Category: Beacon

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.

Despite their crowded streets

The Beacon Blog: Consider It Briefed

Tackling Food Insecurity in Urban Food Deserts: A Legal Toolkit

By Colleen McGrath, Juris Doctor Candidate (VLGS ’23) and Staff Editor for the Vermont Journal of Environmental Law

April 10, 2022

Despite their crowded streets, the Bronx, Brooklyn, Newark, Chicago, and other large urban communities are often considered food deserts. Food deserts are regions of food insecurity where healthy, fresh groceries are virtually inaccessible. Food deserts are typically marked by low income, lack of access to adequate public transportation, or simply lack of choice in the area. Food insecurity already impacted nearly 11% of Americans in 2019 before the COVID-19 pandemic hit. Statistics also showed that food deserts disproportionately impacted communities of color during the same period. In 2019, about 8.1% of white individuals experienced food insecurity in their communities. In comparison, Latino individuals experienced food insecurity at a rate of 15.8% Black individuals at 19.3%, and Indigenous individuals at 23.5%. By the end of 2020, Black households were experiencing food insecurity at a rate of 21.7% and Latino households at a rate of 17.2%. On the other hand, white households reported experiencing food insecurity at a rate of just over 7%. Researchers have observed that “food insecurity is experienced in greater proportion by these racial and ethnic groups due to a number of factors — a key one being structural racism.” Delays, supply chain problems, and limited labor have also led to problems in quality control, making nutritious options that much tougher to come by on a regular basis. So how can communities take on food insecurity made worse by the onset of COVID-19 without the help of chain grocery stores?

Zoning Laws

A potential solution to food insecurity in urban spaces that is gaining some attention is amending zoning laws and regulations to make local agriculture more accessible. Zoning ordinances can be confusing, and often mention terms that do not have a clear vernacular equivalent. Towns can amend zoning ordinances and regulations to use clearer terminology that explicitly authorizes urban agricultural uses. This change can bring fresh fruits and vegetables to the community, from the community. Similar changes might include language that explicitly allows farmers markets and produce vendors to set up stands in public spaces, or language that allows for larger-scale agricultural projects in community gardens.

The Healthy Food Policy Project created guidelines to assist communities in drafting definition sections of zoning laws to make them clearer and easier to understand in order to increase access to healthful foods in areas impacted by food insecurity. The guidelines suggest drafting strategies to simplify interpreting zoning requirements, like including examples of permitted practices or burying the meaning of a word in the operative language instead of separating the term and its definition. These changes make it easier for communities to understand and comply with zoning laws while bringing gardens and urban agricultural centers to the community with greater confidence.

Subsidize Healthier Choices and Incentivize Eating Well

Another study suggests that two-thirds of households using Supplemental Nutrition Assistance Program (SNAP) benefits bought a greater variety of healthy fruits and vegetables while testing an incentive program aimed at eliminating food insecurity. During a test run of the Healthy Incentive Pilot (HIP), the USDA offered participants who used SNAP benefits an incentive of 30 cents per dollar spent on targeted fresh fruits and vegetables. Researchers reported inspiring results, households increased SNAP spending on fresh fruits and vegetables by an average of 11% which led to an increased Healthy Eating Index rating, ranging from 57/100 to 62/100. Perhaps most importantly, 75% of households felt healthy fruits and vegetables were more accessible and affordable as a result of the HIP incentive. One of the greatest challenges of increasing food security is encouraging communities to regularly purchase and seek out healthy foods in their own neighborhoods. Incentives like those tested here would certainly get many households on the right path.

 

Incentive programs have the potential to impact food insecurity much faster than other options. Programs like HIP immediately give families more money to spend on healthful foods and make fruits and vegetables affordable. An incentive or subsidy program could also be implemented without the cooperation or contribution from grocery stores themselves if suppliers of healthier foods are reluctant to open a location in a food desert. By handling the issue from an economic standpoint, households would still pay the same price to vendors or stores, but with help with financing instead of just options. While this is not a terribly optimistic option, it is realistic given the lack of enthusiasm from larger companies and retail stores to open a location in areas where poverty and food insecurity affect families the most.

Utilize School Meal Programs 

When healthy options are not just too expensive but too scarce, communities could tackle food insecurity in public schools. By making an effort to offer healthy options to students receiving free meals at schools, especially during a health crisis like COVID-19, students can learn at an early age to value and prioritize eating well. A case study of four large, urban high schools in Chicago, Los Angeles, Houston, and New York looked at public schools’ responses to emergencies and how they provided students with healthy meals during a crisis. At the onset of the COVID-19 pandemic in March of 2020, Congress authorized the distribution of federal relief packages to schools that provided meals for students experiencing food insecurity. The USDA supplemented these efforts, granting waivers to aid schools in providing food options like extended food service hours, takeout meals, and allowing parents to come to pick up meals without their children with them. Efforts like these yielded a noteworthy increase in healthy foods available and consumed by students attending these schools. This trend continued even after classes were moved online during the pandemic. The study also showed that schools that allowed adults and children to pick up food and schools that made meals with dietary restrictions in mind were hugely beneficial to students who would otherwise be considered food insecure.

Even as the COVID-19 pandemic evolves and schools start to get a handle on managing classes and events with students’ health in mind, it should be clear that food insecurity is always a health concern. School lunch programs like those implemented during the pandemic can continue in areas where food insecurity remains high due to factors other than those related to COVID-19 alone. 

Looking Ahead

The COVID-19 epidemic has prompted widespread concern for health and community wellness and specifically highlighted food security concerns. The pandemic exacerbated issues of poverty and environmental injustice. But that might ultimately draw enough attention to encourage work toward meaningful solutions to these ongoing injustices. Local, small-scale changes like allowing consistent agricultural activity in urban areas (by amending zoning regulations) or encouraging subsidy programs to help schools in food deserts revitalize the community could have a huge impact on food insecurity in the United States. If big businesses and chain stores are reluctant to enter areas with high rates of food insecurity, it is still possible for community members to utilize legal tools to make their neighborhoods healthier places to live.

 

Citations

  1. Paula Dutko et al., Characteristics and Influential Factors of Food Deserts, USDA 2 (2012), https://www.ers.usda.gov/webdocs/publications/45014/30940_err140.pdf.
  2. Id.
  3. Id.
  4. Monica Hake et al., The Impact of Coronavirus on Food Insecurity in 2020 & 2021, Feeding America 2 (2021), https://www.feedingamerica.org/sites/default/files/2021-03/National%20Projections%20Brief_3.9.2021_0.pdf. 
  5. Alisha Coleman-Jensen, et al., Household Food Security in the United States in 2020, ERR-298, USDA Economic Research Service, Table 2 (2021), https://www.ers.usda.gov/webdocs/publications/102076/err-298.pdf?v=7508.8. 
  6. Hake, supra note 3. 
  7. Niyati Parekh, Food Insecurity among Households with Children during the COVID-19 Pandemic: Results from a Study among Social Media Users across the U.S., 20 NUTRITION J. 1, 2 (2021), https://nutritionj.biomedcentral.com/track/pdf/10.1186/s12937-021-00732-2.pdf. 
  8. Anne Olson, Using Zoning to Help Eliminate Food Deserts: A Few Steps Forward, GREEN LAW, (Apr. 12, 2021), https://greenlaw.blogs.pace.edu/2021/04/12/using-zoning-to-help-eliminate-food-deserts-a-few-steps-forward/. 
  9. Id. 
  10. The Healthy Food Policy Project, Drafting Definitions in Local Healthy Food Access Policies, https://healthyfoodpolicyproject.org/drafting-definitions (last visited Mar. 9, 2022). 
  11. Id. 
  12. USDA Food and Nutrition, Off. of Pol’y Support, Evaluation of the Healthy Incentives Pilot (HIP) Final Report—Summary (2014), https://fns-prod.azureedge.net/sites/default/files/ops/HIP-Final-Summary.pdf. 
  13. Id. 
  14. Id. 
  15. Id. 
  16. Gabriella M. McCloughlin, et al., Addressing Food Insecurity through a Healthy Equity Lens: A Case Study of Large Urban School Districts during the COVID-19 Pandemic, 97 J. URB. HEALTH 759, 759-60 (2020), https://link.springer.com/article/10.1007/s11524-020-00476-0. 
  17. Id.
  18. Id. 
  19. Id.
  20. Id.
  21. Id.
  22. Id.
Fred Tutman discusses the lack of diversity in the mainstream environmental movement as the only Black riverkeeper in the United States and journalist for various U.S. and foreign networks.

The Beacon Blog: Between the Lines

Fred Tutman, the Only Black Riverkeeper in the United States, Discusses the Lack of Diversity in the Mainstream Environmental Movement

By Cynthia Cane, Juris Doctor Candidate (VLGS ’23) and Staff Editor for the Vermont Journal of Environmental Law

April 9, 2022

 

Fred Tuman’s journey to the environmentalism movement was unorthodox, to say the least. He spent 25 years as a contract journalist, working for various major U.S. and foreign networks, including CBS and the BBC. At 40, he enrolled in law school; but had to drop out due to family obligations. He then worked for the Water and Sewer Authority and the Prince George’s County State’s Attorney Office in Washington, D.C. 

Tutman’s entry into the Waterkeeper realm happened almost by chance: while at an environmental meeting in 2003, he met a riverkeeper called Fred Kelly. Intrigued by the concept, Tutman read The Riverkeepers by Robert Kennedy, Jr, and the rest, as they say, is history. In 2004, Tutman founded the Patuxent Riverkeeper, a non-profit organization that aims to “conserve, protect and replenish Maryland’s longest and deepest intrastate waterway.” He is currently among the longest-serving Waterkeepers in the region— and the only Black Waterkeeper in the nation. Tutman has had an eventful and successful career as a Patuxent Riverkeeper, filing numerous lawsuits to force corporations and federal agencies to obey environmental statutes. The Patuxent Riverkeeper has also given voice to communities who oppose development; for example, it was involved in a lawsuit against Maryland for approving the construction of power plants in areas that would disproportionately affect Black citizens. 

On Wednesday, March 9, Tutman spoke at a joint seminar for the Environmental Advocacy and Environmental Justice Clinics at Vermont Law School. Tutman focused on the lack of diversity in “mainstream” environmentalism. While the causes of this “white-washing” are numerous and complex, Tutman highlighted the crucial intersection between environmentalism and money, colonialism, and communities of color. First and foremost, he discussed the role that money has played in shaping environmentalism: the most prominent non-profit environmental organizations have become considerably more lucrative (the Environmental Defense Fund had reported revenue of $221 million for the 2020 fiscal year; the Sierra Club reported revenue of $214 million). Consequently, they often perpetuate harmful myths about the movement: that capitalism is inherently “good” because it can offer a degree of freedom within environmentalism that attacking global environmental issues will ultimately result in solutions to local environmental problems. 

Additionally, these organizations, and others like them, arguably comprise the “face” of the mainstream environmentalism movement and are overwhelmingly white-run and staffed. This perpetuates the harmful and worrying myth that Black and Indigenous people of color (“BIPOC”) do not care about the environment because they lack involvement in the organizations.

The current environmentalism movement, Tutman posited, is inextricably linked to colonialism, defined as “control by one power over a dependent area or people.” Such large environmental organizations are unable—and arguably unwilling—to appropriately respond to the needs of local BIPOC communities. In other words, while these so-called “big green” organizations now recognize the importance of “diversity,” they approach this concept from an optics standpoint rather than with a genuine interest in and desire to increase the organization’s inclusion and diversity. This hesitation or reluctance to increase diversity is partially fueled by the organizations’ fear of changing the “experience” of the movement for the people who are already a part of it who are predominately white. 

How have these factors affected the diversity of the mainstream environmentalism movement? Tutman noted that many, if not all, of these “big greens”, are primarily funded by corporate and other large investors; the goal of these organizations is therefore to attract funding. This reliance on corporate funding has contributed to the whitewashing of the environmentalism movement in two primary ways. Firstly, because of this country’s history, white people generally have more wealth to contribute to such organizations; consequently, they are the ones who have more readily become involved. Secondly, for these monied movements to attract investors, they must project a sense of wealth and security; whiteness is often linked to wealth and security. 

Another critical issue Tutman discussed was the seeming separation between environmental justice and nature-based work. To illustrate this issue, Tutman described a lawsuit involving Joe Mills, an elderly gentleman in Bowie, Maryland. Mill’s family farm, Oasis Farms, was surrounded by a quickly growing planned community. Under an Army Corps of Engineers permit, the developer created a six-acre pond, diverting the stream that Mills’ cows used for water and effectively rendering it useless in preparation for the development. Despite being a tributary of the Patuxent River, the stream’s small size made it vulnerable to such diversion, even under state environmental laws. The result: a legal loophole destroyed Mills’ rights to use the water on his property. When the lawsuit gained public attention, the response was outrage. However, this outrage was shockingly not directed at the exploitation of Mills; instead, at the impact the drainage line and the resulting pond had on the turtles on Mills’ property. Tutman asserted that this artificial separation of the human and environmental effects—specifically the valuing of ecological impacts (such as the turtles) over the human experience—has further contributed to the marginalization of BIPOC and lower-income communities in the environmentalism movement.

So what’s the solution? How do we facilitate diversity in the environmentalism movement in a meaningful way? Tutman asserted several ways to approach this disparity in the environmentalism movement to make it more inclusive and diverse. Firstly, he advocated for alternative approaches to environmentalism that move away from the non-profit, often corporate-funded, complex. He explained that corporate money often coerces the recipients of such funds by controlling the money flow and the conversation (stifling dissent) and hiding colonialist tendencies through philanthropy. By moving away from such sources of money, environmental organizations can better address the pressing diversity and environmental justice issues that plague the environmentalism movement. 

To this end, Tutman noted the importance of understanding the different approaches that environmental non-profits can use to enact change. He divided green organizations into two primary categories: “dark greens,” which use transactional tactics such as petitions, sign-on letters, and outreach, and “light greens,” which use transformative tactics such as litigation to create structural change. BIPOC communities exist in the “light green” space because of the existing social constraints on such communities. Tutman also noted the distinction between “turf” (where an individual belongs) and “domain” (where an individual can go). Understandably, these terms carry very different connotations for BIPOCs compared to white people; therefore, it is crucial to understand the limitations these concepts impose on other communities. Tutman asserted that humanitarianism and human-focused work should be at the forefront of any environmental movement to bridge the perceived gap between environmental justice and nature-based work. 

 

Finally, when asked what he thinks is the best approach to addressing “big green” organizations’ issue of diversity, Tutman’s response highlighted that the answer—at least in part—is simple: you should hand power over to those you want to see in power. The Patuxent Riverkeeper aims to do just that.

CAFOs compose most industrial-scale farms. These farms house thousands of animals with minimal safety and sanitary protections. But

The Beacon Blog: Consider It Briefed

Fighting Concentrated Animal Feeding Operations: The Power of Nuisance and Grassroot Movements

By Amanda Di Dio, Juris Doctor Candidate (VLGS ’23) and Staff Editor for the Vermont Journal of Environmental Law

April 8, 2022

Today, Concentrated Animal Feeding Operations (CAFOs) compose most industrial-scale animal farms. (1)  These farms often house thousands of animals in close quarters with minimal safety and sanitary protections. (2)  The waste created by the animals who live in CAFOs can contain heavy metals, pathogens, and antibiotic-resistant bacteria. (3) One way of managing this waste is to spray the waste over fields. (4) Although this practice can mitigate the harm CAFO waste has on the soil, the same procedure creates a myriad of health and justice issues. 

 

Spraying this waste creates plumes of foul-smelling, potentially toxic waste to permeate into the area’s homes, water sources, and soil. (5) These plumes have been linked to respiratory ailments, mucosal irritation, and decreased quality of life. (6) Additionally, these issues often disproportionately affect low-income, minority populations. (7) 

 

One example of this is North Carolina. (8) Here, most CAFOs are in the state’s eastern region, an area predominantly occupied by people of color. (9) The local government determines the location of CAFOs via a permitting process. (10)  Placing CAFOs in locations that disproportionately affect people of color is likely intentional. CAFOs were in this region because the government and industry followed the “path of least resistance.” (11) In short, the local government of North Carolina chose to place the CAFOs here because people of color and those in poverty are often the least likely population to be able to resist. (12)

 

North Carolina was wrong. In a recent Supreme Court case, McKiver v Murphy-Brown, residents who were being disproportionately affected brought a nuisance case against select CAFOs. (13) A nuisance exists when an individual’s actions threaten another enjoyment of their property and or the peace of an area through repeated acts. (14) Here, the residents here used NC’s nuisance laws to seek relief from CAFOs’ odors, pests, and noises. (15)  Ultimately the court held in favor of the residents and ordered the CAFO to pay $75,000 in compensatory damages to each plaintiff and $5 million in punitive damages. (16) Although this outcome did little to remedy the harm the CAFO is causing, the case opened the door to holding CAFOs accountable. (17) 

 

One major obstacle to bringing suits against CAFOs is Right to Farm Laws. Right to farm laws generally grants statutory protection against nuisance suits to CAFOs. (18) In Mckiver, the Right to Farm law was inapplicable because the nuisance had begun before the law’s passage, and the Court held the law did not apply retroactively. (19) Because of these laws, the environmental harms are increasingly being externalized to the U.S. taxpayer—specifically in rural neighborhoods. (20) The arrival of CAFOs in rural communities is consistently impacting the animals, environment, local economies, and even property values of low-income minority regions. (21)  

 

There is, however, hope. In North Carolina, two grass-root movements are challenging NC’s Fight to Farm Law: NC Environmental Justice Network (NCEJN) and Rural Empowerment Association for Community Help (REACH). (22) These organizations are working on a state level to challenge the constitutionality of Right to Farm Laws. (23) These organizations are working with the Senators and Representatives to introduce the Farm Systems Reform Act on a federal level. (24)

 

The Farm Systems Reform Act would set aside $100 billion to help industrial animal farmers voluntarily phase out CAFOs by 2040. (25) The bill has strong grassroots support for national-scale action against CAFOs. (26) If this bill passes, cases like McKiver might become less an exception and more of a norm. Fighting CAFOs’ environmental and social impacts on local communities is essential for building a more just world.

 

Citations

  1. Nichole Wendee, CAFOs and Environmental Justice: The Case of North Carolina, 121(6) ENV’T HEALTH PERSP. 182, 183. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3672924/
  2. Id. 
  3. Id.
  4. Id.
  5. Id.
  6. Id.
  7. Id.
  8. See McKiver v. Murphy-Brown 980 F.3d 937. https://casetext.com/case/mckiver-v-murphy-brown-llc-6
  9. Id.
  10. N.C.G.S.A. § 143-215.10C https://www.ncleg.gov/EnactedLegislation/Statutes/PDF/BySection/Chapter_143/GS_143-215.10C.pdf.
  11. Wendee at 183.
  12. Id.
  13. See McKiver at 946.
  14. N.C.G.S.A. § 19-1 https://www.ncleg.net/EnactedLegislation/Statutes/PDF/ByArticle/Chapter_19/Article_1.pdf.
  15. Id.
  16. Id.
  17. See Randall Abate, Anthropocene Accountability Litigation: Confronting Common Enemies to Promote a Just Transition, 46 Colum. J. Envtl. L. 225, 261 (2021).
  18. § 106-702. Limitations on private nuisance actions against agricultural and forestry operations. https://www.ncleg.gov/EnactedLegislation/Statutes/PDF/BySection/Chapter_106/GS_106-702.pdf
  19. McKiver at 955.
  20. https://straydoginstitute.org/the-growing-movement-to-stop-cafos/
  21. Id.
  22. Id.
  23. Id.
  24. Id.; Farm Systems Reform Act.
  25. https://straydoginstitute.org/the-growing-movement-to-stop-cafos/
  26. Id.
Gender equality is worsened by climate change. Yet climate change does not discriminate—people do.

The Beacon Blog: Consider It Briefed

The Future is ___: Gender Inclusion in Climate Crisis Solutions

By Beckett McGowan, Juris Doctor Candidate (VLGS ’23), Staff Editor for the Vermont Journal of Environmental Law

April 7, 2022

Climate Change is the great exasperator. Countless research has warned of the climate catastrophe that will happen if anthropogenic carbon emissions continue to rise: sea-level rise will accelerate, tropical storms will occur in greater number with greater severity, and droughts will grow harsher and longer. (1) However, natural disasters are not the only thing exasperated by Climate Change. The Intergovernmental Panel on Climate Change (IPCC) has warned that Climate Change could contribute to human conflicts. (2) However, wars over natural resources are not the only forms of conflict that will be fueled by Climate Change. Social divisions will also be compounded by the effects of Climate Change, as the crisis worsens.

 

One key social issue that is worsened by Climate Change is gender inequality.  The impact of climate-driven conflict is not distributed equally along gender lines. (3) Women and LGBT individuals “face higher risks and greater burdens from the impacts of climate change in situations of poverty.” (4) For example, after climate disasters, women have a higher mortality rate, which occurs in part because women are “responsible for vulnerable populations like women or children during the disasters.” (5) Additionally, incidents of gender violence (including homophobic and transphobic incidents) increase after people are displaced from disasters. (6) Natural disasters fueled by Climate Change expose individuals to harm from both the natural disaster and from gender discrimination as well. 

 

Women and members of the LGBT community cannot be left behind as the world struggles with and adapts to Climate Change. In fact, Women and LGBT individuals actively participate in grassroots movements, such as environmental justice and climate justice, to avoid being left behind. For instance, women make up 90 percent of environmental justice movement organizations. (7) Women of color especially have been instrumental in the early days of the environmental justice movement since they brought experience from the Civil Rights Movement. (8) LGBT activists groups have been active in environmental and climate justice movements as well. Several LGBT groups signed on to the Group of Ten Letter in the 1990s that criticized mainstream environmental groups for their lack of inclusivity. (9) Additionally, there are a growing number of LGBT groups that are dedicated towards climate justice. (10) These efforts show that women and LGBT individuals are active in fighting against the impact that climate change has on both the environment and themselves.

 

While Climate Change does not discriminate when it comes to its impact, people do. Often, women and LGBT individuals are left to fend for themselves when climate disasters wreak havoc on their communities. However, it should not be their responsibility alone to make sure that they are accounted for in Climate Change solutions. If humans expect to survive the climate crisis, then everyone needs to be involved in the decision-making process and be able to reap its rewards.

 

 

Citations

  1. See e.g. Alice C. Hill, et al., A World Overheating, COUNCIL ON FOREIGN RELATIONS, Oct. 18, 2021, https://www.cfr.org/article/climate-change-world-overheating-how-countries-adapt-extreme-temperature?gclid=CjwKCAiA4KaRBhBdEiwAZi1zznnr6u_8p1evOyqqNLqGMekDyOq4hf0E8RChwSmOV4nx30hJbfJ5lhoCF4cQAvD_BwE.
  2. Vally Koubi, Climate Change and Conflict, 22 Annual Review of Political Science, 343, 343 (2019). 
  3. Rebecca Pearse, Gender and climate change, 8 WIRES CLIMATE CHANGE, 1, 1 (2017) (“climate change could become a major contributing factor to conflicts by exacerbating the scarcity of important natural resources”). 
  4. UNFCCC, Introduction to Gender and Climate Change, https://unfccc.int/gender (last visited Mar. 11, 2022); see generally G. Gaard, Feminism and Env’t Justice, HANDBOOK OF ENV’T JUSTICE (2017).
  5. Beckett McGowan, Env’t Sexism: Another Lens for Env’t Justice (2021) (on file with author); see generally Gaard, supra note 4.  
  6. See M.P. Anastario, et. al., Using Mental Health Indicators to Identify Postdisaster Gender-based Violence among Women Displaced by Hurricane Katrina, 9 J. OF WOMEN’S HEALTH, 1437. 
  7. N Unger, The Role of Gender in Env’t Justice, ENV’T JUSTICE, 1, 115 (2008). 
  8. See S. Rainey & G. Johnson, Grassroots Activism: An exploration of women of color’s role in the environmental justice movement, 16 GENDER AND CLASS, (2009). 
  9. Gaard, supra note 4. 
  10. See id. (listing grassroots organizations, including: the Trans and Woman’s Action Camp (TWAC), Out4Sustainability, Lesbian Rangers, and queer food and farmer movements). 
An interview with Arielle V. King (VLS '21) and founder of Intersectional Environmentalism

The Beacon Blog: Trail Notes

Arielle V. King’s Trail Notes

Edited by Kai Hardy, Michelle Amidzich, and Andrea Salazar

March 30, 2022

“I really believe that every single person has a role to play in fighting climate change and improving the state of our world.”

Interviewee: Arielle V. King (VLS ’21), Environmental Justice Staff Attorney at the Environmental Law Institute; Visiting Professor at Bard College at Simon’s Rock; and Content Creator at Intersectional Environmentalist

 

Q: Please tell me about where you grew up and your first experiences with the environment.

 

A: I grew up in Albany, NY; specifically, the South End which is considered an environmental justice (EJ) community because of the number of public transportation ports-trains, highways, bus depots, and things that were close to where I grew up. Most of my classmates had severe asthma. For about 8 years there were trains that carried crude oil (we called them bomb trains) less than ten feet from a huge housing project and an elementary school. Looking back, I did not think about environmental justice—I didn’t even know that term until college.

 

From a young age, I was passionate about the environment. I got involved with making sure my school was recycling, coordinating Earth Day rallies, helping create community gardens, and other things. I also spent a lot of time outdoors because of my mentor, a community leader and activist named Brother Yusef. Most people I grew up with didn’t have many opportunities to cultivate an appreciation for the natural world. He’s since passed, but he worked for the Department of Environmental Conservation (DEC) for the State of New York, and his mission was to help inner-city kids and kids of color cultivate a love for the outdoors. I recently took part in a ribbon-cutting ceremony dedicating a walking trail to him in the city. Because of him, I also spent a week on the Hudson River learning about river ecology on a working sloop and spent a few weeks at an environmental education camp in the Catskills. 

 

Q: Why did you decide to go to law school?

 

A: As a kid, my dad called me “lawyer girl.” I always wanted to be a lawyer, but I was always going back and forth about the type of law I wanted to practice. I’m a singer so I thought I wanted to practice entertainment law for a while. But, ultimately, my passion for the environment prevailed, which led me to environmental law.

 

In high school, I took an advanced placement course in environmental science where I learned that environmental studies included the study of the planet and people (and the ways that we impact each other). That was eye-opening for me. From there, I studied environmental and sustainability studies with a concentration in political ecology in college, where I completed the joint-degree program with Vermont Law School (VLS). In four years, I got my bachelor’s from Bard College at Simon’s Rock and my Master’s in Environmental Law and Policy from VLS. Once I started law school, I did not envision myself as a litigator. But I knew I wanted to use my law degree as a tool to advocate on behalf of communities experiencing environmental injustice.

Q: Taking a step back to your time in law school, I wanted to ask specifically about the Environmental Justice Law Society (EJLS) and some of the drivers behind why you founded it.

A: Of course. So first, I did not found it by myself. Sherri Williams White (VLS ’18), Ryan Mitchell (VLS ’19), Jameson Davis (VLS ’21), Maggie Galka (VLS ’18), Jess Debski (VLS ’20), Kyron Williams (VLS ’19), and I founded it together. When I started my master’s program, I thought, “Okay, I’m at one of the top environmental law schools in the country. Why isn’t there an environmental justice focus? Why can’t I just take a bunch of classes on environmental justice and have that be my thing?” At the time, it wasn’t an option. 

When I got to Vermont Law School, there was one environmental justice course taught during the summer. If you were a traditional JD student, you couldn’t take it. I just happened to be a student during the year we had a visiting faculty professor named Kathleen Faulk. Professor Faulk had just completed her time working with the Department of Health and Human Services to administer human services to Flint, Michigan during the Flint Water Crisis. So, the whole class was essentially just talking about health law, public health, environmental justice, and environmental racism. Professor Faulk assigned each student a different stakeholder role from the City of Flint, and we presented each week based on that role. This course aligned with my prior experience writing my college senior thesis on the Flint Water Crisis, so I was essentially the class historian.

I was in that class with Sherri (who worked for the EPA for many years before law school), Jameson, and Kyron (who taught physics at Florida A&M before coming to VLS). The group of us thought, “We’ve got to do something about this lack of environmental justice advocacy on campus.” Since Sherri organized the previous year’s Solutions Conference, which was focused on environmental justice, we also knew it was clear that the school yearned for more environmental justice education opportunities. Building from that momentum is how we started the Environmental Justice Law Society at Vermont Law School.

We got our first grant from a local foundation to host programs and educate our campus about environmental justice. So, we were giving presentations and sharing our personal connections to environmental justice along with the history of the movement and the way environmental injustice impacted certain communities in Vermont. Soon, EJLS started noticing state representatives at our presentations taking a lot of notes because they wanted to learn more about environmental justice. 

EJLS then started presenting at schools. One of the most exciting events we participated in was the Hanover High School Martin Luther King, Jr. Celebration in 2019 where I and two other EJLS Board members were keynote speakers. We talked about the history of the environmental justice movement, including MLK’s role in the nascent years, in front of 700 high school students. We printed giant posters with pictures and timelines and asked for student participation. Because I’m a board member of Positive Tracks, a national nonprofit based in Hanover, NH, I recently spoke to a group of students who said, “I remember you gave this presentation when I was a freshman and it helped me understand so much!” And that right there is why I do community education and outreach.

 

Since then, the environmental justice presence on campus has grown tremendously. I’m proud of the way that EJLS has evolved in such a short amount of time. The first conference we hosted in 2018 was in New Haven, CT as a partnership with Yale’s School of Public Health and School of the Environment. The following year, we added Duke and hosted the conference in North Carolina, focusing on Hog CAFOs (Concentrated Animal Feeding Operations), where we included a very impactful tour of the area. In 2021, we added Howard and Shaw University and hosted the conference virtually. The plan is to keep adding at least one school every year until it becomes a national conference. I appreciate the passion for the organization’s work. And if it weren’t for us, a passionate group of students that came together, the EJ clinic or the Climate Justice Practicum might not exist. There are many things that worked out in a beautiful way as a result of this passion. 

Q: What is something that not everyone knows about environmental justice that you have come to know?

 

A: One thing I want people to recognize is that EJ must also include advocacy and protections for incarcerated people and communities with disabilities. I want to find ways to include these groups in more EJ conversations. Riker’s Island, for example, was built on top of toxic waste. And lead is still on the walls and in the pipes of prisons across this country. The drinking water is not of sufficient quality. And Black and Brown populations predominantly occupy prisons, so just thinking about the impacts of that and how it contributes to environmental racism is important. And considerations for communities with disabilities are frequently forgotten during environmental hazard mitigation and planning, and many other aspects of environmentalism. We can’t forget about those who are already overlooked. That’s one of the most important aspects of environmental justice. Environmental protection, advocacy, and decision-making must be intersectional and inclusive to ensure we are not leaving anyone out. 

Q: How does environmental justice differ from environmentalism?

A: The EJ movement began as a result of unequal enforcement of environmental laws and the dumping of toxic waste into BIPOC and low-income neighborhoods across the United States. The movement for environmental justice also exists as a result of the lack of inclusion, and often blatant erasure, of people of color in mainstream environmentalism. Now, we’re finally starting to see national recognition of what EJ leaders and advocates have been telling us for decades, and the environmental movement as a whole is finally coming to terms with the ways environmental racism has been perpetuated in decision-making and conservation efforts. 

Environmental justice is rooted in civil rights and the idea that regardless of race, national origin, and income status, all people deserve a healthy environment to live, work, play, and pray in. This extends mainstream environmentalism’s view of the environment beyond mere protection of the natural world and includes human and social elements, like the existence of racism, that are inextricably linked. It saddens me that the summer of 2020 had to happen for environmental nonprofits and institutions to recognize this link. The U.S. conservation movement is built upon a notion that before colonization, the country was an idyllic Eden untouched by man, which erases the existence and justified the displacement of millions of Indigenous people from the landscape. 

Environmental justice simply amplifies the faults of the environmental movement and tries to rectify them in the most inclusive way possible. Environmentalism must be intersectional. 

Q: What was the most valuable lesson that you’ve learned since graduating from law school?

A: Well, it’s all so new, and it’s hard to say. Throughout law school, I participated in activities and programs that helped me remember my “Why?” I came to law school to help people and participating in all these extracurricular activities was me reminding myself of my “Why?” Law school’s tough. If I hadn’t had these opportunities to be active in my community and contribute to something greater, I probably would’ve lost myself. And I’m reaping the benefits of that extra work right now (post-grad). I made a lot of connections during law school because I was very intentional about networking with people that were doing the things I was interested in pursuing. I’ve cultivated a strong professional network of mentors and people that I can reach out to. Being involved in the early development of the school’s EJ clinic, co-founding EJLS, and working on all the projects that came out of it, including Rural Environmental Justice Opportunities Informed by Community Expertise (REJOICE), helped me gain important skills that aren’t ordinarily taught in law school. If it weren’t for that I wouldn’t even have this job.

Q: What do you hope your crowning achievement will be?

A: I believe that I was put on this planet to help people. So, I will feel the greatest sense of accomplishment when I can continuously see the impact of the work that I’ve done, the people I’ve helped, the people I’ve shared information with, and the people I’ve educated. I’ve shared book recommendations that have opened people’s eyes and encouraged them to get active in the fight for a more environmentally just and equitable world. That’s what means the most to me. I really just want to build a career that is contributing to the environmental justice movement: the movement for environmental liberation and self-determination of communities that have been environmentally overburdened, politically overlooked, and altogether underserved. I have no idea what it is yet, but those are some of the elements of what I hope my crowning achievement will be.

Q: What is the last piece of advice you would like to share?

A: I really believe that every single person has a role to play in fighting climate change and improving the state of our world. We can all do it in different ways. I have a hard time with people saying that you have to go to college to contribute to this fight. And I know that I’m very privileged in the fact that I’ve had so much education. But I don’t think I’m different from anyone else. That’s why I try hard to share the books that I’ve read in school and the resources I’ve learned from. I’m really passionate about breaking down the ivory tower, or at least making it shorter and easier to access, because I just think that’s really the only way we’re going to build a better society—by getting everyone involved in the process. So, that means artists, architects, or developers—everyone—has to be involved to get it done.

The Beacon Blog: Trail Notes

Kendall Keelen’s Trail Notes

Edited by Andrea Salazar and Beckett McGowan

September 29, 2021

Kendall Keelen  (VLS JD ’22) had strong women role models in her cousin and mother, who helped her navigate some of her earliest encounters with advocacy and the environment. Kendall’s cousin helped her prepare for a third-grade justice system lesson that made Kendall want to be a lawyer. Armed with hours of preparation, opening and closing statements, a yellow notepad, and an updo, Kendall prosecuted Jack for trespass against the Giant in a mock trial. Kendall described herself as “not the quiet kid” but “definitely not the troublemaker.” “I kept saying ‘Objection!’ in the middle of trial . . . I had said it so many different times that the teacher asked me to stop . . . but I didn’t stop! If I say objection I’m allowed to say why I’m saying objection!” Kendall recalls that the mock trial was the only time her teacher wrote her name on the board. Despite her teacher’s disciplinary warning, Kendall still walked away from the experience with a newfound passion for lawyering.


Growing up, Kendall attributed a sudden increase in roadkill on her town’s highways to the new housing that started replacing the forest. It was this connection that first made her question whether the unfettered housing development was right. When Kendall said the practice made her upset, Kendall recounted her mother’s questions:


Mom: What do you want to do about it?


Kendall: I don’t know what to do.


Mom: Well, who do you think makes those decisions? The Congressman or the President?


Kendall: No, it’s this town.


Mom: Exactly. And who runs the town?


Kendall: The Mayor!


Mom: Okay so what do you think you should do then?


Even though Kendall did not pay a visit to the Mayor, this was her first lesson in a systematic mapping of power dynamics necessary to create change—a skill Kendall still uses in her work.


Kendall’s cousin and mother taught her valuable lessons on community and pursuing her interests. Her passion for the law and environment came together in undergrad when Kendall began exploring environmental justice issues. By the time Kendall started looking into law programs, environmental justice was the driving force for her career path.


Kendall recalls a crucial moment in law school when she chose to center multiply-marginalized voices rather than her own. Kendall and Jameson Davis (VLS JD ’21) co-Chaired the Environmental Justice Law Society (EJLS) at Vermont Law School. In an EJLS planning session for an Environmental Justice Symposium, Kendall said “I am, regardless of financial state, a white woman . . . I don’t need to be the center of attention. I am going to be behind the scenes.” Kendall made space for diverse voices to speak at the Symposium, a move her white and white-passing peers followed. When asked, have you ever had to have a tough conversation with someone who wasn’t centering diverse voices, Kendall answered: “the toughest conversation [I had] was with myself, honestly.” Kendall recommends being continuously self-aware of your positionality, at the same time, “do not deflect the hard and meaningful work.”


Kendall’s most recent summer experience was as a Glynn D. Key Fellow at the Southern Environmental Law Center (Center). She brought legal writing and research skills she had honed at Vermont Law School during EJLS, the Climate Justice Practicum, and the Environmental Justice Clinic with mentors like Marianne Engelman-Lado and Amy-Laura Cahn. A tool Kendall swears can reveal a justice angle to any issue is the Environmental Justice Screening and Mapping Tool (EJSCREEN Tool) by the U.S. Environmental Protection Agency. But the best skills she gained derived from the degree of autonomy she had in her projects, thanks, in part, to the empowering and inclusive environment at the Center.


The sense of community Kendall found at VLS helped her find the confidence to be more transparent with others. Asking questions in class and being open about events going on in her personal life translated well to her professional mindset. Addressing mental health in the workplace benefitted the people and projects Kendall worked with.


 As a parting note, Kendall recommends networking “just talk to people, they are more than willing to talk to you.” Also remember that “not everyone has the access to the law, which is very important in environmental justice.” From a mentor, Kendall was told “writing and public speaking are up and coming [skills]. . . . We are the legal filters and translators to the public. We have a tendency though to find safety in jargon and security in complexity.” What this means to Kendall is that “in order to move the law” and break down communication barriers “within ourselves” so that “we can better explain them to others.”

The Beacon Blog: Consider It Briefed

Unweighted Cost-Benefit Analysis Under Arbitrariness: Environmental Justice Principles

By Jorge Roman-Romero & Mariana Muñoz*

April 24, 2021

 

Formal cost-benefit analysis (CBA) is a regulatory tool that monetizes the cost of environmental compliance–and its derivative economic costs–and the environmental and public health benefits of regulatory alternatives to guide environmental decision-making. CBA, as an informational tool, can influence environmental policy directly when used determinatively by agencies to promulgate environmental and public health risk regulations, or indirectly by justifying regulatory decisions through non-determinative (but highly influential) regulatory impact analyses. 

 

For either purpose, the current methodology of CBA lacks distributional weighting, i.e., it ignores equity-based granularities among stakeholders that would better inform policy makers. In other words, the question of who benefits and who is burdened from a decision to regulate (and how) or not is not answered by an unweighted CBA. As the Environmental Justice (EJ) movement continues to gain momentum, whether an informational tool that is insensitive to distributional equities is consistent with principles of reasoned decision making and environmental justice remains to be carefully examined. 

 

A. Views on Unweighted CBA

 

CBA is rooted in the normative framework of welfare economics that dictates resources ought to be allocated efficiently to maximize the overall welfare (or utility) of society. Whether in the form of a regulatory action, deregulatory action, or no action, an agency acts pursuant to that maxim if the benefits exceed the costs of the regulatory decision. Thus, agencies use CBA to identify the regulatory alternative that yields the wider margin of net benefits and, once the alternative is selected, to justify the course of action as one having the most utility-maximizing impacts. Unweighted CBA does not account for distributional weights, i.e. the background economic information of the stakeholders in question. Accordingly, $1,000 of utility in not bearing a compliance cost—a cost bore by corporate persons—is equivalent to $1,000 of utility in not bearing higher health risks associated with air pollution—a cost bore disproportionately by low-income and people of color. While CBA advocates claim that the use of CBA as currently utilized by regulatory agencies in the United States “enhance[s] the effectiveness of environmental policy decisions by providing policy makers and the public with information needed to systematically assess the likely consequences of various actions or options ,” many critics worry that ignoring distributional effects can result in the exclusion of important regulatory benefits that would otherwise accrue disproportionately to people in need of environmental justice .

 

While the Biden Administration has confirmed support of CBA as a regulatory policy-making tool, the Administration seems to disfavor an unweighted analysis. On January 20, 2021, the Biden Administration signed an Executive Memorandum directing a review of CBA methodologies. The order directs the Office of Management and Budget (OMB), in consultation with federal agencies and departments, to “propose procedures that take into account the distributional consequences of regulations, including as part of any quantitative or qualitative analysis of the costs and benefits of regulations, to ensure that regulatory initiatives appropriately benefit and do not inappropriately burden disadvantaged, vulnerable, or marginalized communities .” Thus, providing the agency with a different approach to the use and role of CBA and regulation .

 

 

 

B. Unweighted CBA Against Principles of Reasoned Decision-Making and Environmental Justice 

 

The principles of reasoned decision-making and environmental justice caution against unweighted CBA. Irrespective of the level of deference afforded to agencies, they are generally limited by administrative principles of reasoned decision-making. For instance, the APA provides that courts must set aside “agency action[s] . . . . found to be arbitrary [and] capricious.” Therefore, when an agency acts in its area of expertise, the scope of review “is narrow” and courts will review whether the agency made a decision based on a consideration of the relevant factors. On the other hand, to foster the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, Executive Order 12898 (Order) directs agencies to identify and address disproportionately high and adverse human health or environmental effects of their actions on marginalized communities.

 

If the agencies are committed to rationality and justice, the use of unweighted CBA should be examined through the lenses of both principles—reasoned decision making and EJ. While agencies are afforded greater deference when employing statistical methods, courts will not “rubber-stamp EPA’s invocation of statistics without some explanation of the underlying principles or reasons why its formulas would produce an accurate result.” Consequently, to avoid arbitrariness, when justifying a regulatory decision based on unweighted CBA, agencies should have to explain why the methodology ignores the principle of diminishing marginal utility. In other words, agencies should explain why their methodology contradicts the consensus among welfare economists that “the income and [utility] relationship is . . . . curvilinear . . . . with a decreasing marginal utility for higher levels of income” and wealth–indicating that an additional dollar to a wealthy person has less welfare-maximizing effects than an extra dollar to someone facing food insecurity. Agencies should explain how ignoring the initial position of the stakeholders experiencing the benefits and losses of a regulatory decision is compatible with the CBA-maxim of welfare maximization. While a departure from this economic principle alone is not likely to render actions arbitrary, CBA insensitivity to distributional concerns has serious implications when it comes to environmental justice—a factor EPA must consider pursuant to the Order.

 

Together, the principles of reasoned decision-making and environmental justice demand agencies to include vulnerable communities in the decision-making process—for them to be worthy of consideration and protection. Making impactful environmental decisions influenced by unweighted CBAs falls short of satisfying these cornerstone principles of administrative and environmental law. By failing to account for equity-based granularities among regulatory stakeholders, policymakers run the risk of ignoring valuable data that would better inform them when making tough decisions involving the sustainable use of natural resources, economic development, and public health.

 

*Authors:

 

Jorge-Roman-Romero – J.D. & LL.M. in Energy and Natural Resources Candidate, The University of Tulsa College of Law, expected May 2021.

 

Mariana Muñoz – J.D Candidate, Vermont Law School, expected May 2021. Received a Bachelor of Arts in Political Science and a Master’s in Social Work and Public Policy, summa cum laude from The University of Vermont. 

 

Additional Sources: 

 

5 U.S.C. § 706(2)(A) (West).

 

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co ., 463 U.S. 29, 43 (1983) (West). 

 

See Am. Coke & Coal Chems. Inst. v. EPA , 452 F.3d 930, 941 (D.C. Cir. 2006) (West); See also Nat’l Assoc. of Clean Water Agencies v. EPA , 734 F.3d 1115, 1145 (D.C. Cir. 2013)(West). 

 

Ed Diener et. al., The Relationship Between Income and Subjective Well-Being: Relative or Absolute , 28 SOC. INDICATORS RSCH 195, 204 (1993); See also Ruut Veenhoven, Is Happiness Relative? , 24 SOC. INDICATORS RSCH. 1, 7 (1991) (“[W]e not only see a clear positive relationship, but also a curvilinear patterns, which suggests that wealth is subject to a law of diminishing happiness returns.”).

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