The approach is threefold. First, cities should ensure Black, Indigenous, and people of color (BIPOC) community participation and involvement in the decision-making process. Second, old polluting energy infrastructure should be removed and replaced with clean, renewable energy from sources such as wind, hydroelectric, and solar power. Third, to implement more lasting restorative justice, cities should award EJ communities some form of reparations, through grants or an ownership stake in renewable energy projects.
Environmental Injustice in U.S. Cities
A reliable and affordable electricity supply is a necessity for communities and businesses alike. Power plants, however, are located in primarily BIPOC areas across the United States. Kathiann M. Kowalski, Study: Black, Low-Income Americans Face Highest Risk from Power Plant Pollution, Energy News Network (Dec. 11, 2019). The pollution created from fossil fuel–powered plants have significant impacts to the communities in which they operate.
Power plants affect the immediate environment by emitting pollutants, generating waste, using water resources, and occupying land and air space. About the U.S. Electricity System and Its Impact on the Environment, EPA (2020). In turn, municipal water supplies, wastewater treatment facilities, and solid-waste treatment structures bear an extended burden to treat the waste that energy infrastructure creates. Power plants decrease aesthetic and property values of the surrounding community and restrict certain land use. This disincentivizes positive development near power plants and leads to further industrialization and expanded energy infrastructure construction. The operation of power plants also carries a certain amount of risk to employees and the surrounding area, which raises costs to the community for fire protection, emergency care, and medical services.
Studies show that the closer people live to a power plant, the higher the risk of death and illness from pollution and safety concerns. Kowalski, supra. In the United States, Black low-income earners face the highest risks of death and illness from power plant pollution. Id. For example, Houston’s Black and Latino neighborhoods are home to the energy industry’s infrastructure, namely refineries and power plants. Residents of predominantly BIPOC communities, such as Pasadena and the Third Ward, face high rates of cancer, brain damage, birth defects, respiratory problems, and other illnesses caused by the energy infrastructure. Sophie Dulberg, Black and Latino Residents Live in More Pollution Than They Cause. This Is Clearer in Houston More Than Anywhere Else, Tex. Housers (Mar. 21, 2019). On the other hand, the energy companies that own and profit from the industry house their corporate offices in modern high-rises in the downtown Houston area and experience significantly fewer of the health, social, environmental, or economic burdens of their energy infrastructure.
New York follows a similar pattern. Fossil-fuel plants are found in Brooklyn’s Sunset Park, a Chinese and Latino neighborhood; the Bronx, the state’s poorest area and a predominantly Black and Latino area; and historically minority communities of Queens. PEAK Coal., Dirty Energy, Big Money: A PEAK Coalition Report (May 2020). In New York City, these fossil-fuel plants were built in the 1950s when plants were not equipped with modern pollution control equipment yet they continue to operate to this day. Research in New York shows that EJ communities have developed health disparities and vulnerabilities due to energy infrastructure disproportionately sited in these communities. Id. Meanwhile, private, out-of-state companies profit while facing no negative externalities.
Though California has been a front-runner in transitioning away from fossil fuels, low-income and BIPOC communities of Los Angeles are still located near fossil-fuel power plants, facing higher levels of pollution and social costs. Cheryl Katz, People in Poor Neighborhoods Breathe More Hazardous Particles, Sci. Am. (Nov. 1, 2012). Clean, new forms of renewable infrastructure are in higher income and predominantly white areas. Boyle Heights, Compton, Vernon, and Lynwood are lower-income, Black and Latino communities that have pollution rates in the 90th percentile and are located near fossil-fuel power plants, as well as other polluting infrastructure such as manufacturing and transportation hubs. Alex Janin, Facing Off Against Pollution in South L.A. Neighborhoods, Univ. S. Cal. (May 1, 2014).
A Bottom-Up Approach to Restorative Environmental Justice
Restorative EJ can address the civil rights issues created by placement of power plants in BIPOC communities. Restorative EJ responds to discriminatory treatment by “balancing the needs of the community, the victims and the offenders.” Hon. Justice Brian J. Preston, The Use of Restorative Justice for Environmental Crime, 35 Crim. L.J. 136 (2013). The restorative process is where the victim, offender, and other relevant stakeholders equally participate in resolving the matter. Hadeel Al-Alosi & Mark Hamilton, The Ingredients of Success for Effective Restorative Justice, 42 U.N.S.W. L.J. 1460 (2019). Restorative justice has two major goals: first, to immediately remedy the ongoing problem to those facing the injustice, and second, to provide a longer-term restorative solution for those affected.
Climate action plans can offer opportunities for restoration from the bottom up. These plans can provide for community participation, fuel switching to clean, renewable energy, and even an opportunity for the EJ communities to receive an economic benefit from the new clean energy delivery systems. This section analyzes the climate action plans of three of the largest cities in the United States—Houston, New York, and Los Angeles—and provides a framework for cities to incorporate restorative EJ through these plans. Houston, New York, and Los Angeles have each recently implemented climate action plans that aim to reduce emissions, achieve carbon neutrality, and shift reliance to green energy. All three discuss EJ to an extent, but only New York sets forth direct policies to achieve environmental restorative justice.
Houston’s Climate Action Plan attempts to restore the local environment by “using a collective voice to represent the diverse range of stakeholders . . . including the business sector; academia; City of Houston departments; neighborhood, community, and non-profit organizations; students; and residents.” Houston Climate Action Plan, City of Hous. (Apr. 22, 2020). A goal of the plan is an energy transition concerning growing Houston’s renewable energy. At its launch in April 2020, the city stated that community involvement would help address EJ concerns, but the plan itself makes no mention of how it will address existing environmental injustices or how it will implement restorative justice.
New York’s Climate Action Plan has many similar goals to Houston’s, including reducing greenhouse gas emissions, moving towards greener forms of energy, and complying with the Paris Climate Agreement. 1.5°C: Aligning New York City with the Paris Climate Agreement, City of N.Y. (2015). However, New York’s plan recognizes climate injustice by prioritizing actions “that will improve local air quality in neighborhoods that bear the greatest burdens from localized air pollution.” Id. at 28. New York seeks to achieve EJ by encouraging a transition to a renewables-based electric supply, by reducing reliance on “fossil fuel-based-in-city generators” and transmitting more upstate renewable power to the city. Id. at 12.
Los Angeles’s Climate Action Plan includes a goal “to shift to a renewables-based electricity supply” to ensure “equitable access to affordable, local and reliable energy sources.” Los Angeles County Climate Action Plan (Mar. 2020). The plan notes that stakeholders and community involvement must play a central role in fostering equity by including the perspectives of low-income communities of color. However, there is no explicit section committed to achieving EJ.
These climate action plans provide an opportunity for cities to commit to a shift in renewable energy, generated in less-populated areas of the state, and begin the transition away from fossil-fuel power plants located in BIPOC committees. The effect would be twofold: The city would accomplish its goals of transitioning to cleaner energy and reduced greenhouse gas emissions, and this form of restorative justice would mitigate the harms BIPOC communities face.
To better accomplish these goals, cities should supplement their respective plans to include provisions recognizing EJ and implementing a framework to accomplish these goals. The plans should include (1) an opportunity for the BIPOC communities to have a voice in the decision-making process and an avenue to participate in the decisions impacting their lives and livelihood; (2) a plan for removing the dirty power plants in BIPOC communities and replacing them with clean, renewable energy; and (3) a form of economic reparations in the form of profit-sharing, partial ownership, or community grants.
Public Participation and Community Grassroots Involvement
One way to address EJ begins with bottom-up principles of grassroots organization at the community level. While “[r]esearchers and community partners are inclined to seek policy-based approaches to solve the problem (i.e., top-down)[ e]nvironmental injustice . . . cannot be solved by the same level of consciousness that created it.” Harold Rickenbacker, Environmental Consciousness in Underserved Communities: Implementation and Outcomes of Community-Based Environmental Justice Pollution Research, 47 Sustainable Cities & Soc’y 1, 2 (2019). Instead, researchers must develop a strategy that, at a minimum, includes identification of the issue, outreach in a grassroots capacity, community involvement, and participatory research.
EJ communities can begin a path of recovery and restoration through a community-based, grassroots approach. EJ and sustainable development are intrinsically linked, requiring that “people of color and low-income communities should neither bear a disproportionate share of environmental burdens nor be disproportionately deprived of environmental benefits.” Uma Outka, Environmental Justice Issues in Sustainable Development: Environmental Justice in the Renewable Energy Transition, 19 J. Env’t & Sustainability L. 60, 64 (2012). Climate action plans in Houston and Los Angeles acknowledge the importance of community involvement, and all three cities already have multiple organizations committed to environmental injustice, including Houston Peace & Justice Center, the NYC Environmental Justice Alliance, and the California Environmental Justice Alliance. Such organizations have established community ties and over time have built trust and communication with the affected neighborhoods. Each has a board of directors that leads collaborative regional work and serves as a mediator between government officials and community members. Community action teams can spark grassroots involvement and provide BIPOC communities with “the technical knowledge to substantiate environmental concerns” and empower direct involvement in new projects. Rickenbacker, supra at 4. Studies have found that when community action teams gain knowledge and are treated as equal partners by the agency, these communities gain a sense of ownership of the project. Id.
Clean Energy Infrastructure
Restorative justice acknowledges the competing interests of both the offenders and victims. Restorative EJ as applied to the issue at hand could cause a shift from a pollution-emitting and unsightly industrial complex to one focused on cleaner energy. Every state has some major form of renewable energy, and researchers agree that solar and wind are the top clean candidates to replace coal, biofuels, and natural gas in electricity generation.
Wind energy has various benefits for both the environment and community. Wind turbines are often built and operated in remote and relatively unpopulated areas. Environmental Impacts of Wind-Energy Projects, Nat. Res. Council (2007). In Texas, wind farms are most commonly placed in west and north Texas, which not only have some of the highest wind speeds but are the least-populated areas of the state. Wind energy can decrease electricity generation from conventional methods, as it may be substituted for natural gas–generated electricity in the regional market. Id. Wind turbines do not generate atmospheric contaminants or thermal pollution, and research has noted that areas that utilize wind energy have improved air quality. Id.
Disadvantages of wind energy include noise and shadow flicker, both of which scientists note are not major concerns or forms of nuisances to humans. However, there are indications that for certain bat species, wind turbines may be a significant threat. Id. at 159–60. Houston is in a difficult position because many of the energy companies that contribute to environmental injustice sustain Texas’s economy. However, over 30 wind companies are already located in Houston, and many are subsidiaries of traditional fossil fuel producers. For example, Shell WindEnergy Inc. and BP Wind Energy North America conduct various wind energy operations in Texas. Wind Energy Overview, Greater Hous. P’ship (2020).
Hydroelectric power similarly provides economic, environmental, and social benefits. Hydropower facilities emit no carbon dioxide, fine particulates, or other EPA-classified hazardous air pollutants, while also converting obtainable hydroelectric power into utility-grade electricity at a more efficient rate than fossil fuels. Hydroelectric Power Water Use, U.S. Geological Surv. (2021). New York is the third-largest producer of hydroelectricity in the nation, and one-fifth of the state’s electricity is generated from hydroelectric power facilities upstate, near water sources. New York: State Profile and Energy Estimates, U.S. Energy Info. Admin. (2021). Upstate New York also has wind-generated utility-scale electricity.
The state of New York’s Power Authority (NYPA) owns the three largest hydroelectric plants located in upstate New York, specifically near the Niagara and St. Lawrence bodies of water. NYPA Generating Facilities, N.Y. Power Auth. (2021). Hydroelectric plants can have environmental and social costs. For example, hydroelectric facilities and dams can disrupt ecosystems, increase risk of flooding to surrounding lands, and have high initial investment and construction costs. Hydroelectric Power Water Use, supra. However, these New York plants are located in sparsely populated areas, sited away from neighborhoods and residential communities. Hydropower typically outweighs any costs—hydropower has a smaller carbon footprint than nonrenewable energy sources, costs less in operation fees and electricity bills, and is a reliable source of electricity. Per-Olov Johansson, Economics and Social Costs of Hydroelectric Power 1–19 (Ctr. Env’t & Res. Econs., Oct. 2018).
The nation’s solar power industry has grown significantly in recent years through the development of modern technologies capable of effectively harnessing and converting solar into electricity. Solar power does not produce air pollutants or carbon dioxide, contributing to reduced greenhouse gas (GHG) emissions and fossil-fuel reliance. Solar power systems are nonintrusive and have minimal negative environmental effects. California already leads the country in solar energy. Solar can have accessibility problems for disadvantaged communities as it requires larger financial investments, home ownership, and residency in solar distribution zones. Nick Gromicko, Disadvantages of Solar Energy, NACHI. However, California has solar thermal facilities in the Mojave Desert region that generate utility-scale electricity for the metropolitan surrounding cities. California Solar, Solar Energy Indus. Ass’n (2021). The solar industry provides 22% of California’s electricity, and prices have fallen 45% between 2015 and 2020. California also has a solar mandate that requires all new-construction homes to include a solar photovoltaic (PV) system as a source of electricity.
Restorative justice would address the needs of both those perpetuating the status quo—energy companies and state and local governments—and the communities facing environmental injustice. Clean, renewable energy would solve the pollution-based harm to these communities while still ensuring that a dynamic, profitable, and useful form of energy infrastructure exists. These forms of renewable energy are solid sources of electricity that could be used to power major cities without the construction of industrial infrastructure in urban areas.
Economic Reparations
After repairing the harm, restorative justice “seeks to return ownership of the resolution of wrong, crime, and harm to those primarily affected and those who can in turn effect meaningful repair.” Margaret Urban Walker, Restorative Justice & Reparations, 37 J. Soc. Phil. 377, 384 (2006). Plans of restitution, compensation, and other strategies aimed at making long-term compensation a central part of the goal can “serve as a source of funding for neighborhood associations, community-based entities, community groups, or individuals living within a specified community or zip code that have suffered historic environmental justice.” Catherine Millas Kaiman, Environmental Justice and Community-Based Reparations, 39 Seattle Univ. L. Rev. 1327, 1358 (2016). Therefore, an integral part of restorative justice is providing long-term restitution to the EJ communities affected, through profit-sharing, partial ownership, or community grants.
Businesses have a responsibility to the communities they operate in and profit from, and undertaking measures to share a portion of those profits with the community would bridge that gap. Community economic development seeks to empower low-income neighborhoods by creating jobs, increasing community resources, and expanding infrastructure. Timothy Capria, Community Economic Development & Environmental Justice, Duke Univ. Sch. L. Cmty. Enter. (May 1, 2013). Profit sharing as a means of restorative justice requires companies to allocate a percentage of net profits to community organizations working toward climate justice and EJ. For example, Namaste Solar, a residential and commercial solar provider in Colorado, voted to share 10% of profits with community organizations that are BIPOC led and dedicated to improving the lives of BIPOC communities. Community Profit Sharing at Namaste Solar, Namaste Solar (2021). The Clean Energy Council notes that “community benefit sharing is becoming increasingly commonplace as a means to integrate renewable energy developments into local communities in ways that are positive, rewarding and beneficial for both project proponents and local communities.” Benefit Sharing for Renewable Energy Projects, CEQ (2021). Therefore, profit-sharing between community organizations and the renewable energy companies provides for long-term, positive economic reparations as a form of restorative justice.
Partial ownership would guarantee benefits to the communities affected economically and personally, by providing them a stake in renewable energy. Maine’s governor created a task force that established a framework for community wind, which is a sector of the wind energy market that promotes local ownership. Lila Barrea-Hernandez et al., Sharing the Costs and Benefits of Energy and Resource Activity 165 (Oxford 1st ed. 2016). Community wind gives community members a financial stake in wind projects, which empowers communities through a shared sense of purpose and maximizes their economic and environmental benefits. Maine’s Wind Energy Act creates the community wind framework and requires that the funds be for projects and programs of public benefit. Maine Wind Energy Act, Me. Rev. Stat. tit. 35-A, § 3402. Partial ownership creates long-term positive impacts—BIPOC communities have a vested interest, the state can take a more relaxed approach, and companies have a more streamlined process in garnering community involvement.
Cities have already begun rudimentary stages of this plan. The NYPA announced a partnership between itself and the Peak Coalition, representing five of the largest New York EJ organizations, to assess how NYPA can transition six natural gas fired plants into clean energy infrastructure. NYPA & Environmental Justice Groups Agree to Explore Options for Transitioning NYPA’s Natural Gas “Peaker” Plants to Cleaner Energy Technologies, N.Y. Power Auth. (Oct. 14, 2020).
These plants are disproportionately located in communities of color in the Bronx, Brooklyn, and Queens—and the plan aims to convert them into a combination of solar, offshore wind, and battery storage facilities. NYPA’s rationales are (1) meeting clean energy goals outlined in the city’s climate action plan for carbon neutrality and mitigating the effects of climate change and (2) correcting harm to New York’s EJ communities. This is the first time a public utility agreement requires collaboration with EJ groups to explore clean energy replacement options. Balancing energy reliability and EJ requires such a partnership, as PEAK is the authority on protecting EJ communities while the NYPA has the expertise in assessing electricity needs of the city. Though the plan is in its early stages, the city should provide some form of power subsidies, or discounts, or create profit-sharing incentives to incorporate reparations into the plan.
The federal government can also provide support in an economic capacity. The Biden administration has issued an executive order to address EJ, which includes the “Justice40 Initiative with the goal of delivering 40 percent of the overall benefits of relevant federal investments to disadvantaged communities.” Exec. Order No. 14,008, 86 Fed. Reg. 7619 (2021). The program’s purpose is to identify how federal investments can be made toward a goal that 40% of the overall benefits flow to investments in clean energy, energy efficiency, transit, affordable housing, workforce development, and infrastructure.
In sum, the disproportionate impacts created by the historical placement of energy infrastructure in EJ communities has a solution. Cities can effectively use climate action plans to improve community involvement and to address the adverse economic and environmental effects of energy infrastructure on vulnerable communities. Restorative justice requires participation, input, and approval from the governmental agencies involved, the corporate entities that have benefitted from and perpetuated the problem, and the communities directly affected. This will begin the transition from energy injustice to justice.
