Environmental Justice: Past, Present, and Future Perspectives

This presentation delves into the history of environmental justice, exploring the intersection of law, civil rights, and grassroots movements. It examines the impact of linear systems on EJ communities, proposes cyclical and whole systems models, and highlights the legal journey towards environmental protection. From the roots of early civil rights struggles to the challenges presented by outdated laws and zoning regulations, the content sheds light on the evolution of environmental justice advocacy and the ongoing quest for equality.

• Environmental Justice
• Law
• Civil Rights
• Linear Systems
• Cyclical Models

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1. ENVIRONMENTAL JUSTICE IN THE LAW S C O T T W I L S O N B A D E N O C H J R . , E S Q . , M D R S C O T T W I L S O N B A D E N O C H J R . , E S Q . , M D R V I S I T I N G A T T O R N E Y , E N V I R O N M E N T A L L A W I N S T I T U T E C O - C H A I R , E N V I R O N M E N T A L J U S T I C E C O M M I T T E E , A M E R I C A N B A R A S S O C I A T I O N * A L L O P I N I O N S E X P R E S S E D A R E M Y O W N 1

2. THE MODEL IS BROKEN Linear Q: Where does Q: Where does the waste go? the waste go? Raw Material Extraction Cradle Product Use A: Wherever the A: Wherever the other live other live Waste Grave WILLIAM MCDONOUGH & MICHAEL BRAUNGART, Cradle to Cradle, Remaking the Way We Make Things (New York: North Point Press 2010) 2

3. RESULTS OF LINEAR SYSTEMS ON EJ COMMUNITIES Unwanted Neighbors : Unwanted Neighbors : Health Factories Factories Dumps Dumps Transformers Transformers Refineries Refineries Highways etc. Highways etc. Happiness Diminished Wealth 3

4. CYCLICAL, WHOLE SYSTEMS MODELS Raw Raw Materials Materials Products as service Product Product Corporation Corporation Cyclical Product Product Cradle-to-Cradle Use Use 4

5. EJ LAW AND ENVIRONMENTAL PROTECTION WERE CIVIL RIGHTS IvoryTowers Environmental Justice Grassroots Civil Rights 1960s Today 5

6. ENVIRONMENTAL JUSTICE LEGAL HISTORY IN ONE SLIDE 1) Early Civil Rights 1) Early Civil Rights- -Related Protest Movements Movements Warren County, NC (1982) Love Canal, NY (1978) etc., etc.(many honorable efforts) Related Protest 3) Federal EJ Implementation 3) Federal EJ Implementation NEJAC (1993) Exec. Order 12,898 (1994) Obama Memo-Reiterate and Prioritize (2011) 25 Years Experience with EJ 2) Seminal EJ Reports 2) Seminal EJ Reports US GAO finding racism in siting (1983) Lee & Miller-Travis Report (1987) Unequal Protection (1992) *Environmental Justice Act (2017) *Many State Efforts (ongoing) 6

7. HISTORY OF BAD LAWS Outright racist laws throughout U.S. History Racist zoning laws First overt, then expulsive after SCOTUS decision in Buchanan v. Warley, 245 U.S. 60 (1917) ending overt exclusion ( put a highway through it ) Many still in place; zones still rooted in racist past Codified lack of transparency, engagement, oversight, recourse Good laws, deployed inequitably CA CEQA NIMBY CAA, Superfund, CWA/SDWA etc. Bad court decisions (SCOTUS efforts to narrow Civil Rts protections) Alexander v. Sandoval, 532 U.S. 275 (2001) Middlesex County Sewerage Auth. v. Sea Clammers, 453 U.S. 1 (1981) Washington v. Davis, 426 U.S. 229(1976); Lewis v. Chicago, 560 U.S. 205(2010) Discriminatory Intent mandate 7

8. ENVIRONMENTAL JUSTICE LAW EVERYWHERE AND NOWHERE Federal Actions Affecting EJ Communities v. Any Action Federal Actions Affecting EJ Communities v. Any Action Land Land NEPA, CERCLA, RCRA Impact Multipliers Natural Disasters Extreme Weather Climate Change Air Air CAA, Climate FIFRA, TSCA Water CWA, SDWA *Federal* Transactions and Projects that affect the health of local EJ communities and their environment 8

9. ENVIRONMENTAL JUSTICE LAW EVERYWHERE AND NOWHERE Health Impacts Health Impacts Siting, Zoning, Land Use Siting, Zoning, Land Use Are the lives of communities of color weighed as heavily as white lives? Disproportionate impacts? How will this affect neighboring communities? Are they stakeholders, partners? Transparency? Toxic Torts, Due Process, Toxic Torts, Due Process, Fairness, Equity Fairness, Equity Equal Protection, Enforcement Equal Protection, Enforcement of the Laws of the Laws Are communities availed of the benefits as well as the burdens of the system? Penalties only for violations in white neighborhoods? 9

10. ELEMENTS OF ENVIRONMENTAL JUSTICE 1. Identifying EJ Communities and Disproportionate Impacts 2. Meaningful Participation and Stakeholder Engagement 3. Siting and Scoping Decisions 4. Mitigation and Monitoring 5. Best Practices, Capacity Building, Knowledge Transfer 6. Fairness, Equity, Transparency, Revitalization 7. 7. And And Ultimately, there is a debt owed to these communities for the burdens they have borne. 10

11. NEW FRONTIERS New Legal Strategies: New Legal Strategies: Constitutional Challenges Civil Rights Act of 1871 ( 1983) Discriminatory Impact 116 116th th Congress? Congress? Climate Justice Cases Climate Justice Cases Juliana v. United States1 Californian cities/counties lawsuits2 Environmental Justice Act of 2017 Environmental Justice Act of 2017 1Juliana v. United States, No. 6:15-CV-01517-TC (D. Or. filed June 8, 2017). 2City of Richmond v. Chevron, No. C18-00055 (Cal. Super. Ct. filed Jan. 22, 2018); County of San Mateo v. Chevron, No. 17-cv-04934-VC (N.D. Cal. filed Jul. 17, 2017); People of State of California v. BP, p.l.c., No. 3:17-cv-06011 (N.D. Cal. Filed Oct. 20, 2017). 11

12. STATES LEADING IN ENVIRONMENTAL JUSTICE Oregon Oregon Environmental Justice Task Force O.R.S. 182.542. Maryland Maryland Commission on Environmental Justice and Sustainable Communities M.D. Code, Environment, 1-701. Illinois Illinois Commission on Environmental Justice 415 ILCS 155/10. Florida Florida Center for Environmental Equity and Justice F.S.A. 760.854. Connecticut Connecticut Environmental Justice Statute - C.G.S.A. 22a- 20a. Etc Etc 12

13. ENVIRONMENTAL JUSTICE IN THE TRUMP ERA Overall Themes Overall Themes Less engagement, enforcement, and oversight Less engagement, enforcement, and oversight More waivers, delays, revisions, and deregulation More waivers, delays, revisions, and deregulation Personnel that do not believe in the mission of agency Personnel that do not believe in the mission of agency Corporate objectives as federal objectives Corporate objectives as federal objectives Citizen Suits to compel *agency* action (and corps) Citizen Suits to compel *agency* action (and corps) DC Circuit stopping rollbacks, delays, lack of enforcement DC Circuit stopping rollbacks, delays, lack of enforcement - - Garland s Revenge (APA Garland s Revenge (APA- -arbitrary & capricious) arbitrary & capricious) Two Documents Environmental Protection in the Trump Era, published by ABA and ELI EJ Chapter Senate EPW Committee Minority Report: Basically Backward, How the Trump Administration is Erasing Decades of Air, Water and Land Protections and Jeopardizing Public Health 13

14. ENVIRONMENTAL JUSTICE IS ABOUT DIGNITY Severe Environmental Pollution = Denial of basic human dignity Severe Environmental Pollution = Denial of basic human dignity 1 1 Clean Environment => Dignity = Human Rights Clean Environment => Dignity = Human Rights Environmental Justice = Civil Rights = Human Rights Environmental Justice = Civil Rights = Human Rights2 2 International Customary Law re Climate Justice International Customary Law re Climate Justice3 3 and beyond and beyond 1Barry Hill, Steve Wolfson, Nicholas Targ, H R E : A S S P , 16 Geo. Int l. Envtl. L. Rev. 359 (2004). 2 Wyatt G. Sassman, E J C R , 18 Rich. J.L. & Pub. Int. 441 (2015) 3 John H. Knox, C C H R L , 50 Virginia Journal of International Law 163 (2009) 14

15. ENVIRONMENTAL JUSTICE LEGAL COMPENDIUM DOCUMENTS: Opportunities for Advancing Environmental Justice: An Analysis of U.S. EPA Statutory Authorities (2001, Barry Hill, ELI/EPA) Plan EJ 2014 Legal Tools (Scott Fulton, EPA) Environmental Justice for All: Protecting Communities Fairly and Fully (2008, Albert Huang, NRDC) 15

16. Scott Wilson Badenoch Jr., Esq., MDR Scott Wilson Badenoch Jr., Esq., MDR Visiting Attorney Visiting Attorney, Environmental Law Institute , Environmental Law Institute Co Co- -Chair Chair, Environmental Justice Committee, , Environmental Justice Committee, American Bar Association American Bar Association Section of Civil Rights and Social Justice Section of Civil Rights and Social Justice badenochjr@gmail.com badenochjr@gmail.com badenoch@eli.org badenoch@eli.org Office: 202 Office: 202- -939 @thecitizen @thecitizen 939- -3819 3819 16