Posted on January 27, 2021 by Earl Phillips
As Covid-19 swept through our country, I was struck by this virus’s patterns of spread and severity, which challenged its supposed impartiality.
Latino and African-American residents of the United States have been three times as likely to become infected as their white neighbors, according to the new data, which provides detailed characteristics of 640,000 infections detected in nearly 1,000 U.S. counties. And Black and Latino people have been nearly twice as likely to die from the virus as white people, the data shows.
Months earlier, statistics had shown that residents of majority-black counties were three times more likely to be infected with the virus, and suffer six times the rate of deaths as residents in majority-white counties. The virus itself has been constant across our minority communities, but as Dr. Fauci explained in a White House briefing, these results are a function of our country’s already-existing disparities in access to healthcare being exacerbated by the stresses of a global pandemic. These communities suffer from a lack of resources and protections, resulting more broadly in impacts to environmental health, safety, and welfare.
Environmental justice (EJ) 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. 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.
Unfortunately, the failure of the federal government to adequately protect EJ communities from Covid-19 is far from unique, and instead merely the latest chapter in a long and shameful history of neglect. For many different reasons, we lack any strong federal program or template to address environmental justice considerations and as a result we are left with a patchwork quilt of state programs – some strong, some weak, some non-existent.
In this relative vacuum, there are some states that have stepped forward (or are in the process of enacting or upgrading programs) in significant ways. Without getting into the specifics of any particular state’s program, the common elements of these programs tend to be:
A clear definition of what is and is not an EJ community;
- What actions, events, or decisions do or do not trigger an EJ program;
- What is required of an applicant, respondent, and/or State to effectively notify and engage an EJ community;
- What resources, benefits, or opportunities will be provided to an EJ community so that the community can meaningfully review the proposed triggering event and thoughtfully participate in any proceedings, and who will provide those resources; and
- What burdens of proof must be met for decisions to be made that might further impact a host EJ community.
The Biden-Harris campaign made addressing the absence of federal leadership part of their pitch last July when they released their “Plan to Secure Environmental Justice and Equitable Opportunity,” which promised voters an administration that would: (i) work with EJ community leadership to establish meaningful metrics; (ii) establish regular performance reviews to track progress; (iii) revisit and rescind certain Trump-Era actions that were presented as stream-lining but that had the effect of limiting opportunities for community engagement; (iv) reinvest in science and data gathering efforts; and (v) establish offices of Environmental Justice in the DOJ and White House while at the same time reforming EPA’s External Civil Rights Compliance Office. Unfortunately for this planned-for aggressive “whole of government” upgrade to the Environmental Justice commitment, a divided congress could slow or stall much of the Biden-Harris presumptive legislative agenda. That said, Executive Orders (again, and hopefully only for the time being) may be seen as a viable workaround solution in the interim.
Like many of you, I feel extremely fortunate to have had the opportunities that I have had along the way.
Like some members of the American College of Environmental Lawyers (ACOEL), I regularly represent companies looking to build facilities, manufacture products, mine raw materials, conduct research for new products and solutions, and/or generate energy. A number of these efforts have taken me to communities in states with more robust Environmental Justice programs.
While the EJ process can be unsettling as you and your client work to alert and engage the community, and/or satisfy additional requirements, it has been my experience that effective EJ programs can lead to a better understanding of differing perspectives, an improved community/company relationship, a more thoughtful outcome, and in some instances, a better way to proceed. As we turn the page to 2021 I encourage you to think about the EJ programs in your regions or states, consider the potential value and importance of these programs, and HAVE A SAFE AND HEALTHY NEW YEAR.