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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 changea 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 costa cost bore by corporate personsis equivalent to $1,000 of utility in not bearing higher health risks associated with air pollutiona 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 principlesreasoned 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 justicea 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 processfor 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.”).

by Jerry Thomas In a stark contrast to the decision in St. Francis Prayer Ctr. v. Michigan Department of Environmental Quality (hereafter

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.

Environmental Justice is the latest civil rights movement in the United States. Can someone say

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.