Posted on September 20, 2017 by Lisa C. Goodheart
Media images of the recent devastation from Hurricanes Harvey and Irma provide vivid illustration of the direct link between climate change and environmental justice (“EJ”) concerns. For those who live in the path of tropical storms, the impacts of severe storm damage often have a disproportionately harsh effect upon low-income, minority, non-native English-speaking communities. Members of these communities are often the least able to get out of harm’s way and find temporary living accommodations in a safer place. They tend to live in sub-standard housing stock that is the least able to withstand the impacts of storm surges and extreme wind forces. Frequently, their homes are disproportionately located in close proximity to clusters of known environmental hazards such as Superfund sites, hazardous waste TSDFs, chemical and power plants, other locally undesirable land uses (“LULUs”), and a range of industrial facilities which are associated with adverse health impacts. Hurricanes, tornadoes, and other extreme weather events may cause catastrophic damage and failures of routine safety systems, resulting in unexpected and uncontrolled releases of dangerous chemicals that impose particular risks on neighboring “EJ communities.”
In the early days of the EJ movement, attention and energy was focused primarily on questions of equity with respect to facility siting and the permitting of new LULUs in close proximity to already overburdened neighborhoods populated by EJ communities. For many years now, concerns about the inequitable distribution of environmental burdens have been used to rally opposition to the siting and permitting of new LULUs that would likely increase existing environmental risks. Naturally, this approach has tended to focus attention on the adverse health impacts associated with long-term exposures to the environmental contaminants that proposed new facilities would or could release to air, soil and water in the course of their routine operations.
Increasingly, however, the most serious environmental risks facing EJ communities – especially in or near industrialized urban waterfront zones – are those associated with the catastrophic weather-related impacts of climate change on existing facilities and established infrastructure. It is doubtful that the existing paradigms for thinking about environmental justice have grasped and evolved to account for this fundamental fact as quickly or as fully as they should and must.
At the state level, approaches to EJ vary considerably. Some states, like California, were early adopters of legislation that codified EJ and have established EJ programs with responsibility vested in a coordinating body and various required legal processes. Other states, like Massachusetts, have executive orders and state policies aimed at proactively integrating EJ considerations into the decision-making of environmental and energy agencies, and perhaps an occasional statutory nod in the direction of EJ. Some have programs (e.g., the Texas Environmental Equity Program) or study centers (e.g., the Center for Environmental Equity and Justice at Florida Agricultural and Mechanical University) that pertain to environmental equity but do not explicitly compel the government to go beyond the avoidance of invidious discrimination. In general, it remains the case that EJ laws, policies and programs have tended not to focus a great deal of attention on climate change impacts. That is, they have not tackled with sufficient rigor and depth the unfortunate synergies that occur when the worst effects of climate change are felt by the most vulnerable EJ communities. This is beginning to change, but the change cannot come too quickly.
By way of example, Massachusetts’ original EJ policy, which was issued in 2002, focused primarily on the equitable protection of parks and open space, on brownfields redevelopment, on fairness in environmental grant-making, and on procedural protections aimed at enhancing the ability of all to have a voice in environmental decision-making. Its scope was limited to environmental agencies, and it contained no mention of climate change. Today, the updated Massachusetts EJ policy (revised as of January 31, 2017) applies to energy as well as environmental agencies, and it expressly affirms the need to enhance meaningful participation by traditionally underserved and under-represented EJ communities in climate change decision-making, as well as in energy and environmental decision-making. In addition, the updated Massachusetts EJ policy expressly points to the need to ensure that all residents “are prepared for and resilient to the effects of climate change.” This link between climate change and EJ is also now reflected in the Massachusetts Climate Protection and Green Economy Act, codified at G.L. c. 21N. Specifically, § 5 of that statute expressly requires the Secretary of Energy and Environmental Affairs to determine “whether activities undertaken to comply with state regulations and efforts disproportionately impact low-income communities.”
The importance of strengthening the developing linkage of climate change to EJ concerns cannot be overstated. The most pressing EJ problems today go far beyond matters of equity with respect to parklands, brownfields, grants, and opportunities for participation in environmental decision-making. The most urgent current EJ needs include planning and providing for robust, effective, fair responses to the environmental disasters associated with climate change, as they affect vulnerable low-income, minority, non-native English-speaking communities. States, counties, and municipalities will need to step up and provide the necessary leadership to address these needs. This will require creating, strengthening, and fulfilling the promise of state and local EJ laws, policies, and programs, so as to address the current gaps in our legal system that all too often leave the most vulnerable among us “up the creek without a canoe paddle” in the wake of an environmental disaster. As we face the future, whether and how we will choose to involve, consider, and respond to those who are at the greatest risk of being the most severely victimized, at the intersection of climate change and environmental justice, will be a test of our collective will and values.