chevron-down Created with Sketch Beta.
August 03, 2021

Annual 2021: Environmental justice in Biden era

Environmental justice has become a hot topic in the wake of tragedies such as the 2014 water crisis in Flint, Michigan, the 2016 Dakota Access Pipeline protests, and the worsening climate crisis.

These high-profile events show how disadvantaged communities bear disproportionate burdens of environmental harms. Though efforts have languished during the past few years, the administration of President Joe Biden has demonstrated a renewed emphasis on environmental justice.

Last year the ABA Section on Energy, Environment, and Resources initiated an effort for systemic reform of environmental justice at the ABA, culminating in the House of Delegates considering Resolution 513, the first update to its policy since 1993, at the 2021 ABA Hybrid Annual Meeting. The Section on Civil Rights & Social Justice and the Center for Human Rights have joined SEER as co-sponsors. SEER also has proposed that the ABA Board of Governors establish an ABA Task Force on Environmental Justice to implement the resolution.

In a CLE Showcase program at the Annual Meeting called “The Era of Environmental Justice: Prioritizing Protection and Remedies for Underrepresented Communities,” a panel of experts will provide context for how environmental justice is rapidly emerging as a driving force for decision-making across government and commercial development and impacting the role of lawyers in advising their clients. The program is at 2-3:30 p.m. CDT on Wednesday Aug. 4, with a live Q&A immediately following with the panelists.

Panelists include:

  • Moderator Marisa Blackshire, senior director of Environmental Compliance and Environmental Health and Safety at Bloom Energy in San Jose, California
  • Gwen Keyes Fleming, partner at Van Ness Feldman in Washington, D.C.
  • James R. May, professor at Widener University Delaware School of Law in Wilmington, Delaware
  • Ben Wilson, chairman of Beveridge and Diamond in Washington, D.C.

Panelists will discuss the background of environmental justice, legal, policy and corporate developments, the draft ABA resolution and task force, developments at the federal and state levels, and what it all means for businesses and practitioners advising clients on connected issues, Blackshire said.

“I think the new resolution is intended to solidify the ABA’s commitment — and the legal profession’s commitment — to an approach that is consistent with the current conversation and what we’ve seen from the Biden administration in terms of advancing programs, policies and activities that provide for fair treatment and meaningful involvement by all and that reflect the right of every human being to dignity and a clean and healthy environment,” Blackshire said.

A lot has changed since the ABA passed the first resolution. “Environmental justice in 2021 is different than it was in 1993,” said panelist James R. May, who chaired the SEER Environmental Justice Task Force that drafted Resolution 513. “It’s now a global phenomenon with local impacts and essential element of modern mainstream legal thinking.” Other task force members are Daniel Appelman, Nadia B. Ahmad, Scott W. Badenoch Jr., Stacey J. Halliday, Howard Kenison (SEER chair), William Kinsey and Lawrence Pittman.

May said much of the progress in environmental justice is advanced at the state level, where about half of the states in the country have incorporated it into policies in some way, shape or form. He points to California, where environmental justice is a regular component of environmental planning, and New Jersey, which recently enacted a law that requires preparation of an environmental justice impact analysis for state projects affecting environmental justice communities there.

Nationally, there is also a lot of activity, including executive orders, advisory groups, draft legislation and administrative initiatives, including at the Council on Environmental Quality, the Environmental Protection Agency and the Department of Justice Division of Civil Rights, all contributing to ever-maturing conversations about addressing and redressing the disproportionate adverse effects of environmental harm.

Globally, environmental justice is increasingly incorporated into legal requirements in dozens of countries, May said. A leading example is South Africa, which has an Environmental Justice Act that affords a private cause of action for disproportionate effects of environmental policies, although how the law will be implemented remains to be seen, he said.

The SEER initiative to modernize the 1993 resolution is inspired by the movement for systemic justice, including the Black Lives Matter movement, May said. “Lawyers — especially those beginning a career in law, care about social justice and making a difference. They want to know not just what the law says, but what it can do to advance human dignity for everyone, everywhere.”

May said passage of the resolution would result in improved participation, decision-making and environmental outcomes, and promote social justice.

The Annual Meeting CLE Showcase program is sponsored by the ABA Section of Environment, Energy, and Resources.