Environmental Justice: A Path Forward?

Life in a Vacuum 

Out of all the sound and fury of current events, one thing you probably will not come across is a coherent vision of where we should be going as a society. The Democratic Party has split between business-as-usual political creatures and democratic socialists whose proposals have as much chance of becoming law in today’s political climate as Marx’s old yarn that under communism people would be able to work in the factory in the morning, farm in the afternoon, and write literary criticism over dinner. The best the Republican Party can come up with is a dystopic version of the 1950s. 

Recently, I took a break from the brass-tacks work of a law clerk to think about these big picture questions: What kind of society do we want? What is “justice” in today’s world? I concluded that very few people in the public discourse are thinking about the former, leading to a default “justice is nothing other than the advantage of the stronger” à la Plato’s Thrasymachus in the latter. Power abhors a vacuum, and it only makes sense that a lack of vision favors power. If we lack a coherent vision for what kind of society we want to have, the policy changes we advocate for today are nothing but empty promises. 

Leading me to this conclusion was an article in the most recent issue of Foreign Affairs by political scientist Michael J. Mazarr that discusses some of these questions. In discussing what makes given societies successful, Mazarr concludes that the most important factor is a society’s “essential dynamism and vitality.” Drawing an interesting historical analogy, Mazarr quotes historian Kenneth Bartlett: 

The Renaissance ended because the set of attitudes and beliefs and self-confidence, that energizing myth [that] was the motive power of the Renaissance mind, simply ceased to function…The failure of will, the failure to confront the crises that the Italians knew that they were in, the decision … to accept what is known and safe and stable. 

In the environmental law context, what good does winning an individual case for a sympathetic client do if we as a legal community don’t have a concrete value-driven mission? 

Environmental justice (EJ) provides the kind of vision and will that we need to overcome this kind of stagnation. The great strength of EJ is its inclusion of scientific reality, social justice needs, and democratic values. 

What is Environmental Justice? 

Environmental justice (EJ) approaches public policy and economic development through a commitment to ensuring fair outcomes in environmental decision-making. EJ practitioners seek to avoid future and correct past injustices suffered by the economically vulnerable and racial minorities, who are often not involved in discussions about everything from the placement of heavy industry sites to climate change policy.  

The U.S. Environmental Protection Agency traces the inception of EJ to the Civil Rights Movement, noting that events like the 1968 Memphis Sanitation Strike—where African American workers protested poor environmental and working conditions—linked race, income inequality, and environmental degradation. 

At its core, EJ is about equality, mutual respect, and ensuring that no one group bears the cost of development. But despite its bearing on public policy, EJ’s principal proponents have not been judges or legislators.  

One influential EJ text is Pope Francis’s 2015 encyclical Laudato Si (On Care for Our Common Home). Francis combines theology, social justice thought, economics, and science to argue that ecological injustice is inextricably tied to economic, racial, and gender exploitation. The encyclical’s overarching analogy is that what we have done exploiting the earth we have also done to the poor and marginalized, as well as future generations, as these groups are the ones who bear the cost of unsustainable practices.  

At its core, Laudato Si’s version of EJ focuses on the thoughtlessness of existing laws and patterns of economic development:  

We have come to see ourselves as her [the Earth’s] lords and masters, entitled to plunder her at will. The violence present in our hearts, wounded by sin, is also reflected in the symptoms of sickness evident in the soil, in the water, in the air and in all forms of life. This is why the earth herself, burdened and laid waste, is among the most abandoned and maltreated of our poor … We have forgotten that we ourselves are dust of the earth (cf. Gen. 2:7); our very bodies are made up of her elements, we breathe her air and we receive life and refreshment from her waters … Nothing in this world is indifferent to us.  

I like this passage because it summarizes a through-line in Francis’s philosophy: everything in this world is inherently interconnected, both on physical and moral levels. As Francis notes, 

[W]e can no longer view reality in a purely utilitarian way, in which efficiency and productivity are entirely geared to our individual benefit. Intergenerational solidarity is not optional, but rather a basic question of justice, since the world we have received also belongs to those who will follow us. 

Laudato Si builds on the 1991 First National People of Color Environmental Leadership Summit (FPCELS), where community leaders from various racial minorities met to develop a “comprehensive platform for a national and international movement of all people.” 

The resulting document, the 17 Principles of Environmental Justice, focused on the connections between unsustainable development, racism, classism, and ecology. The first two principles emphasize interconnection, mutual respect, and equal treatment: 

Environmental Justice affirms the sacredness of Mother Earth, ecological unity and the interdependence of all species, and the right to be free from ecological destruction … [and] … demands that public policy be based on mutual respect and justice for all peoples. 

EJ activism in the 1960s through the mid-1990s did lead to changes in the law but not at the statutory level. For example, President Clinton signed Executive Order 12898 in 1994. E.O. 12898 asks federal agencies to “identify and address the disproportionately high and adverse health or environmental effects of actions on minority and low-income populations.”  

Similarly, President Biden’s 2021 E.O. 14008 established several White House offices and federal development tools related to EJ, including the Justice40 Initiative, “which aims to provide 40 percent of the overall benefits of Federal investments relating to climate change … to disadvantaged communities who are marginalized, underserved, and overburdened by pollution.” 

How EJ Fills the Vacuum 

EJ fills the social and identity vacuum facing America today by focusing on relatively low-hanging fruit that aligns with values outlined in our Founding documents. Freedom from pollution is not something that aligns narrowly with either one political perspective but instead reflects a general question of fundamental rights. 

An emphasis on EJ as a galvanizing vision for who we are and what we want can be tailored to liberals and conservatives. For example, EJ’s racial, economic, and intergenerational facets could appeal to progressive Democrats. These takes get to the bread-and-butter of contemporary progressive activism: race, income inequality, and climate. 

The biggest challenges for progressives interested in EJ are (1) that it becomes a crusade of “white saviors” and (2) that they effectively make the case that EJ issues are connected to health, concrete issues facing the average American. If EJ activism is led by white people with a paternalistic goal of “helping” African Americans, progressives will have simply changed the specifics of one regime of oppression for another, creating a neo-“White Man’s Burden” and ignoring the core values that the sources I discussed above centered on. By focusing on EJ as a “Black Problem” that “enlightened white people” can fix, progressives would risk talking down to minorities and missing the forest for the trees: everyone on this planet is threatened by climate change and water or air pollution. 

EJ could be made palatable for Republicans through an appeal to modern conservatism’s emphasis on self-reliance and efficiency. By linking the values of a Founding document like the Declaration of Independence to EJ ventures, EJ-conscious conservatives could make the case that the “rags-to-riches, self-made person” story is impossible if would-be entrepreneurs die young from pollution and climate change.  

Whatever the respective strengths and weaknesses of liberal versus conservative EJ, both versions arguably leave us better off than we are now. If nothing else, even a deficient EJ framework fills the current vision vacuum with a forward-focused program. 

Conclusion 

While it would be naïve to believe that EJ can single-handedly transform our society, it is by no means unreasonable to think that the core values that EJ espouses could help us address current social, economic, and environmental challenges.  

By going “back to basics” and emphasizing every American’s equality before the law, the interconnections between environmental and social exploitation, and hard-to-oppose issues like clean air and water, EJ could fill the vacuum I outlined in the first section. 

By Thad Kotarski, Fair Shake Legal Intern

A 51-year-old (Almost) Trendsetter: The Pennsylvania Environmental Rights Amendment

In 1971, the Pennsylvania General Assembly (the legislature of the U.S. commonwealth of Pennsylvania) altered the state constitution to include an Environmental Rights Amendment (ERA): 

“The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic, and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.” Constitution of the Commonwealth of Pennsylvania, Article 1 §27. 

This marked the first instance of a state granting its citizens an affirmative right to a healthy environment. The creation and adoption of this amendment followed decades of environmental degradation throughout Pennsylvania; as the state’s economy swelled from coal and steel production, its water and air quality suffered. This, along with the national movement towards environmental activism after the inaugural Earth Day in 1970, motivated the Pennsylvania General Assembly to pass the ERA. In fact, the amendment passed with unanimous bipartisan support! 

A year later, in 1972, Montana followed Pennsylvania’s example and adopted an ERA. While a handful of other states have written environmental protections into their constitutions, Pennsylvania and Montana were the only two states to include it in their Bill of Rights for nearly 50 years. This changed when, in 2021, New York adopted an ERA in its Constitution’s Bill of Rights. The language in New York’s ERA is similar to that in the Pennsylvania and Montana amendments, but the scope of its application will depend upon how NY state courts interpret the ERA in future litigation. This was true of Pennsylvania’s ERA which did not prove to bear significant weight until 2013, 42 years after the General Assembly adopted it into Pennsylvania’s Bill of Rights. 

Two years after its passage, Pennsylvania’s ERA came up in two cases: Commonwealth v. National Gettysburg Battlefield Tower (Battlefield Tower) and Payne v. Kasaab (Payne). The courts’ decisions in these instances minimized the scope of the ERA. In Battlefield Tower, the court found for a private developer wanting to construct an observation tower alongside Gettysburg battlefield, focusing on how the ERA creates an affirmative right against the government, not private parties. In Payne, the court found for the Pennsylvania Secretary of Transportation, Pennsylvania Department of Transportation, the City of Wilkes-Barre, etc. responsible for a road-widening project that protruded into a public park. In its conclusion, the court established a 3-part test for applying the ERA in a way that controls development rather than preclude it. This test reduced the impact that the ERA could have because it watered down the language and purpose of the amendment. 

After these initial cases, Pennsylvania’s ERA lay mostly untouched—ignored, even—by the courts. Until, in 2013, the Pennsylvania General Assembly replaced the PA Oil and Gas Act with a statutory framework allowing oil and gas companies increased power in where and when they could frack for resources. In Robinson Township v. Commonwealth (Robinson), community members challenged the statutory scheme, arguing that it violated their rights protected under the ERA. The case went all the way to the Pennsylvania Supreme Court and, in a plurality opinion, the court, firstly, determined that the community members had standing to bring a case under the ERA and, secondly, held certain parts of the statute to be unconstitutional. This was significant because, in doing so, the court narrowed the applicability of Payne’s 3-part test and bolstered the government’s obligation towards the public under the ERA. This case laid the foundation for an increased judicial, legislative, and executive respect for the ERA and its importance to Pennsylvanian citizens. 

In Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania (PEDF), four years after the Robinson Township decision, the PA Environmental Defense Foundation (PEDF) brought a case against the Commonwealth, alleging a violation of the ERA. In this case, the PA Department of Conservation and Natural Resources had leased land for the extraction of natural gas. The PA General Assembly then decided to limit the percentage of these profits going towards conservation efforts and allocated the remaining funds to the Commonwealth’s general fund. Here, the Pennsylvania Supreme Court found that the Commonwealth’s distribution of funds violated its obligation as trustee under the ERA. The court dissolved the 3-part test from Payne, concluding that it “strips the [Pennsylvania ERA] of its meaning.” It held that “the Commonwealth (including the Governor and General Assembly) may not approach our public natural resources as a proprietor, and instead must at all times fulfill its role as a trustee.” 

This decision marked a substantial turning point for Pennsylvania’s ERA because it not only upheld, but also built upon the decision in Robinson, setting precedent for state courts addressing ERA cases in the future. In this way, Pennsylvania also provides an important framework for other states aiming to adopt ERAs into their respective Bill of Rights. To be clear, Pennsylvania is far from perfect; however, it is fair to hope that the scope of Pennsylvania’s ERA will continue to widen, further protecting the state’s natural resources and building a healthier environment for its citizens. In light of SCOTUS’ decision in West Virginia v. EPA (read more about it here), it is critical that individuals, communities, and states drive the fight against the climate crisis.  

Pennsylvania’s ERA was the first of its kind and, ideally, it eventually becomes one of many ERAs across the United States. Hopefully, New York’s adoption of an ERA into its constitution’s Bill of Rights signals a momentum in the right direction, but only time will tell. Climate change impacts everyone, but not equitably. States should indicate a commitment towards all of their citizens by enshrining the affirmative right to a healthy environment in their respective constitutional Bill of Rights.  

By Rita Flanagan, Fair Shake Legal Intern

WHY CIVIC ENGAGEMENT IS ESSENTIAL TO THE CONTINUED EVOLUTION OF THE ENVIRONMENTAL MOVEMENT

Following the Watergate Scandal in 1972, the federal, state, and local governments were looking to instill trust by increasing transparency and accountability through regulation.  The Federal Sunshine Act was passed in 1976 to combat the distrust of the government and foster cohesion throughout the country. This Act states that, “every portion of every meeting of an agency shall be open to public observation.”  While there are exceptions, most government agency meetings are subject to Sunshine Laws, which vary by state.  For example, in Ohio a public body must give notice of the time and place of its meetings, the meeting must be open for the public to attend in person, and the public body must promptly prepare, file, and maintain meeting minutes, making them available to the public. 

In April of 2020, due to COVID-19 lockdowns, many Sunshine Laws were indefinitely suspended throughout the country. Courtrooms began to hold virtual hearings and trials over telecommunication platforms like Zoom, Skype, and Teams. The Ohio Office of Attorney General announced, “… with the COVID-19 pandemic persisting, the General Assembly passed House Bill 197 and then H.B. 404, giving public bodies the ability to meet virtually instead of in person, as required by Ohio’s Open Meetings Act (R.C. 121.22).”  Public bodies were no longer required to hold in-person meetings, hearings, and trials; rather, many public meetings and hearings became virtual. While numerous states have reinstated their Open Meeting/Sunshine Laws, others have continued to utilize telecommunications and hold most of their meetings, trials, and hearings virtually.  

Many individuals across the country began to appreciate the accessibility that was allotted through the increased use of telecommunication platforms. However, this sentiment was not shared equally across all demographics due to lack of reliable internet access. For instance, more than 300,000 households in Ohio (1 million people) lack access to high-speed internet. Additionally, West Virginia is ranked 45th out of the 50 states in the United States for broadband penetrations with 30% of its residents living without broadband access.   

Students and employees who did not have broadband access were unable to participate effectively in virtual school and work-related functions. Massive political campaigns like the Black Lives Matter movement and the evolving environmental movement were predominately pushed on social media, making them largely inaccessible to individuals who did not have broadband access. Additionally, information released on virtual platforms notifying the public about important health and safety issues struggle to reach rural communities with limited broadband access, posing a threat to public safety.  

As a result of this lack of internet access, the shortcomings of civic engagement in federal, state, and local environmental agencies are more prevalent than ever before. Attorneys, engineers, and public officials have hundreds, if not thousands, of environmental compliance violation cases coming across their desks every year, making it easy for cases to go unattended. Internet access allows interested parties to file an online complaint, track the progress of their complaint, and contact attorneys, engineers, and public officials to ensure their complaint is investigated, a difficult task to accomplish with limited internet. Additionally, environmental compliance violation cases are time-sensitive.  Therefore, the longer these environmental compliance violations sit on dockets and wait to be heard by judges, there is increased likelihood that there will be irreversible environmental damage and long-term health complications. Water contamination, exposure to PM2.5 (fine air pollution particles with a diameter less than or equal to 2.5 microns), improper removal of asbestos, and surface water contamination from oil spills are examples of environmental issues that create detrimental effects if not attended to promptly. It has now become increasingly important for people to protect themselves and their communities from dangerous and burdensome environmental hazards. Through knowledge and diligence, individuals can and should become their own best advocate. 

A report drafted by the United National Environment Programme in 2019 states, "While environmental laws have become commonplace across the globe, too often they exist mostly on paper because government implementation and enforcement is irregular, incomplete, and ineffective.” Due to the exponential growth in environmental regulations, governmental transparency has become increasingly important. However, there has been a widespread failure of proper implementation of these regulations throughout the country. Federal, state, and local environmental enforcement agencies lack the necessary resources to require sufficient compliance. The Department of Environmental Protection, Environmental Protection Agency, Department of Environmental Conservation, and other such agencies struggle to foster the necessary coordination across government activities, engage in public involvement, have weak institutional capacities, and are severely underfunded. These shortcomings are why it is essential for civil society to continue holding government agencies accountable, a task only possible through enforcement of Sunshine/Open Meeting Laws and equal access to knowledge and information. Improvements to environmental regulations and enforcement begins with civic engagement, often enabled by Sunshine Law compliance.

The United National Environment Programme in 2019 also stated, “While enforcing existing laws is critical, the ultimate goal of environmental rule of law is to change behavior onto a course towards sustainability by creating an expectation of compliance with environmental law coordinated between government, industry, and civil society.” By collectively working towards providing equal access to information throughout the country, regardless of where an individual lives, we can take large strides toward increased coordination between government, industry, and civil society.  

By Lena Constable, Fair Shake Legal Intern

SCOTUS' Decision in West Virginia vs. EPA Weakens Federal Climate Efforts

On June 30th, the Supreme Court weakened the Environmental Protection Agency’s (EPA) ability to protect the environment. In West Virginia v. EPA, a 6-3 decision authored by Chief Justice Roberts and joined by the other conservative justices, the Court ruled the EPA overreached in its efforts to curb air pollution. This decision forebodes more significant limitations on the EPA and other government agencies’ efforts to effectuate change. The ruling also makes clear what many environmental advocates already knew: the federal government, as currently designed, will not be the leader in the fight against climate change. Grassroots movements, community-oriented advocacy, and mass mobilization are essential in the effort to protect the planet, now more than ever. 

The core question of West Virginia was the discretion the EPA, the agency charged with enforcing federal environmental statutes, had in interpreting the Clean Air Act (CAA). The purpose of the CAA is “to protect and enhance the quality of the Nation’s air resources so as to promote [] public health and welfare.” Specifically, the EPA must design the “best system of emission reduction.” During the Obama Administration, the EPA created the Clean Power Plan (CPP) to accomplish the task set out in the CAA. In the CPP, the EPA essentially devised a cap-and-trade system, where emissions operators (think power companies and the like) would have to invest in clean energy elsewhere if they polluted over a certain threshold. This “best system” decision was innovative for the EPA and part of its efforts to substantively engage in environmental protection. 

The CPP never went into effect. Before promulgation, the Trump Administration replaced the CPP with the less protective Affordable Clean Energy (ACE) Rule. Both rules spent time in judicial limbo until the Biden Administration made both inconsequential in stating its intention to develop a rule of its own. Despite the CPP’s irrelevance, several conservative states, coal mine owners, and energy companies brought forth a challenge, and the Supreme Court agreed to hear the case. 

Delegating decisions to agencies like those seen in the CPP is common practice. Congress knows it lacks expertise in specific areas and will not always be able to respond to an ever-evolving world. Instead, Congress endows agencies with the power to make the necessary decisions. Such delegation requires agencies to exert discretion in interpreting and enforcing legislation. Over the last four decades, the Court has been very deferential to agencies’ interpretations of the law, typically only intervening where an agency’s interpretation was wholly unsupported by the text of the statute. 

In West Virginia, the Court cut against precedent in striking down the CPP. In doing so, the Court recognized the “major questions doctrine,” which the Court had hinted at in previous cases but never formally invoked. Applying this doctrine, the Court ruled the CPP was too significant a change to be left to the EPA, stating “a decision of such magnitude and conse­quence rests with Congress itself, or an agency acting pur­suant to a clear delegation from that representative body.” 

How substantial a question needs to be before the new doctrine applies is unclear. As noted in Justice Kagan’s dissent, joined by the other two liberal justices, the standards set by the EPA were commonplace and unambitious. The industry, of its own accord, employed the techniques formerly championed by the EPA to exceed the EPA’s target emission reductions. As a result, the power industry overwhelmingly supported the EPA in this case. The decision makes apparent that the EPA and other federal agencies should expect further limitations on their powers; however, the scope of such curtailments remains unknown. 

Nevertheless, two critical lessons from this decision are known. First, even under a liberal regime, the EPA set climate change goals so unambitious that the industry met them without prompting. Second, the Supreme Court will strike down even modest environmental goals the executive branch sets. U.S. leaders have been ineffective at using their position to stem climate change, and even if they were successful, the Supreme Court would undermine these efforts. The U.S. federal government is not the answer to saving our world. With an ineffective federal government incapable of passing and enforcing meaningful environmental legislation, grassroots mobilization and collective action are needed. 

The above is not to say that individuals will be able to prevent global climate change by diligently recycling and refraining from eating meat on Mondays. These actions are not enough. The fact remains over 70% of greenhouse gas emissions can be traced back to just 100 companies. Nor is it to say that the federal government has no role in staving off the climate crisis, only that the federal government, in its present state, will not act unless pressured. Instead, preventing a complete climate disaster requires a multifaceted approach that considers and is led by those most impacted. 

With a federal government largely unwilling and incapable of leading into the future, the task of producing real change falls, as it always does, on the people. Those most impacted already know what is needed to make the situation better. Communicating, organizing, and mobilizing brings these issues to light and suggests solutions that those in power are too afraid to attempt. Change requires global collective action. Change requires community-oriented organizations fighting to mitigate harm within the legal system while aiding advocacy efforts. Change requires municipalities and states picking up where the federal government failed. Change requires assembling in numbers so great that the federal government must reconceptualize its practices and employ the tools still at its disposal. Effecting said change requires mobilization not seen for generations, but such efforts might be the last hope at saving the planet.

By Logan Campbell, Fair Shake Legal Intern