May 01, 2017

The struggle continues: Environmental justice during changing times

Pearl Kan and William Parkin

On March 8, 2017, long-time senior environmental justice advisor to the U.S. Environmental Protection Agency (EPA), Mustafa Santiago Ali, tendered his resignation to the recently appointed EPA administrator, Scott Pruitt. On the heels of Mr. Ali’s resignation, President Trump released his budget blueprint, which called for reducing the EPA’s budget by 31 percent. At the time of this writing, the president’s budget has not yet been considered by Congress.

Former EPA Administrator Gina McCarthy prefaced the agency’s Environmental Justice 2020 Action Agenda (EJ 2020 Action Agenda) with this message: “The U.S. Environmental Protection Agency’s mission is to protect the environment and the health of all people in every corner of our nation. But far too often minority and low-income communities and indigenous peoples are most vulnerable to environmental and public-health challenges.” The EJ 2020 Action Agenda sought to “institutionalize environmental justice in rulemaking” and to “direct more enforcement resources to address pollution and public health burdens caused by violations of environmental laws in overburdened communities . . . .” With the change in administration and proposed budget cuts, it is unlikely that any of these and other goals set forth in the EJ 2020 Action Agenda will be implemented.

Though the news concerning environmental justice may be dim at the federal level, at its core, environmental justice has always been about creating momentum at the local level, among the communities most burdened by environmental harm. In recent years, several environmental justice issues have garnered widespread public outcry, political support, and legal muscle. A prime example has been the effort to stop the Dakota Access pipeline. The confluence of protest, community organizing, and legal challenge resulted in a short-lived victory on December 4, 2016, when the U.S. Army Corps of Engineers (Corps) decided not to grant an easement for the pipeline to cross Lake Oahe, a half mile upstream of the Standing Rock Sioux Tribe reservation, without further environmental review and consideration. President Trump reversed the Corps’ decision and terminated the environmental review process by granting the Lake Oahe easement shortly after taking office. Litigation concerning the Dakota Access pipeline matter is currently pending in the U.S. District Court for the District of Columbia. No matter the outcome, the momentum started by the Dakota Access pipeline protest has energized and rallied people from all walks of life concerning issues of environmental justice, specifically as it relates to indigenous people. Looking at this optimistically, this in itself is a victory for the environmental justice movement.

Another recent example is the debacle of lead-contaminated tap water in Flint, Michigan, a largely African American community. The high-profile environmental justice scandal resulted from an emergency manager’s decision to switch the drinking water source for Flint from Lake Huron to the Flint River without taking proper precautions. The change in water source caused lead to leach from the water pipes into the drinking water, harming hundreds of residents who consumed the contaminated water. This case resulted in a wider examination of the crisis of contaminated drinking water sources throughout the nation. After assessing EPA violation and enforcement information, the Natural Resources Defense Council released an analysis of where unsafe levels of lead are found around the states. The report established that, in 2015, 18 million people were served by water systems with lead violations. This is a chilling number because lead has long been known to cause serious health problems, particularly in children.

Access to safe drinking water may seem fundamental and is something that most U.S. citizens take for granted. But the sobering reality is that clean drinking water is unavailable to many across the nation. In 2012, California became the first state to codify the human right to water through passage of AB 685. This law statutorily recognizes that “every human being has the right to safe, clean, affordable, and accessible water adequate for human consumption, cooking and sanitary purposes.”

Environmental justice has been eloquently described and defined by many practitioners, activists, and academics. It has been talked about as a movement that “rise[s] through the convergence of social movements, public policy, and scholarship.” Sze & London, Environmental Justice at the Crossroads, 2/4 Soc. Compass 1331, 1332 (2008). Another scholar has focused on the interrelationship between human health and the environment: “This is what the movement for environmental justice has stood for since its inception: the inextricable relationship between the degradation of people and their ecosystems.” Pellow, Resisting Global Toxics: Transnational Movements for Environmental Justice 67 (2007). Environmental justice also contains the “perspective that recognize[s] that the disproportionate impact of environmental hazards [is] not random or the result of ‘neutral’ decisions but a product of the same social and economic structure which had produced de jure and de facto segregation and other racial oppression.” Cole and Foster, From the Ground Up: Environmental Racism and the Rise of the Environmental Justice Movement 21 (2001).

What has been uplifting in recent years is the response of ordinary people to environmental justice issues, including their ability to identify with, express outrage toward, and bring national attention to what starts out as a localized environmental justice issue. This is evident with respect to the Dakota Access pipeline and the drinking water tragedy at Flint, Michigan. Dakota Access and Flint are but two examples that underscore the importance of practitioners pursuing a legal plan of action in tandem with the broader task of empowering disenfranchised communities. This often takes cultivating working relationships alongside community organizers and representatives to create trust and hope. At times there may not be a clear legal action to take, which then mandates continued attention to and education on the issues. Other times, there may be a more definite legal path, including litigation. Ultimately, environmental justice is charged with the idea that there should be an avenue and support for communities that are disproportionately burdened by environmental harm to speak for themselves. Sometimes what it takes to be an effective environmental justice lawyer is simply to provide the space for such communities to be heard.

Pearl Kan and William Parkin

Pearl Kan is an associate at Wittwer Parkin LLP. She started her legal career working on environmental justice issues concerning access to safe drinking water at California Rural Legal Assistance, Inc. William Parkin is a partner at Wittwer Parkin LLP, a California law firm practicing land use and environmental litigation and advising and representing government agencies.