This silver lining to the pandemic clearly illustrates that we can change; however, it is a matter both of circumstance and political will. In the last four years, the laws, policies, organizations, and institutions addressing the environment and environmental justice have been restricted, defunded, and rolled back. Prior administrations have emphasized the need to cut regulations considered burdensome to the coal, oil, and gas industries; however, the dismantling of significant climate policies and the rollback of rules pertaining to clean air, water, wildlife, and toxic chemicals have been radically different. The Trump administration officially reversed, revoked, or limited nearly 100 environmental rules; more than a dozen other rollbacks were in progress but were not finalized by the end of his term. (Nadja Popovich, et al. “The Trump Administration Rolled Back More Than 100 Environmental Rules. Here’s the Full List,” The New York Times (Jan. 20, 2021).) The first step toward a better environment must be to restore eliminated rules and enact better laws.
With the new administration, the opportunity exists not only to restore these environmental protections but to make real improvements. President Joseph Biden signaled the desire to make such changes on his first day in office. On day one as the 46th president, Biden signed a letter stating that the United States would officially rejoin the Paris Climate Accord, revoked the permit for the Keystone XL pipeline, reversed rollbacks to vehicle emissions standards, undid decisions to reduce the size of X national monuments, enforced a moratorium on oil and natural gas leases in the Arctic National Wildlife Refuge, and reestablished a working group on the social costs of greenhouse gases.
Returning to prior iterations of laws is simply not enough. Our major environmental laws were written for conditions of the past, having failed to evolve with changes in the environment or the long-due recognition of issues like systemic racism. While accompanying rules and regulations have changed, the Clean Air Act, enacted during the Nixon administration in 1970, has not been amended since 1990; the Clean Water Act of 1972 since 1987. The Endangered Species Act, passed in 1973, was last amended in 1982. The National Environmental Policy Act was passed in 1970 and last amended in 1982. These laws are woefully out of date in the context of ever-changing science and technology and economic and social conditions. First and foremost, revisions to these laws must be data-driven, which will require a return to prioritizing the work of subject-matter experts in science, engineering, public health, and medicine. Further, if we are to truly address the environment, we must also address the persistent racial and economic disparities that impact communities which have traditionally borne the brunt of poor environmental conditions.
The repercussions of environmental rollbacks—weakening air and water protections, limiting community health and safety protections, and a refusal to act on climate change—have disparately impacted communities of color. President Biden has signed an order aimed at addressing systemic racism and ensuring equal access to federal government resources, benefits, and services. Although that is a welcome gesture toward this enduring problem, substantive, enforceable action must be taken to address this issue. One of many aspects requiring an immediate response is to enforce existing provisions for and enact new laws that clearly and specifically address environmental justice.
This year marks the 30th anniversary of the First National People of Color Environmental Leadership Summit and the adoption of their 17 Principles of Environmental Justice. This was the defining document for grassroots efforts toward environmental justice and the foundation for the 1994 Executive Order 12898 “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations.” Three decades after this monumental event, the United States still has no federal law specific to environmental justice, though numerous bills have been proposed. Because “environmental justice” permeates so many aspects of the environment, ranging from the siting of toxic waste dumps to food insecurity, it is unlikely that a singular law could be passed that has sufficient teeth to protect vulnerable populations. In the next four years, therefore, it is incumbent upon the new administration to move beyond executive orders establishing a White House interagency council on environmental justice, creating an office of health and climate equity at the Health and Human Services Department, and forming an environmental justice office at the Justice Department. These efforts, while commendable, require the support of additional executive and legislative action.
Building on this need to address inequities in general, the next four years must address the broader implications of environmental law on indigenous populations. This administration must ensure that Native communities receive the funding and protections they are entitled to, play a greater role in addressing environmental concerns, and that their sovereignty and self-determination are central to any and all processes and decision-making impacting natural and cultural resources. This will require addressing specific issues, such as the disproportionate impact of the coronavirus, the failure to properly implement consultation requirements associated with laws like the National Environmental Policy Act and National Historic Preservation Act, and the protection from resource extraction. However, it also means having better representation in government positions impacting the environment and environmental justice. President Biden’s historic nomination of Representative Deb Haaland (D-NM) to lead the Department of the Interior as custodian of America’s natural resources and heritage is a good first step. Haaland, if successfully confirmed, would be the first Native American to serve in this role and the first Native American Cabinet secretary. In this role, she will lead the conservation and management of the country’s 500 million acres of federal lands as well as the oversight of agencies such as the National Park Service, the Fish and Wildlife Service, the Bureau of Land Management, and the Bureau of Indian Affairs, which holds in trust approximately 56.2 million acres for tribes (44 million acres) and individual Indians (11 million acres).
Finally, we must create a more concrete climate response. While rejoining the Paris Accord brings us back to the international table to address this issue, the United States should focus on being a leader in climate action by enacting laws that more boldly address emissions and with greater urgency. In the absence of federal action, some states have taken steps to address climate-warming emissions. For example, Massachusetts passed a Global Warming Solutions Act to regulate carbon pollution. Outside of the United States, Denmark created a legally binding target to reduce greenhouse gas emissions by 70 percent by 2030. Legislation addressing greenhouse gas reduction that significantly reduces atmospheric CO2 and works in concert with existing environmental regulation must be passed.
As we move forward, there is hope that our regulatory system can again become a catalyst in the style of a Yellowstone wolf. This was something witnessed decades ago with the creation of the Environmental Protection Agency (EPA). The environmental downfall of the 1960s is often remembered by a handful of discrete disasters: the Cuyahoga River fire, the New York City Thanksgiving smog, and the Santa Barbara oil spill. These were not isolated instances, as the environment in the United States pre-EPA was polluted and dangerous. The establishment of the EPA and the laws it implemented changed the nation—lead levels in children’s blood are nearly one-tenth of what they were decades ago, thanks to a decrease in emissions per mile; the percentage of American homes supported by effective sewage treatment systems has doubled; over 18 million acres of hazardous waste-contaminated lands have been remediated; and wetlands loss has fallen by nearly 96 percent—all proof of the impact of regulation. (“Protecting the Environment: A Half Century of Progress.” EPA Alumni Association (April 2020), available at https://www.epaalumni.org/hcp/Overview.pdf.)
The pandemic has illustrated that we can alter our course once again as we have witnessed improved environmental conditions, although it has also created new environmental concerns that will need to be addressed in the years to come, such as an increase of medical waste and the haphazard use and disposal of disinfectants and personal protective equipment. In a country that is facing a deeply troubling political divide, it is critical to consider the sentiments of author and environmental advocate Wendell Berry: “The earth is what we all have in common.”