Keep Pittsburgh Water Public–Using Your Voice in the May 20th Election

What is the ballot referendum?  

On May 20th, Pittsburgh voters will get to decide whether they want to keep their water systems public. The question will be displayed on the ballot as follows:  

“Shall the Pittsburgh Home Rule Charter be amended and supplemented by adding a new Article 11:  RIGHT TO PUBLIC OWNERSHIP OF POTABLE WATER SYSTEMS, WASTEWATER SYSTEM, AND STORM SEWER SYSTEMS, which restricts the lease and/or sale of the City’s water and sewer system to private entities?” 

Voting YES is a vote for public water. Voting YES would add an amendment to the Pittsburgh Home Rule Charter and protect our water systems from privatization.  

Voting NO would fail to protect Pittsburgh water systems from privatization by rejecting the proposed Home Rule Charter Amendment. 

The effort to place this question on the ballot was community-led by the Our Water Table Coalition. The referendum has received broad support by Mayor Gainey, Pittsburgh City Council, Pittsburgh Water (former known as Pittsburgh Water and Sewer Authority), Fair Shake Environmental Legal Services, and more. 

Who can vote? 

Anyone who resides in the City of Pittsburgh and is registered to vote!  

Independents, Greens, Libertarians, Republicans, Democrats, etc. can all vote for ballot measures! Unlike a normal primary election, party affiliation does not matter! 

Check your voter registration here: Voter Registration Status  

• Note: many people are taken off the registration list after a Presidential Election so be sure to check! 

Not sure where to vote? Check here: Polling Place Information 

Why is it important?  

Water is a human right, and we should protect water as a public resource rather than allowing it to become a commodity for profit. Unfortunately, Pennsylvania has seen an increase in efforts to privatize our water in recent years. According to Food and Water Watch, 1 in 3 Pennsylvanian’s are served by a private water system, as compared to the national average of 1 in 10.  

Privatized water systems have been shown to cause an increase to water rates. In Pennsylvania, some residents have seen price hikes as high as 100%, forcing families to bear another financial burden on a service that is essential. Both their rates and management practices are influenced by their pressure to report profitable margins to shareholders and investors, rather than simply being held accountable to the customers they serve. 

Image sourced from Food & Water Watch, Water Privitization: Facts and Figures

By contrast, public water systems are directly held accountable by the public. It gives the city more control over the water supply and as a result is more transparent. Public water systems have lower rates, more reliable, and are more likely to make long-term investments in supporting public health.  

Why now?  

Pittsburgh has faced efforts to privatize over the years. Most notably, Pittsburgh’s water systems were previously managed by a private company, Veolia. In 2016, their contract was terminated after Pittsburgh residents experienced widespread issues and a lawsuit was filed. Former Pittsburgh Mayor Peduto stated, “It is clear Veolia cared more about their bottom line than providing residents with the high-quality water and customer service they deserve.” The same private company, was sued for allegations of “fail[ing] to properly identify corrosion control treatment issues, which exacerbated and prolong[ing] the water crisis” in Flint, Michigan. Additionally, the Pennsylvania Legislature shows little signs of reigning in the privatization efforts across the state. 

We cannot let Pittsburgh fall victim to the increasing privatization of Pennsylvania’s water systems.  While the current Board of Pittsburgh Water is committed to maintaining operations as a public entity, there are no laws that would prohibit future Board members from selling the water system to a private company. Passing this ballot referendum would ensure that the Pittsburgh Home Rule Charter prohibits privatization of our water and sewer systems and preserves public ownership.

How can you support? 

Individuals  

• Sign-on to endorse 

• Share this blog on social media 

• Make a plan to vote and ask five of your friends to come vote 

• Request a mail-in ballot and vote from the comfort of your home 

• Join the Pittsburgh United’s Our Water Table Coalition for efforts to raise awareness about the ballot referendum  

Organizations  

• Share general awareness that the question will be on the ballot   

• Note: Non-profits can conduct unlimited non-partisan get out the vote and voter registration drive efforts.* 

• Sign-on to endorse 

• Note: Non-profits can support ballot initiatives! There are some limitations, such as the expenditure limitations and expenses may be subject to reporting requirements. To learn more about non-profits and ballot initiatives see our previous blogpost here: Tips for Navigating an Election Year as a 501(c)(3) Nonprofit — Fair Shake Environmental Legal Services.* 

• Share this blog on social media  

Fair Shake Environmental Legal Services is a 501(c)(3) non-profit law firm and we endorse passage of this ballot referendum. At Fair Shake we believe all people and communities should have access to the tools of change, and that everyone has the right to make decisions about the air, water, and land where they live, work, and play. Our organizational decision-making is guided by ensuring our work supports community-led efforts that promotes environmental justice outcomes.  

The efforts to place this referendum on the ballot have been community-led by the Our Water Table Coalition. We believe protecting public access to water is an environmental justice issue because too often marginalized communities face systemic barriers to clean and affordable water. Our team provided assistance in navigating the ballot referendum process and chose to endorse this referendum because ballot referendums have the opportunity to play a unique role for communities that are seeking to protect environmental rights, as well as for direct democracy and community-driven decision-making.  

"I am grateful to have the chance to support this community-driven ballot referendum, especially at a time when public services and environmental justice are under attack. This initiative not only reflects our shared commitment to affordable, safe water but also demonstrates the power communities have to create change.” Brooke Christy, Fair Shake Equal Justice Works Fellow, sponsored by Fenwick & West LLC. 

*Disclaimer: Navigating electoral advocacy as a 501(c)(3) is not always easy but we hope these tips are helpful for those interested. All the information provided is for general educational purposes and does not constitute legal advice. This is merely intended to address questions that our Fair Shake team is frequently asked. If you have questions or concerns, we encourage you to reach out to our Fair Shake team! We provide legal services on a sliding-scale and have experience serving as general counsel to non-profit organizations. Other resources that may be helpful for nonprofit organizations:  

• IRS: Fact Sheet 

• Non-profit Vote: Staying Nonpartisan: Permissible Election Activities Checklist 

• Alliance for Justice: Practical Guidance: Nonprofit Voter Assistance Series 

• Alliance for Justice: Ballot Measure Toolkit 

• Fair Shake: ‘green-light’ and ‘red-light’ lobbying and advocacy activities for 501(c)(3)’s 

Update on the East Palestine Train Derailment

by Addison Caruso, Esq. - Staff Attorney at Fair Shake ELS

Much has happened in the East Palestine community in the past year and a half since the Norfolk Southern train derailment – lawsuits have been filed, government investigations were carried out, and laws were proposed in response.    Many nonprofit organizations, including Fair Shake, have worked to help the community deal with the accident and the collective response.  As a nonprofit law firm, Fair Shake’s primary goal in reaction to the derailment has been to educate the community on the legal response.  We’ve done this by helping to hold free legal clinics for community members, by providing advice to responding organizations, and by giving general legal education about the accident.   In keeping with Fair Shake’s legal education goals and given the scope of the response to date, we believe that a general update on the derailment is in order.  As such, here is where things stand as of August 2, 2024:

Summary

Around 9:00 pm on February 3, 2023, a Norfolk Southern freight train derailed in East Palestine, Ohio.[1] Of the 150 train cars, 50 were affected by the derailment, with the rest being uncoupled and removed from the scene.[2] Approximately twenty of those derailed cars contained hazardous materials, such as vinyl chloride.[3] Following the derailment, acting on information from Norfolk Southern and its contractors that a dangerous chemical reaction was occurring within a vinyl chloride train car, the incident commander managing the response made a decision to vent and burn the tanks obtaining vinyl chloride.[4] It is still unclear what lasting health effects this decision had on the surrounding community, but following the derailment, residents have reported a wide variety of health symptoms such as eye irritation, skin lesions, brain fog, and raised concerns about cancer.[5] Following the derailment, studies were undertaken surrounding the accident, legislation was proposed to prevent similar derailments from occurring in the future, and lawsuits were filed by both individuals and the federal/state governments against Norfolk Southern. Updates on each of these responses to the derailment are detailed below.

National Transportation Safety Board Investigation

Following the derailment, the National Transportation Safety Board (NTSB)  conducted an investigation into Norfolk Southern’s conduct that specifically focused on: (1) communications about hazards and emergency responder preparedness for the initial response to the derailment; (2) circumstances that led to the decision to vent and burn the five vinyl chloride tank cars; (3) the types or patterns of freight car wheel bearing failure, such as overheating, wear, or material defects, and failures of the wayside detection systems; and (4) tank car derailment damage, crashworthiness, and hazardous materials package information.[6] During this investigation, NTSB staff spoke with representatives from Norfolk Southern, held investigative hearings, and reviewed various reports published during and after the vent burning.[7]

As of July 5, 2024, the NTSB has not published its final report but has released an abstract of the report.[8] One of the more notable findings from the report is that the venting and burning of the five train cars carrying the toxic chemical vinyl chloride, which occurred three days after the derailment, was unnecessary and released 115,000 gallons of vinyl chloride into the environment.[9] They concluded that the decision to vent and burn rather than pursue alternative methods was “based on incomplete and misleading information provided by Norfolk Southern” and that they withheld critical data and context about the state of the train cars from the governor of Ohio and first responders.[10] Furthermore, Jennifer Homendy, the NTSB chair, said that Norfolk Southern “demonstrated complete disregard” for the rules and regulations put in place to protect the integrity of the investigation and described the company’s behavior as “unprecedented, reprehensive, unethical and inappropriate.”[11]  As of August 2, 2024,  the final report has not yet been published but should be in the next few weeks.[12]

Department of Justice and Ohio Attorney General Lawsuits

The U.S. Department of Justice (DOJ) filed a lawsuit against Norfolk Southern (Case No. 4:23CV00675) along with the Ohio Attorney General’s (AG) office (Case No. 4:23CV00517). Both cases were consolidated under the AG’s case in the Northern District of Ohio.

Department of Justice Lawsuit: On May 23, 2024, the DOJ and EPA announced a settlement valued at over $310 million with Norfolk Southern.[13] In the settlement, Norfolk Southern agreed to address and pay for the damage caused by the February 3, 2023, train derailment.[14] The settlement, subject to court approval, requires Norfolk Southern to pay a $15 million civil penalty, improve rail safety, pay for health monitoring and mental health services for the surrounding communities, and fund long-term environmental monitoring.[15]Specifically, Norfolk Southern has agreed to:[16]

·      Spend $235 million for all past and future cleanup costs;

·      Pay $25 million for a 20-year community health program;

·      Pay $15 million to implement a long-term monitoring of groundwater and surface water;

·      Pay $15 million for a private drinking water monitoring fund;

·      Implement a waterways remediation plan with an estimated budget of $6 million in Leslie Run and Sulfur Run to address historical pollution and reduce non-point source pollution through infrastructure upgrades and stormwater management; and

·      Pay $175,000 for natural resource damages to be used by the United States to restore, rehabilitate, replace, or acquire the natural resources injured because of the derailment.[17]

Additionally, the consent decree requires Norfolk Southern to work on projects that will improve the safety of transporting hazardous materials by rail, which includes the installation of additional devices to detect overheated wheel bearings early enough to prevent derailment.[18] These enhancements are estimated to cost Norfolk Southern approximately $200 million.

Following the settlement, the DOJ set aside time to answer the public’s questions about the proposed settlement on July 15 and 16 at the EPA Welcome Center in East Palestine located at 25 N. Market St., East Palestine, OH 44413.[19] The EPA also allowed members of the public to comment on the settlement up until August 2, 2024.[20] The DOJ will read all the comments it receives and consider whether any changes to the settlement are necessary, and tell the Court why it decides to make a change, or not, based on the comments.[21] The full settlement is available here.

Ohio Attorney General Lawsuit: On May 23, 2024, the Ohio Attorney General announced, shortly after the DOJ and EPA announcement, that they would not be participating in the settlement out of concerns that it could undercompensate the residents of East Palestine and wanted to allow the NTSB to complete its investigation into the circumstances leading up to the derailment and the decision-making process which resulted in the “vent and burn” of the derailed tanker cars.[22] Recently, on June 15, 2024, Ohio Attorney General Dave Yost held a community discussion in East Palestine to provide updates on the case and discuss next steps.[23]Specifically, the discussion was meant to “gauge the public’s reaction to the U.S. government’s settlement, direct whether or not Ohio will object to it in court and to help steer any negotiation the state may have with the railroad concerning its own lawsuits.”[24] He reiterated that Ohio “isn’t interested in settling” and that one of his priorities was to get Norfolk Southern to agree to create a health fund for the community.[25] It is unclear whether a settlement between Norfolk Southern and the state of Ohio will occur in the near future.

Class Action Lawsuits: Following the derailment, numerous class action lawsuits were filed against Norfolk Southern on behalf of individuals in the East Palestine community. They were consolidated under theFeezle lawsuit (Case No. 4:23CV0242) in the Northern District of Ohio. On April 9, 2024, Norfolk Southern and the attorneys representing the class actions suits agreed to a Settlement where Norfolk Southern would pay $600 million in total to residents and their attorneys.[26]  Approximately 190,000 households are entitled to the funds along with 15,000 businesses.[27] The households that were closest to the derailment site will likely receive about $70,000, but payments will vary depending on family size, extent of property damage, whether a resident was permanently relocated, etc.[28] The amount a family receives will also depend on whether they have received any previous payments from Norfolk Southern.[29]

This Settlement, if approved by the court, would resolve all class action claims within a 20-mile radius from the derailment and resolve personal injury claims for all individuals within 10-miles of the derailment.[30] The Settlement does not include or constitute any admission of liability, wrongdoing, or fault.[31] Individuals in East Palestine must have filed a request for an exclusion from the settlement or objected to its terms by July 1, 2024.[32] To receive money under the Settlement, an individual must submit a claim by August 22, 2024.[33] If the Settlement applies to you, you can submit an individual claim here. If an individual does not submit a claim, or file an exclusion or objection to the settlement, they will not receive any benefits from the Settlement and will be bound by the terms of the Settlement.[34] They will not, however, give up any past, present, or future personal injury claims.[35] On September 25, 2024, a hearing will be in court held to determine if the Settlement is a fair, reasonable, and adequate resolution, and, if it is determined to be so, the Settlement will be finalized.[36] More information about the Settlement can be found here: https://www.eastpalestinetrainsettlement.com/.

Federal Legislation: Introduced in March 2023, less than a month after the derailment, Senators Brown (D-OH), Vance (R-OH), Fetterman (D-PA), Casey (D-PA), Rubio (R-FL), and Hawley (R-MO),  introduced in the Senate the Railway Safety Act (S.576).[37] This bill, if passed, would increase safety requirements for all rail carriers and trains transporting hazardous materials, like the train that passed through East Palestine.[38] Specifically, it would require that all rail carriers or shippers that carry hazardous materials:[39]

·      Provide state emergency response commissioners with advanced notice and information about the hazardous materials;

·      Reduce blocked rail crossings; and

·      Require railway companies to comply with certain requirements regarding train length and weight specifications, track standards, speed restrictions, and response plans.

The bill also establishes requirements for wayside defect detectors, which detect defects and failures along the tracks, such as wheel bearing failures, while increasing fines for noncompliance with safety regulations.[40]Additionally, the bill increases Department of Transportation rail car inspection regulations, requires a minimum two-person crew for certain freight trains, and provides funding for research and development to improve railway safety, among other provisions.[41] The bill has been referred to out of its Senate committee but as of August 2, 2024, the Senate has not held a full vote on the bill because it likely does not have the sixty votes needed to overcome a Senate filibuster.[42]

[1] https://www.epa.gov/east-palestine-oh-train-derailment/background

[2] https://www.epa.gov/east-palestine-oh-train-derailment/background

[3] https://www.epa.gov/east-palestine-oh-train-derailment/background

[4]https://www.ntsb.gov/investigations/Documents/East%20Palestine%20Ohio%20Board%20Meeting%20Summary%20with%20Amendments.pdf (page 1)

[5] https://www.cbsnews.com/news/east-palestine-ohio-train-derailment-residents-health-issues-norfolk-southern/

[6] https://www.ntsb.gov/news/events/Pages/East-Palestine-Hearing-Event.aspx

[7] https://insideclimatenews.org/news/27062024/norfolk-southern-east-palestine-derailment-ntsb-investigation/; https://data.ntsb.gov/Docket/?NTSBNumber=RRD23MR005

[8] https://www.ntsb.gov/news/press-releases/Pages/NR20240625.aspx

[9] https://insideclimatenews.org/news/27062024/norfolk-southern-east-palestine-derailment-ntsb-investigation/

[10] https://insideclimatenews.org/news/27062024/norfolk-southern-east-palestine-derailment-ntsb-investigation/

[11] https://insideclimatenews.org/news/27062024/norfolk-southern-east-palestine-derailment-ntsb-investigation/

[12] https://www.ntsb.gov/news/press-releases/Pages/NR20240625.aspx

[13] https://www.justice.gov/opa/pr/united-states-reaches-over-310-million-settlement-norfolk-southern-address-harms-caused-east

[14] https://www.justice.gov/opa/pr/united-states-reaches-over-310-million-settlement-norfolk-southern-address-harms-caused-east

[15] https://www.justice.gov/opa/pr/united-states-reaches-over-310-million-settlement-norfolk-southern-address-harms-caused-east

[16] https://www.justice.gov/opa/pr/united-states-reaches-over-310-million-settlement-norfolk-southern-address-harms-caused-east

[17] https://www.justice.gov/opa/pr/united-states-reaches-over-310-million-settlement-norfolk-southern-address-harms-caused-east

[18] https://www.justice.gov/opa/pr/united-states-reaches-over-310-million-settlement-norfolk-southern-address-harms-caused-east

[19] https://www.epa.gov/system/files/documents/2024-07/env-enforcement-3764639-v3-east-palestine-fact-sheet-final_7-8.pdf (page 1).

[20] https://www.epa.gov/system/files/documents/2024-07/env-enforcement-3764639-v3-east-palestine-fact-sheet-final_7-8.pdf (page 1).

[21] https://www.epa.gov/system/files/documents/2024-07/env-enforcement-3764639-v3-east-palestine-fact-sheet-final_7-8.pdf

[22] https://www.ohioattorneygeneral.gov/Media/News-Releases/May-2024/Senator-Vance-and-Attorney-General-Yost-React-to-E

[23] https://www.morningjournalnews.com/news/local-news/2024/06/ohio-attorney-general-hears-from-east-palestine-residents/

[24] https://www.morningjournalnews.com/news/local-news/2024/06/ohio-attorney-general-hears-from-east-palestine-residents/

[25] https://www.morningjournalnews.com/news/local-news/2024/06/ohio-attorney-general-hears-from-east-palestine-residents/

[26] https://www.eastpalestinetrainsettlement.com/files/Settlement_Agreement_5dfe847545.pdf (page 3)

[27] https://www.post-gazette.com/local/region/2024/06/30/east-palestine-settlement-train-derailment-ntsb/stories/202406280119

[28] https://www.post-gazette.com/local/region/2024/06/30/east-palestine-settlement-train-derailment-ntsb/stories/202406280119

[29] https://www.eastpalestinetrainsettlement.com/files/Settlement_Agreement_5dfe847545.pdf (page 22)

[30] https://www.eastpalestinetrainsettlement.com/files/Settlement_Agreement_5dfe847545.pdf (pages 28–29).

[31] https://www.eastpalestinetrainsettlement.com/files/Settlement_Agreement_5dfe847545.pdf (page 30).

[32] https://www.eastpalestinetrainsettlement.com/

[33] https://www.eastpalestinetrainsettlement.com/

[34] https://www.eastpalestinetrainsettlement.com/files/Settlement_Agreement_5dfe847545.pdf (exhibit D page 6)

[35] https://www.eastpalestinetrainsettlement.com/files/Settlement_Agreement_5dfe847545.pdf (page 29).

[36] https://www.post-gazette.com/local/region/2024/06/30/east-palestine-settlement-train-derailment-ntsb/stories/202406280119

[37] https://www.congress.gov/bill/118th-congress/senate-bill/576

[38] https://www.congress.gov/bill/118th-congress/senate-bill/576

[39] https://www.congress.gov/bill/118th-congress/senate-bill/576

[40] https://www.congress.gov/bill/118th-congress/senate-bill/576

[41] https://www.congress.gov/bill/118th-congress/senate-bill/576

[42] https://www.congress.gov/bill/118th-congress/senate-bill/576/all-actions

Environmental Justice: A Path Forward?

By Thad Kotarski, Fair Shake Legal Intern

Life in a Vacuum 

Out of all the sound and fury of current events, one thing you probably will not come across is a coherent vision of where we should be going as a society. The Democratic Party has split between business-as-usual political creatures and democratic socialists whose proposals have as much chance of becoming law in today’s political climate as Marx’s old yarn that under communism people would be able to work in the factory in the morning, farm in the afternoon, and write literary criticism over dinner. The best the Republican Party can come up with is a dystopic version of the 1950s. 

Recently, I took a break from the brass-tacks work of a law clerk to think about these big picture questions: What kind of society do we want? What is “justice” in today’s world? I concluded that very few people in the public discourse are thinking about the former, leading to a default “justice is nothing other than the advantage of the stronger” à la Plato’s Thrasymachus in the latter. Power abhors a vacuum, and it only makes sense that a lack of vision favors power. If we lack a coherent vision for what kind of society we want to have, the policy changes we advocate for today are nothing but empty promises. 

Leading me to this conclusion was an article in the most recent issue of Foreign Affairs by political scientist Michael J. Mazarr that discusses some of these questions. In discussing what makes given societies successful, Mazarr concludes that the most important factor is a society’s “essential dynamism and vitality.” Drawing an interesting historical analogy, Mazarr quotes historian Kenneth Bartlett: 

The Renaissance ended because the set of attitudes and beliefs and self-confidence, that energizing myth [that] was the motive power of the Renaissance mind, simply ceased to function…The failure of will, the failure to confront the crises that the Italians knew that they were in, the decision … to accept what is known and safe and stable. 

In the environmental law context, what good does winning an individual case for a sympathetic client do if we as a legal community don’t have a concrete value-driven mission? 

Environmental justice (EJ) provides the kind of vision and will that we need to overcome this kind of stagnation. The great strength of EJ is its inclusion of scientific reality, social justice needs, and democratic values. 

What is Environmental Justice? 

Environmental justice (EJ) approaches public policy and economic development through a commitment to ensuring fair outcomes in environmental decision-making. EJ practitioners seek to avoid future and correct past injustices suffered by the economically vulnerable and racial minorities, who are often not involved in discussions about everything from the placement of heavy industry sites to climate change policy.  

The U.S. Environmental Protection Agency traces the inception of EJ to the Civil Rights Movement, noting that events like the 1968 Memphis Sanitation Strike—where African American workers protested poor environmental and working conditions—linked race, income inequality, and environmental degradation. 

At its core, EJ is about equality, mutual respect, and ensuring that no one group bears the cost of development. But despite its bearing on public policy, EJ’s principal proponents have not been judges or legislators.  

One influential EJ text is Pope Francis’s 2015 encyclical Laudato Si (On Care for Our Common Home). Francis combines theology, social justice thought, economics, and science to argue that ecological injustice is inextricably tied to economic, racial, and gender exploitation. The encyclical’s overarching analogy is that what we have done exploiting the earth we have also done to the poor and marginalized, as well as future generations, as these groups are the ones who bear the cost of unsustainable practices.  

At its core, Laudato Si’s version of EJ focuses on the thoughtlessness of existing laws and patterns of economic development:  

We have come to see ourselves as her [the Earth’s] lords and masters, entitled to plunder her at will. The violence present in our hearts, wounded by sin, is also reflected in the symptoms of sickness evident in the soil, in the water, in the air and in all forms of life. This is why the earth herself, burdened and laid waste, is among the most abandoned and maltreated of our poor … We have forgotten that we ourselves are dust of the earth (cf. Gen. 2:7); our very bodies are made up of her elements, we breathe her air and we receive life and refreshment from her waters … Nothing in this world is indifferent to us.  

I like this passage because it summarizes a through-line in Francis’s philosophy: everything in this world is inherently interconnected, both on physical and moral levels. As Francis notes, 

[W]e can no longer view reality in a purely utilitarian way, in which efficiency and productivity are entirely geared to our individual benefit. Intergenerational solidarity is not optional, but rather a basic question of justice, since the world we have received also belongs to those who will follow us. 

Laudato Si builds on the 1991 First National People of Color Environmental Leadership Summit (FPCELS), where community leaders from various racial minorities met to develop a “comprehensive platform for a national and international movement of all people.” 

The resulting document, the 17 Principles of Environmental Justice, focused on the connections between unsustainable development, racism, classism, and ecology. The first two principles emphasize interconnection, mutual respect, and equal treatment: 

Environmental Justice affirms the sacredness of Mother Earth, ecological unity and the interdependence of all species, and the right to be free from ecological destruction … [and] … demands that public policy be based on mutual respect and justice for all peoples. 

EJ activism in the 1960s through the mid-1990s did lead to changes in the law but not at the statutory level. For example, President Clinton signed Executive Order 12898 in 1994. E.O. 12898 asks federal agencies to “identify and address the disproportionately high and adverse health or environmental effects of actions on minority and low-income populations.”  

Similarly, President Biden’s 2021 E.O. 14008 established several White House offices and federal development tools related to EJ, including the Justice40 Initiative, “which aims to provide 40 percent of the overall benefits of Federal investments relating to climate change … to disadvantaged communities who are marginalized, underserved, and overburdened by pollution.” 

How EJ Fills the Vacuum 

EJ fills the social and identity vacuum facing America today by focusing on relatively low-hanging fruit that aligns with values outlined in our Founding documents. Freedom from pollution is not something that aligns narrowly with either one political perspective but instead reflects a general question of fundamental rights. 

An emphasis on EJ as a galvanizing vision for who we are and what we want can be tailored to liberals and conservatives. For example, EJ’s racial, economic, and intergenerational facets could appeal to progressive Democrats. These takes get to the bread-and-butter of contemporary progressive activism: race, income inequality, and climate. 

The biggest challenges for progressives interested in EJ are (1) that it becomes a crusade of “white saviors” and (2) that they effectively make the case that EJ issues are connected to health, concrete issues facing the average American. If EJ activism is led by white people with a paternalistic goal of “helping” African Americans, progressives will have simply changed the specifics of one regime of oppression for another, creating a neo-“White Man’s Burden” and ignoring the core values that the sources I discussed above centered on. By focusing on EJ as a “Black Problem” that “enlightened white people” can fix, progressives would risk talking down to minorities and missing the forest for the trees: everyone on this planet is threatened by climate change and water or air pollution. 

EJ could be made palatable for Republicans through an appeal to modern conservatism’s emphasis on self-reliance and efficiency. By linking the values of a Founding document like the Declaration of Independence to EJ ventures, EJ-conscious conservatives could make the case that the “rags-to-riches, self-made person” story is impossible if would-be entrepreneurs die young from pollution and climate change.  

Whatever the respective strengths and weaknesses of liberal versus conservative EJ, both versions arguably leave us better off than we are now. If nothing else, even a deficient EJ framework fills the current vision vacuum with a forward-focused program. 

Conclusion 

While it would be naïve to believe that EJ can single-handedly transform our society, it is by no means unreasonable to think that the core values that EJ espouses could help us address current social, economic, and environmental challenges.  

By going “back to basics” and emphasizing every American’s equality before the law, the interconnections between environmental and social exploitation, and hard-to-oppose issues like clean air and water, EJ could fill the vacuum I outlined in the first section. 

SCOTUS' Decision in West Virginia vs. EPA Weakens Federal Climate Efforts

On June 30th, the Supreme Court weakened the Environmental Protection Agency’s (EPA) ability to protect the environment. In West Virginia v. EPA, a 6-3 decision authored by Chief Justice Roberts and joined by the other conservative justices, the Court ruled the EPA overreached in its efforts to curb air pollution. This decision forebodes more significant limitations on the EPA and other government agencies’ efforts to effectuate change. The ruling also makes clear what many environmental advocates already knew: the federal government, as currently designed, will not be the leader in the fight against climate change. Grassroots movements, community-oriented advocacy, and mass mobilization are essential in the effort to protect the planet, now more than ever. 

The core question of West Virginia was the discretion the EPA, the agency charged with enforcing federal environmental statutes, had in interpreting the Clean Air Act (CAA). The purpose of the CAA is “to protect and enhance the quality of the Nation’s air resources so as to promote [] public health and welfare.” Specifically, the EPA must design the “best system of emission reduction.” During the Obama Administration, the EPA created the Clean Power Plan (CPP) to accomplish the task set out in the CAA. In the CPP, the EPA essentially devised a cap-and-trade system, where emissions operators (think power companies and the like) would have to invest in clean energy elsewhere if they polluted over a certain threshold. This “best system” decision was innovative for the EPA and part of its efforts to substantively engage in environmental protection. 

The CPP never went into effect. Before promulgation, the Trump Administration replaced the CPP with the less protective Affordable Clean Energy (ACE) Rule. Both rules spent time in judicial limbo until the Biden Administration made both inconsequential in stating its intention to develop a rule of its own. Despite the CPP’s irrelevance, several conservative states, coal mine owners, and energy companies brought forth a challenge, and the Supreme Court agreed to hear the case. 

Delegating decisions to agencies like those seen in the CPP is common practice. Congress knows it lacks expertise in specific areas and will not always be able to respond to an ever-evolving world. Instead, Congress endows agencies with the power to make the necessary decisions. Such delegation requires agencies to exert discretion in interpreting and enforcing legislation. Over the last four decades, the Court has been very deferential to agencies’ interpretations of the law, typically only intervening where an agency’s interpretation was wholly unsupported by the text of the statute. 

In West Virginia, the Court cut against precedent in striking down the CPP. In doing so, the Court recognized the “major questions doctrine,” which the Court had hinted at in previous cases but never formally invoked. Applying this doctrine, the Court ruled the CPP was too significant a change to be left to the EPA, stating “a decision of such magnitude and conse­quence rests with Congress itself, or an agency acting pur­suant to a clear delegation from that representative body.” 

How substantial a question needs to be before the new doctrine applies is unclear. As noted in Justice Kagan’s dissent, joined by the other two liberal justices, the standards set by the EPA were commonplace and unambitious. The industry, of its own accord, employed the techniques formerly championed by the EPA to exceed the EPA’s target emission reductions. As a result, the power industry overwhelmingly supported the EPA in this case. The decision makes apparent that the EPA and other federal agencies should expect further limitations on their powers; however, the scope of such curtailments remains unknown. 

Nevertheless, two critical lessons from this decision are known. First, even under a liberal regime, the EPA set climate change goals so unambitious that the industry met them without prompting. Second, the Supreme Court will strike down even modest environmental goals the executive branch sets. U.S. leaders have been ineffective at using their position to stem climate change, and even if they were successful, the Supreme Court would undermine these efforts. The U.S. federal government is not the answer to saving our world. With an ineffective federal government incapable of passing and enforcing meaningful environmental legislation, grassroots mobilization and collective action are needed. 

The above is not to say that individuals will be able to prevent global climate change by diligently recycling and refraining from eating meat on Mondays. These actions are not enough. The fact remains over 70% of greenhouse gas emissions can be traced back to just 100 companies. Nor is it to say that the federal government has no role in staving off the climate crisis, only that the federal government, in its present state, will not act unless pressured. Instead, preventing a complete climate disaster requires a multifaceted approach that considers and is led by those most impacted. 

With a federal government largely unwilling and incapable of leading into the future, the task of producing real change falls, as it always does, on the people. Those most impacted already know what is needed to make the situation better. Communicating, organizing, and mobilizing brings these issues to light and suggests solutions that those in power are too afraid to attempt. Change requires global collective action. Change requires community-oriented organizations fighting to mitigate harm within the legal system while aiding advocacy efforts. Change requires municipalities and states picking up where the federal government failed. Change requires assembling in numbers so great that the federal government must reconceptualize its practices and employ the tools still at its disposal. Effecting said change requires mobilization not seen for generations, but such efforts might be the last hope at saving the planet.

By Logan Campbell, Fair Shake Legal Intern