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

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

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

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

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

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

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

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

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

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

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

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

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

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

—Stephen R. Dujack

Counting Sheep

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

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

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

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

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

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

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

—Akielly Hu

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

Greenhouse Carbon Dioxide Now Legally an “Air Pollutant”

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

Now it has.

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

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

—New York Times

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

—Farhad Manjoo in
the New York Times

Dodging Falling Rockets and Errant Minor Asteroids.

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

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

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

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

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

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

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

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

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

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

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

ECOS to Prioritize Infrastructure, Environmental Justice, and PFAS.

Ensuring Lasting Progress on Water Quality
Author
Fred Andres - Barnes & Thornburg LLP
Barnes & Thornburg LLP
Current Issue
September-October 2022
Issue
5
Parent Article
The Clean Water Act at Year 50: What's Next for Water Protection?

Over the last 50 years, the Clean Water Act has made great progress in addressing the nation’s water quality challenges. We owe many of our achievements to that statute and the regulations that have followed. But we also know that many issues remain. Some are longstanding problems that have not yet been resolved, and some are new issues, such as climate change, that have arisen in the meantime. In some ways, these new issues pose the most difficult and complicated challenges faced yet under the Act. That is especially the case given the current political situation, as well as potential changes in the doctrines laid out by federal courts to govern the regulatory process. To make progress in this environment, we need to work together in creative ways to provide regulatory stability and involve all stakeholders.

In charting this path, we need to keep several key concepts in mind. The first, and perhaps the most important, is to focus on results, rather than simplistic measures that don’t measure real improvements in water quality. We can look at numbers of permits or Total Maximum Daily Load levels or rules issued, and take those as signs of progress (or lack thereof), but those metrics don’t really tell us much. We need to define our goals in terms of what really matters: Are we making dirty waters cleaner, and are we keeping the clean waters clean? To assess progress toward those goals, we need robust, solid data. Collecting and analyzing those data needs to be a priority—including making sure that EPA, states and other stakeholders have the resources needed to effectively conduct these efforts.

We also need a renewed focus at the watershed level. Too often, our regulatory programs sit in silos—looking at specific facilities, certain reaches of rivers, or narrow parameters—and lose the bigger picture. There are many watersheds around the country where stakeholders are looking at the whole watershed and protecting its designated uses—and making real progress. But those efforts do not fit easily into our current regulatory structure. To promote and expand use of those watershed approaches, we need to find ways to encourage their use within CWA provisions and the regulations issued under the CWA.

When addressing issues at the watershed level, it’s important to consider environmental justice concerns. To do so, we need to define what EJ means in practical terms. For regulated parties to factor EJ issues into compliance plans, policymakers should provide specific, concrete guidance on actions that need to be taken in order to be in compliance. The clearer those requirements are, the easier it will be for dischargers to plan and take necessary actions. And of course, the process of creating and implementing those requirements must involve the affected community. This approach is already being taken in some areas, and those examples can be used to provide guidance for implementing EJ concepts elsewhere in the country.

Climate change is another issue that needs to be addressed under the CWA, in a way that will facilitate effective compliance actions. Because climate change is a long-term issue, figuring out how it should be addressed by particular facilities can be challenging. It is particularly difficult when there are several ways in which climate change considerations can factor in—for example, if new CWA controls are required to address water quality issues, those control systems may increase energy use at facilities, thereby increasing the facilities’ carbon footprints. As with EJ, it will be important to develop clear guidance and/or requirements for facilities to consider climate change concerns. This will markedly increase the chances that real progress will be made in implementing needed actions.

A final concept to consider in developing CWA policies going forward is the need to balance two potentially conflicting priorities: promoting regulatory stability and encouraging adaptive management and cooperation. Shifting directions from regulatory agencies (and Congress) only create confusion and increase the potential for conflict. Putting requirements into effect, and then leaving them in place to be implemented over a period of time, will enable us to make progress—and will also help us figure out what is working and what is not. At the same time, we need to maintain enough flexibility in the regulatory structure so that when actions don’t work, we can make the needed changes to move in a more productive direction. Improving the CWA therefore will entail steps toward implementing both of these priorities.

Fred Andes is partner at Barnes & Thornburg LLP and the leader of the firm’s water team. Fred is involved in counseling and litigation on issues arising under various federal and state environmental laws, with a special emphasis on Clean Water Act matters.

Water Officer of the United States
Author
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Current Issue
May-June 2022
Issue
3
Radhika Fox smiling at the camera and wearing a white blazer and black shirt

In a political climate marked by polarization and division, sometimes you need a tangible reminder of how interconnected we are. For Radhika Fox, this uniter comes in the shape of one of our most important, yet underappreciated resources: water. Even when we are unable to come to terms with our interdependence, the evidence is plain to see. “If there’s somebody upstream, there’s always somebody else downstream. That’s the nature of the water cycle,” says the country’s most senior water policy official.

A day-one appointee in the Biden administration, Fox was officially sworn in as assistant administrator for water at the U.S. Environmental Protection Agency on June 16, 2021. She is the first woman of color and the first person of Asian American heritage to ever hold the position—a historic moment for the water office.

It’s also “a historic moment for water,” as Fox says. Half a year after her confirmation, the bipartisan infrastructure law injected into the economy more than $50 billion for clean water—the greatest single federal investment in water in the nation’s history. As new infrastructure funds flow through the country, all eyes are on EPA and its Office of Water to tackle some of the most complex and important issues facing this vital resource.

On the most basic level, Fox and her team’s job is to keep the nation’s surface waters clean and its drinking water safe. These Herculean tasks require implementing an alphabet soup of regulations and statutes, most importantly the federal Clean Water Act and the Safe Drinking Water Act. Policymakers at the water office draw out rules to regulate the filling of wetlands and the discharge of pollutants, among other duties.

The water team is also taking on many of the nation’s most pernicious environmental injustices, including lead, per- and polyfluoroalkyl substances, or PFAS, and other toxics in drinking water. Fox has named these issues as top priorities for her tenure. “There’s nothing more fundamental and more essential than equity in the context of water management,” she says.

“I mean, just think about your day, right? You can’t get through your day without access to clean, safe water, whether that’s having that cup of coffee or a glass of water, or being able to provide safe water for your children. Unfortunately, millions of people in this country and all around the world don’t have that fundamental, basic security,” Fox says.

Crises like the lead poisoning in Flint and Benton Harbor, Michigan, have made clear the urgent need for improved, equitable water management. Exposure to lead, particularly in drinking water, disproportionately affects low-income communities and communities of color. The contaminant impairs neural development in children and causes greater risk of kidney failure and stroke, among other health conditions. According to the White House, lead pipes run through an estimated 6 to 10 million homes, plus another 400,000 schools and child care centers.

Early on in his presidency, President Biden announced a goal to replace all lead service lines in the United States. The directive relies heavily on the Office of Water’s regulatory muscles, particularly when it comes to tightening protections under the Lead and Copper Rule, a Safe Drinking Water Act-related regulation published by EPA to limit these substances.

LCR has spun through a turnstile of revisions over the years. In December 2021, EPA announced the office would develop new revisions to the rule, to make the regulation more protective than its current version. “We had a huge, robust public engagement process last year with communities who are on the front lines of the lead crisis, tribal nations, co-regulators, and national associations,” Fox says of the upcoming rule.

In an earlier E&E News interview, Fox clarified that these roundtables would help close a crucial gap in understanding. “We know historically that we haven’t really considered enough the way in which the Lead and Copper Rule impacts people of color,” she said. EPA expects to finalize the new revisions by October 2024.

Concurrently, the water office is moving forward on policies to limit PFAS. These so-called “forever chemicals” are found in the bodies of virtually all Americans, and are associated with cancer, immune disorders, and developmental issues, among a host of other health harms. Fox co-chairs the EPA Council on PFAS, along with the agency’s Region 1 Deputy Regional Administrator Deborah Szaro. The group coordinates agency-wide efforts on PFAS according to a timeline in the council’s strategic roadmap. Targeted actions include regulating PFAS under the SDWA and minimizing chemical discharges in wastewater.

Although many of these rulemakings are still in progress, Fox says she is already “incredibly honored to be in this role as assistant administrator for water to continue the journey toward water equity and justice.” Growing up, her understanding of the disparities between communities and countries developed on an intuitive level, rather than as a conscious awakening.

“My commitment to equity and justice and opportunity for all comes from my upbringing, first and foremost. I am the child of immigrants who came to this country searching for economic opportunity, and I very much stand on their shoulders,” she says.

Fox’s parents grew up in rural India, and her grandparents worked as small farmers, growing rice, lemons, and bananas. Water was essential to her family’s agricultural livelihood. At the same time, their village lacked tap water or flush toilets; the family relied on drinking wells and pit latrines.

Her family regularly traveled back to her grandparents’ village during the summers of her childhood, an experience that allowed her to “see how infrastructure, especially water systems that we didn’t have at my grandmother’s village, can create these communities of opportunity.”

“I think equity is deeply ingrained in who I am because of my background, and from recognizing that the opportunities afforded to you are often random—like from whom and where you were born. I have always felt a desire to give back because I have been given so much opportunity by my family,” she says.

As an undergraduate student at Columbia University, Fox volunteered in Harlem and “saw firsthand how there are so many systems and structures that afford opportunity to some, but not to others.” The experience affirmed a lifelong commitment to equity and justice. Even in her earlier work on infrastructure, housing, and transportation, environmental justice served as “a thread through all of those experiences.”

Fox describes her career trajectory as “grounded in infrastructure.” After more than a decade as the federal policy director at PolicyLink, a research institute dedicated to racial and economic equity, she joined the San Francisco Public Utilities Commission as director of policy and government affairs, helping to provide water and wastewater services to more than 2.6 million Bay Area residents.

“What drew me to the SFPUC was their infrastructure work. The biggest tributary to infrastructure investment in San Francisco is actually the water department. People don’t realize that, so although I went there for infrastructure, I fell in love with working on all kinds of water issues,” Fox says.

She continued to make her mark on the water world as CEO of the national nonprofit U.S. Water Alliance. There her stature began to be generally acknowledged. “Radhika Fox is a significant figure in the water sector—a woman with tremendous respect and standing in the community,” says Tracy Mehan, former assistant administrator for water under the George W. Bush administration. At the Water Alliance, Fox worked to find common ground between water utilities, businesses, nonprofits, and other water sector stakeholders for more than five years before joining EPA.

What sets Fox apart from other bureaucrats is a grounding of policies in the lived, on-the-ground experience of everyday people. Fox has frequently mentioned in public statements that her team’s policymaking will be guided by a principle of “listening to all sides to find enduring solutions.” The philosophy has been a “through line” in her career, and will be put to the ultimate test for reaching consensus on one of water’s most contentious policy issues—the Waters of the United States rule.

Under written law, Clean Water Act jurisdiction extends to any area designated as “Waters of the United States.” What exactly these include is something policymakers have failed to achieve consensus on since the 1980s. A confusing definition of WOTUS jeopardizes the ability of governments at every level to protect the nation’s waters, for a simple reason—whatever doesn’t count, doesn’t get regulated under the federal law.

One sticking point is whether ephemeral or intermittent streams should be covered. The issue has significant implications for the arid Southwest, where water levels tend to fluctuate much more than other areas of the United States. Relentless back-and-forth between administrations, and court decisions over the decades that have introduced even more confusion, has left a patchwork of jurisdictional definitions operating in the country.

Fox describes the last decade of the WOTUS debacle as a “constant ping-pong.” In 2015, the Obama administration issued a Clean Water Rule to define WOTUS. That definition was later rescinded by the Trump administration and replaced with the Navigable Waters Protection Rule in 2020, a regulation that High Country News said would potentially “exclude as many as 94 percent of Arizona’s and 66 percent of California’s streams and rivers from federal oversight, depending on how regulators interpret it.” The rule was eventually vacated by a federal district court in Arizona in 2021.

Overhauling WOTUS is a focal point for Fox’s tenure in the Office of Water. In her Senate confirmation hearing, Fox affirmed, “Administrator [Michael] Regan and I want an enduring definition of Waters of the U.S., one that can withstand administration changes.” So far, the agency has initiated a two-part rulemaking process that first restores a version of the pre-2015 WOTUS definition. Next, the office will establish a brand new definition, potentially settling the matter once and for all.

Establishing a lasting rule won’t be easy. In a podcast interview with Fox, David Ross, the former assistant administrator for water under the Trump administration, delivers brief advice that sounds more like an inside joke: “I’m just going to say: ‘Good luck.’”

Fox and her team have committed to a system of robust public engagement to guide the office’s decisionmaking. The process involves a series of stakeholder meetings and 10 regional roundtables to be held over the coming spring and summer. Roundtable discussions will include representatives from water and wastewater service providers, agriculture, environmental justice communities, tribal nations, and state and local governments, among other groups.

“It’s an issue where there is so much division. What we have been focused on is: how do we get to a durable definition of waters of the United States, one that tries to balance the very diverse perspectives that have a stake in this definition? I believe that we’re not going to be able to do that unless we listen to all sides,” she says.

Believing that different sides can reach consensus feels radical nowadays, especially in a country with as entrenched social and political chasms as the United States. But Fox believes in the power of hearing from someone you may have never otherwise crossed paths with—and she’s seen it in practice.

In her first year as CEO of the U.S. Water Alliance, Fox helped create the Water Equity Network, a program that guides utilities in building equitable water systems. The idea was borne from a desire to act on the severe human health issues faced in the Flint water crisis and beyond, as well as lessons learned at the San Francisco Public Utilities Commission.

“My experience at the SFPUC proved that water agencies can be community anchor institutions. We were the first utility in the nation to adopt a community benefits and environmental justice policy, and I saw how water agencies are fundamental to the solution,” she says. The organization invited cities like Atlanta, Buffalo, Cleveland, Camden, Milwaukee, and Pittsburgh, among others to participate. It gathered water agencies, local officials, and frontline community organizations most impacted by water-related challenges—including lead, contaminated water, PFAS, and flooding—and forced everybody to listen to all sides.

“The water managers—these technical leaders—heard firsthand from people whose water had been shut off. They learned what that meant for them, and what that meant for their children. These were people who had their basements flooded, and were just living in conditions that no one should have to live in,” she recounts. “The water managers heard directly from those communities, and in turn, the communities heard about the constraints that water managers face. There were so many breakthrough solutions that happened because we created a space for a deliberate, thoughtful airing of all of the issues.”

To Fox, public engagement is not just a box to be checked off. She believes that centering these lived experiences strengthens decisionmaking in a substantial way. “When we listen to all sides—when we embrace the complexity of the issues that we’re tackling in the water sector—we can actually reach better outcomes because of that listening. It leads to a different set of solutions,” she says. “That’s why this principle is so foundational to how I think about the work that I do every day."

Fox's leadership, woven with a philosophy that aligns with the Biden administration’s investments in environmental justice, comes at an opportune time. Yet the choice is deliberate: diversity within the country’s top political officials is a minimum requirement for more representative, people-first policies. As Fox puts it in a Politico interview, “I think selecting somebody like me—frankly, as a woman of color in this leadership role—is also part of the Biden-Harris commitment to building a federal team that reflects the diversity of this nation.”

In the coming years, the Office of Water’s responsibilities will only grow, particularly when it comes to ensuring that new funds under the bipartisan infrastructure law go to those who need it most. About 85 percent of those funds will flow through State Revolving Funds, or SRFs, the main channel for distributing money for water infrastructure and projects. The infrastructure law mandates that 49 percent of this money must go to disadvantaged communities as grants and forgivable loans. But what exactly constitutes a disadvantaged community is under the discretion of states.

On March 8, the water office released a 56-page memo to state SRF program managers and EPA regional water division directors to provide guidance on stewarding these funds and clarify responsibilities states have to disadvantaged communities. “The memo encourages states to look at their definition of disadvantaged communities to make sure it’s consistent with statutes, and provides guidance on preferred factors that should be considered when making the investments in disadvantaged communities,” Fox says.

“The water sector can and must do better to steer all kinds of investments, whether it’s the bipartisan infrastructure law money or other infrastructure funding programs, to these communities,” she says. “With so much money on the table, and so many challenges that we see around the country, I think this is the moment to meet the needs of all communities.”

She emphasizes that the memo is only the first step in EPA’s work to ensure that the historic investments in water don’t leave anyone behind. “One exciting thing that is coming later this year is a very robust technical assistance strategy to help disadvantaged communities build their technical, financial, and managerial capacity to receive these funds. We’re quite excited to work with states, tribes, and territories in that next phase.”

This year marks the 50th anniversary of the Clean Water Act, a law passed during a time when rivers caught on fire from unchecked pollution. Fox says there is still much work to be done. Today, many of the most insidious water issues are invisible, even though their effects may not be. Millions of Americans depend on the work of the Office of Water and its ongoing rulemakings. The stakes are high, and so is the pressure on Fox’s team.

Nonetheless, Fox’s optimism remains grounded in the importance of this work, and the power of water to connect us.

“I think that one of our foundational principles as a nation should be to recognize that water is essential to everyone—to every business, to every community, to every person, and to use that as our north star as we develop future policies.” TEF

PROFILE EPA Assistant Administrator Radhika Fox speaks on her journey to water, the historic infrastructure law investments, and her team’s approach to managing the country’s most essential resource.

The Marriage of Toxic Chemicals and Plastic
Author
Boma Brown-West - Environmental Defense Fund
Environmental Defense Fund
Current Issue
March-April 2022
Issue
2
Parent Article
Can We Make Plastic Sustainable?

Long before plastic waste litters our land and waterways, it has already caused serious environmental and human health impacts because of its oft-ignored linkage to toxic chemicals. We cannot craft a sustainable future for plastic until we address the toxic chemicals emitted during plastic manufacturing and used in plastic products and packaging.

The problem starts early in the production process. Among all refineries and petrochemical facilities in the United States, the top 10 most polluting are ones that make chemical feedstocks for the plastics industry. Industrial plants that manufacture polymers and chemical additives that go into plastics emit large volumes of hazardous air pollutants. The carcinogen ethylene oxide, the most hazardous of these pollutants, is used to make many products, including plastic water bottles, and is emitted into the atmosphere in large volumes during production.

The people who live on the fenceline of petrochemical facilities—often low-wealth communities and communities of color—bear the brunt of these emissions. In the Houston Ship Channel, for example, some residents live within five kilometers of more than 40 petrochemical plants. These neighborhoods suffer from disproportionately higher rates of asthma, other respiratory illnesses, and cancer.

The plastic products we use every day, from toys to shampoo bottles, contain toxic chemicals too. For example, phthalates, which are ubiquitous because they enhance the flexibility of many types of plastic, increase the risk of endocrine, reproductive, and developmental disorders. They have been detected in the bodies of over 95 percent of Americans, according to the Centers for Disease Control and Prevention’s National Health and Nutrition Examination Survey. Polybrominated diphenyl ethers were used for decades as flame retardants in many plastic-containing products like furniture and electronics. PBDEs are linked to health issues that include cancer and neurodevelopmental disorders.

Food is another source of exposure. Toxic chemicals in the packaging and handling equipment used at every stage of the food production system pose a risk to our health and the environment. For instance, phthalates migrate into dairy products not only from food packaging like plastic yogurt containers, but also from the tubing used when milking cows. According to EPA, contaminated food is responsible for more than 80 percent of our exposure to the endocrine disruptor perchlorate, in part because the chemical is used as an anti-static agent for dry-food plastic packaging in food facilities and stores. CDC studies indicate perchlorate is present in the body of every American.

Per- and poly-fluorinated alkyl substances, known as the “forever chemicals,” persist in the environment for decades and are associated with health issues such as cancer, immune disorders, and developmental disorders. Virtually all Americans have PFAS in their bodies. Though often associated with paper packaging, these chemicals are a major part of plastic packaging production, present in hundreds of millions of polyethylene and polypropylene containers, including those used for food.

When we recycle plastic conventionally, these toxic chemicals remain. Chemical recycling will also not solve the problem, as the process returns plastic materials to a virgin-like state—before the typical downstream conversion and manufacturing steps when chemical additives would be introduced.

So where do we go from here? Within their jurisdictions, EPA and the Food and Drug Administration need to move faster at re-evaluating the safety of existing chemicals in commerce. New data exists on several ubiquitous chemicals in plastic, demonstrating their serious environmental and chronic health effects. It’s time to follow the data and restrict or ban use of the most harmful chemicals. We also need our safety agencies to implement stronger mechanisms that ensure new chemicals don’t produce similar or worse impacts.

To reduce harm to fenceline communities, we need EPA to close dangerous loopholes in the Clean Air Act that allow polluting facilities to operate without proper emission controls. State agencies also need to enforce company violations with more rigor and conduct more thorough permitting reviews, particularly when new facilities or expansions are planned near communities that are already surrounded by industrial plants.

Companies along the entire plastics supply chain—including oil companies, chemical manufacturers, converters and producers, brand manufacturers, and retailers—must acknowledge that toxic chemicals are part of their environmental impact. To improve, they must reduce their production, use, and emissions of toxic chemicals. The first step is identifying where toxic chemicals exist across their value chain—in their final products, upstream and final packaging, manufacturing processes, and, importantly, their supply chain.

If plastic is to play any role in a healthy and sustainable future, we can no longer ignore the damage of toxic chemicals used in products and emitted during manufacturing processes. We must determine, once and for all, if and how plastic can be decoupled from toxic chemicals.

The Forgotten Sovereigns
Author
Bella Sewall Wolitz - Brownstein Hyatt Farber Schreck
Brownstein Hyatt Farber Schreck
Current Issue
January-February 2022
Issue
1
Two drawings of salmon swimming around each other on a white background

When most Americans, even lawyers, are asked about sovereigns under U.S. law, they focus initially on the federal government and the 50 states. Pressed, lawyers would probably observe that U.S. territories and foreign governments are sovereign as well. Yet Indian tribes, the peoples who have been on this continent practicing self-government by right and necessity since time immemorial, and thus the United States’ first sovereigns, are all too often forgotten. Tribes are an afterthought — if they are remembered at all. This has to change. It is my hope that after learning about the crucial role tribes play in natural resource governance, environmental professionals will never forget these sovereigns as potential allies.

This article discusses the legal authorities, and political capacities, of Indian tribes in the United States to manage natural resources. For lawyers and other professionals who are involved in projects on or near Indian lands, understanding of tribal powers is the first step toward developing the knowledge, skills, and relationships needed to collaborate successfully with Indian tribes on joint projects. Tribes have unique legal authorities and a seat at the table for some of the hardest decisions facing our country, which means that working with them to achieve desired outcomes can be pivotal to success.

If I could make one change in the U.S. law school, forestry school, and general environmental policy curricula, it would be to require every student to take a class on federal Indian law. This course of study looks seriously at questions of sovereign control over natural resources, from hunting and fishing rights to minerals and sites for renewable energy development. While it must be acknowledged that the history of Indians in the United States involves policies of violent removal of many tribal communities from their ancestral homelands, tribes have long demanded and today receive significant recognition as decisionmakers under the law of environmental stewardship. It is good policy as well as smart politics for environmental professionals to consider the potential tribal role, and to collaborate with tribes in advocacy and implementation of projects. Tribes have the capacity to become major players in the natural resource policy of this century. This is the case because of treaties protecting their prerogatives, as well as executive branch policies that are increasingly influenced by effective tribal political advocacy.

The starting point is essential to understand: tribes are sovereigns. American Indian tribes are unique among the United States’ many ethnic and racial groups because they are also sovereign entities that exercise inherent rights to self-government. Tribal claims to stewardship of natural resources may be based in tribal sovereignty, treaties, and property rights, as well as the Indian trust doctrine.

There are now 574 federally recognized tribes in the United States. Many of these have their own sovereign lands, governments, and court systems, and interact on a constant basis with state and federal entities. This article surveys just a few of the legal bases that tribes have for being involved in natural resource management. Their role may exist not just on tribal lands, where their sovereignty is at its most comprehensive, but also in other situations where a land, water, or resource management decision has the potential to impact tribes and their territories.

There are several overarching federal policies that involve tribes in natural resource decisionmaking. To help practitioners understand applicable law, let’s start with an overview of important environmental statutes and regulatory programs that recognize protection of lands, as well as the primacy of tribes in enforcing environmental laws in Indian country. There are also different sources for tribal authority over hunting and fishing, because protecting those rights can overlap with the goals of protecting environments to maintain healthy land and water ecosystems.

Under Executive Order 13175, issued in 2000, federal agencies are required to consult with potentially affected federally recognized tribes when developing policies with “tribal implications.” This means that agencies must initiate discussions before issuing regulations or making decisions that could impact tribal resources. The executive order also calls for agencies to take tribal viewpoints into account and to avoid taking actions that would impinge on their interests.

One of President Biden’s first actions was to express support for this tribal consultation policy and to require federal agencies to shore up implementation. Last January, President Biden issued a presidential memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships. The 2021 P.M. describes the administration’s priorities: respecting tribal sovereignty and self-governance, fulfilling federal trust and treaty obligations, and engaging in “regular, meaningful, and robust” consultation with tribes. The P.M. requires agencies to prepare and update plans of action to implement meaningful consultation policies.

Agencies have produced plans to comply with these consultation requirements. The National Congress of American Indians maintains a helpful website with links to pages for agencies that lay out these consultation policies, as well as listing upcoming consultations. This resource is available at ncai.org/resources/consultation-support.

Consultation may sound like a merely procedural step, but it is more than checking a box: if used well it can provide early and important feedback to agencies, helping them to reformulate projects. Note that tribes will not always favor environmental goals; tribes need economic growth and support development projects consistent with their sovereign needs. But sometimes tribal and environmental goals align, such as when tribal cultural and historical knowledge can benefit scientists in determining the health of various ecosystems and the effects of climate change. There are some challenges: a 2019 study by the Government Accountability Office identifies factors that impede effective tribal consultation, such as insufficient tribal resources to participate and lack of staffing to respond to consultation requests.

Yet dialogue can be valuable. If tribes are able to obtain resources for expert advice, these consultations will be more effective at raising concerns at early stages and in fora where federal agency officials are looking for consensus-based steps forward.

The role of tribes does not end with consultation under E.O. 13175. The National Environmental Policy Act also includes requirements for analysis of environmental justice implications of federal decisions potentially including consideration of tribal concerns. The Biden administration has committed to respecting EJ imperatives of not foisting pollution and other environmental risks on historically disadvantaged communities. This strengthens the important role of tribes when a federal agency is required to issue a permit or right-of-way, or otherwise make a decision with the potential to impact the environment.

NEPA regulations are in flux right now. It is likely that changes introduced in this administration will increase requirements for analysis of tribal impacts. The Trump administration promulgated amended NEPA regulations in 2020. The Biden administration’s Council on Environmental Quality has announced that it, in turn, is proposing changes that will at least to some extent roll back the Trump changes. Phase 1 of the Biden administration’s NEPA regulatory changes was announced last October. It clarifies the scope of agency review. Broader, Phase 2 regulatory changes are under development. They will aim to meet the nation’s environmental, climate change, and environmental justice challenges while providing regulatory certainty to stakeholders. Under NEPA, impacts on tribal resources are analyzed in environmental impact statements and assessments, and new regulations will likely clarify and strengthen this requirement.

Because Indian lands in many places are relatively undeveloped, some of them are rich in endangered species. Tribes thus may play a significant role in Endangered Species Act implementation. Tribes are generally, but not always, subject to federal laws, and ESA enforcement has the potential to cause tension with implementing federal agencies. To defuse this tension, an agreement between the departments of the Interior and Commerce and tribes governs enforcement of the ESA on Indian lands. The secretarial order is titled American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act.

S.O. 32066 allows tribes to be the primary enforcers of the ESA on Indian lands. Environmental practitioners seeking to partner with them might be able to help build capacity in Indian agencies for habitat protection or restoration to help protect the environments on which species depend.

During the mid-1980s, Congress amended a number of environmental laws to expressly provide for a regulatory role for tribes, including the Clean Water Act, the Clean Air Act, the Safe Drinking Water Act, and the Comprehensive Environmental Response, Compensation, and Liability Act. Under these programs, Indian tribes that receive EPA approval are able to either set standards or implement regulatory programs, or both. EPA refers to this as treatment-as-state status, or TAS.

The Clean Water Act provides particularly robust mechanisms for coordinating tribal and national interests. Tribes with Clean Water Act TAS status are able to set water quality standards for tribal waters that can be more stringent than those required by the federal government. A famous 1992 case involved a challenge brought by the city of Albuquerque that resulted in the federal court upholding EPA’s authority to grant TAS status to a tribe, the Pueblo of Isleta, and to make Isleta’s water quality standards binding upon upstream polluters— in this case, the city of Albuquerque. The city ultimately upgraded its wastewater treatment facilities to ensure compliance with Isleta’s strict water quality standards.

Another important Clean Water Act authority for tribes is the Section 401 certification, which prohibits discharges to waters of the United States unless an authorized tribe or state certifies that the discharge is consistent with its water quality requirements or waives certification. The Trump administration promulgated a rule that had placed stringent limits on the timing and potential reach of tribal and state authority under Section 401. The Biden administration has announced its intention to revise the 2020 rule and issued guidance on how agencies will implement the rule in the meantime.

Tribal hunting and fishing, which is not subject to state regulation, has been a lightning rod over the last four decades, as tribes increasingly require that these hunting and fishing rights be recognized. Conflicts arise because the nature of game and fish is to ignore political boundaries — fishing and hunting practices, as well as policies that affect the habitat where fish and game live, inevitably impact the health of populations elsewhere. While it is nice to say that a tribe is sovereign and has a fishing right, if the state government is allowing non-Indian fishers to capture all the fish before they get to a tribe’s reservation — or the federal government has approved dams that stop the fish from migrating up the river to their spawning places — tribes are going to find themselves having to engage with other sovereigns in order to protect their rights.

It is important to understand that tribal rights can have a few different legal origins. These rights are often subsets of both tribal property rights to control their lands and inherent sovereignty to regulate activities within their lands. Some tribes have rights under treaties or based on unextinguished aboriginal title to hunt and fish in areas outside of their reservations. Practitioners can understand these different legal theories for tribal fishing or hunting rights broadly as property rights and treaty rights.

Tribes can hold fishing and hunting rights as part of their sovereign control of land. When a tribe has land set aside in trust, often as a reservation, and that land includes access to waters that members use for fishing, then the tribe has a fishing right. Some tribes own land outright subject to restrictions on its sale of this land, so-called restricted fee lands. The establishment of trust or restricted fee land for a reservation is one of the most important actions the federal government can take for tribes. Lands set aside for Indians provide a permanent base, protect the lands against loss, and serve as territory over which tribes exercise their governmental authority. The fundamental purpose of reservation land is to protect and sustain tribal culture and self-determination. For many tribes, hunting and fishing are integral parts of culture and a heritage that goes back thousands of years. There are tribal areas where subsistence hunting and fishing are still crucial parts of the economy and peoples’ diets, without which people would go hungry.

Here, questions arise over the applicability of state law, because in general, regulation of hunting and fishing falls to states. Tribal members, however, can exercise their hunting and fishing rights on their reservations without state regulation. This means that Indians can set different seasons for hunting and fishing and allow different amounts of catch.

The question of non-Indians who want to hunt and fish on tribal territory, and which sovereign, the state or the tribe, should regulate this activity, is a more difficult legal question. The leading case is New Mexico v. Mescalero Apache Tribe, a Supreme Court decision from 1983. Mescalero demanded a fact-intensive balancing of competing state and tribal/federal interests. The Court recognized the possibility that state interests might be sufficient to justify the assertion of state authority, but acknowledged that federal and tribal interests, reflected in federal law allowing for tribal management of natural resources, justified preempting state law under the facts of the case. The Court found that the Mescalero Apache Tribe’s joint program with the federal Bureau of Indian Affairs to develop reservation game and fish resources demonstrated the interest of the tribe and justified preemption of state law as it applied to non-Indians on tribal land.

In light of these facts and the strong federal policy favoring tribal self-determination, in Mescalero the Supreme Court held that the state was preempted by federal law from regulating nonmember hunting and fishing on the reservation. But because the Court’s preemption analysis involved a fact-specific weighing and balancing of the interests at stake, the possibility exists that other, less comprehensive tribal programs would be unsuccessful in preventing a state from concurrent regulation of nonmember hunting and fishing. Basically, state interests would be much stronger in a situation where the state had substantially contributed to creating and maintaining the fish and game resources at play, and non-Indians might be subject to both tribal jurisdiction (as a person who has come onto tribal land) and state jurisdiction (as an individual who is not covered by the tribal exemption from state law). Practitioners should also be aware that while tribal hunting and fishing rules will apply on lands held in trust for tribes, some reservations include within their boundaries lands owned in fee by non-Indians as allotments. Non-Indians on allotments are more likely to be subject to only state hunting and fishing rules as established by Montana v. United States.

Tribes may also claim rights to hunting and fishing through treaties. Many treaties include specific language reserving the right of tribal members to hunt and fish. Some treaties limit this reserved hunting and fishing right to the reservation, but many also include provisions under which members of a tribe reserve the right to hunt and fish off the reservation. For example, many Pacific Northwest Indian tribes have treaties reserving their right to fish in “Usual and Accustomed” fishing places that include habitat of important marine and freshwater fish. These rights are grounded in the treaty language, which makes them the supreme law of the United States. They should be understood not as grants of rights but as reserved rights, meaning that the treaty language reserves the right of the tribe to continue game and fish management and harvesting traditions that extend way back before the establishment of the United States.

Tribal hunting and fishing rules can preempt state rules, in all cases for tribal members on tribal trust lands on reservation, and in some cases for non-Indians on tribal lands or for tribal members even off-reservation under reserved fishing and hunting rights. In these scenarios, tribal –– not state –– rules control harvest levels. This raises the question, what would happen if a tribe, by allowing more permissive hunting and fishing, started to have a negative impact on a species?

In such a case, federal courts recognize a “conservation necessity” exception to the rule that federal and tribal authorities on hunting and fishing can preempt state law. In the Puyallup series of cases, courts articulated three tests that a state regulation would have to pass in order to be able to validly restrict tribal fishing and hunting rights. First, the state must show that its regulation is reasonable and necessary to perpetuate the species, and second, that the regulation is the least restrictive means of achieving this goal. If alternative methods of conservation are available that are less injurious to the tribe’s reserved rights, they must be utilized. Third, the regulation must not discriminate against Indians, either by placing greater burdens on them than on non-Indians, or by imposing restrictions that have the effect of preventing Indians from taking their share of the resource.

The conservation exception is important for those who are concerned about tribal resource management. A state may limit Indian-reserved fishing and hunting rights in the interest of conservation both on and off the reservation, and may prohibit tribes from engaging in any activity that would endanger continuation of the species, as long as the state’s actions in doing so are nondiscriminatory and necessary. This is a high bar. In general, state and tribal agencies are on the same side, trying to manage and conserve valuable fish and wildlife populations.

It's worth concluding with a few examples of recent or ongoing situations in which tribes play an important role in natural resource management decisions.

The Penobscot River Restoration Program was jumpstarted when the Penobscot Indian Nation joined with environmental groups to challenge the relicensing of two dams that had been preventing salmon migration upstream. In 2004, a multiparty settlement agreement was entered into and subsequently approved by the Federal Energy Regulatory Commission. Under the settlement, the Penobscot River Restoration Trust received an option to purchase three dams from the license holders and remove the two most seaward dams. The existing licensees for six remaining dams on the river were allowed to increase electricity production. As a result, total generation remained constant, and the settlement provided funding for fisheries management and restored one thousand miles of habitat for eastern migratory fish, including Atlantic salmon, American shad, and short-nosed sturgeon. This is a prime example of the kinds of synergies between tribal goals of sovereignty over natural resources and improved fisheries management.

Another example of this synergy, but based on land, was the creation of Bears Ears National Monument by President Obama in 2016, largely in response to the request of five tribes — the Ute Mountain Ute, Navajo, Ute, Zuni, and Hopi — with cultural and ancestral ties to the region. At the time it was created, a management plan for the monument included tribal participation in stewardship of the land. After the monument was diminished by President Trump in an order that divided the monument into noncontiguous units, in October President Biden announced that he would restore Bears Ears, where tribes continue to collect plants, minerals, objects, and water for religious and cultural ceremonies and medicinal purposes.

A currently brewing conflict between tribes and a developer involves Enbridge Energy’s oil pipeline under the Great Lakes. In September, the Bay Mills Indian Community submitted written testimony to the Michigan Public Service Commission opposing the request of the corporation to build a new Line 5 oil pipeline tunnel. The tribe argues that the project threatens its treaty rights to hunt and fish, and its cultural and religious interests in the Great Lakes. The litigation over the pipeline will involve significant discussion of the tribe’s right to protect the waters where it has fishing and hunting rights under treaty.

These examples demonstrate the importance of tribes in management decisions related to habitat conservation, hydropower, and fisheries harvest. Environmental practitioners seeking to protect natural resources often, but not always, share mutual goals with tribes looking to exercise sovereign rights to land and water stewardship. However, failing to understand the centrality of tribes, as well as the legal authorities underpinning their role, will result in a shortfall in both objectives.

Tribes are already participating in difficult natural resource management decisions. Moving forward, these collaborations will only become more common. In the world of natural resource management, tribes should never again be the forgotten sovereigns. Rather, environmental practitioners, in recognition of tribes’ sovereign status and related legal rights, should be working to benefit from the voices of tribes in determining how to make efficient and wise use of natural resources. TEF The views expressed in this article are exclusively the authors.

CENTERPIECE Tribes have unique legal authorities and a seat at the table for some of the hardest decisions facing our country, which means that working with them to achieve desired outcomes can be pivotal to success in resources management.

A National Challenge, A Local Imperative
Author
Yvette Jordan - Newark Education Workers Caucus
Newark Education Workers Caucus
Current Issue
November-December 2021
Issue
6
Parent Article
The Debate: Getting the Lead Out of Drinking Water Lines

When President Biden vowed to take the bold step of including lead service line replacement in the bipartisan infrastructure deal, I was elated. If enacted, this will serve to eliminate lead from the nation’s drinking water system. We all know that clean water is a human right, but we are equally aware that this is not happening in many low-income communities. As we look toward strategies to achieve this foundational goal, we must first focus on the integrity of government, equity among communities, and cost factors that might avoid or mitigate incomplete measures.

Let’s agree to not act like an ostrich and bury our collective head in the sand by studying this issue forever. We cannot continue to live in a country that repeatedly ignores violations of the Safe Drinking Water Act. Communities cannot afford the time wasted when local officials analyze what would be the best way to attack this problem without taking action. There are a number of ways to identify lead service lines, but the use of predictive modeling through tools such as artificial intelligence may be the most expedient. By beginning with environmental justice communities that are already overburdened by a myriad of inequities, we will be able to expedite solutions to a host of challenges they face daily.

As an educator in an urban community in Newark, New Jersey, I am acutely aware of the trials many of my students and their families face. A recent op-ed in The Hill by Dr. Mona Hanna-Attisha and Erik D. Olson reminds us of the negative impacts of lead exposure and the economic sense it makes to invest $45 billion in this effort. I have witnessed the deleterious effects of lead exposure in many forms in my classroom. The developmental delays are significant. Lead in water is a silent interloper in communities that are already overwhelmed with societal ills. We can and must do better.

While the plan to remove LSLs within 10 years may seem like a lofty goal to some, I submit that we can push to be proactive and complete it sooner. Local politicians and communities can work together to identify LSLs, and plan and execute their removal. By using Newark as a national model, we can see that holistic lead remediation is possible. Community pressure, coupled with the political will of all local partners, allowed the removal of over 22,000 LSLs within two years. That is unprecedented.

Education and information dissemination are imperative in this effort to help all those affected by lead contamination in water. Since toxic water is often tied to unsafe housing and cognitive delays, we must support those who are most vulnerable to lead exposure. This includes aggressive campaigns to notify at-risk community residents of LSL removal plans in several languages, media campaigns, and door-to-door efforts, among other actions to notify the public of the government’s intention to remediate the problem.

But this is not enough. There must be an inclusive plan to regularly inform the constituency of the schedule and plan to fully replace the lines. We must also implement a plan to educate the public about lead exposure and removal; in short, we must train the trainers. In communities that are most affected by lead — the disenfranchised communities — trust must be earned. That requires EPA and local governments to partner with communities in efforts that meet them where they live. Consider how expeditious and telling it would be if communities were trained to partner with governments and educate each other, as well as advocate for their right to clean water.

As I stated in an article that I co-wrote with NRDC Chief Science Officer Dr. Kristi Pullen-Fedinick in May 2020 (nrdc.org/experts/kristi-pullen-fedinick/covid-context-lead-water), lead can rob a community of its economic potential. It increases the need for social and educational services, and severely impacts the ability of a community to grow and thrive. Our president has proposed a sweeping change to the status quo. When this infrastructure bill is realized, the impact on the disenfranchised, as well as our nation as a whole, will be great.

Furthermore, if we analyze the data from EPA and note the intersection of SDWA violations with communities of color, we will acknowledge that these communities must be identified and acted upon first for LSL replacement. Strict oversight of violations and implementation of safe LSL removal and replacement will bring this plan to fruition.

$45 billion is a start; some experts believe that it will cost $60 billion. We must begin by recognizing that this is not a red or blue state issue, but a necessity for everyone to have a basic human right: clean water to drink. As Frederick Douglass stated, “Power concedes nothing without a demand. It never did and it never will.” People are beginning to understand what that means. The government needs to meet their demand for clean water with the full removal and replacement of LSLs in a swift and timely manner.

The Pathway Forward for the Power Sector
Author
Roger Martella - General Electric
General Electric
Current Issue
September-October 2021
Issue
5
Parent Article
The Debate: Net-Zero by 2050: How Should We Achieve a Carbon-Free U.S. Economy?
Roger Martella

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Building Solar Justice
Author
Philip Warburg - Boston University's Institute for Sustainable Energy
Boston University's Institute for Sustainable Energy
Current Issue
September-October 2021
Issue
5
Building Solar Justice

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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