I Pledge…With Environmental and Climate Justice for All (Part 3)

September 1, 2020

We face, therefore, a moral crisis as a country and as a people. It cannot be met by repressive police action. It cannot be left to increased demonstrations in the streets. It cannot be quieted by token moves or talk. It is a time to act in the Congress, in your state and local legislative body, and, above all, in all of our daily lives.— John F. Kennedy

Today’s battles against racial and economic injustice include the fight for environmental and climate justice and equality.

A few days ago, the nation marked the 57th anniversary of the March on Washington. A march beginning at the Washington Monument and ended at the Lincoln Memorial. It was there Dr. Martin Luther King spoke of his dream of a nation in which his children would be judged by the content of their character rather than the color of their skin.

June 11th was the 57th anniversary of another seminal speech in American history—President Kennedy’s televised address to the nation on civil rights. It was a speech Dr. King called the most eloquent, profound, and unequivocal pleas for justice and freedom of all men ever made by any President. It would be one of the last speeches of President Kennedy’s life.

The year 1963 was an extraordinary time in America. ZIP codes came into being, the Coca-Cola company introduced the first diet drink, and George Wallace became governor of Alabama. Wallace, too, had a dream—of a nation in which there was segregation now, tomorrow and… forever.

In the months following Wallace’s inauguration Alabama was to be much in the news. “Bull” Connor unleashed fire hoses and police dogs on peaceful protesters, and, just hours before Kennedy’s address, Wallace stood in a doorway at the University of Alabama to prevent the enrollment of the first two African Americans–James Hood and Vivian Malone Jones. Racial equality was not the only right being claimed in 1963. Betty Friedan’s The Feminine Mystique launched a reawakening of the Women’s Movement in the US and elsewhere in the world.

It was a year of landmark legal cases. In 1963 the US Supreme Court (SCOTUS) decided Gideon v. Wainwright and ruled that counsel was to be provided to indigent defendants in state criminal prosecutions. Three years later, the high court decided Miranda v Arizona and police departments became obligated to advise criminal defendants of their constitutional rights to counsel and against self-incrimination at the time of their arrest.

As Dr. King told the 250,000 marchers on that warm Washington day in August of 1963, their journey was a beginning, not an end. His words the whirlwinds of revolt will continue to shake the foundations of our nation until the bright day of justice emerges, presaged this year of 2020 and, however, more years it will take before equal justice is accorded all Americans.

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None of this is to say that progress has not been made. America is, in many ways, a freer and more just society for people of all colors than it was 57 years ago. However, inequality runs deep. As one layer is peeled back, a new one is exposed—with each victory, the nation comes closer to the bright day of justice when all Americans stand as equals.

Today’s battles against racial and economic injustice include the fight for environmental and climate equality. I’ve written before that racial and economic injustice and inequality are found in many forms throughout the clean energy and environmental sectors—in its institutions, the siting of polluting industries, and access to technology.

Racial and economic inequality is addressed in two recent Democratic pieces of proposed legislation—the Environmental Justice for All Act (EJ4ALL) and the Climate Equity Act[i]Both Acts not only look to protect frontline communities of color and low incomes but to involve them in the decisionmaking process.

The Environmental Justice for All Act (HR 5986)
HR 5986 is a sweeping 130-page piece of legislation. Its objectives include:

  • Strengthening the Civil Rights Act of 1964 to ensure that citizens can enforce their rights against discrimination; (Juliana?)
  • Amending the National Environmental Policy Act to expand opportunities for public involvement in the federal decisionmaking process by increasing the visibility and accessibility of the public hearing process and other opportunities for input, e.g., increase public comment periods, translate information into languages other than English;
  • Ensuring that permitting decisions under the Clean Air Act, the Clean Water Act and many other laws sufficiently consider cumulative pollution levels of proposed projects; (reference NEPA art)
  • Providing federal capacity-building grants to environmental justice, health equity, civil rights groups, Tribes, states, and universities to ensure their ability to participate in the decisionmaking process of federal and state agencies that pose environmental and health threats to communities of color and low income, e.g., permitting of hazardous waste sites.
  • Supporting a fair and just transition to a clean energy economy for all communities and workers, e.g., economic development programs for communities once reliant on coal or fracked oil and gas projects that are no longer financially viable; and,
  • Recognizing a human right to safe, clean, affordable, and accessible drinking water.

The proposed Act also has a host of provisions internal to the federal government like empaneling a National Environmental Justice Advisory Council and an Interagency Working Group on Environmental Justice Compliance and Enforcement.

Although HR 5986[ii] was introduced earlier this year, recent announcements highlight Senator Kamala Harris (D-CA), who is now the Democratic nominee for Vice President. Other sponsors of the EJ4ALL include Representatives Grijalva (D-AZ ), McEachin (D-VA) and Senators Booker (D-NJ), Duckworth (D-IL), Warren (D-MA), Feinstein (D-CA), Wyden (D-OR), Durbin (D-IL), Smith (D-MN), Markey (D-MA), Gillibrand (D-NY) and Udall (D-NM).

Just weeks ago, Senator Harris and Representative Ocasio-Cortez introduced the Climate Equity Act, which would require relevant legislative proposals to be given an equity score estimating its impact on frontline communities. The score would be modeled after the marks assigned to legislation by the Congressional Budget Office (CBO).

The authors define frontline communities as those that have experienced systemic socioeconomic disparities, environmental racism, and other forms of injustice, including low-income communities, indigenous peoples, and communities of color. They would also include within the definition deindustrialized communities, depopulated rural communities, vulnerable elderly populations, unhoused populations, and people with disabilities.

The particulars of equity scoring would be worked out in consultation with experts and leaders from frontline communities. Like the EJ4ALL Act, internal government bodies would be established under the Equity Act. These would include an independent Office of Climate and Environmental Justice Accountability with a Board of Advisors made up of members and allies of frontline communities to represent the views of frontline communities in rulemaking at the beginning of the rulemaking process.

The recently announced legislation is similar to a bill that Harris and Ocasio-Cortez introduced in 2019. I think it’s fair to say the introduction of the “new” bill was intended to serve two purposes—to keep the legislation front and center, at a time when the Democratic Party platform was being drafted. And, as a marketing ploy to support Senator Harris’ being considered for the Vice Presidential nomination.

The Climate Equity Act is being well-received by groups like WE ACT that endeavor to represent and advocate on behalf of frontline communities. Elizabeth Yeampierre, Co-Chair, Climate Justice Alliance Steering Committee and Executive Director of UPROSE, has said of the legislation:

Centering, our communities, our leaders, including our young people, is a requisite and primary step for climate justice. The Climate Equity Act, if properly implemented, could be a key tool for ensuring that our communities are always at the table, and multiple government agencies work in synergy to ensure intersectional and inclusive solutions.

Other organizations in support of the bill include WE ACT, Moms Clean Air Force, the Sunrise Movement, and the NAACP.

Both of the proposed Acts are consistent with Biden and Harris’s climate plan that they will be running on between now and November 3rd. Although approaching the issues through slightly different mechanisms, their proposal takes and all-government approach and looks to intra-governmental offices and programs. Moreover, their plan considers environmental justice as a civil right and looks to open the government decision making process to communities of color and low incomes.

It would be both easy and true to attack the Trump administration paying little attention to the issues of environmental and climate inequality. The truth, however, is that no administration—Democrat or Republican—has paid more than glancing attention to these matters.

As with other climate-related legislation, neither the EJ4ALL Act nor the Climate Equity Act has any chance of becoming law as long as Republicans control the Senate and/or the White House. It’s a big enough stretch for Republicans to resist the current dismantling of the nation’s environmental laws or to offer even lukewarm support for planting millions of trees in the knowledge that they would sequester carbon emissions.

Given the current position of most congressional Republicans on the Black Lives Matter movement, legislation having to do with climate and environmental justice cannot be expected to gain their support.

A 2017 article in the National Review by Roger Clegg suggests a conservative view of environmental justice laws. It also implies an argument conservatives might use to oppose such legislation. In the article, Clegg considers the disparate impact argument as the basis for restorative justice in civil rights cases as generally “bad policy” and in environmental matters as “bizarre.”

In the article, Environmental Justice and the Trump Administration, he offers up the following example:

…the government tells an agribusiness, for example, ‘This pesticide that you are using is making children sick in a nearby neighborhood. Now, we know that you don’t intend any racial discrimination, and we would be okay with children getting sick if the neighborhood were racially mixed, but the problem is that it is a heavily minority neighborhood. Therefore, you must stop.’

Clegg is wrong as to whether it would not be alright if a farmer were using a pesticide that sickened children in the neighborhood as long as it made children of whatever race or ethnicity ill. The farmer can be held civilly liable whether his action was intended to harm or not.

Personal injury claims are frequently based on negligence claim. Negligence is conduct that falls below a reasonable standard of care for the safety of those around you. The label on the pesticide could carry warning labels indicating use in windy conditions or beyond prescribed concentrations are likely to cause serious illness to people and animals. Were the children out playing and the wind blowing in their direction the day the farmer used the pesticide? Should he have known better?

When speaking of systemic racism—of which environmental and climate justice is a part—we’re not speaking of such legal niceties. Racial and economic disparity has to do with equal treatment—whether legal or moral. Dr. King’s praise of President Kennedy’s address to the nation was based on its being a recognition of the state’s moral obligation to people of color. It was not until the Civil Rights Act of 1964 that people of color were given a solid legal leg to stand on.

As I’ve written before, there are two forms of environmental justice. Procedural justice is about being in on the policymaking process before decisions are made. It is having the opportunity and wherewithal to challenge regulations and other actions once they are set into motion. The Trump administration, for example, recently revised the National Environmental Policy Act (NEPA).

The revisions include the payment of a bond before a legal challenge can be made, as well as the demand that challengers submit detailed technical comments. The sums involved could easily be in the hundreds of thousands of dollars for large infrastructure projects. The requirements, therefore, would severely limit the capacity of communities of color and low-incomes to challenge federal projects in contravention of the intent and purpose of the Act.

Distributive justice refers to the allocation of environmental benefits and burdens across multiple demographics, e.g., race, income levels, and age. The reason communities of color are victims of disparate impacts is that a wealthy white community would unlikely be there in the first place.

Multiple studies have shown that communities of color and low-incomes are, on average, situated closer to hazardous waste sites, the dirtiest power plants, and polluting industrial facilities than wealthier White neighborhoods. Therein is the reason for needed legislation.

The killing of George Floyd, Breonna Taylor, and the crippling of Jacob Blake all at the hands of White police officers is only part of the story. Yes, the taking to the streets of protesters of every color and income class under the banner of Black Lives Matter is a reaction to those brutal acts. However, it is about much more.

Racism and classism are deeply rooted in American society. Notwithstanding the progress already made, the whirlwinds of revolt will continue to shake the foundations of our nation until the bright day of justice emerges. That day will not come until all forms of injustice and inequity—including those that are climate-related—are removed.

Lead image: Climate March Takoma Park/Edward Kimmel

[i] The legislation is reported as having been introduced but no number appears have been assigned it. The text of the bill is here.

[ii] There is a Senate version of the bill, although as of this writing the bill has not been given a number.

Joel Stronberg

Joel B. Stronberg, Esq., of The JBS Group is a veteran clean energy policy analyst with over 30 years of experience, based in Washington, DC. He writes about energy and politics in his blog Civil Notion (www.civilnotion.com) and has recently published the book Earth v. TrumpThe Climate Defenders' Guide to Washington Politics based on his commentaries. He has worked extensively in the clean energy fields for public and private sector clients at all levels of government and in Latin America. His specialties include: resiliency; distributed generation and storage; utility regulation; financing mechanisms; sustainable agriculture; and human behavior. Stronberg is a frequent presenter at conferences and workshops.

Tags: environmental justice, environmental justice movement, systemic racism