With “regime change” well underway with the new administration settling in, much has been said about the Biden-Harris policy positioning of environmental justice or “EJ”. That focus was memorialized in President Biden’s recent executive order which, we’re told, requires federal agencies to “ . . . address the disproportionate health, environmental, economic, and climate impacts on disadvantaged communities.”
This White House’s focus on EJ, while welcome, is nothing particularly new. After all, EJ was given birth as far back as 1994 when President Bill Clinton signed Executive Order No. 12898 addressing EJ “in minority populations and low income populations”. President Obama, in both of his administrations, claimed forthcoming actions to “move that definition [of EJ] forward . . . “ by implementing policies that would reduce and minimize “risk of exposure to pollution” to disadvantaged communities. That pronuncement came from Suzi Ruhl, then a Senior Attorney Advisor at the EPA’s Office of Environmental Justice. Ms. Ruhl’s statements of purpose followed previous and subsequent EJ executive orders in 2011, 2014 and 2017.
This history of political commitment to EJ is satisfying to hear said and is oft-repeated. But what about where the rubber-hits-the-road for we whose life’s work is to making implementation of policy statements a vocation? And, in particular, when those of us working in the trenches do not occupy the lofty perches of commentators addressing EJ as theoretical exercises or practitioners who challenge EJ for government or private industry from national or global perspectives? So, given that the ACOEL blog guidelines allow indulgence of personal reflections and remembrances, forgive this war story post about EJ writ a bit smaller.
I represent a building owner in the so-called “westside” of my community. That appellation is a euphemism for a poorer section of town historically occupied by Latinos. Before I got involved, the owners of the building (and for no good reason that I mention it, speak very little English) were told by all that there wasn’t much to worry about and that, whatever might lie beneath their building, was placed there decades ago by persons and entities unknown.
The building in question serves an elegantly sounding purpose. It is a historic (old) structure that has functioned for decades as a “multi-use facility”. A place where nearby residents as well as newcomers to the area, have found a place to live, work and connect with the rest of their community. This “community-significant” structure also sits next door to a tract that has dumped hundreds if not thousands of gallons of gasoline into the soils for a long time. A lot of it is still there. That alone is not an unfamiliar story. But what prompted this post was an equally unfamiliar, though personally troubling, extension of that story.
After being contacted by the building’s owners, I was able to enlist one of the better known environmental services firms in the country to assist me. Mind you, this firm has supported my work in the past on a fair number of Superfund sites around the country as well as other “big stuff”. What their review of things in this “small” case found were “regulatory process errors”, “sampling abnormalities, “incorrect reporting” and multiple “failures to follow guidance documents”. It would seem then, that the oversight agency seemed to have overlooked their own investigative and oversight protocols and clearly had no EJ concerns.
To get to the point of this war story. My involvement with this case will never be mistaken for a winning lottery ticket for my clients. Indeed, no personal Mar-A-Lago in the cards for anyone involved in this tale. Still, this engagement continues to both motivate and reward me in another, more important, way. Providing some help to some folks facing a dilemma that perhaps a forty-year veteran of environmental wars might be better prepared to helps solve than most.
My point is that, without regard to all of those EJ executive orders, the EJ policy guidance that I am motivated by to help these folks is embedded within the license to practice law we all hold and the oath we took compelling us to zealously represent those in most need of protection of their legal rights. No exposition about “green ethics” or even pro bono obligations here. There are law review articles about such weighty matters.
My only point is this. Every environmental lawyer, big firm or solo, government or NGO should individually (collectively) find ways to bring EJ to his or her daily regimen of client relations. We know our way around complicated and, to many, byzantine environmental laws and regulations. We read and digest date filled reports on soil, water and air chemistry for fun. We know the lingo. Thus, we must be personally committed point out “regulatory process errors”, “sampling abnormalities, “incorrect reporting” and “failures to follow guidance” whenever and wherever we can. Whether “big stuff” or “small stuff” in on the table. Being a lawyer that knows what is right and wrong about such matters and righting those wrongs at every opportunity is the fundamental EJ guidance we all must hold close and follow . . . no matter happens to sit behind the Resolute Desk in the White House.
