- Communities of color and poor communities are inordinately denied basic benefits like clean air, clean water, and uncontaminated land.
From the 1960s through the 1980s, individuals—primarily Black, Indigenous, and people of color—sought to address the inequity of environmental protection in their communities, leading to the environmental justice movement we know today. When you hear the words “environmental justice,” though, what comes to mind? Work in minority areas? Decreasing the number of polluting facilities in low-income communities? Providing better access to parks? The meaning varies.
For too long, minority and poor communities have suffered a disproportionate share of environmental harm resulting from intentional government action. Today, horribly indifferent government inaction often perpetuates that systemic harm. Lawyers and nonprofit organizations can fight environmental injustice by understanding what environmental justice and systemic harm mean and look like, learning lessons from the past, and listening to and learning from those who have been oppressed.
The US Environmental Protection Agency’s (EPA) definition of environmental justice focuses on regulatory requirements and promoting the “fair treatment and meaningful involvement of all people” regarding developing, implementing, and enforcing environmental laws and regulations. The United States’ oldest and largest civil rights organization, the National Association for the Advancement of Colored People (NAACP), views environmental justice more holistically, emphasizing environmental benefits and burdens, regardless of an association to government regulation. The NAACP aims to address practices harming communities and “advance a society that fosters sustainable, cooperative, regenerative communities that uphold all rights for all people in harmony with the earth.”
This holistic approach is important because communities of color and poor communities are inordinately denied basic benefits like clean air, clean water, and uncontaminated land. Meanwhile, quality green spaces and parks are often the privileges of the white and wealthy. The distribution of environmental burdens (e.g., environmental hazards, pollutants, and contaminated land) adds to this inequity. Studies show that far more polluting facilities are located within impoverished communities of color than affluent white communities. Government authorities tend to focus inspection and enforcement efforts elsewhere, leaving polluting facilities operating under outdated or expired permits in vulnerable communities. Life expectancies are lower, and hospital admissions are higher in these areas. For example, there is an 18-year life expectancy difference between the wealthiest and most impoverished neighborhoods in St. Louis, Missouri.
Consider sewage treatment as an example of indifferent government action: In St. Louis, like most older cities, many sewer pipes move both wastewater and stormwater. When there is a lot of rain, the system is overwhelmed. Raw sewage flows into rivers and streams. When the regional sewer authority explored potential fixes, it proposed constructing sewage holding tanks in several St. Louis area–communities. They proposed one tank in Clayton—one of the area’s whitest (and wealthiest) communities. The other proposal was for a tank in Ward 3 of University City, a substantially Black and less affluent neighborhood. In Clayton, the sewer authority proposed locating the tanks beneath a commercial parking lot. In Ward 3, it proposed constructing two tanks in a residential neighborhood. Each tank would have been 180 feet in diameter and 48 feet high, 35 feet of which would be above ground. In Ward 3, the sewer authority planned to displace roughly 20 families, by eminent domain if need be. The tank in Clayton would not displace any families.
To the sewer authority, the matter was one of economics. In Clayton, putting the holding tanks below ground was cheaper than acquiring high-priced homes. In Ward 3, where property values are roughly one-eighth of the property values in Clayton, it was cheaper to bulldoze the homes and displace the families. After some well-organized pushback, the sewer authority came up with a feasible, below-ground alternative for Ward 3 as well.
Are these examples of intentional racism? Doubtful. Systemic racism? Absolutely. Historic racism and economic inequality have been cited in published EPA studies as significant factors in the siting and development of facilities emitting environmental hazards.
In 1978, the Council on Environmental Quality—an independent agency that implements the National Environmental Policy Act (NEPA)—promulgated regulations instructing federal agencies to consider the social effects of their actions if connected to changes to the physical environment. See 40 CFR § 1508.14. In 1994, then-President Clinton issued Executive Order 12898, directing federal agencies to address the adverse human health or environmental effects of their activities on minority and low-income populations. Consequently, environmental justice is squarely on the list of issues federal officials must evaluate when undertaking federal projects or when funding or authorizing private projects.
This executive order gave public interest environmental lawyers a new litigation tool. When lawyers perceived that federal officials were neglecting to consider environmental justice impacts during their decision-making, they could now raise the issue in lawsuits. In Sierra Club v. Federal Energy Regulatory Commission, 867 F.3d 1357, 1368 (D.C. Cir. 2017), the court reiterated that Executive Order 12,898 requires federal agencies to include an environmental justice analysis in NEPA reviews.
Despite having an environmental justice litigation tool at the ready, traditional environmental organizations (and their lawyers, including myself) did little to combat social injustices these past two decades. For the most part, we were disengaged from the wants and needs of low-income, minority communities. Our organizations and attorneys primarily continued to advance our traditional environmental interests instead. Take, for example, a proposed environmentally destructive flood control levee. If it appeared that a loss of wetlands was not enough to persuade a judge to enjoin the levee, why not tee up environmental justice? The levee’s effects on an already overburdened, upstream community were often an afterthought.
The 2016 presidential election was a turning point for traditional environmental groups and environmental justice. One week after the election, the leaders of national and regional environmental organizations assembled for the 29th Annual State Environmental Leaders Conference. Early on, a session speaker urged organizations to prioritize environmental justice against the onslaught of environmental protection rollbacks the new administration would bring. To do so, the environmental community would need to view environmental justice differently.
No longer, she explained, should the underrepresented and underserved be asked to embrace the missions of the environmental community on the theory that, “if it is good for the environment, it will be good for you too.” She urged environmental organizations and their lawyers to put environmental justice first and to do so for the sake of doing justice to the communities, not merely to advance an environmental organization’s mission. Judging from the applause, the conference attendees embraced the idea.
There has been progress since 2016. Many nonprofit environmental groups have taken steps to integrate social justice and environmental concerns. In Cairo, Illinois, at the confluence of the Mississippi and Ohio Rivers, my organization worked with community members and regional branches of the NAACP to oppose a levee project that would exacerbate the community’s flood problems and destroy more than 53,000 acres of biodiverse wetlands. For more than a decade, the environmental community had opposed this project. We used traditional tools—calling for an EPA veto and beginning a litigation plan—all to no avail. Instead, we needed to engage with the overburdened community’s wants and needs. We brought the community to Washington, DC, to meet with various federal agencies to talk about social justice—to explain how the project would benefit a small handful of wealthy white families to the detriment of a low-income community of color. The community’s advocacy led to then-President Obama, on his last day in office, instructing the federal agencies to enter into a resolution making it very difficult for the Army Corps of Engineers to proceed with the project.
Still, much progress remains. In early 2020, a collective of Black environmental leaders issued a “Statement on Systemic and Pervasive Racism within the Environmental Field,” that laid out 10 minimum action items that traditional environmental organizations must do to end systemic racism. It is a stark reminder that in our efforts to combat environmental injustices and systemic racism, we need to start from within our organizations.