How do you fight for environmental justice, when there are no concrete environmental justice laws? This is the question that community organizers and community-based lawyers alike have been grappling with for years. In theory, we have federal laws on the books that should advance environmental justice, but in practice, they fall short.
Here’s why these laws don’t always advance environmental justice:
You may think that federal anti-discrimination laws like Title VI of the Civil Rights Act, which “prohibits discrimination on the basis of race, color, or national origin” for any federally funded program, would protect communities from racist government decisions to place toxic waste sites in majority Black neighborhoods, for example. But to be successful in court, community members must prove an actual discriminatory impact. Past cases have shown that this is an extremely high burden to meet, and often leaves impacted communities with little relief.
Past lawsuits have show that the Civil Rights Act often leaves environmental justice communities with little relief.
Civil rights leaders like Martin Luther King were instrumental in passing the Civil Rights Act of 1964. Photo of MLK Memorial by Tim Brown. Photo License.
One of our biggest environmental laws, the National Environmental Protection Act (NEPA) requires federal agencies, before making decisions, to assess the environmental effects of their proposed actions and provide “meaningful” opportunities for public participation. At a minimum, that means that community members should have proper notice and input on a project that will impact them.
Rally against the Dakota Access Pipeline, 2021. Photo by Lakota People’s Law Project.
However, environmental justice communities are often excluded from any “meaningful engagement.”
This is because government notices about projects are typically written in complex legal and scientific jargon that’s hard to understand, are easily missed, and require yet another heavy lift from communities to advocate for their right to a safe environment. Additionally, even if an environmental justice community does provide significant input, there is no guarantee that the agency in question will meaningfully take this input into consideration.
Some Executive Orders address environmental justice, but they are often toothless.
Finally, Presidents and Governors have issued Executive Orders addressing environmental justice which in theory should provide meaningful protections, but are often toothless. For example, in 1994, President Clinton signed the first environmental justice Executive Order 12898. That order directed federal agencies to evaluate their policies and programs to identify and address disproportionate health and environmental impacts on “minority [and] low-income populations.” In 2021, President Biden signed two Executive Orders on his first day in office, calling for federal agencies to meaningfully prioritize environmental justice through the development of policies, programs, and economic incentives that would significantly help environmental justice communities.
Top photo: President Clinton signing first Environmental Justice Executive Order in 1994. Bottom photo: President Biden signing his most recent Environmental Justice Executive Order on Earth Day 2023.
Here in Oregon, Governor Brown’s 2020 Executive Order recognized climate change’s disproportionate impacts on environmental justice communities, and called for state agencies to take action to reduce greenhouse gas emissions. However, Executive Orders are not enforceable, so environmental justice advocates can’t require agencies to use the orders to integrate environmental justice into their practices.
In March 2020, Governor Kate Brown signed her Executive Order directed state agencies to reduce climate pollution. Photo by OregonLive.
Executive Orders are also unstable: even if agencies voluntarily take meaningful actions, Executive Orders may be revoked, found unlawful, or expire.
That’s why Crag’s work supporting community based organizations in advancing Environmental Justice legislation is so important.
This year is Oregon’s long legislative session. A 160 day whirlwind of bill drafting, amending, testifying, and (hopefully!) passing. While Crag does not lobby, we do assist with legal research, testimony drafting and support for when a bill makes it to hearing, reviewing bill amendments sent back to clients by legislative counsel, and providing support to ensure our clients are walking into the Capitol feeling empowered. Our clients are advocating for three environmental justice bills this session, which would 1) close a loophole that will reduce emissions from waste incinerators, 2) protect school children from exposure to pesticides, and 3) create a climate resiliency grant to fund communities impacted by climate change.
Photos of the Capitol Building in Salem, OR, from left to right: the Senate floor, Capitol dome, kids visiting the Capitol on a fieldtrip. Photos by Oregon Legislature.
Participating in the legislative session is not limited to lawyers and organizations. You can participate too! You can follow environmental justice organizations on social media or via their email list to stay up to date on their policy initiatives, and be ready to jump in if they call for help. This can take the form of: sending in written testimony (the organization will almost always give you a template), listening in on hearings, and rallying your network to hold their representatives in the Salem Capitol accountable. The more people know about these bills and keep up momentum, the higher the likelihood of these environmental justice laws passing.
So, until we get new environmental justice laws on the state and federal level and we can enforce them in court,