A Lasting Equity Legacy
Author
Akielly Hu - The Environmental Forum
The Environmental Forum
Current Issue
Issue
2
Shalanda Baker

Until recently, it wasn’t popular to talk about energy justice. Although many policymakers and advocates recognized the urgency of dismantling fossil fuel systems and shifting to renewable energy, few within the mainstream climate movement paid attention to the needs of communities most harmed by the fossil-fuel economy.

That’s a dynamic far too familiar to Shalanda Baker, a law professor, energy justice scholar, and former director of the Office of Energy Justice and Equity at the Department of Energy under President Biden. Over three and a half years, Baker was the lead architect of the Justice40 initiative, a first-of-its kind program to direct 40 percent of the benefits of climate investments to disadvantaged communities. The program was the centerpiece of the administration’s environmental justice agenda and part of the greatest shift in history toward incorporating equity in federal climate policy.

It was also a watershed moment for Baker, who had warned against replicating the harms and injustices of the fossil fuel industry for most of her career. For many years, even in the environmental field, “Folks weren’t thinking about equity around climate,” Baker says today. “They were more concerned with tackling the climate crisis, and the best path to do that was through large-scale clean energy projects.”

Building huge solar and wind farms might seem like a straightforward way to replace oil, gas, and coal. But as a law professor at the University of Hawaii at Manoa, and later at Northeastern University in Boston, Baker’s work with Indigenous and rural communities in Hawaii and Mexico displaced by large-scale clean energy projects revealed to her how pursuing climate solutions at the expense of people leads to “the same violence and economic exclusion in the clean energy economy that exists within the fossil fuel economy,” Baker writes in her 2021 book Revolutionary Power: An Activist’s Guide to the Energy Transition.

Baker calls this limited approach “climate change fundamentalism.” Simply swapping in clean energy ignores the reality that our most pervasive social injustices are intimately tied to and caused by the existing energy system. Polluting energy facilities are disproportionately sited in low-income communities and communities of color, resulting in far greater rates of cancer and respiratory diseases than the national average. Those groups also face higher energy burdens, meaning that more of their income goes toward utilities, and are hit hardest by climate change-fueled disasters.

For those reasons and more, Baker argues in her book, energy policy is a matter of civil rights. Climate change requires a complete retooling of the energy system, and “positions those without power—namely Brown and Black people, low-income communities, and communities of color—to become both architects and beneficiaries” of that system, she writes. Whether centering the input of communities to create energy projects, securing clean energy jobs for workers, or expanding access to locally owned solar, policies should “take into consideration past harms and burdens of the energy system” and “involve those most impacted” in their design.

Without knowing it, Baker’s years of research and advocacy were preparing her for the chance to put those ideas into action through federal policy. In the winter of 2020, she received a call asking her to lead Justice40. During her tenure, she would end up overseeing tens of billions of dollars in funding for federal climate programs, spearheading an energy justice office that tripled in size, and leading the charge to embed equity into DOE’s mission and work.

Baker grew up in Austin, Texas, and attended the Air Force Academy. As “a Black, queer, young woman,” she entered the military during the height of the Don’t Ask, Don’t Tell policy that banned openly LGBTQ people from serving in the military, she writes in Revolutionary Power. She later attended law school at Northeastern University. After a stint in project finance law, Baker bought a one-way ticket to the city of Oaxaca in southern Mexico “with the only sure thing being that I would work with someone, somewhere, against injustice,” she recounts in her book.

There, her passion for energy justice was sparked while hearing Indigenous activists from the Isthmus of Tehuantepec share their struggles against large-scale wind development. “An electric current moved through my spine,” she writes. “I knew, in that moment, that this tension—between Indigenous rights and clean energy, between the rush to avert catastrophic climate change and social justice—would form the foundation of my work as an activist and scholar.”

Baker’s learnings eventually followed her to a law professorship at University of Hawaii at Manoa, where she founded an energy justice program and spent years engaging with communities as the state charted a path to 100 percent renewable energy by 2045. Conversations about energy policy and development often focused on high electricity prices and the issue of land, Baker says, given the archipelago’s history of colonization and displacement of Indigenous communities.

Baker continued to see those same tensions play out around the world. As a Fulbright research scholar in Mexico, Baker hosted workshops with communities impacted by wind and solar projects. She explored these issues on a national level as a law professor at Northeastern, where she co-founded the Initiative for Energy Justice, a group that supports frontline organizers and policymakers.

But it was only while writing her book that she realized just how much her own upbringing was rooted in these issues. “The more I wrote, the more I realized, ‘Oh, my dad and my lineage are a part of this country’s environmental justice story,’” she says. Baker’s father grew up in Port Arthur, Texas, a low-income, majority Black and Latinx community on the Gulf Coast, where much of the country’s oil, gas, and petrochemical infrastructure is sited. “It is a true sacrifice zone,” Baker writes in Revolutionary Power. High exposure to toxic emissions and other hazards have led to soaring rates of cancer, asthma, and other chronic diseases. “Like his mother and his eldest brother, my father died way too young of heart disease. Like his father and brothers, and so many Americans, he made a good living in the energy industry,” Baker said during her Senate confirmation hearing in 2021.

Baker’s mother, meanwhile, raised her in a single-parent household with a civil service income that disqualified them from public assistance but made it difficult to afford energy bills. “Like one in three American households, 52.2 percent of Black American households, and 61.5 percent of Native American households, we used the oven to warm our apartment,” Baker told the Senate. “In the summers, my sister and I spent days on end in the public library to keep cool.”

“I was nervous to write about my family,” Baker remembers. “But then I started to see the connection to the data” and realized that these are widespread, structural issues, she says. “For me, it was this light bulb moment. This is why I’m doing this work.”

In January 2021, Baker was a day-one DOE political appointee as deputy director for energy justice. On Earth Day of that year, President Biden nominated her as director of the department’s Office of Economic Impact and Diversity, which Baker later renamed as the Office of Energy Justice and Equity upon confirmation. She also served as Secretary of Energy Jennifer Granholm’s advisor on equity throughout her time in office.

Much of Baker’s work centered around leading the Justice40 initiative, created through an executive order issued by Biden during his first week in office. The directive required agencies to ensure 40 percent of benefits from federal investments in climate, clean energy, transportation, housing, pollution reduction, and infrastructure flowed to underserved communities. Programs under Justice40 received a huge boost in funding from the 2021 Bipartisan Infrastructure Law and the 2022 Inflation Reduction Act. As of November 2023, 518 programs across 19 agencies were covered under the Justice40 initiative.

“The first year was breakneck,” Baker describes today. Her job involved not only leading Justice40 efforts, but also incorporating equity into the work of a largely technology- and research-focused agency. That required educating thousands of DOE employees on energy and environmental justice issues. It also entailed addressing those challenges within the agency itself: In September 2022, DOE released its first diversity, equity, inclusion, and accessibility strategy, outlining the agency’s steps toward creating a more equitable workplace.

Baker built up a team of dedicated employees to support those efforts. She also established the agency’s first policy frameworks to expand access to benefits under the Justice40 initiative, including its first-ever equity action plans, which mapped out how to collect data on and increase funding to underrepresented groups.

The agency also created a framework for community benefits plans, documents that applicants for DOE funding must submit in order to receive money. Plans outline how companies will engage with stakeholders to deliver 40 percent of overall benefits to communities, in line with the Justice40 initiative. DOE also launched a Regional Energy Democracy Initiative in the Gulf South, which provided funding and created hubs for local organizations to receive assistance with negotiating community benefits plans.

TODAY, Baker shares mixed feelings about the outcomes of her time at the agency. On one hand, the department achieved a transformative paradigm shift. “The Department of Energy became the federal leader on Justice40 and demonstrated how you embed justice into policy,” Baker says. “By the end of it, I would say every single office at the department was engaged in justice and equity in some way.”

On the other hand, “40 percent was never going to be enough” to remedy the centuries of slave labor, immigrant labor, and exploitation of communities that form the bedrock of the country’s energy system, says Baker. When she first entered office, she had hoped to carry out the ideas introduced in her book, such as community-owned energy assets and locally led projects. But federal energy development policies are designed to promote industrial projects and mostly benefit corporate players, she says.

“I was asked to make industrial policy work for communities of color, low-income communities, and other impacted groups including rural white frontline communities,” she says. “In some ways, it was battling a 400-year-old problem because industrial policy and economic development in this country have always been exploitative.” Community benefits plans, for example, were one of the best policies “we could do within the constraints of the system we had,” she says. “But it was never enough.”

Last September, Baker returned to academia, this time to the University of Michigan as their inaugural vice provost for sustainability and climate action and a tenured faculty member. She’s now tackling the “new puzzle” of finding ways for universities to engage communities and translate academic work to climate action.

Meanwhile, President Trump has quickly worked to dismantle the Biden administration’s progress on climate and equity. On his first day in office, Trump revoked dozens of Biden’s executive orders, ending the Justice40 initiative and other federal environmental justice programs. As of the Forum’s conversation with Baker in late January, half of the Office of Energy Justice and Equity staff had been placed on administrative leave as a result of those orders.

Despite the new administration’s efforts, some of her office’s work will survive the backlash, Baker says. Community benefits plans under already finalized contracts, for example, will be difficult to claw back. But more importantly, policies that prioritized communities have already reshaped the clean energy industry and attitudes around the transition, Baker says today.

“We moved industry and how they think about development,” she says. “Communities now know that if they’re not engaged, if they’re not getting benefits from this transition, then they should protest. They should demand more from their states and from private industry, and they should be at the table—because they deserve a seat.”

PROFILE Shalanda Baker, who ran President Biden’s Justice40 Initiative at the Energy Department, which funneled billions to disadvantaged communities, says the now disbanded program permanently changed the culture and conversation over race, climate change, and energy policy.

Questions of Affordability and Equity
Author
Carolyn Berndt - National League of Cities
National League of Cities
Current Issue
Issue
6
Parent Article

Local leaders are charged with protecting the health, safety, and welfare of their residents and communities. As owners and operators of drinking water, wastewater, and stormwater systems, they take this responsibility seriously. The Safe Drinking Water Act has been vital in helping them furnish one of the most basic requirements for life: clean and safe drinking water delivered to households and businesses.

As we are celebrating the 50th anniversary of the SDWA, the National League of Cities is celebrating its 100th birthday. Looking back on the impact that local leaders have had in growing our nation’s cities, towns, and villages, we find that they were at the forefront of building our nation’s infrastructure—including our water infrastructure.

Cities were also at the forefront of the environmental movement to clean up pollution in our nation’s water resources. The burning of the Cuyahoga River in June 1969—the last time the river caught on fire—and an oil spill off the coast of Santa Barbara earlier that year were two of several catalysts for the first Earth Day in 1970 and the wave of activism that followed, including actions undertaken by local leaders.

While passage of environmental statutes such as the Clean Water Act and the health-based SDWA have been instrumental in helping communities provide clean and safe water for residents, they also led to a new mantra from local leaders: no unfunded mandates.

As early as 1972, NLC and local leaders were asking the U.S. Environmental Protection Agency to revise deadlines for compliance if federal funds were not going to be provided. In the 1990s the local government campaign against unfunded mandates ramped up. During this time, Congress was debating changes to the SDWA as reflected in the 1996 amendments and, a year earlier, by the Unfunded Mandates Reform Act.

NLC leadership testified in 1993, 1994, 1995, and 1996 about the concerns from cities over the cost of compliance and the extremely conservative levels of testing necessary to comply with the SDWA.

Unfortunately, not much has changed today when it comes to cost and compliance challenges for local governments. Recent and forthcoming changes around the Lead and Copper Rule and the National Primary Drinking Water Regulation for PFAS are just two of the many drinking water requirements facing local governments (not to mention Clean Water Act requirements). These regulations, while important, carry hefty price tags for municipal water systems around testing, notification, reporting, capital improvements, and more.

With local governments already funding 95-98 percent of all capital, operations, and maintenance investment in drinking water and wastewater infrastructure, spending over $148 billion in 2021 alone, according to the U.S. Census Bureau, questions of affordability and equity need to be addressed.

Many low- and fixed-income households across the country are already paying a disproportionate amount of their income toward their water bills. Municipal water system operation, maintenance, and capital projects are typically funded through ratepayers—in the form of water rates or through loans or bonds. When costs increase for local water systems, they often must be made up in the form of increased costs to ratepayers, which can pose an economic and financial burden on individuals and the community.

Local leaders are grateful for the additional and historic levels of funding for water infrastructure through the Bipartisan Infrastructure Law. Many local governments also dedicated a portion of their American Rescue Plan Act State and Local Fiscal Recovery Funds toward their needed water infrastructure projects.

But it is not enough to make all the necessary improvements to our nation’s water infrastructure systems in every city, town, and village across the country. The American Society of Civil Engineers estimates that over the next 10 years, $1 trillion of additional investment is needed to reach a state of good repair for drinking water, wastewater, and stormwater infrastructure, not including the cost of meeting new and forthcoming regulatory requirements. Moreover, the increase in State Revolving Funds from the BIL will run out before the new compliance deadlines of the Lead and Copper Rule and the National Primary Drinking Water Regulation for PFAS go into effect.

Local governments will be left to pick up that cost difference. Congress and the administration should continue to make significant investments in water infrastructure directly to local governments with grants, not loans, to avoid unfunded mandates on local governments. Setting realistic, implementable, and cost-effective standards and requirements can help ease regulatory and financial burdens on communities, while still protecting public health.

The SDWA is a milestone achievement, but within the regulatory framework we cannot lose sight of the need to ensure that every household has access to clean and safe water while keeping affordability for residents and communities in mind.

Carolyn Berndt is legislative director for sustainability of the National League of Cities.

Clean Water Injustice
Author
Betsy Nicholas - Potomac Riverkeeper Network
Evan Isaacson - Chesapeake Legal Alliance
Potomac Riverkeeper Network
Chesapeake Legal Alliance
Current Issue
Issue
6
Clean Water Injustice

The Supreme Court issued a landmark decision in 2023 that sparked an immediate response from environmental advocates across the nation. In Sackett v. Environmental Protection Agency, the Court drastically narrowed the jurisdictional scope of the Clean Water Act. In doing so, the justices in effect sent the message to states that “protecting and restoring water quality is now your job.”

Maryland was one of the first to respond to this implied invitation from the Court. The state’s Clean Water Justice Act of 2024 was crafted by the General Assembly with help from a dedicated community of local advocates to fill the post-Sackett coverage gap. The new law will rectify the injustice caused after Sackett stripped the public of its right to seek redress for illegal pollution into waters that are deemed no longer jurisdictional. However, the new law was not just a response to the Supreme Court. This bill was the latest in a series of legislative responses to an alarming decline in the use of the federal CWA to protect waterways from pollution. Thus, Maryland is not alone in countering the rapid falloff in enforcement, capped by the Sackett decision reducing the CWA’s coverage.

Time will tell if Maryland’s new law will culminate years of work to bring back the accountability at the heart of the federal CWA—or if this is just the beginning of a decades-long battle to constantly respond to one crisis after another introduced by this Supreme Court. Unfortunately, the latter is probably more likely, especially in light of the damaging administrative law decisions of the last term. If we are ever to realize the intentions of Congress and keep the federal act from turning into only a paperwork exercise for polluters, we will need the public re-engaged and state and local advocacy organizations well-prepared for the long slog ahead.

Sackett accomplished the long-held objective of many enemies of the CWA by dramatically shrinking its scope and its protections. By narrowing which wetlands and streams are considered jurisdictional “waters of the United States,” or
WOTUS, under the CWA, the Court instantaneously stripped more than 60 percent from the protections created by Congress and implemented by EPA and the states.

Almost no observer of this case was surprised by the outcome. Though Sackett effectively overturned nearly a half century of precedent regarding WOTUS, the writing had long been on the wall. Polluters have been challenging the scope of CWA jurisdiction since shortly after its enactment. But these challenges began to take on a particular shape, and a particular target, during the last quarter century.

While earlier cases often involved a defendant arguing that a specific jurisdictional element of the CWA (“an addition” of a “pollutant” by “a person” from a “point source”) was missing, in recent decades ideological interest groups increasingly targeted one particular element, WOTUS. Property rights groups, developers, big industries, and other interests have specifically sought to narrow which wetlands and waterways are considered jurisdictional and thus protected by the act. They did so because of the perceived nexus between land use decisions and CWA protections, especially Section 404’s ban on unpermitted dredging and filling of wetlands and waterways.

For decades, industry groups have continually challenged environmental protections, gaining more success as the Supreme Court became more conservative. It was inevitable that the high court would eventually rule in favor of narrowing the CWA’s scope. But this ruling goes much further, contradicting established legal precedent, congressional intent, and scientific knowledge that shows smaller waterbodies are crucial for the health of larger ones.

So when the Sackett decision came down last year, policymakers turned to resources like ELI’s 50-state survey of enforceable water quality measures, and to local advocates for deeper dives into the scope of their state’s wetland and water pollution laws. For some states, this task is comparatively simple because the jurisdictional definition of “state waters” simply needs to be expanded to extend protections for waters that used to be protected by the CWA. For other states, the situation is much more complicated.

Even in states where there are no obvious post-Sackett geographical or hydrological gaps because a state’s jurisdictional definition includes all types of waters and any wetland, that does not mean that there are no gaps. Such was the case in Maryland and most of the seven states of the Chesapeake Bay watershed.

To illustrate why, examine what happens to a waterbody when it loses its status as a WOTUS, even if it remains a protected state water. That water loses not only the federal resources and protections of U.S. EPA, but also the rights conferred upon the public to enforce the law when the government fails to do so. In Maryland, a waterbody that lost the protection of the CWA also lost the right of the public to protect it from illegal pollution by bringing a citizen suit in federal court.

Just as Congress recognized that public enforcement via the citizen suit was one of the indispensable features of the 1972 Federal Water Pollution Control Act that would separate the modern CWA from its inadequate predecessors, advocates in Maryland today similarly know that restoring this environmental right should be among the first and most basic goals for this post-Sackett world. Thus was born Maryland’s Clean Water Justice Act, a law to ensure that the public could bring a citizen suit, now under state law, to protect isolated wetlands and intermittent and ephemeral streams from illegal pollution.

There is not one solution for state lawmakers looking to respond to Sackett, as the formula will depend on that state’s definition of waters of the state as well as enforcement mechanisms. Only a handful of states have current state-level citizen suit provisions that mirror the pre-Sackett protections provided by the CWA. For most states where authority for public enforcement of water pollution laws is lacking, the adoption of a law like the Clean Water Justice Act would be useful. In Maryland, we were heartened to see not only the usual environmentally focused legislators in the General Assembly supportive of this concept, but many other policymakers troubled by the torrent of Supreme Court decisions in recent years that obliterated decades of precedent. We assume the same may be the case in many states.

In 1972, the federal Clean Water Act was passed to redress the failure of the states to protect the nation’s waters. Congress created a system of shared authority between EPA and the states, where the federal agency sets the goals and standards and then states may implement the permitting and enforcement systems. Congress also provided the federal government and the public with crucial backstops to enforce the law when state governments fail or refuse to do so. The literature is replete with discussion of how state and federal enforcement has waxed and waned over the last half century, how staffing levels have declined, and what EPA has (or has not) done in response to flagging state efforts to ensure that the ambitious goals of the CWA are met.

As with many states and, indeed, the federal EPA, the Maryland Department of the Environment has suffered from a slow whittling away of resources. Agencies are often stuck with budget cuts during lean years that are rarely restored when fiscal challenges abate. Between 2002 and 2022, this pattern resulted in MDE losing one out of every seven staff. Its share of the state’s general fund dropped by half.

As significant as this decline in resources was, it happened slowly and across administrations. What was far more drastic—and what makes Maryland’s experience atypical—was the abrupt change in approach to CWA compliance and the rapidity in the decline in enforcement. Between 2015 and 2020, the number of enforcement actions of water pollution and wetland violations plummeted by 85 percent. The advocacy community repeatedly warned MDE that it was embarking on a dangerous experiment with our environmental and public health laws. These warnings went unheeded, and predictably, the consequences were dire.

In 2021, two of the three largest sources in the Chesapeake Bay across the 64,000-square-mile watershed caused a deluge of pollution into tidal waters that took years to fix. According to EPA data, between December 2020 and March 2021, nitrogen pollution from Baltimore’s Patapsco sewage plant increased fivefold. The illegal nitrogen pollution from both the Patapsco and Back River facilities in Baltimore was roughly as large as the total nitrogen discharged by all other plants in the state combined.

All of this pollution occurred even though the state’s primary strategy for meeting Chesapeake restoration goals was to ratchet down pollution from these very plants. Given that Annapolis was just wrapping up a multi-billion-dollar, two-decade-long effort to upgrade the state’s 67 major wastewater treatment plants, the CWA violations resulting from the lax enforcement became a public embarrassment for Maryland’s leaders.

The General Assembly was not pleased to see its billions in appropriations and dozens of new laws passed in the name of Chesapeake Bay restoration squandered by the state’s failure to enforce the CWA. So, urged by community advocates between 2020 and 2024, Maryland legislators passed several new laws to bolster permitting and enforcement, the sorts of mundane nuts-and-bolts topics that previously had been rarely addressed during Maryland’s short, 90-day legislative sessions.

In the 2020 session, the General Assembly passed a bill to stiffen enforcement for industrial agricultural operations from Maryland’s expansive poultry industry and required MDE to produce quarterly reports on its enforcement activity. In 2021, the legislature compelled the department to create an online portal housing the state’s compliance data, including inspection reports detailing the violations at individual facilities (going beyond EPA’s impressive Environmental Compliance History Online database). That same session gave Marylanders a new right to intervene in the state environmental department’s enforcement actions, a tool that has since paid dividends with recent high-profile actions, such as the Back River and Patapsco enforcement actions discussed previously.

But the real show-stopper was a bill that passed in direct response to the Baltimore sewage debacle and several other high-profile environmental concerns, including a discharge of untreated sewage that resulted in multiple people being hospitalized due to e. coli contamination of oysters. This new law required inspections by MDE personnel of all facilities in “significant non-compliance” that continues for more than 60 days and automatic and escalating penalties for facilities that do not return to compliance. Further, the bill required the department to clear the backlog of administratively extended permits and ensure that water pollution permits are timely renewed. In effect, the legislature sought to end significant noncompliance with the CWA in Maryland and to ban these administratively extended or “zombie permits” that circumvented Congress’s intention to ratchet down pollution at permitted facilities every five years.

The legislature heard from its bean counters that the fiscal impact would be massive, but passed the bill anyway. Then Governor Larry Hogan failed to expend funds to implement the bill. But, in a sign that times are changing, his successor, Governor Wes Moore, made one of his first orders of business the hiring of nearly 50 new inspectors, permit writers, and attorneys for the department’s water division, roughly doubling the size of some units.

Building off of these efforts by the Maryland legislature to drive greater enforcement of the CWA, the Clean Water Justice Act was thus not just a response to the Sackett decision, but the capstone of years of work of shoring up CWA implementation and enforcement in Maryland. Thanks to these new enactments, both the state’s environment department and the public have new authority, new resources, and a new charter to push toward realizing the lofty goals of the federal CWA.

Maryland is certainly not alone in seeking to revamp environmental enforcement. After the passage of the Clean Water Justice Act, advocates in California reached out to let their Maryland colleagues know that they are seeking to do the same (despite already having regulatory programs that make those of us on the East Coast green with envy). This year, Minnesota passed a suite of measures to stiffen penalties and boost agency enforcement of water pollution laws. The days of national uniformity in environmental standards created by the federal statutes of the 1970s are over, thanks to the Supreme Court’s ongoing federalism initiative, with major implications for environmental advocacy and for industry’s compliance costs.

The CWA has been called one of the greatest government achievements of the second half of the 20th century. A decade after its enactment, the Supreme Court observed that it was “not merely another law,” but represented “a total restructuring” and “complete rewriting” of existing water pollution law. This should not be surprising as the CWA, like the Clean Air Act, reflected the values of its principal architect, Senator Edmund Muskie (D-ME). Muskie’s legislative legacy has been defined by these towering environmental achievements, but he was also a staunch supporter of civil rights and the concept that good government should be active in resolving social injustices. To fully understand the context, potency, and ambition of our bedrock environmental laws, one should certainly read Muskie’s speech at the first Earth Day in 1970: “Can we afford clean water? Can we afford rivers and lakes and streams and oceans which continue to make life possible on this planet? Can we afford life itself?” Muskie asked. “The answers are the same. We cannot afford otherwise.”

What seems astonishing today is that this incredibly “bold and sweeping legislative initiative” passed nearly unanimously—over President Nixon’s veto. This was, in part, a reflection of the deplorable condition of the nation’s waters and a reaction to many unfortunate environmental catastrophes. But while our political and ecological landscape has shifted dramatically in the last half-century, the idea of striving for clean water really has not. Research has consistently shown that clean water polls higher than just about any public good. Moreover, economists have long proven that the benefit-cost ratio of environmental protections is high, making spending on regulatory compliance with our environmental laws a commonsense investment for our economy, society, and ecosystems.

So when we take stock today of where we are a little more than a half-century from the birth of the CWA, we shake our heads not just in disappointment, but also confusion. Why not continue to invest in such a popular law that does so much to protect the health of Americans and make the country a more attractive place to live, work, and recreate? Why are we seeing attacks from all three branches of government against the CWA?

At stake is not merely missing statutory goals and deadlines but subverting the entire legal framework that Congress created. The CWA aims to “restore and maintain the chemical, physical, and biological integrity of the nation’s waters.” The law is exceedingly clear in expressing its goals, codified right up front. And the mechanisms to achieve those goals are similarly explicit. Chief among these were the permitting programs, or, as the Supreme Court famously said, “where the rubber meets the road.” The problem is, if the permitting programs are weak, not only are they unable to drive progress toward the act’s goals, worse yet, they actually establish legal protections for polluters and legal barriers to justice for the rest of us.

These are the sorts of considerations that reflect the urgency with which advocates in Maryland have moved to restore the CWA. The fate of the Potomac River and the Chesapeake Bay certainly looms large in the public’s consciousness here, but the fight to restore the federal statute is even bigger than the fight to restore the capital city’s river and the treasured bay into which it flows.

Consider a recent headline story in the Environmental Law Reporter about what has gone wrong for the Chesapeake restoration effort in the last 15 years. The author laid much of the blame with EPA for failing to keep the states in line with their promises made at the outset. The tools to do so were simple: the dozens of provisions of the CWA statute and regulations that constitute EPA’s legal authorities and obligations. In other words, the very same actions that the bay restoration was predicated on are simply the nuts and bolts of the CWA. As goes the federal statute, so goes bay restoration; what is good for the Chesapeake is, likewise, good for so many other environmental and public health priorities.

Maryland’s governor, like President Biden, has prioritized climate change and environmental justice. If you read EPA’s exhaustive guidance on how it plans to advance environmental justice and combat climate change, the federal agency relies, at least in part, on that very same compendium of existing legal tools that EPA said it would use to advance bay restoration. Moreover, with each passing day, the threats posed by PFAS, nano-plastics, particulate air pollution, heavy metals in coal ash, and many other highly toxic pollutants become clearer. The answer to these and so many other threats are found in the basic regulatory programs we have, thanks to our foundational environmental statutes.

This is why it has become essential for advocacy organizations to engage impacted communities to enforce the law when the government fails to do so, as well as for taxpayers to fund regulators to implement and enforce our laws at the state level. This is the other story behind the Clean Water Justice Act and Maryland’s other CWA permitting and enforcement laws passed in recent years.

Being a public interest environmental attorney in this new era of the Supreme Court can feel Sisyphean. The post-Sackett frenzy of state legislative activity that followed the Court’s term begun in 2022 was neither the first nor the last major rewrite of an environmental statute this decade. The 2021 term, of course, saw the landmark decision in West Virginia v. EPA, ushering in the era of the “major questions doctrine.” The Court’s 2023 term brought us the demise of four decades of Chevron deference in Loper Bright. In three straight terms this Court has issued a decision that upended a chunk of environmental law as we knew it since the beginning of our careers. CWA lawyers like us fully expect this streak to continue.

In June, the Court agreed to take up the city of San Francisco’s case against EPA, despite (once again) decades of settled precedent and practice by regulatory agencies supporting the federal agency. Most observers fully expect the justices to hand EPA another loss because, well, this Court has become quite predictable in decisions involving the agency’s authority.

While San Francisco v. EPA may not make the sort of headlines that followed West Virginia, Sackett, or Loper Bright, it will certainly have major consequences for CWA permits issued by EPA and 46 states plus numerous tribal authorities. If the high court reverses the decision of the Ninth Circuit and decides that narrative water quality standards are not independently enforceable, this will gut the effectiveness of key provisions of permits across the country, with massive volumes of water pollution at stake. CWA permits that were carefully and intentionally crafted with the assumption that water quality standards were enforceable will, in an instant, be rendered far weaker than intended.

Once again, states will be left to respond to a Supreme Court decision that upends the way a regulatory framework has existed for decades. Once again, state regulators and permit-writers will have to scramble to help formulate solutions. State environmental advocates will again be thrust into the position of having to push reluctant regulators in every jurisdiction and educate legislatures on a highly wonky legal subject, all while standing up to countless lobbyists who will surely spring into action to preserve the Court’s sweeping gift to polluters. The resulting crazy-quilt of state authorities will probably both increase pollution across the nation and increase industry’s compliance costs at the same time.

If advocates are lucky enough to help catalyze a state-based response to yet more unraveling of the federal CWA, such an achievement also comes at a steep cost. Each time small NGOs have to respond to another Court decision, it necessitates a massive commitment of resources. These multi-year campaigns to merely put things back to the way they were, one state at a time, divert extraordinarily scarce resources from advancing proactive initiatives. The NGO community has found itself stuck in a perpetual cycle of pushing the boulder up the hill; a practice that will continue seemingly indefinitely given the time it takes for one generation of the Supreme Court to give way to the next.

In 1972, Congress promised the American people that we would eliminate water pollution from point sources by the 1980s and fully attain our water quality standards. While many advocates are still tirelessly working toward these congressionally mandated goals, it is becoming increasingly unclear whether they will ever be achieved. This uncertainty grows as the Supreme Court continues to dismantle the regulatory frameworks necessary to reach these objectives, and a future of clean water for everyone seems increasingly less likely.

CROSS-EXAMINATION If we are ever to realize the intentions of Congress and keep the federal act from turning into only a paperwork exercise for polluters, we will need the public re-engaged and state and local advocacy organizations well-prepared for the long slog ahead.

Time to Regulate Odors
Author
Adam Babich - Tulane University
Tulane University
Current Issue
Issue
2
Cancer Alley

Why regulate odors? Two reasons: First, to improve public welfare. Odors from air pollution may be an occasional, minor nuisance in most neighborhoods, but not everywhere. For people living adjacent to chemical plants, refineries, and landfills, obnoxious chemical odors can be a daily occurrence that impairs their quality of life. Second, to protect public health. Reducing odors means reducing chemical emissions that cause odors. Many of those chemicals also pose health hazards. Yes, emissions of dangerous chemicals are already subject to Clean Air Act regulatory programs. But those programs are rife with gaps and limitations. The result? Kimberly A. Terrell summarized a 2022 peer-reviewed study that she published with Gianna St Julien as follows: “Numbers of cancer cases are abnormally high among Louisiana’s heavily polluted, predominantly Black neighborhoods,” many of them located in a heavily industrialized corridor known as “cancer alley.”

Can EPA legally regulate odors? Yes! In fact, both EPA and Congress anticipated that possibility. In its 1971 notice that listed nitrogen oxides as a “criteria pollutant” for which the agency would set National Ambient Air Quality Standards, the agency stated that “evaluation of other air pollutants, including fluorides, polycyclic organic matter, and odorous substances, is being conducted, and the list will be revised as the administrator [i.e., EPA] deems appropriate.” In the 1976 case affirming a district court order that required EPA to list lead for regulation, NRDC v. Train, the Second Circuit quoted legislative history that “Congress expects criteria to be issued for nitrogen oxides, fluorides, lead, polynuclear organic matter, and odors, though others may be necessary.” Congress ordered EPA in the 1977 amendments to the Clean Air Act to evaluate “whether air quality criteria or [NAAQS] should be published under the Clean Air Act for odors.” EPA published its response in 1980, concluding that “federal regulatory involvement in odor control does not appear to be warranted.” That conclusion, however, is more than four decades old. If it was ever defensible, it is out-of-date.

The CAA provides ample authority to regulate odors. The heart of the law is the “criteria pollutant” program. That program is built around two expansive commands to the agency in Clean Air Act Section 109: one, “to protect the public health” with “an adequate margin of safety,” and two, “to protect the public welfare from any known or anticipated adverse effects.” To implement those commands EPA sets “primary” NAAQS, which are “requisite to protect the public health,” and “secondary” NAAQS, “requisite to protect the public welfare.” The act’s definitional section clarifies that welfare includes “effects on economic values and on personal comfort and well-being.” The criteria pollutant program is triggered under Section 108 of the act when EPA adds to a list of pollutants that, in the agency’s judgment, “cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare” and which are present “in the ambient air” due to emissions from “numerous or diverse mobile or stationary sources.”

Listing of a criteria pollutant triggers a series of deadlines: EPA has 12 months after the listing to issue a criteria document that “accurately reflect[s] the latest scientific knowledge” with respect to “the kind and extent of . . . effects on public health or welfare.” Simultaneously, EPA must propose primary and secondary NAAQS “for any such pollutant.” The agency then has 90 days to issue final standards. After promulgation of NAAQS, Section 110 of the act provides that states “shall” submit for EPA approval plans for “implementation, maintenance, and enforcement” of those standards within three years (a deadline that EPA can extend for 18 months for plans to attain welfare standards). At least since the 1992 Supreme Court opinion in New York v. United States, however, it has been clear that Congress “may not compel the states to enact or administer a federal regulatory program.” Thus, Congress’s provision for state implementation plans is best read as a strong suggestion. But if a state fails to submit an approvable plan, EPA must step in and issue a federal implementation plan. Under Section 172 of the act, the plan should provide for attainment of a welfare standard “as expeditiously as practicable” after EPA designates an area as nonattainment for the standard.

Why is ambient regulation of odors necessary? First, of course, obnoxious odors inarguably impact welfare. In a 2006 Federal Register proposal in the context of landfill gases, EPA recognized that odor problems create “potential for local property devaluation and poorer quality of life for local residents.” For an agency charged with safeguarding welfare “from any known or anticipated adverse effects,” no more should be required. But an important additional consideration is that protection from odors would come with a co-benefit. It would enhance protection of public health. As a practical matter, when changes are made to polluting facilities to reduce an impact from pollution, those changes generally end up reducing other impacts as well. Those reductions are termed co-benefits (or collateral benefits or ancillary benefits).

One might ask, then, why additional health protections are necessary when EPA has already promulgated primary NAAQS “requisite to protect the public health.” At times, the federal government has seemed to equate compliance with primary standards with sufficient protection of public health. During the Clinton administration, EPA’s Office of Civil Rights issued its notorious Select Steel opinion, which rejected a petition for enforcement of the agency’s environmental justice regulations. EPA’s theory in Select Steel was that without a violation of an EPA health-protection standard, “there is no affected population which suffers ‘adverse’ impacts within the meaning of Title VI” of the Civil Rights Act. How can a minority community complain of a disproportionate impact when there is no impact?

Similarly, during the Trump administration, the agency took the position that a cost-benefit analysis of a hazardous air pollutant regulation would give lesser weight to co-benefits from reductions of criteria pollutants, such as particulate matter and ozone precursors. EPA explained that particulate matter and ozone “are already addressed by the numerous statutory provisions governing criteria pollutants.” The Biden administration, however, reversed that position. EPA stated that reducing pollutant concentrations “below the levels of the NAAQS is reasonable and well-supported by scientific evidence.” This is because, for many pollutants, there is no bright-line threshold below which exposures pose no risk of injury.

Congress has recognized that the criteria program’s health-protection standards, although supposedly set with an “adequate margin of safety,” do not protect against all health impacts. Congress made that recognition explicit in the 1977 Clean Air Act Amendments—when adding the Prevention of Significant Deterioration program to keep clean air from deteriorating to the level of the primary NAAQS. In Section 160 of the act, Congress explained that one of its goals was “to protect public health and welfare . . . notwithstanding attainment and maintenance” of all NAAQS. Senator Edmund Muskie (the father of the Clean Air Act) explained in June 1977, “Even at the national primary standard level, which is the health standard, there are health effects that are not protected against.” A 1977 House report acknowledged, “The idea that the national primary standards are adequate to protect the health of the public has been belied.” Further, “The inadequacies of the standards are substantial both with regard to the pollutants which are regulated and with respect to [EPA’s] failure to regulate others.”

To date, EPA has used the criteria program to set standards for only six pollutants—carbon monoxide, nitrogen dioxide, ground-level ozone, lead, particulate matter, and sulfur dioxide. These six pollutants, however, cover a lot of territory. Ground-level ozone, for example, results from an atmospheric chemical reaction involving sunlight, oxygen, volatile organic compounds (VOCs) and oxides of nitrogen (known as NOx). Implementing the ozone standard, therefore, requires EPA and states to regulate VOCs and NOx as ozone precursors. These include a broad collection of chemicals. Another criteria pollutant, particulate matter, consists of small respirable particles which can include a variety of potentially dangerous chemicals. Criteria-program regulations, however, are not designed to abate all risks associated with the specific chemicals that fit within the categories of VOCs, NOx, or particulate matter. For example, benzene is a VOC and also a carcinogen. The criteria-pollutant program, however, only regulates benzene in its role as ozone precursor. The fact that VOC reductions may also reduce cancer risks from benzene is a co-benefit, but EPA did not calibrate its criteria-pollutant regulations for that purpose.

Similarly, the CAA’s Hazardous Air Pollutant program leaves gaps in the protection of public health. The basic hazardous air pollution standard—known as Maximum Achievable Control Technology—is an emission standard, not an ambient standard. Thus, if a neighborhood is surrounded by three major sources of hazardous air pollution, lawful emissions may be up to three times the standard. A limited exception is the MACT standard for oil refineries, which includes a “work practice standard” that generally requires refinery owners to “monitor benzene concentrations around the fenceline or perimeter of the refinery” and “maintain fenceline benzene concentrations at or below the concentration action level” of 9 micrograms per cubic meter. (The quotes are from a 2020 EPA Federal Register notice.)

For new major sources of hazardous air pollutants (i.e., those that emit at least “10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants”), EPA must set a minimum “MACT floor” that is at least as stringent as “the emission control that is achieved in practice by the best controlled similar source, as determined by” the agency. For existing major sources, EPA sets the MACT floor at “the average emission limitation achieved by the best performing 12 percent of the existing sources (for which [EPA] has emissions information).” The D.C. Circuit explained in its 2004 Mossville Environmental Action Now v. EPA opinion that “EPA need not base its standards on actual data, but could lawfully rely on estimates drawn from the regulatory data as to what the best performing 12 percent were achieving.” Further, EPA may select a standard that sources among that best performing 12 percent can meet “every day and under all operating conditions.” EPA does, however, have discretion to go beyond the MACT floors and set more stringent standards after considering “the cost of achieving such emission reduction[s], and any non-air quality health and environmental impacts and energy requirements.” For sources that do not qualify as “major” (known as “area sources”), EPA may promulgate more discretionary standards based on “generally available control technologies.”

The act’s hazardous air program also requires EPA—if necessary “to provide an ample margin of safety”—to issue an additional promulgation eight years after finalizing a MACT standard. For carcinogens, EPA has defined “ample margin of safety” to allow a lifetime excess cancer risk of between one-in-one million and one-in-ten thousand. Neither end of this “acceptable risk” range is firmly rooted in policy, but a one-in-one million risk is roughly consistent with the traditional concept of a de minimis (or trivial) risk. If there are 332 million people in the United States, however—and assuming (a big assumption) that each person faces the maximum allowable risk—we would expect any particular carcinogen regulated at the more stringent end of the range to cause 332 excess cancers within the country. And for a one-in-ten thousand risk, the number would be 33,200 excess cancers. Added to that would be risks from other hazardous air pollutants, including “synergistic risks,” which occur when combinations of chemicals pose risks greater than the sum of the risks posed by each individual chemical.

Another CAA regulatory program is New Source Performance Standards, based on “the Best System of Emission Reduction,” considering cost, any non-air quality impacts, and energy requirements. That program has served two primary purposes. NSPS standards for sources that are also regulated under the criteria program set a floor beneath which other technology-based standards (specifically, Best Available Control Technology and Lowest Achievable Emission Rate, which apply to new major sources or significantly modified major sources of criteria pollutants) cannot lawfully drop. Also, the NSPS program acts as a gap-filler, allowing EPA to regulate new and existing sources that fall at least partially between the cracks in other CAA programs, for example regulation of methane emissions from oil-and-gas production facilities.

EPA’s air quality regulatory programs are hobbled in their ability to protect public health by agency decisions to base regulatory actions on emission estimates rather than on actual emission measurements. In fact, more than five decades after the act was passed, EPA continues to designate areas of the country as “unclassifiable,” meaning that the agency believes it is unable to determine whether health protection standards are met “on the basis of available information.” In her book Next Generation Compliance, veteran environmental regulator Cynthia Giles notes, “When EPA monitors actual emissions, it finds that pollution is much worse than is being reported. . . . The net effect: a lot more pollution [goes] into the surrounding communities than . . . revealed by the estimated emissions.” Here is one example: When EPA set its action level for benzene ambient concentrations at the fencelines of oil refineries, the agency selected a concentration that no refinery would exceed as long as its estimates of fugitive emissions were accurate. Nonetheless, in 2018-2019, benzene concentrations in air around 10 oil refineries blew that limit. The offending refineries include operations by major players such as Chevron, Shell, Marathon, Valero, and BPF Energy. The result provides some insight into the efficacy of using unverified industry estimates of emissions as a basis for protecting public health.

In a 2008 case, NRDC v. EPA, the D.C. Circuit upheld the agency’s 2006 analysis of risks from the synthetic organic chemical industry’s hazardous air pollutant emissions. EPA relied on the seven-year-old results of an American Chemistry Council questionnaire, filled out by member companies, with a 44 percent response rate. In other words, EPA based its analysis that was supposed to provide the public with an ample margin of safety on old industry estimates from a minority of the regulated community. Why? The agency explained that, among other things, reliance on “industry sources is a well-established practice” and it would have been “very costly and time-consuming” for the agency to require collection and submission of data. Upholding EPA’s decision, the court explained, “We generally defer to an agency’s decision to proceed on the basis of imperfect scientific information, rather than to invest the resources to conduct the perfect study.”

Recently, the agency has sought to grapple with the excess emissions caused by “startup, shutdown, and malfunction” events, which can dwarf the emissions that are subject to permit limits. Similarly, the agency is revisiting exemptions for “fugitive emissions”; that is, emissions that “could not reasonably pass through a stack, chimney, vent, or similar opening.” Both of these emission categories are significant contributors to the air pollution problem that are not adequately accounted for in the current permitting regime.

Regulation of odors could help mitigate these deficiencies and focus EPA and state agencies on avoiding local impacts. These often fall on lower-income and minority communities. The problem has been amply demonstrated. The 2002 Third Circuit case of South Camden Citizens in Action v. New Jersey Department of Environmental Protection concerned an air emissions permit issued for a new facility in a neighborhood that already had “two Superfund sites, several contaminated and abandoned industrial sites, and many currently operating facilities, including chemical companies, waste facilities, food processing companies, automotive shops, and a petroleum coke transfer station,” not to mention permits that had been issued for “operation of a regional sewage treatment plant, a trash-to-steam incinerator, and a co-generation power plant.” The neighborhood comprised 63 percent African American, 28.3 percent Hispanic, and 9 percent white residents.

Occasionally, one hears the argument that residents of fenceline communities must have decided, voluntarily, to move close to pollution sources. Of course, Congress intended the Clean Air Act to result in healthful ambient air regardless of a neighborhood’s location. In addition, however, the assumption that residents of overburdened neighborhoods are volunteers is flawed. A 2023 environmental justice lawsuit, Inclusive Louisiana, et al. v. St. James Parish, was based on allegations that, in 2014, St. James Parish adopted a land use plan that steered industry to the parish’s 4th and 5th Districts, which are majority African American, by designating large tracts of property in those districts as “future industrial.” The lawsuit also alleged that the 2014 plan created industrial buffer zones for the parish’s white-majority churches but not Black-majority churches. (In Louisiana, a “parish” is the equivalent of a county.) The court dismissed the case on statute-of-limitations grounds but held that it “cannot say that [the plaintiffs’] claims lack a basis in fact.” Especially given the lack of specific environmental justice legislation, regulation of odors would provide a tool for mitigating the effects of such disproportionate environmental impacts.

Is it practical for EPA to set a welfare standard for odors? It is. One approach to odor regulation is the narrative standard. For example, the Virginia Administrative Code’s Standard for Odor reads, “No owner or other person shall cause or permit to be discharged into the atmosphere from any affected facility any emissions which cause an odor objectionable to individuals of ordinary sensibility.” Narrative standards are relatively common in Clean Water Act regulation. The U.S. District Court for the Northern District of Florida explained the concept in its 2012 opinion in Florida Wildlife Federation v. Jackson by way of analogy: “a state could adopt a numeric speed limit—70 miles per hour—or a narrative standard—don’t drive too fast. Or a state could adopt a combination of both—don’t drive over 70, and don’t drive too fast for conditions.”

In contrast, Colorado’s odor emission regulation takes a numeric approach. The idea is to determine how many times a sample must be diluted before becoming undetectable: “For areas used predominantly for residential or commercial purposes it is a violation if odors are detected after the odorous air has been diluted with seven (7) or more volumes of odor free air.” The approach is analogous to EPA Method 9 opacity readings, which require trained smoke readers to evaluate emission plumes. Similarly, most odor tests still require human noses, but those noses are deployed systematically, with the aid of a mechanical dilution device such as an olfactometer. The Bay Area Air Quality Management District’s “Odorous Substances” regulation provides, “a diluted sample shall be deemed odorous if during evaluation . . . at least two of the [three] subjects gave negative responses to at least 8 of the 10 odor-free or ‘blank’ presentations and affirmative responses to at least 8 of the 10 sample presentations.” The Bay Area regulation applies after 10 or more people complain to the Air Pollution Control Officer within a 90-day period “until such time as no citizen complaints have been received by the APCO for one year.”

Another approach is to develop ambient concentration standards for specific chemicals, derived from odor measurements. In a 2015 paper, “Approaches to Derive Odor-Based Values,” the Texas Commission on Environmental Quality’s Toxicology Division discusses and provides a list of publications that describe standardized methods for odor measurement. The report highlights odor threshold studies from a 1992 EPA study and a 1989 American Industrial Hygiene Association report. Under this approach, for example, a 1-hour average ambient reading of 30 parts per billion by volume of hydrogen sulfide could be a violation of an odor regulation. Of course—under an EPA welfare standard for odors—no individual source would necessarily be in violation. Instead, the state’s attainment status for the secondary odor standard would be at risk and the state, ideally, would take action to remedy the problem.

For some odors associated with some industries, surrogate odor values may be useful. Moreover—as with all environmental monitoring—technology is constantly improving and the ability to conduct widespread ambient monitoring with “electronic nose” technology may not be far off.

There are no panaceas. Just as all Clean Air Act programs suffer from gaps and mistakes, regulation of odors under the criteria program would pose frustrations. As a secondary, welfare standard, an ambient NAAQS for odors would lack a statutory attainment deadline; instead, attainment would be required on “the date by which attainment can be achieved as expeditiously as practicable after . . . such area [is] designated nonattainment.” This lack of a specific attainment deadline, of course, makes ambient regulation of odors more practical in the short-run and less scary for EPA. It also opens the door for serious foot-dragging that will require political will to overcome. But at least it would provide a handle that would allow reasonably enlightened regulators to insist on fenceline improvements.

Part of the genius of the Clean Air Act is that its overlapping programs can help make up for the shortcomings of individual programs. For example, hazardous air pollution standards result in reduction of ozone precursors that states might never have summoned the political will to mandate in discretionary parts of their state implementation plans. The ozone ambient standard helps limit volatile organic compounds (as ozone precursors) that might otherwise have only been subject to emission standards based on estimates of “acceptable” risk from individual chemicals.

Congress’s failure to enact environmental justice legislation creates a large gap in protection for some of our most vulnerable communities—those near the fencelines of industrial facilities. Regulation of ambient odors as a criteria pollutant would be one step toward addressing that gap. And with practice, and improving technology, an ambient regulation for odors could represent significant progress in realizing the Clean Air Act’s vision: “to protect and enhance the quality of the nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.”

OPENING ARGUMENT The nose is a sensitive instrument for detecting chemicals. EPA can take advantage, making progress in public health protection, and improving quality of life for those who already shoulder a disproportionate share of the burdens associated with industrial society.

Whole-of-Society Is Necessary, but Not Easy
Author
Jordan Diamond - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
1
Jordan Diamond

It will surprise no one that Inflation Reduction Act implementation is a critical priority for 2024. Eighteen months after the IRA was signed, we’re starting to see the shape, scale, and strategy of some of its programs, and how its nearly $400 billion is being put into play to help realize the transition to a clean energy economy.

One of the most important aspects of the IRA is that it embraces a whole-of-society approach, with its financial incentives designed to provide support across sector value chains. It’s hard to overstate how important this approach is to enable systemic change at the scale needed to shift our economy. Take electric vehicles, for example. You can’t increase sales without increasing charging infrastructure; you can’t increase production without increasing critical minerals mining; and so on.

Last November, ELI’s GreenTech initiative worked with the Georgetown Climate Center and Georgetown Environmental Law & Policy Program to host a multi-stakeholder discussion around IRA implementation. (You can view recordings and other materials at greentechconference.org.) Featuring expert speakers across a variety of industrial sectors and jurisdictional scales—with particular emphasis on power, transportation, and carbon management—the discussion looked at the landscape of the IRA and homed in on where we are seeing progress, where we are encountering obstacles, and where there are gaps.

Those conversations highlighted how many programs are being operationalized that truly do embrace a complete value chain or full lifecycle approach, and this is cause for optimism. To stay on the electric vehicles example, increased charging infrastructure requires increased transmission, which we are trying to figure out how to accelerate; increased critical mineral mining must occur domestically and faces challenges ranging from general public concern to concerns about specific sites; etc. At the same time, many questions remain unanswered and tensions unaddressed, where more work is needed to find the path forward.

Which brings us to the other aspect of a whole-of-society approach, which isn’t about the economy, or sectors, or siloed functionalities—it’s about people. It’s about ensuring everyone is considered in the clean energy transition, that no one is overlooked. On this front, the Biden administration’s Justice40 initiative is key. To date we’ve seen the development of screening tools, equity action plans, community benefits plans, and as I’m writing this, EPA announced it is readying $2 billion in environmental justice spending, arguably the largest allocation ever. But we are still waiting to see if these efforts yield the intended benefits. Returning to the EVs example, novel approaches may be needed to ensure benefits aren’t limited to high-income areas and to elevate community voices in siting decisions.

The clean energy transition is a transformation of our economy, and it truly requires a whole-of-society approach. We’re on the track, but it’s neither easy nor simple, and we have a ways to go.

On "Whole of Society" Approach.

EJ, Climate Change Procedures Result in CEQ NEPA Controversy
Author
David P. Clarke - Writer & Editor
Writer & Editor
Current Issue
Issue
1
David P. Clarke

Immediately upon assuming office in 2021, President Joe Biden declared a “whole of government” commitment to tackling climate change and environmental justice. Now, with the White House Council on Environmental Quality’s proposed rules placing Biden’s commitment at the center of National Environmental Policy Act reviews, environmentalists and Democratic lawmakers have voiced strong support.

But equally strong opposition has come from 17 governors and Republican members of the Senate Environment and Public Works Committee, among others, ensuring that administration attempts to advance climate and EJ policies through CEQ will face pushback.

The disagreement centers on whether NEPA is a “purely procedural statute.” CEQ acknowledges that view as “correct,” but nevertheless proposes removing NEPA-is-procedural language from the regulations because the council considers such a view of the law’s purpose “inappropriately narrow” and a limitation that minimizes its vision. Lawmakers enacted an “ambitious and visionary national policy” aimed at promoting environmental protection for present and future generations, CEQ states.

The council proposes a new requirement for the environmental documents created during NEPA reviews. When considering alternatives, project reviewers must explicitly identify “environmentally preferable” alternatives, defined as those that would maximize environmental benefits, such as addressing climate change or minimizing effects on EJ communities.

Applauding CEQ’s proposal, the Natural Resources Defense Council, National Audubon Society, and several EJ advocacy groups state that, while NEPA is “procedural in nature,” procedure and substance are “integrally connected.” NEPA’s procedures aim to fully investigate a project’s environmental impacts toward the substantive goal of creating and maintaining conditions that will allow current and later generations to exist in “productive harmony” with nature, the groups argue. They “strongly support” CEQ’s proposal to restore and strengthen a requirement for federal agencies to consider a “reasonable range of alternatives” to a project to lessen climate and EJ impacts.

In a letter to CEQ Chair Brenda Mallory, more than 80 Democratic House members and 11 senators also extol the proposal, asserting that climate and EJ considerations are urgently needed and are “consistent with CEQ’s regulatory authority.” Climate change effects are environmental effects, but despite a “clear obligation” to robustly analyze climate issues, some federal agencies conduct “little or no” analysis, they write. While offering their support for the changes, the Democratic attorneys general of 20 states and the District of Columbia urge “strengthening” certain provisions—for example, the analysis of cumulative effects on communities with EJ concerns and of climate change effects at specific points during NEPA reviews.

In contrast, GOP senators in their own letter to Mallory accuse CEQ of willfully misinterpreting bipartisan reforms adopted in the 2023 Fiscal Responsibility Act, which included the “most substantive” NEPA amendments since the law’s enactment. FRA reforms were intended to streamline an “overcomplicated, needlessly burdensome” NEPA environmental review process. But, instead, CEQ has added more uncertainty and potential legal liability into an “already labyrinthine process,” and has undermined and politicized the FRA’s agreed-upon revisions, the senators write.

Likewise, 17 GOP governors opposing CEQ’s proposal assert it will “undermine” several laudable FRA reforms and will undo the Trump administration’s 2020 NEPA rule, which was designed to increase the process’s efficiency and effectiveness. The rule made no mention of EJ. CEQ’s proposal will decrease efficiency and “drastically” increase the potential for NEPA litigation, the governors concur, and reject CEQ’s proposal to eliminate language describing NEPA as a purely procedural statute, noting that CEQ admits that the description is “accurate.”

Alaska’s Department of Natural Resources in its comments expresses general support for the proposal, but cautions that given the litigious nature of federal permitting, it is “of utmost importance” to avoid ambiguity or “additional process” that enables project opponents to make viable projects “economically unfeasible” through costly litigation and delays. The state emphasizes that NEPA must remain a purely procedural statute and opposes CEQ’s proposal to “recast” NEPA as “the primary regulatory mechanism” for advancing substantive EJ and climate goals. It is “inherently inappropriate” to include substantive requirements in NEPA, and the FRA reforms did not give CEQ any mandate that CEQ could “interpret or clarify” regarding those issues, Alaska’s letter argues.

Lawyers tracking CEQ’s proposal say that, going forward, litigation will undoubtedly focus on the adequacy of EJ and climate change analyses.

EJ, Climate Change Procedures Result in CEQ NEPA Controversy.

Tribes Guaranteed Protection By Treaty
Author
Emily Bergeron - University of Kentucky
University of Kentucky
Current Issue
Issue
5
Parent Article
Emily Bergeron

Where we are born, live, and work significantly impacts our health. Relevant conditions are known as the social determinants of health. SDOHs include housing, education, income, healthy food, and environmental quality. Some communities bear a disproportionate burden of health risks because of inequities in SDOHs. A more just distribution of (or, more hopefully, an overall reduction of) risk requires considering the cumulative nature of these effects and the intersection between environmental burdens and benefits.

Despite treaty and trust obligations, and due to land tenure issues and other federal policies, Native Americans and Native Alaskans face such cumulative impacts, dealing with health and environmental problems at markedly higher rates. Nearly 25 percent of Superfund sites are in Indian Country; 16 percent of all Native Americans live within three miles of such sites. Over 600,000 Native Americans live near nuclear test sites, uranium mines, power plants, and toxic dumps.

Exacerbating these environmental burdens are multiple bad SDOHs. For example, nearly one in four Native Americans exist at or below the poverty level, more than twice the rate of white people. Hunger and malnutrition persist in Native American communities. One Native American Agriculture Fund study found that 56 percent of respondents experienced food insecurity during the pandemic; 31 percent very low security. This is partly attributable to a long history of social, political, and economic exclusion, forced removal, and a failure to meet specific treaty and trust obligations. Further, land use and zoning policies have disrupted traditional practices, such as cultivating Indigenous foods, hunting, and fishing. Native Americans are more than twice as likely to die due to diabetes than non-Hispanic White people, showing current disparities in healthcare access.

Better enforcement of existing policies could make a striking difference. Food security, for example, could be improved simply by meeting existing treaty and trust obligations. From 1778 to 1871, the United States entered into nearly 400 treaties with tribes across North America, many of which stipulated the government supply Native nations with food, agricultural lands, and farming implements or livestock. Treaty-guaranteed hunting and fishing rights also support subsistence.

Telling of the commitment toward protecting these rights is the Ninth Circuit’s 1976 determination in U.S. v. Washington that treaty rights guaranteed tribes the amount of fish necessary to provide them with a moderate living, but no more. In the 2018 decision in Washington v. United States, the Supreme Court deemed it impossible to uphold treaty obligations simply by allowing access to waters where the state had already destroyed the fishery, ordering the state to remove and replace about 1,000 culverts that blocked migrating salmon. However, this slow, piecemeal enforcement of existing obligations cannot compensate for centuries of failures to provide for the most basic human right.

In the environment, interrelated elements add up to a unified whole, and no component can be wholly understood separately from the system in which it exists. The same is true of environmental justice. It is scientifically well-recognized that risks from environmental pollution are exacerbated when a community faces multiple stressors. And yet, issues such as fair housing, food sovereignty, and environmental justice have operated in distinct siloes in policymaking and advocacy for decades.

The basis for a more inclusive definition of “environment” exists. The Bureau of Indian Affairs’ NEPA Guidebook broadly explains environmental effects include “ecological (such as the effects on natural resources and the components, structures, and functions of ecosystems) [and] aesthetic, historic, cultural, economic, social, or health” impacts. Why not extend this broader definition beyond the confines of this procedural law, and also consider multiple stressors and cumulative impacts?

Funding Can Catalyze Collaboration
Author
Hilary Jacobs - Beveridge & Diamond
Beveridge & Diamond
Current Issue
Issue
5
Parent Article
Hilary Jacobs

With the passage of the Inflation Reduction Act and the Infrastructure Investment and Jobs Act, the federal government has made billions of dollars available to reduce greenhouse gas emissions and transition to a renewable energy economy. In particular, the IRA directs $40 billion toward disadvantaged communities and communities with environmental justice concerns.

The White House Council on Environmental Quality defines “disadvantaged” as any census tract that experiences certain socioeconomic and environmental, climate, or other burdens. This definition is designed to capture those communities that historically have experienced not only excessive pollution but also under-investment in critical resources such as housing, transportation, water and wastewater, and health care—under-investment that can often be traced back to redlining.

Parts of the two new laws require agencies to prioritize projects in disadvantaged communities. Agencies in turn have begun to require grantees to collaborate with a wide range of stakeholders—including but not limited to communities and businesses—to carry out a grant’s requirements. For instance, the Department of Energy requires many funding applicants to submit a Community Benefits Plan on engaging the community, investing in the American workforce, advising diversity, equity, inclusion, and accessibility, and supporting the administration’s Justice40 Initiative directing 40 percent of overall benefits from federal investments to disadvantaged communities.

CBPs typically require applicants to engage a broad set of stakeholders in project planning, including labor, local businesses, local and tribal governments, and community-based organizations. Applicants must involve local interests in decisions surrounding how a project will be sited, designed, and operated. DOE encourages applicants to enter into community benefits agreements, community workforce agreements, and pacts with local stakeholders to ensure the distribution of community and economic benefits, including access to quality jobs and mitigation of any adverse project impacts. Once an applicant is selected, its CBP will become a contractual obligation of the funding recipient.

For its part, EPA requires applicants for certain IRA and IIJA funding to undertake similar multi-sector engagement efforts. The agency’s long-standing Environmental Justice Collaborative Problem-Solving Agreement Program, which received additional funding under the IRA, anticipates awarding $30 million through cooperative agreements for projects that support community-based nonprofit organizations in their collaboration with a broad set of stakeholders to develop solutions addressing environmental or public health issues in disadvantaged communities. Examples of projects EJCPS has funded include brownfield remediation, trash cleanup, reduction of lead exposure, and water quality monitoring.

Federal funding provides agencies with a unique opportunity to require that grantees conduct robust engagement with potentially affected stakeholders about project impacts, engagement that can lead to formal partnerships, memorialized by binding agreements between grantees and communities, and grantees and the government. These collaborations can enable businesses and industry to undertake performance-enhancing projects supported in part by federal dollars, while simultaneously addressing environmental justice concerns and advancing community interests.

In the absence of sweeping federal environmental justice legislation, and in the presence of legal challenges to government programs designed to address historic injustices, federal grants have a potential to catalyze real change for communities. Though grant periods vary, they can last upward of 12 years, meaning these changes can have real staying power, outlasting political shifts and changes in administrations.