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The Beacon Blog: Consider It Briefed

You Can’t Check This Box: A Win for Environmental Justice

By Jerry Thomas

June 15, 2020

by Jerry Thomas

In a stark contrast to the decision in St. Francis Prayer Ctr. v. Michigan Department of Environmental Quality (hereafter, Select Steel), the Fourth Circuit in Friends of Buckingham v. State Air Pollution Control Board delivered a major victory for environmental justice (EJ). Select Steel created something called the rebuttable presumption defense; because emissions do not exceed the national ambient air quality standards (NAAQS), the emissions will not have an adverse impact on communities. The rebuttable presumption assumes because emissions don’t violate the Clean Air Act (CAA), they cause no harm. In Select Steel , the steel mill emitted pollutants like lead, among other hazardous pollutants. It is well known there is no safe level of lead. And just because a plant emits levels of lead below the NAAQS does not mean there is no impact.

Justice Thacker correctly disposed of the rebuttal presumption in his landmark opinion. In Friends of Buckingham , Atlantic Coast Pipeline (ACP) was looking to site a Compressor Station in Union Hilla historically black community. There was no question on either side whether the Commissioning Board was required to consider EJ; under Virginia law, the development of a new energy resource or facility must not have a disproportionate adverse impact on EJ communities. As to the site suitability, the Department of Environmental Quality (DEQ) noted the modeling results showed compliance with NAAQS so Union Hill was an appropriate place. Justice Thacker responds to this and says “even when NAAQS are not violated as to this particular matter, the record reflects exposure to PM _2.5 will increase the risk of asthma, heart attacks, and death.” Justice Thacker effectively and correctly does away with the rebuttable presumption and goes further to say “blindly relying on ambient air standards is not a sufficiently searching analysis of air quality standards for an EJ community.” Most importantly, Justice Thacker definitively declares “environmental justice is not merely a box to be checked” and vacated the permit. This is one box that cannot be checked off by blindly relying on standards. These vulnerable communities deserve more and Justice Thacker is spearheading the needle in the right direction.

While this case is especially unique because of Virginia’s law requiring an EJ analysis for new energy sources/plants, it is also instructive. Executive Order 12898 instructs all agencies to do an EJ analysis in their National Environmental Policy Act (NEPA) reviews. States don’t need explicit statutes addressing EJ concerns if the agencies are faithfully fulling the requirements of the EO. Doing away with the rebuttable presumption will make EJ analyses that much stronger when agencies are considering projects. Regarding air quality, the NAAQS are meant to protect human health including sensitive populations with an ample margin of safety. It is vital to stress just because emissions don’t exceed health standards under the CAA does not mean they don’t cause harm or impact. A harm is a harm. And under Title VI of the Civil Rights Act of 1965, that is all that is required. To say there must be serious health consequences or an exceedance must happen would defeat the purpose of granting protections to communities of color and low-income communities, which are already more susceptible to these impacts.

While environmental justiceor injusticeis not a new concept by any stretch of the imagination, it is becoming more prevalent. Presidential candidates and Senators now see how serious systematic and institutionalized racism and discrimination has contributed to the problem by introducing legislation. The injustice cannot be corrected without legislation, judges, and agencies who are willing to meaningfully engage in the analyses and recognize a problem when it presents itself. The problems are too pervasive for agencies or judges to only take a cursory glance. This is not a box that can just be checked off by relying on standards, these vulnerable communities deserve more than that. Justice Thacker is moving the needle in the right direction toward environmental justice and exemplifies what agency accountability looks like.

The post You Can’t Check This Box: A Win for Environmental Justice appeared first on Vermont Journal of Environmental Law.

The Beacon Blog: Consider It Briefed

Not Intentional, But Impactful: Will Climate Change Bring Environmental Justice to Black, Poor, or Powerless Communities?

By Jacqueline R. Waller

June 8, 2020

Environmental Justice is the latest civil rights movement in the United States. Can someone say, “Finally!” But what is environmental justice? Environmental justice is the fight for equal environmental protection under the law, that includes the right to work and play in safe and healthy communities, and communities free of life-threatening conditions. [1] Or to put it plainly, environmental justice is a collaborative effort to fight environmental “injustices” affecting our black, poor or powerless communities. It stands up to “environmental racism” which is a “conscious design or institutional neglect, actions and decisions that result in disproportionate exposure of people of color to environmental hazards and environmental health burdens.” [2] It is the courage to stand up to big industries for developing environmental “sacrifice zones” in such powerless communities. [3] These zones created by thoughtless and insensitive “big money” executives create permanent land damage and economic disinvestment due to toxic waste facilities, high-risk chemical plants, oil refineries and coal fired power plants operating in these communities. [4]

For instance, in a 1979 case, Bean v. Southwestern Waste Management Corp. , the very first case to challenge environmental racism under Section 1983 civil rights law, the plaintiffs, middle-class residents in a black suburb of Houston, filed a lawsuit in federal district court to stop a waste management facility from opening. [5] The plaintiffs claimed that if the facility opened, it could affect the entire nature of their community, including its land values, tax base, and aesthetics. They further claimed that it could affect the health and safety of its inhabitants and the operation of a local high school that was located only 1700 feet from the site. Thus, the middle-class residents claimed that Southern Waste Management Corporation’s decision to open a facility in their community was racially motivated. Nonetheless, the court would not stop the facility from opening because the residents could not prove racial discrimination in the company’s decision. [6] The court noted that in order to prove a civil rights violation, such as racial discrimination, you must show that there was an “intent” to discriminate based on race, as well as a pattern and practice of discrimination. [7] And you must show that the discrimination created such an “impact” that it caused irreparable harm, or harm to the plaintiff beyond repair. [8] And even though the plaintiffs presented an expert with statistical proof that there was a practice of discrimination, the court noted that the proof was not sufficient because there were only two sites presented in comparison. Imagine that! Shouldn’t one presentation of a sacrificial zone be enough?! How much damage needs to happen before the court recognizes the environmental harm caused to individuals? To human beings! There shouldn’t be any harm to any human being s. One victimized site should be enough! Especially if the decision is racially motivated. Yet, amazingly the court provided in its conclusion that had it been the hearing officer for the Texas Department of Health (TDH) concerning the issuance of the permit to the waste facility, it would have denied the permit based on the evidence presented in this case. [9] The court concluded that the decision of TDH seemed “insensitive and illogical.” [10] Wait! What? Confusion at its best!

You see, environmental justice cases like the Bean case are difficult to prove. You must be able to show “intent” and “impact.” This has always been the challenge when dealing with environmental justice issues in black, poor or powerless communities. [11] Despite the court’s take on what seems immoral, the law is the law. And who creates laws? But of course, it is our elected officials whom we depend on to make the best decisions for us. But that is not always the case because our nation still experiences the social ills deprived from slavery. [12]

Dr. Robert D. Bullard, the expert who provided the statistical report in the Bean case put it this way, “America is segregated, and pollution is too.” [13] Thus, the “father of environmental justice” showed that race and socio-economic class on the map, demonstrating pollution, clearly indicated unequal protection of residents against environmental threats to their health. [14] In conducting the 1979 study, “Solid Waste Sites and the Houston Black Community,” Bullard discovered that people living in a particular zip code are exposed to “greater environmental hazards and suffer higher rates of preventable diseases.” [15] However, clearly what was learned from this case and many other cases Post- Bean is that there is no justice without proof of “intent” and “impact.”

Without a successful remedy under the Constitution’s equal protection clause [16] , what else is there to stop environmental justices? As the movement continues, the sign of times today is showing the environmentally harmed communities that we are not alone in this fight. [17] Now environmental justice is being taken serious due to the effects of ALL human-kind, and not only the black, poor and disadvantaged communities. With the effects of climate change rapidly destroying the earth, the alarm has been sounded and many lawmakers are now trying to find solutions, for instance through the “Green New Deal,” to “avoid planetary destruction” – SAVE THE EARTH. [18] Hah! Now people see that this issue affects everyone on earth. The environmental justice movement may have hope to simply gain the attention of the legislative powers that all communities are affected by toxic facilities operating on earth, including residential communities. Regardless of whether the communities are black or white, rich or poor, at some point, we all are affected by this resulting thing called “climate change.” [19] Julian Brave NoiseCat, director of Green New Deal Strategy put it nicely, “[c]limate change does not answer to racism, politics, or even justice (at least not directly); its only principles are chemistry and physics.” [21] Therefore, environmental justice now has power for the first time to fight against environmental racism – the fight against Climate Change. [22]

The post NOT INTENTIONAL, BUT IMPACTFUL: WILL CLIMATE CHANGE BRING ENVIRONMENTAL JUSTICE TO BLACK, POOR OR POWERLESS COMMUNITIES? appeared first on Vermont Journal of Environmental Law.