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Environmental Justice Lawyering

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Environmental Justice Lawyering

Are you curious about environmental justice work? Confused about where to start? This course will cover basic terminology and history; laws commonly used to present and seek to address environmental justice issues in U.S. courts; and practice tips and principles.

Presenters

Selena Kyle
Senior Attorney and Managing Litigator
Natural Resources Defense Council

Transcript

Selena Kyle: Hi, I'm Selena Kyle and I'm a senior litigator in managing attorney at the Natural Resources Defense Council which most people just call NRDC. NRDC is a not-for-profit membership organization and we use impact litigation to protect the environment and public health. I've been with NRDCs in-house litigation team for about 15 years. And in that time, a lot of my team's work has focused on industrial pollution that's particularly threatening to people who live in environmental justice communities. So today's material is very near and dear to my heart.

   I'll start with a roadmap of what this training will cover. I'm going to start by discussing some basic definitions of environmental justice and tell you a little bit about the origins of the term, just to ground the rest of the presentation. Next I'll devote most of my time to talking about some of the key laws that have been used to attack and call public attention to environmental justice problems in the United States and in modern legal practice. And I think what you'll see here is that environmental justice lawyering today draws on a patchwork of different constitutional and statute provisions and common law.

   Next, I'll talk about some of the key laws that have been used to attack and call public attention to environmental justice problems in modern federal practice in the US. And I think what you'll find from this part of the presentation is that environmental justice lawyering typically draws on a patchwork of different constitutional and statute provisions and common law doctrines. And there's not a lot of very environmental justice specific statute law on the books yet. After covering some of the key legal provisions, I'll close by sharing some organizing principles and practice tips, organizing principles that are commonly used and discussed among groups that do environmental justice work and on the practice tips side, some more lawyer focused principles that I've found helpful to keep in mind when working with environmental justice groups.

   All right. Let's start by talking a little bit about the definitions and history of environmental justice. So what is environmental justice exactly? It depends on who you ask. So let's start with the definition used by EPA whose official environmental justice efforts go back to at least 1992 when George H.W. Bush created an office of environmental equity that's now known as the office of environmental justice within EPA. EPA's definition of environmental justice which you can find on their website and I've included a link in the materials is, the fair treatment and meaningful involvement of all people regardless of race, color, national origin or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.

   EPA elaborates by saying that fair treatment means no group of people should bear a disproportionate share of the negative environmental consequences resulting from industrial, governmental, and commercial operations or policies. EPA also elaborates on meaningful involvement and says that means, first of all, that people have an opportunity to participate in decisions about activities that may affect their environment and/or health. It also means that the public's contribution can influence the regulatory agency's decision as you'd expect, that community concerns will be considered in the decision making process and the decision makers will seek out and facilitate the involvement of those potentially affected. So that's EPA's definition.

   I think some environmental justice advocates in the private sector would argue that what EPA is talking about in its definition of environmental justice is a different and more limited concept called environmental equity. And that true environmental justice is more ambitious and aims to eliminate harmful pollution and not just redistribute it. So for example, you can look at EJnet.org, I included a link in the materials. EJnet is a platform that collects academic and organize a writing on environmental justice. And if you look at their website, you'll see that they say environmental equity is not environmental justice, environmental equity is just the government's response to the demands of the environmental justice movement. And the government agencies like the EPA, according to EJnet have been co-opting the movement by trying to redefine environmental justice as fair treatment and meaningful involvement, and that although they've failed to meet even that goal, it's also far short of the environmental justice vision. And that vision is that the environmental justice movement isn't seeking to simply redistribute environmental harms, but rather to eliminate or abolish them.

   I want to talk in a minute about the history and origins of environmental justice, but first I'd like to touch on another term that you may have heard or read that likewise incorporates concepts of justice and equity. And that term is just transition. In my experience, just transition is a newer term that's typically used in the context of transitions from dirty energy to cleaner energy. So for example, in my practice, people use it to refer to accounting for the needs of workers, residents, local businesses, and local governments as different regions of the country shift away from reliance on fossil fuel power sources like coal plants and the industries that support those sources. And it embraces the idea of trying to ensure diverse local representation and promote equity through that particular kind of energy transition. So just transition is a more specific and in some sense, less ambitious concept than environmental justice writ large.

   All right. Moving on to the history and origins. So where did the concept of environmental justice come from? I think it's fair to say that the core problems that the environmental justice movement is trying to respond to have been with us for a very long time. So for example, the basic pattern of economically and politically marginalized people living in more polluted areas I think is not new and likely precedes our written history. And of course, those patterns persist in the United States today. For example, an analysis published in November 21 by the news organization, ProPublica, and I've included a link to this in the materials, but among other things, ProPublica found that census tracts where the majority of residents are people of color experience about 40% more cancer causing industrial air pollution on average than tracts where the residents are mostly white. And ProPublica also found in this analysis that in predominantly black census tracts, the estimated cancer risk from toxic air pollution is more than double that of majority white census tracts.

   So the patterns are not new, but if you look at some of the academic writing about environmental justice, you'll see that the movement itself is often characterized as starting around the early 1980s with some campaigns against waste dumps in the south of the US. And in particular, a 1982 fight about the disposal of PCBs in Warren County, North Carolina. And for more on this, I've included a citation to an article by Clifford Villa called Remaking Environmental Justice.

   Another idea that comes from the Villa article is that environmental justice is in some sense of fusion of the mainstream environmental movement of the 1960s and 70s in the United States which focused on the dangers of pollution, but not so much its distributional consequences. So fusion of that mainstream environmental movement and concurrent movements for civil and labor rights. Some examples of early campaigns that combined labor and civil rights concerns with environmental ones are Cesar Chavez organizing to protect California farm workers from pesticides and the Memphis Sanitation Worker Strike that Martin Luther King spoke in support of just before his assassination in 1968. The Villa article that I cited in the materials has a little more background on those campaigns and some others as well if you're interested in reading more about the history.

   All right. Now that we've set the stage with some definitions and history, let's turn to the core section of the training. Key legal hooks and some examples of how those have been used to address environmental justice issues. So say you have a client who has an environmental justice concern and you're trying to figure out how to pursue that through some kind of legal advocacy, where do you look next? Well, big picture, there's no particular environmental justice law in the US today. And you're pretty unlikely to even encounter laws and regulations that speak in explicit terms of environmental justice. Instead, environmental justice advocates who pursue legal strategies today often rely on a patchwork of laws that were passed to address different facets of the problem from conventional environmental laws, to civil rights laws, to laws that were passed with other social justice issues like disability rights or housing in mind.

   And as always, in legal practice you'll need to find the law or laws that fit your facts and your client's goals of course, but I'll try today to give you an overview of some of the main areas of law that have been used to attack environmental justice problems in my experience. And I'll talk mainly about federal laws. So keep in mind that states may have analogous laws that go a bit further than the federal equivalent. I'll give one or two examples of those state analogs as we go along, but due to time constraints I'll focus mainly on federal provisions.

   All right, so I'm going to start with environmental and public health laws of general application at the federal level. If you've studied this topic before you probably know there's a great deal of statute law in this category. So I'm just going to touch on some of the major laws that have been used recently in cases within environmental justice dimension and give some of those specific case examples.

   I'll start with a Toxic Substances Control Act, TSCA for short. It starts at 15 US Code 2601. TSCA is not as widely known or used as some of the laws I'll talk about later, but generally it concerns and provides for EPA to regulate chemical substances other than foods, drugs, cosmetics, and pesticides. There's other federal laws that focus on those which I'll get to you later, but for the covered chemical substances, TSCA provides for EPA to set record keeping reporting and testing requirements for manufacturers and distributors, provides for EPA to regulate some imports and exports of regulated chemical substances, also to maintain an inventory of them and to evaluate the risks that they pose to health or the environment. And I wanted to read this list of environmental and public health laws with TSCA because although it's not as well known, it's somewhat unique in that following 2016 amendments, it includes some language that gets more squarely at the distributional aspects of environmental justice.

   It requires EPA to prepare risk evaluations to determine whether a chemical substance poses an unreasonable risk to health or the environment. And importantly following some amendments in 2016 in determining whether a chemical substance presents an unreasonable risk to health or the environment, EPA needs to look at whether it presents such a risk to a potentially exposed or susceptible subpopulation. TSCA defines that phrase potentially exposed or susceptible subpopulation as a group of in levels within the general population who due to either greater susceptibility or greater exposure may be at greater risk after exposure to chemical substance that EPA is studying. So if EPA finds in one of these risk evaluations, that there is an unreasonable risk to potentially expose their susceptible subpopulation, it must go on to pass regulations to eliminate that risk.

   This is section six of TSCA and I've included some citations in the materials. So sample application of these provisions on a reasonable risk is a case called Neighbors For Environmental Justice v. EPA. This is a Ninth Circuit petition for review that was filed in 2020. And it challenges EPAs risk evaluation for the carcinogen methylene chloride. Neighbors, the lead plaintiff is a community based environmental justice group with members who live close to a large hazardous waste recycler here in Chicago where I live that emits methylene chloride and Neighbors was joined in the petition for review by some other environmental groups including NRDC and some labor groups including the United Steel Workers. And the claims include that EPA violated TSCA in its risk evaluation for methylene chloride by failing to identify people who live in these communities neighboring large industrial committers of the chemical. And then to determine specifically whether it presents unreasonable risk to those communities.

   This petition has been remanded without a merits ruling, remanded to EPA for further consideration. So we don't yet know how the legal issues will be resolved. Turning to the next federal environmental statute of general application that you might want to think about if you're facing some sort of environmental justice issue, it's Safe Drinking Water Act, CDWA starting at 42 US Code 300f and so on. CDWA's concerned with a safety of public drinking water supplies. It empowers EPA to set and enforce standards for what contaminates can be present in public water supplies. And it also includes some protections for source waters that feed those supplies like rivers and lakes and groundwater sources.

   Sample application of CDWA to an environmental justice issue is a lawsuit to a bit lead contamination in Flint Michigan's water by concerned individual activists and a local pastor group plus the ACLU and the NRDC, my organization. This case was settled in 2017. The settlement's still being implemented, but generally it provides further removal of lead service lines, comprehensive tap water monitoring, and some other provisions around filter installation and bottled water provision that are designed to protect Flint residents from dangerous lead levels in their water. And then I've included a cite to this case in the materials if you'd like to learn more about it.

   Okay. Turning to yet another statute, general environmental statute that might be used to attack environmental justice problems, the Resource Conservation and Recovery Act or RCRA refer for short, which starts at 42 US Code 6901. RCRA in general is concerned with the safe handling of waste throughout its life cycle. So generation, transportation, storage, disposal, it's often referred to as regulating waste from cradle to grave. RCRA includes a very detailed regulatory program for waste that it defines as hazardous and it's probably best known for that extensive hazardous waste regulatory program, but RCRA also includes some very useful provisions that have to do with the hazards presented by waste more generally and a sample application of one of those provisions from my practice was a lawsuit to address toxic chemicals that were leaking out of a municipal landfill in Dixon, Tennessee, the chemicals were getting into residence wells. The landfill was in a black community although the town was largely white and people in different parts of town had been given different information and options when their water was found to be contaminated.

   So in this lawsuit, two members of a black family whose well water had become contaminated and who were wrongly advised that their water would remain safe to drink joined NRDC to enforce section 7002 of RCRA. That's codified at 42 US Code 6972, and among other things, it authorizes lawsuits by private individuals and organizations or what are often called citizen suits against any person who has contributed or is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment, that's 42 US Code 6972(a)(1)(B).

   This case also resulted in a settlement, that settlement's also still being implemented, but in general, it provides for the extension of public water alliance to households that are reliant on well water in the highest environmental risk area as well as ongoing monitoring of the contamination to make sure that the environmental risk area remains appropriately defined. And I've included a cite to this one of the materials again in case you'd to learn more.

   Turning to the next federal environmental statute of general application that you might want to think about, the Clean Water Act, CWA for short, 33 US Code beginning at 1251. So here there's no surprise given the name, this law concerns water pollution. In general, it regulates how much pollution can be released by industrial sources as well as others like municipalities who run storm water and sewer systems. The Clean Water Act also provides for EPA in the states to set ambient limits that govern how much pollution can legally be present in streams and other water ways that it covers.

   The Clean Water Act also has a citizen suit provision, you can look at 33 US Code 1365 for that. And a sample application of the Clean Water Act to an environmental justice issue is a case called Centerville Citizens For Change, the Commonfields of Cahokia Public Water District. This is a 2021 Southern District of Illinois case and it responds to deteriorating municipal sewage systems that are causing raw sewage to back up into homes and yards in a black community in Southern Illinois, near St. Louis. This is a fairly recent case and there were no merits rulings as of the last time I checked, but I've included a cite in the materials if you want to spend more time with that one.

   The next law I want to talk about is a Clean Air Act, CAA for short, this is 42 US Code beginning at section 7401. Clean Air Act is a rough analog to the Clean Water Act, but about air pollution and it empowers EPA to regulate air pollution when it's released from both stationary sources which would be things like factories as well as from mobile sources, things like cars and trucks.

   The Clean Air Act includes provisions calling for EPA to develop technology based standards for release of hazardous air pollutants from station resources and to limit what levels of certain common pollutants like fine particles may be present in the ambient air in order to protect public health and welfare. So like the Clean Water Act, the Clean Air Act is a multifaceted statute with a lot of different provisions, but like a lot of the others I've mentioned so far, it includes a citizen suit, a term that can be used by concerned individuals and private organizations to enforce some of its terms against polluters as well as against EPA itself when EPA fails to carry out its own regulatory responsibilities. And that provision is at 42 US Code 7604.

   Next I want to talk about two species related laws, the Endangered Species Act or ESA for short, which starts at 16 US Code 1531 and the Marine Mammal Protection Act, or MMPA for short starting again at 16 US Code, but beginning at 1361. These two species laws as the names indicate, focus on protection of species other than humans, but they can be used to address environmental harm to people who do subsistence hunting or fishing, or for whom protected species have some special other significance including environmental justice communities. Sample application of these laws is a case called Sovereign Iñupiat for a Living Arctic v. Bureau of Land Management. This is a district of Alaska case from 2020 in which some Alaska native and environmental advocacy groups challenged a federal environmental approvals and reviews for oil and gas development in the national petroleum reserve.

   In fall 2021, the court found that some of the responsible agencies had failed to adequately account for impacts on the polar bear in violation of the ESA and vacated some of the findings necessary for construction and remand it to the agency. And there's a cite to that decision and the materials as well. So those are the species laws to keep in mind if you have an environmental justice community with some sort of special relationship to particular protected species. Two other paired laws you might want to think about have to do with pesticides. There's the Federal Insecticide, Fungicide, and Rodenticide Act or FIFRA for short, that's at 7 US Code 136 and so on. And then the Federal Food, Drug, and Cosmetic Act, FFDCA or Food and Drug Act for short, that one starts at 21 US Code 301.

   So starting with FIFRA, that concerns pesticides and it provides that pesticides sold in the US need to be licensed by EPA. It also predicates that licensing on a showing that the use will not generally cause unreasonable adverse effects on the environment. And then it goes on to define unreasonable adverse effects on the environment to include any unreasonable risk to manner the environment taking into account the economic, social, and environmental costs and best benefits of pesticide use as well as human dietary risks from exposures to food pesticides that are inconsistent with the standards EPAs adopted under the Food and Drug Act. So FIFRA refers to the Food and Drug Act.

   And then turning to the Food and Drug Act, that in turn provides for EPA to limit how much pesticide residue can be present on food based on reasonable certainty that no harm will result from aggregate exposure to the pesticide residue. And aggregate exposure refers to the total amount of pesticide that somebody could be exposed to through both their diet and other sources. Included some citations to the tea provisions from FIFRA and the Food and Drug Act in the materials. I don't have a specific case to site you to here, but I'd like you to consider how FIFRA and the FFDCA could be used to address environmental justice issues that stem from vulnerable subgroups, disproportionate exposures to pesticides they regulate. So you could think here, for example, about farm worker exposures.

   All right, yet another federal environmental law that you might want to think about if you're facing some sort of environmental justice issue is the Emergency Planning and Community Right-to-Know Act, EPCRA. This one starts at 42 US Code 11001. Unlike some of the other laws I've covered so far, EPCRA is concerned with the dangerous posed by toxic chemicals. And it was passed in the wake of two dangerous pesticide releases from union carbide plants, a plant in Institute, West Virginia and one in Bhopal India. And you may have heard of the Bhopal incident because the pesticide cloud that was released from union carbide plant there in 1984, killed thousands of people.

   The later incident in Institute, West Virginia sent about a 100 people to the hospital and I've included a link to some more history on these incidents from EPAs website. EPCRA requires local governments to create emergency response plans for chemical releases, with the cooperation of facilities that hold sufficiently large amounts of chemicals classified as extremely hazardous under the law. And it requires a broader set of facility owners and operators to report on the hazardous chemicals they're making, using, and releasing into the environment, including through submissions to an EPA database known as the Toxics Release Inventory or TRI for short.

   In my experience working with not-for-profit environmental advocates, EPCRA's mainly an informational tool, but an important one because the TRI data that's published on EPAs website can help environmental and other community justice oriented groups get a better sense of some of the major chemicals that are being released from facilities near them and in what amounts, and I've included a link to the EPA webpage that explains how to use the TRI data and some of the limitations in it in the materials.

   An important thing to keep in mind with TRI is that they're reporting thresholds for both the size of business and the amount of release. So even when the reporting is accurate, the toxics release inventory won't capture all chemicals and chemical releases in a particular area. All right, turning to the next federal environmental statute of general application you might want to think about, the National Environmental Policy Act or NEPA. This is at 42 US Code beginning at 4321.

   NEPA like EPCRA emphasizes information more than any particular set of regulatory standards. Its goal is to ensure that regulators and the public understand the environmental impacts of new projects that need federal funding or federal approvals like permits before those project are allowed to move forward. So when it applies, NEPA can be used to mandate further analysis of projects that pose environmental justice concerns, and it can enhance understanding of those concerns in a way that may defect decisions about whether the project is allowed to move forward or not. The sample application of NEPA to an environmental justice problem is a case called Center for Community Action and Environmental Justice v. FAA.

   This is also a pretty new case. It was filed in 2021, and it was a challenge to a NEPA review for a new air cargo facility for Amazon that was proposed for the San Bernardino Airport in Southern California. And that was challenged on grounds including that the FAA analysis of the air quality impacts of the cargo facility on surrounding communities was too narrow. This case didn't succeed on the merits, but the Ninth Circuit opinion and I've included a site in the materials includes a really interesting sharply worded dissent by judge Robinson, where he begins by saying that the case reeks of environmental racism and goes on to note that the area around the proposed cargo facility is populated overwhelmingly by people of color, that more than 95% of the community lives below the poverty level, and community asthma rates are among the highest 2% in California.

   The dissent also cites a 2018 paper by EPA scientists that found non-white people in the United States and particularly black people are more likely to live in areas with high levels of particulate matter which is a kind of air pollution that's regulated under the Clean Air Act and associated with respiratory heart disease and premature death. And the dissent concludes by explaining why judge Robinson thinks the challenged analysis did in fact, violate NEPA. The opinion also includes a critical response to that dissent in a concurrence by judge Boomatime who says it was inappropriate to mentioned environmental racism because none of the parties had. He does say he agrees that the court would've had a legal and moral duty to fairly adjudicate any allegation of environmental racism had it been made.

   NEPA's the last environmentally focused statute I'm going to cover. So I want to close with a reminder to keep an eye out for state analogs. There's a lot in this area. So good example of a state analog in this environmental review context is the California Environmental Quality Act or CEQA for short, that starts at California Public Resource Code section 21,000. And it's roughly equivalent to NEPA, but it includes some mitigation requirements that may get you farther than NEPA in terms of limiting the ultimate impacts of a project that poses environmental justice concerns, but that's going to be allowed to move forward. Before I move on to some other areas, I want to mention two other federal statutes that aren't environmental per se, but that can be paired with the ones I've just listed to present claims that may have some environmental justice component.

   The first of those is the Occupational Safety and Health Act OSH Act for short, this one starts at 29 US Code 651. And as you might guess from the name, it concerns worker and workplace safety, and it provides for OSHA to establish standards for chemical exposure and other health and safety hazards to workers like noise. A sample application of OSH Act implementing regulations to an environmental justice issue is the Neighbors for Environmental Justice matter I mentioned at the beginning of this part of the talk when I mentioned TSCA, so this is the case that challenges EPAs risk evaluation for the carcinogen methylene chloride.

   Methylene chloride is still manufactured in the United States and one of the issues that Neighbors and its petitions presented is that in thinking about the risks that that chemical presents to workers, EPA grossly underestimated the risks by assuming that all the workers would be provided with and protected by bulky expensive supplied air respirators and chemical resistant gloves. And that that assumption was contrary to OSHA regulations as well as substantial evidence in the record and the best available science on occupational exposure assessment.

   And again, that case has been remanded without a ruling on the merits of the claims. In addition to the OSH Act, another law to think about pairing with some of the environmental public health statutes I've been through in this training is the Administrative Procedure Act or APA. The codification on this one is a bit scattered, but it starts at 5 US Code 551. So if you ever have reason to believe that a federal agency is violating some provision of federal law, that the law's internal citizen suit provision doesn't seem to allow your client to enforce. Now, keep in mind the part of the APA that's codified at 5 US Code 706 that authorizes federal courts to compel agency action that's unlawfully withheld or unreasonably delayed which could be something like a new mandatory regulation revising a limit on some pollutant that affects some client of yours and presents an environmental justice issue.

   So APA at 5 USC 706 allows federal courts to compel action that agencies are required to do under another governing statute. That same section, the APA allows federal courts to set aside agency action that exceeds the agency's legal authority under other provisions or that was taken without observance of procedure required by law. So APA claims can be particularly valuable as a compliment to some of the other laws I've talked about where client has concerns about the process that the agency followed to reach a particular decision. So for example, if there's concerns about whether the agency fairly and fully considered public comments that your clients or others made before adopting a regulatory proposal.

   In general, just keep in mind that APA claims aren't limited to the environmental public health context. So you want to think about them whenever you're seeking to challenge or perhaps preparing to defend some kind of action or inaction by a federal agency. All right. Turning to a new area, I want to talk now about civil rights law, both constitutional and statutory because this is another area that is often used to try to address environmental justice issues from the legal perspective.

   I'll begin with the federal constitutions due process and equal protection clauses, you're probably familiar with them, but for fifth amendment provides in part that no person shall be deprived of life, liberty, or property without due process of law. And the 14th amendment provides in part that no state can deprive any person of life, liberty, or property without due process of law nor deny any person within its jurisdiction the equal protection of the laws.

   Sample application of some of this constitutional language is the Juliana v. United States case. This is a District of Oregon case filed in 2015, it's a climate lawsuit, but also environmental justice in the sense that the plaintiffs were a group of people with relatively little political power. They were children who were too young to vote. And that the plaintiffs in that case sued the United States, the president, and some federal agencies and alleged that those defendants failures to better control climate pollution in the course of managing federal property and approving fossil fuel projects, that those failures were shifting the burdens of climate change to future generations in violation of substantive due process, equal protection, and other rights.

   And in an early ruling on motions to dismiss the district judge in Oregon found that the plaintiffs had stated substantive due process claims as well as some others and recognize the right to a climate system capable of sustaining human life is fundamental to free and ordered society. That's a quote from the opinion, and I've included a cite in the materials. Some of the plaintiff's claims were cut back at the summary judgment stage in district court, and then the Ninth Circuit without taking a position on the existence of a fundamental right to a life supporting climate concluded that the plaintiffs lacked article three standing to pursue their requested relief and ordered the case dismissed. And the problem that the Ninth Circuit identified had to do with the redressability, that element of the article threes standing test, the court found that a key piece of the relief that the plaintiffs were seeking which was an order for the federal government to come up with a comprehensive remedial plan to cut emissions that contribute to climate change.

   The Ninth Circuit concluded that that form of relief was beyond the district court's power to order and that the issue had to be resolved if at all, through the political process. So I've included a cite to the Ninth Circuit opinion in the materials as well. There's been a lot written about this case and the key decisions in it. So I've also included a cite to a legal academic perspective from Blomen Wood.

   I'll move on now to statutory civil rights hooks and talk about Title VI of the Civil Rights Act of 1964. The 1964 Civil Rights Act is codified at 42 US Code beginning at 2008. And Title VI provides that no person in the United States shall on the ground of race, color, or national origin, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. That's 42 US Code 2000d. And Title VI also provides that federal agencies who distribute money to other entities can investigate those entities for discrimination in connection with their use of the funding and cut it off. That's 2000d-1.

   A sample application of Title VI comes from here in Chicago where I live. There's some community groups on the south side of this city who are protesting the proposed relocation of a large metal shredding facility that's commonly called General Iron. And the proposed relocation would move the facility from a relatively unpolluted white and wealthy neighborhood on the north side of the city to an area on the south side that's more burdened already with industrial pollution, and that it's predominantly home to poor people and people of color. So several community groups on the south and Southeast sides filed a complaint with the Federal Department of Housing and Urban Development, HUD for short, about Chicago's role in the relocation effort.

   And the complaint alleges that it's part of a long standing practice by Chicago of helping industry move to areas that city leadership knows are already disproportionately polluted, and that have more poor people and people of color living in them. And that this discriminates on the basis of race, color, and national origin, and violates the terms of city's fair housing funding at Title VI as well as some other provisions, Title VIII of the Civil Rights Act and section 109 of the Housing and Community Development Act of 1964.

   HUD has opened an investigation in response to this complaint. It's been joined by the justice department and it's still under ways I record this, but I've included a link to a story about that investigation and the materials that will take you back to a copy of the complaint. Here again, I want to give a reminder about checking first state analogs and an example of one of those analogs. California Government Code section 11135 prevents discrimination on the basis of race and other characteristics and connection with state funding. And the core test here is whether there's been a disparate impact on a protected group.

   So if you're practicing California, think about the government code as an analog and compliment to federal civil rights claims. And if you're in a different state, look for an analog there, but here's a sample application of California Government Code 11135. There's a case called Darensberg v. Metropolitan Transportation Commission. This is a Northern District of California case from 2009. And here some individuals and labor and environmental groups sued the regional transit authority for the Bay Area for shifting funds from bus service to rail service in a way that would disproportionately harm bus riders who are largely people of color. And the court found here following trial that plaintiffs hadn't proven disparate impact. So this is another example of a case that didn't succeed, but I think also useful illustration of how some of these anti-discrimination and anti disparate impact provisions can be used to try to address environmental justice problems.

   In the civil rights space in addition to the federal constitution and Civil Rights Act, think about disabilities laws like the Americans with Disabilities Act, ADA for short, which starts at 42 US Code 2101 and the Rehabilitation Act which starts at 29 US Code 701. The ADA generally prevents disability discrimination by public entities and the Rehabilitation Act prohibits disability discrimination and federally funded programs and activities. An example of applying disability law to environmental justice issues is a case called Baez v. The New York City Housing Authority. This is the Southern District of New York case from 2013. It was a class action on behalf of residents of New York City's Public Housing. And it was about mold and excessive moisture in the residence units that exacerbated health problems like asthma.

   The Baez case was also resolved through a settlement. The settlement was strengthened a few years ago in 2018 and it requires the housing authority to promptly remediate mold and moisture at the source, and to improve its handling of ADA disability accommodation requests from its residence. So there are some examples of disabilities laws that can be used to address environmental justice issues. You also want to think about fair housing laws, like the Fair Housing Act which starts at 42 US Code 3601 and the Housing and Community Development Act 42 US Code 5301. So to give you a few examples of how fair housing law can be used to try to address environmental justice issues, the Baez class action against the New York City housing authority that I just mentioned included a claim under the Fair Housing Amendments Act of 1988 which prevents disability discrimination and provision of housing that's supported by federal funding, that's at 42 US Code 3604 F, that provision.

   And another example of using housing law to get at environmental justice problems is the complaint I mentioned that's pending before HUD about the City of Chicago's role and the proposed relocation of a large metal shredding facility. In that complaint, there's a reference to the Housing and Community Development act which prevents discrimination and connection with programs and activities supported with federal community development funds. And for that provision, take a look at 42 US Code 5309.

   All right. Well, that concludes my long list of federal environmental and civil rights and other statutes that you might want to think about using if you are confronting some environmental justice issue as a lawyer. You also want to think about federal common law doctrines like public and private nuisance and public trust. And again, the state analogs to those, if they're any available. I haven't seen federal common law used as much as federal statute law to try to address environmental justice issues. And there's a fair amount of debate in the case law about the extent to which these federal common law doctrines have been displaced by statute law, but they're important to keep in mind because they can also be used to challenge pollution that may disproportionately affect disadvantaged groups. And one example of that is the Juliana case that I mentioned earlier as an example of using federal due process law. That's the children's case about climate change.

   Juliana also included claims that the federal defendants had abused their federal public trust duties. And although the Ninth Circuit ultimately decided that the case should be dismissed for lack of standing, the district court, the lower court in Oregon was receptive to plaintiff's public trust theories and some of the earlier orders include extensive discussions of the federal doctrine. So the materials for this training include some sites to an order on the motions to dismiss in which judge Akin concludes that the federal public trust doctrine predates the federal constitution hasn't been displaced and can be enforced through the fifth amendment. There's also an interesting order from the magistrate, it's a finding and recommendation on an interlocutory appeal issue, but it includes interesting discussion of the history of the public trust doctrines. So take a look at those orders if you're interested in learning more.

   I'm now going to talk briefly about federal executive orders on environmental justice. Unlike the constitutional and statute provisions and common law doctrines that I've mentioned so far, executive orders at the federal level are typically not understood to create new rights that are enforceable by private citizens or organizations. It's still a good idea to keep an eye on these executive orders because of course they reflect policy judgments by the federal executive branch. There are some that mention environmental justice explicitly and there's one from the past year. So I'll start with executive order 12898. This is called Federal Actions to Address Environmental Justice and Minority Populations and Low-Income Populations. And this order was entered during the Clinton administration in February 1994. For a long time it was the seminal executive order on environmental justice. It's still in effect with some limited changes made by the Biden executive order that I'll mention next.

   But this first executive order from 1994 does a couple things. It directs federal agencies to make achieving environmental justice part of their missions by identifying and addressing as appropriate disproportionately high and adverse human health or environmental effects of the agency's programs, policies, and activities on poor people and people of color in the US states and territories. The Clinton executive order also set up an advisory interagency working group on environmental justice to develop guidance on identifying environmental justice issues with representation from all the major federal agencies not just ones with an explicit environmental protection or resource management mandate. And the Clinton order also directed each agency to come up with an environmental justice strategy and to collect the requisite data to assess the environmental justice impacts of that agency's programs.

   Okay. I'll turn now to executive order 14008, this is the Biden one, it's titled Tackling the Climate Crisis at Home and Abroad. This one was issued in January 2021 and you can find it at 86 federal register 7619. So this executive order covers a lot of ground. And as the title indicates, it focuses on climate, but it links climate to environmental justice. And in that context, it does a few things. It charges a new national climate task force that it creates with delivering environmental justice and communities across America. It rebrands the interagency working group that was set up by the Clinton executive order, changes some of the membership, and it broadens the group's charge to developing a strategy to address current and historic environmental injustice by consulting with a White House Environmental Justice Advisory Council and with Local Environmental Justice Leaders. And that strategy is supposed to be backed by metrics to be developed.

   Like the Clinton executive order, the Biden one applies to many federal agencies, but EPA is of course a key one. And EPA has acknowledged since the executive order was adopted, that it still has a lot of work to do at environmental justice. In fall 2021, EPA's own inspector general issued a report that identified environmental justice as one of EPA's most significant barriers to accomplishing its mission in 2022 following the challenge of climate change. The report concludes that as part of its effort to integrate environmental justice across its programs, EPA must address the environmental hazards and cumulative risk facing at risk communities and effectively communicate that risk to those communities.

   That concludes my very long list of federal provisions that you might want to think about using to address an environmental justice issue. I'll use the last part of this training to talk about some organizing principles and practice tips for environmental justice work. So imagine that you found an environmental justice advocate maybe more than one, who's interested in your help as a lawyer, what are some important things to keep in mind besides the legal hooks that you might use to address an environmental justice concern? On the organizing principal side I think it's really helpful to be familiar with the six Jemez Principles for Democratic Organizing which are usually just referred to as the Jemez principles. These aren't specific to lawyering at all, but they're often referenced by progressive organizations that do environmental justice work or who provide resources to other groups who do it including my organization, NRDC.

   So if you're interested in this practice area's worth developing some familiarity with the Jemez principles. The full text of these principles is pretty long so I'm going to paraphrase them, but I've included a link in the materials to the full text of each one from EJnet.org. The first of the six is be inclusive. The second is to emphasize bottom up organizing. Third is to let people speak for themselves. The fourth is to work together in solidarity and mutuality. The fifth is to build just relationships amongst ourselves, which I read to have to do with clarity around decision making as well as treating individuals with respect. And then the final Jemez principle is a commitment to self transformation which has to do with the idea that groups are stronger than individuals and that it's generally helpful to try to move towards a more collective understanding of what's possible.

   In addition to the full text of the Jemez principles, EJnet.org has a list of environmental justice principles that were developed in the early 1990s. There are 17 of these. So again, I won't try to cover the full text here. I've just included a link to it, but I'll read the last principle which is that environmental justice requires that we as individuals make personal and consumer choices to consume as little of mother Earth's resources and to produce as little waste as possible and make the conscious decision to challenge and reprioritize our lifestyles to ensure the health of the natural world for present and future generations. I think that principle is consistent with the broader conception of environmental justice I mentioned at the beginning of the training, in which it seeks to reduce environmental damage and not just redistribute it more evenly across the human population.

   All right. So that's all for organizing principles. For the very last part of the training I want to turn to sharing some practice tips from my own work, and these ones are more tied to the specific roles and responsibilities we have as lawyers, none are unique to environmental justice work, but they can be especially important to effective legal work when you have an environmental justice client. So the first of these tips is to remember that legal action is probably not the only answer to the problem that your client has. It may not be the best one, and it may not even be a worthwhile answer.

   In my experience, environmental justice based legal advocacy is most effective when it's coupled with political and communications and organizing strategies that are developed and largely carried out by community based advocates themselves. And as I mentioned earlier in this training, environmental justice is just beginning to find its way into formal US statute law. So even more than another practice areas, you need to be mindful the limits of the law and think about other ways to help address your client's concerns. So that's the first practice principle.

   My second one is to be clear about who you represent. This is obviously fundamental to any legal practice because it affects who you take direction from, who you need to keep informed, whose interests and confidence is you're there to safeguard under the relevant professional responsibility rules. Environmental justice work as some of the organizing principles we've talked about illustrated, there's a strong preference for collective action. So you're very likely to be representing groups instead of, or in addition to individual clients. And if you represent an organization as a lawyer, the general rule is that you represent the organization acting through its dually authorized constituents. And it's your responsibility to explain this when dealing with an organization's directors, officers, employees, members, and other constituents if you know, or have reason to believe that someone in that group has interests that aren't aligned with the organizations.

   So this comes from ABA model rule 1.13 Organization as Client subparts A and F. That's just the model rule, of course, but many states have included an analogous provision in their ethics rules. So if you want to take a look at the full text and comment of the model role, I've included a link to where you can find that on the American Bar Association's website.

   Something to keep in mind here when dealing with this rule is that if you have an environmental justice group that's just getting started as an organization as your client and it's just starting to formalize its governance and legal structures, it may take a while for you as the lawyer to figure out how best to take your direction from the organization and with whom you should be communicating about what, and also as with any group you may find that not everyone who's associated with it agrees about the direction. So it's very important to be clear about who you represent and then what that means in the context of an organization. So that's the second principle.

   The third is, check your assumptions. And I'm to talking here both about assumptions that people may be making about you and assumptions that you may be making about others. So starting with assumptions that people may be making about you. A lot of people are distrustful of lawyers. Sometimes it's rooted in something that happened to them or someone they know, sometimes it stands for more general stereotypes. And I think it's important to keep in mind that traditional for-profit legal services are unaffordable for many people in this country. And that means your clients whether they're individuals or organizations and the people within those organizations, they may never have had the privilege of working with a lawyer before and in turn they may know very little about the legal system and the litigation process even if they have a deep understanding of other arenas that tie into their advocacy.

   So expect it take a while for people to open up and to feel comfortable relying on you for certain things and to feel grounded in the idea of using legal tools to advance environmental justice goals. Turning to assumptions that you may be making about others. First of all, it's fundamental of course to understand your client's specific goals as well as their communication preferences. So you never want to assume that you know what a client is seeking from you or what that client is prepared to contribute to the effort.

   Here I think it's important to keep in mind that if you're doing your environmental justice work as part of a full-time paid job and your clients in that environmental justice group are not, they may not have the same kind of time that you have to give the work. And with environmental justice clients, it can be even more important to be concise and targeted in how you communicate and also to be flexible about when communication happens and what form it takes. It's not always the case, but in general, your clients, if you're dealing with a small new group, they're going to be doing their part of the advocacy work for little to no pay, probably fitting it around their day jobs, because it matters that much to them. So you need to organize your practice in a way that responds to those constraints. So that's assumptions, the third principle.

   The fourth one is to get really comfortable with difficulty, uncertainty, and failure. Environmental justice advocacy is really hard, doesn't always succeed as some of the examples that I gave today illustrate. And as a lawyer, you can sometimes feel enormous pressure to deliver a solution to problems that feel really intractable and really tragic. And I think it can be important as an advocate to recognize the limits of your own power and embrace that uncertainty. And of course, extremely important to be candid with your clients about those things and the limits of what you may be able to bring to the problem that they're confronting. Will get comfortable with difficulty, uncertainty, and failure and make sure that your clients have thought about and understand the implications of failure as well as some of the difficulties and uncertainties that are going to be inherent in any kind of legal action that you may pursue on their behalf.

   The fifth principle is to get as comfortable as possible with conflict. Again, this is to some extent inherent in lawyering, but in environmental justice legal work you're more likely to have clients who may be engaged in litigation or lobbying for the first time and who don't have a lot of money, time, and formal professional background to draw on or educational background and your adversaries will often be aware of this and attuned this. And they may try to use their relative familiarity with the legal system or the political system to try to intimidate your clients into giving up, try to wear them down, act like the clients don't know what they're talking about. Look for ways to suggest that the clients don't belong in whatever setting they're trying to advocate in.

   I've seen this happen as a lawyer and it's very frustrating in part because it can be effective. It's not always effective, but sometimes it is. And it can also be ironically a reflection of the same power imbalances that led to the environmental justice problem in the first place. So be prepared for that possibility that your adversaries will try to intimidate your clients by reminding them of their relatively limited power.

   Another thing to keep in mind under this principle of getting comfortable with conflict is that environmental justice fights are fights. They can get very heated because they involve problems that are very close to people's hearts and homes and the interests on the other side can be very powerful and very determined. So if you're early in your legal and you're thinking about getting into environmental justice work, I encourage you to think hard now about that conflict piece. Think about how you're going to push to get what your client needs, how you're going to support them, and how you're going to do it in a way that's ethical and consistent with your personal values about how to treat people because if you can't do it that way it's really not worth it. You're not going to have a sustainable practice and you're not going to do your best work or be happy with that work.

   To close, I just want to say thank you for giving me the chance to speak with you about one of my favorite practice areas. I think it's incredibly interesting and very dynamic and I hope you'll continue to pursue your interest in it and that you found something in today's training that you'll be able to bring into your own practice. Thank you.

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1h 2m 05s

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