ELI Report
Author
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Current Issue
January-February 2023
Issue
1

Environmental Justice Champion Benjamin Wilson receives 2022 ELI award, celebrating lasting impacts on the legal profession

This year, ELI presented its annual environmental achievement award to Benjamin F. Wilson, a visionary leader who has tirelessly advocated for greater diversity, equity, and inclusion throughout his career. An award ceremony was held in person on October 25 at the Omni Shoreham Hotel in Washington, D.C., and streamed live on YouTube. The annual event convenes law, management, and policy professionals to honor outstanding achievements in environmental protection. Proceeds support ELI’s research and education programs and publications.

Wilson is the former chairman of Beveridge & Diamond PC, the largest and oldest environmental firm in the United States, and previously served in the Civil Division of the U.S. Department of Justice. Since 2017, he has led as chair of the ELI Board of Directors. His wide-ranging accomplishments include serving as the Court-Appointed Monitor in the Duke Energy coal ash spill proceeding and as Deputy Monitor-Emissions & Environmental in the Volkswagen “Dieselgate” matter. He also teaches environmental law at Howard University School of Law, where he co-founded the Howard Energy and Environmental Law Society.

Introductory remarks for Wilson were provided by incoming ELI Board Chair Rob Kirsch and Brenda Mallory, chair of the Council on Environmental Quality and former ELI board member. Mallory highlighted Wilson’s positive spirit and contributions not only to environmental law, but also to the careers of countless individuals, including her own. Denver Broncos quarterback and Wilson’s nephew, Russell Wilson, also offered congratulations via video remarks.

Wilson’s award ceremony was well attended by fellow colleagues at ELI and Beveridge & Diamond, as well as his students at Howard University, reflecting a lifetime of service at all three institutions and the deep relationships formed along the way. In an acceptance speech, Wilson spoke on his journey to advance civil rights and environmental law, beginning as a child born in the Deep South who witnessed profound violence and injustices.

Throughout his career, Wilson emphasized the important nexus between racial justice and the environment. At Howard University, “I wanted our students to understand that America’s greatest civil rights attorney had made an indelible impact on environmental law,” he said. He acknowledged the vital role of lawyers who sought racial justice, such as Wiley Branton, who represented the “Little Rock Nine” students, and Constance Baker Motley, who represented James Meredith, the student who integrated the University of Mississippi.

Wilson concluded by citing the disproportionate effects of climate change and drinking water crises in cities like Flint, Michigan, and his hometown of Jackson, Mississippi, as examples of the immense amount of work yet to be done. “Let us commit to getting this work done with equity and justice in mind, so that the benefits of our work are equally shared, and the burdens are not disproportionately placed on the most vulnerable,” Wilson urged the audience. “Future generations are counting on us. They are counting on you.”

Reflecting on this past year, ELI President Jordan Diamond reported overwhelmingly positive responses to many of the Institute’s programs. She also recognized and thanked longtime ELI senior attorney Jim McElfish, who retired this past year. McElfish is a leading expert on NEPA and water policy, among other areas of law.

Legal ed course trains professionals on energy law and justice

The 31st Annual Eastern Boot Camp on Environmental Law, ELI’s signature legal education course for environmental professionals, was offered for the first time in a hybrid mode—both in-person and online—this past November. For more than three decades, the Eastern Boot Camp has educated new and experienced lawyers, consultants, government officials, and nonprofit and advocacy professionals on the substance and practice of environmental law. The intensive course provides about 20 hours of continuing legal education credits over three consecutive days.

This year’s class reached a record number of attendees, with approximately 50 participants in-person at Arnold & Porter LLP in Washington, D.C., and more than 70 participants online. The course featured a renewed focus on environmental justice across all subject areas, in response to growing interest in the field and recent policy developments at the federal level. Faculty members incorporated EJ considerations in sessions on CERCLA, the Clean Water Act, and the Clean Air Act, among others. In addition, this year’s EJ session, taught by Barry Hill from the Environmental Law Institute and Michele Roberts from the Environmental Justice Health Alliance for Chemical Policy Reform, was extended to 1.5 hours.

Other changes included a revamped energy law session, which expanded its content to highlight the transition to renewable sources. Instructors Ethan Shenkman and Emily Orler from Arnold & Porter LLP dived deep into the energy implications of the Inflation Reduction Act, among other climate policies. Participants also enjoyed this year’s session on ethics in environmental law, thanks to engaging instruction by Anne Carpenter and Nadira Clarke from Baker Botts LLP.

Leadership initiative supports women in the environment

ELI’s Women in Environmental Law and Leadership (WELL) Initiative began in 2018 to advance female leadership in the environmental law and policy fields, and to inform ELI’s programs as they relate to women’s issues. WELL offers networking and professional development opportunities, where women can learn and share their experiences with one another. ELI members are eligible to join WELL as a membership benefit.

The initiative hosts a wide range of panels and events to promote thought leadership on gender issues and enhance the skills and knowledge of aspiring leaders. Recent WELL events include “Returning to the Office and the Future of Work for Women,” a webinar held in May on the transition back to in-person and hybrid work during the pandemic. Panelists discussed strategies for handling the return to office, the impact on work and home schedules, and how to achieve success in the workplace.

In July, WELL hosted a webinar on the past, present, and future of women in environmental law and policy, featuring panelists from multiple generations who reflected on opportunities and challenges for women in the field. Speakers working in law firms, government, nonprofits, and corporations spoke on their experiences navigating professional relationships and progressing in their career, even when few women were visible in their practice.

In early September, the WELL D.C. Steering Committee hosted a networking happy hour at the D.C. office of Lewis Brisbois—the initiative’s first in-person event of the year. The event featured remarks from Jayni Hein, senior director for clean energy, infrastructure, NEPA at the Council on Environmental Quality. Later that month, ELI and WELL partnered with WilmerHale to hold a hybrid course on policy developments to curtail plastics disposal, held in-person at WilmerHale’s office in San Francisco and online via Zoom. The panel began with a keynote speech from California Attorney General Rob Bonta and was moderated by Shannon Morrissey from WilmerHale. Additional speakers included Kaitlyn Kalua from the California Ocean Protection Council, Steph Karba from Patagonia, and Margaret Spring from Monterey Bay Aquarium. Panelists discussed the science driving legislative efforts to reduce plastics disposal, including Senate Bill 54 in California, and the potential for increased enforcement and litigation related to plastics production and disposal.

Benjamin Wilson of Beveridge & Diamond Wins ELI Award

Space Objects a Real Hazard to People, Property
Author
Stephen R. Dujack - Environmental Law Institute
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Environmental Law Institute
Current Issue
November-December 2022
Issue
6

An environmental threat of very real proportions concerns celestial objects such as asteroids that hit the Earth—as everyone knows, one did in the dinosaurs. The same applies in a less dangerous but more frequent manner to unwanted “de-orbiting” of artificial satellites, and to the careless discarding of the boosters used to get them aloft.

As to the first, debris left over from the formation of the solar system pummels our planet on a constant basis—we call these asteroid or comet fragments meteors when they burn up in the atmosphere and meteorites if they hit the ground. As to human-made space debris that can fall to our planet’s surface, “More than 1,000 rocket bodies are estimated to have uncontrollably re-entered the atmosphere in the past 30 years,” according to New Scientist.

Last April, a piece of such artificial space debris, reportedly from a Chinese Long March rocket, hit near a village in India. Two years earlier a part of another Chinese rocket landed in a village in Ivory Coast. No one was harmed in either incident. And readers of a certain age will remember Skylab, the first space station, which fell from orbit in 1979, scattering debris over Western Australia and the Indian Ocean.

Skylab weighed 100 tons and would have caused real damage if it had landed in a populated area. The last few weeks of its existence were met with a worldwide response finding humor in the event—painting rooftop targets, for instance—as technicians desperately succeeded in using the huge satellite’s fuel reserves to wrest it to a safe demise.

But in fact had Skylab landed in Mombasa or Mumbai or Quito, the death toll would have been unimaginable. Because most satellites orbit near the equator and not high up, their debris when atmospheric drag forces them down can land on the largely poor countries of the tropical zone, raising a real environmental justice issue.

So far there have been no casualties from falling artificial space objects, but there are bound to be. Rocket launches have, well, skyrocketed, escalating to well over one hundred per year, and many loft multiple satellites. Scientists at University of British Columbia, New Scientist reports, calculate that the odds are one in ten of “casualties being caused by falling debris over the next decade.”

How can at-risk societies fight back? According to Ram Jakhu of McGill University in Montreal, the United Nations Liability Convention of 1972 comes into play here. The convention has only been used once in this manner, when Ottawa won $2.3 million from the Soviet Union after one of its satellites crashed in Canada in 1978. “I have no doubt there is going to be another serious incident,” according to Jakhu. “There’s a strong probability of hurting somebody or damage to property.”

There is a solution: an international agreement or arrangement such that rocket boosters and satellites contain sufficient surplus fuel—a rounding error in their total mission costs—so they can be brought down safely or be put into a benign orbit. These sort of “best practices” would be easy to put into place on a voluntary basis or by making the liability convention’s provisions dissuade slackers—sort of an astronomic Superfund. It’s not rocket science.

Chances are you won’t have a satellite fall on your head. But humans have in fact been injured by pieces of meteors entering Earth’s atmosphere or by the flash and shock waves they produce. There was the 2013 event in Siberia, mirroring a much more destructive meteorite that hit an uninhabited region in that wilderness in 1908. The recent event did hospitalize people and cause property damage. And it was caught on video by numerous observers.

According to an account on Space.com, the “meteor was a small asteroid—about the size of a six-story building—that broke up over the city of Chelyabinsk, Russia. . . . The blast was stronger than a nuclear explosion. . . . The shock wave it generated shattered glass and injured about 1,200 people.” But, as the Daily Beast reports, “Perhaps the most disconcerting thing about it aside from the damage and injuries it caused to the city was that it went largely undetected by astronomers and asteroid surveyors on the ground.”

In 2002 a small asteroid large enough to cause mass casualties should it hit Earth was given “about a 1 in 9,300 chance of an impact in 2049,” Wikipedia relates. Compare such a risk estimate, in which large swaths of humanity are seemingly at stake, with the response we give to the excess cancers expected at Superfund sites. The asteroid was later found to be benign, but it was a wakeup call to events that are low probability but high impact.

Three years later, Congress mandated that NASA monitor all Near Earth Objects of a dangerous size. In 2016, the Daily Beast notes, “NASA launched the Planetary Defense Coordination Office to identify and respond to any potential comet or asteroid impact endangering Earth.” But, “The task remains undone.”

Just in case, in September NASA impacted a refrigerator-size satellite into an asteroid as big as the Great Pyramid at Giza in an attempt to alter its path. “The target was Dimorphos, a rock orbiting another, much larger asteroid called Didymos,” according to the Washington Post. Scientists picked such a pair because it would be easy to evaluate the effect on the smaller space rock’s trajectory. And Dimorphos was not in danger of hitting Earth, nor could the collision produce a dangerous orbit.

—Stephen R. Dujack

Counting Sheep

A longstanding problem for solar farms has a surprisingly cute solution. “Sheep are the solar industry’s lawn mowers of choice,” writes Amrith Ramkumar in the Wall Street Journal. Farmers maintaining thousands of acres of panels need to contend with tall grasses, which, unabated, can obstruct sunlight. Enter the star of nursery rhymes and an unexpected hero of renewables. Hard-working flocks are now generating millions of dollars in annual revenue by helping to chomp on pesky weeds.

Many grazing animals were initially considered for the role. But some, like cows and horses, were too tall to tidy up grass underneath low-hanging panels. Others, like goats, strayed from the assignment—“chewing on wiring and climbing on equipment,” Ramkumar writes. “Sheep—docile, ravenous, and just the right height—easily smoked the field.”

The recent boom in solar has unexpectedly shot up demand for shepherds, “centuries after [their] breakout roles in the Bible,” Ramkumar writes. He reports that in just four short years, an estimated five thousand acres of solar fields employing sheep in the United States has now grown to tens of thousands, though there doesn’t appear to be an official head count yet.

Finding enough sheep has posed challenges. The Journal notes that while some advanced courses for solar grazing are offered through North Carolina State University and Cornell University, entry-level classes are scarce. Meanwhile, shepherds are already taking out loans to buy more sheep. One shepherd interviewed by Ramkumar spent $500,000 to purchase additional ewes to secure a contract with an energy farm.

The American Solar Grazing Association, a society that this editor is delighted to find exists, touts many other perks for the practice beyond clearing grass. “Solar grazing contributes dairy, meat, and wool to regional markets,” the group’s website notes. “Farm incomes are down, and solar grazing allows farmers to increase and diversify revenues without taking land out of food production.”

The sheep reap benefits too. “The vegetation at solar sites becomes a source of nutrition and a pasture” for these “resourceful foragers,” who “enjoy the shade of the solar panels on hot days, napping and grazing where humans would struggle to reach,” the association notes. “Some of the animals like being petted while they graze,” notes the Journal—adding up to a seemingly ideal workday for these high-in-demand flocks.

The phenomenon brings full circle the use of once arable farmland now occupied by solar panels. From up above, grazing sheep look like fluffy white clouds slowly moving under huge, sleek mirrors. Just like old times, shepherds use dogs to fend off predators and herd the sheep when necessary. They haul in food, pump water, and even set up enclosures for the sheep to sleep in. For those in the business of renewable energy and sheep, “It’s changing all of our lives,” says farmer Ely Valdez.

—Akielly Hu

Notice & Comment is the editors’ column and represents each writer’s views.

Greenhouse Carbon Dioxide Now Legally an “Air Pollutant”

When the Supreme Court restricted the ability of the Environmental Protection Agency to fight climate change this year, the reason it gave was that Congress had never granted the agency the broad authority to shift America away from burning fossil fuels.

Now it has.

Throughout the landmark climate law, passed this month [August], is language written specifically to address the Supreme Court’s justification for reining in the EPA, a ruling that was one of the court’s most consequential of the term. The new law amends the Clean Air Act, the country’s bedrock air-quality legislation, to define the carbon dioxide produced by the burning of fossil fuels as an “air pollutant.”

That language, according to legal experts as well as the Democrats who worked it into the legislation, explicitly gives the EPA the authority to regulate greenhouse gases and to use its power to push the adoption of wind, solar, and other renewable energy sources.

—New York Times

In 2020 and 2021 alone, the world added 464 gigawatts of wind and solar power-generation capacity, which is more power than can be generated by all the nuclear plants operating in the world today.

—Farhad Manjoo in
the New York Times

Dodging Falling Rockets and Errant Minor Asteroids.

ECOS to Prioritize Infrastructure, Environmental Justice, and PFAS
Author
Linda K. Breggin - Environmental Law Institute
Environmental Law Institute
Current Issue
November-December 2022
Issue
6
Linda Breggin

Ben Grumbles, the executive director of the Environmental Council of the States, is taking the helm in a period marked by entrenched challenges but also fresh opportunities. Grumbles is charged with finding common ground and giving a collective voice to ECOS members—the state and territorial environmental agency leaders, who hail from states led by 28 Republican and 22 Democratic governors (prior to this fall’s elections). While the political landscape remains sharply polarized, a respite from congressional gridlock has emerged in the form of record federal funding—in both the Infrastructure Investment and Jobs Act of 2021 and the Inflation Reduction Act of 2022—to address climate change.

Grumbles is arguably better positioned than many environmental lawyers to convene state agency leaders, having served as the head of two state agencies and a major federal environmental program, among other positions, over the last several decades. In an interview, Grumbles explained that he was motivated to take the ECOS leadership position because he has observed “the power of a unified state voice to advance environmental protection and public health” and to “shape the national environmental dialogue.” Grumbles says it is his “personal goal” to ensure that ECOS remains a “purple and green” organization that does not become a “blue and red” balkanized group—a goal he views as particularly important given the central role states play in administering and enforcing many of the nation’s environmental laws.

For now, however, front and center for ECOS is what Grumbles refers to as a “once-in-a-generation investment not only in infrastructure but climate and equity.” He is cognizant of the tremendous “responsibility” and “increased expectations” placed on state environmental leaders for ensuring that infrastructure investments are made wisely.

In pursuing these “unprecedented opportunities,” Grumbles wants to ensure that states protect against “fraud, waste, and abuse” and deliver funds in “equitable and accelerated ways.” In addition, he says it is critical to take the long view and invest in lasting projects that “don’t fall apart in a few years,” when states need to secure sustained funding.

To achieve these goals, he observes that states will need to prioritize recruiting talented staff. He emphasizes that this will take “more than lawyers, scientists, and engineers,” but also communicators, community facilitators, and accountants, for example, who can effectively manage the funds.

A geographically diverse, bipartisan ECOS Infrastructure Workgroup is focusing on providing input to the federal government on how to make the best use of congressional funding. ECOS is also establishing “a cross-cutting Climate and Energy Workgroup focused on continued integration of energy and climate policy into core environmental programs.” Grumbles points out that many states now have dedicated staff who work on energy policy, some of whom are housed in environmental agencies.

He acknowledges that states vary in their climate mitigation goals and approaches, but he underscores that ECOS members agree that “collectively, states can find common ground” and provide “meaningful and impactful” comments to federal regulators, as well as share best practices. He singles out resilience and adaptation as a likely focus for the climate workgroup, noting the growing number of states that have hired chief resiliency officers.

Another ECOS priority is environmental justice, because “how EJ is integrated into state programs is highly important.” Grumbles notes that although some approaches, such as new Title VI requirements in Clean Water Act and Clean Air Act permits, may not have uniform support among ECOS members, environmental justice is a “growing priority” for most. An ECOS Environmental Justice and Title VI of the Civil Rights Act Workgroup is currently focusing on facilitating discussions among state and federal partners.

Grumbles also identifies per- and polyfluoroalkyl substances as an ECOS priority. The ECOS PFAS Workgroup web page explains that “the increasingly complex landscape of federal and state activities is making it harder for each state to address its citizens’ concerns about PFAS risks.” Consequently, the Workgroup is “helping states communicate and coordinate with EPA, other federal agencies, and each other about scientific and policy developments, newly identified sources and exposure pathways, and best practices for investigation, corrective action, and public engagement.” To this end, the ECOS fall meeting included a roundtable and a discussion on “New Directions in PFAS Risk Communication Amid Tightening Standards.”

Never short on enthusiasm, Grumbles says that he is “having a blast” and is committed to achieving “real progress with great urgency.” He will need that positive energy to navigate the challenges and opportunities that lie ahead for ECOS’s chief executive.

ECOS to Prioritize Infrastructure, Environmental Justice, and PFAS.

Centering the People Most Impacted
Author
Chanté Coleman - National Wildlife Federation
National Wildlife Federation
Current Issue
September-October 2022
Issue
5
Parent Article
The Clean Water Act at Year 50: What's Next for Water Protection?

The Environmental Protection Agency’s longstanding mission statement reads: “Federal laws protecting human health and the environment are administered and enforced fairly, effectively, and as Congress intended.” Protecting human health is a basic function of the government, and in the 21st century, no one’s health should be compromised due to environmental concerns.

Yet, low-income communities and communities of color are disproportionately impacted by climate change, pollution, and other environmental burdens. Decades of research point to this stark reality that we can no longer ignore. One way to address this is to make improvements to statutory or regulatory laws, such as the Clean Water Act. However, if we do not confront the underlying systems of oppression that continue to allow for some communities to be protected while our most vulnerable communities suffer, then we are not addressing the root cause of these issues. One way that racism and discrimination are upheld is through the disproportionate impact of laws, statutes, regulations, and policies, including the CWA. Indeed, race is the strongest factor in slow and ineffective enforcement of federal drinking water law in communities.

The CWA, as currently written, does not require communities of color and low-income communities to be prioritized in the implementation and enforcement of clean-up plans. Furthermore, while the CWA requires states to clean up impaired waterways, states have the autonomy to develop and prioritize clean-up plans in ways that often do not account for the overburden of pollution on low-income communities and communities of color. This disregard for unequal impacts will lead to increased pollutant discharges in these communities and a decline in overall health, widening the gap between the communities privileged enough to receive the benefits of these laws and those who are not.

To ensure the CWA truly protects the people most impacted by pollution, several key changes need to be made. First, states should be required to use all information available to prioritize clean-up plans in areas that are over-impacted, or even ban new pollution sources in these areas. EPA already collects relevant information through EJScreen, an environmental justice screening and mapping tool that combines environmental and demographic indicators in maps and reports. This data can be used to further target equitable implementation and enforcement of clean-up plans.

Governments should also expand this data on impacts to include climate change and emerging pollutants. The effects of climate change are increasing in severity and frequency, and low-income communities and communities of color are on the frontlines—especially when it comes to increased flooding and its associated surges in nonpoint source pollution. In addition to looking at past impacts of pollution, an update to the CWA should require states and EPA to address the degradation of water quality due to climate change in areas that are already overburdened from cumulative environmental impacts and systemic oppression. Another step to protect drinking water would be to remove exemptions in the Act that allow agriculture and many industries to pollute without safeguards.

Lastly, this data should be used to support funding for communities most in need. In the bipartisan Infrastructure Investment and Jobs Act, EPA is now required to undertake an analysis of the Drinking Water State Revolving Fund and Clean Water State Revolving Fund “to identify historical distribution of funds to small and disadvantaged communities and identify new opportunities and methods to improve equitableness of funds to rural, low-income, minority, and tribal communities.” This requirement, championed by the National Wildlife Federation, will ensure more funds go into the communities that are most impacted and least resourced to address infrastructure upgrades and other improvements. For the Clean Water SRF in particular, EPA should ensure that state implementation guidance includes equitable distribution of funding, such as allocating no less than half of funds toward communities identified through the holistic data measures outlined above.

While these proposed changes would strengthen the CWA and help prioritize affected communities, they are not enough. We must also directly address the issue of sacrifice zones. These are the marginalized, low-income communities, often communities of color, who we treat as less-than—and as a result, we over-pollute and over-extract these places to the point where community members are highly impacted and exposed to harms. Changing the CWA can only do so much to reduce the unjust concentration of pollution burden in these communities. We must understand and address the many systems, including unequal access to housing, education, and transportation, that perpetuate this harm and continue to hold us back from reaching our pollution-reduction goals.

I want to thank my colleagues who helped this article come to fruition, including Anna Brunner, Elizabeth Lillard, Glenn Watkins, Jim Murphy, Matt O’Malley, Dr. Mustafa Santiago Ali, and Peter Marx.

Chanté Coleman is vice president of equity and justice at National Wildlife Federation.

Climate Change Hits Rural Communities
Author
Jonathan Skinner-Thompson - Colorado Law School
Colorado Law School
Current Issue
September-October 2022
Issue
5
Parent Article
Bridging a Rural-Urban Divide
A white person with brown hair smiling at the camera wearing a dark colored polo shirt

It’s no surprise that responding to climate change will require a hard shift away from fossil-fuel dependency. But that shift may have an acute impact on rural communities. Many of these locales face high levels of financial distress and low education rates. That makes it more challenging to grow new economic sectors like IT, healthcare, or finance. Further, many rural communities depend on fossil-fuel revenue to support essential public services, including education. An abrupt shakeup could have an adverse impact.

With the deeper penetration of oil-and-gas operations into rural areas, we are seeing a significant increase in public health concerns. Though air quality in urban areas has steadily improved since 1970, numerous studies report higher concentrations of fine particulates, nitrous oxide, and volatile organic compounds within half a mile of active oil-and-gas wells, and higher ozone concentrations more than a mile away. Many rural areas now have higher rates of asthma and heart disease and higher risks of cancer and pre-term birth.

To compound these impacts, air monitoring in rural communities is significantly lacking. Generally, monitors target urban environments and are placed according to population density and ambient pollution levels. Even monitoring networks that are focused on oil-and-gas emissions fail to target individual well pads (where health impacts are closely linked).

For example, Weld County, Colorado—the most productive oil-and-gas county in the state and part of the newly expanded Denver/Front Range ozone nonattainment area—operates one ozone monitor despite having over 10,000 active wells (and over 44,000 drilled ones). In short, the rural communities that could benefit meaningfully from oil-and-gas pollutant monitoring—those that live near and among the wells—are underserved by the monitoring networks designed around impacts to urban areas.

Addressing oil-and-gas pollution in rural communities, consequently, raises distinctive issues. Deciding whether and where to place monitors (not to mention what kind of monitoring) and what to do about flaring of excess gas implicates challenging technical, scientific, and economic considerations that even the highly educated may not adequately comprehend. Further, documents supporting these kinds of decisions are only available online. Thus, access to reliable internet provides the only real way to engage with decisionmakers. Public hearings are often not required or are held in distant cities.

Most federal and state agencies recognize that environmental justice policies ought to ensure the fair treatment and meaningful involvement of all people in the development, implementation, and enforcement of environmental laws. Fair treatment means that no community should bear a disproportionate share of adverse environmental consequences. Meaningful involvement requires not only access to environmental decisionmakers, but an ability to effectively influence agency choices.

In the case of rural communities, it is essential for agencies to facilitate local participation, because the experience may shed light on the unique challenges those communities face. In some cases, the views of environmental advocates or industry officials do not adequately represent the views of the impacted community. Or members of the community may have divergent perspectives.

Earlier and more frequent engagement is one step toward more robust local participation. But so is providing those communities with the technical expertise needed to meaningfully engage in environmental decisions. Some states offer funding for this kind of support—technical assistance grants may be distributed to frontline communities in California and Colorado. Of course, the grant programs must be simple enough to ensure broad accessibility and cannot operate as just another hurdle.

Although meaningful involvement is just one part of environmental justice, it is a critical piece and one that rural communities may benefit from in unique ways.

Fenceline Communities and Infrastructure
Author
Monica M. Esparza - Renewal of Life Trust
Renewal of Life Trust
Current Issue
September-October 2022
Issue
5
Parent Article
Bridging a Rural-Urban Divide
headshot of Monica M. Esparza

Energy manufacturing can be hidden in plain sight, but its impacts are felt profoundly throughout communities, in rural and urban spaces. Behind walls, berms, or shrubbery, pipelines, refineries, coal stockpiles, dumps, and highways pollute the air, water, and land. While not respecting boundaries, these impacts disproportionately affect fenceline communities.

Climate and equity data visualization tools, such as the Virginia Environmental Justice Collaborative map, demonstrate that fenceline communities are increasingly being formed in rural areas as industries seek new land and methods to modernize operations. Residents and industry alike seek service upgrades in broadband and power grid reliability, roads and clean transportation options, as well as shared revenues. The passage of the 2021 Infrastructure Investment and Jobs Act has boosted associated benefits to enhance economic stability in rural and urban areas. But with infrastructure expansion, fenceline communities can be placed at risk.

In a globalized economy, companies are less physically bound to previous constraints of doing business. For example, a Virginia-based company can buy power from a wind energy development in Texas to offset emissions from electricity demand. This is known as a virtual power purchase agreement. As a result of this flexibility, infrastructure build-out, trade-offs, and accountability among community, government, and business stakeholders have become more nuanced.

Still, local and state conventions are often referenced first in land- use administration and approval. In broad conversations of economics and social direction, discussions about development struggles, energy consumption, climate change haz-ards, and environmental justice start here. While civil rights legislation of prior decades ensures a legal duty for businesses to notify communities of operational intent, development decisions are primarily guided by elected, appointed, and quasi-government interests, often driven by policy, institutional sponsors, and incentives such as advancing clean energy without much regard for environmental impacts.

A national review of environmental justice initiatives and regulations reflected in the consultancy-produced Integral State Environmental Justice Compendium indicates that developers and regulators need more assistance for equity and acknowledging land rights and green infrastructure initiatives, particularly as business geographies continue to expand. Greater community participation in land-use decisionmaking is critical to accomplishing these important objectives.

Community organizing can and should be a complement to development projects, rather than an adversity. A Virginia Environmental Justice Collaborative focus group composed of community leaders found that the availability of detailed knowledge, resources, and education can have substantially productive effects in reconciling environmental conflicts. EPA similarly found that building stronger on-the-ground partnerships with communities can improve results. This requires transparency, education, and public participation that allows citizens to substantively influence processes rather than be made to take part in infomercial meetings. The new federal law will help to foster infrastructure resilience and development innovation. Human capital in support of equity should be earnestly and more robustly folded into negotiations with businesses in development phases to address environmental, health, and climate change threats.

The current community engagement framework around infrastructure and its potential deleterious impacts on rural and urban areas is insufficient. Meaningful engagement is going beyond the preliminary step of acknowledging community rights. It is elevating mutual stakeholder interests in processes that have positive consequential impacts for decades, not transient media coverage and protest-hyped town hall meetings. It is valuing identities, the complexities of civic relationship, and authentically honoring stakeholder priorities.

There is space for innovation among stakeholders to support clean energy resources that protect rather than compromise public health, safety, and welfare.

Providing Tools for Equitable Brownfield Revitalization
Author
Selah Goodson Bell - Environmental Law Institute
Environmental Law Institute
Current Issue
May-June 2022
Issue
3
Selah Goodson Bell

Blight, job loss, and environmental contamination are pervasive in post-industrial hubs like the Menomonee River Valley in Milwaukee or the Lower Frankford Creek Watershed in Philadelphia. Many of these areas are also inundated with brownfields, defined by the federal government as “abandoned, idled, or under-used industrial and commercial facilities where redevelopment is complicated by real or perceived environmental contamination.” Brownfield remediation and revitalization are complicated processes that require a solid understanding of environmental contamination, mapping, stakeholder management, end-use planning, and finance. ELI’s latest landmark environmental justice publication, the Brownfield Revitalization in Green Healthy Towns (BRIGHT) Guide, unpacks each of these topics and provides local communities with tools and resources to organize and lead the process of revitalization for themselves.

The guide empowers just, equitable, and self-defined sustainable development. Chapters in the guide walk readers through the process of creating and implementing a corridor project to produce positive health, ecological, and economic outcomes in overburdened communities. Critically, the guide is a living document that will improve content as new information and best practices emerge. ELI encourages all readers to send more information on corridor planning that staff can integrate into the text.

Last summer, EPA’s Brownfields Program updated its analysis of the population living within 0.5 and 3 miles of brownfields sites that received EPA funding. While about 44 percent of the U.S. population lives within 3 miles of a site, nearby communities were described as “more minority, low income, linguistically isolated, and less likely to have a high school education than the U.S. population as a whole.” This analysis complements a well-documented body of literature that highlights the correlation of race and class with exposures to environmental hazards.

Brownfields are significant pieces of a larger story of environmental racism, wherein marginalized people and communities face a plethora of compounding oppressive forces that directly damage their economic and physical wellbeing and harm their relationship with the land and environment. Specifically, many past government policies and practices, like redlining and the use of restrictive covenants, produced racially segregated cities and thus allowed investments into public infrastructure, economic development, and environmental protection to be concentrated in predominantly wealthy, white areas, often leaving the communities of color to live amongst industrial toxicity. One such community is the southwest area of Fresno, California, which hosts approximately 65 of the city of Fresno’s 130 brownfield parcels, demonstrating one of the many consequences of environmental racism.

While targeted economic development in environmentally overburdened areas has promise, historically, such efforts have displaced long-time residents in a process called green gentrification. The remediation of brownfields and growth of more sustainable end uses often results in increased property taxes, housing prices, and retail prices in the area. Without intentional policies and practices to account for this, economically disadvantaged community members are often replaced by people who can afford the higher cost of living.

Brownfield revitalization can perpetuate environmental racism if anti-gentrification measures are not implemented in conjunction with development. Anti-gentrification strategies vary depending on the needs of a community, the status of the target area’s housing market, and the presence of prohibitive city or state laws, among other factors.

In corridor projects, community members occupy key decisionmaking roles, allowing them to address the interconnected needs of their neighborhoods. Within the context of brownfields and blight, the corridor project model allows the remediation of a variety of parcels that are often too small to attract redevelopment on their own. The model incorporates end uses that can improve a community’s public health, climate resiliency, and economic prosperity.

Between 2010 and 2017, EPA financed about 83 corridor projects through its Area Wide Planning Grant program. Initiated in 2010, the program offered funding and technical assistance to communities surrounded by brownfields. But the Trump administration gutted the program’s funding after 2017, pursuing alternative means of brownfield remediation that lacked an explicit focus on community engagement. Fortunately, the Biden administration has expressed a desire to rectify this, as demonstrated by the $1.5 billion set aside in the bipartisan infrastructure law to “scale up community-led brownfields revitalization.”

While this is encouraging, the BRIGHT Guide recognizes that federal funding fluctuates as administrations vary in their commitments to sustainable development and environmental justice. In the potential absence of a federal funding model, communities can turn to the BRIGHT Guide to find lessons learned through previous corridor projects and area-wide plans to guide redevelopment in their own neighborhoods.

Providing Tools for Equitable Brownfield Revitalization

ELI Report
Author
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Current Issue
May-June 2022
Issue
3

Wetland Woes: Institute publishes a series of guides on improving the restoration of vital aquatic ecosystems in the U.S.

Wetlands perform irreplaceable ecosystem services, from improving water quality, preventing shoreline erosion, to providing habitat for threatened and endangered species. Since 1990, the Clean Water Act’s Section 404 program has aimed to achieve a “no net loss” of aquatic ecosystems in the United States. Any project that will result in fill or disturbance to a wetland or stream—for example, constructing a neighborhood or a store, or building a road or bridge—must obtain a permit from the U.S. Army Corps of Engineers. To issue that permit, the Corps must first determine that any potential impacts have been avoided or minimized as much as possible. And for the unavoidable impacts that remain, developers must then offset them through restoration activities.

This practice of offsetting the remaining impacts is called compensatory mitigation. Permittees restore any lost acres and functions by conducting projects to restore, rehabilitate, establish, or enhance wetlands, streams, and other aquatic resources. Permittees can either implement these activities on their own, or pay a mitigation bank or in-lieu fee (ILF) program to offset impacts on their behalf—an option called third-party compensatory mitigation.

Many are surprised to learn that compensatory mitigation is a multi-billion dollar market. Under these programs, tens of thousands of wetlands and streams are restored each year. ELI has been studying the compensatory mitigation program for decades, producing numerous resources designed to improve the implementation of the program.

In August 2021, the Institute released a series of comprehensive guides in partnership with the Institute for Biodiversity Law and Policy at Stetson University College of Law on improving implementation of ILF programs—one of two third-party compensatory mitigation options. The guides cover some of the most challenging components of ILF program implementation identified through extensive research and interviews with ILF programs and other stakeholders. They help address a number of perennial problems by identifying specific challenges, providing detailed recommendations on ways to meet these challenges, and highlighting case studies to illustrate effective approaches.

Each of the four guides explores a regulatory requirement that programs need to fulfill. One is “full-cost accounting”—regulations stipulate that ILF providers must set fees in a way that proactively anticipates and accounts for all costs associated with mitigation. Many programs face challenges in determining these costs, due in part to a lack of information on what costs to include and how to estimate them.

Another guide addresses common delays in project approval processes, which are required for third-party mitigation options like ILF programs. A third guide covers long-term management, a practice in which ILF programs are required to sustain mitigation projects in perpetuity once completed. The report covers strategies for the effective planning and implementation that these long-term sites require.

Finally, a fourth guide provides information on what to expect from programmatic audits, which help provide confidence to regulators, purchasers, and the public that a given ILF program is meeting its requirements and successfully offsetting permitted impacts. The report includes guidance on what information programs should include in their program instruments, model language for audit provisions, and how programs can prepare for such audits.

ILF programs account for close to 20 percent of the nation’s compensatory mitigation. Together with other third-party options, ILF programs oversee some of the nation’s largest, most ecologically valuable sites. ELI continues to work closely with compensatory mitigation practitioners and regulators to research best practices and strengthen the protection of U.S. wetlands, streams, and aquatic ecosystems.

Report on high-seas regulations provides input to UN treaty

The vast majority of the world’s oceans, including the high seas and deep seabed, are areas beyond national jurisdiction—meaning no one nation holds sole authority. As advances in technology open up possibilities for commercial activities in the high seas, concern is growing that these areas will experience rapid industrialization. One way to ensure that development is conducted in an environmentally sustainable manner is to establish regulatory procedures for ocean industries.

The United Nations draft agreement for the protection of marine biodiversity in areas beyond national jurisdiction, or the UN BBNJ treaty, aims to do just that. The treaty proposes to, among other things, implement requirements for developers to conduct environmental impact assessments (EIA) on proposed industrial facilities in the high seas so that the significant biodiversity of these areas will be protected. But as the treaty itself moves beyond initial development to implementation of EIA and other protections, practitioners around the world remain wondering: “How can we ensure that EIA is done effectively once the BBNJ language is signed into international law?”

In December 2021, ELI published Implementation of EIA in Areas Beyond National Jurisdiction Under the UN BBNJ Agreement: Next Steps in EIA Guidelines, a report to help illuminate the practitioner’s perspective to the UN BBNJ process. The report synthesizes the discussions of a working group convened by ELI, composed of more than 25 senior officials with expertise in international law and ocean policy, environmental management, and EIA.

The document, authored by ELI Visiting Scholar Patience Whitten as part of the Institute’s Blue Growth Law and Governance Initiative, identifies key challenges to the successful implementation of an EIA regime as proposed under the UN draft agreement, and provides input to further the goals of the treaty.

ELI is developing this work as part of a multi-year research and collaboration effort to ensure a meaningful implementation of EIA principles in the high seas.

Clearinghouse connects communities with pro bono legal services

In February, ELI launched its Pro Bono Clearinghouse, an initiative that connects communities experiencing environmental injustices with attorneys who can provide pro bono legal services. ELI’s Pro Bono Clearinghouse is a venue for sharing opportunities and identifying expertise to support communities with pressing environmental problems. The Clearinghouse works to ensure that communities with viable environmental legal matters get the representation they need—whether in a courtroom, in front of an agency, or in a more facilitative or consultative fashion.

Environmental clinics are forced to turn down countless cases each year due to a lack of resources. At the Clearinghouse, clinics, partner NGOs, or ELI staff post a community’s request for a pro bono attorney with the right qualifications and notify environmental lawyers about ongoing pro bono opportunities. Law clinics can also create postings to find local counsel or legal support on specialized issues to expand internal capacity. Attorneys can in turn search for opportunities that match with their time availability, legal expertise, and jurisdiction of practice.

All attorneys who are ELI members can opt in to access the Clearinghouse and posted matters. Each attorney is required to review the available courses from the ELI Continuing Legal Education on Community Lawyering for Environmental Justice program, an ongoing series of training sessions provided in conjunction with the Clearinghouse. The classes enable attorneys opting into the platform to gain skills in community lawyering, a key practice in meaningful EJ-oriented pro bono work. Community lawyering centers on prioritizing the needs of communities and collaborating with individuals and groups as facilitative partners.

Law firms with ELI membership can opt in to the Clearinghouse, and non-lawyers and students are encouraged to contribute research, writing, scientific expertise, and other skills in conjunction with pro bono attorneys. All clinics and communities that post matters can also access the Clearinghouse to reach thousands of environmental practitioners within ELI’s network and collaborating partners.

The Clearinghouse partners with groups including the American Bar Association’s Section of Environment, Energy, and Resources, the American College of Environmental Lawyers, the Environmental Protection Network, and the Chesapeake Legal Alliance. The Clearinghouse also partners with two world-class, community-focused nonprofits: the Anthropocene Alliance, the country’s largest coalition of communities on the frontline of environmental justice, and the Thriving Earth Exchange, which connects communities with pro bono scientists.

Law clinics in the United States and around the world are welcome to join. Lawyers, law students, environmental experts, and advocates may connect with the Clearinghouse at probono@eli.org and at eli.org/probono.

Institute Published Guide on Restoring Wetlands

Energy Transition
Subtitle
A Lawyer’s Love Letter to the Disenfranchised
Author
Lisa Benjamin - Lewis & Clark Law School
Lewis & Clark Law School
Current Issue
May-June 2022
Issue
3
A wind turbine held by a dark skinned hand and other hands held up in fists

The urgent need to move away from fossil fuels can encourage us to overlook what that transition will actually look like—or even should look like. Who will be the architects and beneficiaries of this new energy system? How can democratic and just energy systems be built and supported?

Shalanda H. Baker’s book Revolutionary Power: An Activist’s Guide to the Energy Transition provides us with some answers to these questions. Formerly a professor at the William S. Richardson School of Law at the University of Hawai’i, Baker now serves in the Biden administration as the Department of Energy’s deputy director for energy justice. Her book, per its title and subtitle, is written explicitly as a guide for activists, and implicitly draws on her personal history.

Revolutionary Power has three aims: first, to articulate the pervasive socioeconomic impacts of existing energy systems. Second, to illustrate the opportunities that the energy transition holds to upend existing inequality. Finally, to situate the fairly technical area of renewable energy policy within a broader discourse of civil rights, inequality, and access to justice.

Deputy Director Baker’s work is powerful and inspirational. It is a refreshing reminder of what bright promise the energy transition can hold to right historic wrongs, even if the transition is delayed or frustrated. As Baker notes, the energy system will change; the only disagreement is how much the system will change, and who will benefit from those changes.

The book opens with a personal history of how Baker came (in her own word, “improbably”) to work in energy law and policy. As a Black, young, queer cadet in the United States Air Force Academy, who experienced intimate partner violence, she left the military and decided to dedicate the rest of her professional life to social justice. She entered law school. After graduation, she found herself working on project finance for both fossil fuel and renewable projects at a large, international law firm. As she watched the 2008 financial crisis unfold, with consequential public bailouts of large financial institutions, her role in a law firm where senior partners were actively working to shield wealthy clients from the fallout of the crisis became untenable. The emerging climate crisis, combined with the financial crisis, were, in her view, intimately related—two sides of the same coin, if only we care to view both sides at the same time.

These macro events propelled her to leave private practice and spend time in Mexico working with Indigenous communities struggling with the impacts of mega renewable energy projects. This experience cemented her commitment to energy justice as an activist and scholar, and led to the writing of this book.

Her work interweaves growing up in her family with the story of living in an environmental justice community marred by the fossil fuel industry—and this makes the work so powerful. Revolutionary Power posits early on that while the climate emergency has and will continue to disproportionately impact the most vulnerable, those populations—namely low-income communities and communities of color—are positioned by the very same crisis to become both architects and beneficiaries of the new energy system. The book lays out a pathway to get us to that goal, so Baker dedicates her work to the most vulnerable. The book is specifically designed to arm the climate vulnerable with tools to remake the current energy system so that the new system that emerges can—instead of discriminating against the vulnerable—be put in service of their humanity.

The climate and energy policy space is often dominated by voices from the global North, and the discipline is not diverse. Baker confronts this directly by acknowledging for whom she wrote Revolutionary Power:

“I write for those so frequently shut out of decisionmaking that affects them, whose skin might be brown or black, and whose ancestors labored on plantations and in factories made prosperous by their cheap labor. I write to honor my own people, whose histories, hopes, and dreams are embedded upon the oil fields and bayous of Louisiana and Texas and whose blood courses through my veins.”

Her writing is both deeply personal and almost revolutionary in its hopefulness and dedication to radical system change. She pushes back against what she calls “climate fundamentalism,” which as she describes it advocates that, due to the pressures of time, structural inequality has to be replicated in the new energy systems. Her approach is unabashedly justice first.

The first section of the book situates existing energy structures and their effects within civil rights discourse. Baker describes the impacts this industry had on her family, particularly her father, who lived in Port Arthur. The Texas town is a small environmental justice community of approximately 55,000 people, with certain census tracts being 77 percent African American and others 30-65 percent Latinx. It is one of the poorest communities in Texas.

Despite the vast fortunes made by the oil industry, the region is still marred by tremendous inequality, not just in terms of economics but also health disparities. The area is called the “Cancer Belt” for a reason. The rates of cancer in the Black community there are described as “devastating”—nearly 40 percent higher than the state average. Baker writes that the refineries, and the poverty, of Port Arthur shaped her father’s life, as it did his father’s. To read her book, it clearly shaped hers.

She uses Port Arthur to illustrate larger national patterns. While these industries promise jobs and wealth, they are also accompanied by environmental and racial inequalities illustrated by workplace injuries, and implications for public health in the community. As she notes, the current energy system routinely sacrifices Brown, Black, and Indigenous bodies “to keep the lights on for the majority.”

The book illustrates the power dynamic inherent in existing energy systems, which concentrate wealth and influence in the hands of utility companies and their investors, often at the expense of ratepayers, and those on the sharp end of climate extremes. Yet energy policy is often discussed in highly technical language, with no consideration of the justice implications of energy choices. Baker’s work seeks to shift this discourse, and center the goals of new energy systems squarely around, and for, those marginalized and sidelined by the current energy system.

Energy justice advocates focus on four main areas: procedural, distributional, recognition, and restorative justice. Baker adds a fifth dimension—centering the voices of the marginalized communities by putting their needs first. This importantly includes reducing the burdens experienced by these communities and then ensuring their social and economic participation in new energy systems. In her view, each energy policy decision should be filtered through the lens of equity, ensuring policymakers take into account past harms when designing new energy systems.

A central plank of an energy justice approach, articulated in the second part of the book, is electric utility reform. This involves decentralization of the energy system from investor-owned utility companies to households and communities. Localization of technology comes with localization of control and wealth—energy justice becomes an element of civil rights through the more equal distribution of energy benefits. In this section of the book, Baker uses recent experiences in Hawaii’s electricity reform initiatives as illustrative of some of the opportunities, and pitfalls, that may arise in creating this new energy future.

In 2014, the Hawaiian public utilities commission rejected the integrated resource plan of Hawaiian electric companies. The PUC’s order was revolutionary in requesting the utility to be more responsive to changing energy markets, to modernize the generation of electricity on each island, to integrate rooftop solar, and to fundamentally rethink its relationship with its customers.

As Baker tells the story, the PUC order sent chills down the spine of other national utilities. She also charts the decades-long fight against distributed energy systems by utilities, in what she calls “the playbook to systematically dismantle rooftop solar.” In her telling, utilities, along with the American Legislative Exchange Council, proposed legislation which attacked community-friendly net-metering compensation systems, using racially divisive tactics.

Baker ends with a focus on community energy programs, which create pathways for localities to design, own, and manage their energy sources. While community energy can mean different things to different folks, it focuses on ownership and energy distribution by and for the people. It can be used as a mechanism to create tangible benefits and build wealth in and for communities.

Baker provides a vision of what democratic energy systems could look like, and what these systems could do to rectify past harms. She provides a hopeful and equitable vision of our energy future.

She ends with a word that lawyers—and academics—rarely use in their work, love. She reminds us that revolutionary power is about a love that looks forward and is hopeful, as well as a love that looks backward, to ancestors who were hoping and praying that this possible future, and those who shape it, may come into existence. Her work is effortlessly hopeful, and an inspirational read for all of us working for a better energy and climate future.

On a Lawyer and the Disenfranchised

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