The Importance of Environmental Justice and Climate Justice
Environmental justice and climate justice have always been based on equity and access to clean air, clean water, and a safe place for all children to play. Their goal is to ensure that no one is left vulnerable during hurricanes, droughts, and wildfires. It is logical to think about all our neighbors and communities when developing climate policies. This is especially true when pollution concentrations and climate change risks continue to be linked to the race and income levels of communities.
The White House constantly criticizes efforts to prevent further pollution in already contaminated neighborhoods where there are high rates of asthma or cancer. It also criticizes efforts to ensure that everyone can seek shelter during a storm. These actions remain legal and necessary. They are common-sense issues in a world where we care about what could happen to our family and neighbors.
The top lawyers of several states in the country agree. In June, the attorneys general of California, Massachusetts, New York, and ten other states issued a series of multi-state guidelines affirming the importance and legality of environmental justice initiatives. The attorneys general developed these guidelines in response to the widespread attack by the Trump administration on environmental justice.
President Trump signed an executive order on his first day in office in an attempt to discredit a wide range of policies and programs aimed at fulfilling the nation’s commitment to equality and efforts to promote environmental justice. This attack by the administration intensified over the next two weeks. On January 21, the president signed another executive order to further strike at efforts to address inequality. Among other things, that order revoked a historic executive order signed by Bill Clinton in 1994, which had been in effect during Democratic and Republican administrations, directing federal agencies to include the goal of environmental justice as part of their mission.
However, as the multi-state guidelines point out, just because the president signs an executive order declaring these policies and practices “illegal” does not mean they are. Presidents cannot legislate with a marker. Their orders are merely directives to the federal government and must be in accordance with the law.
Starting Point: The Promise of Equitable Protection
The 5th and 14th Amendments to the Constitution guarantee the fundamental right to equal protection under the law and prohibit discrimination based on race, color, and national origin by local, state, and federal governments. Efforts to promote environmental justice incorporate the historical ideals of equity and equality in this country and are consistent with these guarantees. Although we have made progress in upholding the principles of justice and equitable treatment enshrined in our legislation, the legacy of discrimination persists, especially in relation to land use.
In the 1960s, the civil rights movement brought about significant changes in American society, including school desegregation, the enactment of laws prohibiting discrimination in housing and employment, and the end of formal segregation in hospitals and nursing homes. However, by then, racial inequality was already entrenched in land use and the distribution of environmental benefits and burdens in this country. In other words, segregation, redlining, and other forms of racial discrimination determined whether a community was classified as industrial or residential, defining where polluting facilities were most likely to be located and, as a result, who would be exposed to higher levels of pollution.
There is now a wealth of scientific literature that exposes the continued relationship between residential segregation and pollution exposure. In the seminal study Toxic Wastes and Race published in 1987, the Environmental Justice Movement highlighted both the relationship between race and social class and the location of polluting facilities.
It is clear that the fight against inequalities must remain a critical priority in this country. As recognized by the Centers for Disease Control and Prevention, environmental conditions are part of the social determinants of health, the conditions in which people are born, grow, work, live, worship, and age, which influence morbidity and mortality. Disparities in life expectancy based on these conditions are still “widespread and enduring”. We must all recognize that neither race, income, nor a person’s zip code should influence their exposure to pollution or the likelihood of serious illness and death. But that is still the world we live in.
What’s at Stake: Environmental Justice Policies and Programs
Although repealed by the new administration, Executive Order 14096 (Revitalizing Our Nation’s Commitment to Environmental Justice for All) included the first governmental definition of environmental justice:
“The term ‘environmental justice’ refers to the fair treatment and meaningful involvement of all people, regardless of income, race, color, national origin, tribal affiliation, or disability, in the development of agency policies and other federal activities that affect human health and the environment.”
It goes without saying that the concepts of “fair treatment” and “meaningful involvement” are consistent with the constitutional and legal mandates of equal protection and contribute to their fulfillment.
In practice, environmental and climate justice policies and programs are also consistent with the law and benefit everyone. They are sensible ways to meet pressing local needs, including:
- Programs that bring reliable energy sources to rural areas, such as those developed by the Alaska Native Tribal Health Consortium, which provide energy security and potential utility bill savings for all residents in the area
- Projects that support community efforts to expand bike-sharing systems, adopt solar energy in public transportation facilities, remove pollutants from local watersheds, replace lead pipes in homes, restore wetlands, rehabilitate affordable housing, reduce food waste, plant trees, develop contingency plans to deploy microgrids during emergencies, provide access to emergency support services, support improvements in energy efficiency, build stronger barriers against storm surges, and more
It would be hard to argue that any of these programs violate the law.
The President Cannot Unilaterally Declare Legal Activities “Illegal”
This administration has had a devastating effect and caused chaos in an effort to destroy valuable and legal policies and programs. Through the January 20th Executive Order, the president directed various federal offices and agencies to eliminate all environmental justice offices and positions and compile a list of all recipients of environmental justice grants receiving federal funds. The administration then began abruptly reorganizing environmental justice offices, blocking and canceling funds, and placing staff on administrative leave, all based on the fallacy that such programs are “illegal and immoral discriminatory programs,” as stated in the text of the January 20th executive order. But as much as President Trump may wish it, he does not have the power to change the law through an executive order.
However, the devastating effect remains a danger, and the president’s actions are intended to prevent people from engaging in entirely legal activities. Furthermore, the cancellation of grants has real consequences: community groups and local and state governments are laying off their staff and suspending work on projects such as coastal erosion, rooftop solar panel installation, or lead pipe removal. How this situation will ultimately play out remains to be seen, as several lawsuits are currently in progress in courts to challenge these arbitrary actions.
Environmental Justice Aligns with the Country’s Mandate for Equal Protection
State attorneys general serve multiple roles. They go to court to defend and bring lawsuits on behalf of their states and, as the chief legal officers of their states, they also provide legal guidance. In this case, the multi-state guidelines explain: “Federal actions attacking environmental justice have raised ongoing concerns about continued legality and the importance of environmental justice efforts, but do not impact these issues.”
As part of its abuse, this administration likes to cite the case of Students for Fair Admission by the Supreme Court, which questions the explicit use of race as a factor in university admissions, as if that somehow supports its efforts to undermine actions aimed at combating inequality in this country. But the Supreme Court was referring to admission policies that explicitly consider race, not coastal restoration or rooftop solar energy. These environmental justice initiatives are not zero-sum processes but policies that benefit everyone. Like many other courts that have ruled on challenges to policies that explicitly consider race in decision-making, the Supreme Court never suggested in its ruling that the action of addressing racial inequality is in any way contrary to constitutional principles, as the government continues to erroneously repeat. On the contrary, the courts have repeatedly affirmed that racial barriers and inequality can be addressed through mechanisms of racial neutrality, i.e., policies or programs that do not consider race as a criterion for granting benefits.
For an additional example, in several cases, the implementation of certain sections of the American Rescue Plan Act that offered debt relief to socially disadvantaged farmers, which the U.S. Department of Agriculture interpreted to include members of racial groups, among others, was invalidated. In cases like Holman v. Vilsack, the courts struck down the explicit use of race as a criterion for granting program benefits and stated that “the government must operate with a scalpel when enacting policies based on race.”
The courts did not criticize the goal of addressing racial inequality in the USDA loan program but affirmed that the government must show that it “seriously and in good faith considered other viable alternatives that do not take race into account” before explicitly using race as a criterion. In other words, it is not illegal or illegitimate to aim to address racial inequality or disproportionate impacts based on race, but to achieve those goals, governments must determine if other race-neutral policies could remedy the alleged harm, such as limiting aid to applicants who have never received a loan. These are precisely the types of programs and projects the administration seeks to halt.
If we wanted even more evidence that the administration has declared an all-out war even against clearly legal and race-neutral efforts to address inequality so that all people benefit, we need only look at another set of guidelines published by the administration, which calls into question everything from the demonstration of cultural competence to strategies targeted at specific geographic areas. Personally, I would like to have a doctor who is culturally competent and respects my family’s values, language, and traditions.
Let’s Reaffirm Our Commitment to Promoting Environmental Justice
The multi-state guidelines encourage us to “develop and implement environmental justice initiatives” and describe key actions we can legally take to promote environmental and climate justice. This includes a range of sensible initiatives, such as:
- Enhancing public participation and engagement through outreach efforts to ensure that community members affected by policies or permits have the opportunity to participate in decisions that affect their future
- Collecting and analyzing information on factors affecting our health and quality of life, such as the location of pollution sources, areas with or without green spaces, and sites with higher rates of asthma, as well as determining if these factors have a cumulative impact in the same area
- Taking actions to prevent and mitigate pollution exposure, even in communities already experiencing the cumulative effects of multiple sources of pollution
- Providing technical assistance and financial support to address water pollution or wastewater services issues
- Protecting against the effects of climate change, such as extreme heat, droughts, floods, and storms, and increasing community resilience
- Enforcing environmental laws and even civil rights laws in communities facing disproportionate environmental burdens
We face a tough battle, as the administration is not only waging a war of words but also mobilizing federal government resources to attack our values and undermine efforts to ensure that everyone has access to clean air, clean water, and a safe place for all children to play. The multi-state guidelines not only help clarify the law but also give us the reassurance that the top lawyers in many of our states are committed to protecting these much-needed efforts.
