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Urban Climate Change and the Law: On Just Environmental Policy Reform in the U.S.

Abstract:

There is no single solution that can eliminate the adverse environmental impacts of our current unjust political and economic systems. Our means of addressing the intersection of social injustices, societal systems of exploitation, and environmental disasters, has been unsuccessful in including stakeholders affected by the outcomes of governmental policies.

This may be on purpose. We as a society have allowed for top-down solutions that only further the interests of those in power. In a paper presented at Fordham Environmental Law Review’s 2021 Annual Symposium, Dr. Oyewole presented advice on how to enact solutions that highlight the needs of those affected by detrimental environmental policies. Dr. Oyewole also advocates for legislators and more specifically practicing attorneys to shift to a bottom-up approach wherein attorneys look to the needs and demands of activists and community members engaged in “on-the-ground” work in areas detrimentally effected by inadequate government policies.

Dr. Oyewole’s piece and symposium presentation provides aspiring and current environmental lawyers an important starting point of how to engage in meaningful advocacy and policymaking. But the work does not stop there. It is the job of practicing lawyers and policymakers to take Dr. Oyewole’s recommendations to heart and uplift the voices of the unheard that are most notably affected by environmental decisions at all levels of government.  

Tok Michelle O. Oyewole, Ph.D. (she/they)

This is an adaptation of the address given for the Fordham University’s Environmental Law Review’s Annual Symposium in 2021. Dr. Tok Oyewole is a former National Science Foundation fellow and has both PhD and Masters degrees in Geography, focused on environmental and social justice movements, biogeochemistry, soils, climate, and policy. Dr. Oyewole is currently continuing policy work on waste reduction, renewable energy, and climate mitigation strategies in pursuit of healthy and equitable systems.

None of us can press a magic button that would eliminate environmental and social injustices nor the systems of exploitation and over-extraction upon which our society relies. But we can make choices that rectify harm and promote collaboration, simultaneously addressing climate change and corresponding inequitable systems by pursuing just, thoughtful transitions to a better society. I hope to highlight ways in which United States legislators and practicing attorneys are uniquely situated to shape the policy landscape in which we enact necessary systemic transformations.  

Globally we are tasked with substantially reducing carbon dioxide equivalent emissions by 2030 to avoid global warming above an average of 1.5 degrees Celsius.[i] Distilling this: Right now, we only have time for implementing well-crafted, bold solutions that use the best available science and are grounded in equity principles for long-term and sustainable implementation. Accordingly, it is important that this is done in a way that takes action to rectify disparities in environmental and climate impacts. These impacts are disproportionately high in predominantly Black, Brown, Indigenous, and low-income communities, regions, and countries –as well as among more-than-human species who have had no role in the rapid rise of global average temperatures.

While adopting greenhouse gas mitigation strategies, we must also ensure that we do not buy into hype around technological fixes that would worsen the trajectory of climate change or economic or health inequities. False solutions include those that purport to be a silver bullet to resolve one or multiple climate or environmental issues, but end up being bait-and-switch or back-end strategies for continuing reliance on processes such as fossil fuel extraction or excessive plastic and waste generation, exacerbating the very problems they claim to resolve. This includes manifold forms of waste incineration,[ii] carbon capture and storage, green hydrogen, “renewable” natural gas, and certain applications of biomass and biofuel technologies.[iii] Such proposals distract us from employing proven strategies which are often simpler and directly related to ameliorating environmental and health damage.[iv] These solutions should be implemented through thoughtful policy mandates, product redesign, local land use planning, and educational programs that aim to swiftly and thoughtfully reform current systems. 

Environmental justice organizing in New York City

For decades, community organizations in New York City have worked closely with policymakers and practicing attorneys to remedy broken environmental laws, monitor zoning decisions, and influence budget allocations. For these partnerships to be successful, it is key that attorneys are familiar with and embody the Jemez Principles for Democratic Organizing, a framework many environmental organizations refer to that spotlights bottom-up solutions, letting people speak for themselves, building just relationships based on respect and accountability to one another, commitment to self-transformation, and other key insights to help with changemaking in collective.[v] It is critical that people of marginalized identities are genuinely respected and listened to when proposing solutions to harms experienced, are included in all stages of decision making, and guaranteed transparency and clarity throughout such processes. It is also critical that policymakers and practicing attorneys remain attuned to the needs of community members and advocates, as well as the findings of objective scientists, to help overturn structures of inequity and disproportionate struggle.

In the South Bronx, for example, community groups have organized to enact solutions in the face of longstanding racist financial and real estate regimes, underinvestment in healthy infrastructure and energy systems, and clustering of noxious energy, waste, and distribution facilities.  The planning legacy of public officials such as Edward Moses in New York City remains visible today in the segmentation of neighborhoods of color by intersecting highways, coupled with reduced access to public transportation infrastructure.  Personal vehicles and heavy-duty truck traffic en route to facilities in neighborhoods such as Hunts Point exacerbate already high concentrations of environmental pollutants.[vi] [vii] In response to these burdens, community organizations have launched initiatives such as hyper-local air quality monitoring projects, small-scale composting infrastructure, and the Be a Buddy program and community Wi-Fi networks to promote social cohesion during extreme weather events.[viii]

Such interventions are important because higher-than-average concentrations of micropollutants in the air causes high local rates of asthma, cancers, COPD, and other physical and mental illnesses.[ix] [x] [xi] Researchers found that the Bronx ranked worst for COVID-19 deaths and respiratory illness of the over 3,100 counties in the country. At the peak of the pandemic, Bronx residents were twice more likely to die of COVID-19 than counterparts in other boroughs.[xii]

Disparate environmental pollution can be compounded by disparate climate change impacts – for example, the South Bronx and Sunset Park are along industrial waterfronts, but there exists limited green and grey stormwater infrastructure to deal with the extreme likelihood of storm surge. This lack of safeguarding is not for lack of knowledge – the City is well aware of the nearby industrial facilities and poor planning that will result in more polluted waterways and exacerbated health burdens from such weather events.[xiii] Likewise, extreme heat events tend to disproportionately impact marginalized communities that lack adequate outdoor or indoor cooling mechanisms, such as street trees, local parks, or even air conditioning.

Recent New York City waste equity advocacy

In response to advocates working to ensure that waste facilities are complying with local, state, and federal laws related to public health and safety, the Interstate Commerce Clause is often invoked as a deterrent. In the case of New York City’s 2019 Commercial Waste Zones Law, advocates were told by the implementing agency that while wemight be able to incentivize better practices within New York City’s waste facilities, the agency would not be able to address impacts from facilities outside of city lines, thereby legally allowing New York City to outsource harmful environmental practices to other regions.[xiv] This is exactly the sort of “NIMBYism” that the environmental justice movement works to prevent. The implementing agency pushing for this law to incentivize rather than mandate compliance with local statutes highlights untapped potential for government agencies to secure stricter environmental standards. Relatedly, the City’s limited willingness to abandon long-term disposal contracts, both inside and outside of the City, contribute to its slow action on waste reduction and environmental justice initiatives.

Alternatives to polluting waste generation and disposal practices exist, but often face pushback from government agencies themselves. From 2020-2021, there were well-publicized attempts to evict non-profit composting organizations by the New York City Parks Department (the Department). The Department used questionable legal justifications, operating against the stated concerns of communities in which the sites were located. In one specific instance, the Department justified an eviction of a composting site in order to build a parking lot in an area where there were substantial alternative parking options.[xv] Historically, there have been various legal and financial challenges to the ability of composting projects to scale up, resulting from government restrictions (at local, state, and federal levels), and a pattern of deprioritization of this naturally carbon-capturing method of organic waste diversion and application.

In response to the proposed evictions, practicing attorneys from the New York City Bar Association worked with the community to reverse the de Blasio administration’s planned universal closure of public composting programs. Advocates argued against the Department’s claims that continued composting on parkland would constitute land alienation.[xvi] [xvii] Through the collaboration of composters, environmental and environmental justice groups, community members, and a highly regarded legal association, a decision that would have set New York City’s organic waste program backward, was stalled.

Environmental justice organizing challenges and their solutions

During policy processes, advocates often contend with government decisions that take place in ways that are not transparent. Government officials issue regulations in documents that are not well-explained or deliberately inaccessible to the public, or issue decisions that communities were not consulted about, and must then shuffle to address. Very often, in the final hours before policies are introduced, advocates see language inserted that weakens core provisions of the intended legislation. The urgency and scale of the crises being addressed means that these slowdowns are harmful and counterproductive.

Zooming out from local environmental disparities, the Global South experiences disproportionately high environmental, health, and economic burdens compared to “developed” countries like the United States, in waste disposal and litter, production of hazardous electronics, clothing manufacturing and dyeing, and reduced access to medications and COVID-19 vaccines. Scientists expect that pandemics will increase in number with shifting climate regions and human contact with new disease vectors, meaning that those with the least impact on changing climate are most likely to bear the worst consequences in terms of both extreme weather and health burdens.

We need support from lawyers, both to challenge decisions that are not serving communities, and structurally, to push for broader movement within the government to ensure that laws intended for public good are not altered or interpreted in ways that prevent them from effecting positive change. Even more pressing is the need for support to strike laws protecting power structures and capital flow at the expense of a habitable planet for all.

In closing, I offer guiding principles and recommendations from my experiences working with environmental policymakers and attorneys:

  1. To enact meaningful solutions, we must ensure that we are moving forward driven by the best science, community leadership, and swift action to address the urgency of the crises we are facing. We must listen to and incorporate the needs of those historically disenfranchised and marginalized.
  2. In addition to considering the inequities experienced by marginalized populations locally, we must acknowledge that harmful and imbalanced dynamics are also present in how we interact with other countries, ecosystems, and more-than-human species. We should make decisions from an expanded, interscalar critical environmental justice scope, which acknowledges our interconnectedness and inexpendability. [xviii]
  3. We must legally change power imbalances that perpetuate injustice and environmental hazards, by abandoning antiquated legal structures that do not allow us to address the modern issues we are facing; lawyers should support scientists, communities, and activists driving toward this positive transformation of our legislative systems. They must also continuously side with the planet and communities as opposed to interpretating legal documents, court rulings, regulations, or statutes in ways that are ignorant of the present context and future needs.
  4. Now is the time to shift from incentivizing changes to thoughtfully mandating them in recognition of the stakes of inaction or movement at a glacial pace. Such changes must operate from a framework that incorporates justice for all communities and for all workers who have previously relied on the harmful industries and ideologies that fuel our planet.
  5. And last, applicable to the above recommendations, we must be solution-oriented in all of our actions, observing and learning about what is happening in the world around us, and acting based on truth.

[i] IPCC, 2021: Summary for Policymakers. In: Climate Change 2021: The Physical Science Basis. Contribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change [MassonDelmotte, V., P. Zhai, A. Pirani, S.L. Connors, C. Péan, S. Berger, N. Caud, Y. Chen, L. Goldfarb, M.I. Gomis, M. Huang, K. Leitzell, E. Lonnoy, J.B.R. Matthews, T.K. Maycock, T. Waterfield, O. Yelekçi, R. Yu, and B. Zhou (eds.)]. Cambridge University Press. In Press.

[ii] Waste-to-energy, advanced recycling, chemical recycling, combustion, pyrolysis, gasification, and other terms.

[iii] Daly, Lew et al. 2021. False Solutions: Gas and trash: How the fossil fuel industry is holding back a Just Transition. Webpage link on Squarespace.

[iv] Such solutions include reduced overproduction of goods; reduced extraction of fossil fuels; ethically-sourced and cited renewable energy (wind and solar) and battery storage for building and transportation fuel; comprehensive reusable and refillable programs for containers, packaging, hygiene-products, and more; toxic chemical elimination from products and facility emissions; and local-scale organics composting and distribution.

[v] Southwest Network for Environmental and Economic Justice (SNEEJ) (1996). Jemez Principles for Democratic Organizing. https://www.ejnet.org/ej/jemez.pdf

[vi] Amarnath, Kartik (2021) How financial institutions engineered climate injustice and the clean energy colorline. https://www.greenbiz.com/article/how-financial-institutions-engineered-climate-injustice-and-clean-energy-colorline

[vii] Barr, D. A. (2014). Health disparities in the United States: Social class, race, ethnicity, and health. JHU Press.

[viii] New York City Environmental Justice Alliance Climate Justice Agenda 2020: A Critical Decade for Climate, Equity, and Health (2020). https://nyc-eja.org/wp-content/uploads/2020/04/CJA-2020-FINAL-042020-for-web.pdf

[ix] Spira-Cohen, A., Chen, L. C., Kendall, M., Lall, R., & Thurston, G. D. (2011). Personal exposures to traffic-related air pollution and acute respiratory health among Bronx schoolchildren with asthma. Environmental health perspectives119(4), 559-565.

[x] Shearston, J. A., Johnson, A. M., Domingo-Relloso, A., Kioumourtzoglou, M. A., Hernández, D., Ross, J., … & Hilpert, M. (2020). Opening a large delivery service warehouse in the South Bronx: impacts on traffic, air pollution, and noise. International journal of environmental research and public health17(9), 3208.

[xi] Ji, N., Fang, M., Baptista, A., Cepeda, C., Greenberg, M., Mincey, I., … & Laumbach, R. J. (2021). Exposure to traffic-related air pollution and changes in exhaled nitric oxide and DNA methylation in arginase and nitric oxide synthase in children with asthma. Environmental Health20(1), 1-11.

[xii] Olumhense, Ese (2020). For Some Near the Cross Bronx Expressway, COVID-19 is an Environmental Justice Issue, Too. https://www.thecity.nyc/2020/9/28/21492252/cross-bronx-expressway-covid-19-environmental-justice-nyc

[xiii] NYC Interactive Waterfront Justice Project Maps, SCAAN and NYC-EJA (2020). https://scaan.net/waterfrontmap/

[xiv] Advocates have frequently been pushed back by the Interstate Commerce Clause – often used to block policies that would promote environmental, social, ecological, and health benefits across state boundaries.

[xv]Kuntzman, Gersh (2020). Streetsblog NYC. Parks Department Closes Environmental Facility to Create a Parking Lot. https://nyc.streetsblog.org/2020/11/19/parks-department-closes-environmental-facility-to-create-a-parking-lot/

[xvi] NYC Bar Association (2021). Letter to Mayor de Blasio regarding Composting in New York City Parks. https://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/composting-in-new-york-city-parks

[xvii] Unfortunately, we were not able to stop the forced movement of these two nonprofit organizations in the city to new locations to build parking lots in their old ones; the fight to preserve remaining composting sites and expand to further sites in NYC continues.

[xviii] Pellow, David  N. (2017). What is critical environmental justice?. John Wiley & Sons.

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