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Environmental Justice Policy and Advocacy Trends

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Environmental Justice Policy and Advocacy Trends

In this program, Natural Resources Defense Council (NRDC) Senior Attorney and Managing Litigator Selena Kyle will introduce the concept of environmental justice and discuss trends in federal environmental justice policy and private environmental-justice advocacy. This program will use examples from the guest’s own impact litigation practice to illustrate current issues in environmental justice.

Presenters

Selena Kyle
Senior Attorney and Managing Litigator
Natural Resources Defense Council

Transcript

Shaun Salmon - Hi everyone, I'm Shaun Salmon the Vice President of MCLE and Professional Development here at Quimbee. Today I'll be interviewing Selena Kyle of the Natural Resources Defense Council. Selena is the Senior Attorney and Managing Litigator there and is here today to speak with me about the modern US environmental justice movement, trends and federal policy, developments and private advocacy, and practical advice for those who are interested in environmental justice lawyering. To that end as a reminder, any opinions that Ms. Kyle gives today are her own as this is ACLE interview and not a presentation sponsored by the NRDC. And I just wanna say before we get started that this is just like one of the most exciting interviews I've had to date Selena, because I was obsessed with the NRDC in high school and wanting to work there one day actually fueled my obsession with AP environmental science for those of you who aren't like huge nerds who are watching this. And so I'm like just thrilled to have you here today and from an environmental law nerd since the early on, thank you so, so much for joining us and welcome.

Selena Kyle - I'm delighted to be here. Thank you so much for the opportunity. Just letting you start by just giving a little more background on NRDC because that's where a lot of my sort of practice examples and advice are gonna come from. So yeah, I'm on a in-house litigation team. There's about 40 of us all over the country. Used to be based in San Francisco, now I'm in Chicago that's where I'm the managing litigator with a few of those. And I'm just really excited to talk about some of the opportunities I've had to work with environmental justice advocates on site specific environmental justice fights here in Chicago and around the country. I think that they're the true experts on environmental justice advocacy. And so most of what I'm gonna share I've learned and from them really, but I'm really happy to tell you more about the field. It's just really exciting. So thank you.

Shaun Salmon - So the first question for you, what does environmental justice mean? And what are we really talking about when we say environmental justice?

Selena Kyle - Yeah, that's actually a big question. I think there's a lot of competing definitions is often the case with an emerging concept in the law. So I'll start with how I think about it. I think about it pretty simply as an effort to write injustice To write the injustice of polluting facilities being highly concentrated in certain areas, typically near people who have relatively little political and economic power to resist that. And we can all think of examples of that in our own lives, I think. The pattern's been with us for a long time, I think the environmental justice terminology that came into the mainstream in the early '80s. There were some fights in the south around some dumps. There's one in Warren County in North Carolina in particular landfill there. That's when the term environmental justice, I think came into kind of legal discourse in the US. And industrial waste and the threats posed by that, those are a core part of modern environmental justice work. And some of the fights I've been involved with personally.

So my first environmental justice case was about a landfill as well, also in the south. It was in rural Tennessee in Dixon, which is on the west side of the state between Nashville and Memphis. And that had to do with some companies that had dumped toxic chemicals in the '80s and they have leaked into the groundwater, polluted people's springs and wells, and led to some terrible threats to people's health. So we were involved in a big case to get that contamination better understood and get people onto public water. So we can talk about some more fights like that later on today, but on formal definitions without getting too deep into the semantics I think a key thing to understand is there's a divide between definitions of talk just in terms of redistribution. So taking the pollution we have today and distributing it more equitably so that more people have to live around it, nobody has to live as much of it. And so if you look at the environmental protection agency's definition of environmental justice, for example, you'll see that distributional emphasis. Some in the private environmental justice advocacy space say that doesn't go far enough. That's not environmental justice.

Environmental justice has to do with actually eliminating those police burdens for everyone. And to me those two things are on a spectrum. My sense is that if pollution were more equitably distributed than it is today, that would lead to a lot of political pressure to have less of an overall and to have tighter environmental regulations that are more protective of people's health. But there is a range of things that people have in mind when they talk about environmental justice. And I think it includes both the distributional aspect and the pollution control aspect. And then there's also a strong emphasis, I think, in all the definitions on process. And I think that reflects environmental justice's roots in progressive politics and organizing and the power dynamics that are driving the environmental injustices. There's a lot of sensitivity to traditional power structures and a lot of interest in dismantling those or working around them. So for example, if you work in this space as my organization does, representing environmental justice advocates, there's a set of principles called the Jemez Principles it often comes up. These were developed in the early '90s and they're designed for anyone who's doing environmental justice advocacy so not just lawyers. And those principles include letting people speak for themselves and emphasizing bottoms up organizing. So I think it's really important to keep the process piece in mind because as lawyers our specialized education and licensing gives us special power in certain settings. And I think when we do environmental justice work, that can mean we need to stay more in the background than we may be used to, and also that we may need to invest more time in teaching our clients about the legal process and the legal system and how to use it themselves.

There's a lot of advocacy and research tools that are conventionally used by lawyers, but you don't need a law degree to use it all if you're aware of them. So things ranging from our courts websites to the processes for submitting public records requests, or researching pollution data on industrial facilities. A lot of that is collected and it's supposed to be available to and useful to the public but a lot of people don't know about it. So as a lawyer in this space, I think a lot of the work to do with sharing that knowledge and building that power that you can gain from knowing how to research certain issues really thoroughly and in particular press governments and courts for more information about their own processes and decision making.

Shaun Salmon - So just to like kind of put a pretty bow on this, essentially... This is how I think about it. I was an American Studies major in the 2000s when nobody knew what that was. And so we talked about intersectionality a lot. So environmental justice and environmental justice lawyering are truly the intersections of civil rights plus environmental law, plus like possibly municipal law or federal laws depending on where they, and they kind of like that kind of all comes together as an intersectional practice, correct? Am I getting that correctly?

Selena Kyle - That's right. I think it's fair to think of environmental justice at least in this modern US context which is what I know know as sort of fusion or hybrid of a bunch of earlier progressive movements starting probably earlier than the '60s, but the '60s certainly was an important time for the civil rights movements. The beginning of the Environmental Movement with a lot of action around pesticides, racial coercion, DDT obviously there's a lot of work on fair housing and urban renewals starting in the '60s and '70s as well. And then the term environmental justice emerged in the '80, but I think you're right. It's a fusion of a lot of those different strands of progressive advocacy. And it's just beginning to become an independent body of law. Right now environmental justice advocates, when they're referring to statutes regulations, constitutional provisions, they're usually drawing on something that came out of one of those other movements.

Shaun Salmon - Got it. I mean, so I went to school in the Maryland DC area for undergrad and I was always fascinated by the Teflon case and just what was happening to the surrounding areas and something like that, or, oh my gosh, the case that like Erin Brockovich is based on. Those are all examples of trying to, the early side, not necessarily the equitable distribution in the future, but those are the examples of what happens when companies aren't paying attention or trying to hide what's happening to potentially lower income rural or urban depending on where they are, like what is it, communities around on them, right?

Selena Kyle - Yes, and there's a lot of emphasis now on bringing environmental justice law into national regulation and national statute law. But those site specific fights continue. And I'll just give you some other examples. So I mentioned that landfill case in Tennessee that fight started about years ago and it was initiated by one of our clients who was a daughter of a black family that lives right next to this landfill. Their well became polluted with trichloroethylene. She later got breast cancer, which is associated with exposure to that chemical. She and her mom joined a lawsuit with NRDC to try to get that contamination better understood characterized, get people off well water onto public water. So that was a rural area, but there's a ton of environmental justice work in cities as well.

Two big fights here in Chicago. There's one about the general iron facility. This has been in the national news a little bit huge news here in Chicago. It's a big metal shredder used to operate in my neighborhood Lincoln Park, which is on the North side relatively white wealthy area. That shut down a few years ago and there's been an effort to reopen a facility that's under the same corporate ownership on the South side of Chicago. And there's been a huge fight about that. Just last month mid-February, 2022 the city of Chicago denied a final operating permit that the company needs. And as part of that decision, the city talked about the very inequitable distribution of heavy industry in Chicago and the fact that the neighborhood where the company is trying to relocate is already disproportionately burdened with really high levels of air pollution for some of the key pollutants that a facility like this would throw off. So that's a very current fight that's sort of in the vein of some of the original ones.

Shaun Salmon - You gotta love the mute button. So thank you, that was so helpful and so interesting. So hold on, let me just go back. I was like listening deeply. I didn't even get into the next question. So my next question is actually for you on like a little bit more of a personal level. How did you get into environmental justice work and to that end, is there a while you're telling me about this kind of like a guide path for attorneys who might be interested in following in your footsteps?

Selena Kyle - Yeah. So I mentioned I'm on this in-house litigation team at NRDC. We develop cases that advance NRDCs priorities to protect the environment in public health. And we also sometimes do that on behalf of outside individuals or organizations that share those goals. That could be an individual environmental justice advocate like Sheila Holt, our client in the Dixon landfill matter, or it could be a small group, community group. And my experience with environmental justice has mainly grown out of just working at NRDC as a lawyer and being approached for help on some of these environmental justice matters.

And in addition to the landfill, one that I mentioned and the metal shredder another example is a settlement I administer, it's a Clean Air Act settlement. It's about a coal-fire power plant outside Peoria, Illinois with failing pollution control. They're required to close the plan by the end of this year, the owners, but they also had to put $8.5 million into a fund that's being used to support community projects in the area around the plant to help ameliorate some of the terrible effects of the pollution. So electric transit buses, electric school buses, home weatherization for low income households, long health education and medical intervention and solar installations for school and government buildings. So projects linked to the economic consequences of the plants coming closure and the public health consequences of the pollution. And in implementing that settlement, we try to think really hard about the most disadvantaged communities in the Peoria area, the ones right around the plant that have been most burdened by the pollution and that will be affected when the plant closes economically. And we did our best to really target this funding to those communities, which are largely communities of color and quite poor. So that's an example of a case that I think didn't start as an environmental justice case necessarily, but has a strong environmental justice component in the settlement phase.

So I think big picture, this is becoming more and more an emphasis in the work of big green groups like mine, but the movement is really being driven by other groups. The smaller community groups who are on the ground living right around some of these heavily polluting facilities and fighting for more attention, more regulation, more enforcement. And I'm just grateful to be in the position to sometimes provide that help when I'm asked. So in terms of a path, I don't think there is one. And I think actually the most direct path for someone who's especially interested in doing environmental justice work and exclusively that would be to look for an opportunity to go legal service work, or a staff job at a small community based group, because that would give the insurance that pretty much your whole docket is gonna be in this space. If you go to a larger green group, I think it's probably gonna be a mix, not all of the work that groups like mine do is environmental justice work. And I cannot talk a little more later about some of the things I've learned from representing environmental justice groups, what that means for your practice as a lawyer, but yeah, big picture. I think these opportunities exist in green groups, but they exist elsewhere too.

Shaun Salmon - Awesome. Okay. I'm gonna remember to circle back to that. Okay, cool. So I think where I kind of wanna take this next is like, can you give us an example of current litigation that the NRDC is working on?

Selena Kyle - Sure, so here's another Chicago example. This is actually a national regulatory case, and I represent my organization NRDC on behalf of its affected members, but I also represent a Chicago based environmental justice group called Neighbors for Environmental Justice. They're terrific organization. They start it a few years ago. They're based in and around the McKinley Park Neighborhood in Chicago. On the edge of that neighborhood is a large hazardous waste recycling facility run by a company called Clean Harbors. They recycle a toxic chemical called methylene chloride. It's a carcinogen. They release it into the air as do other recyclers and factories that make it all over the country.

So this lawsuit started because a federal law called the Toxic Substances Control Act was amended about five years ago to require EPA to do these evaluations of toxic chemicals like methylene chloride. And where they have to look specifically at what the law calls potentially expose susceptible subpopulations kind of an awkward phrase, but included in that is people who have greater exposure to the chemical. And that includes obviously people who live right around large industrial emitters or who work in factories that make the chemicals. And what happened with this risk evaluation for methylene chloride is EPA did not do any special analysis of those groups. And really didn't even, I think, acknowledge that they were in that greatly exposed subset. That was incredibly important obviously to our clients that that be recognized and that that analysis be done. Another environmental justice issue with that risk evaluation that's in the case is EPA also really grossly understated risks to workers. These are people who are making the chemical inside factories. EPA assumed that all of those workers would have like very sophisticated high end PPE like personal protective equipment.

So for example, they assumed they would wear these respirators that need to be hooked up to duct work like very fancy defensive respirators. There's no evidence in the record that most workers are provided that kind of gear and trained on how to use it safely, but EPA assumed that they would be and that drove their exposure estimates way down and basically led them to conclude that those workers and some of the people in these neighboring communities are not at as great a risk as we think they are. So we sued EPA to try to get that analysis revised and expanded. We don't know what's gonna happen yet. The analysis happened at the end of the last presidential administration, as in many of these regulatory fights about regulations issued under the last administration or studies EPA has now gotten a remand. So they've gotten permission from the federal courts to basically take the work back, take another look at it. And in this case, it's as common, they were able to get a remand without the court ruling on the scope of their obligations under TSCA. So we actually don't know yet what the ultimate judicial conclusion will be about what EPAs required to do to really understand the risks. So like neighboring communities and workers, but the statute is clear that they do need to do that.

So I think it's just a matter of before things play out. EPA is now working actually on some new processes or new systems for doing this kind of work, but we haven't seen the results yet, and we're quite impatient. So that's an example of an ongoing litigation that brings up some of these environmental justice issues. And then I mentioned some others that have been settled or where there's no litigation involving my clients.

Shaun Salmon - I just think about, and we're in Women's History Month while we're recording this. So maybe this is a great time to be raising these, but I talked about the Teflon cases and stuff like that, and Aaron Brockovich, but what about the Canary Girls, the World War II workers that were working in Britain and their hands turned yellow from the T&T that they were working with, I think it was, and then the Radium Girls, the ones who worked in the watch factories and everything turned them, like they turned green and they were super sick and they were dying and they didn't know why. And then they found out it was something that had to do with the watches. Finding those issues and then addressing them is like what has kind of spurred environmental regulations over time, right?

Selena Kyle - I think so. I'm not an environmental historian. I don't know about the Canary Girls. I definitely have read about the Watch Girls. I think what was going on there was they had a radioactive paint they were putting on the dials of the watches so they would glow in the dark kind of like a Timex watch. And they were hand painted so they were like handling these brushes with this, I think it was a radium and licking them. So yeah, they were highly exposed and what a horrible situation.

Shaun Salmon - Horrible, and then there was--

Selena Kyle - Yeah, yeah.

Shaun Salmon - There was also something I forget who this was, this affected not just the people who worked in the factories, although they got sicker. There was also the green dresses from the late 1800s or early 1900s where like they used this insane green dye, which I also think may have come... I think it might have also had like a radium type of thing in it. I'm clearly not a scientist. And not only did the workers get ill, but people were so obsessed with these dresses and these hats that were green, that they would wear them anyway. And then they would turn green and like they were dying from it and it's wild. So I think that it's really just important to draw the connection between what lawyering for environmental reasons does and the positive impact that it can have on just society as a whole to prevent us as humans from doing something like giving unprotected people paint brushes with just toxic chemicals on them and then letting them go to die. You know what I mean?

Selena Kyle - Yeah, I mean, I think episodes like that probably spurred just the development of environmental laws period in the US. And that started a while before environmental justice entered the mainstream as a term. But absolutely people again, with typically less political power, like workers, lower income workers they are the brunt of harmful pollution. And I think everyone accepts that as a reality. And maybe the political question is just what can be done about it. And I certainly hear from some people like nothing can, this is the way that it's always been. That's how it is. If you have less money, you have less political power and we know in the US there's a strong overlap between that and people's racial identities. But if that's the case, you have less money, less political power, that's how it is. Like the poor neighborhood is closer to the dirty stuff, but that is not how environmental justice advocates feel about it. And it's certainly not how I feel about it personally. Like in a modern industrialized society, we have a lot of tools to better control pollution to make sure facilities are cited appropriately, to make sure that workers are provided like the most advanced protective gear and that that's required, not just assumed. So I think there's a lot that we can do to take better care of each other. And even our existing laws give us a lot of good tools that just aren't used as frequently as they could be if environmental justice advocates had more lawyers.

Shaun Salmon - Right. And so my question's there on the background of different like incidents throughout history. Oh by the way the Canary Girls are from Britain. They're not US but they were really important in World War II. And so I thought they were important to mention, but I would say that that was like really connected to my next big question here, which is how do you know environmental justice is a thing and a real problem? And so those examples I gave you to ask you about, I think are part of it, but I think there's probably more and I'd love for you to talk about that a little.

Selena Kyle - Yeah, so I think many including me would say, it's obvious it's all around us and I've given you a few examples already, but another one from Chicago, this is now resolved. But about 10 years ago, these giant piles of pet Coke, which is like a black kind of coal like refinery waste, they just started piling up on this outside of Chicago. There's big facility set up to just store this waste in 60 foot piles uncovered right next to residential area. This is the windy city and the black material flew around. Landed on people's houses, landed on playgrounds, landed in parks. Some of my colleagues at NRDC and I were involved in an effort to get that problem contained. And it is now, the city of Chicago passed some new regulations that require piles like that to be enclosed. And that appears to have altered the economics of the facility so much that they chose not to keep running. It turned out to be more than they wanted to pay to enclose so the piles just moved away and are no longer next to the neighborhood. That's wonderful. But for those people who maybe have not been as exposed to these issues in their personal lives who are insulated from them, there has been a lot of empirical work done as well.

So for example, ProPublica which is a nonprofit investigative news source. They did an investigative report in November of last year, 2021. They used some information from EPA and they built on it and they did a nationwide analysis of like pollution and population. And they found, for example, if you look at census tracks where the majority of residents are people of color, they experience about 40% more cancer causing industrial air pollution on average than tracks where the residents are mostly white. This is significant difference. And then another finding the ProPublica made was if you look at predominantly black census tracts, the estimated cancer risk for toxic air pollution is more than double that of white majority tracks. So it's findings like this that drive the environmental justice battles we have in places like Chicago, because it is very visible. And I think very hard for people to deny once they're presented with the information.

Shaun Salmon - What do you find most interesting about this work?

Selena Kyle - Obviously the urgency of it and I find the issues very compelling just on the basic level of fairness and from the perspective of how much better we can to be doing as a modern industrialized democratic nation to help our neighbors. But as a lawyer, it's also really interesting area because it is so incredibly challenging. Part of that comes from what I was talking about earlier the fact that it's not a particularly well developed area of law yet. And so we're drawing on all these other strands of progressive law and regulatory law that were designed with slightly different purposes. And then another thing that's very challenging about it that again comes straight out of why environmental justice exists is a movement. Is this David and glad dynamic where you have usually large owners of industrial facilities who have strong economic interests in being able to put them right next to where people live and run them without a lot of restrictions, they often have incentives to fight very, very hard for the right to do that. And then meanwhile, the opponents may be community groups that are totally volunteer led with very little money, no lawyers on staff, less access to politicians and others who may be able to help them.

So as a lawyer, I really, I like that I like being on the David side of the fight. I like having to figure out how to piece together the legal tools, how to help law compliment the other tools that my clients are using and figure out how to keep the Goliath at bay or slay the Goliath as the case maybe.

Shaun Salmon - Right, right. So, you know what, talk to me a little bit about maybe some recent efforts to get some actual legislation on the books. I know you mentioned the TSCA before, can you dive into that a little bit more and any other ones that you think are really important to talk about?

Selena Kyle - Sure, so I wish there were more on this list and I think it's growing by the day. So for example, I have it looked at what US states have done. And I think there's probably a growing body of law in that area as well. The federal level... So yeah Toxic Substances Control Act exists to try to prevent problems like some of the ones that you mentioned with the Watch Girls. That's the point of studying toxic chemicals and trying to understand what risks they pose to people in the environment and regulate them better. But so that act has been around for a long time. The provision that was added requires EPAs evaluations those chemicals to look at these populations that are particularly exposed. They also now are supposed to give special look at people who are especially susceptible meaning that if they're exposed to a given amount of the pollutant, they're more likely to get sick.

So for example, with methylene chloride, it just depends on your genetic makeup. And if you have certain genetic makeup, you're more likely to get cancer. If you're exposed a certain amount of it, then like somebody's standing next to you. So that's also, they're supposed to look at that. Like that's another vulnerable population. And US regulation should be designed to protect everyone. And I mentioned so like the race element, the poverty element, the geographic piece and then... Oh, I was just gonna say that an example of an effort to get that kind of work done is that metal shredder fight the general iron fight here in Chicago. So the city decided recently to deny a final operating permit, as part of their consideration of the site, they did what's called a health impact assessment, EPA encouraged them to do that. And that health impact assessment looks at health outcomes and health status as well. And point it's out that you have like poor health conditions like people are already sicker in some of these more polluted areas of the city. And that is also a part of what makes them more vulnerable to having additional pollution added to their environment. But I do think that's a newer way to think about these issues that we might not have seen like 20 or 30 years ago even.

Shaun Salmon - Right, and what about... I know I've seen some things here and I've obviously been through your notes for this. What about the Illinois Climate and Equitable Jobs Act? Can you talk about that a little bit?

Selena Kyle - Yeah. Sorry. So yeah, here's some other examples--

Shaun Salmon - No, no don't apologize I'm just curious.

Selena Kyle - Oh, yeah. So this is a law that some of my colleagues were involved very closely in getting past, and it's pretty recent past this fall so it's still being implemented, but it's called the Illinois Climate and Equitable Jobs Act, CEJA. And it's one of the first of its kind in the nation. And it has a lot of provisions in it. It's a clean energy though but it has visions that are designed to help ensure that disadvantaged communities share in the opportunities and benefits of the transition away from dirty fossil fuel sources to cleaner ones. So in communities like Peoria, Illinois where we had our Clean Air Act enforcement case against this failing coal fire power plant, there are a lot questions about what it means for a community like that that had a big coal fire power plant next door, when that closes those jobs go away and the community moves on. What's the best way to make sure that that transition happens in a way that supports everyone in the community and particularly like the poorest and most vulnerable members.

So the Climate Equitable Jobs Act also has some workforce development provisions that are designed to help ease those transitions. And in the Midwest we have a lot of fossil fuel power sources that are still running. So I think this will actually be an even bigger issue in years to come the just transit issue, which it overlaps with environmental justice, but it's not exactly the same. And then another recent example of legislative activity on environmental justice is the federal infrastructure. The Build Back Better Act, that's another example of something that's still being fleshed out. As you may know, the Biden administration made a pledge that 40% of new climate and infrastructure spending, 40% of those benefits are supposed to go to disadvantaged communities. That's part of the framework for a Build Back Better. And it'll be very interesting, I think, to see how that's translated and what that means on the ground. Like what does it really mean for 40% of the benefits to go to the communities who's gonna be accounting for that.

Shaun Salmon - Right, so can you talk a little bit more actually about... I mean, you kind of did it a little bit, but where you think or where it seems that the federal government is heading.

Selena Kyle - Yeah, I mean, I'd say big picture. I've been a little frustrated at the pace of the work. We've seen a lot of broad announcements and the question is what does that really mean on the ground when you get to the level of specific projects, specific chemicals, specific communities that are being harmed. But some other examples of the pronouncements are shortly after Biden came into office, he issued a new executive order on climate environmental justice. And in there, he said, we need a strategy to address environmental injustice, both current and historic. And that should include consultation with local environmental justice leaders. I think that last part was actually new even though it seems very obvious.

So there's some earlier executive orders and environmental justice they go back to Clinton, but there's a new emphasis on, I think, understanding the problem more deeply and understanding it in collaboration with local advocates instead of thinking of it as something that government is just gonna solve on its own without speaking and engaging with the people who are most affected.

Another example of sort of a broad pronouncement is there is an inspector general report from the EPA that came out late last year where EPA acknowledged that they have more to do on environmental justice. And it's one of the most significant barriers to them accomplishing their mission, that they really need to integrate it across their programs, and they need to address environmental hazards and cumulative risk in these communities and do a much better job. I think another thing... Something we've seen for this administration that's I think is a bit different and goes beyond what we've seen before is it seems been willing to engage in some of the more site specific fights.

So for example, the metal shredder in Chicago, the health impact assessment that the city did was actually recommended by federal EPA in a letter that Michael Regan, the current administrator sent Mayor Lightfoot. Things like that may have happened under previous administrations, but I can't think of an example. There's also a federal HUDD Housing and Urban Development Department investigation of Chicago's role in the proposed relocation of that facility from my neighborhood on the north side to the south side. And that's in response to complaint that some of our community partners filed about discriminatory housing and zoning practices in the city. So that is under investigation. We don't know the results yet, but HUDD did agree to pick that up and take a look at it. So those are some sort of more sort of federal site specific engagement efforts. And then there have also been some statements about more enforcement work. So getting more inspectors out there with more novel technology to spend more time looking at compliance by individual sites and focusing that really important inspection in enforcement work more in environmental justice communities.

Shaun Salmon - So I have a quick follow up for you. No, no, yeah, don't apologize. I have a quick follow for you. So I am very interested in animal welfare legislation also which is just like been a passion project of mine. I told you I was a real big nerd. And so I'm just curious, like I know that animal law is its own animal. I know that's its own field. But I'm curious if you would consider things like the welfare of workers in like animal production, like food production factories and stuff surrounding like ag-gag like that type of thing. If you would consider that something that falls under the umbrella of environmental justice specifically like one worker health and two... You know how the closer you are to a factory farm, the more likely you are to have pollution issues from like methane gases and that type of thing. I'm just curious, are they completely separate or do they overlap at all in your mind?

Selena Kyle - To me, they overlap. A lot of people I think would say you need to take a close look at what the worker community is, but if we're talking about workers in a poultry plant or a meat packing plant, my guess is in a lot of places in the US at least that's gonna be very poor people who are largely people of color and probably some people who are undocumented, people with like relatively little political power. And so to me, there is a strong overlap, and this is actually an area where NRDC has done some work as well. So for example, there's a lot of concern about the use of antibiotics to--

Shaun Salmon - Oh, yeah.

Selena Kyle - Yeah, to promote growth and also to prevent disease in these large animal farming operations. And the disease is in part a function of the conditions that the animals are kept in. How confined they are, but that... So basically antibiotics are used to suppress disease in the animals and promote their growth. They're no longer supposed to be used for growth promotion, but there's a little bit of a gray area and so it's unclear right still be used for disease prevention. And that has human health implications that are really serious.

Shaun Salmon - It does.

Selena Kyle - Because it can promote the growth of these antibiotic resistant bacteria and it can make it much harder to treat all kinds of human infections. So that's an example I think of both workers and animals being exposed to very harmful conditions that are bad for them, but also for the ultimate consumers, the meat products and really anyone who stand to benefit from the use of antibiotics to treat human infections. And they're also used by the way for agriculture. I don't know if you know that. I actually learned that recently through another NRDC case. Antibiotics are also sprayed on crops.

Shaun Salmon - I read something to that effect, but I am absolutely not well researched in that. Whereas I'm considerably well researched on the animal side, I'm purely out of interest. I mean, purely out of interest, but I did read that and I find it fascinating. Do you happen to know the what case that was? Can you talk about that at all?

Selena Kyle - You know what, this one I'm gonna have to go back and get some sites for you, but that's--

Shaun Salmon - It's okay. Everyone watching, we can add them.

Selena Kyle - Yeah, so this case, some of my coworkers are litigating and I'm not, but some of my teammates on the litigation team and it involves streptomycin, which I think is a pretty common human antibiotic being sprayed on citrus crops in Florida.

Shaun Salmon - I actually didn't know it was citrus. That's so interesting. That's so interest... I mean, I really, this was like completely just a question do you think they overlap, but that's... So I mean, I'm obviously gonna have to go read more about that now. So thank you. I have a homework assignment from this interview today.

Selena Kyle - Yeah, but I think they do overlap and I certainly think that some environmental justice groups like neighbors from environmental justice my client in the methylene chloride case, certainly worker exposures and worker treatment are part of what they're concerned about.

Shaun Salmon - Really interesting. And actually to that end, you mentioned that the environmental justice versus the EPA case, right. That's the one you're talking about. Can you talk about like some of the struggles of the private advocates with that surrounding that case?

Selena Kyle - Yeah, I mean, I would just say it's very frustrating when there's law written that seems pretty clear that the federal agency is an obligation to do something and then they just don't. And you sue, they get more time to look at the problem and meanwhile the clock is ticking for everyone who's being exposed to the chemical. And in this risk of the evaluation context, it's not just about getting to a comprehensive study that fairly and accurately describes the risk these chemicals present to the people who live around them. There's another step, which is once EPA makes a finding that the risks are unreasonable to certain groups, they have to issue new regulations to eliminate it. And so there's urgency to it It's not just about saying like these problems may exist and we need more time for study. It's about actually acting to limit the pollution or eliminate it. And that's the piece, where I think there's a lot of impatience with the pace from the Biden administration. There's a lot of broad statements, but we're still waiting for commitments.

Shaun Salmon - So Selena, can you talk to me a little bit about the GAO?

Selena Kyle - Yeah, so the GAO, you might not have heard of it. It's the US Government Accountability Office and they really interesting investigate research and reports on how well other federal agencies are doing in carrying out their mission. So 2019, they did a big report that looked at environmental justice efforts, surveyed the plans and policies of various federal agencies. And since that time GAO's been going back and checking up on progress and then update their report online. So there'll be a link in the materials, but that's a pretty interesting place to look for just status reporting on what's happening with different federal agencies around environmental justice. I checked late February this year, and there were still some notes to the effect that EPA has a lot of work to do on the recommendations, the GAO made to them back in 2019. So even that agency that's really at the heart, I think of the federal government's environmental justice work has some work to do based on their own sort of internal regulatory analysis. So check that out, GAO is a great agency and not very well known.

Shaun Salmon - And not to be in the prediction business. But where do you think the environmental advocacy community is headed?

Selena Kyle - Yeah, so I think that's another really big question about a big complex group. I think there has been much more of an emphasis on environmental justice in recent years. And I don't think it's gonna stop at the level of the broad policy statements, even if that's most of what we've seen so far. I think it's certainly shaping decisions about what organizations like mine do with their resources, how much they put into environmental justice work versus other kinds of advocacy efforts. And I think in the site specific litigation space, there have been some really important tangible successes. So I've mentioned a few cases I've been involved with that led to settlements that are gonna redress some of the environmental justice issues that those disputes presented. Some other examples are like led pollution in the drinking water in Newark, New Jersey, Flint, Michigan. NRDC was involved in and led some of the litigation to get those municipalities to work on cleaning up the water and reducing exposure. And there's some legislative excesses as well, like the Clean Energy Jobs Act in Illinois. So I think the movement is beginning to get some traction. It's beginning to get traction at the level of enforceable decisions that affect what a company does or can do to pollute the air and to expose its workers and its neighbors to toxic chemicals and other harmful emissions.

Shaun Salmon - Right. Okay, so Flint and Newark hit very close to home for me. I went to law school in Newark, New Jersey, and I actually interned for Cory Booker when he was the mayor. And I actually got to do some like Tree City USA like grant work when I was an intern, which I thought was like really fun. So just briefly, can you go over sort of the impact that like the Flint case and the Newark kind of like adjacent case had on the field of environmental justice lawyering?

Selena Kyle - That's not a question that I think I can answer. I think first of all, those settlements are still being implemented, but I think that they certainly drew more people's attention to the really basic problems that some people in this country are having getting very standard services that I think most of us would just think are just part of life in a first world country. So to be able to turn your tap on and drink the water and feel confident that it's not gonna make you sick and it's not gonna IQ and brain development, that's pretty basic. But in Flint and Newark people weren't getting that. And I hope that people have seen that when there's a coordinated fight that started by it involves local advocates. So for example in Flint there's some individual activists and some pastors groups who brought that issue, I think to national attention and got national groups like the ACLU and NRDC involved. So I hope that people see that you can be successful in organizing to call attention to these issues even if you're not getting a lot of sympathy or a lot of competent work from your local regulators and state regulators. I think the problems in Flint were known, they just were not being addressed.

Shaun Salmon - Right. So I think we talked about maybe looping back to this from the beginning 'cause you had some other examples to talk about when I asked about the kind of like Blueprint for someone who wants to practice in this field. So what would you say to or what advice do you have for lawyers who are interested in this area? And then if you wanna like kind of loop back to what you were talking about earlier, we've got a little bit of time. I would love to hear it and then I probably have a couple more follows for you.

Selena Kyle - Sure. So I'd say if you're thinking about this field, you're curious about environmental justice, you're thinking about making that part of your legal practice, I think that's great. We need all the help we can get. And that goes back to the power dynamics. If you're a large corporation with an interest in building or maintaining a polluting facility, you're gonna be able to pay for corporate lawyers to help you get that permitted and built and to defend enforcement litigation against you for pollution. If you're the community group living next door, maybe not, you're probably not gonna be able to afford market rate services. So I love it that this is becoming such a prominent issue and I hope that it encourages more people to think about getting into the practice. But I think in this area in particular, you really need to think about the chances of being able to represent true environmental justice advocates as clients. And so if you're going to affirm or you gonna get pro bono opportunities that allow you to do that, and if not, do you wanna think about some other kind of practice setting that's gonna give you more flexibility to do that kind of work and not run into conflicts with existing clients of your firm, for example.

So that's probably obvious, but I think it's very important to think about what are the clients that are gonna come particular practice setting and how does that mesh or not mesh with your interest in being an environmental justice advocate, which typically involves helping people who don't have a ton of money in political power. Another thing to think keep in mind is I think formal advocacy skills are at least as important as they are in any other area. There's a lot to environmental justice advocacy that's not lawyering and that could be more important than lawyering. That may be the best way to solve the problem organizing press work and so on. But as the lawyer, you're gonna be there for your legal expertise, that's what you contribute and that's what's gonna be most valuable to your clients. So researching, writing, negotiation, argument, all of those traditional practice skills are gonna be really important. And those are gonna need to be really solid because the law may not be as well organized or as clear in your favor as you're used to in a more settled area. And then, yeah, just remember that the law's not always gonna get your clients where they need to go, may not be the best answer. It may not be needed at all.

You wanna be really mindful of the limits of your own power and expertise and just the different kinds of knowledge and background and experience that your clients may bring. You always wanna approach the work with like a service mindset. I think that's true in any practice area, but it is very emphasized in environmental justice work and it's very core to the principles that environmental justice advocates have developed like the Jemez Principles and that organizations like mine have pledged to follow.

So yeah, so the law's not always gonna get you where you need to go, be mindful of the limits of your expertise and power and then be ready to fight for the David Goliath reason, it's not gonna be easy to get your clients what they want for the same reason probably that they ended up with a problem to begin with. So it's gonna take whatever you have to give it. And it's a wonderful opportunity to make change in the world and disrupt the status quo. So I'm really excited that this has become such a big issue and I hope it means that a lot more people come into the field. I did another CLE for Quimbee that talks a lot more about practice advice. It's called Environmental Justice Lawyering. It also talks a lot about the different laws that environmental justice advocates use and draw on a lot more detail than we went into today. But if you look at, start around 52 minute that presentation, there's more on practice tips as well.

Shaun Salmon - So in addition to the practice setting you talked about and building advocacy skills, and by advocacy skills, you really mean the gamut. So like negotiation, research, writing, argument, like all of those, right?

Selena Kyle - Right, right.

Shaun Salmon - The skills you practice in law school?

Selena Kyle - Yes and more. So for example you don't usually get to practice discovery skills in law school, but those can be very important in areas in any other like how to take a deposition and find out what really happened.

Shaun Salmon - No, sometimes you just get admitted to the bar and start taking them and you're like, what is happening?

Selena Kyle - I wonder if it always feels that way when you take your first deposition, that was certainly my point.

Shaun Salmon - And no, no it does, it does yeah. It really does. Okay, so in addition to those skills, so for any like new attorney out there, it's not you it's us, it's all of us. But in addition to those, do you have any insights regarding intersectionality or I should say in reference to it like really good practice areas that might be good to practice in before... You maybe like right out of law school or if you're going to try and switch trajectories of your career, what practice area or industry is really helpful to have a background in for this type of work?

Selena Kyle - I think that some of those areas that have generated the bodies of law that environmental justice advocates drawn, any of those would be good to focus in. So for example, civil rights law, fair housing law, obviously environmental law, which is what I do, disability law. Those are some of the ones that come up over again, disability law maybe is not as obvious but I'll give you an example of that. We have a case that's been settled against the New York City Public Housing Authority. I think they have the most public housing units under management of like any public housing authority in the country. And this was a case about mold in people's units that wasn't being abated and remediated properly that can exacerbate asthma and so it was making things worse for people with that disability. So that was a case we brought to get the housing authority to get the mold cleaned up. But it was a disability law theory primarily.

Yeah, so there's a lot of different areas that can be valuable for this work. In terms of industry, that's a very interesting question. It's hard for me to answer because I haven't worked in a private practice setting since law school. I've clerked and then I came straight to NRDC. I imagine that you would get a lot of insight actually from representing people on the other side of these fights, probably a lot of strategic and tactical insight. The trade off would be the time you're investing in that work, which may not be aligned that well with your values if you're more interested in being on the other side ultimately, and then the conflict piece. I think it's really important to keep that in mind because you're not gonna be able to be a lawyer on both sides of the same fight.

Shaun Salmon - Fair enough, yeah. But it is interesting 'cause I think I agree with you. I think that being a public defender and then being a prosecutor gives you like a lot of insight like just using that as an example.

Selena Kyle - Yeah, in the same way that it's so helpful to clerk if you wanna litigate. You wanna understand what's happening sort of behind the scenes and how to persuade these deliberators and kind of to understand how judges think about making decisions and talk with their clerks about that is wonderful to understand if you're the one trying to get the decision you want. Yeah, anyway, the industry one, that's a tough question because I think most environmental justice advocates would say we don't have an industry. We're concerned about, yeah.

Shaun Salmon - Another question relating to some of the stuff you mentioned before that you would tell attorneys who wanna practice in this area. You mentioned that there are like other skills and other types of experts that you will probably need to work with and that you are there for your legal expertise. So who are the best types of experts to enlist if you are environmental justice lawyering. Who are the people that you as a lawyer do you, I guess, engage with I'm like who do you pay? But that's not right. Who do you engage with to assist your clients? What other types of professionals?

Selena Kyle - Yeah, that's a great question. So scientific experts are incredibly important and they come from a range of fields depending on the problem you're dealing with but certainly toxicologists people who model air pollution. How it's generated, how it travels around and spreads in the environment. Very common to use experts in those fields, all kinds of public health experts, epidemiologists. So people who can do something like say if you add this amount of fine particulate pollution to the air that's ash or diesel or many things can make that that'll lead to this many more heart attacks and asthma attacks. I mean really like translating pollution into public health consequences. People have the expertise to do that and do that well are incredibly valuable in this space. And then I would also say communications experts. So for example, translators people who are able to translate like legal and scientific terminology into languages besides English because environmental justice communities are incredibly diverse and you're gonna have a lot of people whose first language is not English and maybe they speak it, but that's different from being able to process really advance terminology. So for example, like neighbors from environmental justice based around McKinley Park, there's a lot of Latinx people in that neighborhood, but also a lot of Chinese people. So I know they've been working on figuring out how to translate a lot of their materials into Chinese so that those people are not left out when they work to inform people who live around them about what's happening with these facilities in their neighborhood.

Shaun Salmon - Thank you so much. I mean, I didn't even think about, of course I didn't, but I didn't even think about the communication side outside of like public relations. I was thinking about the bigger picture communication stuff and not like the more nitty gritty that was super insightful.

Selena Kyle - Well, I'll just say I think a lot of it is really super local. Like if you're work in a specific fight like part of what people often are upset about is like just nobody even told them. Nobody even told them this facility was coming or that it got a new permit that allows it to release more air pollution. And that often has to do with like the information being hidden in some database that you have to have like legal expertise or background to know how to access. And then, yeah, almost always a gonna be just in English too.

Shaun Salmon - The environmental justice concept also overlaps with the access to information and access to justice sort of like theory in general. 'Cause when you think of like something at the local level, you might know that like a municipality meeting is happening, but when don't take into consideration like childcare and time off of work... We're still talking in this country about the ability to go to vote in a presidential election, let alone having access to something to help you go sit down in your own municipality for an hour and a half to like argue that you don't a big factory to come to your town. And so is there anything that, I mean, you're obviously like the... You're really at the macro level in terms of NRDC, but is there stuff that private advocates are doing in the legal space to get just like more access for citizens to even address these issues when they are actually given the forum, but can't get to it.

Selena Kyle - Yeah, I mean, that's a big question, a big issue as well. I am sure that there's some private advocates doing great pro bono work in this space. It's a huge issue what you just mentioned like just the amount of time and resources people have to even just keep on top of what's happening and attend meetings. And that comes up in my practice all the time because your environmental justice clients are probably doing it on a volunteer based and have another job. And they're not gonna be available necessarily for a big conference call in the middle of the work day, that's when they're doing their other job. They care so much about environmental justice that they're working on it for free on their nights and their weekends. And that does make it very, very hard. It makes it even harder to really follow it's going on with some of the regulatory activity and the judicial activity. I do think there's been, at least in Chicago, there's been some real effort to make court proceedings and government proceedings more accessible. There's more use of websites. Community meetings are usually at night. I guess a silver lining to the pandemic is that it's very common now to have virtual court hearings. And one thing I like about that is actually that does make it easier. If you're an environmental justice advocate that has a day job, you can maybe call into that status conference on your lunch break, but you wouldn't be able to drive downtown to like the Cook County Courthouse and take a few hours out to see it.

Shaun Salmon - Right. I would actually to also argue that COVID or the pandemic had a positive impact on the democratizing of access to certain things. But then you get into, you can go further down that rabbit hole when you talk about socio-economics status. And you can talk about the fact that like, we are still dealing with children who don't have access to the internet. Like there is just so at the pandemic level, so of course that can trickle down to, but can citizens even get to a virtual meeting at their municipality if they wanted to. So I do think what's really come of today is just that there are so many points of entry and so many issues to the space of environmental justice that there's like a lot of things to need to consider and a lot of ways you can help.

Selena Kyle - Absolutely. But I'm really glad that you brought up these access issues because I think they're really fundamental to be an effective environmental justice advocate and they come up all the time. We can do a much better job of helping people to understand what's happening in court proceedings and other kinds of government proceedings that affect people's lives. Like decisions about whether to issue permits and on what basis. In a lot of states including Illinois, it's incredibly hard to get that information either because the systems are incredibly primitive. You can't see copies for example, of like judges orders online and the state court system often, like you have to get a copy from the lawyer filed the case or maybe a reporter has it. Or you're not allowed as someone who's a bystander, like arguably a bystander. So for example companies apply for a permit, they get it. They don't think the terms are favorable enough to them. They pursue an administrative appeal. You may not be able to intervene in that appeal and even find out what's happening as an interested neighbor. Like in certain areas the law says it's just basically the company and the regulator, which I think creates horrible incentives for the regulator because only one side can complain about the decision and there's gonna be a strong pressure therefore to make it relatively relaxed in terms of the pollution standards.

Shaun Salmon - That's really interesting. Actually I didn't know that at all. Again, I'm interested in this 'cause I'm interested in it not because I've ever practiced at all in this space. So I have two final questions for you just to sort of ground us and bring us back to the law of it all. So the first one is, can you do like, let's pretend this is like a rapid fire recap of the Jemez Principle. I think that it's something you talked about at the top, but then you referenced it a lot throughout. And I would just love to kind of end this interview with a recap of that so people understand what you're talking about throughout it when you reference it.

Selena Kyle - Sure, so the Jemez Principles are actually a pretty long list, but the two that really come to mind for me often are letting people speak for themselves and emphasizing bottoms up organizing. So the choices of what problems you go after, what's important, what the big picture strategy is ideally those are being made by your environmental justice clients and they're bringing you in and then you're advising them on how you might be able to help what the legal context is, but really the work should be driven by them. And that's comes back to kinda what I said about at the beginning I may be expert in environmental justice law to the extent that's even a thing. It's just emerging. But I wouldn't say I'm an expert in environmental justice advocacy because there's so much more that goes into that. And I think the true experts in that are people who are living in the communities that are facing these problems and that are standing neighbors.

Shaun Salmon - Right, you're right. And so the last question, in addition to that takeaway 'cause I think the Jemez Principles and that takeaway are really important. Can you give me like, I don't know, three to five other top takeaways that you want people who are watching this to remember from our conversation today?

Selena Kyle - Wow. Yes. Be prepared for a challenging practice if you do this. The law is not very well developed. You're gonna be making it through legal arguments and possibly legislative work. It depends on your practice area. But if you're an environmental justice law, you're probably gonna be making it as you go along. Be humble being really open to being in a supporting role and taking your direction from your clients, again I think that should always be the case, but it's really, really important in this space because otherwise you are on the risk of reinforcing the same power dynamics that are creating these problems where we have elite circles of people with more education and more political power that are making the decisions that affect everyone without involving the less powerful. So I think that's super, super important. And then just that there's a lot of work to do. We have so much work to do. I mean, I think the problem is obvious. The solutions are less obvious. I think it would be very interesting to think about what happened if all the industrial pollution that exists in the US today were actually evenly distributed across the country. Like what would that mean and how would people respond to that? My sense is we would get much stronger regulation because a lot of people would realize all of a sudden that this is pretty unacceptable and also doesn't seem necessary from a technological perspective. But we're so far from that, that it's interesting to think about. Yeah.

Shaun Salmon - Yeah. Well, listen, thank you so much. Can you tell everyone who is taking the CLE course where they can find you if they have questions, if they can follow you on any social media, that kinda thing.

Selena Kyle - I'm very old school. So I will just encourage you to get in touch with me. If you wanna talk to me, just email me. My work address is [email protected] We do have a website, it has profile pages for our various experts. And so you can look there for new cases. We also have a court battles page that talks about our environmental justice cases, the big ones and a lot of others. So those are a few places you can check out and I'd love to hear from you.

Shaun Salmon - Awesome, and just so you know you can also contact Selena through the course page @quimbee.com. So there's a contact button at the bottom if you want to just contact her since you're watching this right now. Selena, thank you so much for joining us today. It was a real pleasure.

Selena Kyle - Thank you, it was wonderful and it was great to talk about this in a different way.

Shaun Salmon - Thanks so much.

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