Environmental justice and climate justice have always been about fairness and access to clean air, clean water, and a safe place for all children to play. They are about making sure that no one is left behind during hurricanes, droughts, and wildfires. It’s common sense that we think about all of our neighbors, our communities, when developing climate policies. This is all the more true when the concentration of pollution and the risks of climate change continue to be associated with race and income. The White House is constantly casting aspersions on efforts to prevent concentrating more pollution in already contaminated neighborhoods where there are high rates of asthma or cancer, or to ensure that we all can get out of harm’s way during a storm. These actions remain legal and necessary. They are common sense in a world where we care what happens to our family members and our neighbors.
And a number of our states’ top lawyers agree. In June, the Attorneys General of California, Massachusetts, New York and ten other states issued a Multi-State Guidance Affirming the Importance and Legality of Environmental Justice Initiatives. They wrote this guidance in response to a wholesale attack by the Trump Administration on environmental justice. On the first day of his Administration, President Trump signed an executive order trying to discredit a wide range of policies and programs to fulfill the nation’s promise of equality, including efforts to advance environmental justice. The Administration’s attack only intensified over the next two weeks. On January 21, the President signed another executive order taking more swipes at efforts to address inequality, among other things rescinding a longstanding executive order signed by Bill Clinton in 1994—which had been kept in place during Democratic and Republican administrations—directing federal agencies to make achieving environmental justice part of their mission. However, as the Multi-State Guidance points out, the fact that the President signs an executive order calling policies and practices “illegal” does not make it true. Presidents cannot legislate by sharpie pen. Their orders are just directives to the federal government and must be consistent with the law.
It’s worth taking another look at what environmental and climate justice are actually about in order to assess the President’s attack. Ultimately, with the leading lawyers from thirteen states and others in the struggle for justice standing ready to defend environmental justice, communities and their partners can separate bullying and bluster from the current state of the law, and be better prepared to continue the work of taking care of their neighbors and bending the arc of the moral universe toward justice.
The Starting Point: The Promise of Equal Protection
The 5th and 14th Amendments to the Constitution guarantee the fundamental right to equal protection of the laws, prohibiting discrimination on the basis of race, color and national origin by government at the local, state, and federal levels. Efforts to advance environmental justice embody this country’s historic ideals of fairness and equality, and are consistent with these guarantees. Though we’ve made progress in living up to the principles of equal treatment and justice written into our law, the legacy of discrimination continues, particularly in land use.
In the 1960s, the Civil Rights Movement led to tremendous changes in American society, including school desegregation, laws that prohibited discrimination in housing and employment, and the end of formally segregated hospitals and nursing homes. By that time, however, racial inequality was baked into land use and the distribution of environmental benefits and burdens in this country. In other words, segregation, redlining, and other forms of racial discrimination shaped whether a community was zoned industrial or residential—which defined where polluting facilities were more likely to be located, and, as a result, who would be exposed to greater levels of pollution. There’s now a large body of scientific literature calling attention to the continuing relationship between residential segregation and exposure to pollution. The Environmental Justice Movement shed light on the relationships between race and class, on the one hand, and the location of polluting facilities, on the other, as early as the seminal study Toxic Wastes and Race in 1987.
To be clear, addressing inequalities should continue to be a critical priority in this country. As the Centers for Disease Control recognize, environmental conditions are part of the social determinants of health, the conditions in which people are born, grow, work, live, worship and age, that influence morbidity and mortality. Disparities in life expectancy based on these conditions remain “widespread and enduring.” We should all be able to agree that neither race, nor income, nor a person’s zip code should be related to their exposure to pollution or the likelihood of serious illness and death. But that is still the world in which we live.
What’s at Issue: Environmental Justice Policies and Programs
Although it has been rescinded by the new Administration, Executive Order 14096, Revitalizing Our Nation’s Commitment to Environmental Justice for All, included the first-ever government-wide definition of environmental justice: “‘Environmental justice’ means the just treatment and meaningful involvement of all people regardless of income, race, color, national origin, Tribal affiliation, or disability, in agency decision-making and other Federal activities that affect human health and the environment.” Needless to say, “just treatment” and “meaningful involvement” are consistent with, and help to effectuate, constitutional and legal mandates of equal protection.
In practice, also, environmental and climate justice policies and programs are consistent with law and benefit everyone. They are common-sense ways of meeting pressing local needs, including:
- Programs bringing reliable energy sources to rural areas, such as those developed by the Alaska Native Tribal Health Consortium, that provide energy security and the possibility of relief for household utility bills for all area residents
- Projects supporting community efforts to expand bike share systems, adopt solar power at bus transit facilities, remove contaminants from local watersheds, remove lead pipes from homes, restore wetlands, rehabilitate affordable housing, reduce food waste, plant trees, develop contingency plans for deploying microgrids during emergencies, provide access to support services during emergencies, support energy efficiency upgrades, build stronger barriers against storm surges, and more
- Tools such as EJ Screen and the Climate and Economic Justice Screening Tool (CEJST), at the federal level, and CalEnviroScreen and other state and local environmental justice mapping tools, providing data to inform programs to address inequalities and protect the health of all people.
It’s hard to see how any of these programs even arguably runs afoul of the law.
The President Cannot, Unilaterally, Declare Legal Activities “Illegal”
This Administration has been a wrecking ball, creating chaos and aiming to destroy valuable—and, again, legal—policies and programs. In the January 20 Executive Order, the President ordered various offices and agencies in the federal government to terminate all environmental justice offices and positions and round up a list of all environmental justice grantees receiving federal funding. The Administration then abruptly began reorganizing environmental justice offices, freezing and terminating funds, and putting staff on administrative leave, all premised on the fallacy that such programs are “illegal and immoral discrimination programs,” to quote the January 20 Executive Order. But as much as President Trump might wish otherwise, he doesn’t have the power to change the law through an executive order.
Nonetheless, the wrecking ball is still dangerous, and the President’s actions are intended to stop people from engaging in perfectly legal activities. Moreover, terminating grants has real consequences: community-based groups, as well as local and state governments, are laying people off and stopping work on coastal erosion projects, the installation of rooftop solar, or the removal of lead pipes. We have yet to see how this plays out, since multiple lawsuits challenging these arbitrary actions are moving through the courts.
Environmental Justice is Consistent with this Country’s Mandate for Equal Protection
State attorneys general play multiple roles. They go to court to defend and pursue claims on behalf of their states and, as lead lawyers in their states, they also provide guidance on the law. In this case, the Multi-State Guidance explains, “The federal actions attacking environmental justice have created concerns about—but do not impact—the continued legality and importance of environmental justice efforts.”
In its overreach, this Administration likes to cite the Supreme Court in Students for Fair Admission, a case challenging the explicit use of race as a factor in college admissions, as somehow supportive of its efforts to undermine actions to address inequality in this country. But the Court was addressing admissions policies explicitly considering race, not coastal restoration or rooftop solar. These environmental justice efforts are not zero-sum processes but policies that benefit everyone. And at no point in its opinion—nor in decisions of multiple other courts ruling on challenges to policies that explicitly consider race in decision-making—did the Court suggest that addressing racial inequality is somehow at odds with constitutional principles, as the Administration keeps inaccurately repeating. To the contrary, time and again courts have affirmed that racial barriers and inequality can be addressed through race-neutral means—that is, policies or programs that don’t use race as a criteria in conferring benefits.
To cite but one additional example, there were a number of cases that struck down the implementation of sections of the American Rescue Plan Act that allowed debt relief to socially disadvantaged farmers, which the U.S. Department of Agriculture interpreted as including members of racial groups, among others. In cases such as Holman v. Vilsack, the courts struck down the explicit use of race as a criteria for conferring the benefits of the program, saying “when the government promulgates race-based policies, it must operate with a scalpel.” The courts weren’t critical of the goal of addressing racial inequality in the USDA loan program but, rather, said that before explicitly using race as a consideration, the government must show “’serious, good faith consideration of workable race-neutral alternatives’”. In other words, it is not that the goal of addressing inequality or disproportionate impacts on the basis of race is illegal or illegitimate, but in achieving those goals, governments are required to determine whether alternative race-neutral policies—such as tying assistance to applicants who have never before received a loan—could address the alleged harm. These are precisely the types of programs and projects that the Administration is now seeking to chill. If we wanted any more proof that the Administration has called an all-out war on even clearly legal race-neutral efforts to address inequality in ways that benefit all people, look no farther than yet another guidance released by the Administration, this one casting doubt on everything from the demonstration of cultural competence to targeting strategies to specific geographic areas. I, for one, would like a doctor who is culturally competent and respectful of my family’s values, language and traditions.
Recommitting Ourselves to Advance Environmental Justice
The Multi-State Guidance encourages us to “develop and pursue environmental justice initiatives” and outlines key areas of work that we can lawfully pursue to advance environmental and climate justice. These include a range of sensible efforts, such as the following:
- Enhancing public engagement and participation through outreach to ensure that community members who will be impacted by policies or permits have the opportunity to participate in decisions affecting their future
- Collecting and analyzing information about the factors that impact our health and quality of life, like locations of sources of pollution, where there is or isn’t greenspace, and where people have more asthma—and where these factors have a cumulative impact in the same place
- Taking action to prevent and mitigate exposure to pollution, including in communities already experiencing the cumulative impacts of multiple sources of pollution
- Providing technical assistance and funding support to address water contamination or wastewater service issues
- Protecting against the effects of climate change, such as extreme heat, drought, flooding, and storms, and building resilience in communities
- Enforcement of environmental—and I’ll add, civil rights—laws in communities facing disproportionate environmental burdens.
We face an uphill battle, with the Administration not just waging a war of words but marshaling the resources of the federal government to upend our values and undermine efforts to ensure that all people have access to clean air, clean water, and a safe place for children to play. The Multi-State Guidance not only helps to clarify the law, but also provides comfort that the leading lawyers in many of our states have committed to protect these much-needed efforts.