Farm worker in a field spraying pesticides

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

Farm worker in a field spraying pesticides

 

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.

PFAS brings disproportionate harm to EJ communities like Cancer Alley. The U.S. needs regulation now.

The Beacon Blog: Consider It Briefed

A Sacrifice to the Emperor of Forever: PFAS and Sacrifice

By Alexis McCullough, J.D. Candidate, 2024, Vermont Law & Graduate School and Articles Editor, Production Coordinator, and Personal Notes Editor for the Vermont Law Review

October 1, 2023

The Agency for Toxic Substances and Disease Registry noted that “most people in the United States have one or more specific PFAS in their blood, especially PFOS and PFOA.”(1) PFOS (perfluorooctane sulfonic acid) and PFOA (perfluorooctanoic acid) belong to a class of human-made chemicals known as PFAS, or per- and polyfluoroalkyl substances.(2) PFAS are characterized by their carbon-fluorine bonds, which are among the strongest in chemistry, giving them the nickname “forever chemicals.” The bonds make PFAS remarkably durable but also make them highly persistent in the environment. PFAS’s chemical nature allow them to exist in thousands of chemical forms, making them versatile enough to be found in numerous products. Chemicals are usually mobile—think of carbon existing everywhere and in all living organisms—but PFAS’s mobility makes them more dangerous than most other chemicals. PFAS have been found in the blood of humans and hundreds of species because of its prevalence in the air, soil, and water.(3) There is no escaping them.

 

Along the Mississippi River in Louisiana, communities are more likely to die because of petrochemical industrial practices. This location is called Cancer Alley, a sacrifice zone created from petrochemical facilities and factories releasing harmful chemicals into the environment. When an industry places a heavy environmental burden on an area to the point where inhabitants are forced to remain behind because of the high economic cost of leaving, a sacrifice zone arises.(4) These zones are usually adjacent to heavily-polluting  industries or military bases, and people in areas near those facilities are “sacrificed” to the pollutant(s) caused by the pollution source. Sacrifice zones exist in an environmental justice context because it is often low-income and minority communities that suffer the most from chronic chemical exposure.(5) Often, those living in sacrifice zones do not know that they are being exposed to high levels of pollution.

 

In Cancer Alley, Black residents are unknowingly exposed to multiple sources of industrial air pollution, creating a cancer rate of about 47 times higher than the Environmental PPA’s acceptable levels.(6) PFAS also infest the unknowing residents’ drinking water, creating a cycle of exposure for the residents that use the Mississippi River in their daily life.(7) Without remedial action, they are sacrificed to the chemical manufacturing industry’s pollution.

 

Manufacturing facilities producing PFAS or PFAS byproducts can release those chemicals into the environment through several ways. PFAS can escape through the regular course of a manufacturing business or by accident. Through air emissions, spills, or waste disposal–among other ways–PFAS can leach into the environment and contaminate the air, drinking water, and soil near the facilities. Then those PFAS accumulate due to their “forever chemical” nature, making them capable of reaching the communities’ food and drinking water and staying in the bodies of the populace.

 

If more PFAS are not regulated, more sacrifice zones may be created. PFAS may cause communities across the United States to be sacrificed due to industries inadequately managing their PFAS production and harming the people and the environment. The EPA has regulated some of the chemicals—about six of them so far in drinking water and identifying hundreds of PFAS under the Toxic Substances Control Act (TSCA).(8) However, the EPA should consider adding more PFAS in future rulemaking actions. Recently, communities face problems with unregulated or underregulated PFAS.

 

Three decades ago, DuPont released a chemical called GenX into Cape Fear River in North Carolina.(9) GenX slowly contaminated the drinking water for the 500,000 people living in three counties.(10) DuPont became Chemours, and Chemours placed self-imposed safeguards to reduce the amount of PFAS flowing into the river.(11) Unfortunately, PFAS bioaccumulate. Depending on the type of PFAS, it takes anywhere from 72 hours to 35 years to leave the body.(12) When eaten or drank, PFAS migrate to protein-rich tissues of the body, which are typically the liver and blood, but PFAS are also detected in the brain.(13) During that time of bioaccumulation, people may report symptoms from a long list of health effects.(14) However, PFAS are understudied and underregulated, making proving knowledge of contamination in humans and in the area difficult.

 

As many as 49,145 industrial facilities may exist as PFAS contamination sites.(15) The severity of PFAS contamination throughout the United States cannot be overstated, and it is imperative that PFAS are regulated more before heavy PFAS  pollution creates a trend of sacrifice zones. The disproportionate harm brought on those on the frontlines of PFAS exposure is likely to continue to be a subject of concern in the future.

 

Citations

  1. PFAS Blood Testing, AGENCY FOR TOXIC SUBSTANCES & DISEASE REGISTRY, https://www.atsdr.cdc.gov/pfas/health-effects/blood-testing.html (last updated Nov. 1, 2022).
  2. Id.
  3. PFAS Blood Testing, supra note 1; see also Wildlife Warning: More Than 330 Species Contaminated with ‘Forever Chemicals,’ EWG,  https://www.ewg.org/news-insights/news/2023/02/wildlife-warning-more-330-species-contaminated-forever-chemicals (last updated Sept. 26, 2023). Blood tests are how humans and animals are tested for PFAS.
  4. STEVE LERNER & PHIL BROWN, SACRIFICE ZONES: THE FRONT LINES OF TOXIC CHEMICAL EXPOSURE IN THE UNITED STATES 2-3 (2010).
  5. Nigell Moses, High Levels of ‘Forever Chemicals’ in Southeast Louisiana Drinking Water Spur Concern, LA. ILLUMINATOR (Jan. 25, 2023), https://lailluminator.com/2023/01/25/high-levels-of-forever-chemicals-in-southeast-louisiana-drinking-water-spur-concern/ (“We are not a sacrifice zone, but continually we are the ones that are sacrificed.”). 
  6. Lisa Song & Lylla Younes, EPA Calls Out Environmental Racism in Louisiana’s Cancer Alley, PROPUBLICA (Oct. 19, 2022), https://www.propublica.org/article/cancer-alley-louisiana-epa-environmental-racism. There are high levels of airborne carcinogens in Cancer Alley created by a former DuPont facility generating chloroprene. Id. Now Denka Performance Elastomer owns the former facility, continuing the cancer-causing impact on the populace and continuing its legacy as the only chloroprene-generating industrial site in the United States. Id. Last year, the EPA wrote a letter to Louisiana’s health and environmental agencies, warning them of the harm and risk from chloroprene, which is an air-pollutant carcinogen. Id. Through President Biden’s Inflation Reduction Act, the EPA gave a grant to the Louisiana Department of Environmental Quality to create an air monitoring project in St. James Parish, a parish in Cancer Alley. EPA, Rep. Troy Carter Announce Grant for La. DEQ Air Monitoring Project in St. James Parish, U.S. E.P.A. (June 5, 2023), https://www.epa.gov/newsreleases/epa-rep-troy-carter-announce-grant-la-deq-air-monitoring-project-st-james-parish.
  7. Moses, supra note 5.
  8. Per- and Polyfluoroalkyl Substances (PFAS): Proposed PFAS National Primary Drinking Water Regulation, U.S. EPA, https://www.epa.gov/sdwa/and-polyfluoroalkyl-substances-pfas (last updated June 6, 2023); see also 40 C.F.R. § 705 (2022).
  9. Trista Talton, Researchers Make Strides in Five Years Since GenX First Reported in Cape Fear River, WRAL NEWS, https://www.wral.com/story/researchers-make-strides-in-five-years-since-genx-first-reported-in-cape-fear-river/20319478/ (last updated June 7, 2022) (stating GenX chemicals are hexafluoropropylene oxide dimer acid, or HFPO-DA).
  10. Katie Myers, Is PFAS Pollution a Human Rights Violation? These Activists Say Yes., GRIST (Apr. 27, 2023), https://grist.org/accountability/is-pfas-pollution-a-human-rights-violation-these-activists-say-yes/. 
  11. David Gelles & Emily Steel, How Chemical Companies Avoid Paying for Pollution, N.Y. TIMES (Oct. 21, 2021), https://www.nytimes.com/2021/10/20/business/chemours-dupont-pfas-genx-chemicals.html.
  12. PFAS Exposure Assessment Community Update – Online Information Session, AGENCY FOR TOXIC SUBSTANCES & DISEASE REGISTRY, https://www.atsdr.cdc.gov/pfas/activities/ assessments/online-session.html (last updated Jan. 22, 2021).
  13. Hannah M. Starnes et al., A Critical Review and Meta-Analysis of Impacts of Per- and Polyfluorinated Substances on the Brain and Behavior, 4 Frontiers Toxicology 1, 2-3 (2022), https://doi.org/10.3389/ftox.2022.881584.
  14. Id. at 4.
  15. Derrick Salvatore et al., Presumptive Contamination: A New Approach to PFAS Contaminated Based on Likely Sources, 9 Env’t Sci. & Tech. Letters 983, 983, 986 (2022).
The Biden Administration announced increased EJ funding

The Beacon Blog: Consider It Briefed

Environmental Justice in 2023: Equal Funding for All?

By Elizabeth Beairsto, Staff Editor for the Vermont Journal of Environmental Law

August 7, 2023

Introduction

From Flint Michigan’s contaminated water supply to Cancer Alley in southern Louisiana, communities of color and low-income communities are disproportionately affected by environmental pollution. Now, after decades of disinvestment, the Biden-Harris Administration has made Environmental Justice (“EJ”) a priority.

 

Spurred by the Biden-Harris Administration’s commitment to inclusivity, economic security, and climate resilience, 2023 brings historic federal funding in the fight against climate inequities. After decades of disinvestment, communities burdened by pollution and racist practices will receive this funding.

 

President Biden’s Justice40 Initiative[1] ignites the allocation of 40% of the overall benefits from federal investments to disadvantaged communities. Recent federal investments falling under the Initiative’s guidance include the 2021 bipartisan Infrastructure Investment and Jobs Act (“IIJA”)[2] and the Inflation Reduction Act (“IRA”) of 2022.[3] The IIJA invests in EJ communities by increasing access to clean drinking water; remediating legacy pollution; expanding access to public transit; and modernizing infrastructure.[4] Similarly, the IRA mirrors language from the Justice40 Initiative while building on investment programs from the IIJA. With nearly $369 billion in clean energy and climate tax credits, the IRA designates $3 billion in EJ  block grants.[5]

 

On February 23, 2023, the Biden Administration announced $550 million in EJ grants in accordance with the IRA. Designed to expedite investments through the U.S. Environmental Protection Agency (“EPA”)’s new Environmental Justice Thriving Communities Grantmaking (“EJ TCGM”) program, this funding will advance efficiency and simplify the application process for EJ grants. However, with funding allocated and Republicans in control of the House, the year ahead is a crucial moment for EJ communities.

 

How this money is distributed presents a momentous task of ensuring investments reach communities most in need. Misuse of the funding, specifically allocation to organizations that do not need financial assistance, risks hurting EJ communities. Because local and state governments ultimately control how the money they receive gets used, agency oversight is paramount.

 

Where to Watch: Texas & Louisiana

Texas:

With a history of locating hazardous waste facilities, industrial plants, and other polluting industries in low-income communities and communities of color, Texas is rife with environmental injustices. Carbon capture and storage, highway expansions and increased natural gas exports all threaten EJ communities within the Lonestar state. Further, the current controversy surrounding illegal dumping in Houston highlights the ongoing injustices minority Texans face.

 

Vulnerable Texans disproportionately face pollution. For instance, minority neighborhoods in Houston are burdened with waste facilities.[6]. Home to “all five city-owned landfills,” six out of eight incinerators, and three out of four privately-owned landfills, these neighborhoods bear the brunt of the city’s pollution.[7] Additionally, from the 1930s until 1978, a staggering 82% of solid waste disposed of in Houston was dumped in predominantly African American neighborhoods, despite African American residents comprising only 25% of the population.[8]

 

As the Biden Administration recognizes the urgency of addressing environmental injustice, the Department of Justice (“DOJ”)’s investigation into Houston’s waste management practices is a notable example of the federal government’s commitment to ensuring that communities of color are not unfairly burdened with environmental hazards.

 

Louisiana:

Louisiana has been criticized for its inadequate regulation of toxic chemicals, particularly as it is home to Cancer Alley. The history of Cancer Alley dates back to the 1920s, when the first petrochemical plants were established in the area.[9] Originally coined “chemical corridor” for the hub of oil refineries that dot its landscape, 1987 brought a new name to the region: Cancer Alley.[10] The rapid industrialization of the region paired with lacking environmental regulations resulted in a wide range of ailments plaguing the residents, from cancer to mental and physical developmental disorders.[11]

Cancer Alley exemplifies the ongoing struggle to tackle the interconnected issues of race, poverty, and pollution. Home to African American and low-income residents, “this form of environmental racism poses serious and disproportionate threats to the enjoyment of several human rights . . . including the right to equality and non-discrimination, the right to health, right to an adequate standard of living and cultural rights.”[12] As federal investments roll out to the state, “air pollution projects are made possible to assess and address air quality across the industrial corridor.”[13] Thus, with Louisiana organizations receiving $2,399,604 from the IRA to support “air quality monitoring in marginalized communities,” agency oversight is paramount to prevent the perpetuation of past injustices.[14]


In October 2022, the EPA
directed Louisiana to examine the disproportionate burdens black residents bear from air pollutants causing cancer. As of March 2023, Louisiana residents and the DOJ have unveiled a federal lawsuit. This lawsuit accuses local officials of civil rights and religious liberty violations by repeatedly approving the construction of petrochemical plants in two predominantly Black districts.[15] As such, the EPA and DOJ are collaborating to advance this pending litigation. When paired with federal investments and incentives, this partnership serves as an encouraging example for achieving justice and restoring dignity within vulnerable communities. This approach is necessary to mitigate the devastating impacts of environmental injustices and take concrete steps to rectify these harms.

 

Citations

  1. Exec. Order No. 14008, 86 FR 7619-7633, https://www.federalregister.gov/documents/2021/02/01/2021-02177/tackling-the-climate-crisis-at-home-and-abroad.
  2. Infrastructure Investment and Jobs Act, Pub. L. No. 117-58, H.R. 3684, 117 Cong. (2021), https://www.congress.gov/bill/117th-congress/house-bill/3684/text.
  3. Inflation Reduction Act, Pub. L. No. 117-169, H.R. 5376, 117 Cong. (2022), https://www.congress.gov/bill/117th-congress/house-bill/5376.
  4. See The White House, The Bipartisan Infrastructure Law Advances Environmental Justice (Nov. 16, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/11/16/the-bipartisan-infrastructure-law-advances-environmental-justice/.
  5. Carlos Barria, White House Announces $13 Bln.in Funding to Modernize Power Grids, Reuters (Nov. 18, 2022), https://www.reuters.com/world/us/white-house-announces-13-bln-funding-modernize-power-grids-2022-11-18/.
  6. See Robert D. Bullard, Environmental Justice & The Politics of Garbage: The Mountains of Houston (2014).
  7. Cole Rosengren, Environmental Justice, including at waste sites, takes center stage at Houston Event, https://www.wastedive.com/news/enviornmental-justice-epa-waterhouse-bullard-houston/622414/ (Apr. 27, 2022).
  8. Id.
  9. See Monique Michelle Verdin, Cancer Alley, Istrouma to the Gulf of Mexico, 26 Art & Vision 30-42 (2020), https://www.southerncultures.org/article/cancer-alley/.
  10. Dorceta E. Taylor, Cancer Alley, Louisiana, Pollution A to Z (2004).
  11. Sumaya Addish, Cancer Alley, Louisiana (1987-) (Jul. 1, 2021), https://www.blackpast.org/african-american-history/cancer-alley-louisiana-1987/.
  12. United Nations Office of the High Commissioner for Human Rights, USA: Environmental Racism in Cancer Alley Must End- Experts, Press Release (Mar. 17, 2021), https://www.ohchr.org/en/press-releases/2021/03/usa-environmental-racism-cancer-alley-must-end-experts.
  13. EPA, EPA Announces Louisiana to Receive Nearly $2.4 Million for Air Monitoring Projects (Nov. 3, 2022), https://www.epa.gov/newsreleases/epa-announces-louisiana-receive-nearly-24-million-air-monitoring-projects.
  14. Id.
  15. See Oliver Laughland, Cancer Town: Residents of Louisiana’s ‘Cancer Alley’ announce lawsuit against local officials, THE GUARDIAN (Mar. 21, 2023), https://www.theguardian.com/us-news/2023/mar/21/louisiana-st-james-parish-cancer-alley-lawsuit.
Food is the fulcrum point for many people to pry away the tentacles of colonization. Food sovereignty is the principle behind the leverage.

The Beacon Blog: Consider It Briefed

Decolonizing Through Food Sovereignty

By Callum LaFrance, Staff Editor for the Vermont Journal of Environmental Law

May 17, 2023

Food is the fulcrum point for many people to pry away the tentacles of colonization. Food sovereignty is the principle behind the leverage.

Food sovereignty does not have a uniform definition; however, organizations generally define it as communities having control over the production, distribution, and quality of the food they consume. (1) Some other organizations take this definition further by addressing the social and economic relations of food systems:

“Food sovereignty is the right of peoples to healthy and culturally appropriate food produced through ecologically sound and sustainable methods, and their right to define their own food and agriculture systems. It puts the aspirations and needs of those who produce, distribute and consume food at the heart of food systems and policies rather than the demands of markets and corporations.” (2)

La Via Campesina, the organization that coined the term in 1996, further qualifies this definition; “Food is the expression of values, and human dignity, cultures, social relations and self-determination, interdependence with nature.” (3)

 

Along that line of interdependence with nature, communities bring benefits to themselves and the environment while pursuing food sovereignty. These benefits are the foil to the harm caused by the exploitative and extractive practices of colonial food systems. Instead of depleting the soil and producing food with low nutrient values, traditional practices produce resilient soils and nutrient rich food, without hazardous and expensive chemicals. (4) Furthermore, the money earned by food sales stays local, instead of being concentrated in a few agriculture corporations.

The history of colonial food systems has been that of domination and dependence. In the Americas, colonial powers worked to separate Indigenous people from their food sources to separate them from their cultural practices and weaken their ability to fight colonial expansion. Just a few of the many examples of these colonizing acts include: During the Sullivan Expedition the Continental army, while committing heinous war crimes against the Haudenosaunee, targeted and destroyed fields and winter stores of food; The American army, in a similar act, funded the near extermination of buffalo to weaken Indigenous peoples living on the plains and force them into dependency on government rations unreliably dispensed at the reservations; In South America the Spanish colonizers lead a destructive

campaign against quinoa cultivation to destabilize this cultural practice and force Indigenous farmers to rely on Spanish agricultural practices. (5)

 

Modern examples of colonial impacts on food systems exist as well. In South America Indigenous communities in the Amazon Basin have been forced to rely on commercial food supplies rather than their traditional food sources because government supported mining along the river has caused extremely dangerous levels of mercury contamination. (6) The Green Revolution, the agricultural movement in western societies that used heavy amounts of fertilizer, pesticides, and Genetically Modified Organisms, also continues to have a devastating effect on local farming communities. (7)

Despite increasing the global food yield and bringing relief to many countries experiencing famine in mid 20th century, this style of farming creates a dependency on industrial fertilizers and pesticides and designer seeds, the price point of which pushes small and traditional farmers out of the market. (8) This led to most food production being controlled by a few large agricultural corporations. (9)

Luckily, there are groups and organizations that work to empower people to take control of their lives through food. Organizations like Soul Fire Farm in New York and SUSU in Vermont grow healthy food for community members who lack access to healthy food. These organizations also educate people about traditional agricultural practices as a way to reclaim a connection to the land and control over what they eat. The Ron Finely Project follows a similar tack though teaching urban farming. The Palestinian Agricultural Relief Committees (PARC) channels resources and logistical aid to Palestinian farmers with the goal of creating “strong Palestinian rural areas empower[ed] by its agriculture sector and backboned with sovereignty.” (10) In the United States, the push for returning land access to Federal lands to Indigenous peoples has also aided the food sovereignty movement because it increases access to traditional food sources and medicines. (11)

 

Citations

  1. USDI BIA, Why Food Sovereignty Matters, https://www.bia.gov/service/indigenous-tourism/why-food-sovereignty-matters (last visited May 4, 2023).
  2. U.S. FOOD SOVEREIGNTY ALL., http://usfoodsovereigntyalliance.org/what-is-food-sovereignty/ (last visited Mar. 27, 2023).
  3. LA VIA CAMPESINA, PEASANT RIGHTS AND FOOD PRODUCTION 6 (Oct. 3, 2022), https://viacampesina.org/en/undrop-thematic-booklet-no-2-peasant-rights-and-food-production-now-available/.
  4. THE CLIMATE REALITY PROJECT, LOVE REGENERATIVE AGRICULTURE? THANK INDIGENOUS PEOPLES, (Sept. 22, 2022) https://www.climaterealityproject.org/blog/love-regenerative-agriculture-thank-indigenous-peoples.
  5. NAT’L PARK SERV., The Clinton-Sullivan Campaign of 1779, https://www.nps.gov/articles/000/the-clinton-sullivan-campaign-of-1779.htm (last visited Mar. 27, 2023); J. Weston Phippen, ‘Kill Every Buffalo You Can! Every Buffalo Dead Is an Indian Gone’, THE ATLANTIC, May 13, 2016, https://www.theatlantic.com/national/archive/2016/05/the-buffalo-killers/482349/; FoodPrint, https://foodprint.org/real-food/quinoa/ (last visited Mar. 27, 2023).
  6. INFOAMAZONIA, https://infoamazonia.org/en/2021/11/26/indigenous-munduruku-contaminated-mercury/ (last visited Mar. 27, 2023).
  7. The Green Revolution was the agricultural movement in western societies that used heavy amounts of fertilizer, pesticides, and Genetically Modified Organisms. For more on its impacts see INT’L FOOD POL’Y RSCH. INST., Green Revolution: Curse or Blessing?, 3 (2002) https://www.ifpri.org/publication/green-revolution.
  8. Id.
  9. Id.
  10. PALESTINIAN AGRIC. RELIEF COMMS., https://pal-arc.org/about-us/en (last visited May 4, 2023).
  11. Jim Robbins, How Returning Lands to Native Tribes Is Helping Protect Nature, YALE ENVIRONMENT 360, (June 3, 2021) https://e360.yale.edu/features/how-returning-lands-to-native-tribes-is-helping-protect-nature; Lynda Mapes, First Foods: How Native people are revitalizing the natural nourishment of the Pacific Northwest, SEATTLE TIMES, (July 10, 2022), https://projects.seattletimes.com/2022/first-foods-native-people-pacific-northwest-preserving/.
Slaughterhouses are endangering communities and threatening the health and well-being of all nearby. FSIS and OSHA need better standards to acknowledge these concerns.

The Beacon Blog: Consider It Briefed

Factory Farms Endanger Innocent Communities

By Andrea McMillan, Staff Editor for the Vermont Journal of Environmental Law

May 1, 2023

U.S. slaughterhouses are violent places. They have dangerous and cruel effects on the exploited farmed animals themselves and the workers who perform their violent duties. These effects, however, do not simply cease to exist past confines of their walls. Slaughterhouses have harsh effects on the communities in which they operate, impacting the lives and safety of all nearby. The cruel and dangerous tasks demanded by current industry practices take a repeated toll on the welfare of all sentient beings in these communities. Slaughterhouses are exploiting whole communities, and the federal government needs to take a hard look at why it continues to help them do so.    

I. Conditions Inside and Outside the Slaughterhouse That Negatively Impact Workers

Slaughterhouse workers are some of the most exploited persons within the U.S. labor force. The majority of U.S. slaughterhouse workers are people of color with little to no bargaining power against the top four national processors that control the majority of U.S. meat supply. An estimated thirty-eight percent of these workers were born outside the U.S. and many are non-citizens. The issues these workers face are compounded by language barriers and fear of deportation, making the threat of retaliation too much for these at-will workers to report their concerns or injuries to those in charge. In some plants, employee turnover rate is as high as one hundred percent annually. In the last several years, union membership in the meatpacking industry has fallen, wages have decreased, and the occupational hazards have worsened.  

Most slaughterhouse facilities operate twenty-four hours a day, seven days a week, requiring grueling hours for a wage that pays just above the federal poverty level for a family of four. OSHA has identified several workplace hazards in slaughterhouses, including dangerous equipment, hazardous chemicals, disease exposure, and high rates of musculoskeletal disorders. Slaughter jobs rank as one of the most dangerous professions in the world, with amputations commonly occurring roughly twice a week in the United States.  “The single largest factor contributing to worker injuries is the speed at which the animals are killed and processed.” Unfortunately, federal regulations continue to increase slaughter line speeds, worsening issues for the animals, the workers, and the communities in which slaughterhouses operate. 

II. The Regulatory Framework of Slaughterhouse Line Speeds

On average, a single worker will be tasked to kill one farmed animal every twelve seconds within the course of their shift. One worker describes the only way to accomplish this impossible task is to “not care” about the animals. The U.S. Department of Agriculture (USDA), and it’s sub-agency, the Food Safety and Inspection Service (FSIS) have the statutory authority to regulate the maximum speeds at which slaughterhouses can operate. The agency has recently been chipping away at maximum slaughter speeds and worsened many of the already dangerous working conditions in these facilities. FSIS is tasked with implementing the Secretary’s mandates under the Federal Meat Inspection Act and the Poultry Products Inspection Act. Through this authority, the FSIS has continued to expand the maximum slaughter line speed to industry’s delight. The agency was forthright in addressing the tens of millions of dollars in profit that the industry would benefit from decreasing line speeds as a result of its most recent rule. The FSIS has explicitly acknowledged the evidence correlating increased line speeds to increased slaughterhouse workers. Yet the agency continues to wield its regulatory power to increase line speeds, while pointing the blame at OSHA to implement better worker safety standards. Currently, the FSIS permits slaughterhouses to kill up to 1,106 pigs and 175 chickens every hour, putting immense pressure on workers to keep up the line speed’s demand. The FSIS is blatantly ignoring the well-being of these workers and many have had their basic human rights violated.   

III. The Effects of Violence on the Workers of Factory Farms

Working in a distressing and hazardous environment has an impact on any average person’s mental health. When the work itself is inherently violent, many workers find it difficult to keep the effects from their work out of their own personal lives. Studies on the mental health of slaughterhouse workers are inhibited by language barriers and recruitment challenges, but several interviews with slaughterhouse workers confirm the mental anguish they experience from their work. Slaughterhouse workers have higher documented incidences of alcoholism, substance abuse, levels of aggression, anxiety, PTSD, and more convictions for violent crimes than other dangerous industrial jobs. Gail Eisintz, a writer well known for her documentation of conditions within the slaughterhouse has interviewed several employees of the meatpacking industry. Through her investigative work, she has documented several incidences of alcoholism, depression, sadism, and prison time for violent crimes amongst slaughterhouse workers. One slaughterhouse employee she interviewed told her “the worst thing” about the work was the emotional toll it took on him, even more so than the physical danger of performing such work. When slaughterhouse workers are unable to internalize the trauma of working in such environments, the aggression and violence they inflict on these animals follows them home and endangers all individuals within their communities.            

IV. Factory Farming’s Effect on its Neighbors in the Community

Slaughterhouse work perpetuates a vicious cycle of violence and abuse that endangers innocent lives. Communities with large slaughterhouses are plagued by increased rates of violent crime, housing shortages, increased demands for social assistance, and high rates of child abuse. Slaughterhouse employment is also associated with high rates of arrests for sexual assault and domestic violence. The U.S. Department of Justice has been studying the link between cruelty to animals and human violence for several decades now, and it is well established that exposure to violence can increase the violent inclinations within person.  In fact, many of the most infamous U.S. serial killers were known to have tortured or killed animals before they killed other humans. 

The Covid-19 pandemic hit slaughterhouse workers especially hard.  During the pandemic, slaughterhouse workers were given little to no protection from exposure, and experienced high rates of infection and death from the virus. In rural communities with high proportions of these meatpacking operations, cases of the virus were at rates ten times higher than other similarly situated rural areas. FSIS was given $33 million dollars in funding from the Coronavirus Aid, Relief, and Economic Act (CARES), and spent almost half of it to increase the salaries of the its own inspectors, leaving these workers and their communities with no support or protection to shield them from the dangers of the meatpacking industry.   

To add insult to injury, communities with slaughterhouses are constantly threatened by the pollution these facilities create. Hundreds of U.S. slaughterhouses dump their toxic waste directly into local waterways. This waste contains several human health hazards, including fecal bacteria, veterinary drugs, and cleaning products. Some facilities do not dump their waste directly into waterways, and instead house the waste in lagoons. During heavy rain periods or flooding, communities near these facilities report increased infectious rates, because the lagoons often overflow and contaminate community water supplies.  

V. Conclusion

Slaughterhouses are endangering communities and threatening the health and well-being of all within their vicinity. Until FSIS or OSHA decide to stop pointing the blame towards one another and implement better standards that acknowledge the health and welfare of the workers they employ, communities will continue to be harmed by their adverse effects.

Despite being a "melting pot

The Beacon Blog: Consider It Briefed

Out of the Melting Pot and Into the Polluted Cage: ICE Detention Centers are Exposing Immigrants to Toxins

By Chase Ford, Staff Editor for the Vermont Journal of Environmental Law

April 7, 2023

The journey of an immigrant is a story of resilience, hope, fear, and survival. Unfortunately, too often, the villain of those stories is the United States immigration system. Despite referring to our society as a “melting pot,” our government and society have long resisted and feared immigrants. (1) This paradox has persisted and thrived, especially over the last decade. President Trump separated children from their families at the border and implemented Title 42, a policy that used the emergency of the pandemic to expeditiously send asylum seekers back to their home country or the country they were last in. (2) In February, the Biden Administration proposed a harsh replacement for the Title 42 policy, set to end in May, that radically limits asylum at the border. (3) The government continues to crack down on illegal immigration, arresting and removing noncitizens who violate U.S. immigration laws.

In the mix of complicated immigration policies and cruel treatment from Immigration and Customs Enforcement (ICE) officials, immigrants are exposed to toxins and pollution at detention centers while awaiting deportation. Exposure can come internally within the center or externally from surrounding facilities. Regardless of where the exposure comes from, people are trapped within the detention center. Not only does the system degrade an immigrant’s sense of humanity, but it also poisons them. Reports from three detention centers highlight this environmental entrapment:

Karnes County Residential Center is a privately operated immigrant detention center for families seeking asylum in the United States located in Karnes City, Texas. (4) Within 100 feet of the facility are gas flares and pumpjack oil wells. (5) These fracking emissions are harmful to human health and especially hazardous to vulnerable populations, including  children, newborns, and pregnant woman at the detention center. (6) A 2017 Earthworks report found an excess of benzene, hydrogen sulfide, cyclohexane, naphthalene, n-hexane, and xylenes in the area. (7) These chemicals cause respiratory illness, neurological problems, developmental damage, cancer, and sometimes death. (8) On top of the environmental exposures, immigrants at the facility have filed numerous mistreatment claims, including allegations that officers sexually assaulted women, denied medical care to children, and that people were “treated like animals.” (9)

 

The Northwest CE Processing Center, located in Tacoma, Washington, is operated by the private GEO Group. (10) The center sits adjacent to a federal Superfund cleanup site where a coal gasification plant released toxic sludge into the soil for over three decades. (11) Today, the site is still dotted with drainage ditches, retention ponds, and a capped waste pile. (12) The EPA Superfund contaminant list shows the soil, sediment, surface water, groundwater, and air supplies to be polluted with 27 different compounds. (13) These compounds can cause skin irritation, respiratory infections, developmental effects, cancers, organ failure, and sometimes death. (14) Additionally, the building is constructed on a low-lying floodplain on top of loose soils prone to liquifying during earthquakes. (15) If an earthquake  were to hit, the GEO Group would have less than eight minutes to evacuate over 1,500 immigrants, and their safety plans have never been released to the public. (16) More recently, in February 2023, GEO guards used chemical agents following a physical conflict about conditions at the facility, including the food served to immigrants. (17) Chemical agents, like tear gas, can cause blindness, glaucoma, respiratory failure, and chemical burns to the throat and lungs. (18) As of the date of this article, the Washington State Attorney General is investigating the incident. (19)

 

In 2022, nine individuals filed a complaint against the privately-owned Imperial Regional Detention Facility in Calexico, California. (20) The complaint alleged civil and human rights violations, including toxic and unfiltered air, contaminated water, and exposure to dust and mold. (21) According to the complaint, immigrants detained at Imperial experience difficulty breathing and suffer from headaches and gastrointestinal pains. (22) The facility’s nonfunctional air ventilation system is the primary cause of these issues. (23) This is not the first time immigrants in the facility have called out the Imperial facility for its unsafe practices. In 2020, the Office of the Inspector General for the Department of Homeland Security ordered ICE to address conditions at the facility, including “mold, rust, and peeling paint in showers in detainee housing areas.” (24) ICE claims to have addressed the issues, but as the 2022 complaint highlights, that is not the case. (25) Immigrants in the facility claimed that the mold was covered in paint and reappeared. They also shared their experiences with skin problems, hives, and vision issues that they believe stem from contaminated water at the facility. (26) Advocates should continue to follow the status of this complaint.

 

Sadly, these are just three examples of the toxic conditions ICE subjects immigrants to. Every facility has unique challenges, whether it is its location, the condition of the center, or the actions of enforcement officers. A common message exists though: private parties working under ICE’s authority must be held accountable for their actions. The U.S. immigration system equates anti-immigration policies with anti-humanitarian policies. It bears repeating this philosophy is not only dehumanizing immigrants but also poisoning them. We need to stop removing immigrants from the “melting pot” and locking them in polluted cages.

 

Citations

  1. William Booth, One Nation, Indivisible: Is It History?, THE WASH. POST (Feb. 22, 1998), https://www.washingtonpost.com/wp-srv/national/longterm/meltingpot/melt0222.htm.
  2. Isaac Chotiner, Are Biden’s Immigration Policies Stuck in the Trump Era?, THE NEW YORKER (Mar. 2, 2023), https://www.newyorker.com/news/q-and-a/are-bidens-immigration-policies-stuck-in-the-trump-era.
  3. Id. 
  4. Jeremy Deaton & Owen Agnew, Texas Immigrant Detention Center Stifled by Pollution, NEXUS MEDIA (Sept. 7, 2018), https://nexusmedianews.com/texas-immigrant-detention-center-marred-by-pollution-video-bc936076a97/.
  5. Id. 
  6. Id.
  7. Jasmine Vazin, Toxic Detention: The Trend of Contamination in the American Immigration System, THE GLOB. ENV’T JUST. PROJECT 10 (Jan. 2019), https://gejp.es.ucsb.edu/sites/secure.lsit.ucsb.edu.envs.d7_gejp-2/files/sitefiles/publication/GEJP%20Special%20Report%202019.pdf.
  8. Id.                                                                                                                       
  9. Deaton & Agnew, supra note 4. 
  10. Candice Bernd, Climate Refugees in Toxic Immigrant Jails Are Victims of Environmental Racism, TRUTHOUT (July 30, 2017), https://truthout.org/articles/climate-refugees-in-toxic-immigrant-jails-are-victims-of-environmental-racism/.
  11. Id. 
  12. Id.
  13. Vazin, supra note 7, at 13. 
  14. Id.
  15. Id.
  16. Id.
  17. Alexis Krell, How are chemical agents used at the immigration detention center on the Tacoma Tideflats?, THE NEWS TRIB. (Feb. 17, 2023), https://www.thenewstribune.com/news/local/article272276968.html.
  18. Facts About Riot Control Agents, Center for Disease Control and Prevention (Apr. 4, 2018), https://emergency.cdc.gov/agent/riotcontrol/factsheet.asp#:~:text=People%20exposed%20to%20riot%20control,%2C%20irritation%2C%20difficulty%20swallowing%2C%20drooling.
  19. Krell, supra note 17.
  20. Alejandro Dávila Fragoso, Facing noxious air and contaminated water, immigrants detained in Imperial ICE prison lodge new federal complaint, EARTHJUSTICE (Jan. 24, 2022), https://earthjustice.org/press/2022/facing-noxious-air-and-contaminated-water-immigrants-detained-in-imperial-ice-prison-lodge-new-federal-complaint. 
  21. Id.
  22. Id.
  23. Id.                                                                                                                          
  24. Kate Morrissey, Immigration detainees say there’s contaminated air, water at Imperial Regional Detention Facility, THE SAN DIEGO UNION-TRIB. (Jan. 28, 2022), https://www.sandiegouniontribune.com/news/immigration/story/2022-01-28/contaminated-air-water-imperial-regional-detention.
  25. Id.
  26. Id.
Many Americans consider lawns synonymous with success

The Beacon Blog: Consider It Briefed

The American Lawn and De-Colonizing the Permaculture Movement

By Abigail Bailey, Staff Editor for the Vermont Journal of Environmental Law

April 4, 2023

Many Americans consider lawns synonymous with success, comfort, and community. (1) They have often become ubiquitous, perhaps without due consideration. (2) Neat lawns are enforced in a variety of ways, including zoning codes and home-owners associations. (3) Nonetheless, they cause a great deal of environmental problems, including “dramatic potable water consumption, high energy costs from water use, increased water and air pollution, and loss of biodiversity.” (4)  

Luckily, awareness of lawns’ negative impact is on the rise. (5) One facet of response is to reform Homeowners’ agreements and zoning codes. Another is participating in the growing permaculture movement. As with any change, not all people experience this progress in the same way. While it promises an idyllic solution to a portion of our current environmental challenges, the permaculture movement causes a rift in our culture. The rift must be overcome if we are to move forward. 

 

The permaculture movement involves working with the land and pre-existing ecosystems to increase biodiversity, productivity, and environmental wellness. (6) Many have hailed this movement as a potential savior of much of America’s land, as lawns are currently the country’s biggest irrigated crop. (7) Unfortunately, the movement also causes a greater socioeconomic rift between people who have the luxury to take advantage of the publicized, commercialized version of the movement and those who either find its tenets self-evident or will not have the luxury to invest in the solution. (8) Instead of a constructive improvement on a common way of life, traditional knowledge has sometimes been appropriated for capital and used to justify buying more high-value land. (9) Some go so far as to say the movement “demoniz[es] small peasant [farmers]” (10) as it extolls those who will pay for the solution. (11)   

One solution to this rift is to consider the possible colonizing effects of a permaculture movement within the current economic structure and adapt to minimize them. For example, people can offer permaculture knowledge freely instead of charging large fees. They can give proper deference to cultural knowledge they draw from, instead of presenting the information as purely their own.  

 

Another constructive solution is to give more people the option of improving their existing situation by removing legal barriers. There is growing support for lawn rewilding, (12) and legally binding zoning ordinances and homeowners’ associations rules will likely follow suit. Either communities can advocate with their municipalities to change the prevailing zoning laws, or individuals can apply for variances or conditional use permits to alter their own properties. (13) Homeowners’ associations often make their rules at will and can change their lawn requirements by vote. (14) General availability of knowledge related to permaculture and rewilding, combined with the freedom to carry out a project, could have a major impact on the American landscape and biodiversity. 

There are obstacles to overcoming the mythos of the American lawn, beyond the immediate legal obstacles. The rift in socioeconomic status related to lawns is also related to the American Dream mythos, and the idea of success, and homeownership. (15) There are huge racial disparities in American homeownership and access to lawns. (16) Destroying lawns lowers property value in a neighborhood, no doubt because of prevailing biases and ideas. (17)                                                                    

Following World War II, the federal government allocated funding to help veterans and families achieve homeownership. (18) These policies were deeply discriminatory in implementation, for the most part benefitting only white families. (19) The lawn was quickly adapted as a symbol of power and freedom from either the monochrome of the city or the dirt and crops of agrarian homes. (20) Lawns of plants grown for no reason besides beauty and sport had been a European power symbol even back to medieval castles, and were modernized into a common feature of many American lawns as a show of abundance. (21) The history of lawns shows the roots of ties between the value increase they confer on a property (22) and racial bias. 

People without lawns of their own can participate in so-called “guerrilla permaculture.” (23) This term is loosely defined, but generally entails the pursuit of alternative gardening for nourishment and reclamation of unused land, for example by using “seed bombs” (24) on empty lots. (25) It sometimes intends to disrupt the concept of land ownership entirely. (26)

Attempting to align landowners with lawns and people without access to gardens (and perhaps an intent to disrupt land ownership altogether) muddies the waters of permaculture. Cultural divides are not easily overcome, even in pursuit of a solution to a major environmental issue. The permaculture movement bears many loose definitions and associations. Still, the basics of the idea may appeal to everyone if they are made legally accessible and convenient. If all participants proceed with caution and communication, permaculture and rewilding may be made more broadly accessible, with benefits for all participants.  

 

Citations

  1. Sarah B. Schindler, Banning Lawns, 82 GEO. WASH. L. REV. 394, 403-405 (2014). Available at: http://digitalcommons.mainelaw.maine.edu/faculty-publications/68.
  2. Id. at 394, 403-405.
  3. Id. at 434-436.
  4. Id. at 406.
  5. Krystal D’Costa, The American Obsession with Lawns, SCIENTIFIC AMERICAN, (May 3, 2017) https://blogs.scientificamerican.com/anthropology-in-practice/the-american-obsession-with-lawns/.
  6. Amy, What is Permaculture? Designing a Resilient Garden, TENTH ACRE FARM PERMACULTURE FOR THE SUBURBS, (Feb. 9, 2023) https://www.tenthacrefarm.com/what-is-permaculture/.
  7. Schindler, supra note 1, at 394.
  8. Jesse Watson, Decolonizing Permaculture, RESILIENCE (February 19, 2016) https://www.resilience.org/stories/2016-02-19/decolonizing-permaculture/.
  9. Id.; See also Tobias Roberts, How to Decolonize the Permaculture Movement, HUFFINGTON POST, (Jan. 31, 2017, Updated Jan. 31, 2018) https://www.huffpost.com/entry/how-to-decolonize-the-per_b_14501784.
  10. Id.
  11. Id.                                                                                                                            
  12. D’Costa, supra, note 5.
  13. Zoning Changes, Variances, and More, FINDLAW.COM (Sept. 6, 2018) https://www.findlaw.com/realestate/land-use-laws/zoning-changes-variances-and-more.html.
  14. How to Change HOA Bylaws, Covenants, and Rules, HOA MANAGEMENT, https://www.hoamanagement.com/how-to-change-hoa-bylaws/.
  15. Schindler, supra note 1, at 403-405; See also D’Costa, supra, note 5.
  16. Brandi Snowden and Nadia Evangelou, Racial Disparities in Homeownership Rates, NATIONAL ASSOCIATION OF REALTORS (March 3, 2022) https://www.nar.realtor/blogs/economists-outlook/racial-disparities-in-homeownership-rates.
  17. Schindler, supra note 1, at 419.
  18. How the Perfect Lawn Became a Symbol of the American Dream, HISTORY, https://www.history.com/news/lawn-mower-grass-american-dream (last visited Mar. 27, 2023).
  19. Id.
  20. Id.
  21. Id.
  22. Does Lawn Care Affect Your Property Value?, LAWN STARTER, https://www.lawnstarter.com/blog/lawn-care-industry/lawns-appearance-affect-property-value/ (last visited Mar. 27, 2023).
  23. Mickey Angel, Guerilla Permaculture: A Look at Unstoppable Alternative Food Ecologies, NUTRITIONALADVERSITY.COM (July 11, 2020) https://nutritionaldiversity.com/guerrilla-permaculture/.
  24. How to Make a Seed Bomb, THE WILDLIFE TRUSTS, https://www.wildlifetrusts.org/actions/how-make-seed-bomb
  25. Id.; See also Guerilla Permaculture, supra note 17.
  26. Angel, supra note 23.
Increases in storm frequency

The Beacon Blog: Consider It Briefed

The Next Atlantis: Climate Justice in the Pacific Islands

By Hope McLellan-Brandt, Staff Editor for the Vermont Journal of Environmental Law

April 2, 2023

The truth of climate change becomes more prevalent every year, particularly in the Pacific Islands, where increases in storm frequency and severity, along with sea level rise, puts the Pacific Islands at greater risk than the developed world. Waves constantly wash over low-lying islands in the Pacific, damaging crops and groundwater supplies. A recent study shows that the repeated damage due to climate change could render many Pacific Islands uninhabitable as early as 2030. Whole island nations are facing erasure, while industrialized countries reap all the benefits of high carbon emitting activities. For small island states, like the Republic of Palau, the climate crisis is personal. People living in Palau deal with the reality of climate change on a daily basis. In an interview, former President Tommy Remengesau Jr. described his own experiences in using sandbags to prevent the sea level rise from washing away his home. He goes on to explain that sea level rise affects more than just homes; the salt water from the ocean has inundated farms and plantations. Once the soil has been inundated with salt water, the soil is often no longer arable. In addition to sea level rise, ocean acidification greatly affects islands like Palau. The acidification causes coral bleaching, which can affect the fishing environment. Coral cover plays a vital role in determining the overall health of a coral ecosystem. Coral “[r]eefs provide home and shelter to over 25 percent of fish in the ocean and up to 2 million marine species.” This has overarching effects on the people in Palau because fishing plays a key role in Palauan culture as not only sport fishing but sustenance fishing, meaning that climate change not only effects the structures on the island, but many of the aspects central to their culture and survival.

 

As one can expect, because of the severe effects of climate change in Pacific Islands, Island leaders have tried to be a strong voice in international climate debates. But, despite their efforts, they remain unheard by industrialized nations who have the most power to influence change. However, not all is lost. Over the last year, there have been a series of pushes from the small island states and other climate vulnerable nations to take a legal approach to encouraging international action. Vanuatu, another Pacific Island, has proposed an initiative to request an advisory opinion from the International Court of Justice (ICJ) to “issue an opinion on the obligations countries have to protect the rights of present and future generations from the harmful impacts of climate change.” In its efforts to obtain the opinion, Vanuatu has been gathering support to try and compel the ICJ to issue an advisory opinion. An ICJ advisory opinion is not binding, but it can help hold nations accountable for protecting human rights as they relate to climate change. And, as conditions worsen, it becomes increasingly essential that there be some mechanism by which small island states can hold large nations accountable for the actions they take that exacerbate climate change. As of March 1, 2023, there are 105 co-sponsors for the United Nations (UN) Climate Justice Resolution. Currently, the resolution is expected to be adopted by the UN General Assembly in late March or early April. A favorable ICJ advisory opinion would be essential for future climate debates. For more information about that resolution, and to follow recent updates, please visit this link.

 

The issues surrounding climate change in the Pacific Islands are prime examples of how environmental injustice plays out on an international scale. People living in the Pacific Islands are routinely ignored in international debates, their cries for help stretching across decades of debate in the international community. But, individuals from wealthier, higher polluting countries turn a blind eye to the harm that occurs in developing nations on a daily basis because for nations relatively unaffected by climate change, the harm felt by climate change is easy to ignore. To quote a song written by an artist in Vanuatu: 

 

“What does it take for you to see 

 

Lives are being lost 

 

With all the storms raging, corals dying, ocean levels rising 

 

It’s a threat to our human rights.”  

 

People living in the Pacific Islands do not have time to wait. Action needs to happen now. Voices in the Pacific need to be heard before it is too late, and the beautiful culture and humanity of the Pacific become the next Atlantis, islands lost to time.

Fredrick Ole Ikayo discusses environmental justice in his home country of Tanzania

The Beacon Blog: Trail Notes

Fredrick Ole Ikayo’s Trail Notes

Edited by Chase Ford, Kai Hardy, and Stephanie Piccininni

February 13, 2023

Interviewee: Fredrick Ole Ikayo (VLGS ’23), LLM Fellow at the Vermont Law and Graduate School Environmental Justice Clinic

 

Q: What does environmental justice mean to you? 

A: Environment Justice (“EJ”) is thefair treatment and meaningful involvementof all people in the development, implementation, and enforcement of Environmental laws regardless of race, color, income, or national origin. Additionally, true community engagement to ownership is paramount to amplifying community voices, especially those excluded from democratic voices and power. 

Q: Tell me about where you grew up? 

A: I am from the Maasai tribe, an indigenous and semi-nomadic ethnic tribe in Tanzania. My paternal family lives in the Ngorongoro Conservation Area (“NCA”). We use the land as a shared resource, and the cattle economy is essential to provide for our basic needs: food, clothing, and shelter. 

As a child, I would assist in livestock herding as part of our traditional lifestyle. I enjoyed the breathtaking landscape and the blend of scenery while grazing. The natural surroundings, greenery, open skies, and wildlife evoked my tranquility and calmness. Overall, the grazing experience was a form of mindfulness and connection with nature. 

Over the years, restrictive laws on where to graze and the prohibition on crop cultivation for our subsistence have impacted our way of life and livelihoods. Additionally, the impact of climate change has caused disruptions in the form of precipitation patterns and rising temperatures leading to prolonged droughts—causing disruptions to the delicate balance of the ecosystem we depend on.

Q: What is the most pressing environmental justice issue in Tanzania? 

A: The pressing environmental injustice that has recently attracted global outcry is the unlawful eviction of approximately 150,000 indigenous Maasai, including 70,000 in Loliondo and 80,000 in Ngorongoro, from their ancestral land, which the Maasai have stewarded for centuries. The NCA was declared a World Heritage by UNESCO in 1979. 

But the “fortress conservation model,” premised on the idea that biodiversity protection is best achieved by the exclusion of people, has displaced and excluded us from our ancestral land, denying us meaningful involvement and power in matters affecting our cultural survival, cultural identity, and livelihoods. It is like a resource curse; in this context, the indigenous Maasai have been on the negative receiving end in an area rich in biodiversity. We are paying the brutal price of evictions to pave the way for tourism and conservation. 

Q: What steps are being taken, if any, to solve that issue? What are the challenges to solving it? 

A: The Tanzanian government has resorted to “voluntary relocation.” However, how impartial the process is to relocate the Maasai from the NCA has raised many concerns and questions. Among these concerns is a lack of free, prior, and informed consent. 

The challenges and predicaments of the Maasai in the NCA are from a historical standpoint and relate to the unique, internationally significant conservation status and tourist status accorded to our homelands. 

Q: Why did you go to law school? 

A: As a child, I learned the importance of ancestral lands and experienced the impact of environmental degradation. I saw how our people faced severe human rights violations inflicted on them by different people and government authorities. I lived through prolonged droughts for most of my life and had to travel long distances for grazing. 

As a result of such violations, I became more passionate about going to law school and practicing law. I eventually attained a law degree, which served as a catalyst to open my eyes to a broader interest in environmental law. An interest that has become personal is to advocate for the interests of minority communities, including that of the Maasai, in preserving the natural course of our land, environment, and livelihood. 

Q: Describe your environmental justice work at Vermont Law and Graduate School? 

A: At the EJC, I co-teach and work on cases addressing industrial agriculture, supervise student attorneys, support work with Environmental Justice communities in Vermont, and research state, national, and international environmental justice laws and policies. 

Q: Do you feel like environmental justice receives enough attention at Vermont Law and Graduate School? 

A: As one of the few EJ Clinics in the nation, VLGS’s Environmental Justice Clinic provides a supportive and enriching environment to help clinicians grow academically and prepare them for successful careers, including in environmental justice advocacy. While the Clinic is seeking new staff, the school has supported interim Clinic Director and Associate Professor Mike Harris, Assistant Professor and Interim Senior Attorney Christophe Courchesne, and I (Fellow Fredrick Ole Ikayo), who have been instrumental in carrying out the Clinic’s work during this transitional period. Their mentorship fosters academic growth and clinical practice and helps student attorneys develop essential practical skills and critical thinking. VLGS has now begun a search for a new EJ Clinic Director and Staff Attorney starting in the fall of 2023. 

Q: What advice would you give to individuals who are interested in working on environmental justice issues? 

A: I would advise a prospective lawyer interested in working in the EJ field that it calls for a dedication to empower communities (community lawyering). In some instances, a traditional lawyer might be passionate about helping an EJ community but may fail to give a community a sense of their power, thereby creating dependency instead of interdependency. Power shifting and self-determination are paramount to EJ communities for real lasting changes. For instance, this occurs when the EJ community identifies grievances and develops demands, solutions, and strategies for tackling a problem. As a result, the community becomes an “integral part” of developing, implementing, and identifying solutions to its problems. And the lawyer(s) takes a “collaborative role” with the community in achieving those solutions. Building trust, listening skills, and learning from EJ communities are essential tools in pursuit of social justice goals.

The United States' infrastructure is crumbling. The Infrastructure Investment and Jobs Act was passed to address that.

The Beacon Blog: Between the Lines

The Infrastructure Investment and Jobs Act: At Crossroads with NEPA and Environmental Justice

By Yasmin Perez Ortiz, Vermont Law School Alumna ’20

July 6, 2022

“It is up to individuals and the states to demand and promote environmental justice regulations.”

INTRODUCTION

It is no secret that the United States’ infrastructure is crumbling. In 2021, the American Society of Civil Engineers published a Report Card for America’s Infrastructure. The Report Card awarded America a C- based on its physical infrastructure condition and needed investments for improvement. The overall Report Card covers 18 infrastructure categories including drinking water, hazardous waste, solid waste, wastewater, stormwater, and energy. The highest score among the categories previously listed was a C+ for solid waste, demonstrating the intersectionality between infrastructure and environmental impacts.

The hands that built and continue to build America’s infrastructure have many colors. For example, many immigrants—a significant majority of them from China—were among the 20,000 individuals who built North America’s first transcontinental rail line. Enslaved people built roads connecting Alabama and Georgia—paving the way for industries like cotton and textiles. More recently, data from the Center for Migration Studies and the 2018 U.S. estimates that around 19.8 million immigrants work in “essential critical infrastructure,” as defined by the Department of Homeland Security. However, infrastructure development in the U.S. has been a tool for continuing inequality, disproportionately affecting minorities      and increasing their vulnerability to environmental hazards. As a response, proponents of environmental justice advocate      for “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies.”

For months, the Infrastructure Investment and Jobs Act (the Infrastructure Act) was the center of political debate; its purpose was sequestered by political and partisan agendas. While President Biden presented the Infrastructure Act as an instrument for environmental justice, both Democrats and Republicans have publicly stated their priorities do not align with the priorities of the communities most impacted by the climate crisis. In fact, the Infrastructure Act has been promoted as opening the door to green energy policies and a step towards a cleaner environment. However, buried in the more than 2,700 pages of the Act, several sections would abandon protections affecting vulnerable communities in the United States. 

This article examines the potential impact of the Act on the National Environmental Policy Act (NEPA), and consequently, on the most vulnerable communities in the United States.

THE ENVIRONMENTAL IMPACT OF THE INFRASTRUCTURE INVESTMENT AND JOBS ACT

1. The NEPA Procedure

NEPA dictates that, before commencing an action, an agency must determine whether the action “is a major action with a significant effect.” Sierra Club v. U.S. Army Corps of Engineers, 295 F.3d 1209, 1215 (11th Cir. 2002). Federal agencies must follow a statutory environmental review process established by § 102. Accordingly, federal agencies need to complete an Environmental Assessment (EA) to reach a determination. 295 F.3d 1209, 1215 (11th Cir. 2002). “The EA should provide enough evidence and analysis to guide the agency to one of two conclusions: (1) a finding that the project will have a significant effect, or (2) a finding of no significant impact (FONSI).” Id. Once the agency determines that the proposed project will have a significant environmental impact, the agency must prepare an Environmental Impact Statement (EIS). Id. Absent such a finding, the agency must issue a FONSI, “which incorporates the EA and explains why the action will not have a significant effect on the human environment.” Id.  

The EIS requires the agency to assess (1) the environmental impact of the proposed action; (2) unavoidable adverse environmental effects; (3) alternatives to the proposed action; (4) the relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity; and (5) any irreversible and irretrievable commitments of resources that would be involved in the proposed action. 42 U.S.C. 4332(2)(C). Several administrations have addressed issues with NEPA procedural requirements and have tried to streamline the EIS preparation. Judicial review of a federal agency’s compliance with NEPA is governed by Administrative Procedure Act (APA).

 

2. Resurrecting the “One Federal Decision”

Subtitle C § 11301 of the Infrastructure Act continues to loosen NEPA requirements. This section of the Infrastructure Act amends § 139 of title 23, United States Code, and codifies Executive Order 13807, known for implementing the One Federal Decision (OFD). President Biden overruled OFD during his first day in office through Executive Order 13990, which also canceled the Keystone Pipeline. The original OFD applied to infrastructure projects, including transportation projects like those included in the Infrastructure Act. The motives behind OFD are not new—it follows a trend from the Obama and Bush administrations to streamline NEPA’s permit process. 

 

The Trump administration intended OFD to promote infrastructure development by reducing a federal agency’s average time to comply with environmental reviews and authorization for major infrastructure projects to two years. As codified in the Infrastructure Act, OFD requires all federal agencies with authority to conduct environmental review or decisions over major infrastructure projects to develop one environmental document per project and sign all necessary authorizations for “major projects” within 90 days of completion of NEPA’s process. OFD also limits EISs to 200 pages. Overall, OFD directed federal agencies to expedite the NEPA process. 

To that end, the Infrastructure Act amends 23 U.S.C. § 139, shifting the burden to determine when to apply §139 procedures to projects for which an EA is prepared from the Department of Transportation (DOT) to the project sponsor. Under the Infrastructure Act’s framework, the sponsor must request application of § 139. Furthermore, the single environmental document requirement can be waived if the lead agency determines that relying on the document is contrary to the timely completion of the environmental review process, if the project sponsor requests a waiver, or if an agency cooperating with the lead agency already satisfied its NEPA requirements. Thus, OFD presents several problems, including sending a message of the federal government’s approval of agencies forgoing the environmental review required by law. 

Satisfying NEPA requirements on an expeditious basis is not congruent with NEPA’s purpose. “The object of NEPA is to require federal agencies to consider environmental values when making decisions, and the initial responsibility of the federal agency is to determine the extent of the environmental impact.” Hill v. Boy, 144 F.3d 1446, 1449-50 (11th Cir. 1998) (citation omitted). The average environmental review period lasts over two years and is measured from the date the notice of intent (NOI) is published to the date an EIS is completed. NEPA is about disclosure and accountability, and its application over environmental justice is already limited to whenever there is an interrelation between “economic or social and natural or physical environmental effects.” A two-year deadline might reduce the environmental review process’s effectiveness and could potentially lead to the judicial review of poorly planned projects, eventually delaying the infrastructure development process even more. 

 

3. The Road to Environmental Justice

President Clinton’s Executive Order 12898 directs federal agencies to, “[t]o the greatest extent practicable and permitted by law,” “make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.” President Clinton’s Order also created an Interagency Working Group (IWG) to guide agencies in implementing the Order’s requirements. However, EO 12898 is limited to “the internal management of the executive branch,” and it is not a compliance tool. Title VI of the Civil Rights Act of 1964 (The Civil Rights Act) may have been the legal basis for EO 12898.

 

In 2021, DOT issued an environmental justice order seeking to improve DOT’s internal management pursuant to EO 12898, and in 2016 updated the department’s environmental justice strategy. However, in 2019, the Government Accountability Office (GAO) published “Environmental Justice: Federal Efforts Need Better Planning, Coordination, and Methods to Assess Progress,” a report finding that most federal agencies have failed to update a strategic plan to support environmental justice efforts as directed by EO 12898. Then,  President Biden issued EO 14008, amending EO 12898 by changing the name of IWG to the White House Environmental Justice Interagency Council (EJIC), assigning its oversight to the Executive Office, and creating an Environmental Justice Advisory Council (EJAC) within EPA. Both councils were tasked with improving how agencies consider environmental justice under EO 12898. But is EO 14008 enough to force the agencies to update their environmental justice analyses? Not all environmental issues are caused by major federal actions, and enacting laws and regulations at the state and local levels may be an alternative to empowering environmental justice communities.

Environmental justice is gaining traction. More than a dozen cases in the past twenty years included environmental justice issues as part of the arguments. In Vecinos para el Bienestar de la Comunidad Costera v. FERC, the D.C. Court of Appeals addressed petitioners’ environmental justice claims under NEPA, among other claims. The Federal Energy Regulatory Commission (FERC) granted the applications for the construction and operation of three liquified natural gas (LNG) export terminals and the construction and operation of pipelines to carry LNG to one of the terminals. Petitioners argued that FERC’s analysis of the impacts on climate change and environmental justice communities was deficient under NEPA and other statutes. The D.C. Court of Appeals remanded the case, concluding that FERC deficiently addressed the projects’ environmental justice impacts by examining an area limited to “communities in census block groups within a two-mile radius of the project site, but not communities farther afield.” 

The communities within those block groups were minorities and low-income. FERC determined that granting the construction of the LNG pipeline and facilities was a major federal action significantly affecting the quality of the human environment. Therefore, FERC prepared an EIS which examined “whether any of the Project impacts would disproportionately affect those communities due to factors unique to those populations like inter-related ecological, aesthetic, historical, cultural, economic, social, or health factors.” FERC concluded the projects would have an insignificant impact and would not have any “disproportionate adverse effects on minority and low-income residents in the area.” The D.C. Court of Appeals agreed with Petitioners’ argument that FERC’s decision to limit its review to a two-mile radius from the project site was arbitrary and capricious. The court recognized that apart from NEPA, EO 12898 requires agencies to conduct environmental justice analyses. The Court relied partly on each project’s EIS, which concluded that the environmental effects would go beyond the two-radius area limit.

In Vecinos, FERC completed an EIS for each project around three years after the applications were submitted. Still, FERC found the projects would not adversely affect environmental justice communities. Although the primary issue was that FERC limited the EIS study to a two-mile radius, one can reasonably conclude that restricting the timeframe of an environmental review process may adversely affect an agency’s conclusions. Consequently, erroneous findings could disregard the effects a project may have on environmental justice communities. Furthermore, the legal paths for plaintiffs in environmental justice cases continue to narrow down after the Supreme Court’s decision in Alexander v Sandoval.

 

After Alexander, efforts through NEPA can be supported under      Title VI of the Civil Rights Act only when there is a claim of intentional discrimination. Intentional discrimination—or disparate treatment—requires showing that an action is motivated by an intent to discriminate. In general, § 601 of Title VI prohibits discrimination “based on race, color, or national origin by any entity or program that receives federal funds.” Section 602 authorizes federal agencies to “effectuate the provisions of Section 601 by issuing rules, regulations or orders of general applicability.” Before Alexander, communities relied on § 602 to claim disparate impact discrimination caused by government regulations. Contrary to disparate treatment, disparate impact results in unintentional discrimination, and therefore disparate impact may be easier to prove. But the Court ruled in Alexander that § 602 did not allow private individuals to bring disparate claims to court. The Alexander decision limited environmental justice communities’ avenues for compensation under Title VI. Although the EPA has administrative processes in place to manage environmental justice complaints, communities have complained—and courts have agreed—that the EPA often fails to complete investigations in a timely fashion. 

Streamlining NEPA procedures should not disproportionately affect communities and their participation in the decision making process. Vecinos demonstrates judicial review leading to environmental justice—but relying on judicial review is a lengthy, drawn-out process. The environmental justice process will be truer to its goal when the procedures are not drawn out to such lengthy timeframes, including inefficient administrative processes. More than an executive order is necessary to force federal agencies, among other actors partaking in infrastructure projects with environmental impacts, to update their environmental justice analysis. By resorting to judicial review, environmental injustices may persist over time periods that could be immensely shortened. But legislation prioritizing speediness over a thorough environmental review process and condoning agencies forgoing the legally required process is not the right path to achieving environmental justice. That is OFD’s effect and it will negatively impact how environmental justice communities prove the discriminatory effects of the government’s projects or policies. For now, it is up to individuals and the states to demand and promote environmental justice regulations.

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