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.

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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.

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.”

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.

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.

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

When I was a philosophy student at Princeton in the 1970s, our department was rated number one nationally because of its stars in analytic theory. But the hottest department was Harvard’s, where two professors who were office neighbors held opposing viewpoints on social philosophy and wrote bestsellers — an anomaly for such scholarly works. John Rawls published A Theory of Justice in 1971, and Robert Nozick responded with Anarchy, State, and Utopia in 1974.

Rawls’s work is famous for his “original position,” where, behind a “veil of ignorance” that prevents people from knowing their ultimate station, they can work out the rules that will govern their lives to come. The idea is that in such a situation, attributes like fairness and equity would be at the fore in the resulting system of justice. Who wants an inequitable social system?

Nozick counters Rawls with his “Wilt Chamberlain example.” Chamberlain was the biggest basketball star of his era and earned the most money. Surely, Nozick declares, the incremental cost to each fan of, say, 25 cents to watch a game with Chamberlain playing is reasonable and therefore the star deserved his millions.

I read Nozick to say that even behind a veil of ignorance, those in the original position could allow such a situation to exist, if only for the guarantee of enjoying Chamberlain for a nominal fee and for a small chance that they might end up being somebody like Michael Jordan in real life. Thus, some abilities are worth more than others, allowing those with in-demand skills to charge whatever the market can bear.

When Nozick ventures beyond basketball, he runs into trouble. “A medical researcher who synthesizes a new substance that effectively treats a certain disease and who refuses to sell except on his terms . . . does not worsen the situation of others by depriving them of whatever he has appropriated” from the resource base — why, the resources are out there for anyone else to exploit.

One wonders what the philosopher would make of those merchants who horded masks and ventilators and sold them at high markups to desperate states and hospitals last spring. Indeed, Nozick writes that “the fact that someone owns the total supply of something necessary for others to stay alive does not entail that his (or anyone’s) appropriations of anything left some people (immediately or later) in a situation worse than the baseline one.”

The problem is that such Randian philosophizing has real-world consequences. When it comes to the coronavirus, the veil of ignorance has been pierced. And while stories of compassion and generosity abound, so do stories of profiteering and mad scrambles to secure supplies. Thus it is hard to imagine in the original position that anyone would allow a society where vast suffering could occur because of a need to maintain steadfast and unwavering adherence to a belief that the unfettered market will deliver personal protective equipment, treatments, and even a vaccine faster and cheaper than if the federal government were to coordinate or, even worse, manage the response.

Belief in the market encompasses more than its purported efficiency at allocating resources. The average person also believes the rules of the game are fair. But what if they aren’t? Writing in Scientific American, MIT mathematician Bruce M. Boghosian describes a game where someone invites you to flip a dollar coin. If you call it correctly, she pays you 20 cents. If you lose, she takes 17 cents from your dollar. The money stays on the table until you decide to take the pot home.

Behind a veil of ignorance, people might allow such transactions, where both parties agree to the rules before playing and derive equal satisfaction. But over time, and expanded to many players, “One agent ends up as an ‘oligarch’ holding practically all the wealth of the economy, and the other 999 end up with virtually nothing,” writes Boghosian. The problem is that such seemingly advantageous transactions occur throughout our economy, he says. He thus explains not only wealth inequality but — because the rules seem fair — the lack of a negative societal response despite the accumulation of capital in just a handful of families.

Inequality in household wealth is a key feature of environmental injustice. And in a sad irony, so is the disparate impact of the environmental cost of purchases of goods and services. Indeed, a study published in March 2019 in the Proceedings of the National Academy of Sciences “put[s] hard data behind inequities that environmental justice advocates have reported on the ground, revealing that racial minorities bear a disproportionate amount of the costs of emissions tied to higher levels of consumption” by the majority non-Hispanic white population, according to a review of the study in a different issue of Scientific American.

“On average, black and Hispanic people are exposed to 56 and 63 percent more PM2.5, respectively, than the amount generated by their consumption, whereas white individuals are exposed to 17 percent less.” But importantly, “household income was a factor in the observed difference, but it did not account for the entire mismatch,” otherwise presumably due to race.

Again, it is hard to imagine in an original position framework people choosing such an outcome as possible, even if that were to mean giving up hopes of being the next Steph Curry.

Notice & Comment is written by the editor and represents his view.

Why Weaken Our Most Successful Environmental Law?

Fifty years ago, President Richard Nixon signed into law the National Environmental Policy Act, or NEPA. This year, President Donald Trump is moving to gut it. . . .

The reasons for its success are clear — it is far wiser, and cheaper, to assess and prevent adverse environmental impacts in advance than to plunge ahead and try to repair the damage afterward. That’s exactly what NEPA does.

The first of two critical elements of this process is predicting the environmental impacts so they can be avoided. Central to this analysis are the concepts of alternatives and mitigation. . . . The second element is involving the public with all its constructive ideas. . . .

The Trump administration’s proposal would eviscerate the operation of NEPA in many ways. It would explicitly bar the examination of cumulative impacts, which is totally at odds with the legislation. . . . Similarly, the proposal would remove the explicit requirement to discuss indirect impacts. . . .

Finally, the administration claims it is reducing the amount of time the NEPA process takes, a plausible goal. But none of the proposals outlined above would further that goal.

—Nicholas Yost in The Press-Democrat

“The U.S. could save more than $1 trillion over the long term by removing roughly 1 million homes from flood-prone areas and relocating residents to higher ground, according to a massive new study funded by the government.”

— Tom Frank in E&E News

Air Apparently Is Clean Enough

The Trump administration has completed work on a rule that would require auto manufacturers to improve the fuel economy of their fleets by 1.5 percent per year for the next five years. The program replaces an Obama-era rule that would have instead increased efficiency by 5 percent a year — a goal several of the carmakers said they were on track to achieve. The rollback apparently was another effort by the White House to eliminate the legacy of its previous occupant, according to a writeup on the new rule in the Washington Post.

“In its rush to roll back the most significant climate policy enacted by President Barack Obama — mileage standards designed to reduce pollution from cars — the Trump administration ignored warnings that its new rule has serious flaws,” the newspaper reported.

According to documents obtained by the Senate Environment and Public Works Committee’s ranking member, there was “an exchange between two agencies that has not been entered into the public record as required under the Clean Air Act.”

“In the rush to finalize this rule — and in the middle of a pandemic, no less — they broke just about every rule in the book.” said Senator Tom Carper (D-DE). “The result is a policy that fails to protect public health, fails to save money, fails to result in safer vehicles and will, ultimately and undoubtedly, fail in court.”

E&E News also reported on the rule: “On Page 1,525, the Trump administration’s rule to roll back emissions standards for cars offers a striking assessment: it could cause 444 to 1,000 premature deaths from air pollution. . . . Other figures show the rollback could result in a net cost to society of $13.1 billion and also cause hundreds of additional cases of respiratory illnesses in comparison to the clean car standards established by President Obama, according to an E&E News review of the document.”

The timing of the rollback was bad, as it came out while the country was shut down because of the pandemic — news reports show that officials at EPA were forced to work on the rule at agency headquarters, endangering their health.

To that point, the liberal online zine Salon reports that “areas of the United States with higher levels of air pollution experience higher COVID-19 death rates than areas with cleaner air, according to a study by researchers at Harvard University.”

The public health scientists “analyzed 3,080 counties and found that even slightly elevated levels of tiny particles . . . were linked to higher death rates. PM2.5 particles are emitted from vehicle exhaust and coal power plants. PM2.5 exposure has long been linked to higher rates of heart disease, diabetes, and respiratory illnesses, which have all been linked to a higher risk of severe illness and death from COVID-19. Nearly 80 percent of patients requiring intensive care treatment have at least one of the three types of conditions.”

The Post also reported on another regulatory move designed to protect air pollution. The Trump administration decided in April “not to set stricter national air quality standards, despite a growing body of scientific evidence linking air pollution to lethal outcomes from respiratory diseases such as COVID-19.

“Environmental Protection Agency Administrator Andrew Wheeler announced . . . that the agency would maintain the current standards for fine particulate matter, otherwise known as soot, the country’s most widespread deadly pollutant.

“The EPA’s staff scientists recommended lowering the annual particulate matter standard to between 8 and 10 micrograms per cubic meter in a draft report last year, citing estimates that reducing the limit to 9 could save roughly 12,200 lives a year. The EPA’s Clean Air Scientific Advisory Committee was split on the question, with some members calling for tighter standards and others saying the current one is sufficient.”

At one of the daily White House Coronavirus Task Force news briefings in early April, the surgeon general, Jerome Adams, discussed how black and brown communities have been disproportionately impacted by the COVID-19 pandemic. He described how residents of minority neighborhoods in Michigan, Illinois, and Louisiana; in large cities like Milwaukee and Detroit; and in the populous boroughs of the Bronx and Queens are more likely to get sick with the virus because they already are more likely to suffer from health conditions that can reduce their bodies’ ability to handle additional illness. Moreover, because of past government policies and private-sector housing segregation, the residents have been forced for generations to live in communities that have limited access to quality health care. Worst of all, because of environmental racism, these citizens live in the midst of pollution-generating facilities such as landfills, incinerators, refineries, and chemical plants and, consequently, have been disproportionately exposed to environmental harms.

Last year, the National Institutes of Health released a study entitled “Race, Income, and Environmental Inequality in the United States, 1990-2014.” The researchers concluded that black and brown families are more likely to live in environmentally hazardous neighborhoods than white families, even when they have equal or higher incomes. According to the authors, this overburdening with toxic concentrations of pollution explains some of the significant health disparities that exist between America’s white population and its black and Hispanic minorities.

One might think that the law addresses these disparities, but over the last 30 years or so, since when the disparities were first widely recognized, environmental justice advocates have become disheartened as each avenue of redress ends up a dead end. First there were court decisions limiting the use of Title VI of the Civil Rights Act of 1964 as well as the Equal Protection Clause of the Fourteenth Amendment to combat the siting of pollution-generating facilities in black and brown communities that are already inundated with noxious neighbors. At one point, it appeared that federal environmental laws could provide effective routes to address these disparate impacts, especially when coupled with alternative dispute resolution, but that hasn’t worked out either as courts have whittled away potential benefits for minority communities. In sum, what has been coined Legislative Environmentalism has failed miserably for black and brown neighborhoods.

Clearly, law at the national level is not implementing cherished American ideals of egalitarianism and equity. But the battle is not lost; there are still means of redress under our federal republic. Providing tools at the state constitutional and legislative levels helps affected communities fight against environmental injustice. We need our 50 laboratories of democracy to show successful solutions in countering environmental racism. Already, lode-star states are enacting environmental rights amendments to their constitutions, along with legislation that specifically addresses the health and the environment of disproportionately impacted communities.

But before we look at this leadership in protecting public health in the states, it helps to first ask how federal environmental laws fail many minority or low-income communities. The answer lies in the laws’ process orientation, requirements to jump through procedural hoops. For example, the preparation of an environmental impact statement is a key part of the permitting process under the National Environmental Policy Act. NEPA provides that if an EIS is determined to be inadequate after the federal government’s assessment of the potential environmental effects of the proposed project, the applicant can always revise the document to meet regulators’ objections. The result in too many cases is that the siting of the pollution-generating facility may only be delayed and not stopped, which is the primary goal of affected communities.

A recent example of this problem is the Friends of Buckingham v. State Air Pollution Control Board case. In January, the Fourth Circuit Court of Appeals in Richmond sent a permit for an Atlantic Coast Pipeline’s compressor station back to Virginia’s state regulators over environmental justice concerns. The compressor station, which would burn gas 24 hours a day, 365 days a year, is one of three planned to support the transmission of natural gas through the 600-mile ACP, which is projected to stretch from West Virginia to South Carolina.

The plaintiffs, Friends of Buckingham and the Chesapeake Bay Foundation, challenged the compressor station permit issued by the State Air Pollution Control Board, arguing that the project would have a disproportionately adverse impact on the health of residents of the predominately African American Union Hill neighborhood in Virginia’s Buckingham County. In fact, according to the appellate court, Union Hill consists of 84 percent nonwhite residents, some of whom are the descendants of its Civil War-era founders. The court recognized a study which revealed that the residents, including many elderly, already suffer chronic ailments including asthma, chronic obstructive pulmonary disease, chronic bronchitis and pneumonia, heart disease, and other conditions that would make the residents particularly susceptible to pollution from the compressor station.

The court of appeals vacated and sent the permit back to the board for reconsideration, citing, among other things, the panel’s inadequate assessment of the health risks of the site to the community. “It is clear to us that the board’s EJ review was insufficient, which undermines the board’s statutory duties and renders the board’s permit decision arbitrary and capricious, and unsupported by substantial evidence,” the court concluded. “The board rejected the idea of disproportionate impact on the basis that air quality standards were met,” the three-judge panel found, “but environmental justice is not merely a box to be checked, and the board’s failure to consider the disproportionate impact on those closest to the compressor station resulted in a flawed analysis.”

Moreover, the court of appeals cited the board’s failure to obtain an independent assessment of the Union Hill site’s suitability and stated, “The board’s failure to expand on and correct this erroneous [Department of Environmental Quality] site suitability analysis — which remained unchanged from October 2018 to January 2019 — was arbitrary, capricious, and unsupported by substantial evidence in the record.”

Nevertheless, Aaron Ruby, a spokesman for Dominion Energy, stated via email: “We will immediately begin working with the state to resolve the procedural issues identified by the court and are confident this can be completed in a timely manner. We expect the project will still deliver significant volumes to customers under our existing timeline, even as we work to resolve this permit.”

As this episode shows, in many respects the greatest strength of environmental laws is that they are procedural, allowing opportunity for community intervention on process-related grounds; but at the same time the greatest weakness of environmental laws is that they are procedural, and EJ thus can become indeed merely a box to check en route to ultimate project approval.

The Old Dominion does not have environmental justice legislation, which would make environmental justice an integral, systemic part of how agencies permit and regulate activities in the commonwealth. Nonetheless, achieving environmental justice can arguably be an agency duty under state law. Indeed, the statute provides that the Air Pollution Control Board in approving permits “shall consider facts and circumstances relevant to the reasonableness of the activity involved and the regulations proposed to control it.” There are four major grounds for review of permits under Virginia law. Number 1 references “the character and degree of injury to, or interference with, safety, health, or the reasonable use of property which is caused or threatened to be caused.” Number 3 references “the suitability of the activity to the area in which it is located.” The appellate court determined that the board violated this state law by failing to assess the compressor station’s disproportionate health impacts on the predominately African American community, in violation of the first enumerated ground for concern, and failed to assess the suitability of the site in violation of the third.

If achieving environmental justice can be read into state permitting laws even absent explicit EJ language, avenues for communities to pursue are even stronger where state law explicitly grants environmental rights. In January, New York added Article 48 to its Environmental Conservation Law. Among other things, Article 48 declares that it is now state policy that “all people, regardless of race, color, religion, national origin or income, have a right to fair treatment and meaningful involvement in the development, implementation and enforcement of laws, regulations and policies that affect the quality of the environment.”

Moreover, it is now state policy that “no group of people, including a racial, ethnic or socioeconomic group of people, should be disproportionately exposed to pollution or bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, or commercial operations, or the execution of federal, state, local, and tribal programs and policies.”

Finally, it is now state policy that “no group of people, including a racial, ethnic or socioeconomic group, should suffer from inequitable allocation of public resources or financial assistance for environmental protection and stewardship, including environmental remediation, pollution prevention, open space acquisition and/or other protection and stewardship activities.”

New York clearly has a robust environmental justice program. One could easily surmise that if Virginia had comprehensive environmental justice legislation similar to New York’s, the concerns of the Union Hill residents would have been treated markedly different by the state board in the ACP compressor station matter and may not have required intervention by the federal court system to read EJ into the state’s statutory language.

Unfortunately, due to adverse court decisions, Legislative Environmentalism at the national level does not provide any substantive rights such as the human right to a clean, safe, and healthy environment for anyone, much less disproportionately affected communities like Union Hill. Not even the U.S. Constitution provides that everyone has the right to be able to breathe fresh, clean air; have access to clean water and sanitation; or to live in a clean, safe, and healthy neighborhood. Nor is there a Supreme Court decision declaring that the right to a clean, safe, and healthy environment for all falls within a penumbral right — a right that could be derived from other rights explicitly protected in the Bill of Rights — as the Supreme Court has declared in Griswold v. Connecticut for the right to privacy or in Obergefell v. Hodges regarding the right for same-sex couples to marry.

Eventually, this may prove to be a problem for the residents in the City of Flint v. Guertin matter. In this well-reported incident, the residents of Flint, Michigan, filed a civil suit in federal district court against former state and local government officials who changed the city’s drinking water source in 2014. They argued that the government officials acted with deliberate indifference and thus violated their constitutional right to bodily integrity by knowingly contaminating their drinking water with lead and harmful bacteria, and then repeatedly lied about evidence of the contamination, causing the residents to unknowingly and involuntarily ingest poisonous substances over a period of months.

In short, the Flint community contended that the Michigan Department of Environmental Quality failed to implement proper corrosion controls while drawing water from the contaminated Flint River, and then covered up its actions. The residents prevailed in the district court, and the Sixth Circuit Court of Appeals affirmed and held that the residents’ constitutional right to bodily integrity was violated, largely relying on cases which involved physical “intrusions” or “invasions.”

In January, the Supreme Court denied the petition for certiorari filed by the former state and local government officials who asked the Court to determine whether any alleged substantive due process right to bodily integrity should be extended to protect the public at large from exposure to environmental toxins resulting from governmental policy decisions. With that denial, the Court determined that the residents’ civil suit against those former state and local government officials could proceed.

Unfortunately, there is no right to bodily integrity nor a right to environmental protection set forth in the U.S. Constitution. Nor do federal environmental laws grant any American the fundamental human right to lead healthy, productive lives or have access to breathable air, potable water, and land on which to grow nutritious foods. This failure of Legislative Environmentalism at the federal level is the reason why we must look to the states for substantive relief.

An Environmental Rights Amendment, or ERA, placed in the bill of rights section of a state constitution, creates a constitutional mandate that each person, regardless of race, color, national origin, or income, has an inalienable right to clean air, clean land, and clean water that is enforceable by state courts. These green amendments are manifestations of Constitutional Environmentalism, and provide a mechanism to imbed environmental justice for all as a substantive obligation of government, not merely as an aspirational goal as per NEPA and other federal laws. Where ERAs exist, they are the primary statement of environmental policy in a state.

Virginia, unfortunately, does not have such an amendment. Currently, Article 11, Section 1, of Virginia’s Constitution provides: “To the end that the people have clean air, pure water, and the use and enjoyment for recreation of adequate public lands, waters, and other natural resources, it shall be the policy of the commonwealth to conserve, develop, and utilize its natural resources, its public lands, and its historical sites and buildings.” The evocative language continues: “It shall be the commonwealth’s policy to protect its atmosphere, lands, and waters from pollution, impairment, or destruction, for the benefit, enjoyment, and general welfare of the people.” However, in spite of these seemingly lofty words, in Section 2, the General Assembly “may” undertake actions to protect “its atmosphere, lands, and waters from pollution, impairment or destruction.” But there is no requirement for state action, as Section 2 is not a mandate and Section 1 is merely a statement of policy.

Likewise, Michigan, regrettably, does not have an ERA, although it too has evocative language in its constitution. Currently, Article IV, Section 52, provides: “The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.” Section 52 is a statement of legislative power. It is not a mandatory duty. The constitutional mandate is satisfied by the enactment of general legislation such as the Michigan Environmental Protection Act. Moreover, it does not confer standing to any citizen to bring a claim for a violation of the state’s constitution.

Imagine, for a moment, if Virginia and Michigan had a simple and straightforward ERA like New York’s impending self-executing provision, which states, “Each person shall have a right to clean air and water, and a healthful environment.” The proposed ERA (Article I, Section 19) will be inserted in the state constitution’s bill of rights section, together with the right to freedom of worship; the right to freedom of speech and press; as well as the right to equal protection of the laws. In New York, a constitutional amendment requires a simple majority vote of each chamber of the legislature in two successive legislative sessions with an election for state legislators in between. The proposed ERA will then be put before the voters via a November 2, 2021, referendum.

One could easily surmise that if Virginia and Michigan had such an ERA, the legitimate public health and environmental concerns of the Union Hill and Flint residents would have been treated markedly differently by the State Air Pollution Control Board in the ACP matter and the state and local government officials in the Flint drinking water matter.

It should be understood that Union Hill is not an anomaly. For example, Harlem and the South Bronx are very much like Union Hill in that those predominantly black and Hispanic communities have some of the highest asthma rates in New York City, according to a March 2019 National Academy of Sciences’ study entitled, “Inequity in consumption of goods and services adds to racial-ethnic disparities in air pollution exposure.” The study, which for the first time quantified the racial gap between who causes air pollution and who breathes it, concluded that black and Hispanic Americans bear a disproportionate burden from air pollution caused mainly by white Americans.

Air pollution is the major environmental human health risk in the United States. The Clean Air Act requires EPA to set national standards for particulate matter, ozone, nitrogen oxides, carbon monoxide, sulfur dioxide, and lead, which are considered harmful to human health and the environment. Particulates are especially harmful. Once inhaled, these fine particles can affect other organs, becoming responsible for more than 100,000 deaths each year from heart attacks, strokes, lung cancer, and other diseases. The researchers studied PM2.5 pollution — particles two and a half microns across — finding it is disproportionately caused by the consumption of goods and service by the white majority, but was disproportionately inhaled by residents of black and Hispanic communities.

Although those environmental laws and their implementing regulations are well-intentioned and comprehensive, they all fail to include a fundamental pillar: a basic right to clean air, clean land, and clean water for all individuals and communities. There’s a major difference, however, between the prospects of the residents of Harlem and the South Bronx in that they have a state environmental justice statute and will have an ERA in 2021, whereas, the residents of Union Hill and Flint do not have such tools, merely aspirational language.

The fact that people who live, learn, work, and play in America’s most polluted environments are commonly people of color and the poor is not new information. For example, a January 2020 study entitled, “The Effects of Historical Housing Policies on Resident Exposure to Intra-Urban Heat: A Study of 108 U.S. Urban Areas,” published in the journal Climate, concluded that deadly urban heatwaves disproportionately affect minority neighborhoods because of a legacy, beginning in the 1930s, of racist housing policies.

Although redlining was banned by the Fair Housing Act of 1968, the researchers found that those neighborhoods are still predominantly home to minority and lower-income communities who are disproportionately exposed to a variety of environmental hazards such as lead, poor water and air quality, overdevelopment, and limited shade. Thus, historical housing policies in the United States are directly responsible for the disproportionate exposure to current heat events in urban areas. This is important because the world has experienced 18 of the 19 warmest years on record since 2001.

Further, in 2018 the American Journal of Public Health published a study by EPA’s National Center for Public Health of the Office of Research and Development entitled, “Disparities in Distribution of Particulate Matter Emission Sources by Race and Poverty Status.” With respect to African American youth, EPA’s scientists stated: “Black children and children living below the poverty line experience even higher rates of asthma (13.4% and 11.1%, respectively). In addition, black children are 4 times more likely to be admitted to the hospital for asthma, and have a death rate 10 times that of non-Hispanic white children.” This is damning information. The agency went on to say, “Previous research has shown that stationary sources of air pollution are found in higher concentrations near socially disadvantaged populations — specifically low-income communities and communities of color. Race and poverty are intertwined in America, with 34% of black children living in poverty compared to 19% of children overall. A deeper examination of disproportionate pollutant exposures across racial versus socioeconomic lines can better inform policies to address health disparities.”

In sum, EPA’s scientists supported, through their analysis, the fact that environmental racism continues to exist in this country, and that the health of certain populations, chiefly minority and low-income neighborhoods, is more adversely impacted as compared to the health of non-Hispanic white communities. EPA’s scientists concluded that: “Disparities in pollution exposure from PM emissions were more pronounced for black populations (regardless of wealth) than those living in poverty. Thus, it is insufficient to consider only socioeconomic status when working to decrease burdens caused by PM. Emission disparities resulting from structural racism exist on a national level and at the state and county levels in most instances.”

Similar to the Union Hill neighborhood, black and brown communities and low-income communities across this nation are doing all the right things in seeking to have federal, state, and local government regulators address health and environmental issues in the permitting process by engaging in community-empowerment organizing; working with lawyers skilled in community-empowerment advocacy; participating in the government’s decisionmaking processes in order to have a seat at the table; and using the full panoply of environmental laws and their implementing regulations to address instances of environmental injustice.

If environmental justice is to be secured for all communities throughout this country, there must be a concerted effort to amend state constitutions to include the environmental rights of individual citizens. Additionally, states must enact comprehensive environmental justice legislation, and have vibrant environmental justice programs. Otherwise, millions of residents in environmentally overburdened communities like Union Hill, Flint, the South Bronx, and Harlem — and similar communities across the country — will continue to be exposed disproportionately to environmental risks unless they have more tools in the toolbox. Union Hill’s win must not be a Pyrrhic victory.

It may not be surprising to note that the coronavirus crisis has exposed for all Americans to see the health and environmental disparities across this nation — dying from COVID-19 is more likely for those who experience pre-existing conditions like asthma caused by air pollution largely produced in richer communities. However, the coronavirus, racial inequality, unequal health care, climate change, and environmental racism must not be the burden of black and brown communities nor the shame of white communities. But states, which have primary responsibility for protecting the welfare of their citizens, can respond to these inequities by securing environmental rights via amendments to their constitutions together with vigorous legislation addressing the impact of pollution on public health, our communities, and the diverse neighborhoods that make up these United States. TEF

The environmental movement and the civil rights movement were powerful in the 1960s. These public upwellings sought comprehensive laws to control the behaviors of the respective regulated communities. Earth Day 1970 brought exposure to these ongoing concerns.

In that regard, on January 1, 1970, President Nixon signed the National Environmental Policy Act, launching the Environmental Law Decade. Eleven months later, the Environmental Protection Agency was established to consolidate the research, monitoring, standard-setting, and enforcement activities needed to ensure the protection of human health and the environment.

Moreover, Congress enacted the majority of the nation’s environmental laws during this period, concerned primarily with pollutants in the air, surface water, and groundwater and solid waste disposal. Finally, in its wisdom, Congress introduced citizen enforcement suits as part of every major environmental law. In response, legal advocacy groups such as the Natural Resources Defense Council, the Sierra Club Legal Defense Fund (now Earthjustice), and the Environmental Defense Fund began to file lawsuits to force EPA to efficiently and effectively enforce the new laws.

This period could be characterized as the decade of Legislative Environmentalism at its zenith, since most of the major environmental laws were either enacted or significantly amended between 1970 and 1980, with subsequent amendments enacted in the decades since.

The environmental and civil rights movements gave birth, in many respects, to the environmental justice movement, since the environmental laws and their implementing regulations did not work well for all communities. As independent studies beginning in the early 1980s up until today have consistently concluded, minority and/or low-income neighborhoods are disproportionately exposed to environmental risks when compared to other communities.

Thus, although all those laws and regulations are well-intentioned and comprehensive, they all fail to include a fundamental pillar: a self-executing constitutional right to clean air, clean land, and clean water for all individuals, in the form of an environmental rights amendment.

Already there exists in several state constitutions, placed in the bill of rights section, a mandate that each person, regardless of race, color, national origin, or income, has an inalienable right to clean air, clean land, and clean water that is enforceable by state courts. These “green amendments” provide a mechanism to imbed environmental justice for all as a substantive obligation of government, not merely an aspirational goal.

This era of Environmental Constitutionalism, which coincided with the Environmental Law Decade, has produced environmental rights amendments in a number of states. Such amendments now exist in Illinois (1970); Pennsylvania (1971); Montana (1972); Massachusetts (1972); Hawaii (1978); and Rhode Island (1987). They serve as models for Environmental Constitutionalism across the United States.

Let’s briefly examine the state of New York as a “laboratory of democracy,” to use Justice Brandeis’s famous term. New York has an impending vote on a self-executing environmental rights amendment that states, “Each person shall have a right to clean air and water, and a healthful environment.” Article I, Section 19, will be in the bill of rights section, together with the right to freedom of worship; the right to freedom of speech and press; as well as the right to equal protection of the laws. The ERA will be put before the voters via a 2021 referendum.

Already this year, New York has added a new Article 48 to its Environmental Conservation Law. The new article declares that it is now state policy that “all people, regardless of race, color, religion, national origin or income, have a right to fair treatment and meaningful involvement in the development, implementation and enforcement of laws, regulations and policies that affect the quality of the environment.”

Moreover, it is now state policy that “no group of people, including a racial, ethnic, or socioeconomic group of people, should be disproportionately exposed to pollution or bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, or commercial operations, or the execution of federal, state, local, and tribal programs and policies.”

Finally, the law declares that it is now state policy that “no group of people, including a racial, ethnic, or socioeconomic group, should suffer from inequitable allocation of public resources or financial assistance for environmental protection and stewardship, including environmental remediation, pollution prevention, open space acquisition and/or other protection and stewardship activities.”

In sum, read together, environmental justice policy will be embedded into New York’s ERA, and already is so in much state law.

If environmental justice is to be secured for all communities, there must be a concerted effort to amend state constitutions to include the environmental rights of individual citizens and to enact strong environmental justice legislation. Otherwise, overburdened communities will continue to be exposed disproportionately to environmental harms and risks.

Barry E. Hill, adjunct professor at Vermont Law School, headed EPA’s Office of Environmental Justice from 1998 to 2007.

The Intergovernmental Panel on Climate Change issued a special report in 2018 explaining that global temperatures must not exceed 1.5 degrees Celsius over pre-industrial levels if we are to avoid catastrophe. UN Environment recently warned that even if all nations meet their commitments under the Paris Agreement, temperatures are likely to increase by 3.5 degrees.

As climate change triggers rising sea levels and increasingly severe hurricanes, floods, wildfires, droughts, and heat waves, everyone is affected. However, the greatest impact is being felt by those who contributed least to the problem and have the fewest resources to protect themselves from harm, including poor people, persons with disabilities, children, the elderly, indigenous peoples, and residents of the small island states.

Climate change is one of the most pressing social justice issues of our time not only due to the magnitude of harm it inflicts but also due to the imbalance between the high-emitting states that benefited from the carbon economy and the low-emitting states and peoples who bear a disproportionate share of the adverse consequences.

Where can we look for guidance on how to achieve a just transition to a low-carbon economy? One frequently overlooked source is sustainable development law, which has emerged as the overarching framework for environmental governance since it was popularized in 1987 by the World Commission on Environment and Development. Defined as development that meets the needs of the present without compromising the ability of future generations to meet their needs, sustainable development requires the balancing of economic development and social development (the fulfillment of basic needs, such as access to food, water, shelter, healthcare, and education) along with environmental protection.

Many countries have implemented the concept of sustainable development through laws that require an integrated analysis of social, environmental, and economic impacts. A handful of countries have also adopted stand-alone sustainable development laws.

But sustainable development really came of age five years ago with the adoption by the UN General Assembly of the Sustainable Development Goals. The SDGs represent a commitment by world leaders to achieve integrated and interdependent economic, social, and environmental targets by 2030, with particular emphasis on the protection of vulnerable groups, including children, the elderly, indigenous peoples, refugees, migrants, and internally displaced persons. The SDGs overcome the fragmentation of international law by recognizing that environmental law, economic law, and human rights law must not operate in silos or at cross-purposes.

However, the SDGs contain a fatal flaw. They continue to envision economic growth as the primary engine of poverty reduction. By failing to recognize the impossibility of infinite growth on a finite planet, the SDGs perpetuate the contradiction between economic growth and ecological sustainability that has long bedeviled the concept of sustainable development.

As ecological economists have observed, in order to enhance the living standards of the poor without exceeding ecological limits, it is necessary to reduce the scale of production and consumption in affluent countries. Scholars, activists, and grassroots environmental justice movements are increasingly calling for sustainable degrowth in affluent countries as a means of reducing the ecological impact of the global economy while meeting basic human needs and ensuring a high quality of life for all.

In the United States, proponents of the Green New Deal are well-advised to consult the history of sustainable development as they craft policies to address the dual crises of climate change and social and economic inequality. A healthy, just, and sustainable planet cannot be achieved unless we respect biophysical limits and recognize that the environment is the floor upon which both society and the economy rest.

In September 1969, a small group of visionaries gathered at Airlie House in Northern Virginia to discuss how to further the formation of environmental law. Among the thoughts that emerged was the creation of an organization that could help build environmental law capacity through publications, education, and research. On December 22, 1969 — the same day that Congress passed NEPA — articles of incorporation were filed for the Environmental Law Institute.

Fast forward 50 years. On November 18-19, there was another gathering at Airlie House, this time to reimagine the future of environmental law. This gathering was partly commemorative, marking the 50th anniversaries of both ELI and George Washington University’s environmental law program, but it was also aspirational. It was our hope that some of the magic that was present at Airlie 50 years ago might evoke some fresh thinking about the road forward.

The gathering used as its point of departure a convening earlier in the year at the Wingspread Conference Center in Racine, Wisconsin, and focused on the following: climate change, non-point or uncontrolled pollution, ecosystem degradation, the circular economy, and environmental justice. Let me mention a few themes that seemed to cut across the issue areas.

The Airlie gathering had a recurring emphasis on the vital importance of subnational planning and lawmaking. This we understood as a natural tilt in an era in which federal lawmaking is largely paralyzed and national policy has proven unstable. But the shift also reflects the reality that many environmental problems sort out at the ecosystem (e.g., watershed or airshed) or community level in a way that allows for better understanding and response. Harnessing state, local, and regional planning, assessment, and mitigation processes seemed to the group to hold promise for all of the issue areas that we discussed.

We recognized the need for new paradigms — based either on new law or reimagining of existing law — if we are to make progress on our intractable problems. The concept of no net loss, borrowed from the wetlands policy that has been in place for the last 30 years, emerged as a potentially transferable idea in this regard. We discussed this most in the context of ecosystem degradation, where there was a general sense that our current model pays insufficient attention to human impacts on ecosystem function, leading to functional erosion. A no-net-loss of ecosystem services policy was seen as promising dividends extending across many of the other issue areas that we discussed, including pollution from uncontrolled sources, climate change, and environmental justice, as well as to related issues like stemming biodiversity loss.

The idea of no further degradation had some special identity in the environmental justice discussion. This is of course a complicated area, in that, for EJ communities, environmental burdens are often layered on top of historical discrimination that has left these groups chronically downstream or downwind from, or adjacent to, a concentration of pollution sources, leading to environmental degradation that is progressive and often sustained.

As this issue is concerned with the fair distribution of environmental burdens, or equal protection from environmental impacts, the group saw as potentially important the recognition of constitutional environmental quality rights by states, which may serve as a predicate for clearer thinking about equal protection in the environmental context. The group also observed the potential of state tools like Calenviroscreen to identify and protect existing cumulative burden zones, perhaps allowing for human-system assessment, planning, and mitigation not unlike that envisioned for ecosystems.

We also discussed at length the considerable cross-cutting potential of environmental big data and private environmental governance-based systems, with the important caveat that their contribution as drivers of environmental performance will hinge on the transparency of these systems, and the accessibility of the relevant data to a broad set of users. Public trust remains a limiting factor with respect to private sector leadership, and environmental big data’s value turns on broad accessibility to the data itself as well as to data analytics.

A lot from these discussions to process and sift and share — a harvest that will extend well into the new year. The bottom line take-away for now: the same compelling need for creative, future-oriented thinking that brought our founders together in 1969 is present today. There are major problems to solve and big ideas needed to solve them.

Let’s get after it.