environmental justice | Environmental Law Institute

The Pathway Forward for the Power Sector

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Author

Roger Martella - General Electric

General Electric

Current Issue

September-October 2021

Issue

Parent Article

The Debate: Net-Zero by 2050: How Should We Achieve a Carbon-Free U.S. Economy?

When it comes to achieving President Biden’s goal of a 50-plus percent reduction in greenhouse gas emissions by 2030, not all sectors are created equal. Although the president has not set sector targets, basic math teaches that because 50 percent is an average, some will see more ambitious targets in the upcoming decade.

Among those sectors generating higher expectations is the power sector. Observers see emissions from power easier to abate by 2030 relative to transportation, industry, and agriculture. Thus, much attention is focused on the technology, innovation, policy, and law to drive deeper decarbonization of power.

The pathway for power begins with where it’s come from. The International Energy Agency provides a starting point: in the 14 years between 2005 (the Biden baseline) and 2019, emissions from the sector declined 31 percent. To meet the president’s average goal, the sector has 19 percent to go, but expectations are to over-perform.

To achieve deeper decarbonization beyond 50 percent by 2030, three developments must align.

First, accelerating renewables is the most immediate priority, but challenges must be addressed. For example, while the next generation of offshore wind technology is ready to be installed, regulatory delays have stalled deployment. Here, the Biden administration in a short time has worked to address permit bottlenecks and approved the first full-scale offshore wind project, Vineyard Wind. But to succeed on this timeline will require more regulatory resources and streamlining. The administration, Congress, industry and stakeholder will have to work closely together to properly define tax incentives, fiscal stimulus, and tariff policies to ensure investments will lead to measurable benefits.

Second, natural gas is key to any solution. The numbers speak for themselves: between 2005 and 2019, emissions went down steeply while natural gas use doubled to 38 percent of the nation’s generation. Looking forward, the gas sector similarly can help reduce emissions by strictly controlling methane. The country can also switch from coal to natural gas, providing a baseload that serves as a force multiplier for more renewables. Under the IEA’s projections, power emission reductions will surpass 50 percent and reach 53 percent (vs. 2005) while gas grows to 42 percent of generation in 2030. Looking beyond this scenario, more switching from coal to gas can drive emissions down further, at least 65 percent, with reductions of 70-plus percent with more renewables.

Third, reducing emissions is not enough. The grid is confronting growing risks in extreme weather events, increasing demand, more variable energy, and cyber security. Modernizing the grid, including physical infrastructure and digital upgrades, to make it more resilient while reducing emissions are mutually achievable goals.

Although power can over-perform this decade, innovation is the most important element of longer-term success. Innovating breakthrough technologies such as carbon capture and sequestration, hydrogen as a fuel, and small modular nuclear reactors will be key to realizing the next tier of decarbonization goals while ensuring a resilient energy ecosystem.

At the outset, there is reason for optimism about the success of these goals regardless of legal regimes. The IEA scenario above shows the power sector realized significant reductions during an era without comprehensive regulation. This is due to innovation, corporate social responsibility initiatives, subnational regulations including renewable energy standards, and the impact of NGOs.

Having said that, well designed law and policy can bring more certainty to outcomes. With a closely divided Congress, piecemeal approaches are more likely than a comprehensive package for climate generally or power specifically. On the Hill, it will be key for Congress to create the right reforms for streamlining renewable approvals while creating financial incentives for renewables, grid improvements, and breakthrough technologies and pilot projects. These concepts warrant bipartisan support.

The Environmental Protection Agency is likely to complement this approach with a focus on emissions from new and existing coal plants and gas turbines. Regulatory efforts to focus on technology-based standards “inside the fenceline” will help avoid the legal controversies and delays of the Clean Power Plan.

There are also other policy and legislative proposals, including clean energy standards and carbon prices. These warrant study for creating ground-up solutions that can be more efficient than piecemeal approaches. While proposals differ in design and details, key to success will be technology-neutral policies that focus on achieving emission reduction goals and letting technology and innovation achieve those goals, as opposed to prejudging technologies at the outset of these paths to deep decarbonization.

Finally, the Biden administration has been right to elevate the role of environmental justice, focused on ensuring that disadvantaged and disproportionately impacted communities avoid harms and realize benefits from clean energy opportunities. The power sector should partner with the administration and local communities to consider EJ issues in the siting and permitting of energy facilities and infrastructure, as well as opportunities to develop jobs and to ensure affordable and reliable electricity for all communities.

Roger Martella is vice president, chief sustainability officer, at General Electric. The opinions are the author’s and not any employer.

Building Solar Justice

Read more about Building Solar Justice

Author

Philip Warburg - Boston University's Institute for Sustainable Energy

Boston University's Institute for Sustainable Energy

Current Issue

September-October 2021

Issue

We are living in a time of rage about forgotten and neglected segments of American society. That rage has been directed at police brutality targeting African Americans. It has focused attention on the higher Covid-19 death rates and slower access to vaccination among people of color. And it has surfaced a panoply of economic injustices that stand in the way of lower-income Americans meeting basic needs with the limited resources at their disposal. Unequal access to clean, affordable energy is one of those injustices.

On the campaign trail and now in the White House, President Biden has signaled his determination to make environmental justice a centerpiece of building a more robust, sustainable energy economy. Breaking through the barriers that have slowed the adoption of solar power by low-income households and communities of color needs to be part of that agenda.

A key messenger of the Biden administration’s commitment to greater energy equality is Shalanda H. Baker, recently appointed deputy director for energy justice at the Department of Energy. A law professor on leave from Northeastern University, Baker recently published a manifesto called “Revolutionary Power: An Activist’s Guide to the Energy Transition.” In it, she decries “climate change fundamentalism,” a tendency among mainstream — predominantly white — environmental leaders to focus on maximizing the shift to non-carbon fuels while ignoring the deep inequities embedded in many proposed reforms. Revolutionary power, as she sees it, is “an approach that centers the voices, hopes, and dreams of the poor, people of color, Indigenous people, and those marginalized by the old energy system in the redesign of the new system.”

One of the more powerful, though lopsided, policy reforms of the solar era is the federal Investment Tax Credit. Since the ITC was adopted in 2006, the solar industry has grown by an average of 52 percent per year, in no small part due to the economic boost that the tax credit has catalyzed. While the American Recovery and Reinvestment Act of 2009 allowed the tax credit — then set at 30 percent — to be converted to a grant for certain businesses, Congress stopped funding the grants program in 2011. Since then, the ITC has been the exclusive domain of homeowners and businesses with sufficient tax liability to take advantage of the credit. Non-profit organizations and the low-income communities they serve have been outside that loop of federal largess.

While the federal government has done little to strengthen solar access by low-income households and minority populations, the spirit of inclusion has found its voice elsewhere — in states and cities large and small, in community organizations seeking energy justice, and in civic-minded entrepreneurs using a variety of policy and financing tools to give racially and ethnically diverse, low-income Americans a stake in our clean energy future.

California was an early pioneer in breaking the income barrier for solar ownership. In 2006, the California Assembly ordered that at least 10 percent of the $2.2 billion ratepayer-funded California Solar Initiative be dedicated to bringing the benefits of solar energy to low-income households. Three years later, the Single-Family Affordable Solar Homes (SASH) program was launched, with a budget of $108 million to be spent on up-front support for solar arrays installed on homes with household earnings no higher than 80 percent of the area median income. Small, one-kilowatt photovoltaic, or PV, arrays were fully subsidized under SASH for the lowest-income households; others received partial support for higher-capacity systems. Foundation grants and donated equipment helped close the funding gap for these larger installations.

Grid Alternatives, the non-profit hired to administer SASH, has done much more than facilitate the adoption of solar power by low-income households. Though it relies heavily on short-term volunteers to assist with PV installations, it has also made workforce development a priority, partnering with job training programs that work with re-entry populations and at-risk young adults. Job trainees have logged in nearly a quarter of the 84,000 workdays at SASH installation sites.

By 2015, GRID Alternatives had installed 4,500 PV arrays. That same year the California Public Utilities Commission allocated another $52 million to SASH and authorized a form of third-party ownership that stretches the available funds to a greater number of households. Under this model, homeowners do not own the PV on their rooftops, but they receive bill credit for all the solar electricity. Sunrun, a leading solar installer, is the third-party owner of these systems. Along with being compensated by SASH for the free solar electricity that customers receive, Sunrun earns Solar Renewable Energy Certificates attributable to the solar power. As a for-profit company, it also qualifies for the federal Investment Tax Credit.

As of July 2020, cumulative SASH installations had reached 9,200 low-income households — a doubling of the program’s impact since 2015. But as most of the solar arrays installed by SASH since 2015 are owned by Sunrun, this success has come at a price. To solar advocates who see ownership as fundamental to advancing energy justice, this new brand of SASH participation falls short of the imperative to build new wealth in low-income communities, along with easing household energy burdens.

Lower rates of solar adoption in low-to-moderate income communities have been well documented in recent years. Wide disparities in solar deployment have also been found between predominantly white communities and those with Black and Hispanic majorities, even after correcting for lower rates of home ownership in the latter. Further afflicting communities of color is the higher level of exposure to environmental harms caused by polluting factories, abandoned brownfield sites, adjacent highways, and deteriorated housing with hazards such as lead, mold, and asbestos.

To narrow these racial, ethnic and economic gaps, a number of states have begun to focus their solar outreach efforts on underserved areas variously defined as environmental justice or, in California’s case, “disadvantaged” communities. In 2018, the California Public Utilities Commission adopted a slate of new programs to provide these communities with easier access to renewable energy. One of them is the Disadvantaged Communities–Single-family Solar Homes program, known as DAC-SASH. It too is run by GRID Alternatives using a data resource called CalEnviroScreen to locate census tracts bearing the state’s heaviest environmental burdens that are also afflicted by poverty, high rates of unemployment, low educational attainment, and linguistic isolation.

Operating within these census tracts, GRID Alternatives has faced costly hurdles in identifying low-income homeowners who are ready to make the leap to photovoltaics. “For many communities of color in California, solar is not number one on people’s wish list,” says Danny Hom, a member of GRID Alternatives’ strategy team. “It is regarded as something for the richer and whiter communities.”

Financially strapped homeowners are wary of being preyed upon by purveyors of home improvement products and services that sound better than they may turn out to be. Moreover, at a time when the Covid-19 pandemic has taken a particularly heavy toll on household budgets, many recoil from the prospect of spending money to repair an outmoded electrical system or an aging roof before solar can be safely installed.

While 35 percent of low-income Californians own their homes, the rest are renters who must rely on their landlords to tap solar on their properties. Even if landlords do so, there is no guarantee that the benefits will trickle down to tenants. The Solar on Multifamily Affordable Housing program seeks to address this problem, focusing, like DAC-SASH, on disadvantaged communities. Funded by up to $100 million per year in greenhouse gas allowance payments from the state’s investor-owned utilities, SOMAH offers up-front incentives to multi-family building owners who install photovoltaic arrays, provided that tenants receive at least 51 percent of the generated power as credits on their electric bills.

Across the continent, the District of Columbia has made its own strides toward solar democracy. In 2017, it launched a Solar for All program that set a target of supplying the benefits of solar power to 100,000 low-income households by 2032. Under the terms of this program, income-qualified households can expect at least a 50 percent reduction in their pre-solar electric bills. Funding is generated by alternative compliance payments made by the local utility, PEPCO, to comply with one of the nation’s most ambitious renewable portfolio standards, which requires that 50 percent of the District’s retail electricity come from qualifying renewable sources by 2032.

In Solar for All’s pilot phase, the D.C. Department of Energy and Environment made a number of grants to field-test a range of approaches to expanding low-income solar access. Single-family homes have been one target, with cost-free PV installations being offered to participating households.

Solar United Neighbors, a local non-profit, was one of two organizations focused on single-family homes during the pilot phase. SUN’s recruitment efforts demanded an intensive commitment of staff resources to community meetings and follow-up with potentially interested homeowners.

“For eighteen months we were out in the community every week — several times a week sometimes. We went to civic association meetings, Advisory Neighborhood Commission meetings, all the way down to districts inside of every ward,” recalls Yesenia Rivera, SUN’s director of energy equity and inclusion. Senior citizens were particularly interested in Solar for All’s offering. “It’s an easy way for seniors to age in place and reduce some of the burden because they’re on a fixed income. Everything else keeps going up, but this lets you control your electric bill.”

There were obstacles, however, to bringing single-family households in from the cold. Before solar could be effectively deployed, funds were often needed to make electrical upgrades, roof repairs, and other structural improvements. SUN had limited success in securing funds from home energy conservation programs such as the federally supported Weatherization Assistance Program. In all, SUN landed solar arrays for 73 single-family homes — a small number, but Rivera says that it is “a pathway to prosperity” for the participating families.

Beyond the painstaking work involved in placing solar on single-family homes, Solar for All faces a numerical challenge as it works toward the District’s 100,000-solar-household goal: fewer than 92,000 households in the District pay their own electric bills; the rest live in master-metered public housing. It was clear that the program’s implementers would have to come up with alternative ways to pass along solar benefits to these households.

The National Housing Trust, a nationwide non-profit with a strong D.C. presence, took up this challenge. In the first two years of Solar for All, NHT installed solar on 14 of the housing projects it owns and operates in the District, serving 761 low-income households. “The idea is that the program should be cost-neutral to the property owner,” reports Andrew Martin, asset manager at NHT. “Any savings realized in lower energy bills go toward providing direct services to residents or upgrades to common spaces at the property.” These have included community meals and groceries for residents, rent relief to families affected by Covid-19, free Metro cards and other means of transportation, improved security, fitness classes, and intergenerational art classes.

Free subscriptions to community solar projects are another vehicle being used to reach low-income D.C. residents through Solar for All. Unlike Illinois and Minnesota, where a number of shared solar facilities have been built on open farmland many miles from the subscribers they serve, there is little open land that can be deployed for solar in the District of Columbia. Instead, churches and commercial buildings are typical hosts of community solar projects.

One of these projects draws solar power from a 43-kilowatt rooftop array and a 125-kilowatt solar canopy at the Dupont Park Seventh Day Adventist Church in Southeast D.C.’s Ward 7 neighborhood. The project’s developer, a non-profit called Groundswell, channels 100 percent of the electricity from these installations to 48 low-income families, using funds from Solar for All. Savings per family are estimated at $500 per year — about half the average annual household bill for electricity, says Emily Robichaux, Groundswell’s chief financial officer. At three of the projects Groundswell has developed in D.C., a fourth-generation, minority-owned local business has taken the lead on construction.

Speaking to the value of siting projects like this in the communities they serve, Robichaux says: “We have this abundant renewable resource at our fingertips. How can we make it something that drives economic development in communities that have been excluded from the clean energy sector?”

Solar for All initially provided full grant funding for community solar projects like those developed by Groundswell, but now these projects receive an incentive per installed watt that falls short of covering costs. Robichaux notes that the feasibility of these projects therefore hinges on third-party financing by for-profit investors with tax liability sufficient to draw on the federal tax credit. The tax credit has already dropped from 30 percent to 26 percent and, by 2024, it will have phased down to 10 percent for commercial solar installations and zero for residential systems. Robichaux argues that it should be maintained at its current level and should be convertible to a grant for non-profit solar developers like Groundswell as well as individuals with little or no taxable income, like many low- and moderate-income households.

A few years into its effort to bring the benefits of solar power to D.C.’s low-income community, Solar for All has begun to move the needle toward its 100,000 household goal. Not surprisingly, progress toward delivering solar to single-family residences has been slow, with only 382 home solar systems installed by the program as of March 2020. Recruiting participants house by house has been painstaking; less than complete funding for installations has dampened homeowner interest in the program; and the difficulty of pairing solar investments with necessary building repairs and energy conservation measures has highlighted the need for stronger inter-program coordination and substantially greater government support.

Much more promising are the projects that have delivered solar benefits at scale. Free subscriptions to community solar projects have reached over 6,000 households while another 5,600 residents of public housing equipped with solar arrays have benefited from a range of in-kind services offered by their building managers. To meet the 2032 goal, all these approaches will need to step up in the years ahead.

My home state of Massachusetts now gets over 18 percent of its electric power from the sun — a dramatic jump above solar’s tepid 2.3 percent share of electricity generation nationwide. The Solar Energy Industries Association estimates that solar power generated in the Bay State is sufficient to meet the needs of more than half a million households. What that number doesn’t reveal is how few low-income families benefit from PV on their homes.

“Exploring Equity in Residential Solar,” a study conducted by Synapse in 2019, found that there were 13 residential solar installations per 1,000 Massachusetts households with incomes below $75,000 — the statewide median income. In the $75,000 to $240,000 income range, solar installations were nearly three times more common. Disparities in disposable income are clearly a major contributor to this discrepancy, but tax incentives have widened the solar access gap. Both the federal tax credit for renewable energy investments and a 15 percent state investment tax credit are beyond the reach of most low-to-moderate income households.

The Solar Massachusetts Renewable Target program, adopted in 2018, counters at least some of the forces working against low-income solar. SMART is a tariff-based system that sets a fixed price per kilowatt-hour for the output of new solar installations, extending over 20 years. The tariff more than doubles for small PV arrays serving low-income households. Community solar projects with at least 50 percent low-income subscribers also qualify for a low-income escalator, as do property owners where all the solar electricity is credited to low-income housing.

Ben Underwood is the co-founder and co-CEO of Resonant Energy. Though it is a for-profit company, Resonant is a certified B Corp with a mission, as Underwood describes it, “to fundamentally change how the profits of the solar industry are distributed and whom they benefit.” Over the past four years, Resonant has installed more than 3.5 megawatts of solar power on affordable housing, individual homes, and houses of worship.

One of Resonant’s recently completed projects is a community solar installation at Temple Emunah in Lexington, a Boston suburb. Resonant’s team arranged for half the power generated by the synagogue’s solar parking canopies to reduce the electric bills of low-income customers in the same utility service area; the other half will offset Temple Emunah’s power consumption. Underwood and his colleagues identified a clean energy investor willing to finance the project, Cambridge-based Sunwealth. With 50 percent of the power going to low-income subscribers, the project qualifies for an elevated low-income tariff under SMART, making it both profitable for Sunwealth and a socially responsible investment.

Allan Telio is senior vice president at Nexamp, another Boston-based solar company that works on community solar projects in Massachusetts and several other states. Making these projects more accessible to low-income subscribers is one of his big concerns. Rather than having a single 50 percent threshold for SMART’s low-income community solar tariff, he suggests that the incentive for bringing in low-income subscribers should be proportional to the percentage of low-income subscribers that a developer enrolls in a project. “Companies that are more efficient at handling low-income customers would be rewarded by additional incentives. They would be compensated for the extra effort that they are putting in, and they would be able to reap more benefits by spending more time and focus in this area.”

Telio also favors making proof of low-income status less onerous and intrusive. “The hoops people are asked to jump through to prove that they are poor is a deterrent to the ability of these programs to be successful,” he warns. Demanding tax returns, Social Security numbers, and other personal information only heightens the suspicions of people who are already wary of outsiders coming into their communities to market their wares.

Along with his call for “100 percent carbon-pollution-free power” by 2035, President Biden has declared his commitment to giving underserved communities a stake in America’s clean energy future. There are several concrete steps his administration should take to deliver on this ambition.

Reshaping and revitalizing the now-fading renewable energy Investment Tax Credit is a top priority. By 2024, the ITC’s sunset will be nearly complete, with only a 10 percent tax credit still applicable to commercial and utility-scale solar installations and nothing available to homeowners. In addition to restoring the full tax credit and extending it for ten years, the credit should be convertible to an up-front grant for those who need it most: low-to-moderate income households and the non-profit organizations serving them.

Federal resources must also be freed up to prepare older homes for solar installation. To date, only a few jurisdictions have pried loose funds for roof repairs and electrical system upgrades from the Low-Income Home Energy Assistance Program and Weatherization Assistance Program. Earmarked funding for these outlays is essential, ensuring that the necessary resources do not encroach on existing functions of energy assistance programs.

To make solar power more broadly affordable, there needs to be better coordination among the federal agencies serving the energy, employment, economic development, and housing needs of environmental justice communities. The current fragmentation of these programs is itself a deterrent to energy justice.

If cost-effectiveness is defined as the ability to deliver the largest number of solar electrons to the grid at the lowest cost, utility-scale solar on open land is the hands-down winner. But equalizing access to energy ownership and energy security has its own social value. We need to bring that value to the households and communities that have been the primary victims of environmental neglect and racial discrimination.

California, the District of Columbia, and Massachusetts are just a few of the jurisdictions that have begun to venture down this path. They and others are worthy partners to the Biden administration as it delivers on its commitment to clean energy and environmental justice. TEF

COVER STORY “We have this abundant renewable resource at our fingertips. How can we make it something that drives economic development in communities that have been excluded from the clean energy sector?”

Reimagining the Future

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Author

John Pendergrass - Environmental Law Institute

LeRoy Paddock - George Washington University Law School

Environmental Law Institute

George Washington University Law School

Current Issue

July-August 2021

Issue

WE ARE now into our second half-century of environmental and natural resources law. President Nixon signed the National Environmental Policy Act on New Year’s Day 1970, making it a convenient marker for the birth of modern environmental protection. NEPA has been called the Magna Carta of environmental law, and it heralded a new era of federal legislation, including the Clean Air Act later that year and a whole roster of laws to follow. The federal acts, along with complementary state environmental statutes, have substantially reduced pollution, resulting in cleaner air, water, and soils. And species like the brown pelican and bald eagle have been brought back from the brink.

While critical progress has been made, significant gaps in environmental laws remain if the country is to achieve a more sustainable economy. Understanding that, the authors of this article convened a diverse group of leading environmental law experts to consider how the field might need to evolve to meet current challenges and those expected over the next decades. We characterize this effort as “Reimagining Environmental Law.” In many ways, it means as well reimagining the future.

Toward that end, ELI and George Washington University Law School convened two dialogues, first at the Wingspread Conference Center in Racine, Wisconsin, in March 2019, and second at Airlie House Conference Center in Warrenton, Virginia, in November 2019. Both centers have been settings for environmental conferences for decades, with Airlie House hosting a conference in September 1969 that recommended the creation of ELI. (Information about the meetings and the attendees can be found at https://www.eli.org/environmental-governance/reimagining-environmental-law.) This article reflects the discussions at Wingspread and Airlie House, subsequent discussions with participants, and research conducted by ELI and GW Law.

In consultation with our experts, the authors concluded that among the key challenges remaining for environmental law are climate change and decarbonization, nonpoint sources of pollution, materials conservation and reuse, and ecosystem degradation and biodiversity loss. In addition, environmental justice presents both an area of needed focus alone as well as attention in cutting across all the other challenges.

The climate change problem is well-known and well-documented. The participants saw the major challenge for environmental law as finding a way to support dramatic decarbonization of the economy to avoid potentially catastrophic impact of warming and supporting needed adaptation to change. While the pathways for a transition to a low-carbon economy are known, reaching the goal of 80 percent emissions reduction by 2050 will require legal changes at all levels of government, as well as accompanying economic, political, and social changes.

Essential to the transformation needed is an economy-wide price on carbon to provide the economic incentives to make the shifts necessary to reach zero emissions. This means imposing a direct cost on each ton of greenhouse gas emitted. To accomplish this, policymakers must create a system at the national level to achieve the necessary economy-wide shifts. The participants did not express a clear preference for a tax or a trading system that caps emissions from GHG sources, though an internationally agreed system would be preferable. Any such pricing or trading system will also need to mitigate the disproportionate effect it will have on those with lower incomes, due to the higher costs of fossil fuels coupled with higher proportions of income spent on energy. It likely will also require regulatory measures to assure that environmental justice communities do not continue to disproportionately bear the risks associated with co-pollutants, like sulfur dioxide and mercury.

Given the decades-long effort to place a price on carbon and the urgency, immediate action is needed using the tools already available to reduce GHG emissions. The nation will need to address this issue across the economy through a comprehensive approach like those identified in ELI Press’s Legal Pathways for Deep Decarbonization book, which lists more than a thousand recommendations for legal instruments covering all forms of GHGs and how they are generated and released.

We also need a comprehensive and just policy for adapting to the risks — and impacts — of climate change and for helping communities become resilient. This will require an appropriate model for assessing risk. Decisions must be based on the possibility of the uncertain but potentially massive catastrophic outcomes related to natural disasters, sea-level rise, drought, and biodiversity loss. Many of these processes will require legal tools, like the model laws being produced by volunteer attorneys based on the recommendations in Legal Pathways, but others will require public investment such as transit projects, and in making buildings safer, healthier, and more energy efficient. Electrifying and investing in grid updates will also be essential in this effort, creating a more robust, resilient, and efficient network. Government agencies need to plan for how they will deliver essential services amidst climate disruptions, and how they will coordinate with partners at other levels of government. In addition to significant adaptation actions, the law must account for the liabilities associated with unintended consequences of adaptation measures.

Federal, state, local, and tribal governments need to remove subsidies, including tax breaks and other incentives, for fossil fuels and carbon-intensive industries. These governments will also need to reduce or remove regulatory barriers related to decarbonization of the economy while promoting social equity at every stage and level.

Government policies are needed to provide incentives for innovation and investment toward a carbon-free future. This will be particularly important in the absence of a price on carbon to promote development of the necessary technologies. Means to remove or sequester carbon from the atmosphere may be necessary if mitigation efforts do not advance at a sufficient pace.

An effective climate governance regime will require the engagement of the private sector in a multi-tiered system with distributed roles and accountability mechanisms. The regime must capitalize on and encourage private-sector initiatives to meet climate change goals. This can include supply chain systems that rely on a variety of approaches, including certification, auditing, labeling, and reporting programs enforced through contracts.

An equity lens will be critical in designing these polices to ensure that affected and especially vulnerable communities are meaningfully involved in designing and implementing these measures. If policies are designed to protect against the greatest potential risk, in many cases this will result in just outcomes. An updated and enhanced conception of the duty of care in both government and the private sector will help to facilitate this.

THE nation has made major strides in controlling water pollution from point sources. But many of the sources of impairment to water quality are from nonpoint sources — runoff and discharges from areas of land and operations that are not subject to direct federal regulation under the 1972 Clean Water Act. Even though these uncontrolled sources of pollution were recognized in the statute, they were not regulated because of concerns with federal legislative intrusion on state and local land use prerogatives and solicitude for such industries as agriculture, forestry, and land development.

The Wingspread and Airlie House participants preferred a more watershed-health-focused system over the status quo, which concentrates permit-by-permit on individual sources and on effluent limits on pollutant discharges. An alternative future could be far more focused on land quality and water quality results.

Given the major contribution of diffuse sources to the remaining water pollution problems, a new sense of urgency is needed for dealing with it. One way to accomplish this result could be to recharacterize these sources as “uncontrolled pollution” rather than using the innocuous term nonpoint pollution. The public and institutional motivation necessary to support advancement in law needs to be defined as achieving better environmental and public health outcomes — not controlling nonpoint sources.

State regulators should create a new structural framework for dealing with uncontrolled pollution. Simply relying on the current state water quality and waste load allocation framework has not proven effective. This new framework should capture sectors that have previously escaped requirements to reduce uncontrolled pollution. It should also focus on watersheds with major, recurrent pollution threatening public health and welfare.

Legislators can also consider funding and relying on big data, and making it publicly accessible. A great deal of data exists on water quality and more will become available as monitoring technology advances and is used by citizens. This will make it possible to define and track progress toward watershed outcomes. Sharing of data on public platforms and integration of ecological information with water quality, discharge data, geo-siting of best management practices, remote sensing, and biological sampling should be encouraged and supported.

At the federal level, officials should provide key actors with the power to create change by matching the best tool to the source of impairment. Policymakers should inventory effective regulatory and non-regulatory approaches and target these to sectors, watersheds, and problems where they have been proven. EPA or others should construct a database of tools used by the states, federal programs, the private sector, and others, and determine how these can be applied to different forms of uncontrolled pollution in different types of watersheds and settings. This resource could further be backed by supporting and funding integrated water management planning, and making funding available for implementation of the tools.

At both levels of government, policymakers should link federal and state procurement to effective management of uncontrolled pollution in the supply chain. This approach recognizes that government funding is substantial in the acquisition of food and fiber, materials, energy, and development. The reimagined approach would expressly provide for disclosures and certifications and perhaps pollution controls as conditions related to receiving funds.

All agencies at the national level need to require that federally funded land and water and development projects, and all authorized activities on federal lands, must result in net water quality improvements — or at least restoration to no net loss of water quality where there is no opportunity to achieve a net improvement.

THE European Union in its Circular Economy Plan noted, “There is only one planet Earth, yet by 2050, the world will be consuming as if there were three.” According to the United Nations, “In 2017, worldwide material consumption reached 92.1 billion tons . . . a 254 percent increase from 27 billion in 1970, with the rate of extraction accelerating every year since 2000. This reflects the increased demand for natural resources that has defined the past decades, resulting in undue burden on environmental resources.”

The United Nations’ Sustainable Development Goal 12 deals with production and consumption and notes that achieving its goal requires urgent reduction of the world’s “ecological footprint by changing the way we produce and consume goods and resources.” SDG 12 points out that “efficient management of our shared natural resources, and the way we dispose of toxic waste and pollutants, are important targets to achieve this goal. Encouraging industries, businesses, and consumers to recycle and reduce waste is equally as important.” Materials consumption is particularly challenging in the United States. In 2017 U.S. per capita materials consumption, including fuels, was 42 percent higher than Europe’s. Despite the increasingly clear adverse impacts of unsustainable materials use, the issue has received relatively little attention in U.S. environmental law.

The Wingspread and Airlie House participants built on work by the leading advocates of the circular economy, the World Resources Institute and the Ellen McArthur Foundation. The participants reimagined materials conservation and use to include a number of elements. With growing corporate, government, and nongovernment interest in the idea of a circular economy, the participants thought now is a good time to convene a national dialogue to discuss how to move to such a system in the United States.

Extended producer responsibility, or EPR, at the national level would create a level playing field across the country. A national EPR for electronics waste would help reduce environmental impacts and could make it easier for businesses to set up systems.

A national GHG policy that establishes a price on carbon would be important beyond just climate change by helping drive product redesign and reductions in materials use. A price on carbon could drive business innovation by providing a financial incentive to look carefully at energy inputs needed to extract new resources and manufacture and transport products, and to find ways to reuse them.

Federal procurement rules could be redesigned so that criteria favor products and services that are consistent with a circular economy. Further, as part of the economic recovery effort, the federal government is likely to spend a great deal on infrastructure. As a result, the new administration can have a major impact on responsible production and consumption by taking materials conservation and circular economy principles into account in procurement, perhaps through executive orders that build on available authority. Such changes could model desired behavior for state governments, universities, and other large procuring organizations.

Resource Conservation and Recovery Act regulations could be revised to reflect the circular economy hierarchy, which goes beyond the traditional reduce, reuse, recycle paradigm to include preventing the use of resources in the first instance, encouraging repairing and refurbishing, and supporting remanufacturing and repurposing. Model legislation could be developed for states to adopt this new circular economy waste hierarchy.

Materials conservation could be added as a factor to be considered in NEPA analyses. The White House Council on Environmental Quality could contribute to responsible production and consumption by providing guidance to agencies on how to consider materials use and conservation in environmental impact review.

Policymakers can explore the possibility of “fate labelling” for consumer products, so that purchasers can make more informed decisions. This could be done using QR codes or through systems in use or planned in the European Union.

HEALTHY populations cannot exist without healthy ecosystems. Driven primarily by anthropogenic activities, destroyed and degraded ecosystems threaten critical resources in significant and varied ways. Land, ocean, and freshwater systems are all affected. While legal and policy efforts have attempted to address the problem through species- or resource-specific mechanisms within geopolitical borders, the lack of coordinated efforts built around ecosystem-based solutions has meant the problem continues relatively unchecked. Without humanity changing current production and consumption patterns, along with precipitous population growth and unsustainable practices, trends will continue to worsen.

Healthy habitats provide untold benefits, sometimes called ecosystem services, which must be adequately preserved. Responses to these challenges must be direct and swift to avert the most significant impacts of development.

At least eighty countries have adopted policies to help ensure any impacts to biodiversity or ecosystem services from development projects are offset by mitigation, an approach known as “no net loss.” One important goal of the no-net-loss method is to make sure any populations affected by the development project and associated mitigation are not left worse off, but are ideally better off after the plans are completed.

In the United States, no federal statute focuses exclusively or directly on mitigating ecosystem degradation. Generally, domestic environmental laws focus on addressing a single issue rather than on ecosystems comprehensively. Unfortunately, these policies often do not account for the complex and interdependent nature of ecosystems. Moreover, these issues are typically managed based on short-term goals and primarily within distinct political and jurisdictional boundaries that do not necessarily reflect the scope of targeted resources. Even when governmental bodies work together on a project or program, their mandate and funding allocation falls short of long-term ecosystem restoration.

Policies at the federal, state, and local levels that emphasize no net loss of ecosystem services are needed to ensure these functions are preserved. This could be achieved by building on existing programs. An immediate action that could provide impetus to such a policy would be to revive the “Incorporating Ecosystem Services into Federal Decisionmaking” memo, issued jointly by the Office of Management and Budget, CEQ, and the White House Office of Science and Technology Policy in 2015. This memo called on “agencies to develop and institutionalize policies to promote consideration of ecosystem services . . . in planning, investments, and regulatory contexts.”

Policymakers should revise their environment and natural resources management frameworks with a goal of adopting a more holistic approach that prioritizes local ecosystem-level decisionmaking. This includes enacting federal legislation that requires no net loss of ecosystem services and encourages local and state-level ecosystem management. The framework would build on the existing approach to wetlands management but would provide expanded application and account for a wider array of natural benefits. Legislation should include provisions for grant funding for research and data collection, and for the development of multi‐stakeholder, consensus‐based ecosystem management. For example, federal actions subject to review under NEPA could shift focus from considering project impacts to ecosystem services impacts. Local and state land use decisions could build upon precedent set with mitigation banking under the Clean Water Act.

It is critical to emphasize that this approach could become a major equity concern if mismanaged. Communities must be involved so that the damages and benefits are spread justly across and within communities. This is especially true when addressing the legacy of discrimination faced by environmental justice communities and determining what damage is permissible under a no-net-loss framework. Making these decisions and processes more local provides an opportunity to protect residents from this potential concern.

Federal changes should be bolstered by efforts at the state level, including through revising or adopting state-level NEPA laws to include requiring an analysis of how a project will affect ecosystems and ecosystem services in the long term.

Policymakers at all levels should reform governance structures to complement ecological boundaries. Ecologically oriented governance will prioritize the entire habitat or watershed and more effectively integrate natural systems and environmental media to better ensure impacts are accounted for and degradation is mitigated. That reorganization will necessarily require inter- and intra-governmental cooperation at all levels — federal, state, local, and tribal. Throughout, these techniques should involve communities and incorporate traditional ecological knowledge.

To better align ecology and governance, the U.S. Fish and Wildlife Service should be given the authority to work with multiple levels of government and private entities to negotiate land use plans that protect or enhance ecosystem services. Such authority would be particularly useful when endangered species and critical habitat are at issue, providing a protective mechanism with widespread stakeholder engagement. Bringing together all parties with jurisdiction within a given ecological context with oversight by FWS may enhance cooperation and response to ecosystem management challenges.

New and existing regional governance bodies could be provided with “pre-authorization compacts” akin to water compacts and regional electricity grid agreements to address different parts of the same environmental event or phenomenon. While arguably less comprehensive than ecosystem-level management, compacts may be more feasible and can still help facilitate responsive coordination to environmental impacts.

INJUSTICE is manifest in several dimensions across the landscape of U.S. environmental law and policy, at all levels of governance, from local actions to state and federal decisionmaking. Communities of color and low-income communities often experience higher releases of pollutants, siting of undesirable land uses, and lack of access to environmental benefits and amenities. These same communities already bear a substantial health, social, and economic burden from pollutants, poorer access to healthy living spaces, effects of poverty, and inadequate access to health care. Even where pollutants and practices are similar to those experienced elsewhere, the addition of these burdens to existing health, socioeconomic, and community conditions can have greater cumulative adverse impacts on such environmental justice community residents.

At the federal level, the framework for environmental justice has been almost entirely based on executive orders and agency memoranda, rather than on enforceable laws and regulations. Environmental justice gained formal federal recognition in Executive Order 12898, “Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations,” issued by President Clinton in 1994, and still in effect today.

But there is still no focused and specific federal statutory foundation for environmental justice. EPA’s Office of Environmental Justice has identified various provisions in federal law that can be cited by federal agencies when they desire to support an EJ-related decision. OEJ also has developed EJScreen, a mapping and information tool, to assist agency decisionmakers and permit applicants in identifying communities and implementation factors where cumulative adverse impacts may occur. In the absence of legal drivers, however, this kind of tool cannot alone produce substantive change.

A number of states have enacted environmental justice legislation or adopted regulations or policy instruments to give EJ a greater role in decisionmaking. California’s CalEnviroScreen, for example, enables decisionmakers to identify environmentally burdened communities and create indices used for permitting, enforcement, and funding prioritization.

THE Wingspread and Airlie conferees recognized the need for legal processes to obtain just outcomes and not merely more accessible procedures — especially given cumulative impacts on EJ communities. They noted that EJ initiatives, in order to be effective, must be thoroughly integrated into all decisionmaking affecting the environment. It cannot simply be an add-on or check-off at the end of a decision process.

A minority of states already have constitutional rights related to the environment, but only a few of these are self-executing and enforceable by members of the public and communities. Environmental justice may be advanced by promoting adoption of such state amendments. In those states that already have only hortatory environmental amendments on the books, the approach would seek appropriate further amendment to enhance enforceability. This approach would require careful drafting of amendments to ensure that they are self-executing and hence enforceable without the need for additional state legislation. It would also need to create or recognize a public trust in the natural resources of the state, including clean air, pure water, biological resources, and publicly owned lands and resources, and state a human right to a clean and healthy environment.

Federal and state legislation that embodies important EJ procedural and outcome elements should be adopted. Such legislation can include codification of E.O. 12898 elements, including definitions of minority and low-income communities and disproportionately high and adverse impacts, as well as meaningful engagement and other provisions. The laws could require tools such as EJScreen. There could be other requirements for new development in communities overburdened by pollution to offset any projected increases in pollution loadings, with reductions in the existing pollution inventory on a 1:1 or net-reduction basis. Statutes could mandate disclosures of information by applicants or operators that will enable communities to participate in review processes and take action to protect their health and resources. They could remove legal barriers to public participation in decisions affecting EJ communities. Finally, the laws could create a private right of action for enforcement of civil rights.

For the private sector, policymakers could promote and encourage private governance and corporate commitments and accountability mechanisms for environmental justice. Companies and groups of companies and organizations can develop best practices and codes of conduct that firms integrate into their decision processes, management systems, supply chain requirements, and internal and external accountability mechanisms.

As the country embarks on the second half-century of the modern environmental law era, it is important to recognize both the successes of the past as well as the issues for which environmental law has not been as successful. The Reimagining process was designed to focus on some of the critical issues to ensure that policymakers seriously address remaining problems and inequities. We hope that when our successors look back on environmental law at 100, they will be able to identify significant progress in the areas identified by the Wingspread and Airlie House participants as critical issues. R&P

John Pendergrass is ELI’s vice president for programs and publications, and leads the Research and Policy Division. ELI Visiting Scholar LeRoy Paddock is distinguished professorial lecturer in environmental law at George Washington University Law School.

———

The authors thank all the Wingspread and Airlie House participants, who are the true authors of this article, and James McElfish, Sandra Nichols Thiam, and Jarryd Page, who drafted the white papers that were excerpted here.

ELI POLICY BRIEF No. 17 Over the next 50 years, policymakers need to fill in significant gaps in environmental and resource law to achieve a sustainable economy. That means addressing climate change, polluted runoff, materials reuse, ecological degradation, and environmental justice.

A Justice Who Demanded Justice for All

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Author

Amanda Leiter - American University Washington College of Law

American University Washington College of Law

Current Issue

November-December 2020

Issue

Parent Article

Which Way for the Roberts Court?

Justice Ruth Bader Ginsburg was a brilliant and hard-driving jurist; a feminist icon; a first-generation college and law school graduate; a leader of the Supreme Court’s liberal wing. But let’s be honest: while she loved to waterski and horseback ride, she was not a prominent judicial voice for environmental protection.

True, Justice Ginsburg authored several opinions that advanced the environmental cause. In Friends of the Earth v. Laidlaw, for example, she endorsed a relatively permissive approach to environmental standing: the “relevant showing...is not injury to the environment but injury to the plaintiff.” Later, in EPA v. EME Homer City Generation, Ginsburg reaffirmed the principle on which much of U.S. environmental law rests: that courts owe deference to the reasoned legal interpretations and policy judgments of expert agencies. She also supplied a reliable majority vote to confirm the breadth of bedrock environmental laws. In Massachusetts v. EPA, she joined four other justices in recognizing that the Clean Air Act reaches greenhouse gas emissions. Just this year, in County of Maui v. Hawaii Wildlife Fund, she joined five others to close a capacious potential loophole in the Clean Water Act.

But Ginsburg’s heart lay elsewhere. As movie producers and tribute writers have reminded us, her twin passions were advancing gender equality and protecting human dignity. Her Jewish heritage informed these passions. As she explained in a 2004 address at the U.S. Holocaust Museum, “The demand for justice runs through the entirety of Jewish history and Jewish tradition. . . . The command from Deuteronomy, ‘Zedek, zedek, tirdof’ [means] ‘Justice, justice shall you pursue.’ Those words are ever-present reminders of what judges must do [to] thrive.”

In short, Justice Ginsburg’s lifework was profoundly human-centric. By contrast, until recently, the environmental movement has largely focused elsewhere.

In recent decades, however, environmental justice lawyers have exposed the deep structural in-equities that lie at the heart of our pollution control system and our environmental health protections. Justice Ginsburg, ever attuned to injustice, would have recognized those lawyers’ struggles as her own.

The challenge of climate change further illuminates the interconnections between justice and environmental protection. We cannot hope to achieve human justice without mitigating the growing and increasingly disparate impacts of pollution, flooding, major storm events, multi-year droughts, and unprecedented fire seasons. We cannot mitigate those impacts without fundamentally reforming major sectors of our economy. And unless we are very careful, our efforts at reform will exacerbate rather than redress existing income, wealth, health, and resource disparities, some of which resulted from the very laws we wrote and governing structures we developed during earlier phases of the environmental movement.

The fight for justice thus implicates environmental protection, and the fight for environmental protection implicates justice. How these battles will play out in the courts remains to be seen. Legal questions that may arise in future cases include whether our civil rights laws can be reinterpreted to reach disparate impacts of facility sitings; whether EPA can be induced to take administrative action to address such disparate impacts; whether the common law provides remedies for communities destroyed by floods or fire; and whether international conventions and domestic immigration laws can be extended to protect climate refugees.

We cannot know how future lawyers will pose these questions, nor how judges will answer them. We can, however, be certain that future Supreme Court lawyers seeking to advance environmental protection and remedy environmental injustices will deeply miss Justice Ginsburg’s insightful questions from the bench, her disciplined approach to precedent, her steady yet steely hand on the opinion-writing oar — and of course, her passion for justice.

“May her memory be for a blessing.”

Procedural Changes in Agency Rulemaking

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Author

James McElfish - Environmental Law Institute

Environmental Law Institute

Issue

It has been a year of momentous change in environmental protection and governance. As we look over the horizon to 2021, it’s clear that many traditional expectations about environmental protection have been changed in areas of water pollution, climate change, endangered species, and air emissions. Added to this are numerous procedural changes affecting rulemaking, cost-benefit analysis, use of scientific information, federal advisory committees, and a comprehensive rewrite of the National Environmental Policy Act (NEPA) regulations. The procedural landscape is in greater flux than at any time since the early 1970s. ELI has been seeking to aid practitioners and policymakers to think about what lies ahead.

It’s important to recognize that rulemaking activity has accelerated. This is affected by the Congressional Review Act (CRA), which provides an expedited process for legislative repeal of rules and which has a look-back period for rules adopted toward the end of a prior session of Congress. These provisions were used by Congress in 2017 to repeal 15 rules adopted by the Obama administration in 2016. Perhaps fearing a turnabout, the administration has been finalizing as many of its rulemakings as possible by June 2020 in order to avoid the possibility of CRA action in 2021.

Rulemaking processes are changing. EPA is overhauling its standard approach to cost-benefit analysis, last revised in 2010. And in April 2020, the agency submitted a draft rule to OMB which may limit or exclude consideration of “co-benefits” in air pollution rulemaking. EPA used this approach in its April 2020 final regulatory review of the Mercury and Air Toxics Standard for stationary sources. By excluding co-benefits from control of particulate matter, EPA concluded that regulatory and compliance costs from the rule exceeded the remaining direct benefits.

The “social cost of carbon” is another instance in which revised cost-benefit practices affect regulations and will do so in the future, unless revised. This concept assigns values to the damage caused or avoided by each additional ton of carbon-equivalent greenhouse gases emitted. The federal Interagency Working Group on the Social Cost of Carbon developed a uniform estimate in 2009 and updated it in 2016. In 2017, President Trump issued Executive Order 13783, disbanded the Interagency Working Group, and withdrew the documents it had produced. The Order instructed federal agencies to prepare their own estimates under general OMB procedures. EPA and other federal agencies have produced “interim” estimates for social cost of carbon for use in rulemakings, resulting in far lower numbers than those produced by the IWG.

Regulatory cost calculations are also significant in the context of the continuing effect of 2017’s Executive Order 13771, which requires agencies to repeal two existing regulations for every one adopted, and to achieve a specified level of regulatory cost savings each year. OMB instructed EPA to achieve net cost reductions of $40 billion in FY 2020, a huge deregulatory goal.

Executive Orders have played a major role in Trump administration policy management. EO 13777 directed federal agencies to identify existing rules for repeal, replacement, and modification. EO 13807 set in motion the proposal by the Council on Environmental Quality to replace the NEPA regulations. If implemented, these will remove many federal actions from environmental impact assessment, limit consideration of alternatives, and severely limit the array of impacts to be evaluated.

EO 13875 directed federal agencies to terminate one third of their advisory committees and conferred on OMB greater authority to determine the need for committees. EPA’s former Administrator ordered that the agency’s advisory committees exclude any member that benefits from any EPA grant. Members of the scientific community objected that this would result in exclusion of many of the most knowledgeable academic researchers. Several courts have ruled the order procedurally invalid. EPA also eliminated and downsized several of its scientific panels, and in February 2020 it removed the ability of its flagship Science Advisory Board (SAB) to determine its own docket. Just in the last year and a half, SAB has questioned the scientific bases for several of EPA’s high-profile regulatory rollbacks, including the redefinition of waters subject to the Clean Water Act, and the SAFE vehicle fuel economy standards, as well as EPA’s withdrawal of the “risk finding” underpinning the agency’s regulation of mercury and air toxics emissions.

In 2018 EPA proposed a rule to preclude the agency from relying on scientific data or models unless the data and models could be shared with the public. This proposal led to substantial concern, especially where data (including health data) had been collected under conditions of confidentiality. EPA’s supplemental proposal will result in similar limits and will be litigated.

In the enforcement area, the Justice Department determined that the federal government cannot legally accept Supplemental Environmental Projects in negotiated settlements despite a 35-year history of doing so. SEPs are agreements by an alleged violator to fund environmental benefits to communities and ecosystems affected by an alleged violation. Other forms of agreement are favored. EO 13892 required federal agencies to create procedures that link self-reporting of violations in exchange for waivers and reductions in civil penalties, and requires agencies to provide pre-enforcement rulings to regulated parties. In January 2020, citing the Executive Order, OMB issued a request for information seeking additional options to “protect Americans against the unjust or arbitrary exercise of governmental power.”

There’s a lot to keep up with, but the procedural changes are as profound and perhaps longer lasting than the substantive ones.

Procedural changes in agency rulemaking.

Environmental Justice Faces Fresh Obstacles

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Author

Scott Fulton - Environmental Law Institute

Environmental Law Institute

Current Issue

September-October 2020

Issue

As the country wrestles with racial justice issues, driven both by police atrocities and the uneven distribution of COVID-19 infection and deaths, it’s time for renewed focus on environmental justice. The quest for EJ remains perhaps the most challenging unsolved problem in the environmental arena. And until we arrive at a place where environmental benefits and burdens are both more equally distributed across society, EJ will remain a problem that differentially compromises not only quality of life, but also health and resilience in the face of maladies like the coronavirus.

There are of course reasons that EJ is a hard nut to crack. Slavery, segregation, redlining, and other forms of discrimination have left us with a system for determining where people live and where polluting activities occur that has baked-in inequity. In such a system, trying to manage EJ in the context of downstream decisions like environmental permits can feel like the tail wagging the dog, with the dog being zoning, land use, and other local decisions that drive what-and-where choices and remain largely off-limits for environmental regulators.

This said, there is much that regulators can do to identify and mitigate environmental injustices, and 1994’s Executive Order 12898, titled ”Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” pushed in this direction, calling for all federal agencies to promote nondiscrimination in health and environment and to avoid “disproportionately high and adverse impacts” to human health and the environment affecting low-income and minority communities.

In 2011, when I was general counsel at EPA, we produced “EJ Legal Tools” — an assessment of the many mechanisms available to the agency to advance environmental justice. We did this to confront the claim of powerlessness expressed by some agency leaders. During that same era, EPA also introduced a mapping and information platform, “EJScreen,” to assist agency decisionmakers and permit applicants in identifying communities and factors where cumulative adverse impacts may occur. In short, there is much that can be done at an agency like EPA to advance EJ, and no doubt considerably more than has been mustered to date. A number of states, including most notably California, have equipped themselves with even better tools for identifying and ameliorating environmental hot-spots.

The National Environmental Policy Act, always decidedly less deferential to local land-use primacy, is designed to “assure for all Americans safe, healthful, productive, and esthetically and cultural pleasing surroundings” and promote intergenerational equity. Environmental impact assessment under NEPA has, for 50 years, included consideration of cumulative and indirect impacts on communities, and has required agencies to consider alternatives as well as impacts not within their direct authority or control. The interpretive guide used across the federal government for how to do this is the “Environmental Justice Guidance Under the National Environmental Policy Act” issued by the Council on Environmental Quality in 1997. The guidance expressly states: “Agencies should consider relevant public health data and industry data concerning the potential for multiple or cumulative exposure to human health or environmental hazards in the affected population and historical patterns of exposure to environmental hazards.”

It goes on to state, “Agencies should consider these multiple, or cumulative effects, even if certain effects are not within the control or subject to the discretion of the agency proposing the action.” Just last year, the Interagency Working Group on environmental justice created by the 1994 executive order published a “Community Guide to Environmental Justice and NEPA Methods” outlining best practices in effectuating the E.O. and CEQ’s guidance.

But CEQ significantly revised the longstanding NEPA regulations in July of this year, and has said that it will be withdrawing the EJ guidance as incompatible with the new regulations. The community guide also appears likely to be jettisoned, as it is tied to the existing NEPA regulations, many of which are now repealed.

Importantly for EJ purposes, in its final rule CEQ did away with the requirement that federal agencies consider the cumulative and indirect impacts of their actions, replacing this with a narrower definition of environmental “effects” based on tort-law “proximate cause” liability standards. And it expressly excluded analysis of effects that are not within the jurisdiction of the action agency to prevent.

It is far from clear that the new regulations and associated guidance will provide for a level of review similar to that currently used for EJ analysis. It rather appears that CEQ has largely deferred any consideration of EJ to some future date when individual federal agencies attempt to apply the new regulations and communities attempt to discern their rights in the absence of a specific regulation and guidance document.

In adopting the new NEPA rule, CEQ stated that it had acted in compliance with the executive order because its rule would not itself cause any environmental impacts: “It is in the agency implementation of NEPA when conducting reviews of proposed agency actions where agencies can consider, as needed, environmental justice issues.” And in its response to comments, CEQ said that if it withdraws the EJ guidance, this will “not create confusion” nor “reduce the quality of analysis.”

We shall see.

On obstacles to achieving justice.

Staying on Course for Justice for All

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Author

Suzi Ruhl - Yale Medical School

Yale Medical School

Current Issue

September-October 2020

Issue

Navigating through the tail end of Hurricane Oscar in the North Atlantic two years ago, the international crew of our cutter fought off seasickness as we battled to stay on course toward the finish line off Madeira. “If we make it to Faro,” we shouted to each other during lulls in the gale, “we will be fine.” When my turn came at the helm, I held to a compass heading that would bring us down to latitude 37 and calmer water off the Portuguese port city, where we could lay in a course for the finish line. Instead of pressing on dangerously under a full suit of canvas, risking sails and spars for greater speed, we kept the main reefed and thus were able to safely make good headway in the rough seas. It was a good decision.

I have found through a lifetime of experience that sailing is an excellent metaphor for the adventures in reaching my longtime professional goal of “justice for all,” the central promise of the Pledge of Allegiance but a destination still beyond the horizon after all these years of environmental law. Everybody uses metaphors to organize their thinking, often drawing from sports like football and baseball. Making it to Faro by harnessing the wind no matter how it blows has become the destination in my professional life. Only from there can you actually set a course toward your goal.

The analogy between the environmental profession and the job of the mariner is a useful one. Ever resilient, sailors are constantly adjusting the rigging to get the most from the wind while avoiding unnecessary risk to the crew and ship. Staying on an even keel is important. They are careful to preserve and allocate food and water resources sustainably and manage waste responsibly. Safety is constantly in force underway. Both skipper and crew know their destination at all times. And they know how to make port even under contrary winds.

Indeed, I learned at the outset of my career in the 1980s that sailing the waters of environmental law and justice can be rough. As founder and president of the Legal Environmental Assistance Foundation, based in Tallahassee, I took to court EPA and other government agencies and multinational corporations as well. LEAF worked with communities burdened by pollution, disease, poverty, and crime. I learned from those most impacted by harmful emissions and discharges, as we made significant yet insufficient progress on our great circle course to environmental equity and justice.

Then, in 2009, when newly elected President Obama declared he wanted change, I joined EPA’s Office of Environmental Justice to become senior counsel. My professional mantra upon leaving public interest practice to join government — my sea chanty so to speak — started with, “For 20 years, I sued EPA,” and concluded on an up note, “Now I am going to work for them.” The lighthouse beacon guiding my government service became the personal voices of those who literally live and die as a result of agency decisions and actions. Their flashing signal patterns illuminated government systems and their actions that foster healthy, equitable, and sustainable communities and those that either intentionally or unintentionally perpetuate environmental injustices. The people we worked with who were affected by pollution were the first to know there was a problem and what was needed to solve that problem.

Yes, my metaphor helped me to see that and gave the point of sail to best capture the wind. That heavy weather sailing along the coast of Spain and Portugal to the northern coast of Africa, along with bareboating around equatorial islands, has taught me that in fact sailing has many lessons for professionals. My lifelong mission has been to work with those who in effect are finding environmental, health, and economic storms crashing over their decks with insufficient means of altering the set of the sails to make headway. Gaining a navigator’s skills in the law and in the science of epidemiology, including degrees in both, has enabled me to act as a pilot, helping citizens steer their communities toward greater equity and justice.

Now, as the challenges facing overburdened, underserved, and underrepresented communities escalate in horrific, relentless waves of heartbreak, especially as seen in the context of Black Lives Matter and the simultaneous COVID-19 crisis, I am again changing vessels, joining the research, service, and teaching crew at the Yale School of Medicine, Child Study Center and Elevate Policy Lab.

At this new waypoint in life, I am pulling together my collective experiences to reset my compass heading, prepare my passage plan, aiming always for the same destination: justice for all. All I know at the outset of this voyage is that it will require leveraging the lessons of the sea and of the men and women who venture out regardless of the weather conditions or a gloomy forecast, for resilience and sustainability are their working tools too.

The first lesson in sailing is to appraise the state of the sea — the wind, the waves, the swell, and weather patterns — when embarking on a voyage and during the passage. This lesson clearly applies to the trajectory of my career in environmental justice, a timeline of constant appraisals and course changes.

If there were a logbook on environmental protection and regulation of pollution since the 1980s, it would be revealing in its constant changes. The log would be a story of denial — a hesitancy to consider the real state of the sea and a rejection of that primary lesson. The first entries show the existence of pollution being denied. When pollution became acknowledged, exposure to people was denied. When pollution and exposure were acknowledged, impact to human health was denied. When pollution, exposure, and impact were acknowledged, the consequences to vulnerable populations — including communities of color, poor neighborhoods, and tribal-indigenous groups — were denied.

This phenomena of ignoring sea states and weather patterns is illustrated through a LEAF lawsuit whose resolution spanned four decades. In 1983, the Department of Energy admitted that it had released two million pounds of mercury from the Y-12 Plant at Oak Ridge between 1950 and 1977. The pollution flowed into the Tennessee River. Unknowingly, low-income rural families swam and fished in the river and a polluted tributary, East Fork Poplar Creek. In the period of denying pollution, elemental mercury was carried from the Y-12 plant by workers into their homes, exposing their families to harmful vapors. While government denied exposure, children who swallowed water during play in the brook were exposed to levels of inorganic mercury that could cause kidney damage, and residents ate fish from the polluted brook, risking the health of their brains.

When pollution, exposure, and impact could no longer be denied, children born to or nursing from women who ate certain species of fish from Poplar Creek were revealed as at increased risk of subtle neurodevelopmental health effects. When LEAF sued 37 years ago, arguing that DOE must comply with the Resource Conservation and Recovery Act, the department argued in court that application of RCRA to Y-12 was inconsistent with the Atomic Energy Act of 1954, which restricted dissemination of classified information pertaining to nuclear weapons and material. Action under RCRA, the department argued, would subject this information to public disclosure. In LEAF v. Hodel, the court held that the plant indeed is subject to RCRA, ruling that DOE had failed to demonstrate that compliance with the landmark statute would result in the disclosure of classified material.

Surprisingly, as an early porthole view into the operation of the federal government that would carry me through my time with EPA, most of the DOE managers and staff supported the decision and embraced the programmatic result: establishment of DOE’s Hazardous Waste Remedial Action Program to address dangerous materials at all of its facilities. This attitude toward the decision is also reflected in the department’s published “Nuclear Energy Timeline”: for the decade of the 1980s, DOE highlighted LEAF v. Hodel along with the “Berlin Wall is torn down. Many communist governments in Eastern Europe collapse.” To have LEAF recognized in the same space with the fall of communism instilled the same pride as does finding the island in the middle of the ocean.

Yet, as ocean currents flow year after year at the same speed and direction, so has been the DOE environmental challenge. Indeed, when joining EPA 26 years after we sued, the first environmental impact statement I reviewed was for the disposal of the hazardous waste from the Y-12 plant.

Invoking environmental justice, I raised the issue that one of the primary site locations was a few miles from a town in Texas that was predominantly Latino, and where the English proficiency was lower than 40 percent. Because Texas is a majority-minority state, the site was not considered to be an environmental justice community. We nonetheless proposed mitigation measures to address these disproportionate impacts, including translating critical documents into Spanish. The lessons learned from this decades-long legal action informed the development of an environmental justice analytical methodology for National Environmental Policy Act reviews.

Favorable sailing conditions were in play due to the leadership of the federal Interagency Working Group on Environmental Justice, or IWGEJ. In 2011, its 17 federal departments and agencies signed the “Memorandum of Understanding on Environmental Justice” and were included under Executive Order 12898, promulgated by President Clinton to establish environmental justice as a goal of the federal government.

The EO identifies NEPA as one of four areas of focus. As founding co-chair (along with the Department of Transportation and then DOE) of the NEPA Committee created in 2012, I worked with NEPA and EJ practitioners across the federal family. Our membership grew from 12 to 200 members, and we produced “Promising Practices for Environmental Justice Methodologies in NEPA Reviews.” This sea chart, along with the “Community Guide for Environmental Justice” and “NEPA Methods (2018),” advance consistent, effective, and efficient consideration of environmental justice under the foundational statute. Through the NEPA Committee, we now had a fleet of vessels recommitted to addressing environmental justice through a more collaborative, comprehensive, and efficient process.

Just as there are always more storms, rulemaking on NEPA now threatens to overwhelm progress. But, a boat sailing in a massive storm cannot stop, and we must call all hands-on-deck to get to a safe destination for all — to get to Faro.

Sailing lesson number two counsels that when underway in a storm, remember that the sea takes no prisoners. When sailing, failure to prepare and to account for real people, real places, and real conditions can kill you. Tragically, failure to account for unique conditions experienced by low-income, people of color, and tribal-indigenous populations is deadly. Pollution, natural and man-made disasters, unhealthy built environments, and lack of access to essential services are killing these populations at disproportionate rates.

At the outset of my career, I challenged the demand for a “dead body count approach” to justify environmental regulation of pollution. Acknowledging only mortality while ignoring morbidity and disability sets the stage for environmental devastation. Decades later, with COVID-19 on the loose, my greatest fear has come to fruition — we have the dead bodies as evidence of disproportionate impact and failure to protect health and the environment of overburdened, underserved, and underrepresented populations. COVID-19 cases by race and ethnicity show the incidence of the virus out of proportion to the percentage of the overall U.S. population — it is almost double for Hispanic, black, and American Indian/Alaskan Native populations.

A closer look by Centers for Disease Control and Prevention researchers shows that people with underlying health conditions were six times more likely to be hospitalized than those with no such conditions, and deaths were 12 times higher. Communities disproportionately burdened by pollution have long experienced higher rates of chronic disease. Now we see higher rates of COVID-19 hospitalizations and higher deaths as a result.

Many of the pre-existing conditions that increase the risk of death in those with the virus are the same diseases that are affected by long-term exposure to air pollution. A small increase in long-term exposure to the fine particles produced by burning fossil fuels, known as PM_2.5, leads to a large increase in the coronavirus death rate. Thus, the virus, through the same vicious cycle of denial and the dead-body-count approach experienced with environmental degradation, is thrust on the same overburdened, underserved, and underrepresented population. Now, my integrated law and public health degrees allow me to heave to under a storm sail and help rescue the multitudes drowning in this deathly sea. More rescue boats in the water would be a huge help. There are thousands of communities needing assistance.

The faces of this nightmare are made real in Lowndes County, Alabama, in the so-called Black Belt, where I have worked on environmental justice across the decades. Reading the horrific news that the rates of COVID-19 are higher in this rural, poor, African American population than in New York City, I recalled our long-ago community victory in stopping the permitting of a fly-by-night hazardous waste disposal facility when I was at LEAF. I see the face of the elderly African American farmer who was more knowledgeable about the conditions of the soil and groundwater than the Ph.D. experts representing the hazardous waste company. I remember this early lesson that the people impacted by pollution should be at the table from the beginning and throughout the decisionmaking process — they should be at the forefront in diagnosing the problems and designing the solutions, and should be part of the cross-training of all stakeholders.

While at EPA, I met families in Lowndes County who step outside their trailers into their own excrement because they lack effective decentralized sewer capacity. I hear the voice of government officials dismissing these health and environmental concerns, callously claiming that “these people would rather get sick twice a year and spend their money on cell phones then pay for the maintenance of a septic tank.”

But, from heartbreak to hope, we reef our sails to avoid the winds of injustice while rapidly propelling progress through the choppy waves. Recognizing that environmental challenges in rural communities were distinct from those faced by urban communities, the EJIWG established the Rural Communities Committee in 2015. With Lowndes County in mind, the working group advanced brownfields-to-healthfields and urban-to-rural agriculture as destinations for communities across Appalachia, Southern California, coastal Georgia, and the Black Belt.

The EJIWG recruited a crew of environmental justice bosuns across the federal family to join the impacted communities and a courageous state public health captain. Together, we navigated the waves of environmental, technical, financial, health, and governance challenges to overcome the underlying currents that had become excuses. As 100 families were on the verge of getting safe sewer systems, we began to celebrate. And then, the county that wanted a health clinic and truck stop but got only the truck stop started dying faster and faster from COVID-19. The huge swell of institutional racism buttressing the denial and the dead-body-count approach to environmental protection crashes over our deck. It is time for a better course to get us to Faro.

The third lesson all sailors must learn is that on ocean passages, carefully choose your vessel and know your coordinates and compass heading to get all passengers and crew safely to port. When I first opened LEAF in the early 1980s, there was no such thing as environmental public health protection. Regulation of pollution was a concept reserved for tree huggers. Ultimately, during my LEAF days and continuing throughout my career at EPA, my EJ colleagues taught me that environmental protection means “people impacted by pollution should live, learn, work, play, and pray in homes and communities where the air is safe to breath, water safe to drink, and land safe to touch.” Ultimately, they want their children and families to be healthy, their homes and neighborhoods to be safe from pollution and crime, and yet they also want to keep their jobs.

Fortunately, during my passage with EPA, I have crewed on voyages seeing significant progress along the rhumb line toward environmental justice that responds to the well-being of vulnerable children, adults, families, and communities. It has been inspirational to work with career and political leaders under multiple administrations to bust the myth that protection of the population in general is sufficient. A rising tide lifts all boats only works if everybody has a boat.

The notion that environmental protection only addresses natural resources such as air, water, and land has been debunked. Environmental assessments and related decisions that do not consider vulnerable subpopulations are no longer sufficient. That consideration includes multiple exposures and body burdens of those facing pollution, poverty, disease, and crime.

Because environmental statutes mandate protection of human health and the population as a whole, EJ professionals have expanded our focus to consider the built environment and access to essential services. We also have come to recognize that access to health care (physical, mental, social, spiritual), food security, transportation options, and physical activity are essential components of environmental protection. Natural disasters are escalating, wreaking disproportionate havoc on vulnerable and overburdened populations. Disaster response, recovery, and preparedness have thus become an environmental justice issue as well.

The trip to the far off but welcoming port of justice for all is far from over. Disastrously, now our progress is being rolled back with a return to denial and the dead-body-count approach for the most vulnerable of society. In such chaotic seas I have made a safe port on Long Island Sound and am embarking on a new ship to the same destination. It will be a challenging voyage under changing conditions.

The fleet comprising Yale Med’s Child Study Center and Elevate Policy Lab includes a stellar ship and crew making a direct impact for real people and real places through innovation and rigorous, evidenced-based approaches. That’s my newest vessel. Our compass heading aims for healthy children, mothers, and families living in communities safe from pollution and violence, as a pathway to economic and social mobility. Our passage plan is to disrupt the current against progress of intergenerational poverty, disease, and environmental degradation.

Getting to this destination comports with my life’s course thus far, given that psychosocial stressors are recognized as a fundamental environmental justice disproportionate-impact factor. Yale’s Elevate Policy Lab, which operates the Mental Health Outreach for Mothers Partnership, provides mental health care to disadvantaged mothers as heads of households and fosters collaboration with community organizations, health care providers, and government partners for systemic change.

Mariners are charged with ensuring that each sail on the vessel is drawing maximally at the same time, knowing that the set of each affects the other. At this point in my career, my course now requires achieving the best trim for each of three goals at the same time. We are simultaneously aiming at health, economic, and environmental challenges facing disadvantaged populations. In my triple-bottom-line justice approach, we are working with women experiencing toxic stress from food insecurity, transportation limitations, and domestic violence, helping to increase their capacity to improve their maternal mental health and help them meaningfully engage in government decisions that affect their lives.

We seek to dislodge the anchors that are the root causes of disparities, strengthen meaningful engagement of impacted populations, and improve measurable, cost-effective outcomes. We rely on the community-based experience that fills my entire career now, trusting that meaningful engagement of underserved, overburdened, and underrepresented individuals via all levels of government improves the health also of their communities as measured by the triple bottom line.

As we knew sailing from the northwest tip of Spain to an island off the coast of Africa, and as I know now after a lifetime’s experience, a boat making way in a massive storm cannot stop. In our metaphorical quest to extract from the law of the sea lessons to achieve environmental justice for all people, and for all communities, we must ensure that we first get to the calmer waters off Faro. Only when we get there can we shake out a reef and put the helm over for a course to the finish line. TEF

Environmental and health professionals can benefit by learning the story the sea has to tell about knowing your destination, bringing the whole crew on board, and making port despite stormy seas and contrary winds. What’s your metaphor for managing your career?

Environmental Law Institute Offers Special Programming in Celebration of Its 50th Year: Environmental Justice & Vulnerable Communities

Read more about Environmental Law Institute Offers Special Programming in Celebration of Its 50th Year: Environmental Justice & Vulnerable Communities

July 2019

(Washington, D.C.): The Environmental Law Institute envisions a healthy environment, prosperous economies, and vibrant communities founded on the rule of law. Within this lens, it is clear that race and socioeconomic status should not dictate the environmental health risks we face. Yet, too often, this is not the case.

States Drive Carbon Policy Forward by Electrifying Transportation Sector

Read more about States Drive Carbon Policy Forward by Electrifying Transportation Sector

Author

Kathleen Barrón - Exelon Corporation

Exelon Corporation

Current Issue

March-April 2019

Issue

Over half of our nation’s carbon emissions are produced by the electricity and transportation sectors. In the Northeast and Mid-Atlantic, nine states have worked collaboratively to reduce emissions in generation through the Regional Greenhouse Gas Initiative, now in its 10th year. With a modest impact on consumer bills, RGGI has raised well over $2 billion to invest in energy efficiency, clean energy, and other programs, produced net economic benefits of $4 billion, created 44,000 jobs, and reduced emissions by over 50 percent.

A number of states are looking to build on RGGI’s success through a first-of-its kind emissions allowance program for transportation, responsible for over 40 percent of carbon emissions in the Northeast and Mid-Atlantic. Collaborating through the Transportation Climate Initiative, the states include Connecticut, Delaware, Maryland, Massachusetts, New Jersey, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington, D.C. New York is actively participating and might officially join later this year.

TCI states could raise a meaningful amount of revenue for investment in clean transportation by requiring wholesale gasoline and diesel distributors to purchase allowances for the embedded emissions of the vehicle fuels they sell in participating states. Even a minimal fee in line with natural price variability would raise a significant amount. As with RGGI, these targeted investments could reduce emissions through investments accelerating deployment of electric vehicles and supporting infrastructure as well as electrifying public transit and other fleets, such as school buses.

Of course, the cost-effectiveness of the TCI program, like RGGI, will depend on how the resulting funds are invested. The regional program’s cap-and-invest structure resulted in economic benefits that well exceeded costs, even before accounting for the significant health and climate benefits of the emissions reductions themselves. A cost-effective program will ensure maximum investment where it is needed the most. Given the scale of the climate challenge, every dollar must be spent wisely to leverage further investment in safe, reliable, and clean transportation for everyone.

Such investments would (and should) vary according to local needs; a notable characteristic of the TCI program is the flexibility it provides for each jurisdiction to focus on programs with the greatest need by the public. Proceeds could be used, for example, on transit and other fleets that bring clean transportation options to low-income and other marginalized communities that may be less able to purchase personal EVs. Further, by cleaning up bus and other depots that tend to concentrate in low-income communities, TCI could have an amplified benefit by improving local air quality. The initiative represents the all-too-rare instance where disadvantaged communities may realize a meaningful share of benefits from clean energy investments.

During 2019, the TCI jurisdictions will dig into policy design, including the identification of regulated entities and fuels and the development of emissions cap levels, monitoring and reporting guidelines, and cost containment and compliance flexibility mechanisms. As with the implementation of RGGI, reaching consensus on many of these issues will be challenging, but is critically important for the region. Given the continued lack of federal action on climate issues, the leadership of the states in pursuing innovative emissions reductions programs like TCI and RGGI is essential in the fight to protect our environment.

TCI and RGGI are notable for another reason: they are examples of states coming together on a regional basis to address a problem. Like electrons in the power grid, people using the nation’s transportation infrastructure cross local and state lines without regard to boundaries. Indeed, the very purpose of a vibrant transportation system is to allow the smooth movement of people and goods across large areas. A system wherein multiple modes of clean transportation “work” across state boundaries is just as essential as a reliable, resilient, and clean power system.

It is exciting to see states bring to the transportation sector the creativity they have used to achieve emissions reductions in the electricity sector. As other jurisdictions consider opportunities to address our climate challenges, they should look to the regional, market-based approaches being used in the Northeast and Mid-Atlantic states — vibrant examples of how to do things right.

States drive carbon policy forward by electrifying transportation sector.

Report on Environmental Rule of Law

Read more about Report on Environmental Rule of Law

Author

Carl Bruch - Environmental Law Institute

Environmental Law Institute

Current Issue

January-February 2019

Issue

Since the 1992 Earth Summit, environmental laws have grown dramatically as countries have come to understand the vital linkages among the ecosystem and economic growth, public health, social cohesion, and overall security. The growth of environmental laws, rights, and institutions has helped to slow degradation and achieve the manifold benefits that accompany protection of the natural world.

Too often, though, countries are failing to fully implement and enforce environmental regulations. Laws may lack clear standards and mandates or may not be tailored to local and national contexts, and implementing ministries may be underfunded or politically weak. As a result, there is often a gap between the laws on the books and their effect. These shortfalls are not limited to developing nations.

To address this implementation gap, UN Environment engaged ELI to help advance environmental rule of law. This rule of law is achieved when laws are widely understood, respected, and enforced and the benefits are enjoyed by people and the planet. In January, we published a flagship report on the environmental rule of law to help countries address the gap.

Written with UN Environment and worked on by over 20 ELI staff and volunteers, the flagship report frames the international discourse on environmental rule of law. It builds on the precepts of sustainable development developed by ELI President Scott Fulton and Brazilian High Court Justice Antonio Benjamin in their 2011 article “Foundations of Sustainability” and subsequently expanded upon by UN Environment’s International Advisory Council on Environmental Justice.

In addition to highlighting global trends across five key domains of environmental rule of law (laws, institutions, rights, civic engagement, and adjudication), the report presents a wide range of case studies of environmental rule of law. It concludes with actionable recommendations for countries and partners.

One key recommendation emphasizes the need for a regular global assessment of the state of environmental rule of law. The report proposes an indicator framework and highlights existing datasets that could be utilized in support of such an assessment. Another notable recommendation is a call for a concerted effort to support countries in pilot testing approaches to strengthen environmental rule of law.

These practices — and others facilitating effective implementation and enforcement of environmental rule of law — are likely to be hallmarks of the next generation of environmental law and will form the basis for a fundamental shift in the political economy around environmental law.

The report was written in consultation with a wide array of stakeholders, including environmental lawyers and researchers located across the globe and active in both the public and private sectors. With a substantial diversity of experiences, approaches, and perspectives, ELI’s experience in bringing together diverse perspectives proved helpful. The completed report provides a thorough and evenhanded overview of the possibilities for building environmental rule of law in both developed and developing nations.

These possibilities are organized into four substantive chapters, as well as an introduction and a section on future directions. These chapters highlight broad themes of the key domains identified above, while the last section emphasizes that achieving sustainable development depends on strengthening environmental rule of law and makes several overarching recommendations. One of these addresses the importance of engaging diverse actors and of measuring, tracking, and reporting on progress and performance.

Within each of these chapters, maps depict the spread and current extent of various specific related indicators, such as the existence of environment ministries or the protection of indigenous land rights. Case studies also highlight exemplary stories of environmental governance.

While the full text of the report is available online from ELI and UN Environment, there are other ways that parties can engage with its analysis. All of the maps included are available from ELI’s web page on Environmental Rule of Law, as are the full datasets.

The report comes at a pivotal time when human society is at risk of exceeding critical ecological thresholds. If these boundaries are to be respected, it is imperative that environmental rule of law be expanded and improved and that clear and even-handed environmental laws be enacted, implemented, and enforced.

It is our hope that this report will convey the importance of environmental rule of law and inspire national and subnational governments — as well as nongovernmental organizations and other private-sector actors — to focus their activities to give force and practical effect of environmental laws, not only for the good of all but for their own.

Report on environmental rule of law.

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