistic understanding of how India fares in the climate tech and sustainability space, what opportunities lie in this market, and how India perceives sustainable trade in the World Trade Organization (WTO).
Where Does India Stand?
While India tackles its persistent air and water pollution problem, an opportunity presents itself with a growing demand for environmental technology. The Indian environmental tech market has a value of approximately $23 billion, with a projected growth rate of 7.5% between 2023 and 2028. India is also the 6th largest market globally for niche environmental tech solutions—particularly those relating to air pollution control and solid waste recycling. The market is also rife with technology for wastewater management. India’s approach to the climate crisis is not necessarily unidimensional. These solutions are not entirely import-driven solutions and are contingent on a mix of “Make in India” and “Make for India.”
Consequently, climate tech ecosystems are crucial for India’s strategy towards energy transition and sustainability. With start-up funding and investments in green tech at an all-time high, India holds the 9th position globally for venture capital (VC) funding for climate technology. The market acts as a twofold opportunity in plowing in much-needed foreign investment and sustaining a climate-centric industry.
India’s Recent Climate Diplomacy
India has always been a vehement proponent of the common but differentiated responsibility policy in climate politics. Its climate policy comes as a natural consequence of furthering the cause as a proactive player in the “trans-nationalist” movement in climate advocacy; the policy engages beyond the confines of a COP-centric climate change mitigation regime, which has historically been a traditional approach opted for by multilateralist trade factions.
While India and its climate tech ecosystem booms into a profitable space for investment, its approach towards streamlining cross-border business has also been positive. In October 2023, India proposed a roadmap before the WTO’s Working Group on Trade and Transfer of Technology (“WGTTT“). The roadmap was envisioned to facilitate the development and transfer of environmentally sound technology (“ESTs“) through a multilateral process towards removing barricades on tech transfer. The roadmap includes the establishment of an environmentally sound technology database linked with a technology transfer platform, streamlining licensing practices, and enabling developing countries to use Trade-Related Aspects of Intellectual Property Rights (“TRIPS“) flexibilities.
The proposed mechanism within the TRIPS Agreement encourages open and adaptable technology licensing, specifically to research outcomes related to climate change and ESTs funded by public resources. This also includes a proposal towards establishing publicly funded technology inventories by developed nations—creating a databank of sorts to merge the asymmetry between developed and developing nations. The TRIPS mechanism will facilitate smoother movement of climate tech. Additionally, it urges these countries to disclose information about technologies that are either directly or indirectly patented or funded by government bodies. India also suggested promoting innovative intellectual property rights-sharing arrangements between firms in developed and developing countries. These arrangements would facilitate the joint development of environmental goods and services. Furthermore, India recommended case-by-case exemptions from patentability for inventions critical to the diffusion of ESTs necessary for climate change adaptation and mitigation. It also proposed shortening patent protection terms to enhance access to specific patented ESTs in the public interest. Waiving patents on climate-friendly products and granting royalty-free voluntary licenses are additional measures to address climate crises.
India also played a pivotal role at the MC-13 of the WTO in Abu Dhabi earlier this year. India advocated for a sustainable means of living based on traditions and values of conservation, including LiFE (“Lifestyle for Environment”) as a key to combating climate change. India also expressed its concerns about using unilateral trade protectionist measures by many countries across the globe in the guise of environmental protection. In doing so, India particularly criticized the European Union’s CBAM (Carbon Border Adjustment Mechanism)—a carbon tariff policy on the usage/trade-in of carbon-intensive products.
India led the negotiations against the inclusion of this proposal, stating that it targets developing nations by studying their industrial policies and ultimately seeks onshore industries. The policy was ultimately dropped due to disagreements in arriving at a consensus on the language of the CBAM proposal such that developing countries do not take the hit, as against the original intention of possibly targeting Chinese-owned SOEs.
Inferences and Conclusion
India’s policy seems consistent with its original stance on common but differentiated responsibilities. On one hand, India seeks to open its borders up for sustainable tech transfers—tapping into a booming market that could bring in some much-needed foreign direct investment (“FDI“). On the other hand, it seeks to hold its ground as a developing nation, criticizing Western and European attempts to continue preferential trade policies against the global south. The events of WGTTT and MC-13 put India in a strategic position to further what is perhaps the need of the hour for the climate tech market—generating climate finance by integrating the private sector internationally. This also works as a strategy to involve the Global South in generating climate-centric solutions to strengthen its climate tech market. These events reflect a delicate balance between leveraging global partnerships for sustainable tech transfers and safeguarding the interests of developing nations in the face of evolving trade dynamics. On the domestic front too, India has attempted to ease its business regulations through the Jan Vishwas Act. This includes relaxing policies on environmental protection, compliance, disclosure standards, etc. How India seeks to integrate its domestic policies with its position in the WTO is a question not yet answered.
The Beacon Blog: Consider It Briefed
Houston’s Lax Zoning Practices Are Poisoning Its People
By Savannah Collins, Staff Editor for the Vermont Journal of Environmental Law
May 3, 2024
In an era where everyone is presently facing the impacts of climate change, some communities have been actively and systematically poisoned for decades. Houston, TX, stands out for the impacts of its laissez-faire zoning attitude. Houston allows industrial facilities to be located beside residential areas and schools. Due to this land use mixing, exposure to Superfund sites has increased. According to the Climate Vulnerability Index, the Fifth Ward of Houston is more vulnerable than 99% of the nation. This vulnerability comes from historic disinvestment that has culminated in measurable harm to the community. And people’s health has continuously taken a hit.
Houston’s lack of zoning controls has made it a hub of environmental justice issues. There are laws governing permitting and the like, but not for land use. Therefore, industry has been able to build wherever they choose. Combined with a history of redlining, communities that are mostly Black and Latinx are suffering. In the Greater Fifth Ward, where the population is majority Black and Latinx, the levels of pollution and pollution-related illnesses are well above average. A study done by the Environmental Defense Fund found some neighborhoods had levels of pollution equivalent to major highways in the city.
The Greater Fifth Ward is in the 99th percentile in its proximity to a Superfund site. There are over twenty-one state and federal Superfund Sites in the Houston city limits. Twenty-nine percent of the city’s concrete batch plants and 51% of the metal recycling facilities are within a half mile of at least one school or childcare center. In the Greater Fifth Ward, there are at least two elementary schools and two parks.
One of these parks is located quite close to the Union Pacific Rail lines. The City of Houston is suing the Union Pacific Railroad for creosote pollution in the Greater Fifth Ward. Notably, the railroad being sued subsumed the railroad that was in place in the 1940s, located beside this historically redlined community. There is a perpetual offloading of pollution from these railroads. A recent study by the Houston Health Department found toxic dust and soil on properties in the area. Additionally, there is a Title VI investigation by the Department of Justice into the illegal dumping activities in the city of Houston. This community is vulnerable on multiple fronts, dating back to its founding.
It would be hard to move these companies that have been in place for almost 100 years without greater aid from municipal government and organizations. The economic impact could be great, but the benefits to the people of the Fifth Ward would be greater. Despite the steep barrier, there are solutions available.
There is extensive mapping of the Superfund sites in the area. Noting where to put housing is critical to not further expose people to the current pollution levels. Furthermore, providing stipends to move out of the area would be beneficial for the community considering the level of poverty and the level of income. Without a more fluid source of funding, it is extremely difficult to move to protect their health.
With the Biden Administration highlighting environmental justice as a major factor in agency decisions, there is great potential for funding to shift nationally. The Justice40 Initiative is funneling funds out nationally and providing opportunities for community organizations to make these changes. One of the regional centers in charge of dispersing funds is the Deep South Center for Environmental Justice. They have provided an interactive resource guide for community organizations explaining Justice40 funding. There is also a database of available Justice40 money available, which is searchable by state and region. While these are preexisting federal programs not specifically focused on frontline communities, there is movement to make such programs work for frontline communities going forward. Hopefully, Houston’s people will be able to live in a healthier environment through these hardworking efforts.
The Beacon Blog: Consider It Briefed
Is a Lack of Data the Reason for Alaska’s Lack of Environmental Justice Legislation?
By Kari Millstein, Staff Editor for the Vermont Journal of Environmental Law
May 3, 2024
Alaska does not have any environmental justice laws or policies, despite the growing threat of climate change and the detrimental effects of big extraction and industrial projects on small, rural communities. To convince policymakers that these types of laws and policies are necessary, advocates need access to data about the most affected communities in the state. There are tools built to indicate the need for environmental justice action. Still, they are not very reliable when it comes to Alaska, because accurate data about small, widespread, rural communities is hard and expensive to collect. Collecting independent, accurate data to improve mapping tools like the Climate Vulnerability Index (CVI) is a necessary step toward more effective advocacy for Alaska’s most environmentally vulnerable communities.
The EPA now recognizes the right of all communities to environmental justice, or “the same degree of protection from environmental and health hazards.” Environmental justice is not a new concept, but it is a growing concern due to the urgency of climate change. Many states are now adopting their own laws and policies regarding environmental justice. Though Alaska has many small, remote, largely indigenous communities that are vulnerable to climate change and exploitation by resource extraction companies and other industrial projects, it does not have any such laws.
The CVI is a new mapping tool that compiles data from over 180 indicators to illustrate the vulnerability of specific areas across the United States to climate change and other environmental harm. This tool provides actionable data that advocates and legislators can use to create new policies to address environmental justice and climate change in vulnerable communities. Much of the CVI’s information comes from census data. This makes sense because the federal government already uses census data to determine how much federal funding flows into the state, in addition to congressional seats, voter redistricting, and more. The CVI further analyzes this information so that federal and state agencies can make more informed decisions about protecting the most vulnerable communities.
Unfortunately, not all census data collected is accurate. The U.S. Census Bureau annually conducts surveys with small sample sizes in areas with low population density, which causes a high margin of error for individual communities in the area. Additionally, Alaska is particularly difficult to count accurately because of the extreme isolation of many communities. Many factors compound this difficulty. Alaska has an abundance of seasonal workers and military. This means that population counts may vary dramatically depending on the time of year they take place. Also, much of rural Alaska is still without reliable cell service and/or internet connection, traditional mailing addresses, and year-round accessibility. Fiercely independent rural communities, and especially Alaska Native communities often do not trust the government’s motives for collecting their data. Though these sentiments are not completely without merit, especially given the history of colonization and disenfranchisement of Indigenous populations, they do contribute to less accurate census data. For these reasons and many others, it is difficult for the CVI to accurately represent the depth of vulnerability of many communities.
To show state policymakers that environmental justice policies are necessary, advocates need access to reliable, independently collected data. Mapping tools provide agencies, advocates, and legislators with an approachable method for combining environmental and demographic factors from publicly available datasets. This allows for quick analysis of multiple factors that impact communities. “Better understanding of the intersections between growing climate risks and pre-existing, long-term health, social, environmental, and economic conditions is critical to effectively building climate resilience for everyone and deploying targeted adaptation efforts.” This issue is of increasing importance, as Alaska experiences increasing impacts of climate change on its largely rural population.
This proposal will have many legitimate critiques. For one thing, Alaska’s lack of legislative red tape for large corporations results in some very lucrative deals for the state. Implementing new environmental justice requirements that must be met before projects are approved would add complications to this process, and inevitably invite pushback both from the state and from interested corporations.
Another major criticism of this proposal is that plenty of rural Alaskan communities do not want the government or outside organizations to have their information, regardless of whether it would result in more public funding. Any data collection must be done openly and with the support of the community, if at all. Researchers must remember that the point of collecting this data is to have statistical support to push for a statewide environmental justice policy. Increased data collection and accuracy of information for vulnerable communities around the state is not a solution in and of itself. It is a means to achieving a strong, protective, statewide policy. It does not take the place of advocacy for Indigenous sovereignty or more environmentally protective approaches to private land use and regulation.
Improving the accuracy of data for tools like the CVI would allow them to reasonably be implemented in Alaska. Then advocates and legislators can use the CVI to support the argument for laws and policy addressing environmental justice in the state. Climate change makes the need for these policies not only a matter of justice but also one of urgency.
The Beacon Blog: Trail Notes
An Environmental Justice Attorney’s Journey: Trail Notes with Professor Mia Montoya Hammersley
By Kate Keener, Staff Editor for the Vermont Journal of Environmental Law
May 3, 2024
Will you please tell me about your upbringing and relationship with the environment?
I was lucky to grow up with great access to the outdoors. I don’t think I realized—until I was older and had moved away—the beautiful relationship I had with the land. My family is from southern New Mexico, and when I was young, I spent a lot of time there with them. But I grew up in Flagstaff, Arizona. Flagstaff is in this beautiful pine forest beneath an amazing mountain that is sacred to a lot of tribes. Many of the places I lived were within walking distance of national forest land.
As a kid, I had freedom to go and spend time outside, to go and explore. And my parents were outdoor educators, so I grew up backpacking and taking family river trips. My relationship with the land has been special, and I knew it was special, but when I was young, I didn’t realize how many people don’t have that same access.
What inspired you to pursue your master’s degree and law degree?
I started undergrad at Lewis and Clark college in Portland, Washington. While I was there, I was involved with Sierra Club’s Beyond Coal Campaign. After freshman year, I serendipitously transferred to a tiny international university in Switzerland. I was the first person in my immediate family to go to Europe and had never been before—it was very much a leap of faith.
Something that drew me to the school was that each semester every student—as part of their tuition and curriculum—went on a two-week academic travel trip led by a professor. I visited lots of places I wouldn’t have been comfortable traveling by myself and learned about many different places and cultures. The topic of my first academic travel was “The Environmental and Historical Significance of the Rhine River.” We hiked to the Rheinwaldhorn Glacier in the Swiss Alps and followed the river by boat and bus all the way to the Port of Rotterdam, where the river meets the ocean.
The Port of Rotterdam is Europe’s largest port. We drove through a part of the port which comprised of several square miles of coal being imported into Europe. After being part of the Beyond Coal Campaign, just seeing that was like: wow. I felt like I hadn’t made a dent! It was like nothing I’d ever seen before or since. It’s a memory that has stayed with me: seeing these huge, raw piles of coal that were going to be distributed throughout Europe. It was overwhelming as a young student and activist. I think they’re importing a lot less coal now, ten years later, so that’s good!
Through my travels and studies in Switzerland I realized I was best equipped to help with environmental issues in my own community. So, after graduating I returned home and completed a master’s in water policy at the University of Arizona. While completing my master’s, I took some classes at the law school, including a water law course. I felt law had so much potential to create positive impact.
Will you tell me about the work you’ve done around land and water rights?
I’ve typically worked at the intersection between Indian law and environmental law. Indian law is what grounds me. If we think about power dynamics in this country, everything comes back to control of land and resources.
My initial interest in law school was water focused. Coming out of my water policy graduate program, I was excited to be able to work on water settlements for two different tribes in Arizona. I was the tribes’ official counsel in the Gila River Adjudication, which is one of the state-run water adjudications in Arizona. It’s been ongoing since the 70s. It’s a very slow and arduous process for tribes. But securing water rights is one of the most important ways that tribes can build climate change resiliency. It felt meaningful to be part of that work.
What is a water adjudication?
Basically, the court examines who has water rights within each individual watershed. The Gila Watershed, for example, has several sub-tributaries. Every person who has water rights in each designated sub-watershed must appear—at some point—in the state adjudication. Tribes and municipalities, anyone who is a water rights holder in the particular sub-watershed, has to appear and adjudicate their water rights. There’s an Act, the McCarran Amendment, that waived sovereign immunity for federal reserved water rights, including tribal water rights, and allowed them to be administered and adjudicated under state law. Tribes are often the largest and most senior water rights holders in these adjudications, so the stakes are high for them. Water law is so technical and fascinating and infuriating!
Will you tell me about joyful aspects of your schooling or law career?
Many joyful moments have stemmed from the relationships I’ve created through my work, both with clients and co-workers. One thing I’m proud of: When I was in law school, my school didn’t have funding for students who accept unpaid public interest positions over the summer. I went out of state for my first summer to intern for an environmental organization and had to take out extra loans to make that happen. So, when summer ended, me, my now-partner, and another one of our good friends founded an organization that fundraises to provide summer stipends to students who want to pursue social justice or public interest work. That org has continued, and they have a fundraiser every year. Last year we were able to establish an endowment.
Will you tell me about your first months as Environmental Justice Clinic Director?
Coming from New Mexico, I was really enamored with the landscape of Vermont and was just getting used to the new setting. I was impressed with the students and how excited you all are. There’s so much alignment of values at this school, interest in social justice, and students really want to use their legal careers to make the world a better place. It’s nice to reconnect with that energy and remember why I started on this path. And it’s exciting to build upon the EJ legacy at VLGS and connect with clients and continue the good work that’s already begun.
What do you think about environmental justice and whether we’re making progress?
I think there is change more than anything. Many critical race theorists I admire talk about the danger of subscribing to this idea that there has been continuous progress. When considering the daily experiences of those most impacted, I’m not sure how much has improved over the past couple decades. In terms of resources and awareness, though, I have seen change and improvements even in the last ten years.
Environmental justice is a difficult field for many reasons. Our wins often aren’t big and splashy like you might see in other fields of law. Our wins are often small things like making clients or community members feel empowered, being able to assist with storytelling, or helping people navigate a system that intimidates them.
It’s been important for me not to define my career based on external-facing wins and to focus more on the relationships and the day-to-day ways the work can change people’s lives for the better.
What advice do you have for people interested in collaborating with communities that have been disproportionately harmed?
I would encourage everyone in legal practice to take time to understand how their own lived experiences can affect the relationships they build with their clients. If we come from a more privileged position, that comes up when building relationships with communities who have experienced a lot of harm. This work is deeply personal and requires self-reflection. I encourage everyone to explore the frameworks of community lawyering, movement lawyering, and trauma-informed lawyering for frameworks to navigate these dynamics.
Did your introduction to EJ occur all-at-once in a specific occurrence or organically over time?
It was an organic process over time. My family in New Mexico comes from a community that was heavily impacted by the Trinity Nuclear Test of 1945. My grandparents were children when the bomb was detonated. Their community was about 45 miles from the blast site and has a high cancer rate and other ongoing impacts from radiation exposure. We lost my grandfather to pancreatic cancer when I was a teenager. I wish I had had more time to talk with him about his life and his experiences.
I gradually began to put the pieces together and understood that what my family and community had experienced were connected to things I was learning about in school and seeing in other contexts.
Were there any notable shifts in how you think about or approach EJ work?
During law school, I thought that I would do higher profile litigation. After having a wide variety of experiences in different workplaces, I realized there are many different roles for lawyers. Different communities need different things. Now, I strive to be a lawyer who is on tap, rather than on top, and to build an ongoing partnership and relationship with my clients—rather than simply coming in at a moment of crisis.
Are there any other thoughts you’d like to share, Mia?
Right now, I know a lot of people and students struggle with feeling hopeful in this area of law and feeling hopeful in the world. I came of age during the Obama presidency years where the message we received was that progress was this constant, inevitable destiny. And then the 2016 election happened when I was a 2L. I graduated into a legal environment that was very different than I was anticipating. It was an intense space to step into.
Something I draw on for my work is—you often hear Native people refer to seven generations—the concept that everything we do now, we do it for the next seven generations. For me, trying to keep that idea and longevity in mind is helpful for maintaining hopefulness. My people also traditionally have had several world-ending events occur already. For me, it’s helpful to remember that change is inevitable, and even when it feels like everything is falling apart, it’s a special time to be alive as well.
Fiction Recommendation:
The Hummingbird’s Daughter by Luis Alberto Urrea.
Non-fiction Recommendations:
Malcolm X’s autobiography; all of Vine Deloria’s writings; How We Show Up by Mia Birdsong.
Podcast Recommendation:
All My Relations
The Beacon Blog: Consider It Briefed
Sal Si Puedes: Environmental Racism Live and Well in the Heart of One of California’s Largest Cities
By Isaiah Gonzales, Staff Editor for the Vermont Journal of Environmental Law
May 3, 2024
Barrio Logan is nestled in the center of San Diego, California. According to the city’s website, it is considered “the epicenter of Mexican American culture and art.” Given, according to the census, 80% of the residents of Barrio Logan identify as Latinx. However, through all its marketing campaigns of the area and its exploitation of the rich culture and art, the city fails to address the environmental racism that exists within Barrio Logan. It’s true that the Latinx culture is deeply entrenched throughout the streets of the community, but alongside it, the remains of racist city policies still exist leading to the highest rates of asthma and cancer in the San Diego region.
“Not in Our Backyard,” an Account of How Barrio Logan Came to be
During the 1910’s and 1920’s, as Mexico faced a revolution of its own, Barrio Logan became a sanctuary for many Mexican citizens. The neighborhood continued to boom while focusing on the development of family residential areas and small businesses—including anything from local grocery stores to panaderias. Yet, this all came to a halt with the commencement of World War II and the expansion of the War effort. In 1944, National Steel and Shipbuilding Company (NASSCO) built a production shipyard in the little neighborhood north of Thirty-Second Street—Barrio Logan—to assist with building navy ships. The development of this shipyard began the environmental detriment of the barrio.
As city officials saw the “potential” in neighborhood, they began to craft city ordinances to allow for other industrial complexes to come into Barrio Logan. As researchers at the University of San Diego stated, “The community of Barrio Logan—primarily made up of immigrants—settled in the area in the early 1900’s, only to face an influx of polluting industries in their neighborhood when the City of San Diego rezoned the area to allow junk yards and metal plating shops.” However, the city ordinances to turn the neighborhood into a war-time industrial melting pot did not stop. Ultimately, leading to the development of Interstate 5 and the Coronado Bridge, which cut directly through Barrio Logan.
With such a make-up of the neighborhood and blatant disregard by the City of San Diego, it is unmoving to read as of 2003, about 3,000,000 lbs. of toxic pollutants dumped into Barrio Logan.
Sin Aire: Health Conditions as a Result of the Environmental Racism
Somehow in 2024, for many, it is shocking to hear of the high rates of asthma and cancer in Barrio Logan because of the environmental racism. Yet, for many immigrant and Latinx communities, including my own, this has become the norm. Barrio Logan, among many other barrios in California, ranks in the top 5% of most polluted areas in California.
Residents of Barrio Logan live at an 85% chance of developing cancer. And yet, nothing has been done to redress the issue. The City of San Diego thrives of the façade of implementing “progressive policies” and presenting that they care about their constituents, while on the other hand Latinx residents perish from city ordinances leading to their demise. Until something is done to truly address the toxins from NASSCO and the freeways, residents in the area will suffer.
Failure of “White Environmentalism”
As expected, Latinx people make up 5% of the legal community. And thus, there is a need for the legal community to push for environmental reform in places like Barrio Logan. Yet, historically environmentalism has overlooked the plight of people of color and focused more on trees and animals. In no way is this discounting those efforts, but time and time again issues such as the environmental racism in Barrio Logan are left to the people to fix.
Entrenched within the legal fabric of California are environmental laws such as the California Environmental Quality Act (CEQA), but due to the disparity of latines in the profession they are unused to protect neighborhoods like Barrio Logan. As a result, many legal arguments go unutilized and environmental racism persists in our backyards.
The Beacon Blog: Between the Lines
Building a Local Economy: Community-Based Climate Solutions
By Hannah Ziomek, Staff Editor for the Vermont Journal of Environmental Law
May 3, 2024
“You can’t find proper solutions to the climate crisis without addressing environmental justice.” These are the words of Chris Wood, outgoing executive director of Building a Local Economy (BALE), a nonprofit organization right here in South Royalton. I sat down with Chris recently to talk about what BALE does and how community work can help with the fight against climate change and economic inequality. BALE’s mission is to engage with the community about the reasons for our failing climate and extreme economic inequality through intelligent programming that explores systemic issues; to build a base of transformative leaders and increase that base through connecting with those aware of the challenges we face; and build new projects, that sustain a “new, resilient, community-driven experience of the world and our place in it.”
The way Chris sees it, building local capacity is the mechanism we can use to help each other in the climate crisis. However, legally, the state of Vermont, as many other states do, puts barriers up to self-sustaining, climate-friendly, community models. Last year, BALE hosted a programming series about this issue, Hoodwinked in the Greenwashed Mountains, which highlighted false solutions that the state of Vermont and environmental groups in the state of Vermont were putting forward. One of these false solutions is a relevant subject matter of current proposed legislation.
Vermont lawmakers are moving forward with this type of legislation which highlights false solutions, and if it passes, the state of Vermont will be committing to requiring utilities to provide 100% renewable energy. An estimated 50% of Vermont’s energy sourcing comes from hydropower company, HydroQuebec, the largest power utility in Canada. Hydropower is a renewable source of energy that uses the natural flow of moving water to generate electricity. However, the fact that Vermont considers HydroQuebec a true renewable energy source is one of the false environmental solutions that Chris refers to. Although many New England states use power from the company, Vermont is the only one which considers that energy renewable, and allows it to fall within the state renewable energy standard.
This power sourcing to Vermont raises climate concerns, as well as major environmental justice concerns. HydroQuebec floods major quantities of forest lands, releasing large amounts of carbon and methane into the atmosphere, contributing to greenhouse gas emissions, in greater amounts than some non-renewable energy sources. These emissions contribute to the climate change impacts that state renewable energy standards are supposed to be avoiding. Impacts of climate change are starting to be seen in Vermont at the local level, with devastating floods impacting communities, and causing economic strife over this past summer.
However, as Chris explained to me, the mega-dams built by HydroQuebec also cause environmental injustices to indigenous communities in the area. The company has wiped out indigenous villages and communities to build the dams and flooded their land. For those that do remain in the area, the decaying material sickens the communities, which can lead to long-term health impacts. So, this hydropower is not only the source of greenhouse gas emissions, but the source of environmental injustices to native communities. BALE has partnered with 350VT to inform the public about these issues, rally more people for resistance, and put more pressure on the Vermont legislature, as they consider their new renewable energy standard.
As Chris told me at the beginning of our talk, in community “we still need to speak truth,” and that is what BALE has been all about. Being transparent about the actions of large corporations and the government structures and laws that support them, is a valuable community tool, especially in the fight against environmental injustices. In Vermont, there is a tendency to greenwash, and believe that we are ahead of the game, when in reality, discriminatory practices and false solutions are still built into legislation. Maintaining strong community resiliency not only helps in times of crisis but helps strengthen effective communication and relationship building that fosters the trust and transparency needed to form resistance movements. Community-based solutions can help to truly create a Green Vermont.
The Beacon Blog: Consider It Briefed
President Biden’s Justice40 Initiative Could Be Better Implemented
By Erin Evans, Staff Editor for the Vermont Journal of Environmental Law
May 3, 2024
Critics of President Joe Biden’s highly-publicized Justice40 Initiative campaign to distribute federal funding to marginalized communities struggling with pollution and other negative environmental impacts say the program could be better managed. The Government Accountability Office released a report recently that found that the Biden Administration’s Justice40 Initiative “lacked clear guidance at times and needs to assess how the effort is being implemented across agencies.” This report outlines a number of recommendations and suggestions for better management and implementation across the board.
During his first week in office, President Biden issued Executive Order 14008 “Tackling the Climate Crisis at Home and Abroad.” This Executive Order importantly established the Justice40 Initiative, which directs 40% of the overall benefits of Federal investments bookmarked for climate change initiatives—including investments in clean energy and energy efficiency; clean transit; affordable and sustainable housing; training and workforce development; remediation and reduction of pollution; and the development of clean water infrastructure—to flow to disadvantaged communities.
This vast undertaking by the Biden Administration seeks to incorporate “key practices” to “better ensure accountability, transparency, and progress toward achieving the goal of the initiative.” White House Council on Environmental Quality Chair, Brenda Mallory, has previously estimated that nearly 470 programs, worth billions of dollars in federal annual spending, are being reworked to meet the goals of this Initiative.
The Initiative has already seen some success, with over half of the Justice40 Initiative’s pilot programs responding to a recent GAO survey that found the guidance and tools useful in developing their respective plans. However, the congressional watchdog warned that the President’s office has failed to set up any type of oversight entity to manage and judge Justice40’s progress—i.e., defining goals, sharing results, and setting up a scorecard system to manage and oversee those goals and results over time.
The GAO report has made 15 recommendations to the White House to improve the overall management of the Justice40 Initiative. Currently, the President’s office has neither agreed nor disagreed with those recommendations.
Other critics claim that the White House’s environmental justice program may not shrink racial disparities regarding air pollution due in part to possible legal challenges. When the Biden Administration initially designed the program, the issue of race was omitted from the process of calculating who would benefit. The Supreme Court recently struck down race-based affirmative action in college admissions. Many believe that this ruling could flow into federal environmental programs. “Unless carefully implemented, the program may not work as hoped and could even widen the racial gap by improving the air in whiter communities, which may also be disadvantaged in some ways, faster than in communities of color,” according to a recent peer-review study. This study compared the current trajectory in air quality improvements with two alternative scenarios in which air quality in disadvantaged communities improved at double or quadruple the overall rate. The study found that even if pollution improved faster in these broadly defined disadvantaged communities, the pollution would remain significantly worse for people of color.
According to Julian Marshall, a professor of civil and environmental engineering at the University of Washington, “the results we have here are one piece of evidence that suggests if you don’t account for race/ethnicity, then you won’t be addressing the disparities by race/ethnicity.”
Ultimately, the Justice40 Initiative, while a valiant undertaking by the Biden Administration and its related federal agencies, still has work to do to ensure that pollution rates factor race within its calculations for federal funding to marginalized communities and to implement a better oversight system for assessing the Initiative’s programs. The jury is still out on President Biden’s Justice40 Initiative. Only time will tell whether the Initiative truly has been successful within environmental justice communities.
The Beacon Blog: Consider It Briefed
Farmworkers and the Pesticide Exposure Crisis
By Christina Karem, Staff Editor for the Vermont Journal of Environmental Law
May 3, 2024
What’s worse than finding a worm in your apple? Finding half a worm. That being said, no one wants to find any worms in any of their produce. Pesticides are used to deter insects and other pests from eating produce and crops, control weed growth, and increase the productivity of agriculture. While pesticides sound like a beneficial and crucial part of the food system, pesticides threaten human health and the environment, especially for those individuals who work in fields riddled with pesticides. Exposure to pesticides can result in cancer, act as endocrine disrupters, trigger respiratory and reproductive problems, and contribute to countless other health issues. Despite these risks, pesticides are used often and are found on 75% of non-organic produce in the United States.
Three main United States statutes address pesticide presence in the food system: the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA); the Food, Drug, and Cosmetic Act (FDCA); and the Food Quality Protection Act (FQPA).
The Federal Insecticide, Fungicide, and Rodenticide Act
The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) governs the sale, use, and registration of pesticides in the United States. 7 U.S.C. § 136. FIFRA requires that pesticides be registered by the EPA. Before registration, the pesticide must prove it “will not generally cause adverse effects on the human environment.” 7 U.S.C. § 136(a). The approval process is supposed to consider social, economic, and environmental costs and benefits. The United States Department of Agriculture originally held responsibility for pesticide approval and monitoring, but has since transferred authority to the Environmental Protection Agency (EPA). FIFRA establishes worker protection standards for employees who work in pesticide production facilities but does not provide the same protection for workers who handle pesticides in other environments. FIFRA also allows states to regulate the sale and use of registered pesticides, but states are not allowed to impose labeling requirements.
The Federal Food, Drug, and Cosmetic Act
The Food, Drug, and Cosmetic Act (FDCA) grants authority to the EPA over setting pesticide tolerance levels in food. 21 U.S.C. §346(a). A food is deemed safe as long as the chemical residue does not exceed the tolerance levels set by EPA. The EPA Administrator sets tolerance levels they determine as “safe,” meaning “reasonably certain that no harm will result from aggregate exposure to the pesticide chemical residue.” The FDCA emphasizes consideration of infants and children, as well as sensitive subpopulations as determined by the Administrator. The Food Quality Protection Act (FQPA) amended the FDCA to enhance protections for sensitive subpopulations and at-risk populations. FQPA added the language of “reasonable certainty”, and allowed the EPA to consider non-occupational exposure, such as diet, water, and residential use.
Farmworker Injustice
Pesticide laws do not protect farmworkers from exposure to harmful chemicals. Farmworkers often breathe in these chemicals because they lack protective gear, are unaware of the dangers of constant pesticide exposure, and live near farms that regularly spray pesticides over crops. Farmworkers are not considered sensitive subpopulations in EPA’s risk assessment tests, so health issues arising in these populations stemming from pesticide exposure are overlooked.
The Occupational Safety and Health Administration (OSHA) cannot take action to protect farmworkers because it is preempted by EPA’s authority to set standards for allowable pesticide exposure levels. The OSH Act states that “Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies … exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.” OSH Act, 29 U.S.C. 653(b)(1). OSHA applies a two-pronged test: whether another agency has authority, and whether they have exercised this authority. The EPA has exercised its authority over pesticides by creating standard toxicology tests to measure human health risks. So, EPA would have to give up its regulation affecting farmworker safety and health for OSHA to take over safety standards. Or EPA could promulgate procedures to protect farmworkers.
Nearly 2.4 million people in the United States are farmworkers. At least 20% of these farmworkers live below the poverty line, making it difficult for them to access good healthcare. About 36% of farmworkers are not authorized to work legally in the United States, which decreases legal protections, increases the risk of abuse, and reduces the likelihood farmworkers will seek help if harmed by pesticides. Organizations like Farmworker Justice are advocating for farmworker safety, but their efforts must be met with legislative change. Should pesticide regulation (or lack thereof) continue to disregard this at-risk population, health issues will continue to rise in farmworker communities, impacting our food system in ways we cannot imagine.
