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The Biden Administration’s Embrace of Environmental Justice Has Made Wary Activists Willing to Believe

\“I could not have predicted this,” says Vernice Miller-Travis, who gathered data for a seminal 1987 study, “Toxic Wastes and Race in the United States.By Agya K. Aning

August 1, 2021

 

Decades after emerging from the broader civil rights movement, setting itself apart from traditional environmentalism, flourishing in academia and wending through public discourse, the environmental justice movement has now achieved unprecedented prominence as activists work to entrench their gains within the federal government.

President Joe Biden’s executive order on “Tackling the Climate Crisis at Home and Abroad,” issued on his eighth day in office, included the imperative for all federal agencies to incorporate an environmental justice framework into their decision-making, a goal echoing an order from President Bill Clinton in 1994 that, while a breakthrough for the movement, still left much undone.

“It’s really the first time you’ve seen this level of weigh-in from any president since we’ve been having this conversation,” said Vernice Miller-Travis, a Harlem activist who has fought for environmental justice for more than 30 years. “I could not have predicted this.”

Late last month, the Biden administration released interim guidance for implementing the executive order’s Justice40 Initiative. It designated 21 priority programs to begin enhancing benefits to disadvantaged communities as part of the president’s pledge that 40 percent of climate, energy and infrastructure spending go to overburdened and marginalized neighborhoods.

The guidance promised a community outreach plan in 30 days, a full list of all covered programs in 60 days and a methodology for the Office of Management and Budget to determine benefit levels. The administration is also developing a Climate and Economic Justice Screening Tool that takes into account various environmental and demographic indicators to ensure the money goes to the right places.

But many in the movement harbor doubts, given the enormity of the challenge posed by decades of systemic environmental racism and the disproportionate harms suffered by communities of color related to climate change, air pollution, toxic contaminants and the siting of power plants, landfills, refineries and other polluting facilities. It has already been a long struggle since the movement nominally began almost 40 years ago at a North Carolina landfill laced with polychlorinated biphenyls (PCBs), a chemical linked with cancer and birth defects. However extensive Biden’s commitments have been thus far, it’s unclear whether a bill codifying the lofty goals of his executive order can make it through Congress before the midterm elections, when both houses could change parties.

Details for Biden’s environmental justice strategy were proposed by the White House Environmental Justice Advisory Council (WHEJAC), created by his executive order. The 26-member group consists of activists from around the nation, including several pioneers of the environmental justice movement.

This moment is a far cry from the Clinton era, when the idea that communities of color were more likely to live near toxic hazards because of systemic forms of discrimination was hard for many to swallow. But the environmental justice movement has transformed since then—from an idea and a rallying cry to its current embrace by the Biden White House. 

“More than ever before, the Biden administration has put environmental justice on the national agenda,” Richard Moore, co-chair of WHEJAC, told the House Oversight and Reform Committee at a July 21 hearing on Biden’s American Jobs Plan and its impact on environmental justice. 

Still, small fissures were evident even in the interim Justice40 guidance, which did not include recommendations from WHEJAC to stop funding for nuclear power and carbon capture technologies favored by the fossil fuel industry. 

The nation, meanwhile, remains deeply divided politically, and Biden’s jobs and climate priorities are stalled in the Senate. 

The Oversight and Reform Committee’s ranking Republican, Rep. James Comer of Kentucky, summarized the deadlock, saying Justice40 represented “massive new spending with no strings attached and little climate impact.”

A Movement Begins

The struggle against environmental injustice dates back to at least 1978, when a group of white men illegally dumped 30,000 gallons of oil laced with polychlorinated biphenyls (PCBs) by spraying it from a moving truck over six weeks in the dead of night. The black streaks covered 211 miles of road across 14 counties in North Carolina. 

After the four men were caught, numerous methods of remediation were rejected, including a proposal to treat the soil where it lay. More than 90 locations were considered for disposal before North Carolina’s governor ordered the 60,000 tons of contaminated soil to be collected and hauled to a yet-to-be constructed landfill in Warren County, which was 61 percent black and had one of the highest rates of poverty in the state.

Locals expressed concerns that the landfill would leak, property values would plummet and that further hazardous facilities would move into the area. And they delayed construction for three years by seeking an injunction based on the assertion that its siting was racially discriminatory. But a judge ended up denying their request.

When dump trucks carrying the soil drove toward the landfill on Sept. 15, 1982, people in Warren County began gathering in nonviolent protest, even lying down in the street to halt the vehicles. Most of them were women and their children. The demonstrations, which lasted for weeks and resulted in the arrests of more than 500 people, ultimately failed. 

While there is no consensus on what started the environmental justice movement, this showdown, which generated unprecedented national attention for the environmental plight of a mostly minority community, is invoked most often. All around the country, African Americans, Latinos, Asians, Indigenous peoples and the poor saw a version of their own local battles.

This conflict belongs to the movement’s lore for another reason, too. It was here that Rev. Benjamin Chavis Jr., an organizer of the protest who would go on to lead the NAACP, popularized the term environmental racism.

Warren County was so significant that the following year it pushed the federal government to investigate the link between landfill locations and the race and economic status of the people living near them. A survey of four hazardous waste landfills in the Environmental Protection Agency’s (EPA) Region IV—including the brand new one in Warren County—found that three were located in majority-Black communities. In all four places, African Americans accounted for 90 percent to 100 percent of those living below the poverty line.

On April 17, 1987, the United Church of Christ’s Commission for Racial Justice published “Toxic Wastes and Race in the United States.” The study, led by Charles Lee, found that three out of five Black and Hispanic individuals “lived in communities with uncontrolled toxic waste sites,” meaning they posed a threat to human health and the environment. The same was true for one-half of Asians, Pacific Islanders and American Indians.

“Toxic Wastes” also looked at the populations surrounding commercial hazardous waste facilities. While poverty played a significant role in determining who lived nearby, the most predictive variable was race. By unearthing these facts, “Toxic Wastes” became the central tome of the environmental justice movement.

Aaron Mair, who directs a wilderness campaign for the Adirondack Council, a New York State-based ecological organization, personally sees this study as the start of the EJ movement.

“Prior to that ‘87 study, the dots were not connected,” Mair said. “[Activists] suspected there may have been a pattern, but most action within the Black community prior to 1987 were individualized, localized communities that were not part of a connected national movement.”

Miller-Travis helped create maps for the project as a research assistant, a job she said she got by repeatedly pestering Chavis, who had become the leader of the Commission for Racial Justice. “What we did was capture a conversation that had been underway for a really, really, really long time,” she said.

A series of incidents pushing the movement even further soon followed. In January 1990, professors Bunyan Bryant and Paul Mohai of the University of Michigan organized the first academic conference on environmental justice. The EPA would later credit the conference and “Toxic Wastes” with being the two primary things that brought environmental justice to its attention.

In March 1990, more than 100 activists addressed a letter to the “Group of Ten,” the most prominent environmental groups in the nation. It decried their lack of diversity and close ties with major corporate polluters, and blamed them, along with government and industry, for despoiling minority communities.

Soon after, the movement stepped closer toward full recognition with the First National People of Color Environmental Leadership Summit. On Oct. 24, 1991, 700 environmental activists gathered in Washington, D.C. Lee, the lead author of “Toxic Wastes,” was the primary organizer. On the fourth and final day, they agreed on 17 principles of environmental justice, which still guide the movement. Miller-Travis, who helped craft those principles, said the term environmental justice exploded in use afterward.

In November 1992, the EPA established what is now the agency’s Office of Environmental Justice, based on recommendations from an investigation into accusations of environmental racism.

In 1993, as the movement gained momentum, the National Environmental Justice Advisory Council, an independent advisory group to the EPA, was created.

Then, in 1994, in what seemed unthinkable at the movement’s outset, President Clinton issued his executive order on environmental justice. It created a working group of 17 federal agencies and White House offices, calling on them to incorporate environmental justice into their decision-making. Many dignitaries of the EJ movement were present for the signing, including Miller-Travis.

The order was a milestone, and it brought enormous exposure to the movement. But it would go largely ignored by the federal government. 

“I think what happened in the Clinton administration is that they issued that executive order, and then they [exhaled] deeply, and they moved on,” Miller-Travis said.

The Movement Matures

A year or so before Clinton’s order, Aaron Mair was well into his battle to shut down a waste-to-energy incinerator less than a mile away from his home in Arbor Hill, a mostly Black neighborhood in Albany, New York. Mair said he began his campaign after two of his three daughters developed asthma.

After the Sierra Club’s New York State chapter turned down his in-person request for help at a meeting in midtown Manhattan, Mair vowed to return and join the organization, “specifically with the intention of making sure it never disrespected a community of color again.” 

The incinerator was shut down in January 1994, and Mair’s local community group reached a settlement with New York State for $1.4 million in 1998. He joined the Sierra Club the following year, rose through its ranks and served as its first Black president from 2015 to 2017.

Around the same time as Mair’s ascension, similar efforts to diversify the makeup of other large environmental groups were underway, although overall minority representation remains low to this day. Academia began embracing environmental justice, too, particularly at historically Black colleges and universities.

But wherever this new crop of activists found themselves, they would have no shortage of environmental justice causes to tackle.

In 1996, the Japanese company Shintech proposed building a $700 million polyvinyl chloride (PVC) plant in Convent, Louisiana. The community sits in the middle of “Cancer Alley”—an 85-mile stretch along the Mississippi River between New Orleans and Baton Rouge, which hosts more than 140 oil, chemical and plastic facilities. After two years of concerted activism, Shintech took its business elsewhere.

Later, in 2005, Hurricane Katrina devastated the majority-Black city of New Orleans when its levees failed, demonstrating the costs of government inaction like no other event in recent history. The nation recoiled at the botched response from the Bush administration, represented emblematically by the images of people stranded on rooftops in the city’s Lower Ninth Ward.

Over the decade to come, a drumbeat of environmental disaster disproportionately impacted communities of color across America, challenging the movement like never before.

In 2010, the Deepwater Horizon oil spill in the Gulf of Mexico ruined coastal communities. Many of them were made up of Asian, Black and Native American people, who regularly consumed fish and relied on the maritime industry. Landfills in communities of color also received the lion’s share of waste from the disaster, according to an analysis by Robert Bullard, a professor at Texas Southern University in Houston and an early environmental justice activist.

From 2014 to 2015, nearly 100,000 people, mostly Black, were exposed to lead-contaminated water in Flint, Michigan, when the city changed its water source to save money. 

And in 2016, thousands gathered near the Standing Rock Sioux reservation to halt the construction of the Dakota Access Pipeline, which would pass beneath the Missouri River, the tribe’s primary water source, and cut through sacred spaces. Previous plans to route it through Bismarck, North Dakota were scrapped because it posed a hazard to municipal drinking water. 

Throughout events like these, and far more with less notoriety, the EPA’s Office of Civil Rights (OCR), and more recently its External Civil Rights Compliance Office (ECRCO), has had a difficult time keeping up. Prior to the Biden administration, these offices issued only two preliminary findings of racial discrimination under Title VI of the Civil Rights Act of 1964. One was resolved in 2011 and the other on Jan. 19, 2017, President Barack Obama’s last full day in office.

After accepting a case for investigation, the offices were supposed to make their findings within 180 days. In these two instances, it took nine years and 22 years, respectively.

“Folks who live in communities that are impacted by environmental threats, or lack of enforcement of existing environmental laws and regulations, have for decades made the claim that one of the reasons that there is not vigorous and equal enforcement of the law is because they’re people of color,” Miller-Travis said.

ECRCO was created in late 2016 to take over civil rights enforcement duties from OCR. It made its 2017 findings using a broad mandate established under Title VI:

“No person in the United States shall on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

A similar legal mandate was enacted on Jan. 1, 1970, when President Richard Nixon signed the National Environmental Policy Act (NEPA). It required federal agencies to consider beforehand what effects their actions would have on the environment and human health. Eleven months later, the Nixon administration created the EPA.

Just days after Obama left the White House, the Congressional Black Caucus Foundation, a nonprofit policy research organization, issued its own findings on ECRCO.

“The EPA reacts to critical reports by rejecting or dismissing a spate of cases before settling back into a familiar pattern of substantive inaction on Title VI complaints,” the foundation concluded. Its report was just one in a series of damning accounts of the office’s inefficiency.

As President Donald Trump settled into office, he tried to further weaken Title VI enforcement. His first budget proposal sought to reduce funding to the EPA by 31 percent, which included bulldozing the Office of Environmental Justice and shifting its duties elsewhere.

Mustafa Ali, who was then an assistant associate administrator at the EPA and a founding member of its Office of Environmental Justice, resigned in protest after 24 years at the agency.

“When I hear we are considering making cuts to grant programs like the EJ small grants … I wonder if our new leadership has had the opportunity to converse with those who need our help the most,” Ali wrote.

The budget proposal was ultimately rejected by Congress, as were similar plans during Trump’s years in office. Still, the message to the EPA was resounding. And throughout his presidency, EPA administrators approved numerous projects and rollbacks with direct implications for the EJ agenda. 

His administration pushed forward construction on the Dakota Access Pipeline; removed certain clean water protections; slowed the rate of Superfund cleanups and decreased investment in the program; and relaxed NEPA regulations, which no longer required projects to assess their cumulative impacts.

Trump’s term also saw fewer overall EPA enforcement actions on average than his last two predecessors. During his first 18 months in office, nearly 1,600 EPA employees reportedly left, while fewer than 400 were brought on.

Biden’s reversal began at the start of his second week in office with the president’s executive order on tackling the climate crisis. 

Defining ‘Environmental Justice’

Before the words “environmental justice” were included 24 times in Biden’s executive order, they were spoken during neighborhood meetings, printed in community pamphlets, written on picket signs and chanted at protests. 

But they meant different things to different people. 

The EPA defines environmental justice as the “fair treatment and meaningful involvement of all people regardless of race, color, culture, national origin, income, and educational levels with respect to the development, implementation, and enforcement of protective environmental laws, regulations, and policies.”

Miller-Travis never thought that went far enough. “And that it’s lasted this long without ever being revisited, I think, is a mistake,” she said. 

She and other activists say that minority communities should not have to inordinately shoulder the burdens of environmental hazards, and that they should enjoy the same benefits of environmental law enforcement, clean energy and the mitigation of climate disasters, like floods, droughts and fires.

By pursuing this standard, they have pushed the bounds of environmentalism, from those typically associated with preservation and conservation of nature, to something far more holistic.

“The environment is where you live, it’s where you work, it’s where you go to school, it’s where you recreate, it’s where you worship,” said Miller-Travis, who co-founded WE ACT for Environmental Justice, a Harlem-based nonprofit, in 1988. “The environment is not something you have to go see in the wilderness. It’s not something you have to go see [at] the water’s edge or in the atmosphere. The environment is everything.”

The movement has also pushed back on claims that environmental exposures played little or no role in the elevated rates of disease and death found in communities of color, and that they were better explained by lifestyle and diet.

“I cannot tell you how long we argued that with EPA, with regulators, with the private sector,” said Miller-Travis, whose partner at WE ACT, Peggy Shepard, is co-chair of WHEJAC. 

Earlier this year, a WHEJAC subgroup reworked the EPA’s definition of environmental justice. The most significant change was the rewording of “fair treatment” to “just treatment”—from equity, the even distribution of environmental amenities and harms, to justice, which ensures the conditions necessary for communities to thrive: 

The term “environmental justice” means the just treatment and meaningful involvement of all people regardless of race, color, national origin, or income, or ability, with respect to the development, implementation, enforcement, and evaluation of laws, regulations, programs, policies, practices, and activities, that affect human health and the environment. 

As outlined by WHEJAC, those conditions include freedom from disproportionate harm to human health or the environment, and from any structural barriers standing in the way of creating vibrant communities. Such treatment also grants the freedom to meaningfully participate in and equitably access decision-making processes, resources and benefits. Furthermore, it means enjoying full protection from human health and environmental hazards, even as they affect cultural practices, heritage, burial sites and sacred spaces.

Biden referred throughout his executive order to “disadvantaged communities,” a term mostly synonymous with WHEJAC’s reference to communities that are “overburdened and underserved,” which it proposed defining as places with food insecurity, high rates of health disparities, or poorly maintained housing, among several other harms.

WHEJAC also crafted this definition of an “environmental justice community”:

The term “environmental justice community” means a geographic location with significant representation of persons of color, low-income persons, indigenous persons, or members of Tribal nations, where such persons experience, or are at risk of experiencing, higher or more adverse human health or environmental outcomes.

A community’s problem—perhaps a landfill, an incinerator or the provision that allows those facilities within a community—might be half a century old. Or it could be up for a vote of approval before a city council in 24 hours.

But wherever these conflicts take place, whether in rural farming towns or in busy metropolises, environmental justice activists believe that communities ultimately must decide for themselves what a just environment looks like. Sometimes, history has shown, the formerly meek have stood before giants, and won.

Inside the Biden White House

In 2016, LaTricea Adams was frustrated at the lack of government accountability after Flint, Michigan’s new water source exposed nearly 100,000 people to lead. So she founded Black Millennials for Flint, an organization dedicated to reducing lead exposure in Black and Latino communities around the country.

Now she sits on the White House Environmental Justice Advisory Council, which Biden’s executive order created to represent the movement’s aims within the elaborate environmental justice apparatus of the executive branch. 

WHEJAC reports to the White House’s Council on Environmental Quality, headed by its first African-American chair, Brenda Mallory, former director of regulatory policy at the Southern Environmental Law Center. Mallory also chairs the White House Environmental Justice Interagency Council, which includes every cabinet department and agency, each of which has appointed its own environmental justice officer.

Among those issuing the July 20 interim guidance on the Justice40 initiative were Mallory and Gina McCarthy, who is Biden’s national climate advisor and the former head of the EPA. 

The 21 priority programs identified in the guidance to begin enhancing benefits for disadvantaged communities include six within the EPA that involve cleanup of hazardous waste Superfund sites, brownfields, lead in drinking water, diesel remissions and two state water revolving funds. The list also targets programs for flood mitigation in the Department of Homeland Security, solar technologies in the Department of Energy, abandoned mines in the Department of the Interior, lead paint remediation in the Department of Housing and Urban Development and rural energy in the Department of Agriculture. 

The guidance lists seven investment categories that will be used to gauge progress under Justice40—climate change, clean energy, clean transportation, affordable housing, job training, reduction of legacy pollution and clean water infrastructure. And it includes another 13 factors that define “disadvantaged communities,” among them low income, high unemployment, racial and ethnic segregation and “jobs lost through the energy transition,” a clear nod to coal country.

The guidance got its first public airing at the July 21 hearing of the House Oversight and Reform Committee on the connection between Biden’s American Jobs Plan and Justice40, and Republicans came out swinging. 

Rep. Jake LaTurner of Kansas pushed back on clean energy investments. “These solutions would eliminate job opportunities across our nation’s economy, particularly in our energy, transportation and agricultural sectors,” he said. 

The Republicans assailed the Democrats’ contention that environmental justice communities would gain from new spending aimed at climate change.

“If Americans want to address the needs of economically disadvantaged communities, they should be looking for solutions to encourage investment from the private sector,” said Rep. Comer, the ranking Republican. 

Unmoved by the inclusion of coal communities in the Justice40 guidance, Comer said, “I fear that a premature move away from fossil fuels, particularly from poorer areas, means that they will continue to have little access to the type of affordable, reliable energy that enables economic growth and allows for the provision of clean water and sanitation, widespread vaccination and preventative child health services.”

But even if no jobs legislation moves through Congress, Justice40 can still produce benefits for disadvantaged communities, activists said. “Agencies have money in programs that are operating. And the issue is, are they operating with equity and justice? And that is not necessarily a congressional law or policy that needs to be passed,” said Shepard, Miller-Travis’ WE ACT co-founder and the WHEJAC co-chair.

Further guidance will be released when the Council on Environmental Quality, working with the U.S. Digital Service in the White House, releases the geospatial Climate and Economic Justice Screening Tool, an early version of which was produced by WHEJAC members. The screening tool is intended to ensure that Justice40 targets communities accurately by making available a bevy of metrics to determine which places are most in need.

That data would include exposure burdens (pesticides and drinking water contamination), proximity to potential hazards (Superfund sites and incinerators) and sensitive populations (maternal death rates and opioid addiction).

Republicans on the Oversight and Reform Committee remained unimpressed. “Rather than justice for the environment, why aren’t we talking about justice for people living in violent cities?” asked Rep. Jody Hice of Georgia, making reference to a rise in homicides over the past year.

The Republican opposition to environmental justice initiatives makes passage of a bill called the Environmental Justice for All Act highly unlikely this session. The legislation, introduced in both House and Senate, would require early input by environmental justice communities in the siting of potentially polluting facilities and require federal regulators to consider the facilities’ impact when combined with other environmental hazards. The bill would also make it easier for citizens to sue under the Civil Rights Act.

As the legislation awaits a vote, a WHEJAC subgroup has revised Clinton’s 1994 executive order, the wellspring of so much of the environmental justice work undertaken at the federal level over the past quarter-century. The proposed revision is two and a half times longer than the original and includes a reworking of the EPA’s definition of environmental justice. It also adds several direct references to citizens’ rights under Title VI and NEPA.

An expanded executive order won’t have the power of legislation, but it would make for a substantial addition to the foundation Clinton made in 1994.

After his order shone a light on environmental justice, Miller-Travis sensed there wasn’t much planning or many resources devoted to accomplishing its goals. Later, she was heartened when the Obama administration recommitted to the issue. 

But she said she has been completely taken aback by the attention to detail Biden’s administration has given to environmental justice, and she noted a sense of urgency as well.

“We don’t know what’s gonna happen in the midterm elections,” Miller-Travis recently said from her home outside of Washington. “So let’s go to the mat with what we have right now.”

 

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