Highways and Environmental Justice

MAY 16, 2022   /  KATHERINE COOMBS

 

Since the 1950s, U.S. transportation policy and highway siting decisions intentionally have targeted poor, Black communities across the country for transportation development projects. Despite the development of regulations and executive orders on environmental justice that mandate community involvement in transportation planning, highways and transportation development projects are still being sited in these communities today. The Black Lives Matter Movement has captured the attention of the nation and of the incoming president, who has shared policy initiatives that mark a promising path forward for groups opposing highway development.

This paper is about the racist practice of federal, state, and local governments in siting major highways through Black communities across the country. Section I provides background on fraught U.S. transportation policy and highway planning history that resulted in a majority of highways being sited in low-income communities and communities of color nationwide. Section II describes the subsequent creation of federal laws and regulations focused on public involvement and justice. Section III explores the emergence of advocacy organizations aimed at meaningful legal and regulatory enforcement to prevent highway siting. The paper concludes that federal laws and regulatory enforcement failed to prevent highway development in the Black community in the 1950s and continue to fail to protect the Black community from highway expansion projects today.

I. OVERVIEW

After World War II, the American economy was booming. People across the country were buying cars, televisions, and automobiles, having kids, and moving to the suburbs. To accommodate increased traffic on the roads, highway construction projects became a top federal priority. In 1944, Congress passed the Federal-Aid Highway Act of 1944, which created a national system of interstate highways and initiated the federal government’s role in planning a national highway system.[1] The Act provided that the federal government would contribute fifty percent of construction costs for new highways.[2] Following this Act, state highway agencies prepared their first comprehensive highway plans for urban areas, indicating preliminary locations of proposed interstates.[3]

In 1956, Congress passed the Federal-Aid Highway Act of 1956, which launched the Interstate Highway Program and heavily financed its construction.[4] The 1956 Act increased the federal share of highway construction costs from fifty percent to ninety percent and established a financing mechanism for the program, the Highway Trust Fund, which generated revenue from taxes on highway users.[5] The 1956 Act tasked the Federal Bureau of Public Roads with routing freeways, which shifted planning oversight from local governments to federal and state transportation officials.[6] Importantly, the 1956 Act also amended the existing requirement that states hold a local hearing if a federally funded road will bypass a population center.[7] Unfortunately, Congress attached no substantive requirement to its hearing demands.

Over the next decade, state and federal highway officials prioritized routes that were the least expensive and the most efficient, implementing their plans without input from the communities through which highways were being routed.[8] Highway engineers and consultants worked with local civic elites to determine new interstate routes in America’s cities.[9] Even though feedback mechanisms for communities to review projects did exist, city officials quickly accepted funding without providing any opportunity for meaningful municipal review.[10] Also in many cities, state highway departments had moved quickly to acquire and clear their urban interstate corridors before the Department of Transportation (DOT) could call for a review or stop the project from moving forward.[11]

After the landmark 1956 interstate highway legislation, highway officials implemented expressway plans that destroyed enormous amounts of low-income, inner-city housing, especially in Black neighborhoods.[12] Land acquisition costs in Black neighborhoods were generally cheaper and political opposition was minimal, especially in southern cities.[13] Highway construction in the 1950s resulted in a litany of detrimental impacts on Black communities across the country, as transportation planning formalized and naturalized structural racism and created persistent patterns of segregation that remain today.[14] New highways and the demolition of housing units in urban areas physically and culturally disrupted Black communities across the country.[15] Black individuals were displaced from their homes, and after highway projects destroyed their homes, they faced challenges finding safe and sanitary housing to replace what had been taken through eminent domain.[16] Additionally, in many cities, highway plans were announced long before construction would begin, resulting in significant drops in property values, that caused demoralized homeowners and business people to lose incentive to make repairs to their properties, leading to even worse neighborhood conditions and lower property values.[17] Today, gentrification continues to threaten availability of safe and affordable housing for Black individuals.

Highway siting in Black neighborhoods has also contributed to negative health effects resulting in racial health disparities. Communities of color have been exposed to elevated levels of air, water, and noise pollution, resulting in racial health disparities.[18] In neighborhoods with high concentrations of people of color, air pollution concentrations routinely exceed regional averages.[19] One study suggests that transportation policies of the 1950s and 1960s, which supported highway system expansions and sited heavily traveled roads through low-income neighborhoods in Detroit, led to residents having higher risks for a variety of diseases.[20] Pollutants from cars, buses, and trucks are associated with health conditions like impaired lung development and function in infants and children, and with asthma, lung cancer, heart disease, respiratory illness, and premature death.[21]

Despite the rising toll of community disruption, housing demolitions, and negative health effects from urban highway building on the Black community, politicians, planners, and road engineers continue to build and expand highways in Black neighborhoods today. Despite increasing awareness of environmental justice and legislation designed to arm Black communities with tools like having a say in highway projects that have disparate impacts on their communities, federal laws and regulations do little to stop highways from expanding. Freeway revolts of the 1960s helped rein in the expressway-building regime, as groups like Citizens to Protect Overton Park used litigation in the courts to stop a highway from being sited in their communities. However, freeway revolt successes varied from city to city, depending on political circumstances, bureaucratic policy shifts, the strength of citizen opposition, and judicial decision-making.[22] For example, freeway revolts in Memphis and Nashville demonstrated how the interplay of these forces shaped outcomes and are relevant to successes in the freeway opposition movement in Portland, Oregon today.

II. REGULATORY FRAMEWORK

 Section II describes the creation of federal laws and regulations focused on public involvement and environmental justice. Section A describes the federal environmental justice regulatory framework under Title VI and Executive Order 12898 and analyzes the success of each tool for communities seeking to prevent highway development projects. Section B describes the environmental justice orders by the U.S. Department of Transportation and Federal Highway Administration.

A. Environmental Justice Regulatory Framework

This section describes Title VI and Executive Order 12898, which underlie the doctrine of environmental justice, and analyzes the success of each tool for communities seeking to prevent highway development projects.

1. Title VI of the Civil Rights Act of 1964

Title VI of the Civil Rights Act of 1964 is one of the leading authorities underlying the doctrine of environmental justice.[23]  Title VI prohibits discrimination based on race, color, and national origin in programs and activities receiving Federal financial assistance.[24] Specifically, Title VI provides that “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.”[25] Prohibited discrimination includes denying benefits or services, providing inferior benefits or services, or otherwise treating someone differently in the provision of benefits or services because of race, color, or national origin.[26] For example, a Title VI violation would occur if a state transportation agency decided to provide replacement housing to white individuals but not to people of color being displaced because of a highway project.[27]

To comply with Title VI, state departments of transportation are required to use a range of measures. State highway agencies are required to have an adequately staffed civil rights unit, have procedures to address civil rights complaints and collect statistical data on protected populations, conduct annual reviews of programs, provide training for staff to explain Title VI obligations, and submit annual updates to the regional federal highway administration offices.[28] The federal government clarified Title VI requirements relating to transportation issues through the issuance of Executive Order 12898 and DOT guidance.

Title VI has been a successful tool in some highway siting cases; however, limitations on the individual’s right to enforcement have made the Act less effective. In 2001, the Supreme Court in Alexander v. Sandoval ended the ability of private individuals to bring a lawsuit to enforce disparate impact discrimination under Title VI.[29] Now, individuals may only bring lawsuits charging that action was taken intentionally to discriminate. Individuals can no longer rely solely on statistical evidence to show that an action had a disparate impact on persons of a specific race, color, or national origin.[30] However, federal agencies can still enforce regulations by suspending or terminating funding to obtain compliance with Title VI or seek equitable relief, like an injunction.[31] This change means that the federal government needs to more rigorously enforce Title VI because individual lawsuits are now severely limited.[32]

2. Executive Order 12898 on Environmental Justice

 President Clinton’s 1994 Executive Order 12898 was the first major federal action on environmental justice in the United States. The executive order was designed to focus federal attention on human health and environmental conditions in minority and low-income communities.[33] The order also intended to foster nondiscrimination in federal programs that substantially affect human health and the environment and provide minority and low-income communities greater public participation opportunities and access to information.[34]

The executive order sets forth various standards and requirements for federal agencies to follow and satisfy. First, agencies were required to develop an environmental justice strategy and identify and address disproportionately high and adverse human health or environmental effects of their programs, policies and activities on minority and low-income populations.[35] Second, the executive order requires each federal agency to apply the Title VI principle of nondiscrimination in its programs and activities.[36] Third, the executive order requires federal agencies to collect and analyze data for determining whether their programs have a disproportionate impact.[37] Fourth, to ensure adequate public participation and access to information, the executive order required agencies to solicit public recommendations in developing and implementing environmental justice strategies.[38] Agencies also must translate crucial public documents and ensure these documents are concise, understandable, and accessible to all communities and minority populations.[39]

Although the executive order seeks to rectify environmental problems that have disproportionately impacted minority and low-income populations, the executive order is only symbolically important for these communities and often leaves them with no real opportunity to prevent highway development. First, the executive order does not define or set a standard for determining which populations are considered minority or low-income or which communities are disproportionately impacted by environmental risk. Agencies are required to identify these communities themselves.[40] Second, while the executive order sets forth a number of requirements that would seem to alleviate environmental justice concerns, the executive order is non-binding and legally unenforceable.[41] The executive order relies entirely on internal enforcement and does not create a right to sue the government or allow for judicial remedies when agencies fail to comply with the executive order.[42] Third, the executive order only requires agencies to consider environmental justice concerns and the effects of their programs and policies but does not require the agency to grant that analysis any weight in their rulemaking decisions.[43] Because the order is not enforceable, it has not had much of an impact in creating change. The executive order is merely a symbolic federal acknowledgement of the environmental justice movement.

B. Environmental Justice Regulatory Framework Applied to the Transportation Sector

Following Executive Order 12898, the DOT and the Federal Highway Administration (FHWA) issued environmental justice orders establishing policies and procedures for identifying and addressing the potential effects of transportation projects on minority and low-income populations.[44] This section describes those orders, DOT Order 5610.2(a) and FHWA Order 6640.23A, and then explores the effectiveness of both orders as a tool for challenging highway siting decisions.

1. DOT Environmental Justice Order 5610.2

In 2012, the DOT issued DOT Order 5610.2(a), Department of Transportation Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (DOT EJ Order), updating the original order issued in 1997.[45] The DOT EJ Order requires DOT administrators to fully consider and incorporate environmental justice (EJ) principles into existing programs, policies, and activities. The DOT EJ Order also sets forth the procedures and guidelines for the agency’s implementation of Executive Order (EO) 12898 and establishes the framework for identifying and addressing disproportionately high and adverse impacts in minority and low-income populations.

The DOT EJ Order sets forth guidance for determining whether a DOT program, policy, or activity is likely to have disproportionately high and adverse effects on minority or low-income populations. In determining whether an effect is “disproportionately high and adverse,” the DOT EJ Order notes that practitioners may take the following into account: planned mitigation measures, offsetting benefits to the affected minority and low-income populations, the design, the comparative impacts, and the relative number of similar existing system elements in non-minority and non-low-income areas.[46] US DOT’s list of adverse effects includes air, noise, and water pollution; and soil contamination; bodily impairment, illness, or death; displacement of persons or businesses; and vibration, increased traffic congestion, isolation of individuals from their broader community, and destruction or disruption of community cohesion or the community’s economic vitality.[47]

The DOT EJ Order provides guidance on how to prevent disproportionately high and adverse effects to minority or low-income populations through Title VI analyses and environmental justice analyses as a part of Federal transportation planning and NEPA provisions.[48] DOT officials are required to implement mitigation measures and consider alternatives that would avoid or reduce any disproportionately high and adverse effects of one of their programs or policies.[49] Mitigation measures may include pollution prevention, health and safety measures, measures to maintain community cohesion and economic vitality, and mitigation and compensatory measures. This process includes procedures to provide meaningful opportunity for public involvement by minority and low-income populations, including input in identifying potential mitigation measures for DOT actions.[50] The DOT EJ order also requires the agency to provide the public access to information concerning the health and environmental impacts of its policies and actions.[51]

2. FHWA Order 6640.23A

 In 2012, FHWA issued FHWA Order 6640.23A (FHWA EJ Order), which explains the agency’s environmental justice policy and how environmental justice relates to a broad range of FHWA activities.[52] Like the DOT EJ Order and EO 12898, environmental justice at the FHWA means identifying and addressing disproportionately high and adverse effects of the agency’s programs, policies, and activities on minority and low-income populations to achieve an equitable distribution of benefits and burdens.[53] The FHWA EJ Order requires the agency to consider environmental justice in all phases of project development, including planning, environmental review, design, right-of-way, construction, and maintenance and operations.

The FHWA EJ Order puts forth how the agency will identify and avoid discrimination against environmental justice communities. First, the FHWA will identify and evaluate environmental, public health, social, and economic effects of FHWA programs, policies, and activities.[54] Second, the FHWA will propose measures to avoid, minimize, and/or mitigate disproportionately high and adverse environmental effects and provide offsetting benefits and opportunities to communities affected by FHWA policies.[55] Third, the FHWA will consider alternatives to proposed programs, policies, and activities, if the alternatives would result in avoiding or minimizing disproportionate adverse impacts to environmental justice communities.[56] Lastly, FHWA will provide public involvement opportunities by sharing information with the public, soliciting input from minority and low-income populations, and taking community input into consideration when making decisions about potential alternatives for projects.[57]

3. DOT and FHWA Policies are an Ineffective Tool for EJ Communities

Like EO 12898, the environmental justice regulations at the DOT and FHWA are not legally enforceable and, therefore, are more symbolic than useful to low-income and minority communities seeking to prevent highway construction in their neighborhoods. Transportation planning agencies use these environmental justice regulations and guidance to develop regional equity analyses, but neither order creates a legal basis for assessing compliance with their provisions or prescribes analytical standards and methods.[58] This lack of specific guidance has resulted in a situation where the state’s completion of any analysis is considered sufficient for compliance.[59] For example, one study notes that states receiving federal funds, in most cases, simply submit a single-page document assuring their compliance with DOT regulations, without any accompanying evidence to support their assurance.[60] Additionally, the DOT EJ Order requires implementation of mitigation measures and consideration of alternatives, which gives communities an opportunity to lobby for changes to highway construction that might do less damage, but the environmental justice orders are not designed to prevent highway development. These orders on environmental justice are well intended yet often ineffective, since much of the division and damage to these communities from highways has already been done.

III. CASE STUDY

Section III explores the emergence of advocacy organizations aimed at meaningful legal and regulatory enforcement to prevent highway siting. First, the section describes one group’s success in preventing highway development at Overton Park in Memphis, Tennessee and compares that to a failed challenge to a highway development project in Nashville, Tennessee. The section also explores how key takeaways from Memphis and Nashville can be applied to the freeway opposition movement happening in Portland, Oregon today.

A. A Success Story: Citizens to Preserve Overton Park

The case Citizens to Preserve Overton Park v. Volpe represents effective public participation and successful community opposition to a highway development project in Memphis, Tennessee. In the 1950s, planners who created the Interstate Highway System began planning for the city’s expressway system and decided to build a six-lane highway that would bisect twenty-six acres of Overton Park. Overton Park was the city’s principal green space, spanning 342-acres. From the beginning, state highway officials and members of the Tennessee government were the most persistent advocates of putting I-40 through Overton Park because it would be the cheapest, most direct route that served the most traffic. As a legal matter, these state offices and officials were primarily responsible for making routing decisions and conducting any public hearings that concerned those decisions.[61]

As early as 1956, citizens learned that Interstate 40 would bisect Overton Park and community opposition to stop highway construction began. In April 1957, the Memphis City Commission held a public information meeting on the planned Memphis Interstate System.[62]  A few days before this meeting, a map of the proposed network featuring the Overton Park expressway was published in Memphis’s leading newspaper. The visual evidence of the expressway’s destructive path spurred public discontent and outrage and sparked the anti-freeway Committee into action.[63] Committee leaders sent out flyers encouraging the community to attend and ultimately gathered 300 protesting citizens and over 10,000 signatures on petitions opposed to the use of the park.[64]

In 1964, when a team of highway engineers arrived in Memphis for final design work on the Overton Park segment of the I-40 expressway, the anti-freeway Committee reorganized under the new name Citizens to Preserve Overton Park (CPOP) and began mounting opposition to highway construction plans. CPOP sought to engage politically at every level to protect the park, with litigation as the last alternative.[65] CPOP lobbied the city government and ultimately captured the attention of relevant city figures like the Park Commission, the Shelby Forest Council, a number of City Commissioners, and the Memphis Mayor, who all said they preferred that Overton Park not be used.[66] In the fall of 1964, CPOP met with the Tennessee Governor and David Pack, the state highway commissioner. Pack agreed to consider two alternative routes that would avoid the park, but a month later he confirmed his support for the Overton Park expressway.[67] The Tennessee Governor consistently supported the Overton Park expressway and stubbornly resisted the outpouring of concern expressed in petitions and letters from opponents of the Overton Park expressway. After limited success with the highway agency and governor’s office, CPOP leaders moved on to the state legislature and persuaded a Memphis area lawmaker to introduce a bill to protect Overton Park.[68] The measure had some initial enthusiasm, but the Memphis news media blasted the idea and scared off its supporters, who feared for their political careers.[69]

CPOP leaders recognized that federal legislation, executive decision making, and bureaucratic policies and producers of federal highway agencies often determined state and local highway outcomes, so the organization embarked on a letter-writing campaign.[70] The letter-writing campaign persisted into the 1970s and focused on key federal highway officials, congress people, senators, and presidents.[71] CPOP leaders became familiar with decision makers in the Bureau of Public Roads, the Federal Highway Administration, and the Department of Transportation, and they even travelled to Washington DC to make the case for Overton Park in person.[72] They appealed state and federal highway decisions, requested new hearings or additional reviews, promoted alternative routes, and offered new corridor and design features.[73] Virtually all of the top federal highway leaders from 1964 into the 1970s visited Memphis to inspect the Overton Park road corridor and confer with city and state officials.

CPOP also connected with citizen groups in other cities that were fighting state and federal highway officials.[74] They compared notes, discussed various opposition strategies, shared successful legal options, and compared ways of cooperating politically in the highway fight.[75] CPOP leaders found new allies for saving Overton Park in environmental groups like the Sierra Club, the National Audubon Society, and more. These groups later contributed financially to CPOP’s litigation against the Overton Park expressway and joined the lawsuit.[76]

CPOP leaders exhausted their administrative appeals and other delaying tactics and sought a lawyer to take their case to the courts. In November 1969, the Secretary of Transportation John Volpe gave federal approval for the project, including routing through the park. Volpe’s announcement was not accompanied by factual findings or any other indications why the Secretary believed there were no feasible and prudent alternate routes or that design changes could not be made to reduce harm to the park.[77] CPOP, private citizens, and local and national conservation organizations brought suit seeking a construction halt, arguing that feasible and prudent alternatives did exist.[78] CPOP based their legal strategy on a provision of the Department of Transportation Act of 1966, which prohibited the Secretary of Transportation from authorizing the use of federal funds for highways through public parks of federal, state, or local significance “only where there was no feasible and prudent alternative and all possible planning was employed to preserve the parkland.”[79] This provision temporarily prevented distribution of federal funds for the section of the highway designated to go through Overton Park; however, federal funding was available to the remainder of the project and the state acquired a right-of-way on both sides of the park.[80] After their requests for a preliminary injunction were denied by the district court and the court of appeals because what was “feasible and prudent” was a determination left to agency discretion, they sought and received Supreme Court review.[81]

The United States Supreme Court granted certiorari and focused its study on the scope of judicial review that would be allowable by judicial bodies regarding the authority granted to the Secretary of Transportation. The Court held that Volpe’s actions were subject to judicial review and interpreted the federal statutes as providing that parklands had to be spared from highway construction in all “but the most unique situations.”[82] The Court reversed the lower courts’ holdings, remanding the action to the District Court for a more thorough review of the Secretary of Transportation’s decision. While additional hearings followed the Supreme Court’s holding, Secretary Volpe eventually reversed his initial plans, finding that there were feasible alternative routes for the stretch of I-40 through Memphis.[83] Despite the Supreme Court’s defense of public parkland and Volpe’s shutdown decision in 1973, the legal dispute over Overton Park continued until 1981, when the Tennessee Department of Transportation requested that the Overton Park expressway funding be transferred to other transportation needs in Memphis.[84] The highway was re-routed and Overton Park was saved from development.

B. A Not-So-Successful Story: Nashville I-40 Steering Committee v. Ellington

The Overton Park case study illustrates the ideal public participation scenario, where participants were able to successfully lobby local, state, and federal government, change plans for a highway development project, and prevent their community from being destroyed. However, opposition against construction of the same freeway in Nashville, Tennessee failed because the Black community it threatened to destroy was deceived by highway planners and excluded from providing input on the project. Despite public participation requirements established by state and federal transportation agencies[85], these two cases show starkly different outcomes for the two groups. One, predominately white-led, protecting an environmental interest and the other, Black-led, protecting a Black community.

In Nashville, Tennessee the freeway revolt came late and did not last long.[86] The I-40 Steering Committee, North Nashville’s first cohesive effort to fight the planned expressway, formally organized in October 1967, and their fight was over by December of the same year.[87] The I-40 Steering Committee started to organize when the state of Tennessee began acquiring property in North Nashville.[88] They learned of the state’s plan to construct a 2.5-mile expressway that cut directly through the Black business district with 128 Black-owned businesses, 620 Black owned-homes, twenty-seven apartment houses, and six Black churches.[89] It threatened to dead-end fifty local streets, disrupt traffic flow, and bring noise and air pollution to the community.[90]

I-40 Steering Committee leaders believed that white racism dictated the location of the expressway, so they took political action to try and stop the highway construction. First, they met with the Nashville Mayor, who took a hands-off approach to the expressway. I-40 Steering Committee leaders also met with state highway officials and sent telegrams to the Tennessee Governor and key federal highway officials, emphasizing the damaging impact of the interstate on the Black community and urging a ninety-day delay in initiating highway construction so other alternatives could be studied.[91] Like CPOP, I-40 Steering Committee leaders traveled to Washington, DC and met with officials in the Federal Highway Administration and the Bureau of Public Roads. They even contracted with a city planner to develop a new alternative expressway route and proposed it to the DOT Secretary within one month. However, the DOT Secretary never seriously considered the plan.

Anticipating this result, the I-40 Steering Committee hired an attorney and filed suit in the US District Court in Nashville requesting an injunction to temporarily stop the road builders. The suit rested on two major issues. First, they argued that the 1957 public hearing on I-40 expressway plans did not meet legal requirements since public notification was inadequate, the date of the hearing was erroneous, and the transcript of the tape-recorded hearing was incomplete.[92] Black residents were also never informed about the hearing or the planned route, so they never had an opportunity to speak on the record to challenge the state’s plans or defend their neighborhood.[93] Second, they argued that the routing of the North Nashville expressway was racially discriminatory on the grounds of the race, color, and socio-economic conditions of the plaintiffs.[94] Despite expressway opponents’ strong case, the judge denied the request for an injunction because the public hearing met the basic public requirements and plaintiffs had not proven a deliberate purpose to discriminate against the residents of North Nashville on the basis of race or socioeconomic condition.[95] The I-40 Steering Committee appeal was denied by the Sixth District Court of Appeals on December 18, 1967 and ten days later the U.S. Supreme Court refused to hear the case.[96] Within hours of the Supreme Court decision, the Tennessee road department unleashed its bulldozers.[97]

C. Key Takeaways from Memphis and Nashville

Timing was a significant factor in the success or failure of a freeway revolt, and persistent citizen activism over the long term made a real difference. The state’s expressway plans and the first public hearings for Memphis and Nashville were both developed at the same time.[98] However, in the Overton Park case, early citizen opposition was a key to success. Citizen opposition began early in Memphis, with a large public turnout at the first public hearing in 1957, and activism continued for decades following. In Nashville, the freeway revolt came much later because the state road department deceptively kept route details from the community.

Timing was also important because the Nashville freeway revolt was short and basically ended by December 1967. In Memphis, however, freeway opponents successfully delayed, appealed, and postponed from 1964 to 1969. By doing so, they were able to take advantage of new federal legislation that required two public hearings and protected parks and historic districts. The I-40 Steering Committee’s decision to make racial discrimination a foundation of its case might have had more success a few years later, but there were still no legal prohibitions against routing highways through residential neighborhoods. Additionally, CPOP in Memphis benefitted from its wide-ranging connections with freeway fighters in other cities, whereas Nashville’s I-40 Steering Committee operated in isolation.[99] The I-40 Steering Committee was reluctant to work with more militant Black groups in the city to their detriment, because this undermined the potential power of the Nashville freeway revolt. Had they linked their cause with these groups, they could have capitalized on the Black power movement that had become dominant in American cities in the late 1960s.[100]

D. Public Participation in the Future and Freeway Expansion in Portland, Oregon

Since planning for highway development projects began in the early 1950s, public participation efforts in transportation have evolved from an early period of stark injustice to include some promising outcomes aimed at inclusivity.[101] The profound shortcomings of early efforts were on display during the construction of the interstate highway system, when requirements for public participation were limited to a single hearing in which state department of transportation representatives announced a highway had been sited and construction was planned.[102] In 1969, after widespread negative reactions to this policy, the requirements were increased to two hearings.[103] However, the damage was already done to low-income and communities of color as highways were built through their communities, causing displacement and community fragmentation.

Today, the transportation planning process is required to occur in consultation with affected communities, with opportunities for meaningful, early, and frequent involvement of the public and disadvantaged populations.[104] Meaningful involvement is a process that seeks to provide the opportunity for individuals to change the outcome of a particular course of events or projects, instead of the historic model of a simple one-way flow of information from the agencies to the public.[105] There have been some promising practices in meaningful involvement, where freeway teardowns or reconstructions involve robust public engagement efforts.[106] For example, the I-5 expansion project in Portland, Oregon illustrates how robust public engagement efforts against a freeway project can surface alternatives that would otherwise not be considered and could lead to an improved plan, better project performance, and superior outcomes for the community the freeway destroyed in the 1950s.

The Oregon Department of Transportation’s (ODOT) plan to add lanes to the I-5 freeway through a historically Black neighborhood has been the focus of intense public opposition for much of the past few years. The freeway opposition movement mirrors the successes from Overton Park in the way that many community groups are coming together around the shared interest of preventing freeway expansion. Groups opposing freeway expansion include No More Freeways PDX, the neighborhood group Albina Vision Trust, climate activist groups, and Portland Public Schools.[107] Additionally, like the successful Overton Park case study, the freeway opposition movement in Portland has gained support from state and local politicians, including the Portland Transportation Commissioner, the Portland Mayor, Oregon Speaker of the House, the Metro Council President, and the Multnomah County Commissioner.[108] Oregon Governor Kate Brown has also expressed concern for the project and requested that ODOT delay the project. These individuals have come together and successfully delayed the I-5 expansion in their demands for ODOT to conduct a comprehensive environmental assessment, even though the project is moving forward without an Environmental Impact Statement (EIS). As illustrated in Memphis, it is important that the project has captured the attention of a diverse group of stakeholders, which was a key to success in preventing highway development at Overton Park.

Overton Park freeway opposition was also successful because it capitalized on the environmental movement of the 1970s, fitting in with the current events and major US policy shifts. The Black Lives Matter movement could lead to important successes for the Portland freeway opposition movement. Since the murder of George Floyd in May 2020, the Black Lives Matter Movement has captured the attention of most Americans, and especially in Portland, where there have been nightly protests demanding justice and equality. During this time, Portlanders are learning more about how the Black community was divided by freeway development, urban renewal, and gentrification. There is no better time for ODOT, city, and state officials to listen to the ideas and input of Albina Vision Trust to rebuild the historically Black Albina neighborhood.

Governor Kate Brown encouraged ODOT to work with community stakeholders to discuss mitigation solutions that would reduce adverse effects of the I-5 freeway expansion and diffuse opposition to the freeway project. Stakeholders include representatives from Albina Vision Trust, officials from Metro, and the City of Portland. Albina Vision Trust is interested in robust freeway caps that could accommodate new development and better connect neighborhoods on both sides of I-5.[109] Planning for highway caps to reconnect the Albina neighborhood is a positive impact stemming from public participation and community opposition to the I-5 expansion project. Even though the law does not address the siting of I-5 through the Albina neighborhood and is not designed to fix any of the decades of damage done to communities by this project, the DOT requirement to implement mitigation measures could lead to a positive outcome in the Albina neighborhood.

Lastly, the FWHA’s environmental justice policy proved to be an ineffective tool for Portland’s freeway opposition movement. In compliance with the FWHA EJ Order, ODOT was required to develop and submit an environmental justice technical report. The EJ technical report assessed a range of environmental issues to determine the potential for disproportionate adverse effects on EJ populations, studying air quality, hazardous materials, land use, noise, socioeconomics, and more.[110] Despite this extensive reporting, the project only found one adverse impact to environmental justice communities regarding access to bus routes, even though many environmental groups argue that highway expansion will create more air pollution and health impacts for people living close to the highway. Under the current environmental justice regulatory framework, simply creating the report is sufficient for compliance.

IV. CONCLUSION

Title VI, EO 12898, DOT EJ Order, and the FHWA EJ order are important symbolically for environmental justice communities but often leave these communities with no real opportunity to prevent highway development. Based on a review of adjudicated highway cases, public participation can be a meaningful tool for communities to stop or improve outcomes of highway development projects. The successful freeway opposition movement at Overton Park teaches that early and persistent community involvement will have the most impact, but today, the damage to many communities has already been done. Since Overton Park, public participation strategies have improved as a result of environmental justice efforts at the executive level and in federal agencies responsible for highway development and construction. But these efforts do not ensure that community input will always be taken into account.

The biggest criticism of environmental justice policies is that because most policies are legally unenforceable, the policies are ineffective tools for communities to use in combating highway development projects. The Biden Administration has policy initiatives that mark a promising path forward. First, Joe Biden has promised to implement Senator Cory Booker’s Environmental Justice Act of 2019 to the greatest extent possible by executive action.[111] Joe Biden has also promised to hold federal agencies accountable for Title VI enforcement, including reinstating a private right of action to sue under Title VI by overruling Alexander v. Sandoval.[112] The Black Lives Matter movement and nationwide calls for racial justice have caught the attention of the incoming president. With Biden’s policy changes, hopefully freeway opposition groups will have more effective tools available to prevent more highway development in their neighborhoods, even though the laws do nothing to rectify the injustices of highways being built there in the first place.

 

Endnotes

[1] Joseph F. DiMento, Stent or (Dagger?) in the Heart of Town: Urban Freeways in Syracuse, 1944-1967, Journal of Planning History, Vol. 8, No. 2, 133, 136 (2009).

[2] Id.

[3] Id.

[4] Federal-Aid Highway Act of 1956, Pub. L. No. 627, 84th Cong., 2nd sess. (June 29, 1956), 109.

[5] Richard F. Weingroff, The Genie in the Bottle: The Interstate System and Urban Problems, 1939-1957, Public Roads, Vol. 64, No. 2 (2000).

[6] Susan Fainstein, Restructuring the City: The Political Economy of Urban Redevelopment (1983).

[7] Peter L. Strauss, Citizens to Preserve Overton Park v. Volpe, Administrative Law Stories, Peter L. Strauss, Ed., Foundation Press, 2006.

[8] Richard Ezike, et al. Defining “Communities of Concern” in Transportation Planning: A Review of How Planners Identify Underserved Communities, Urban Institute (August 2020), available at: https://www.urban.org/sites/default/files/publication/102746/defining-communities-of-concern-in-transportation-planning_1.pdf.

[9] Raymond A. Mohl, The Interstates and the Cities: Highways, Housing, and the Freeway Revolt, Poverty & Race Research Action Council Civil Rights Research (2002), available at https://www.prrac.org/pdf/mohl.pdf [hereinafter Interstates and the Cities].

[10] Id.

[11] Raymond A. Mohl, Citizen Activism and Freeway Revolts in Memphis and Nashville: The Road to Litigation, Journal of Urban History, 40(5), 870, 873 (2014) [hereinafter Citizen Activism].

[12] Mohl, Interstates and the Cities, supra, note 9.

[13] Id.

[14] Id.

[15] Id.

[16] David Karas, Highway to Inequity: The Disparate Impact of the Interstate Highway System on Poor and Minority Communities in American Cities, New Visions for Public Affairs, Vol. 7, 9, 13-14 (2015).

[17] Id.

[18] Thomas W. Sánchez, et. al. Moving to Equity: Addressing Inequitable Effects of Transportation Policies on Minorities, The Civil Rights Project at Harvard University (2003), available at http://www.civilrightsproject.harvard.edu. [hereinafter Moving to Equity].

[19] Miranda R. Jones, et al. Race/Ethnicity, Residential Segregation, and Exposure to Ambient Air Pollution, Am. J. Public Health, 2130, 2131 (2014).

[20] Sánchez et al., Moving to Equity, supra, note 18.

[21] US Environmental Protection Agency, How Mobile Source Pollution Affects Your Health, https://www.epa.gov/mobile-source-pollution/how-mobile-source-pollution-affects-your-health (last visited Dec. 10, 2020).

[22] Mohl, Citizen Activism, supra note 11 at 873.

[23] Christopher D. Ahlers, Race, Ethnicity, and Air Pollution: New Directions in Environmental Justice, 46 Envtl. L. 713, 720 (2016).

[24] 42 U.S.C.A. § 2000d (West).

[25] Id.

[26] Sánchez et al., Moving to Equity, supra, note 18.

[27] Id.

[28] 23 CFR Part 200, §200.9, Sánchez, Moving to Equity, supra, note 18.

[29] Sánchez et al., Moving to Equity, supra, note 18.

[30] Id.

[31] Id.

[32] Id.

[33] Exec. Order No. 12898, 59 Fed. Reg. 7629 (Feb. 11, 1994).

[34] Id.

[35] Id.

[36] US Environmental Protection Agency, Executive Order 12898 on Environmental Justice, available at https://www.epa.gov/fedfac/epa-insight-policy-paper-executive-order-12898-environmental-justice#factsheet (last visited Dec. 10, 2020)

[37] Amanda K. Franzen, The Time Is Now for Environmental Justice: Congress Must Take Action by Codifying Executive Order 12898, 17 PENN St. ENVTL. L. REV. 379, 388 (2009).

[38] 59 Fed. Reg. 7629.

[39] Franzen, supra, note 37.

[40] Id.

[41] Id.

[42] Id.

[43] Id.

[44] Brendel C. Kragt, et al. Environmental Justice: The New Normal for Transportation, Public Roads, Vol. 79, No. 5 (2016).

[45] US Department of Transportation, Environmental Justice Strategy (Nov. 15, 2016), available at https://www.transportation.gov/transportation-policy/environmental-justice/environmental-justice-strategy.

[46] Federal Highway Administration, Environmental Justice Reference Guide (Apr. 1, 2015), available at https://www.fhwa.dot.gov/environment/environmental_justice/publications/reference_guide_2015/fhwahep15035.pdf.

[47] Department of Transportation Updated Environmental Justice Order 5610.2(a), 77 FR 27534-02.

[48] Id.

[49] US DOT Environmental Justice Strategy, supra note 45.

[50] Id.

[51] Id.

[52] Kragt, supra, note 44.

[53] Id.

[54] FHWA Actions to Address Environmental Justice in Minority Populations and Low-Income Populations Order 6640.23A.

[55] Id.

[56] Id.

[57] Id.

[58] Alex Karner and Deb Niemeier, Civil Rights Guidance and Equity Analysis Methods for Regional Transportation Plans: A Critical Review of Literature and Practice, 33 Journal of Transport Geography, 126, 127 (2013).

[59] Sánchez et al., Moving to Equity, supra, note 18.

[60] Id.

[61] Strauss, supra note 7.

[62] Mohl, Citizen Activism, supra note 11 at 873.

[63] Id. at 874.

[64] Strauss, supra note 7.

[65] Mohl, Citizen Activism, supra note 11 at 874.

[66] Strauss, supra note 7.

[67] Mohl, Citizen Activism, supra note 11 at 875.

[68] Id.

[69] Id.

[70] Id.

[71] Id.

[72] Id. at 876.

[73] Id.

[74] Id.

[75] Id.

[76] Id.

[77] Strauss, supra note 7.

[78] Id.

[79] Strauss, supra note 7.

[80] Strauss, supra note 7.

[81] Id.

[82] Karas, supra note 16.

[83] Mohl, Citizen Activism, supra note 11 at 876.

[84] Id. at 877.

[85] Alex Karner, et al. From Transportation Equity to Transportation Justice: Within, Through, and Beyond the State, Journal of Planning Literature Vol. 35, No. 4 (2020) [hereinafter Transportation Equity].

[86] Mohl, Citizen Activism, supra note 11 at 882.

[87] Id.

[88] Id. at 883.

[89] Id. at 880.

[90] Id.

[91] Id. at 883.

[92] Id.

[93] Id. at 884.

[94] Id.

[95] Id.

[96] Id.

[97] Id.

[98] Id. at 886.

[99] Id.

[100] Id. at 887.

[101] Ryan Holifield et al., The Routledge Handbook of Environmental Justice, Alex Karner, et al., Transportation and Environmental Justice: History and Emerging Practice 32 (2020).

[102] Id.

[103] Id.

[104] Karner et. al, Transportation Equity, supra note 85.

[105] Id.

[106] Raymond A. Mohl, The Expressway Teardown Movement in American Cities: Rethinking Postwar Highway Policy in the Post-Interstate Era, Journal of Planning History 11(1), 90, 91 (2011).

[107] Blair Stenvick, Critics of I-5 Expansion Plan Call for More Extensive Environmental Study, Portland Mercury (Mar. 28, 2019 3:19PM), https://www.portlandmercury.com/blogtown/2019/03/28/26229966/critics-of-i-5-expansion-plan-call-for-more-extensive-environmental-study.

[108] Id.

[109] Jeff Mapes, Oregon Transportation Commission Says I-5 Expansion Doesn’t Need Full Environmental Review, OPB (Apr. 2, 2020 12:24PM), https://www.opb.org/news/article/oregon-transportation-commission-says-i-5-rose-quarter-project-doesnt-need-full-environmental-impact-statement/.

[110] Oregon Department of Transportation, Environmental Justice Technical Report (Jan. 8, 2019), available at https://www.i5rosequarter.org/wp-content/uploads/2019/02/I5RQ_Environmental-Justice-Technical-Report_010819.pdf.

[111] The Biden Plan to Secure Environmental Justice and Equitable Economic Opportunity (last visited Dec. 10, 2020), https://joebiden.com/environmental-justice-plan/#.

[112] Id.

A Crisis in the Making: Solar Waste

MAY 4, 2022   /  AARVI SINGH

 

At the COP 26 Summit in Glasgow, India had projected to cut its carbon emissions by 1 billion tonnes by 2030, reduce the carbon intensity of the nation’s economy by less than 45 percent by the end of the decade, and reach net-zero carbon emissions by 2070.[1] In order to meet these goals, India has been pushing for the increase in production of renewable energy such as solar, wind, and hydrogen energy. It should be noted that the country is on the track to meet its COP 26 obligations.[2] Every coin has two sides, however. The unintended consequences of infusing renewable energy into India’s energy production is that India’s output has a persistent problem of the waste generated from these activities. The waste created from renewable energy will not be a problem at present but would rather become a huge problem later. Most sources of renewable energy have a use-cycle of many years after which they will have to be replaced. It is at this point, at the end of the use-cycle, where there is high propensity for waste generation and with  improper disposal of such waste it would make the use of renewable energy obsolete as the aim of using renewable energy was to protect the environment. In India, as per the Ministry of Environment, Forest and Climate Change, out of the total solid waste collected, which includes e-waste, only about 20 percent is processed and about 80 percent goes to dump sites.[3] The administrative laxity coupled with legislative vacuum is a crisis in making.

In India, the solar energy generation capacity grew from 3 MW in 2009 to 31 GW as of September 2019 and is aimed to reach 100 GW by 2022.[4] But additionally, it should be noted that it is estimated that India could generate more than 34,000 tonnes of solar waste by 2030[5] and about 4.4–7.5 million tonnes of solar waste by 2050.[6] The use-cycle for a solar panel which can be used to generate solar energy is about 25–30 years.[7] This means that although at present there might not be much generation of waste, it can clearly be seen that this will become a huge problem in the future.

Solar waste is mainly generated from the Photovoltaic Modules (PV Modules). There are many different types of PV Modules used but most of them consist of crystalline silicon and other metals such as aluminium, copper, lead, arsenic, silver, etc.[8] At present, India does not have any regulation for the proper handling of solar waste. Solar waste, although generally classified as e-waste, does not fall under the scope of the E-Waste (Management) Rules, 2016.[9] Under the Hazardous and Other Wastes (Management and Transboundary Movement) Rule, the level of crystalline silicon and other elements used in the PV modules fall below the threshold level for it to be classified as “hazardous substances.”[10] Additionally, solar panels traditionally use lithium-ion batteries to store solar energy generated.[11] The Batteries (Management and Handling) Rules (2001) will also not apply as they only apply to “lead-acid batteries.”[12] In India, at current, there are no regulations or rules in place to ensure the proper disposal of solar waste.[13] This unplanned and myopic approach will have repercussions in the future.

India has been promoting the use of solar energy by enacting various schemes. For example,  the Ministry of New & Renewable Energy stated that people who install rooftop solar panels can claim benefits and subsidies from the government.[14] The scheme is known as the Grid-Connected Rooftop Solar Scheme (Phase-II) and under this scheme the Ministry is providing “40 [percent] subsidy for the first 3 kW and 20 [percent] subsidy beyond 3 kW and up to 10 kW.”[15] The creation of this scheme to promote solar energy without having appropriate legislation in place to tackle the growing issue of solar waste will only perpetuate the problem. The scheme is to enlarge the green footprints but at the same time the scheme is working in vacuum of law to address the issue that arises subsequent to large scale deployment of rooftop solar modules.

The EU has a very extensive regulatory framework for PV modules and solar waste. In the EU, the Waste Electrical and Electronic Equipment (WEEE) Directive imposes responsibility for disposal of WEEE on the producers or manufacturers.[16] These are known as Extended Producer Responsibilities (EPR) which puts the onus on producers to ensure that their products are correctly disposed.[17] The WEEE includes any electronic equipment which is used to generate electricity, i.e., it includes the PV modules found in Solar panels.[18] This means that producers in the EU have an EPR to ensure the proper disposal of the solar panels and PV modules at the end of their use-cycle.[19] Additionally, the EU has a Landfill Directive 1999/31/EC, which aims to “prevent and reduce as much as possible the negative effects on the environment, in particular on surface water, groundwater, soil, air, and human health from the landfilling of waste by introducing stringent technical requirements for waste and landfills.”[20] Many Member States in the EU have also banned dumping of untreated waste into landfills, which includes PV modules.[21] Thus, in conclusion, in the EU the producers have the responsibility to ensure that the PV modules are properly disposed of due to their EPR obligations and some Member States in the EU have ensured that untreated waste, i.e., PV modules, are not directly dumped into landfills.

In United States, at the federal level, e-waste is classified as hazardous and falls under the scope of the Resource Conversion and Recovery Act (RCRA).[22] RCRA was enacted to ensure that waste is properly handled to protect the “environment and human health.”[23] RCRA applies when there are toxic substances found in the products above the prescribed threshold.[24] It was seen that some solar panels contain lead and cadmium above prescribed thresholds, and thus, they will be deemed to be “toxic” and they must be disposed of according to RCRA.[25] RCRA requires producers of hazardous waste comply with “certain management standards to ensure the safe handling of hazardous waste” and also lays down an obligation on producers to track the waste from its “creation to its disposal.”[26]

There are some issues with these regulations such as: 1) it does not cover household waste, which means that household solar panels will be out of the scope of RCRA and can end up in landfills; and 2) some solar panels contain toxic substances, but since they are not at threshold levels, RCRA will not apply. This means that even though solar panels contain toxic substances, they will not be covered under RCRA as long as they are below the threshold.

Additionally, it should be noted that there are state-specific laws regarding e-waste. States can have regulations which are stricter than RCRA but cannot have regulations less stringent than the RCRA.[27] But it should be noted that many current state regulations on e-waste have “their own weaknesses” and are not sufficient to effectively deal with solar waste.[28]

Some states in the US have taken progressive steps to better develop their solar waste management. For example, in California, solar panels are considered as “hazardous waste” and there are regulations which aim to classify old and decommissioned solar panels as “Universal Waste.”[29] Universal Waste is defined as “a category of hazardous waste that does not pose as much of a threat to the environment and human health and is often produced by households and not industry.”[30] It should be noted that Universal Waste cannot be put with the household trash but must rather be sent to facilities where they will be recycled.[31] Another example is Washington, where Manufacturers must “pay for a take-back and recycling program.[32] In this program consumers will be allowed to send old solar panels back to the manufacturer for recycling, “all without any cost to the consumer.”[33]

One can observe that India aims to increase its green footprint but the unintended consequence of solar waste needs to be tackled in line of the prevalent laws in Europe and US. The NGT has also taken suo moto cognisance on this issue after an article released by the organisation known as Down To Earth, stated that India could generate 34,000 tonnes of solar waste by 2030.[34] The aim of this exercise was the check the veracity of this fact and in furtherance of that the NGT has set up a joint committee to give its report.[35] This is a positive step in the right direction as this report could be influential in setting up future regulations regarding solar waste.

Some recommendations that can be considered to address the problem are:

  • EPR obligations: EPR obligations extend a responsibility on manufacturers to collect and properly dispose of waste for the solar panels that they produce. India does have EPR obligations under the E-waste (Management) Rules, 2016. But as PV modules do not fall under the scope of these rules currently, there are no EPR obligations on manufacturers. EPR obligations are extended on manufacturers in the EU and India could adopt a similar approach.
  • Pay and take-back program: This is the program found in Washington, US. India could also adopt a similar program whereby manufacturers can take back decommissioned solar panels at no cost to the consumers. This will help to deal with solar waste created from households.
  • Classification of solar waste as “hazardous waste:” At present, the toxic chemicals found in solar panels are below the thresholds set out in the Hazardous and Other Wastes (Management and Transboundary Movement) Rules and thus, are not classified as hazardous waste. Although the toxic substances are found in minute quantities in each individual solar panel, when aggregated and left untreated in landfills it can cause serious harm to the environment and human Solar waste should be classified as hazardous waste so that it can be properly managed, processed, and recycled.

Lastly, it should be noted that solar waste is not the only source of pollution that could be generated from renewable energy sources. With regards to wind energy and the use of wind turbines, it is estimated  that in 2050, India will generate about 1.1 million tonnes of waste.[36] The wind turbines have an approximate life cycle of 30-years after which they must be replaced.[37] Different sources of renewable energy can lead to different types of pollution. There is a need for regulation of this waste to ensure proper disposal and handling. The aim of using renewable energy was to reduce pollution and the harm caused to human life caused by using fossil fuels and other non-renewable energy sources. But, if the waste generated from renewable energy sources are not handled properly, the whole aim of using renewable energy would prove to be pointless.

 

Endnotes

[1] India’s COP26 commitments to help with new green technologies: ICRA, Livemint (2022), https://www.livemint.com/industry/energy/indias-cop26-commitments-to-help-with-new-green-technologies-icra-11641385538944.html (last visited Mar. 2, 2022).

[2] India on track to achieve Paris Accord and COP 26 commitments: Yadav, Business-standard.com (2022), https://www.business-standard.com/article/economy-policy/india-on-track-to-achieve-paris-accord-and-cop-26-commitments-yadav-122011001462_1.html (last visited Mar. 3, 2022).

[3] Lok Sabha, Unstarred Question No. 4553- Generation of Waste (2019), http://www.indiaenvironmentportal.org.in/files/file/Generation%20of%20Waste.pdf (last visited Mar. 3, 2022).

[4] Managing India’s Clean Energy Waste- A Roadmap for the Solar and Storage Industry, (2019), https://www.ceew.in/sites/default/files/AT%20-%20TERI-Cover_Story_Pages%20from%20EF_Oct-Dec%202019_Spread-2.pdf (last visited Mar. 3, 2022).

[5]Jasleen Bhatti & Swati Sharma, Time’s running out: Is India ready to handle 34,600 tonnes of solar waste by 2030? Downtoearth.org.in (2022), https://www.downtoearth.org.in/blog/waste/time-s-running-out-is-india-ready-to-handle-34-600-tonnes-of-solar-waste-by-2030–81104#:~:text=India%20does%20not%20have%20a,fold%20by%20the%20next%20decade (last visited Mar. 3, 2022).

[6] International Renewable Energy Agency, End of Life Management: Solar Photovoltaic Panels, (2022), https://www.irena.org/-/media/Files/IRENA/Agency/Publication/2016/IRENA_IEAPVPS_End-of-Life_Solar_PV_Panels_2016.pdf (last visited Mar. 3, 2022).

[7] Supra note 4.

[8] PV Waste Management In India: Comparative Analyses of State of Play & Recommendations, https://nsefi.in/assets/press_releases/pvwaster.pdf (2022).

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] PTI, Households free to install rooftop solar by any vendor under govt scheme: MNRE, The Economic Times (2022), https://economictimes.indiatimes.com/industry/renewables/households-free-to-install-rooftop-solar-by-any-vendor-under-govt-scheme-mnre/articleshow/89036067.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst (last visited Mar. 3, 2022).

[15] MNRE issues advisory for the general public on rooftop solar scheme, Pib.gov.in (2021), https://pib.gov.in/Pressreleaseshare.aspx?PRID=1779707 (last visited Mar. 3, 2022).

[16] Supra note 8.

[17] Id.

[18] Id.

[19] Supra note 8.

[20] Id.

[21] Id.

[22] Meghan McElligott, A Framework for Responsible Solar Panel Waste Management in the United States, 5 ONE J 475 (2020).

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Supra note 8.

[31] Id.

[32] Id.

[33] Id.

[34] NGT, Application is registered as Suo Motu Case based on an article published in Down to Earth Magazine, Original Application No. 112/2022, available at https://images.assettype.com/barandbench/2022-02/d7a0b5c9-8f96-48fe-9538-814703858100/NGT___on_its_own_motion___order_dated_Feb_14.pdf.

[35] Id.

[36] Amit Kumar & Mahesh K. Jat, Wind energy in India – Waste generation and end-of-life management for sustainability (2021), https://www.researchgate.net/publication/354021380_Wind_energy_in_India_-_Waste_generation_and_end-of-life_management_for_sustainability (last visited Mar. 3, 2022).

[37] Id.

 

energy climate change electrify

Energy & Climate Change Conference 2022 Materials

Slides

 

Federal Resources

 

State Resources

 

Local Resources

Book Review – Our Common Ground: A History of America’s Public Land by John D. Leshy

MAY 3, 2022   /  CHARLES WILKINSON

 

From the beginning, and continuing today, the federal public lands have played important roles in American history.  Now the United States owns more than 600 million acres, about 30% of all land in the country.  These public forests, mountain ranges, mineral deposits, wetlands, deserts, and shorelines hold economic opportunities and also give us many landscapes that western historian and author Wallace Stegner described as “filling up the eye and overflowing the soul.”

The public lands have inspired valuable history and literature from writers such as John Muir, Aldo Leopold, Bernard DeVoto, and Terry Tempest Williams.  The works to date have addressed specific subjects—events, people, policies like multiple use and wilderness, and systems such as national parks and forests.  Learning about this large and fascinating institution as a whole will make it easier to understand its place in modern America, its pros and cons, and, for example, to comprehend how, in this capitalistic country, so much land is still owned by the United States.  There has never been a comprehensive book—a great book—treating public land history in a full, single narrative.

Our Common Ground meets that need and John Leshy is the right person to do it.  A Harvard Law School graduate, over the past half century he has been a leading scholar and celebrated teacher dedicated to public land history, policy, and law.  He has taken on numerous assignments for presidents, Congress, and federal agencies.  Most notably, he served as Solicitor, the top legal official in the Department of the Interior, for eight years under Secretary Bruce Babbitt.  He has always immersed himself in the history, believing that it is essential to understanding the law and policy.  I am confident that academics and public land participants would agree with me that Leshy knows more about the public lands than anyone in the country.

At 600 pages of text, this is a big book but it is a comfortable, general-audience read.  Leshy’s writing style is never legalistic or technical.  His writing is straightforward, engaging, and often humorous.  He brings in quotations from interviews and gives colorful examples of how many people, public figures and plain citizens, participated in or were affected by, historical events.  Our Common Ground puts forth some large and important issues, but Leshy doesn’t deal with them in separate chunks.  Instead, he brings them to us as chronological stories, era by era, over the course of the book.  This truly is the story of the public lands.

One of Leshy’s main objectives is to identify and dispel myths about the public lands.  They include the notions that public lands have been a divisive force in American life; that far too much land in America is held by the national government; and that current public land management tilts far too much toward conservation, recreation, science, sustainability, and cultural values.

Without doubt, those and similar sentiments do exist but Leshy believes that history shows a different pattern.  “Over many changes in administrations, public lands have played a consensus-building, unifying role in American life. . . .  In an age of skepticism about our political process, decision making about public lands demonstrates our ability as a people to work together and find genuine common good.”

 

_________________________

 

The public lands date to the 1780s, when seven original states began donating to the national government their land claims west to the Mississippi River.  The public lands quickly became a darling.  New states were carved out of them and the westward expansion began.  Rail lines facilitated by the public lands extended as far as the Pacific.  Gold, silver, and other valuable minerals extracted from public lands brought the United States into the world economy.  The Homestead Act offered free land to settlers and inspired them and their families to establish homes in a new land.

But the popularity did not last.  By the end of the Civil War, speculators and dishonest development interests were working the system to obtain millions of acres and convert them into many millions of dollars.  Mark Twain called it “the Gilded Age.”  The public was not amused by the plunder.

 

_________________________

 

Leshy singles out 1890 as the beginning of what he calls “the great transition,” which he identifies as the pivotal era in public lands history.  It began with a backlash that moved away from heavy extractive uses of public lands and toward uses that would create long-term community benefits.

In the early 1880s, a powerful movement rose up as towns, farmers, and ranchers realized that they needed pristine higher elevation public lands to assure sustainable supplies of clean water and sustained-yield timber harvests.  “People all around the West were already asking for such reservations.”  Congress responded in 1891, giving the president broad authority to set aside lands for national forests.  Individual communities then went to a receptive Washington, DC to establish national forests in their regions.

The national forest success spurred public land and water protection.  Yosemite and Yellowstone had already been created as national parks, but there was great interest in creating other “crown jewels of America.”  As with the national forests, local citizenries brought forth their favorite landscapes as candidates.  Congress named several new parks, including Mount Rainier, Crater Lake, and Mesa Verde.  Ever since, the number of national parks, and support for them, has continued to grow.

The pace of change accelerated when Theodore Roosevelt became president in 1901: “Roosevelt grasped many of the opportunities presented to him with both hands and left a huge imprint on national public land policy.”  Enjoying ardent public support, under his leadership Congress created more national parks and forests, established the first national wildlife refuges, and expanded federal management over public lands, minerals, and hydroelectric resources.

Among many other things, under Roosevelt’s urging, Congress approved the Antiquities Act, giving presidents virtually unlimited authority to protect cultural resources as national monuments.  Early on, Roosevelt joyously announced the Grand Canyon National Monument (now Grand Canyon National Park).  In these new areas of public policy, he often acted upon recommendations from scientists such as ornithologist George Bird Grinnell; archaeologist Edgar Lee Hewitt; activist Lucy Davison Peabody; and amateur ornithologist Frank Chapman.  The new activists for conservation, including John Muir, variously supported and pushed Roosevelt.

After TR left office in 1909, his conservation agenda dominated public land decisions.  New land set asides continued apace.  The Park Service and Forest Service expanded their operations with additional staff and programs.  Leshy and other historians commonly identify the Federal Water Policy Act of 1920 as marking the end of the Progressive Era and, implicitly, the “Roosevelt Era.”

Yet federal land policy continued, although less dramatically, to become ever more public.  Congress brought the public grazing lands, at 250 million acres the largest segment of public lands, under federal management.  The agencies and Congress adopted several wildlife initiatives.  During his 12 years as president, Franklin Roosevelt had “the most personal interest in the details of conservation policy of any president” save his cousin Theodore.  He issued major withdrawals prohibiting land areas from passing into private hands and purchased some 20 million acres of private land and made them public land.

In modern times, we are well aware of the environmental movement, wilderness, wild and scenic rivers, the National Environmental Policy Act, the Endangered Species Act, limits on old growth timber harvesting in national forests, and ever more expansive national forests, parks, and wildlife refuges.  As for attempts to transfer wholesale amounts of federal lands to states, industry, or individuals, Leshy reports they never have gained any genuine substantial traction.  Even James Watt, hero of the “Sagebrush Rebellion” and Secretary of the Interior for President Reagan, didn’t promote divestiture of federal land.  He only called for more control by private industry and he accomplished little of that.

 

_________________________

 

“For more than a century, the arc of public land history has bent decisively toward the national government conserving more and more lands for conservation, public education, and inspiration.”  That is a strong statement.  Many people, including experts, who read this book will at first be taken aback by the expansive nature of Leshy’s findings; in reading the book, I was at first skeptical.  The myths that Leshy identifies had become part of the woodwork.  But the more I read, I realized how powerful and accurate his fully documented assessment is.

My expectation is that Our Common Ground will open up the history, current status, and future of the public lands to discussion and debate as never before.  This masterful volume will have staying power and we can expect it to be influential and constructive for generations to come.

 

_________________________

 

Charles Wilkinson, Moses Lasky Professor of Law Emeritus at the University of Colorado, has written widely on western lands and is the author of Crossing the Next Meridian: Land, Water, and the Future of the West.

animal agriculture worker

Undocumented Animal Agriculture Workers in the United States

Apr. 11, 2022   /   Virginia Reyes

I. Introduction

Undocumented workers in animal agriculture face the highest level of environmental racism and injustice. They work in one of the most hazardous industries and belong to a vulnerable community that is Hispanic, low income, and undocumented. The legal structure that exists today through environmental and immigration law stimulates the exploitation of undocumented workers.

This paper will discuss undocumented workers in animal agriculture and focus on jobs throughout the industry. Animal agriculture is the concentrated mass production of meat, dairy, and eggs.[1] It is known as factory farming, also known as concentrated animal feeding operations (CAFO). These operations keep animals confined in small spaces with “feed, manure, urine, dead animals”[2] near both animals and workers. This paper will also discuss the heinous conditions in slaughterhouses for the workers themselves.

This paper exposes the exploitation of undocumented workers by the animal agriculture industry. Section II provides background on the National Environmental Policy Act (NEPA) and the Immigration Nationality Act (INA) legal structures affecting undocumented workers. Specifically, NEPA’s regulations mandating an Environmental Impact Statement (EIS) depicting the human impact of government actions such as operating CAFOs and INA structure for undocumented people in the United States to obtain legal status. Section III details animal agriculture’s environmental damage on the land, water, and air near animal agriculture facilities. Section IV lays out the devastating human health impacts of animal agriculture on the neighboring communities. Section V focuses on the atrocious effects undocumented workers endure in the animal agriculture industry. Section VI presents activism groups working with and providing resources for undocumented workers. Section VII displays the ineffective application of NEPA regulation on animal agriculture despite facing devastating human effects. Lastly, Section VIII illustrates INA’s inadequate avenues for undocumented workers to gain legal status in the United States. The paper concludes that the legal structures in place foster the environment that supports the exploiting undocumented workers.

 

II. Legal Structures

A. NEPA Regulation for Effects on the Human Environment

NEPA mandates the government to conduct an Environmental Impact Statement (EIS) when proposing federal action. An EIS is prepared when “a proposed major federal action is determined to significantly affect the quality of the human environment.”[3] Opening and operating a CAFO is a major federal action because it is funded and owned by the federal government. An EIS must include the following sections (1) a summary of the major conclusion, disputed issues, and the issues to be resolved, (2) purpose and need statement explaining why they are proposing the action and what they expect to achieve, (3) alternatives that can accomplish the purpose and need of the action, (4) affected environment with a description of the area to be affected and alternatives considered, (5) environmental consequences with a discussion of the effects and the significance, and (6) submitted alternatives, information and analyses from the state, tribal, and local governments for consideration during the scoping process or the final EIS.[4] The specific law that calls for an EIS and focuses on the human impact is 42 USC Code § 4332(2)(C). The law states all federal government agencies shall include a detailed statement by the responsible official that significantly affects the quality of the human environment.[5]

Agricultural corporations own the animals and control how and what the animals are fed or given antibiotics.[6] Few corporations manage most CAFOs in the United States. These corporations levy massive lobbying power in Congress to carve out enforcement gaps for CAFOs. The corporations have “worked to receive exemptions from noxious odors, greenhouse gas emissions, and solid waste discharges [and] . . . strategically favored placement and concentration of operations in states and counties where . . . environmental regulations are easily manipulated.”[7]  These lax regulations by the government have a tricking effect that allows for the exploitation of undocumented workers discussed in depth in Section V.

B. INA Path for Lawful Status for Undocumented Workers

The Immigration Nationality Act governs the legal avenues for aliens to migrate into the United States. An alien is a “person who is not a citizen or national of the United States.”[8] There is no written legal definition for an illegal alien, nor does it explain who is an undocumented migrant. An undocumented person does not possess legal documentation to enter or remain in the United States. So, undocumented workers do not possess documentation to work in the United States legally. An alien cannot obtain a stand-alone work permit. They must have an accompanying immigration application pending or approved.[9]

An alien can gain lawful status through family-based or employment-based immigration. Generally, through family-based immigration, an alien applies for Adjustment of Status or Consular Processing after submitting the Form I-130, Petition for Alien Relative.[10] They need an immediate relative petitioner such as a spouse, parent, or child over 21 or other close relatives who is a legal permanent resident or citizen of the United States.[11] Adjustment of Status allows an alien to apply within the United States and requires the alien to have entered the United States lawfully or previously petitioned before April 31, 2001.[12] An alien can apply for Consular Processing if they are outside the United States and may need a qualifying relative such as a spouse or parent who is a legal permanent resident or a citizen of the United States.[13] Employment-based immigration is very similar to the processes described above, except the employer serves as the petitioner for both Adjustment of Status and Consular Processing. The employers submit the petition Form I-140, Immigrant Petition for Alien Worker.[14] The employer will need to show proof that “there are not sufficient workers who are able, willing, qualified . . . at the place where the alien is to perform such . . . labor.”[15]

The petitions submitted for both family or employment may be subject to the visa bulletin waiting times. There are annual limits for the number of visas available for people to gain lawful status in the United States. For family-based petitions, the limit depends on the preference, country, and priority date of their petition. The type of preferences of aliens subject to the visa bulletin waiting times are unmarried children of US citizens, spouse and children of legal permanent residents, married children of US citizens, and siblings of US citizens.[16] The countries with limits are China, India, Mexico, and the Philippines.[17] The dates are updated monthly to reflect the date applications that are currently based on the priority date their Form I-130 was filed. For employment-based applications, the preference that would pertain to factory farm workers is the third for certain special immigrants. This category is for skilled workers, professionals, and other workers.[18] The countries with limits are China, El Salvador, Guatemala, Honduras, India, Mexico, the Philippines, and Vietnam.[19] The visa availability is based on the priority date on their Form I-140 petition.

The Department of States uploads new dates for the visa bulletin every month. The current family-based category with the longest wait time is siblings of US citizens from Mexico with the current date as of December 2020 at April 22, 1999.[20] This is roughly a 21-year wait for people that submit applications this year. These long wait times are a barrier for people that do not have immediate relatives to petition them to gain lawful status.

The way the system is set up benefits those who already have ties to the United States. People that are seeking to migrate to the United States for the first time have a much harder time finding a path to gaining lawful status. These barriers explain why undocumented workers remain without lawful status because the system is so restrictive on who can apply for immigration benefits.

 

III. Environmental Pollution of Animal Agriculture

A. Water Pollution

CAFOs contaminate all water sources near the facilities. The facilities are known to store and discharge agricultural wastewater and land application of untreated animal waste that pollutes all waters in the area such as rivers, streams, and groundwater.[21] CAFOs are required to get a permit through the National Pollutant Discharge Elimination System (NPDES) permit program before they can discharge into any water source.[22] The number of CAFOs that do have NPDES permits is dangerously low for some states. The states with the most significant gaps are California with 1,083 total CAFOs and only 141 permits, Iowa with 3,744 total CAFOs and only 164 permits, and North Carolina with 1,222 total CAFOs and only 14 permits.[23] The reason so many CAFOs can produce so much pollution and are not required to have an NPDES permit is because of the exception created in the Clean Water Act (CWA). “Agricultural return flows and stormwater discharge are considered non-point sources and therefore do not require NPDES permits to discharge pollutants through these avenues. This exception to the Clean Water Act extends so far as to include rainwater that contacts stored manure and subsequently flows into navigable waters.”[24] The lagoons that hold wastewater can leach and rupture after heavy rainfall in the area and contaminate all water sources.[25] All the contaminants in these lagoons are spread out throughout the area and affect the communities in the vicinity.

The land application is the spraying of liquid waste onto fields usually surpassing the field’s nutrient needs and oversaturating them together with untreated waste, pathogens can survive contaminating nearby water sources including groundwater.[26] This runoff creates phosphorus contamination which stimulates the development of algal blooms and creates anoxic conditions with high levels of ammonia in water that kills fish in rivers and streams.[27] Polluting not only the aquatic life but the human life that relies on the groundwater.

B. Land Pollution

Oversaturation pollutes the land around CAFOs. Land application oversaturates the soil with macronutrients such as nitrates and pathogens as well as ammonium, phosphate, dissolved solids, metals and metalloids, pharmaceutical chemicals, and natural and synthetic hormones.[28] The soil can no longer absorb the nutrients so they leach into groundwater. The pathogens are “are parasites, bacterium, or viruses that are capable of causing disease or infection in animals or humans”[29] This pollution on the land is intertwined with the effects it has on water and air causing human health problems.

C. Air Pollution

Waste management releases chemicals into the air that harm the environment. Particulate matter is released into the air. Particulate matter is “comprised of fecal matter, feed materials, pollen, bacteria, fungi, skin cells, silicates.”[30] Causing the air quality to plummet around CAFOs. CAFOs are responsible for 75% of the United States’ ammonia air pollution.[31] Ammonia is formed when microbes decompose undigested organic nitrogen compounds in animal manure.[32] Ammonia is a “strong respiratory irritant” that causes chemical burns to the respiratory tract, skin, and eyes”[33] The odor of ammonia pollutes the air in the areas near and downstream from CAFOs causing a pungent rotten egg smell. Air can be so polluted that workers who entered lagoons succumbed to the emissions and some died from hydrogen sulfide poisoning or asphyxiation.[34] The air pollution is so dense and concentrated it has grim effects on the health of the people near CAFOs.

 

IV. Human Health Ramifications of Animal Agriculture

The people who disproportionately suffer the burden of pollution are Black, Hispanic, and Native-American low-income communities who live near CAFOs.[35]

Environmental pollution is the direct cause of the public health crisis communities face around CAFOs. The water pollution that contaminates the groundwater directly affects the health of the communities where roughly 53% use wells as their source for drinking water.[36] Pathogens are more likely to survive in groundwater because of the lower temperature and protection from the sun.[37] Drinking contaminated water with pathogens such as salmonellosis, cryptosporidiosis, giardiasis, and e-coli causes nausea, diarrhea and bloody diarrhea, vomiting, muscle pain, fever, kidney failures, and even death.[38] The water contains antibiotics that were widely fed to the animals so when humans drink the water they can ingest disease-resistant bacteria. As a result, the bacteria is impervious to antibiotics humans would take to treat the illness and can cause death.[39] These ailments come from drinking contaminated water alone.

The air pollution by CAFOs releases ammonia, hydrogen sulfide, and particulate matter into the air of these communities which bring a whole array of additional health consequences. Ammonia is a strong irritant that “causes chemical burns to the respiratory tract, skin, and eyes” as well as severe coughing and chronic lung disease.[40] Hydrogen sulfide causes inflammation of the moist membranes such as the eyes and respiratory tract and results in olfactory neuron loss, pulmonary edema, and possibly death.[41] Particulate matter causes “Chronic bronchitis, chronic respiratory symptoms, declines in lung function, organic dust toxic syndrome.”[42]

Children and immunocompromised adults are particularly more susceptible to the health impacts of CAFOs. Infants exposed to contaminated groundwater with nitrogen can cause “blue baby syndrome.”[43] It disrupts blood flow in infants which makes them appear blue because of the lack of oxygen. Adults with weak immune systems such as those with AIDS or those who receive cancer treatment are at a higher risk of contracting an illness from bacteria present in the contaminated groundwater.[44] Children are also more likely to develop asthma because of the area’s low air quality.

 

V. Focused Harm to Undocumented Workers

A. Demographics of Factory Farmworkers

Factory farms mostly employ undocumented workers. The agricultural sector employs more than 3 million migrant and seasonal workers and 72% of them are born outside the United States.[45] Many of the workers are Hispanic with 68% from Mexico and 3% from Central America (Honduras, El Salvador, Guatemala).[46] Around 35% and 27% could not speak English at all or a little respectively.[47] Many did not complete their education with 40% finishing between 1st to 6th grade with their average income ranging from $12,500 to $14,999.[48] Recent surveys of agricultural workers do not differential between crop and animal agriculture workers so it is difficult to calculate how many are undocumented today. A survey from 2007-2009 by the National Agricultural Workers Survey found that 48% of workers do not have legal authorization to work in the United States.[49]

Undocumented workers make up almost half of the workforce so they face most of the hardships industrial animal agricultural workers suffer. Most of the information presented shows the harsh human health conditions present in CAFOs. These workers are near all the pollutants emitted from CAFOs and face the harshest health problems.

B. Intensified Exposure and Effect on Physical and Mental Health

Occupational hazards present heightened exposure for workers. CAFO workers are 30% more likely to contract occupational asthma, acute and chronic bronchitis, and organic dust toxic syndrome because of the constant exposure to harmful emissions.[50] Exposure to particulate matter causes severe health issues where farm workers can develop acute and chronic bronchitis, chronic obstructive airways disease, and interstitial lung disease.[51]

For slaughterhouse workers, the effects are also psychological. Workers must disconnect from what they are doing to largely gentle creatures and perform their job duties. The “emotional dissonance . . . [leads] to consequences such as domestic violence, social withdrawal, anxiety, drug and alcohol abuse, and PTSD.”[52] The following study found Latino migrant workers had a significant association with alcohol dependence because of high levels of stress due to their “legality and logistics, mobile lifestyle, social isolation, and work conditions.”[53]

The intersectional identities of these workers create unhealthy living conditions. They are Hispanic, undocumented, low-income, uneducated, and lastly do not speak English. In the environmental justice context, they are the most vulnerable and susceptible to environmental racism. Being in a country that marginalizes and ignores them has disastrous outcomes. These workers are more likely to get sick but will likely not have the money to get treatment.

C. Worker Exploitation

Meatpacking corporations are likely to employ undocumented workers although the statistics are unclear. The majority of the workers obtain employment in these facilities because of friends and family recommendations.[54] Employers abuse their discretion for “at-will” employment and intimidate workers by reminding them they are replaceable.[55] These workers accept the hazardous and demeaning conditions because they are less likely to contest mistreatment or exercise their legal rights.[56]

Undocumented workers are the most vulnerable to exploitation because of their legal status, economic need, and language barrier. Workers do not feel they have the power to voice any concerns because of their legal status. This burden and almost shame they carry enables the employers to get away with exploitation since the workers will keep the complaints to themselves. They have a misconception that they need to have lawful status to have legal rights. These workers are mostly low-income with very little education. They do not feel as though they have options to find stable jobs so they do what they can to keep their jobs. One of the biggest challenges is the language barrier. Most workers speak Spanish so they cannot even verbally communicate their concerns to their employer. Considering the employers use tactics to intimate the workers it is not likely that they will take the time to find an interpreter or use their own resources to communicate with the workers. Even if the workers keep their heads down and do their work they can still be fired because the industry has such a high turnover rate. Undocumented workers are left to the discretion and will of their employers.

D. Working Conditions

Working conditions in meatpacking plants and slaughterhouses are deplorable. Workers are exposed to high noise levels, dangerous equipment, slippery floors, musculoskeletal disorders, hazardous chemicals such as ammonia.[57] Workers are also exposed to biological hazards while working with living animals such as feces and blood that increase their risk to contract a disease.[58] They work one of the most dangerous jobs where they must work on “slippery floors, perform repetitive motions for long hours, wield sharp knives and industrial saws, and process hundreds, if not thousands, of animals each day.”[59]

They are closely exposed to the pollutants in every step of industrial animal agriculture from the CAFOs to the meat packaging. The working conditions are especially horrid because they are repeatedly exposed to the chemicals in CAFOs from the wastewaters and feces of the animal they tend. In slaughterhouses, they are doused with more biological hazards when they cut open the animals. In meatpacking plants, they are constantly inhaling ammonia and have to meet high line speed. In every part of animal agriculture, these workers are exposed to harmful pollutants.

E. Workplace Injuries

Undocumented workers are more likely to under-report their work injuries. These workers are excepted to process thousands of animals per day. The past administration proposed a rule to increase line speeds during the COVID-19 pandemic. The production proposed to increase the line speed of birds from 140 birds per minute to 175 birds per minute.[60] The increase in production without a corresponding increase in workers will likely result in more injuries. Reports show that 65% of meatpacking workers have been injured on the job but Occupational Safety and Health Administration (OSHA) believes these numbers are underreported because undocumented workers are too fearful of retaliation to report an injury.[61] In recent years, undocumented workers have delivered astonishing numbers in animal agriculture production. In 2018, poultry meat production was approximately 9.3 billion pounds.[62] Last year, red meat production was approximately 4.57 billion pounds.[63] These workers are performing their duties despite the rampant risk of injuries. Workers will keep their injuries to themselves as long as they keep their employment.

The injuries undocumented workers suffer are gruesome and debilitating. Their fear keeps them from reporting their injury and they have to suffer the consequences alone. Since they are less likely to have health insurance they often do not treat their injuries if a hospital is not necessary. An increase in line speed will likely increase their demand and out of fear of retaliation they will do their work without complaining to their supervisors.

F. ICE and Undocumented Workers

Undocumented workers fear removal and employers use that information to threaten workers with reporting them to Immigration and Customs Enforcement (ICE). On August 7, 2019, the past administration ordered a sweep of immigration raids in a Mississippi chicken plant where 680 Hispanic workers were arrested.[64] The administration framed it as the partial fulfillment of their vow to remove millions of undocumented workers from the country.[65]

Xenophobia toward the Hispanic immigrant community demonstrated how the laws benefit those in power and keep undocumented workers marginalized. ICE is a federal agency under the control of the executive branch. The president and those in charge of the agency can enforce these raids to instill fear and deter the immigrant communities. Employers in plants constantly played with undocumented workers’ job security and replaced the workforce with African Americans after the raid.[66] The fear that ICE injects in undocumented workers revealed

 

VI. Advocacy for Undocumented Workers

Farm Worker Justice is a non-profit organization working to help advance the rights of migrant farmworkers. They help workers with their “immigration status, health, occupational safety, and access to justice.”[67] They work in Washington, CA where they can influence policy change directly and nationwide. Undocumented workers face more challenges than lawful migrant workers with work authorization or visas. This organization does the work to help all migrant workers in places where it will have a significant impact. They work with administrative agencies to improve labor protection laws, in courts where they help give a voice to a marginalized community, and in the public eye to educate about farmworker issues.[68] During the previous administration, there was a very prevalent xenophobic agenda against undocumented people in the United States. This organization is serving this community through policy change, legal access to justice, and positive public perception.

 

VII. Ineffective Application of NEPA regulation

NEPA’s ineffective application of its regulation to monitor the human health conditions at CAFOs has a catastrophic effect on undocumented workers. Because CAFOs produce massive numbers of animals they are creating the need for more workers down the processing chain of animal agriculture. The human health impacts are evident with CAFOs alone and increase to dangerous levels for undocumented workers that work to produce the final products such as meat, dairy, and eggs. NEPA needs to implement the EIS requirement and limited the operation and opening of new CAFOs. That could start to be a trickling effect that reduces the exploitation of undocumented workers.  Reducing the amount of CAFOs would make a positive change in the industry to begin improving the environment and decrease human health effects.

 

VIII. Restrictive INA Regulations

There is not much data on how undocumented workers enter the United States. The INA applies differently depending on the set of conditions of each application presented before the United States Citizenship and Immigration Services (USCIS). Undocumented workers need to have relatives with status go through family-based immigration. For workers who are migrating to the United States for the first time do not have family ties in the United States. They can have a child in the United States and wait for the child to turn 21 to submit a petition but they still have to meet the qualifications to adjust their status. The workers would need to enter the United States legally with a visa but there is not much data on how they are entering the United States. These workers do not have the alternative route of applying based on a previous petition because they have no ties to the United States.

An undocumented worker cannot seek Consular Processing if they are applying through their child because they need a qualifying relative. They must have a spouse or a parent with lawful status and in the scenario described above t is not possible.

If they have other preferences of relatives laid out in Section II, B they may be subject to wait times. Considering a large portion of undocumented workers in animal agriculture are from Mexico they would be subject to the visa bulletin waiting times. They would not have an immediate path to lawful status.

Undocumented workers can also adjust their status through their employer but the same restrictions would apply here. They would need to enter the United States lawfully to qualify for Adjustment of Status. They would still need a qualifying relative to do Consular Processing if they have certain inadmissibilities.

INA’s specific requirements ultimately bar or restrict undocumented workers from obtaining lawful status. They cannot apply for a work permit unless they have an application pending. The initial petition for family-based or employment-based immigration does not grant them the right to apply for a work permit because it only establishes a relationship and not an immigration benefit. It is after the petition is granted and they have a visa available can they apply for Adjustment of Status and concurrently apply for a work permit while it is pending. For Consular Processing cases, they would not qualify for a work permit because they apply for this benefit outside the United States.

 

IX. Conclusion

Undocumented workers in animal agriculture are used and forgotten by the legal structures set in place. CAFOs enjoy the enforcement gaps from NEPA regulations that allow them to pollute the environment. Their waste management is lax which present serious health complications for the communities around these facilities. The undocumented workers interact with harmful pollutants at a closer range and risk more serious illnesses. They stay in these hazardous conditions whether it be CAFOs, slaughterhouses, or meat packaging plants because their lawful status causes their compliance and silence. The pathways to adjust status in the United States are filled with roadblocks and only allow for certain people to apply. Undocumented immigrants who do not know immigration law cannot navigate it on their own. They cannot easily gain lawful status in the United States so they stay hidden away in the margins. NEPA needs to comply with its own regulations and implement them to bring environmental justice to the communities and the undocumented workers. INA needs reform to allow more people to adjust their status and come out from the shadows of society. Undocumented workers help feed the United States and it is time we thank them.

 

Endnotes

[1] Environmental Racism, Food Empowerment Project, https://foodispower.org/environmental-and-global/environmental-racism/ (last visited Nov. 12, 2020).

[2] Animal Feeding Operations, USDA, https://www.nrcs.usda.gov/wps/portal/nrcs/main/national/plantsanimals/livestock/afo/ (last visited Nov. 20, 2020).

[3] National Environmental Policy Act Review Process, EPA (2020), https://www.epa.gov/nepa/national-environmental-policy-act-review-process#EIS (last visited Nov. 20, 2020).

[4] Id.

[5] Nat’l Envtl. Policy Act, 42 U.S.C. § 4332(2)(C).

[6] Symposium, Keeping It Fresh?: Exploring The Relationship Between Food Laws And Their Impact On Public Health And Safety: Article: “Yes, In Your Backyard!” Model Legislative Efforts To Prevent Communities From Excluding Cafos, 5 Wake Forest J. L. & Pol’y 147, 151 (2015).

[7] Daniel Imhoff et al., Myth: CAFOs Are Farms, Not Factories, CAFO The Tragedy of Industrial Animal Factories, http://www.cafothebook.org/thebook_myths_4.htm (last visited Nov. 23, 2020).

[8] 8 U.S.C. § 1101(a)(3).

[9] Employment Authorization Document, USCIS (2018), https://www.uscis.gov/green-card/green-card-processes-and-procedures/employment-authorization-document (last visited Nov. 20, 2020).

[10] Green Card for Family Preference Immigrants, USCIS (2020), https://www.uscis.gov/green-card/green-card-eligibility/green-card-for-family-preference-immigrants (last visited Nov. 20, 2020).

[11] 8 U.S.C. § 1151(b)(2)(A)(i).

[12] 8 C.F.R. § 245.

[13] Consular Processing, USCIS (2018), https://www.uscis.gov/green-card/green-card-processes-and-procedures/consular-processing (last visited Nov. 20, 2020).

[14] Green Card for Employment-Based Immigrants, USCIS, (2020), https://www.uscis.gov/green-card/green-card-eligibility/green-card-for-employment-based-immigrants (last visited Nov. 20, 2020).

[15] 8 U.S.C. § 1182 (5)(A)(i).

[16] Dep’t of State, Visa Bulletin for December 2020, Travel.state.gov (2020), https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2021/visa-bulletin-for-december-2020.html (last visited Nov. 20, 2020).

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Symposium, supra, at 152.

[22] Clean Water Act, 33 U.S.C. § 1342 (2012).

[23] Envtl. Prot. Agency, NPDES CAFO Permitting Status Report: National Summary, Endyear 2019, completed 07/20/20 (2020), https://www.epa.gov/sites/production/files/2020-08/documents/cafo_status_report_2019.pdf.

[24] Adam S. Carlesco, Hiding the Ball: The Sidestepping of National Pollution Discharge Elimination System Permitting Requirements by Concentrated Animal Feeding Operations, 5 J. Animal & Envtl. L. 43, 48 (2014).

[25]  Symposium, supra, at 152.

[26] Id.

[27] Id.

[28] Christine Ball-Blakely, CAFOs: Plaguing North Carolina Communities Of Color, 18 Sustainable Dev. L. & Pol’y 4, 5 (2017).

[29] Carrie Hribar, Understanding Concentrated Animal Feeding Operations And Their Impact On Communities, 8 (2010), https://www.cdc.gov/nceh/ehs/docs/understanding_cafos_nalboh.pdf.

[30] Id. at 6.

[31] CAFOs Ordered to Report Hazardous Pollution, Waterkeeper Alliance (2017), http://waterkeeper.org/cafos-ordered-to-report-hazardous-pollution/.

[32] CAFO Subcomm. Of The Mich. Dep’t Of Envtl. And Toxics Steering Grp., Concentrated Animal Feedlot Operations (Cafos) Chemicals Associated With Air Emissions 1, 8 (2006), https://www.michigan.gov/documents/CAFOs-Chemicals_Associated_with_Air_Emissions_5-10-06_158862_7.pdf.

[33] Id. at 4.

[34] Ball-Blakely, supra, at 6.

[35] Id. at 5.

[36] Hribar, supra, at 3.

[37] Id. at 4.

[38] Id. at 10.

[39] Id.

[40] CAFO Subcomm., supra, at 4.

[41] Id. at 6.

[42] Hribar, supra, at 6.

[43] Envtl. Prot. Agency, Drinking Water From Household Wells, 1, 5 (2002), https://nepis.epa.gov/Exe/ZyPDF.cgi/200024OD.PDF?Dockey=200024OD.PDF

[44] Id.

[45] Nat’l Center for Farmworker Health, Inc., Demographics, (2012) http://www.ncfh.org/uploads/3/8/6/8/38685499/fs-facts_about_farmworkers.pdf (last visited Nov. 12, 2020)

[46] Id.

[47] Id.

[48] Id.

[49] Daniel Carroll et al., Changing Characteristics of U.S. Farm Workers: 21 Years of Findings from the National Agricultural Workers Survey, U.S. Dep’t of Labor, 14 (2011).

https://migrationfiles.ucdavis.edu/uploads/cf/files/2011-may/carroll-changing-characteristics.pdf

[50] Leo Horrigan et al., How Sustainable Agriculture Can Address the Environmental and Human Health Harms of Industrial Agriculture, 110 Environmental Health Perspectives 445–456, 451 (2002), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1240832/pdf/ehp0110-000445.pdf.

[51] Hribar, supra, at 6.

[52] The Psychological Damage of Slaughterhouse Work, PTSDJournal (2016), https://www.ptsdjournal.com/posts/the-psychological-damage-of-slaughterhouse-work/ (last visited Nov 25, 2020).

[53] Thomas A. Arcury et al., Alcohol Consumption and Risk for Dependence Among Male Latino Migrant Farmworkers Compared to Latino Nonfarmworkers in North Carolina. 40 Alcoholism, clinical and experimental research, 2 (2016).

[54] Nat’l Center, supra.

[55] Slaughterhouse Workers, Food Empowerment Project, https://foodispower.org/slaughterhouse-workers/ (last visited Nov. 25, 2020).

[56] Slaughterhouse Labor, Food & Power, https://www.foodandpower.net/slaughterhouse-labor#:~:text=Today%2C%20more%20than%20500%2C000%20people,people%20of%20color%20and%20immigrants. (last visited Nov. 25, 2020).

[57] U.S. Dep’t Of Labor, Meatpacking – Overview, Occupational Safety And Health Administration, https://www.osha.gov/meatpacking (last visited Nov. 25, 2020).

[58] Id.

[59] Food & Power, supra.

[60] Id.

[61] Id.

[62] National Agricultural Statistics Service, Poultry Slaughter 2018 Summary (2018).

[63] National Agricultural Statistics Service, Livestock Slaughter (2019).

[64] Richard Fausset, After ICE Raids, a Reckoning in Mississippi’s Chicken Country, The New York Times (2019), https://www.nytimes.com/2019/12/28/us/mississippi-ice-raids-poultry-plants.html (last visited Nov 12, 2020).

[65] Id.

[66] Id.

[67] About Farmworker Justice, Farmworker Justice, https://www.farmworkerjustice.org/about-farmworker-justice/ (last visited Nov 12, 2020).

[68] Id.

 

CERCLA, MTCA, Puget Sound, Sediment, Superfund, environmental contamination

2022 Contaminated Sediments Conference Materials

Laura Shira – Bradford Island NPL Update & Health Risks

 

Beth Appert – Lower Willamette River Fish Consumption Outreach and Engagement

 

Commissioner Amy Schlusser – Slides

 

Jim Woolford – Managing Risks and Moving Forward

 

Andrew Timmis – Slides

 

Rob Webb – Portland Harbor Superfund Site: Remedial Action Implementation, Technical Issue – Dredging & Disposal

 

Bridgette Deshields – What Does the Portland Harbor Project Need to Succeed? Community Readiness

 

David Moore – Current Dredged Material Management Challenges

 

John Toll – Beneficial Use of Contaminated Sediments: A Literature Review for the Sediment Management Work Group

 

 

 

 

 

 

 

 

 

 

 

 

hawaii environmental justice

Environmental Justice for Native Hawaiians: Preventing Landfill Expansion on the Waiʻanae Coast

Mar. 3, 2022   /   Kassandra Kometani

Introduction

Conversations about environmental justice in the United States often center around the disproportionate impacts inflicted upon black and Hispanic communities. While these burdens are undeniably widespread and relevant, there seems to be far less awareness about the struggles of the nation’s indigenous people. In particular, Native Hawaiians have endured decades of degradation to their land, water, and air while much of their plight remains unknown to those outside of the islands. A recent story made local headlines after lawmakers passed a bill in July 2020 that would effectively block plans to expand a landfill on Oʻahu’s Waiʻanae coast. Senate Bill (SB) 2386 will prevent landfills from further encroaching on the homes of Native Hawaiians since the bill requires a half-mile buffer zone between residential areas and waste facilities. Prior to the passage of SB 2386, local zoning ordinances allowed for the disproportionate siting of hazardous waste facilities in close proximity to communities. Despite the lack of national attention, the bill is a small victory that could have implications for future advocacy initiatives and community activism that seek to achieve environmental justice for Native Hawaiians.

The full effects of SB 2386 are yet to be seen, but this paper will attempt to trace the development of the bill and highlight how it has already played a role in alleviating environmental racism on the Waiʻanae Coast. Part I will offer a brief background on the history of Hawaiian land. As with many indigenous groups, Native Hawaiians have an intimate relationship with the environment and many still depend on its sustenance today. Deep spiritual connections add another element to the environmental justice movement for Native Hawaiians since the disproportionate impacts they experience extend to their “racial identity and cultural existence.”[1]

Part II will describe the relevant federal statute and state law that shape land use in Hawaiʻi today. While the overarching state law categorizes the four million acres of land in Hawaiʻi, individual counties retain tremendous autonomy to further zone the land and dictate land use approval processes.[2]

Part III will describe the environmental justice context of the Waiʻanae Coast. A particular zoning regulation in Chapter 21 of the Revised Ordinances of Honolulu has enabled a history of discriminatory landfill siting in close proximity to residences. Some facilities, such as PVT Landfill located in the Nanakuli community on the Waiʻanae Coast, have operated just 750 feet away from homes since the 1980s. Nanakuli is home to the largest population of Native Hawaiians in the state and they end up bearing an “unequal distribution of general societal burdens on this particular area of the island.”[3] The Waiʻanae Coast is also predominately low income, so decisions to expand and continue operating landfills in the backyards of these communities are not met with strong political resistance.

Part IV will explore how local activism has helped to stop the expansion of PVT Landfill. Community involvement played a significant role in persuading local lawmakers to pass the buffer zone amendment through SB 2386 that will increase the minimum distance between waste disposal facilities and residential areas.

 

Part I. A Brief History of Hawaiian Land

Land is an integral component of Native Hawaiian culture and spiritual life.[4] Hawaiians practice a philosophy of malama ʻaina, which means to care for the land and conserve natural resources to sustain a viable livelihood.[5] Prior to the colonization of the islands, Hawaiians employed a land tenure system consisting of undivided use rights.[6] Hawaiians viewed their land as communal and shared in stark contrast with Western conceptions of privately held property.[7] As foreigners increasingly pervaded the islands throughout the 1800s, the land tenure system was undermined and replaced with a new market of private ownership.[8] Hawaiian land was confiscated, sold, and purchased by those with money.[9] This dramatic alteration in Hawaiians’ relationship with their land fell in step with the suppression of their cultural practices and ways of life.[10]

The most significant instrument that enabled the commodification of Hawaiian land was the Great Mahele (divide). In 1848, King Kamehameha III formally divided the land into two groups: one belonging to himself and the other belonging to 245 chiefs throughout the islands.[11] The king further separated his allocation of 1.6 million acres into his own Crown Lands and land to be controlled by the legislature, known as Government Lands.[12] The chiefs could obtain title to the land set aside for them by filing an appropriate claim which would then be divided amongst the common people who resided on the land.[13] While it was expected that the common people would receive a substantial share of this distribution, the unfamiliar acquisition process resulted in a meager 28,600 acres designated to commoners, less than 1 percent of Hawaiʻi.[14] Westerners living in the islands at the time capitalized on this disproportion and obtained large amounts of acreage from chiefs and Government Lands, controlling most of Hawaiʻi’s land by the end of the nineteenth century.[15]

Through this period, the Kingdom of Hawaiʻi was an internationally recognized sovereign nation that had signed multiple treaties with the U.S. and other countries.[16] However, this did not prevent an American-led coup from illegally overthrowing the Hawaiian monarchy in 1893 and establishing the Republic of Hawaiʻi.[17] In 1898, the U.S. formally accepted the annexation of Hawaiʻi and received approximately 1,800,000 acres of ceded lands.[18] By the time Hawaiʻi was added as the 50th state in 1959, Native Hawaiians had lost control of nearly all of their land.[19]

 

Part II. Regulatory Background of Hawaiʻi’s Current Land Use System

Land use in Hawaiʻi is considered the most heavily regulated of all the states.[20] The complex regulatory processes that operate today followed the breakdown of the traditional land tenure system and the assimilation of Native Hawaiian land into American possession.[21] Unfortunately, Native Hawaiians do not always benefit from the myriad of land laws and zoning regulations. This is despite the fact that when Hawaiʻi became a state, the U.S. returned between 1.4 and 1.5 million acres of land to the State government to be held in public trust.[22] The land was intended for various public uses and to supplement the Hawaiian Homes Commission Act.[23]

A. The Hawaiian Homes Commission Act

Congress enacted the Hawaiian Homes Commission Act (HHCA) in 1921 which set aside approximately 200,000 acres of the ceded land the U.S. had received in 1898 to be leased as farm lots and residences for Native Hawaiians.[24] The Act was intended to help rehabilitate Native Hawaiians and to “remedy the general ineffectiveness of all previous land distribution systems.”[25] The State of Hawaiʻi agreed to implement the provisions and requirements of the HHCA as part of its admission to the U.S. in 1959.[26] Hawaiʻi created the Department of Hawaiian Home Lands (DHHL) to administer the act and ensure the economic and social welfare of Native Hawaiians receiving homesteads.[27]

Unfortunately, the homestead program has been grossly underfunded and many Native Hawaiians applied for leases decades ago without receiving anything.[28] DHHL reported that there were 28,306 individual applicants on the waiting list for a homestead in 2018.[29] Further, much of the land designated for homesteads is of poor quality since competing interests in the sugarcane industry had lobbied to keep the best agricultural lands for themselves.[30] Native Hawaiians were left with geographically remote and arid lands that were unsuitable for productive development.[31] Over 60 percent of the 200,000 acres granted for the homestead program may never even be utilized at all for the HHCA.[32] This is due in part to the fact that more than one quarter of the land is located in areas with endangered species or protected cultural resources, and much of the acreage lacks vital infrastructure to support homes such as roads or water lines.[33] There are currently 60 Hawaiian Homestead communities throughout the five most populated islands and 9,877 individual homestead leases statewide as of June 2018.[34]

B. Hawaiʻi’s Land Use Law

Hawaiʻi passed its Land Use Law in 1961 which effectively categorized state lands in four different districts: urban, rural, conservation, and agricultural.[35] The law established a Land Use Commission (LUC) to allocate parcels of lands amongst these districts and determine the permitted uses for each.[36] The LUC has the primary responsibility of determining the spatial growth and limitations of urban sprawl throughout the islands, a more direct role than comparable commissions in other states.[37]

In conjunction with the Land Use Law, Hawaiʻi’s individual counties are responsible for further zoning the lands within the urban, rural, and agricultural districts while the state maintains control over the conservation district.[38] Although residential uses other than farm dwellings are technically prohibited in agricultural districts, all four of Hawaiʻi’s counties have permitted large-lot residential subdivisions to be constructed on these lands, including Hawaiian Homesteads.[39] For the urban districts, counties exercise exclusive authority over development through controls such as zoning or subdivision ordinances and building permit laws.[40] The urban district includes all activities or uses permitted by these local regulations.[41] Notably, the Land Use Law allows counties to issue special permits for “certain unusual and reasonable uses” that would otherwise not be permissible in the rural and agricultural districts.[42] For parcels greater than fifteen acres, the special use permits must also be approved by the LUC.[43] The relevant planning commissions consider factors such as whether the use would adversely affect surrounding property, suitability of the land, and whether the use is contrary to statutory objectives when deciding to grant a special use permit.[44]

There are multiple opportunities for public involvement in the county special use permitting process such as party intervention and input at hearings before the planning commission or the state LUC.[45] The County of Honolulu is the only county that requires the petitioner to present its plan to the appropriate neighborhood board before submitting a special use permit application.[46] The petitioner must provide written notice of the presentation to owners of all properties adjoining the proposed project location.[47] The director of Honolulu’s planning and permitting department is also required to hold a public hearing no earlier than 45 days after their acceptance of a completed application.[48]

Hawaiʻi’s Land Use Law is considered to be supplementary to local land use authority within the counties rather than a substitute.[49] A similar dynamic also applies to the interplay between Hawaiʻi’s Land Use Law and the HHCA. The HHCA grants express authorization to the DHHL to lease lands to Native Hawaiians in furtherance of the act’s objectives.[50] Where the department’s homestead plans are inconsistent with designated district uses and associated county zoning, “DHHL may preempt the State Land Use Law and county land use regulations pursuant to the Hawaiian Homes Commission Act section 204.”[51] DHHL’s preemption authority has been confirmed by Hawaiʻi’s attorney general who noted that any zoning ordinance imposing restrictions on homestead lands would be outside the scope of a county’s power.[52]

Even with the preemptive power of the DHHL, the discriminatory enforcement of certain county zoning ordinances coupled with the already unfavorable quality of homestead lands has led to poor living conditions for many Native Hawaiians throughout the state. In particular, one County of Honolulu land use ordinance has enabled the degradation of an area with a high concentration of Native Hawaiian homesteaders. The following section will address this environmental injustice situation and the associated zoning ordinance.

 

Part III. Discriminatory Landfill Siting on the Waiʻanae Coast

A. The Environmental Justice Context of Nanakuli

Nanakuli, a town situated along Oʻahu’s westward Waiʻanae Coast, is home to the oldest Hawaiian Homestead community on the island.[53] As of 2016, 6,369 homesteaders resided in Nanakuli on a total of 1,319 lots.[54] Seventy-one percent of the 851 acres of available homestead lands on Oʻahu are located on the Waiʻanae Coast, so it is no surprise that Nanakuli has a significant concentration of Native Hawaiians.[55] With approximately 9,000 Native Hawaiian residents total, Nanakuli has the highest per capita Hawaiian population both in the state and in the nation.[56] The Waiʻanae Coast is also inhabited by many other ethnic groups that fall within the federal definition of environmental justice minorities.[57] Further, the area qualifies as low-income with the percentage of residents living below the poverty level at 21.9 percent.[58] This is more than double compared to the poverty level of the rest of Oʻahu.[59]

The overrepresentation of predominantly poor and ethnic minority residents living on the Waiʻanae Coast creates a ripe setting for environmental injustices to occur.[60] Perhaps expectedly, this area of the island bears an unequal distribution of Oʻahu’s waste.[61] Eleven of Oʻahu’s eighteen sewage treatment plants, active landfills, and power plants are located along the Waiʻanae Coast.[62] This is partly due to the fact that the westward side of O’ahu is much drier than other parts of the island.[63] Since rain increases the risk of runoff from open landfills, most waste disposal facilities in the state are built on leeward coasts like Waiʻanae.[64] However, as discussed in the previous section, these second-rate, arid areas were designated for HHCA homesteads, which is now where many Native Hawaiians reside.[65] Vulnerable communities such as these lack the political power and representation to voice their opposition against targeted environmental abuses.[66] The dry conditions coupled with the demographic makeup of the Waiʻanae Coast has enabled the convenient siting of a majority of the island’s solid waste disposal facilities in this area.

There are numerous health and social impacts associated with landfill exposure near residential areas.[67] Numerous studies have revealed a higher risk of developing cancer amongst people living next to landfill sites, as well as a higher risk of birth defects.[68] Waiʻanae Coast residents living in close proximity to the Waimanalo Gulch Landfill, one of the waste disposal facilities in the area, have complained of respiratory problems due to the tons of black coal ash that are carted into the landfill each day.[69] The coal ash is a byproduct from a power generating plant located just five miles away.[70] For example, residents believe that the landfill’s emissions of ash and dust have increased the prevalence of chronic asthma suffered by children in the area.[71] Landfills can also have an adverse impact on housing values due to the potential for odor, smoke, and noise.[72] The socioeconomic impact of landfills long the Waiʻanae Coast is yet another area of concern for local residents.[73]

Native Hawaiians already experience the lowest socioeconomic status and the lowest life expectancy of all Hawaiʻi’s residents,[74] conditions that are exacerbated by the overwhelming siting of waste facilities in communities such as Nanakuli. The undeniable correlation between the disproportionate distribution of waste facilities and the overrepresentation of low-income ethnic groups on the Waiʻanae Coast “validate the existence of environmental racial injustice.”[75] While Waiʻanae Coast residents bear the brunt of impacts from an array of locally unwanted land uses, one particular landfill and the related zoning laws will be examined for purposes of this paper.

B. PVT Landfill and Honolulu’s Zoning Ordinance

The County of Honolulu codified its land use ordinances in Chapter 21 of the Revised Ordinances of Honolulu (ROH). Article 5 Sec. 21-5.680 pertains directly to waste disposal and processing for the island of Oʻahu.[76] The regulation states:

No waste disposal and processing facility shall be located within 1,500 feet of any zoning lot in a county, residential, apartment, apartment mixed use or resort district. When it can be determined that potential impacts will be adequately mitigated due to prevailing winds, terrain, technology or similar considerations, this distance may be reduced, provided that at no time shall the distance be less than 500 feet.[77]

This ordinance mandates a protective buffer zone of 1,500 feet between any landfill and residential area. The facility can minimize the buffer zone to a mere 500 feet if the facility is able to properly mitigate any potentially harmful impacts. Since the ordinance does not detail what would constitute adequate mitigation of potential impacts, that determination is at the discretion of the relevant permitting authorities.[78]

The PVT Landfill is one solid waste facility on Oʻahu that has capitalized on the mitigation exception included within Sec. 21-5.680. The privately-run landfill began operating in 1985 and currently maintains a 750-foot buffer zone from the nearest homes.[79] The landfill is located in the heart of Nanakuli between the Princess Kahanu and Nanakuli Hawaiian Homesteads.[80] PVT claims that its 750-foot buffer is the widest of any other landfill in Hawaiʻi.[81] The company takes steps to mitigate the migration of dust towards homes by spraying water and installing large dust screens along its property line.[82]

Despite these mitigation measures, residents have raised concerns about significant health issues due to coal dust blowing from the landfill, namely impaired respiratory conditions.[83] One gentleman’s testimony given at a Nanakuli Neighborhood Board meeting is representative of the experience of many residents when he described how his home near the PVT Landfill is coated with a dust-like substance each day.[84] The concern over the dust is more than justified since PVT Landfill accepts construction and demolition debris that can be laden with asbestos.[85] It is the only landfill on Oʻahu permitted to accept material from these types of projects and takes in approximately 42 percent of all waste generated on the island.[86] In 2019, PVT Landfill received over two million tons of waste materials such as gypsum drywall (which can break down into hydrogen sulfide gas), wood, furniture, and petroleum-contaminated soil.[87] PVT’s permit allows the landfill to accept up to 2,000 tons of debris per day and up to 500 tons of asbestos-contaminated waste per week.[88]

According to the CDC, Nanakuli residents living in the two census tracts adjacent to the PVT landfill live ten years less than the state average life expectancy of 82.[89] Nanakuli residents have high instances of illnesses commonly associated with living in close proximity to a landfill such as lung cancer and gastrointestinal issues.[90] They also blame PVT for the high rates of asthma suffered by their children.[91] Although several human health risk assessments indicate that PVT’s operations do not pose a significant risk to surrounding communities,[92] many worry that the landfill is exacerbating the public health crisis Nanakuli has been battling for decades.[93] The human health studies completed in recent years may not be an accurate barometer of the safety of the PVT landfill in light of the fact that “long-term health effects of exposure to substances present in the waste, or produced at waste disposal facilities are more difficult to measure.”[94]

Nanakuli residents are tired of bearing the externalities of an industry that primarily benefits the urban areas of Oʻahu.[95] Aside from the health impacts, residents must also endure the odors and noise generated by the landfill operations on a daily basis.[96] Community members have vehemently opposed PVT Landfill and have called for its closure for years.[97] Residents were also concerned about the potential for the landfill’s expansion, a fear that was confirmed in 2019 when PVT announced plans to expand its landfill across the street.[98

C. Senate Bill 2386: the Roadblock to PVT’s Expansion Plan

PVT put forth a proposal to expand its operations from its current 160 acres to a 180-acre parcel across the street.[99] The facility has an estimated five years of remaining capacity and needs to expand in order to continue accommodating the island’s construction and demolition waste.[100] PVT has also stressed that its designated to receive debris from storm damage, so cleanup after a major hurricane would be problematic if the landfill was unable to expand.[101] The company says the landfill is running out of space despite the fact that it recycles 80 percent of the materials it receives.[102] PVT hopes to begin using the expansion parcel within the next four years and plans to double the amount of recycling.[103]

Although PVT already owns the land intended for the expansion, the company had to submit an application to the Honolulu Planning Commission for the relocation.[104] PVT needed a special use permit since the intended use is not ordinarily permissible in the county-zoned agricultural district.[105] Further, the State LUC would need to review the city’s decision since the project exceeds the 15-acre threshold.[106] PVT officials assure the commission and public that the new landfill will comply with all relevant permits and approvals, especially since the expansion will maintain the same 750-foot buffer zone in accordance with Sec. 21-5.680.[107] However, Hawaiʻi’s legislature passed a bill in July 2020 that mandates a half-mile buffer zone between waste facilities and residences, significantly disrupting PVT’s expansion plans.[108]

Lawmakers first introduced SB 2386 to the State Legislature in January 2020.[109] Hawaiʻi senators passed the bill unanimously in early March 2020, but the onset of the coronavirus delayed the measure in the State House.[110] In July, the House passed an amended version of the bill with a 45-6 vote, followed by a 24-1 vote in the Senate.[111] SB 2386 was then enrolled to Hawaiʻi’s governor in August 2020 who would have until the end of the month to notify lawmakers of his intent to veto, otherwise allowing the bill to become law with or without his signature.[112] The bill was not on the governor’s list of intended vetoes and successfully became law on September 15, 2020.[113]

SB 2386 amends a particular subsection of the Hawaiʻi Revised Statutes (HRS) relating to waste management. The amendment reads in pertinent part that:

No person, including the State or any county, shall construct, modify, or expand a waste or disposal facility including a municipal solid waste landfill unit, any component of a municipal solid waste landfill unit, a construction and demolition landfill unit, or any component of a construction and demolition landfill unit without first establishing a buffer zone of no less than one-half mile around the waste or disposal facility.[114]

Buffer zone is defined in the subsection as the distance between the edge of the waste or waste activity and the closest residential, school, or hospital property line.[115] The amendment states that the new subsection will not apply to the continued operation of any existing waste or disposal facility.[116] However, the buffer zone mandate would be triggered if the facility’s operation required physical expansion or new or additional permitting.[117] For a company such as PVT seeking to expand its operations, the new amendment has the potential to significantly alter the feasibility of those plans.[118]

With the passage of SB 2386, PVT stated plans to withdraw its application to the Honolulu Planning Commission to relocate its landfill.[119] PVT would not be able to reapply for relocation for an entire year after withdrawing its application.[120] Company officials said that if it was unable to expand the landfill, it would need to increase disposal rates and limit the amount of waste it accepts.[121] Eventually, PVT landfill may be forced to cease its operations.[122] The closure of PVT could significantly disrupt construction projects of all sizes since it is the only designated construction and demolition landfill on the island.[123] PVT also cited concerns regarding an increase in illegal dumping and a prevention of future construction projects due to the bill.[124]

Although PVT described numerous ramifications of SB 2386 on the viability of Oʻahu’s construction projects, a report from the Mayor’s Advisory Committee on Landfill Site Selection (MACLSS) in 2012 identified eleven other suitable sites for landfills.[125] MACLSS consisted of a panel of nine community members and technical consultants who conducted a comprehensive landfill site study on O’ahu.[126] The committee developed community-based criteria that would be most important from a community’s perspective in the siting of a proposed landfill, such as effects on local roads and traffic.[127] Significantly, all eleven sites described in the report would allow for at least a half-mile buffer zone and none of the potential sites were located in Nanakuli.[128]

SB 2386 may have potential repercussions for the construction industry. Regardless, the prevention of PVT’s expansion due to the new buffer zone law marks a considerable success for achieving environmental justice in Nanakuli. The next section will delve more deeply into the passage of SB 2386 and its implications for the Native Hawaiian environmental justice movement as a whole.

 

Part IV. A Step Toward Achieving Environmental Justice on the Waiʻanae Coast

A. A Closer Look at the Passage of SB 2386

Until the enactment of SB 2386, Hawaiʻi had no state-wide buffer zone minimum.[129] Consequently, Honolulu County was able to enforce a much smaller buffer zone of 1,500 feet (or 500 feet with mitigation) through its local ordinance.[130] SB 2386 is a noteworthy piece of legislation for its implied recognition that communities living in close proximity to waste facilities needed a wider berth of protection. Then Hawaiʻi Senator Kai Kahele, who introduced the bill, believes the new buffer zone “could help to further the cause of environmental justice in rural communities with landfills, such as the Waianae Coast.”[131] Senator Kahele’s high hopes are also shared by Nanakuli residents and other supporters of the bill.[132]

SB 2386 was introduced as part of a Senate Native Hawaiian Caucus package.[133] The bill garnered testimonies of support from prominent entities such as the Office of Hawaiian Affairs, the Sierra Club of Hawaiʻi, the Association of Hawaiian Civic Clubs, and several organized labor organizations such as the Hawaiʻi State Teachers Association and United Public Workers.[134] Many of the testimonies highlighted the alarming health disparities amongst Nanakuli residents and the need to better protect them by establishing a minimum distance between waste facilities and homes.[135] The testimonies represent the understanding that “[n]o community should suffer the negative health impacts and decrease in quality of life from a waste or disposal facility, including a landfill.”[136] The collective sentiment of supporters urged lawmakers to ensure that future landfills would not be in anyone’s backyard, let alone Native Hawaiian communities.

Those testifying in opposition included PVT Landfill, the Building Industry Association, and multiple demolition companies on O’ahu.[137] PVT emphasized its critical role in supporting the construction industry and how the enactment of SB 2386 would not only preclude PVT’s much needed expansion, but eventually force the landfill to shut down.[138] This would negatively impact developers and contractors who rely on PVT to dispose of their construction and demolition debris.[139] Government officials representing the City and County of Honolulu, Maui County, and Kauai County also opposed the bill.[140] Maui County cited the economic difficulties that would be spurred by SB 2386 such as spending millions of dollars on property acquisition in order to expand its landfill facilities.[141] The counties point out that buffer zones are already heavily regulated under local land use ordinances and that a mandatory half-mile buffer would come at an “exorbitant expense” to taxpayers.[142]

The extensive testimonies submitted by advocates of Native Hawaiian environmental justice weighed strongly in support of SB 2386 which passed through the House and the Senate with very few opposing votes.[143] The bill became law despite industry concerns that projects on the island could be delayed, including the construction of Honolulu’s light rail transportation system.[144] Interestingly, several of the testimonies mentioned Hawaiʻi’s constitutional provision that guarantees a right to a “clean and healthful environment.”[145] While the interpretation of this constitutional right has been largely limited to procedural issues,[146] it seems to have been an influencing factor in the development and ultimate acceptance of SB 2386. Senator Kahele also highlighted the importance of the right to a healthy environment when describing his aspirations for the new buffer zone law.[147]

B. The Role of Community Activism

While SB 2386 was still pending in Hawaiʻi’s Legislature, Nanakuli residents were protesting the expansion of the PVT Landfill. In July 2019, members of the Nanakuli-Maʻili Neighborhood Board received information about the project’s potential environmental impacts.[148] On September 4, 2019, the board held a special meeting to hear community input and determine its position on PVT’s proposed expansion.[149] Advocates from the Association of Hawaiian Civic Clubs had submitted a petition to the board in opposition of the landfill relocation with over 5,500 signatures.[150] The following day, the Chair of the Nanakuli-Maʻili Neighborhood Board sent a letter to the Honolulu director of the Department of Planning and Permitting (DPP) who would make the final decision on PVT’s special use permit application.[151] The letter detailed how the board supports PVT’s recycling efforts, but ultimately passed a motion opposing the request for relocation.[152]

These neighborhood board meetings have been important outlets for Nanakuli residents to voice their concerns. Meetings have been attended by Hawaiian Civic Clubs, elderly residents fondly refered to as kupuna, and hundreds of other community members.[153] At one meeting regarding the PVT landfill, Nanakuli residents expressed how “they are tired of being the island’s dumping ground.”[154] Pursuant to Article 2 § 21-2.40-2(b)(2) of the Honolulu land use ordinances discussed in Part II, PVT was required to alert the neighborhood board in Nanakuli of its plan to expand the landfill.[155] This is one aspect of the county zoning laws that has played a crucial role in keeping the relevant communities informed of projects that could potentially harm their health. PVT withdrew its special use permit application before the requisite public hearing was scheduled by the DPP for September 16, 2020.[156]

Community activists were also pushing for the County of Honolulu to amend its own land use ordinance which still only requires a minimum 500-foot buffer zone for O’ahu’s waste disposal and processing facilities.[157] The Association of Hawaiian Civic Clubs adopted Resolution 20-119 which had been introduced by a Honolulu County Councilmember on May 13, 2020.[158] The resolution proposes an amendment to Sec. 21-5.680 of the ROH and advances the same buffer zone minimum of a half-mile as now mandated by SB 2386.[159] The resolution expressly recognizes that increasing the required minimum distance between residences and waste disposal facilities would mitigate the negative impacts of residing near those types of facilities.[160] Unfortunately, Resolution 20-119 was stalled after Honolulu’s City Council’s Zoning, Planning and Housing Committee removed the action from its agenda at the end of May.[161]

Waiʻanae Coast residents have sought relief from discriminatory landfill siting for years through community organizing.[162] Grassroots efforts have been essential due to the lack of action on behalf of elected officials and the reoccurring failure of proposed measures that would have granted relief.[163] In many ways, SB 2386 represents a long-awaited recognition that stricter regulations were necessary to protect the residents of the Waiʻanae Coast from the harmful impacts of waste disposal facilities. The Sierra Club of Hawaiʻi described SB 2386 as “a modest yet necessary step toward environmental justice.”[164] While complete environmental justice is still long overdue, Nanakuli community members have finally achieved one significant success through the utilization of public testimony processes.

 

Part V. Conclusion

For Native Hawaiians, environmental justice involves more than addressing discriminatory institutions and degraded health.[165] Native Hawaiian environmental justice should achieve the “reclamation and restoration of land and culture” through the “integrat[ion] of community history, political identity, and socioeconomic and cultural needs.”[166] Since environmental racism dynamics differ for indigenous groups, typical environmental justice remedies should be reworked to meet specific needs.[167] This concept of “racializing” environmental justice acknowledges the history of harm that can be traced back through Native Hawaiian land dispossession and cultural prohibitions.[168] These deeply-rooted discriminations add an additional layer to the objectives of the Native Hawaiian environmental justice movement.

The Waiʻanae Coast is still home to environmentally damaging facilities that impact the health of its low-income, minority population.[169] While SB 2386 does effectively prevent the expansion of waste disposal facilities such as PVT Landfill without an adequate buffer zone, the “potential for further mistreatment and the approval of additional waste facilities without legal means to challenge or prevent it” is an alarming reality.[170] Nanakuli residents were able to utilize procedural avenues that allowed them to testify in opposition of PVT’s expansion and urge the State of Hawaiʻi to enact SB 2386. These tools empowered the Nanakuli community and influenced the passage of a statewide law that will now protect other Native Hawaiians who also experience the same inequitable distribution of societal burdens throughout the state. As the struggle for Native Hawaiian environmental justice on the Waiʻanae Coast endures, activists and community members can continue to take advantage of preexisting public processes that allow their voices to be heard.

 

Endnotes

[1] Eric K. Yamamoto & Jen-L W. Lyman, Racializing Environmental Justice, 72 U. Colo. L. Rev. 311, 356 (2001).

[2] G. Kem Lowry Jr., Evaluating State Land Use Control: Perspectives and Hawaii Case Study, 18 Urb. L. Ann. 85, 93–94 (1980).

[3] Chasid M. Sapolu, Dumping on the Wai’anae Coast: Achieving Environmental Justice through the Hawai’i State Constitution, 11 APLPJ 204, 219 (2009).

[4] Melody Kapilialoha MacKenzie, Susan K. Serrano & Koalani Laura Kaulukukui, Environmental Justice for Indigenous Hawaiians: Reclaiming Land and Resources, 21 Nat. Resources & Entv’t 37, 37 (2007).

[5] Mililani B. Trask, Historical and Contemporary Hawaiian Self-Determination: A Native Hawaiian Perspective, 8 Ariz. J. Int’l & Comp. L. 77, 78 (1991).

[6] Id.

[7] Melody Kapilialoha MacKenzie, Susan K. Serrano & Koalani Laura Kaulukukui, Environmental Justice for Indigenous Hawaiians: Reclaiming Land and Resources, 21 Nat. Resources & Env’t 37, 37 (2007)

[8] Trask, supra note 5, at 78.

[9] Id.

[10] MacKenzie et al., supra note 7, at 37.

[11] David L. Callies, Regulating Paradise: Land Use Controls in Hawai’i 2 (2d ed. 2010).

[12] Id.

[13] Id. at 2–3.

[14] John M. Van Dyke, The Political Status of the Native Hawaiian People, 17 Yale L. & Pol’y Rev. 95, 102 (1998); Callies, supra note 11, at 4; Trask, supra note 5, at 78.

[15] Dyke, supra note 14.

[16] Id.

[17] Id.

[18] Dyke, supra note 14, at 103; Callies, supra note 11, at 3.

[19] Charles F. Wilkinson, Land Tenure in the Pacific: The Context for Native Hawaiian Land Rights, 64 Wash. L. Rev. 227, 230 (1989).

[20] Callies, supra note 11, at 1.

[21] Id. at 2.

[22] Trask, supra note 5, at 81.

[23] Id.

[24] Dyke, supra note 14, at 104.

[25] Mark A. Inciong, The Lost Trust: Native Hawaiian Beneficiaries under the Hawaiian Homes Commission Act, 8 Ariz. J. Int’l & Comp. L. 171, 175 (1991).

[26] Id. at 177.

[27] Id. at 179.

[28] Dyke, supra note 14, at 104; Inciong, supra note 22, at 171.

[29] Dep. Of Hawaiian Home Lands, Fiscal Year 2017-2018 Annual Report 58 (2019), https://dhhl.hawaii.gov/wp-content/uploads/2019/10/2018-DHHL-AnnualReport-ICROv3.pdf [hereinafter DHHL Annual Report].

[30] Dyke, supra note 14, at 104; Inciong, supra note 22, at 179.

[31] Lana Sue I. Ka’opua et al., Decolonizing Knowledge Development In Health Research: Cultural Safety Through The Lens of Hawaiian Homestead Residents, 5 J. of Indigenous Soc. Dev. 20, 24 (2017).

[32] Blaze Lovell, The Problem With Hawaiian Homestead Land? Much of it Can’t be Developed, Honolulu Civil Beat (June 12, 2019), https://www.civilbeat.org/2019/06/the-problem-with-hawaiian-homestead-land-much-of-it-cant-be-developed/.

[33] Id.

[34] Ka’opua, supra note 31, at 24; DHHL Annual Report, supra note 29, at 63.

[35] Lowry, supra note 2, at 94.

[36] Id.

[37] Id. at 96.

[38] Hawai’i Rural Dev. Council, Introduction to Hawai’i’s Land Classification and Management System 16 (2015), http://www.oha.org/wp-content/uploads/HRDC-LUTPManual_PRF6_FINAL.pdf [hereinafter HRDC Manual].

[39] Callies, supra note 11, at 22.

[40] Lowry, supra note 2, at 98.

[41] Id. at 95.

[42] HRDC Manual, supra note 38, at 16; Callies, supra note 11, at 25.

[43] HRDC Manual, supra note 38, at 16. Callies, supra note 11, at 25.

[44] Callies, supra note 11, at 25.

[45] HRDC Manual, supra note 38, at 56.

[46] Id.

[47] Honolulu Rev. Ord. Art 2. § 21-2.40-2(b)(2) (1990).

[48] Id. § 21-2.40-2(c)(6).

[49] Lowry, supra note 2, at 97–98.

[50] Callies, supra note 11, at 194.

[51] Dep. of Hawaiian Home Lands, Nanakuli Regional Plan 2018, at 26 (2018), https://dhhl.hawaii.gov/wp-content/uploads/2018/11/Nanakuli-RP2018-Final.pdf [hereinafter Nanakuli Regional Plan].

[52] Callies, supra note 11, at 194.

[53] Nanakuli Regional Plan, supra note 51, at 21.

[54] Id. at 25.

[55] Id.

[56] Anthony Makana Paris & Kamuela Werner, Not in Anyone’s Backyard, Ka Wai Ola (Apr. 30, 2020) https://kawaiola.news/aina/not-in-anyones-backyard/.

[57] Sapolu, supra note 3, at 220.

[58] Id.

[59] Id.

[60] Id. at 221.

[61] Kerry Kumabe, The Public’s Right of Participation: Attaining Environmental Justice in Hawai’i through Deliberative Decisionmaking, 17 Asian Am. L.J. 181, 192 (2010).

[62] Id.

[63] Claire Caulfield, How is Oahu’s Trash Impacting the Waianae Coast?, Honolulu Civil Beat (Aug. 11, 2020), https://www.civilbeat.org/2020/08/how-is-oahus-trash-impacting-the-waianae-coast/.

[64] Id.

[65] See infra Part II.A.

[66] Sapolu, supra note 3, at 227; Yamamoto & Lyman, supra note 1, at 318.

[67] Maheshi Danthurebandara et al., Environmental and Socio-Economic Impacts of Landfills, Linnaeus Eco-Tech 40, 47 (2012) https://www.researchgate.net/profile/Dirk_Nelen/publication/278738702_Environmental_and_socio-economic_impacts_of_landfills/links/58ff795345851565029f290a/Environmental-and-socio-economic-impacts-of-landfills.pdf.

[68] Id.

[69] Sapolu, supra note 3, at 223.

[70] Id. at 222.

[71] Kumabe, supra note 61, at 194.

[72] Danthurebandara et al., supra note 67.

[73] See Caulfield, supra note 63 (quoting a Nanakuli resident’s concern that no one wants to live next to a landfill).

[74] Trask, supra note 5, at 82; see Sapolu, supra note 3, at 223 (noting the “relationship between an incease in negative health effects and the pollution caused by hazardous waste facilities”).

[75] Sapolu, supra note 3, at 220–21.

[76] Honolulu Rev. Ord. Art. 5 § 21-5.680 (1990).

[77] Id.

[78] See Honolulu Rev. Ord. Art. 2 § 21-2.0 (relating to administrative procedures of land use permit approvals).

[79] Sapolu, supra note 3, at 221; Andrew Gomes, State Legislature Sides with Nanakuli Landfill Opponents, Honolulu Star-Advertiser (July 29, 2020), https://www.staradvertiser.com/2020/07/29/hawaii-news/state-legislature-sides-with-nanakuli-landfill-opponents/#story-section.

[80] Nanakuli Regional Plan, supra note 51, at 21.

[81] Gomes, supra note 79.

[82] Caulfield, supra note 63.

[83] Sapolu, supra note 3, at 224.

[84] Id. at 206.

[85] Paris & Werner, supra note 56.

[86] Gomes, supra note 79; Paris & Werner, supra note 56.

[87] Paris & Werner, supra note 56; Kumabe, supra note 61, at 192.

[88] Caulfield, supra note 63.

[89] Paris & Werner, supra note 56.

[90] Id.

[91] Kumabe, supra note 61, at 192.

[92] Caulfield, supra note 63.

[93] Paris & Werner, supra note 56.

[94] L. Giusti, A Review of Waste Management Practices and Their Impact on Human Health, 29 Waste Management 2227, 2228 (2009) http://sgpwe.izt.uam.mx/files/users/uami/citla/Lecturas_temas_selectos/review_of_waste_mngment_practices_and_human_health.pdf.

[95] Caulfield, supra note 63.

[96] Nanakuli Regional Plan, supra note 51, at 27.

[97] Kumabe, supra note 61, at 192.

[98] Kimberlee Speakman, Public Meeting to Discuss Nanakuli Landfill Expansion Plans Wednesday Night, KHON2 (Sept. 3, 2019), https://www.khon2.com/news/public-meeting-to-discuss-nanakuli-landfill-expansion-plans-wednesday-night/; see Sapolu, supra note 3, at 224 (“Community concerns include PVT becoming the last resort for the island’s waste problems, leading to an expansion of the current PVT site, and a permit to receive the municipal solid waste on top of the industrial waste already being dumped there.”).

[99] Caulfield, supra note 63.

[100] Gomes, supra note 79.

[101] Id.

[102] Speakman, supra note 98; Gomes, supra note 79.

[103] Chelsea Davis, Nanakuli Residents Are Fed Up Over Proposed Landfill Expansion, Hawaii News Now (July 16, 2019), https://www.hawaiinewsnow.com/2019/07/17/nanakuli-residents-fed-up-over-proposed-landfill-expansion/.

[104] Caulfield, supra note 63; Janis L. Magin, PVT Land to Withdraw Application For New Oahu Construction Landfill, Pacific Bus. News (Sept. 15, 2020), https://www.bizjournals.com/pacific/news/2020/09/15/pvt-land-withdraw-application-new-oahu-landfill.html.

[105] See infra Part II.B.

[106] Id.

[107] Davis, supra note 103; Gomes, supra note 79.

[108] Gomes, supra note 79.

[109] Paris & Werner, supra note 56.

[110] Gomes, supra note 79.

[111] Id.

[112] Id.

[113] Magin, supra note 104.

[114] S.B. 2386 H.D. 2, 30th Leg. (Haw. 2020).

[115] Id.

[116] Id.

[117] Id.

[118] Blaze Lovell, Hawaii Lawmakers Salvage Bills Despite Pandemic, Honolulu Civil Beat (July 10, 2020), https://www.civilbeat.org/2020/07/hawaii-lawmakers-salvage-bills-despite-pandemic/.

[119] Magin, supra note 104.

[120] Id.

[121] Magin, supra note 104; Gomes, supra note 79.

[122] Caulfield, supra note 63; Lovell, supra note 118.

[123] Magin, supra note 104; Gomes, supra note 79.

[124] Magin, supra note 104; Gomes, supra note 79.

[125] Paris & Werner, supra note 56.

[126] Id.

[127] Dep’t of Env’t Serv., Report of the Mayor’s Advisory Committee on Landfill Site Selection 1-1, 1-5 (Sept. 2012), http://www.opala.org/solid_waste/pdfs/MACLSS%20REPORT%20FINAL%20092512.pdf.

[128] Paris & Werner, supra note 56.

[129] Id.

[130] See Honolulu Rev. Ord. Art. 5 § 21-5.68.

[131] Lovell, supra note 118.

[132] See Paris & Werner, supra note 56; Gomes, supra note 79; Ferd Lewis, Bill Could Impact Aloha Stadium Demolition, Landfill Operator Says, Honolulu Star Advertiser (June 14, 2020), https://www.staradvertiser.com/2020/06/14/hawaii-news/bill-could-impact-stadium-demolition-landfill-operator-says/?HSA=18828e0774b5640881d9b804f803912b3612a748&fbclid=IwAR3Bi-rt_PPo2GB80ErSIPxAl4wuxiRkPSkqPFvONoT8JbZPtwJCHUf9s8Q.

[133] Lewis, supra note 132.

[134] Gomes, supra note 79; Paris & Werner, supra note 56.

[135] See Hearing on S.B. 2386 S.D. 2 H.D. 2, Before the H. Comm. On Fin., Leg. 30th (Haw. 2020) (statements of Democratic Party of Hawaii Labor Caucus and Prince Kuhio Hawaiian Civic Club) [hereinafter Hearing on S.B. 2386 Testimonies].

[136] Hearing on S.B. 2386 Testimonies (statement of O’ahu Council on the Association of Hawaiian Civic Clubs).

[137] See Hearing on S.B. 2386 Testimonies (statements of PVT Landfill and the Building Industry Association).

[138] Hearing on S.B. 2386 Testimonies (statement of PVT Landfill).

[139] Id.

[140] Gomes, supra note 79.

[141] Id.

[142] Hearing on S.B. 2386 Testimonies (statement of Maui County).

[143] Gomes, supra note 79.

[144] Id.

[145] Haw. Const. art. XI, § 9; Lovell, supra note 118. See Hearing on S.B. 2386 Testimonies (statements in support).

[146] Sapolu, supra note 3, at 235.

[147] Lovell, supra note 118.

[148] Davis, supra note 103.

[149] Paris & Werner, supra note 56.

[150] Id.

[151] Special Use Permit (SUP) Application File No. 2020/SUP-4 for the Relocation of the PVT Integrated Solid Waste Management Facility.

[152] Id.

[153] Paris & Werner, supra note 56.

[154] Davis, supra note 103.

[155] See infra Part II.B; see also Honolulu Rev. Ord. Art 2. § 21-2.40-2(b)(2).

[156] Magin, supra note 104.

[157] Paris & Werner, supra note 56.

[158] Paris & Werner, supra note 56; Resolution 20-119 – Landfill “Buffer Zones”, Sierra Club O’ahu Group (June 17, 2019), https://www.sierracluboahu.org/councilwatch-blog/resolution-20-119.

[159] Res. 20-119, City and Cty. of Honolulu (Haw. 2020).

[160] Id.

[161] Janis L. Magin, Honolulu Council Committee Postpones Action on to Triple Landfill Distance, Pacific Bus. News (May 22, 2020), https://www.bizjournals.com/pacific/news/2020/05/22/honolulu-committee-postpones-landfill-distance.html.

[162] Sapolu, supra note 3, at 227.

[163] Id. at 225.

[164] Carly Rizzuto, Environmental Racism and the Harms of Coal Ash, Sierra Club O’ahu Group (July 21, 2020), https://www.sierracluboahu.org/councilwatch-blog/the-harms-of-coal-ash-as-reason-to-support-a-landfill-buffer-zone.

[165] MacKenzie et al., supra note 7, at 38.

[166] Id.

[167] Yamamoto & Lyman, supra note 1, at 347.

[168] Id.

[169] Sapolu, supra note 3, at 244.

[170] Id.

 

 

clean water acts, environmental law, epa regulations

Disappearing Coastlines and Surrounding Communities: State Management and the Shift Towards Living Shorelines

Feb. 15, 2022   /   Kacey Hovden

I. Introduction

Beaches around the world are vanishing, with half predicted to be submerged in less than eight decades.[1] Under a high-carbon scenario, the United States will rank sixth globally for amount of land lost due to coastal erosion.[2] By the end of the century, the U.S. is projected to lose around thirty-six percent of its beaches, or around 2,451 miles.[3] These include some of the most popular beaches in North America, such as Miami Beach in Florida, and the iconic beaches of Santa Barbara, California.[4] Along with the U.S. coastline slipping away into the ocean, entire ecosystems, homes, and communities will fade along with it.[5]

North America’s sandy beaches are not only a source of recreation, tourism, and biological diversity, but also coastal communities’ primary form of protection from the ocean and its storms.[6] Beaches absorb energy from the ocean’s waves, serving as a natural barrier between inland communities and the sea.[7] Without these natural barriers, low-lying coastal cities are more susceptible to flooding and ultimately, total submersion into the ocean.[8] NASA predicts total submersion to occur by 2100 in New Orleans, Louisiana, with areas of the city currently sinking at a rate of two inches annually.[9] By 2050, nearly seventy-seven percent of Charleston, South Carolina, is predicted to be underwater, rendering the city a “half-drowned ghost town.”[10] As shorelines continue to erode, American coastal communities are inevitably at the mercy of storm surges, hurricanes, and waves, resulting in property damage, economic loss, and deaths.[11]

Coastal states and their communities are scrambling to formulate solutions, as the lands 94.7 million people in America live on or near continue to rapidly wash away into the ocean.[12] Traditionally, shoreline armoring – involving seawalls, bulkheads, and other hard structures meant to minimize waves’ effects when reaching shore – has been the favored approach among coastal states.[13] However, as Western Carolina University coastal geologist Rob Young has noted, because climate change fuels the ocean’s erosive nature, these solutions are only temporary.[14] These temporary proposals would only deter the inevitable,[15] and coastal states are attempting various forms of management practices and regulations in an effort to adapt to the dynamic shorelines.[16] Recently, however, states are experimenting with different strategies and shifting away from shoreline armoring, with twenty-eight states now imposing permitting criteria and restrictions on shoreline armoring structures in an attempt to discourage their use.[17] Known as “soft” coastal resiliency approaches, these strategies include retreating from the shorelines through setback requirements and relocation; adding sand and vegetation to replenish narrowing beaches; doing nothing at all; or a hybrid form of shoreline armoring and “soft” approaches.[18]

This paper examines the variety of regulatory and management approaches states may adopt to combat coastline erosion, emphasizing the “living shorelines” approach as the most effective solution because living shorelines are better for coastal communities and wildlife, more cost-effective for local and state governments, and embody the policies of the CZMA. Section II begins with an explanation of the science behind coastline erosion, the role of climate change, and the significance to coastal communities. Section III then moves to a description of the Coastal Zone Management Act (CZMA), the federal statute authorizing the National Coastal Zone Management Program (NCZMP), which guides state participation and implementation of the CZMA. Regulation approaches under the CZMA vary between states; these approaches are divided into four general categories. Part A discusses the “do-nothing” approach, analyzing Oregon and North Carolina’s policies. Part B focuses on the fundamentals of the managed retreat approach, with Maine and South Carolina as the representative states. Part C describes the tactics and options behind shoreline armoring, focusing on Florida and Alabama’s approaches and regulations. Part D concentrates on living shorelines, to which many states, such as California and New Jersey, are shifting their policies and management practices.

Section IV shifts to an analysis of local and state collaboration when implementing states’ coastal management programs, evaluating the various state approaches to state oversight and local control, as well as the exclusion of vulnerable communities’ participation in local planning. Section V analyzes the effectiveness of living shorelines in terms of socio-economic and environmental benefits. Part A focuses on the range of protection living shorelines provide coastal communities, while Part B discusses living shorelines’ benefits to wildlife. Part C analyzes the cost-effectiveness of living shorelines in comparison to shoreline armoring, and Part D emphasizes how living shorelines successfully embody the conservation and management policies of the CZMA. The paper concludes that states, and their local governments, should shift their management approaches, policies, and regulations towards the promotion of living shorelines because living shorelines are less environmentally harmful, more cost-effective, and embody the coastline protection and management goals of the CZMA, ultimately extending the longevity of coastal communities.

 

II. Erosion, Climate Change, & Coastal Communities

Coastal erosion is a naturally occurring process in which the rocks, soils, and sands along the coastline disappear as the ocean moves inward.[19] A number of coastal processes weather the land away over time, specifically powerful waves, storm surges, tropical storms, and rising sea levels.[20] These processes have eaten away at coastlines for centuries; in the United States, for example, eighty-six percent of East Coast beaches have experienced high levels of erosion due to rising sea levels.[21] However, climate change has intensified these erosive processes, resulting in an increased rate of coastal erosion.[22]

The United Nations Framework Convention on Climate Change defines climate change as the “. . . change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere.”[23] As ninety-seven percent of actively publishing climate scientists agree,[24] Earth’s climate is abruptly changing in response to humans’ use and resulting emissions of greenhouse gases and other particulate matters.[25] Consequentially, the increasing amount of greenhouse gases in the atmosphere is proportional to the increasing rate of coastal erosion.[26] This relatively exists because climate change increases the rate at which sea levels rise, as well as the frequency and intensity of coastal storms[27] – two of the major natural processes behind coastal erosion.[28]

With the atmosphere warming due to climate change, glaciers and ice sheets melt into the ocean, causing sea levels to rise at an unprecedented rate.[29] Ocean waters are warming as well, contributing to the rising sea levels through a process called thermal expansion.[30] Since 1880, the global mean sea level has risen by over eight inches; in 2019, researchers calculated the global mean sea level had risen nearly three and a half inches above the 1993 average.[31] The U.S. Interagency Sea Level Rise Taskforce predicts global sea levels will continue to rise, with the potential to reach 2.5 meters above 2000 levels by 2100.[32] When sea levels rise, ocean water reaches softer soils on land, causing the rate of coastline erosion to increase.[33] Rising sea levels also increase coastal storms, and its surges, on shorelines because the storms hit softer soils more susceptible to erosion.[34]

Warmer ocean and atmospheric temperatures also affect the severity of coastal storms, increasing the amount of rainfall, wind speed, and overall destruction potential of storms.[35] The warmer temperatures increase the frequency of coastal storms; for example, Atlantic hurricane activity has steadily increased since the early 1980s.[36] The increased frequency and severity of coastal storms negatively affect coastlines because storms “rapidly raise water levels and accelerate coastal currents,” resulting in what the USGS reports as “the most rapid losses of land.”[37] Ultimately, shorelines are increasingly vulnerable to erosion as sea levels rise and coastal storms become more frequent and volatile, causing coastlines and their communities to rapidly wash away into the ocean.

The increasing rate of coastal erosion is significantly affecting coastal communities through the destruction of buildings and homes, natural resources, roads and highways, and wildlife habitats.[38] In California, the USGS estimates coastal erosion will put nearly half a million people, as well as coastal property amounting to one hundred billion dollars, at risk in the next century.[39] As a result, communities contemplate the few options available: relocate or barricade. Relocating entire towns is extremely expensive; for example, in Northern Alaska, it will cost an estimated $80-130 million to relocate a coastal town of four hundred that is currently eroding away.[40] Moreover, to re-locate larger at-risk coastal cities, such as New Orleans with an estimated 390,144 residents,[41] the cost could reach billions. One option is for states and municipalities to manage their shorelines under a variety of strategies, often developed and implemented through their respective state coastal management programs under the Coastal Zone Management Act.[42]

 

III. Coastal Zone Management Act & State Implementation

The Coastal Zone Management Act (CZMA),[43] enacted in 1972, establishes the national framework for state management of coastal resources.[44] In the CZMA, Congress declared the national policy regarding coastlines, which includes the preservation, protection, development, and possible restoration of the U.S. coastal zone and its resources.[45] The national policy also encourages states to implement coastal management programs, with federal assistance, that “achieve wise use of the land and water resources of the coastal zone, giving full consideration to ecological, cultural, historic, and esthetic values, as well as the needs for compatible economic development . . .”.[46] To implement the national policy, the CZMA authorizes the National Coastal Zone Management Program (NCZMP).[47] The National Oceanic and Atmospheric Administration’s Office for Coastal Management administers the program, and state participation is voluntary.[48] The NCZMP incentivizes states to participate by providing a number of benefits, including federal grant programs and the ability to review federal actions and projects for consistency with state coastal policies.[49] There are thirty-five coastal states and territories eligible for participation in the U.S.; thirty-four currently participate in the NCZMP, with Alaska withdrawing in 2011.[50]

States choosing to participate in the NCZMP must follow certain requirements in developing their coastal management programs (CMPs).[51] At a minimum, these requirements include implementation of the national policy and its components established by the CZMA.[52] The national policy addresses coastal erosion, requiring NCZMP participants to provide for the “management of coastal development to minimize the loss of life and property caused by improper development in flood-prone, storm surge, geological hazard, and erosion-prone areas and in areas likely to be affected by or vulnerable to sea level rise, land subsidence, and saltwater intrusion, and by the destruction of natural protective features . . .”.[53] Some of the other information states must include in their CMPS are the identification of coastal zone boundaries; definitions of permissible land and water uses within the coastal zone that directly and significantly affect coastal waters; designations of areas of “particular concern”; description of a state’s plan to control uses; a definition of beach and planning process to protect coastal areas; and a description of a state’s planning process “for assessing effects of and controlling erosion,” among other requirements.[54] States have discretion to 1) determine their respective coastal zone boundaries, 2) identify significant issues, and 3) create policies to address these issues, as well as other details.[55] In developing their CMPs, states also collaborate with federal agencies, state and local agencies, industries, the public, and other interested groups.[56]

Once a state has developed its CMP, it must present the program for approval by the Secretary of Commerce to qualify for federal implementation funding.[57] The Secretary must ensure a state’s CMP follows all guidelines of the CZMA.[58] Approval by the Secretary is necessary in order for a state to become an official participant in the NCZMP, gain eligibility for federal funding, and gain some control over federal activities through the federal consistency provisions of the CZMA.[59] Through the federal consistency provisions, federal actions reasonably likely to affect any land, water use, or natural resource of a coastal zone must be consistent with the enforceable policies in participating states’ CMPs.[60]  Thus, the federal consistency provisions incentivize state participation in the program because the provisions provide states with a powerful tool to facilitate federal cooperation and compliance with state coastal management policies and practices.[61]

Upon approval, the state’s CMP becomes effective, and the state’s agencies and local governments implement it, typically through land use regulations.[62] The Secretary is required to review approved CMPs at least once every three years to evaluate states’ performances in implementing their CMPs.[63] Concerning coastline erosion, states and their local governments typically implement their CMPs following four different approaches: the 1) “do-nothing” approach,[64] 2) managed retreat or realignment, 3) shoreline armoring, or 4) living shorelines.[65] Although discussed separately here, states often incorporate a combination of these approaches into their management programs.[66]

A. The “Do-Nothing” Approach

The “do-nothing” approach is as simple as it sounds: local governments allow coastlines to flood and erode naturally, without interference or protection.[67] States typically use this approach in areas devoid of any structures.[68] States also use this approach in areas where local experts have ascertained a low erosion rate.[69] The “do-nothing” approach is considered the most environmentally-friendly and cost-effective in terms of implementing.[70] However, in developed areas, the “do-nothing” approach has proved to be the least effective response in the long-term because while long-term costs remain low, land, habitats, and property are inevitably lost- forcing entire communities to relocate.[71]

Oregon has adopted the “do-nothing” approach in its CMP through its limitations on permits for “beachfront protective structures.”[72] Goal 18 of its program specifies that local governments may issue permits for beachfront protective structures “only where development existed on January 1, 1977,” essentially prohibiting shoreline armoring for areas developed in 1977 or later.[73] North Carolina has codified similar restrictions into a statute, prohibiting all permanent erosion control structures, with very few exceptions.[74] North Carolina sets limits on temporary erosion control structures as well, authorizing the repair or replacement of such structures it only originally permitted before July 1, 1995, or if the structure is located adjacent to a designated Natural Heritage Area and can be brought into compliance with all current rules and applicable regulations.[75] Both states also implement some form of coastal erosion protection measures, especially in places where new and existing developments are at risk,[76] following the general trend of how states incorporate the do-nothing approach into their coastal management practices.[77]

B. Managed Retreat or Realignment

Managed retreat, also referred to as “managed realignment,” “resilient relocation” and “transformational adaptation,”[78] is the “strategic relocation of structures or abandonment of land to manage natural hazard risk.”[79] In practice, managed retreat involves relocation or demolishment of structures,[80] setbacks, and rolling easements.[81] With relocation, local programs often offer financial assistance or implement buy-back programs to help relocating property owners with relocation costs or compensate them for property loss.[82] State and local governments generally use buy-back programs to incentivize coastal property owners to move inward, typically buying coastal homes directly from the owners,[83] then demolishing them, or renting them out until the homes are irreparably damaged.[84]

Alternatively, governments may impose setback requirements in new development permits, requiring new development to be sited upland.[85] State legislation or municipal codes typically mandate setback requirements, establishing the setback distances in one of two ways.[86] Arbitrary setback lines are set a distinct distance from a coastal feature, like a tide-line or cliff, whereas erosion rate setbacks are based on historic or projected annual erosion rates of an area.[87] Setback requirements typically apply only to new developments;[88] meanwhile, rolling easements address both new and current properties and uses.[89] The Environmental Protection Agency (EPA) defines rolling easements as an interest in land along the shore that ensures inland migration of its boundary as the shore erodes.[90] Rolling easements involve a multitude of requirements and coastal management practices, generally including no shoreline armoring; a rolling shoreline boundary that diminishes property owners’ rights and restricts development of new structures; and provisions for public access.[91] Thus, governments may use rolling easements to require removal of property when it becomes located seaward of a rolling shoreline boundary due to erosion.[92]

Managed retreat is recognized as a more cost-effective practice than shoreline armoring, and maintains natural shoreline habitats and dynamics.[93] However, managed retreat presents a number of challenges concerning property owners’ rights, making it a difficult approach to implement.[94] Relocation, setbacks, and rolling easements can displace property owners through a total loss of their property, or diminish the property of its economic value, causing takings claims for compensation.[95] Most commonly, permanent physical occupation of private property often results in the government compensating property owners for their loss.[96] Not only does “permanent physical occupation” include actual government control of private property,[97] known as eminent domain,[98] but also when a public access easement over the property amounts to a physical occupation.[99] The Fifth Amendment’s Takings Clause provides for compensation, stating, “nor shall private property be taken for public use, without just compensation.”[100] Under just compensation, property owners typically receive the “fair market value” of their property, or what a willing buyer would pay a willing seller.[101]

If a regulation does not amount to a “permanent physical occupation,” a property owner may still bring a regulatory takings claim if a regulation deprives the owner of the property’s total economic value.[102] This places a high burden on a property owner to prove a regulation has removed all economically beneficial or productive options from his or her land- a difficult standard to meet.[103] The Lucas court recognized, however, that a regulation requiring “land to be left in its natural state” may cause property to lose all economic value, so as to render a regulatory takings claim successful.[104] For state and local governments implementing a managed retreat approach through similar regulations, this can be a nearly unaffordable option if found to have effectuated a takings.[105]

When property owners cannot outwardly prove total loss of a property’s economic value, their takings claim may still succeed if the owner can satisfy the Penn Central[106] balancing test.[107] The Penn Central test applies when a land use regulation decreases property value, but not totally.[108] Under Penn Central, the three factors courts consider are 1) the character of the government’s action; 2) the extent the regulation diminished the property’s economic value; and 3) the effect of the regulation on the owner’s reasonable investment-backed expectations.[109] Regulatory takings claims are often fruitless for landowners, as the government is typically successful in proving the regulation does not excessively infringe upon private property rights.[110] However, litigation is still time-consuming for the government, possibly delaying coastal management projects for years, while also fueling hostility between coastal property owners and the government.[111] Even when property owners are successful, compensation does not account for the social, cultural, and psychological effects of displacing owners from their homes, making managed retreat an option with much political contention.[112] Thus, the use of the managed retreat approach has been limited both because of political opposition and expenses.[113]

Some states, however, have incorporated managed retreat into their coastal management strategies. For example, in Maine, the Municipal Shoreland Zoning Act requires a seventy-five foot setback for residential development and a twenty-five foot setback for general development.[114] Further, the state permits reconstruction of buildings damaged by coastal storms only if several statutory requirements are met, including moving the building back from the beach “to the extent practicable.”[115] The state of South Carolina has adopted a forty-year managed retreat policy, establishing a baseline and setback line that are continuously moved landward every eight to ten years, based on the best available scientific and historical data.[116] The lines differ between erosion zones along the state’s coast, with the baseline established at the primary dune crest or historic shoreline, and the setback line must be no less than twenty feet landward from the baseline or at a distance forty times the average annual erosion rate of the area.[117] These lines limit construction of both development and erosion-control structures, prohibiting construction seaward of the baseline and imposing limitations on structures between the baseline and setback line.[118] Thus, while managed retreat is an effective approach with usually typically clear guidelines and procedures, its use is limited due to the often-inevitable property rights controversies and potential compensation claims.

C. Shoreline Armoring

Shoreline armoring is the use of physical structures to re-enforce coastlines against erosion.[119] These physical structures are typically hard and “immoveable,” and include structures such as seawalls, breakwaters, rock revetments, and jetties and groins.[120] Seawalls essentially stand parallel to the shoreline, intended to absorb wave energy.[121] Breakwaters are similar to seawalls, except they stand within the water in order to minimize wave impact before waves reach the shoreline.[122] Revetments, on the other hand, are walls constructed on the shoreline that slope along the shoreline’s natural contours, effectively dissipating and directing wave energy up slope.[123] Jetties are long structures designed perpendicular to the shoreline and typically adjacent to inlets, ultimately preventing sand from entering inlets.[124] Groins are also constructed perpendicular to the shoreline; although they trap and conserve sand, widening a portion of up-drift beaches.[125] These structures are usually constructed out of concrete, an expensive process requiring permits, engineering plans, and lengthy construction, resulting in tens of thousands of dollars.[126] However, these thousands of dollars can ultimately save millions of dollars of waterfront real estate because shoreline armoring effectively, in the short-term, reduces waves, storms, and flooding impacts on coastlines.[127]

Although the primary purpose of shoreline armoring is to protect coastlines from erosion, in the long-term shoreline armoring inevitably contributes to coastline erosion because the hard structures hinder the natural supply of sand and sediment to adjacent beaches.[128] Essentially, hard armoring modifies the natural inland migration of sand, creating a “fixed” shoreline that over time disappears into the ocean due to the lack of sand.[129] Ultimately, shoreline armoring accelerates coastal erosion, resulting in a reduction of available beaches for recreational use, detrimental impacts to, and consequential losses of, marine life and habitat, and economic loss to coastal communities.[130] Further, the vitality of hard-armoring structures is temporary because the absorption of wave impacts leads to cracking, tilting, sliding, and eventually, failure.[131] Despite the consequences of shoreline armoring, it has remained the predominant approach of many U.S. coastal states because property owners are more familiar and comfortable with hard armoring practices, and until recently, shoreline armoring permits were quicker and cheaper for property owners to obtain.[132] Currently, shoreline armoring exists on an estimated twelve to thirty percent of state shorelines and occupies an estimated fifty to seventy percent of urban coastlines.[133]

The state of Florida heavily relies upon shoreline armoring, with more than one hundred miles of Florida’s shorelines employing hard armoring in 2012.[134] Although Florida’s Coastal Armoring Policy recognizes the adverse effects of shoreline armoring, the state still heavily permits shoreline armoring, with increases in issued permits during active hurricane seasons.[135] Permits must meet criteria requirements, which involve an analysis of the eligibility of the development needing protection, the vulnerability of the area, possibility of loss of public access to the beach, and any significant adverse effects.[136]

Similarly, the state of Alabama, which also heavily relies upon shoreline armoring,[137] imposes permitting requirements; however, a permit applicant must submit an application to the two agencies responsible for the implementation of the Alabama CMP, as well as the US Army Corps of Engineers Mobile District.[138] In both states, shoreline armoring remains the predominant method for erosion control.[139] Ultimately, shoreline armoring remains the most common coastal management practice due to its popularity among coastal property owners,[140] although states are beginning to shift towards living shorelines as an alternative due to the realization of the temporary and erosive nature of shoreline armoring.

D. Living Shorelines: Beach Nourishment & Restoration

Living shorelines involve a variety of “soft armor” practices to protect shorelines from erosion.[141] The concept behind living shorelines is to restore or enhance shorelines by using natural materials such as vegetation, sand, and rocks.[142] Vegetation used is primarily native to the specific coastline, typically placed along salt marshes, bays, beaches, and other coastal areas.[143] The roots essentially stabilize the shoreline, while the vegetation itself helps absorb powerful wave energy.[144] The use of sand is often referred to as beach nourishment, which generally involves adding large quantities of sand and other sediment to eroding beaches- temporarily replenishing the beach of its lost sand.[145]

Living shorelines provide a variety of benefits to beaches and their communities. Vegetation has water purification qualities, while also encouraging native wildlife into the area by providing habitat for both aquatic and terrestrial wildlife.[146] Living shorelines are also more effective long-term against erosion, as well as less expensive than shoreline armoring techniques.[147] NOAA has concluded living shorelines perform better during major storms than hard structures.[148] For example, following Hurricane Irene on the coastline of central Outer Banks, North Carolina, seventy-six percent of seawalls were damaged, with assessed damage ranging from landward erosion to seawalls’ complete collapse.[149] Meanwhile, little to no damage, including erosion, was recorded on beaches with living shorelines.[150] On average, the cost of living shorelines, depending on the technique implemented, range from $50 to $150 per linear foot, whereas seawalls generally range from $80 to $1,200 per linear foot.[151] The Deer Creek Project in North Carolina, a 200-foot living shoreline composed of bagged oyster shells, is a testament to the cost difference between living shorelines and shoreline armoring.[152] The project took only a week to implement and costed an estimated $1,000, which included the $200 general permit fee – amounting to around $12 of material per yard.[153] Seawalls in Deer Creek County, on the other hand, are estimated to cost $450 per yard.[154]

There are a range of detriments and challenges presented by living shorelines however, especially in beach nourishment projects. In general, living shorelines are a fairly new practice, meaning there is little data available on the long-term risks involved.[155] Further, governments designed shoreline stabilization permits and regulations for traditional shoreline armoring techniques, presenting difficulties in ensuring new living shoreline techniques comply with regulatory and permit requirements.[156] Beach nourishment projects are perhaps the most controversial of living shoreline practices due to the environmental harm they inflict during construction and after implemented.[157] The added sand is a limited resource, often mined from other aquatic areas and damaging those ecosystems.[158] The heavy machinery used, along with the massive amounts of sand dumped at once, often disturbs or kills native wildlife.[159] Moreover, the addition of sand to an already-eroding coastline is only a temporary solution and, as the new sand erodes, kelp beds, intertidal reefs, seagrass beds, and the creatures inhabiting these areas are smothered by the surplus of sand washing into the ocean.[160] Nevertheless, living shorelines are becoming a popular strategy for coastline management,[161] with NOAA, several non-governmental organizations, and many state and local resource management agencies advocating for their use over other strategies.[162]

The federal government and state and local agencies alike are promoting the use of living shorelines because living shorelines are a “nature-based method that is a lot less costly,” as Thomas Bostick, chief of the Army Corps of Engineers (Corps), stated in promotion of living shorelines.[163] Living shorelines not only cost less to implement and maintain,[164] but also reduce the amount of potential takings claims by allowing property owners to preserve and remain on their properties.[165] Government entities, along with environmental organizations like the American Littoral Society, also encourage the use of living shorelines due to the environmental benefits living shorelines provide.[166] Thus, both Congress and federal agencies are beginning to seek ways to influence a nationwide shift towards living shorelines. In 2017, the Corps’ authorized its first nationwide permit for living shorelines, making the permit process more efficient and competitive with shoreline armoring permits;[167] meanwhile, the House of Representatives recently passed a bill to allocate more federal funding towards living shorelines projects.[168]

Living shorelines are a popular management strategy in California, with a variety of techniques implemented so far, such as native Olympia oyster reefs, eelgrass beds, tidal wetlands revegetation, upland ecotones, sand beaches, and coastal dune restoration projects.[169] The California Coastal Conservancy, one of the three state agencies responsible for the state’s CMP development and implementation, has partnered with seventeen organizations and agencies, including NOAA, EPA, and the California Department of Fish and Wildlife, to fund and implement the San Francisco Bay Living Shorelines Project.[170] The project used a variety of living shoreline techniques in order to assist the state in “design[ing] future projects and develop[ing] best practices for managing living shorelines and submerged habitats.”[171]

New Jersey is conducting similar projects along its coastline, collectively known as the New Jersey Living Shoreline Program.[172] In an effort to simplify the implementation of the program and promote living shorelines, in 2013 the state adopted the Coastal General Permit 24, known as the Living Shorelines General Permit.[173] Among other things, approval for the permit requires minimal disturbance of surrounding ecosystems, a demonstration of improvements or maintenance of ecosystems’ values and functions, and compliance with various laws, such as the Wetlands Act of 1970.[174] Because of the multitude of benefits living shorelines provide coastal communities and wildlife, along with their effectiveness in terms of cost and durability, both states and private property owners are beginning to shift towards living shorelines as a way to protect property and communities from erosion, while restoring natural shorelines and habitats.[175]

 

IV. State-Local Collaboration

Because the CZMA affords states flexibility in designing their CMPS, so long as they follow the CZMA requirements, states vary in the ways they choose to collaborate with local governments.[176] Some states, like Alabama, retain most or all implementation of their CMP within the state government and its agencies.[177] Other states, like Washington, primarily rely upon city and county governments to implement its coastal program.[178] States like Wisconsin may even involve interest groups and tribal representatives in the promulgation and implementation of its CMP.[179] Due to the variances between states and how they choose to develop and implement their CMPs, part A focuses primarily on state governments and their agencies, while part B focuses on state government reliance on local governments and other authorities.

A. State Government Oversight & Control

The management of a state CMP rests primarily in the state itself.[180] State governments may choose to codify their CMPs into law or a network of laws.[181] For example, the state legislature of Mississippi codified the state’s CMP into state law, the Mississippi Coastal Wetlands Protection Act.[182] Maine’s CMP, on the other hand, is codified into a network of nineteen state laws.[183] In vesting authority into state agencies, a state may designate a lead agency or divide the authority among several agencies.[184] Georgia’s Department of Natural Resources, Coastal Resources Division, for example, is the lead agency responsible for the development and implementation of Georgia’s CMP,[185] whereas California relies upon three state agencies: the California Coastal Commission, the San Francisco Bay Conservation and Development Commission, and the California Coastal Conservancy.[186]

There are a number of advantages to state governments’ retaining exclusive control over their state CMPs, instead of delegating control to local governments. By state agencies’ maintaining the lead on regulatory and permitting practices under a state’s CMP, local fragmentation is essentially avoided.[187] Retaining centralized authority in the state government also alleviates funding and staffing discrepancies between local governments.[188] Further, a state CMP with exclusive control resting in the state government prevents local governments, motivated by economic development, from “gut[ting]” a state’s CMP.[189]

In practice, few coastal states maintain exclusive control over the implementation of their coastal management programs. In a survey of twenty-three “oceanfront” states, only six of the surveyed states exercise exclusive control over their CMPs through state agencies.[190] Nevertheless, even when states choose to delegate the majority of control over CMPs to local governments, they retain the power to oversee and monitor CMP implementation.[191] For example, most coastal states that grant permitting authority to local governments require state approval of local ordinances, plans, and regulations guiding local permitting practices.[192] Even when state approval is not required, as in Connecticut, local governments’ ordinances and regulations are subject to some form of state oversight, such as state agency notice and comment requirements.[193]

B. Local Government Authority & Development

In many coastal states, a state’s CMP development and implementation is divided between the state and its local governments.[194] In these states, the state maintains some control through designation of a lead agency or multiple state agencies, which typically retain responsibility for overarching policy decisions.[195] What authority and responsibilities state governments choose to delegate to local governments varies from state to state.[196] By providing local governments the ability to implement state CMPs, local governments are able to address and tailor their regulations, permitting decisions, and policies to local-specific issues and needs, while still achieving the overall goals of a state’s CMP.[197]

Some states, like Louisiana, delegate permitting authority only to local governments with a state-approved “Local Coastal Program.”[198] In Louisiana, the development of a Local Coastal Program, and thus gaining permitting authority, is voluntary, with the permitting authority limited to coastal uses of local concern.[199] Meanwhile, states like North Carolina, for example, retain permitting authority for major and general permits within the Coastal Management Division of the North Carolina Department of Environmental Quality,[200] leaving county and municipal governments with permitting authority only for minor permits.[201] Other states may divide CMP authority between the state and local governments based on geographical areas.[202] In Virginia, for example, the Virginia Marine Resources Commission retains permitting authority for development in submerged wetlands, tidal wetlands, dunes, and beaches;[203] on the other hand, counties and municipalities, through local wetland boards, set local ordinances to regulate and permit development on wetlands and dunes above the mean low water line.[204]

In addition to permitting authority, coastal states often depend upon local governments for the implementation of a state’s CMP through regulation and enforcement measures. For example, in Oregon, counties and municipalities are responsible for implementing Oregon’s CMP through land use regulations that reflect Oregon’s CMP conservation goals for estuarine resources, coastal shore lands, beaches, dunes, and ocean resources.[205] In Georgia, local governments implement Georgia’s CMP and assist in the long-term planning, economic development, and natural resource protection of Georgia’s coastline through developing local comprehensive plans, laws, and zoning ordinances, as well as collaborating with chambers of commerce and economic development authorities.[206] In implementing a state’s CMP, local governments are able to incorporate living shoreline practices into local management and regulation in a way most conducive to local-specific needs.[207] Therefore, much like the structure of the CZMA itself in providing states flexibility in order to address their respective political and geographical features, shared authority between state and local governments provides local governments with flexibility to make a state’s CMP effective.[208]

Dividing regulatory authority over a state’s CMP between local governments may still, however, present issues regarding inclusion. While the effects of climate change are global, the effects are most severe and immediate on people of color and communities in poverty.[209] These communities are considered the most “vulnerable” to climate change because they lack the resources necessary to prepare, withstand, and recover from the direct and indirect effects of climate change, while also predominantly living in areas more susceptible to natural disasters.[210] However, climate change adaptation planning often fails to take into account concerns of these vulnerable communities because these communities lack adequate representation in local and state committees,[211] and do not receive a sufficient opportunity to participate in public planning meetings.[212] Known as the climate gap, this problem extends to the development of coastal management strategies in vulnerable communities.[213] Consequently, marginalized fail to have their immediate needs met or accounted for during coastal erosion adaptation strategy development.[214]

One solution, as many geographers and anthropologists have suggested, is for state and local governments explicitly involve multiple forms of knowledge in the planning and development of adaptation strategies, which are often included in state CMPs.[215] The state of Wisconsin has done just that, establishing the Wisconsin Coastal Management Council, which partners with the Department of Administration, Bureau of Intergovernmental Relations, in order to implement Wisconsin’s CMP.[216] The Council is responsible for setting the policy direction for the state’s CMP, and is comprised of members representing a variety of interests including state agencies, local governments, tribal governments, and several general public areas.[217] As a result, more of the state’s coastal program funds have been allocated towards underrepresented communities to improve participation in and development of coastal management initiatives.[218] Ultimately, the general trend suggests most state governments collaborate with local governments in order to implement their state CMPs, as well as to determine the most effective adaptation strategies to address coastal issues, like coastline erosion.

 

V. Living Shorelines as a Viable Approach for Communities & Government

Although the structure of the CZMA affords states the flexibility and freedom to adopt whichever coastline erosion approach into their CMPs, states should primarily adopt the living shorelines approach. Living shorelines are better for coastal communities and wildlife because of the protection and environmental benefits living shorelines provide; more cost effective for local and state governments because of the less expensive materials used and living shorelines’ resiliency to wave energy; and embody the coastal conservation and management policies of the CZMA. States should adopt living shorelines into their CMPs in order to help prevent and reduce shoreline erosion, while protecting and restoring coastlines and their habitats.

A. Coastal Community Protection

As mentioned in Section II, coastal erosion affects surrounding communities in a variety of ways.[219] When shorelines wash away, the natural barriers protecting communities from storm surges and flooding vanish, leaving coastal communities vulnerable.[220] In the event of a storm surge flooding a community, homes and buildings are either damaged or completely lost.[221] If the flooding is rapid enough, lives may be lost as well, with drowning in floodwaters recorded as the leading cause of death during hurricanes and storm surges from 1963 to 2012.[222] Living shorelines serve as a natural barrier between coastal communities and storms, reducing the impact of waves and preventing major flooding.[223]

Even after seawater retreats following a storm surge, danger is still present. As the ocean encroaches on coastlines, saltwater seeps into both the ground and freshwater sources alike.[224] If coastal areas depend on groundwater wells for their source of usable water, as most do, their primary source of fresh water is no longer usable due to salt intrusion and contamination.[225] Living shorelines address and provide remedies to these issues by creating, as well as reinforcing, natural barriers against storm surges and flooding,[226] and effectively filtering out and absorbing salt and other minerals entering nearby groundwater.[227] Marshes, for example, have been recorded to remove up to eighty percent of nitrate from groundwater within five meters of shorelines, effectively improving water quality.[228]

Shoreline armoring structures, on the other hand, are less resilient to coastal storms long-term, without providing any additional protection, like filtration. Shoreline armoring structures, like sea walls, reflect wave energy.[229] As a result, the bases of these concrete structures gradually tilt seaward, allowing waves to breach and ultimately, causing the structures to collapse and leave coastal communities vulnerable.[230] Meanwhile, living shorelines disperse wave energy across the entire living shoreline structure, reducing the wave energy and subsequent damage on the living shoreline structure itself, while also serving as a natural breakwater for the coastline.[231] Even when coastal storms damage living shorelines, living shorelines typically completely recover without human intervention- sometimes reaching full recovery within a year.[232] Thus, compared to shoreline armoring, living shorelines effectively provide coastal communities with more long-term protection against both the direct and indirect effects of coastal storms.

B. Benefits to Wildlife

Concerning wildlife, the effects of coastal erosions are striking. Coastal erosion forms new coastlines, which generally produces habitat loss and fragmentation, as well as presenting new obstacles and obstructions to migration patterns.[233] Species may either experience nearly instantaneous population loss, or may slowly near extinction over time as they struggle to adapt.[234] For example, loggerhead turtles are predicted to lose forty-two percent of their current nesting beaches and their adaptation response of crowding on the remaining available beaches, will likely result in an increase in nest infections, nest destructions by competing turtles, and increased predation.[235] Saltwater intrusion will also affect wildlife and plant species alike.[236] Living shorelines, in turn, while preventing coastline erosion, also create natural habitats for coastline species.[237] Living shorelines may even rebuild lost habitats and corridors, effectively restoring species’ populations.[238] A primary example of this is the Goose Creek Tidal Wetlands Bank in Virginia, a salt marsh created to protect an adjacent coastal wetland from development and erosion.[239] After its construction, the living shoreline attracted twenty-one new species of fish, as well as invertebrates like shrimp and clams.[240]

While living shorelines provide, restore, and enhance natural habitats for coastal wildlife, shoreline armoring structures diminish, and even destroy, habitats. Shoreline armoring structures directly destroy habitats they are constructed upon, while also impeding the growth of adjacent vegetation.[241] Further, when shoreline armoring structures disrupt the natural deposit of sand and sediment onto beaches, causing beaches to gradually submerge, habitats and corridors are lost.[242] In a review compiling eighty-eight studies around the U.S. on shoreline armoring’s effects on wildlife, marine researchers concluded shoreline armoring was associated with declines in both species biodiversity and abundance.[243]  Meanwhile, living shorelines create, enhance, and prolong the existence of coastal habitats and corridors, increasing and maintaining biodiversity along coastlines.[244] For example, living shoreline projects along the Eastern U.S. coastline, as a part of the Hurricane Sandy Coastal Resilience Program, both created and restored nearly forty acres of wildlife habitat, resulting in an influx of biodiversity to the areas.[245]

C. Cost Comparison

Compared to other coastline erosion strategies, living shorelines are significantly more cost-effective, both initially and in the long-term. Although initial costs vary depending on the type of material and living shoreline developed, according to researchers for the National Wildlife Federation, the costs are overall “significantly less” than those for hard shoreline armoring structures.[246] For living shorelines created out of recycled oyster shells, which create shellfish habitat and improve water quality while reducing wave energy, the cost generally amounts to $75 per foot.[247] Sand fill runs around $15 to $20 per cubic foot, and marsh, and dune plants typically cost $2.50 to $5.50 per square yard.[248] In comparison, as noted in Section III, part D, seawalls generally range from $80 to $1,200 per linear foot.[249]

Living shorelines are also more durable than shoreline armoring, meaning fewer expenses on reinstallation or reinforcement.[250] Shoreline armoring structures are estimated to have a general lifespan of fifteen to twenty years, whereas living shorelines installed in the mid-1990s are reported to have remained “in very good condition” nearly thirty years later.[251] A report by the South Atlantic Alliance concluded that while various types of shoreline armoring, from concrete bulkheads to granite revetments, have an average lifespan between twenty to fifty years, living shorelines have an “indefinite” lifespan.[252] The difference in lifespan is primarily due to living shorelines’ resiliency to coastal storms,[253] with living shorelines requiring little to no attention, and shoreline armoring generally needing expensive repairs, following storms.[254] For example, collapsed seawalls generally increase the cost of installation for new seawalls by an average of twenty percent.[255] A survey in Fort Lauderdale, Florida, found contractors charge between $650 to $2,000 per linear foot to repair seawalls.[256] While repair costs may vary state to state, the Fort Lauderdale range is similar to the rest of the U.S. coastlines’ repair costs.[257] Meanwhile, living shorelines cost little to nothing in repairs due to their ability to repair themselves.[258]

Living shorelines effectively reduce coastal property damage as well. In a joint study conducted by the Nature Conservancy and the insurance industry, researchers found living shorelines in New York and New Jersey prevented $625 million in damage during Superstorm Sandy in 2012.[259] The study also predicted, based on economic and risk-management models that the Gulf Coast would suffer $134 billion in damage in the next twenty years; researchers concluded living shorelines could prevent nearly forty-three percent ($57.4 billion) of that damage.[260] Construction for shoreline armoring practices, on the other hand, was estimated to cost nearly as much as the damage the structures would prevent, nullifying any financial benefit.[261] Ultimately, property owners with shoreline armoring end up spending more on maintenance and repair.  For example, following Hurricane Irene in 2011 and Hurricane Arthur in 2014, North Carolina coastal property owners with seawalls spent double the price to repair property damage and four times as much for annual shoreline maintenance in comparison to property owners with living shorelines.[262]

Living shorelines also have indirect financial benefits on coastal properties by increasing coastal property value.[263] Because living shorelines are composed of natural vegetation and materials, they inherently increase the aesthetic value of a property.[264] “Aesthetics greatly affect property values and hence the tax base,” a report by the North Carolina Coastal Federation stated in its evaluation of living shoreline costs and benefits, finding living shorelines increase coastal property value.[265] The aesthetics of living shorelines indirectly benefit coastal communities as well, increasing tourism by providing more beaches for tourists to access, as well as more recreational opportunities, such as birdwatching, boating, and fishing.[266]

On the other hand, shoreline armoring provides only a temporary economic benefit to coastal property owners.[267] Individual property values typically increase initially following construction of a seawall; however, as more seawalls are constructed along a coastline, waterfront property values gradually decline.[268] Passive erosion caused by seawalls and other shoreline armoring techniques reduce the amount of beach surrounding coastal properties as well, further diminishing property value, as well as decreasing tourism.[269]  Ultimately, due to the cost of the natural resources used, their durability in storm events, their efficiency in preventing property damage, and indirect financial benefits, living shorelines are more cost-effective both upfront and in the long-term for coastal communities and their governments to implement.

D. CZMA Policy Embodiment

Living shorelines also exemplify the coastal conservation and management CZMA policies established by Congress. Congress intended for the CZMA to establish an effective federal-state program that would, among other things, provide for “the protection of natural resources, including wetlands, floodplains, estuaries, beaches, dunes, barrier islands, coral reefs, and fish and wildlife and their habitat, within the coastal zone.”[270] The CZMA promotes the “management of coastal development to improve, safeguard, and restore the quality of coastal waters, and to protect natural resources and existing uses of those waters.”[271] Essentially, the CZMA prioritizes the protection and management of coastal zones and their habitats, natural resources, and water quality.[272]

Living shorelines not only protect natural resources from erosion, but also establish habitats for coastal fish and wildlife, while also improving water quality.[273] As discussed in depth throughout this section,[274] living shorelines serve as natural breakwaters, reducing wave energy as waves reach shore, protecting coastal communities and preserving wildlife habitats.[275] Living shorelines further provide, restore, and enhance coastal wildlife habitat; for example, oyster reefs provide habitat and food for shellfish, invertebrates, fish, birds, and wildlife alike.[276] In return, the shellfish and invertebrates present act as natural filtration devices, improving coastal water quality.[277] A recent study conducted by NOAA determined that living shorelines  combatted climate change by reducing carbon dioxide in the atmosphere, thereby improving coastal resilience to erosion.[278]

Shoreline armoring, even where implemented with the intentions to carry out the policies and purposes of the CZMA, ultimately fail to do so because hard armoring structures are less effective at preventing erosion and protecting coastal communities,[279] detrimental to wildlife habitats and natural resources in coastal zones,[280] and can even degrade water quality.[281] The short lifespan of shoreline armoring structures often leaves coastal communities and habitats vulnerable during coastal storms and massive flooding events. In 2018, for example, a series of sea walls along the Northeastern U.S. coast crumbled in the midst of a coastal storm.[282] The sea walls’ collapse resulted in millions of dollars in damages, and left coastal communities and habitats alike unprotected against more coastal storms days later.[283] Concerning water quality, a 2017 shoreline survey in Michigan discovered sea walls, by diminishing local wildlife and reducing sedimentation on adjacent shorelines, caused stagnation, thereby reducing water quality.[284] By failing to protect coastal communities, reducing wildlife habitats and natural resources, and degrading water quality, shoreline armoring fails to embody the conservation and management policies of the CZMA.[285] Living shorelines, however, “protect[],” “improve,” and “restore” coastal zones and their communities, habitats, natural resources, and water quality- effectuating the conservation and management policies of the CZMA.[286]

 

VI. Conclusion

With coastlines continuing to vanish into the ocean, it is clear the longevity of many coastal communities is waning. Globally, from 1984 to 2015, researchers estimated the permanent loss of coastal land due to erosion amounted to 28,000 kilometers – the equivalent to the circumference of Haiti.[287] Communities wishing to remain along the coastline, or which may not have the means to leave, are consequentially subjected to a number of hazards, ranging from increased vulnerability to storms and flooding to saltwater intrusion and contamination to their drinking water supplies.[288] Wildlife continues to vanish along coastlines as a result, too, stripping regions of the biodiversity they depend upon to survive.[289] Accordingly, states and their local governments wishing to extend the lifespan of coastlines and their communities must implement coastal management strategies that effectively reduce coastal erosion and protect shorelines from future erosion.

States should begin shifting towards a living shoreline approach because the CZMA affords states the flexibility to develop and implement coastal management plans and strategies unique to their regions’ issues and needs. The wide variety of materials states may use in constructing their living shorelines, from sand to vegetation to oyster shells,[290] provides states and their local governments with the opportunity to implement different site-specific adaptive structures. For example, states could outfit beaches with generally low wave energy action with oyster shell reefs,[291] whereas beaches with adjacent graded banks will benefit more from marsh sills.[292] Thus, overall erosion control can be more effective by employing adaptive measures that are sensitive to local conditions because states and their local governments are able to adapt living shoreline methods to what each region would benefit most from, without much of a cost difference.[293]

Coastlines are dynamic in nature, constantly moving and evolving, requiring humans, wildlife, and vegetation alike to adapt and shift with them.[294] Congress developed the CZMA in such a way as well, providing states with federal funding to manage coastlines in exchange for following overarching guidelines, while allowing states to adapt their CMPs to their specific geographic regions and needs.[295] The majority of states have followed the dynamic trend in developing and implementing their CMPs, providing for local government involvement and authority in order to account for locality-specific needs.[296] States should adopt the most dynamic approach to coastline erosion protection – living shorelines, because living shorelines are dynamic in their various forms and in their adaptability to the environment once constructed, remain resilient in storms, cost less than shoreline armoring in both implementation and maintenance, revitalize biodiverse coastal areas, and extend the longevity of coastal lifestyles in the face of a changing world.

 

Endnotes

[1] Doyle Rice, Shrinking Shores: Half the World’s Beaches Could Disappear Because of Climate Change, Study Says, USA Today (Mar. 2, 2020, 12:45 PM), https://www.usatoday.com/story/news/nation/2020/03/02/climate-change-beaches-could-disappear-by-2100/4904684002/.

[2] Stefano Valentino, New Study Forecasts Dramatic Beach Erosion along U.S. Coastline, Washington Spectator (May 2, 2020), https://washingtonspectator.org/beach-erosion-valentino/.

[3] Id.

[4] Beaches in Danger: 10 Disappearing Shorelines, Frommers, https://www.frommers.com/slideshows/825057-beaches-in-danger-10-disappearing-shorelines (last visited Feb. 5, 2021).

[5] See, e.g., Shaina Sadai & Jeff Sebo, The Coasts are Disappearing, We Need to Protect Them for Everyone, Sentient Media (Aug. 13, 2020), https://sentientmedia.org/coasts-disappearing-protect-for-everyone/ (discussing the importance of preserving both human and animal homes and lives as coastlines recede).

[6] Rice, supra note 1.

[7] Michalis I. Vousdoukas et al., Sandy Coastlines under Threat of Erosion, 10 Nature Climate Change 260, 260 (2020).

[8] Aria Bendix, 8 American Cities That Could Disappear by 2100, Business Insider (Mar. 17, 2020, 8:13 AM), https://www.businessinsider.com/american-cities-disappear-sea-level-rise-2100-2019-3.

[9] Sean Breslin, New NASA Maps Show Just How Fast New Orleans is Sinking, Weather Channel (May 20, 2016), https://weather.com/news/climate/news/nasa-maps-new-orleans-sinking.

[10] Lindsay Koob, Under the Sea, Charleston City Paper (Sep. 12, 2007, 4:00 AM), https://www.charlestoncitypaper.com/story/under-the-sea?oid=1111416.

[11] Bendix, supra note 8.

[12] Darryl Cohen, About 60.2M Live in Areas Most Vulnerable to Hurricanes, US Census Bureau (July 15, 2019), https://www.census.gov/library/stories/2019/07/millions-of-americans-live-coastline-regions.html#:~:text=About%2094.7%20million%20people%2C%20or,a%2015.3%25%20growth%20since%202000.

[13] Eric Moorman et al., States Shift from Seawalls to Living Shorelines, Bloomberg BNA Environment & Energy Report (July 10, 2019), https://www.pillsburylaw.com/print/content/25687/states-shift-from-seawalls-to-living-shorelines.pdf.

[14] Meghan Keneally & Evan Simon, Disappearing Beaches: a Line in the Sand, ABC News, https://abcnews.go.com/US/deepdive/disappearing-beaches-sea-level-rise-39427567 (last visited Feb. 5, 2021).

[15] Id.

[16] Valentino, supra note 2.

[17] Id.

[18] Id.

[19] Coastal Erosion, U.S. Climate Resilience Toolkit, https://toolkit.climate.gov/topics/coastal-flood-risk/coastal-erosion (last visited Feb. 2, 2021).

[20] Id.

[21] Valentino, supra note 2.

[22] Coastal Erosion, supra note 19.

[23] United Nations Framework Convention on Climate Change, United Nations 1, 7 (1992).

[24] John Cook et al., Consensus on Consensus: a Synthesis of Consensus Estimates on Human-Caused Global Warming, 11 Env’t. Research Letters 1, 6 (2016).

[25] Scientific Consensus: Earth’s Climate is Warming, NASA, https://climate.nasa.gov/scientific-consensus/#* (last updated Feb. 9, 2021).

[26] Valentino, supra note 2.

[27] Ove Hoegh-Guldberg1 & John F. Bruno, The Impact of Climate Change on the World’s Marine Ecosystems, 328 Science 1523, 1523 (2010).

[28] Coastal Erosion, supra note 19.

[29] Rebecca Lindsey, Climate Change: Global Sea Level, NOAA (Jan. 25, 2021), https://www.climate.gov/news-features/understanding-climate/climate-change-global-sea-level.

[30] Id.

[31] Id.

[32] William V. Sweet et al., Executive Summary in Global and Regional Sea Level Rise Scenarios for the United States, at vi (Jan. 2017), https://tidesandcurrents.noaa.gov/publications/techrpt83_Global_and_Regional_SLR_Scenarios_for_the_US_final.pdf.

[33] Hector Campbell, The Effects of Erosion and Sea Level Rise on the Coastal Villages of Newtok and Kivalina, Sciencebuzz Symposium (2018), https://www.sciencebuzz.com/the-effects-of-erosion-and-sea-level-rise-on-the-coastal-villages-of-newtok-and-kivalina/.

[34] Donald Scavia et al., Climate Change Impacts on U.S. Coastal and Marine Ecosystems, 25 Estuaries 149, 151 (2002).

[35] Global Warming and Hurricanes: An Overview of Current Research Results, Geophysical Fluid Dynamics Laboratory, https://www.gfdl.noaa.gov/global-warming-and-hurricanes/ (last revised Sept. 23, 2020).

[36] Lynne M. Carter et al., Southeast and the Caribbean, in Climate Change Impacts in the United States: The Third National Climate Assessment 396, 398 (Jerry M. Melillo et al. eds., 2014).

[37] Robert A. Morton, Introduction to An Overview of Coastal Land Loss: With Emphasis on the Southeastern United States: USGS Open File Report 03-337, https://pubs.usgs.gov/of/2003/of03-337/waves.html (last visited Mar. 18, 2021).

[38] Section 5.2: Coastal Erosion & Sea Level Rise, in State of New Jersey 2019 All-Hazard Mitigation Plan 2 (2019).

[39] Coastal Climate Impacts, USGS, https://www.usgs.gov/centers/pcmsc/science/coastal-climate-impacts?qt-science_center_objects=0#qt-science_center_objects (last visited Feb. 2, 2021).

[40] Campbell, supra note 33.

[41] Quick Facts: New Orleans City, Louisiana, U.S. Census Bureau (2019), https://www.census.gov/quickfacts/neworleanscitylouisiana.

[42] CZMA Overview, NOAA Office for Coastal Management 1, 12 (n.d.).

[43] Coastal Zone Management Act (CZMA), 16 U.S.C. §§ 1451 et seq. (1972).

[44] Coastal Zone Management Act (CZMA): Overview and Issues for Congress, Congressional Research Service (Jan. 15, 2019), https://fas.org/sgp/crs/misc/R45460.pdf.

[45] 16 U.S.C § 1452.

[46] Id. (2).

[47] Id.

[48] The National Coastal Zone Management Program, NOAA Office for Coastal Management, https://coast.noaa.gov/czm/ (last visited Feb. 4, 2021).

[49] Eva Lipiec, Coastal Zone Management Act (CZMA): Overview and Issues for Congress, Congressional Research Service 3, https://www.everycrsreport.com/files/20190115_R45460_1d6c78e274d50e6b7b2b87c895f419945e4c43cb.pdf (last updated Jan. 15, 2019).

[50] Id.

[51] 16 U.S.C. 1455(d); Lipiec, supra note 49, at 2.

[52] 16 U.S.C § 1452(2).

[53] Id. (2)(B).

[54] 16 U.S.C § 1455(D)(2).

[55] Lipiec, supra note 49, at 2.

[56] CZMA Federal Consistency Overview, OCM 3 (Feb. 24, 2020).

[57] 16 U.S.C § 1454; Lipiec, supra note 49, at 3.

[58] 16 U.S.C § 1455(d).

[59] Id.; § 1455; Lipiec, supra note 49, at 3–4.

[60] Coastal Zone Management Act, BOEM, https://www.boem.gov/environment/environmental-assessment/coastal-zone-management-act#:~:text=What%20is%20%22Federal%20Consistency%22%3F,federally%2Dapproved%20coastal%20management%20program (last visited Apr. 10, 2021).

[61] Id.

[62] Id. at 2.

[63] 15 C.F.R. § 923.132 (1992).

[64] Alex Jackson, Coastal Management, Geography AS Notes, https://geographyas.info/coasts/coastal-management/#:~:text=Do%20nothing%20%2D%20The%20easy%20option,to%20the%20government)%20to%20protect (last updated July 6, 2014).

[65] Moorman et al., supra note 13.

[66] Committee on Mitigating Shore Erosion Along Sheltered Coasts, Mitigating Shore Erosion Along Sheltered Coasts, Nat’l. Acad. of Sciences 44 (2007).

[67] Jackson, supra note 64.

[68] Id.

[69] Do Nothing, University of Connecticut, https://beachduneguide.uconn.edu/do-nothing/# (last visited Feb. 19, 2021).

[70] Id.

[71] Ellen M. Douglas et al., Coastal Flooding, Climate Change and Environmental Justice: Identifying Obstacles and Incentives for Adaptation in Two Metropolitan Boston Massachusetts Communities, 17 Mitig. Adapt. Strategy Glob. Change 537, 542 (2012); Physical Management: Coastal Defenses, Geography Site (Nov. 30, 2008), http://www.geography-site.co.uk/pages/physical/coastal/defences.html; Campbell, supra note 33.

[72] Or. Dep’t. of Land Conservation & Dev., Oregon’s Statewide Planning Goals and Guidelines: Goal 18 Beaches and Dunes 2, https://www.oregon.gov/lcd/OP/Documents/goal18.pdf, (last visited Mar. 13, 2021).

[73] Id.

[74] N.C. Ann. Stat. § 113A-115.1(b) (2015).

[75] Id. (c1).

[76] See, e.g., Meg Gardner, Analysis of Shoreline Armoring & Erosion Policies: Along the Oregon Coast, Or. DLCD 7 (Apr. 30, 2015), http://www.beachapedia.org/images/7/78/FINAL_Shoreline_Armoring_Policy_Analysis_Report_April2015.pdf (noting the use of living shorelines to protect popular beaches, like Cannon Beach, from erosion); Brad Rich, Renourishment Project Moves to Phase 3, Coastal Review Online (June 29, 2020), https://www.coastalreview.org/2020/06/renourishment-project-moves-to-phase-3/ (discussing a beach renourishment project along the North Carolina coast).

[77] See generally Jackson, supra note 64 (describing the use of the do-nothing approach as a site-specific determination, rather than a sweeping policy for a state’s coastline).

[78] Managed Retreat, Beachapedia, http://www.beachapedia.org/Managed_Retreat (last updated Oct. 10, 2019).

[79] Miyuki Hino et al., Managed Retreat as a Response to Natural Hazard Risk, Nature Climate Change 364, 364 (Mar. 27, 2017).

[80] Managed Retreat, supra note 78.

[81] Rolling Easement, Wetlands Watch, https://wetlandswatch.org/rolling-easement (last visited Feb. 19, 2021) (a rolling easement is an easement that moves upland as coastlines move inward due to sea level rise and erosion).

[82] Managed Retreat, supra note 78.

[83] Id.

[84] California Coastal Commission to Recommend Eminent Domain to Combat Sea-Level Rise?, Nossaman LLP (Jan. 8, 2019),  https://www.jdsupra.com/legalnews/california-coastal-commission-to-30729/.

[85] Anne Siders, Managed Coastal Retreat, CCL 6 (2013).

[86] Id. at 44.

[87] Id. at 44–45.

[88] Id. at 44 (noting how setbacks, by requiring siting buildings on the upland portions of coastal property lots, protect new development from slow-onset sea level rise and shore erosion).

[89] Rolling Easement, supra note 81.

[90] James G. Titus, Rolling Easements, US EPA 48 (2010).

[91] Id. at 14.

[92] Id. at 15; Some states, like Texas, do not recognize rolling easements for public use, however. Severance v. Patterson, 370 S.W.3d 705, 724 (Tex. 2012) (holding that although a public beachfront easement is dynamic in cases of gradual erosion, a public easement “does not roll under Texas law” following an avulsive event, like a coastal storm).

[93] Managed Retreat, supra note 78.

[94] Id.

[95] Id.; Siders, supra note 85, at 16.

[96] Siders, supra note 85, at 13.

[97] Id.

[98] Takings 101, 7 The SandBar 1, 1 (2008).

[99] Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 434–435 (1982).

[100] U.S. Const. amend. V.

[101] United States v. Miller, 317 U.S. 369, 374 (1943).

[102] Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1029 (1992).

[103] Id. at 1018; Takings, Georgetown Climate Center, https://www.georgetownclimate.org/adaptation/toolkits/managed-retreat-toolkit/takings.html (last visited Feb. 27, 2021) (emphasis added).

[104] Lucas, 505 U.S. at 1018.

[105] See Mark Nevitt, Climate Adaptation Strategies: How Do We “Manage” Managed Retreat?, Kleinman Center for Energy Policy (Aug. 25, 2020), https://kleinmanenergy.upenn.edu/research/publications/climate-adaptation-strategies-how-do-we-manage-managed-retreat/ (noting local and state governments often do not have the funds to compensate each land owner a managed retreat regulation affects).

[106] Penn. Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978).

[107] Id. at 124–125.

[108] Takings 101, supra note 98.

[109] Penn Central, 438 U.S. at 124–125.

[110] Peter Byrne & Jessica Grannis, Chapter Nine: Coastal Retreat Measures, in The Law of Adaptation to Climate Change: U.S. and International Aspects 276 (Michael B. Gerrard & Katrina Fischer Kuh eds., 2012).

[111] Sam Gross, Managed Retreat and the Life Estate: A Practical Path Forward for Coastal Communities, Virginia Coastal Policy Center 1, 9 (2019), https://www.law.wm.edu/academics/programs/jd/electives/clinics/vacoastal/reports/managedretreat.final.pdf.

[112] Hino, et al., supra note 79, at 364.

[113] Id; Anne R. Siders, Managed Retreat in the U.S., 1 One Earth 216. 216 (2019) (out of the estimated 49 million housing units on U.S. coastlines, only about 40,000 properties have been acquired by the Federal Emergency Management Agency for managed retreat).

[114] State of the Beach/State Reports/ME/Erosion Response, Beachapedia, http://www.beachapedia.org/State_of_the_Beach/State_Reports/ME/Erosion_Response (last visited Mar. 13, 2021); 06-096-1000 Me. Code. R. § 15 (2018).

[115] 06-096-355 Me. Code. R.  § 6 (2018).

[116]  SC Code § 48-39-280 et seq. (2012).

[117] Id. (A)(1); (B).

[118] Adapting to Shoreline Change: A Foundation for Improved Mgm’t. and Planning in South Carolina, South Carolina Dep’t. of Health and Env’t. Control (Apr. 2010), https://scdhec.gov/sites/default/files/Library/CR-009823.pdf.

[119] What is Shoreline Armoring?, NOAA, https://oceanservice.noaa.gov/facts/shoreline-armoring.html (last visited Feb. 27, 2021).

[120] Shoreline Structures, Beachapedia, http://www.beachapedia.org/Shoreline_Structures#:~:text=%22Shoreline%20hardening%2C%20or%20hard%20stabilization,run%20parallel%20to%20the%20beach (last updated Sept. 1, 2020).

[121] 2010 Coastal Habitat Protection Plan, North Carolina 361 (2011).

[122] Id.

[123] Revetments, CTCN, https://www.ctc-n.org/technologies/revetments (last visited Apr. 8, 2021).

[124] Groins and Jetties, NPS (Apr. 5, 2019), https://www.nps.gov/articles/groins-and-jetties.htm.

[125] Id.

[126] Hard Armor, Shore Friendly, http://www.shorefriendly.org/your-options/hard-armor/ (last visited Feb. 27, 2021).

[127] James F. O’Connell, Shoreline Armoring Impacts and Management Along the Shores of Massachusetts and Kauai, Hawaii, in Puget Sound Shorelines and the Impacts of Armoring – Proceedings of a State of the Science Workshop 65 (Hugh Shipman et al., eds., 2010).

[128] Id. at 70; Hard Armor, supra note 126.

[129] Regents of Univ. of Calif., Coastal Armoring, Explore Beaches, https://explorebeaches.msi.ucsb.edu/beach-health/coastal-armoring (last visited Feb. 27, 2021).

[130] Id.

[131] Hard Armor, supra note 126.

[132] Hard Armoring, Wetlands Watch,  https://wetlandswatch.org/hard-armoring (last visited Apr. 18, 2021); Erika Bolstad, “Living Shorelines” Will Get Fast Track to Combat Sea Level Rise, Scientific American (July 6, 2015), https://www.scientificamerican.com/article/living-shorelines-will-get-fast-track-to-combat-sea-level-rise/.

[133] Jenifer E. Dugan et al., Generalizing Ecological Effects of Shoreline Armoring Across Soft Sediment Environments, 41 Estuaries and Coasts 180, 181 (2018).

[134] Eric Staats & Ryan Mills, Shrinking Shores: How Florida Leaders are Failing the State’s Famous Beaches, Naples Daily News (June 29, 2017 10:39 AM), https://www.naplesnews.com/story/news/special-reports/2016/11/11/shrinking-shores-how-florida-leaders-failing-states-famous-beaches/92052156/.

[135] Coastal Armoring Policy and Guidelines, Fl. Dep’t. of Env’t. Protection (Feb. 9, 2016), https://floridadep.gov/sites/default/files/CoastalArmoringPolicy_0.pdf; see, e.g., Florida Shoreline Structures, Beachapedia, http://www.beachapedia.org/State_of_the_Beach/State_Reports/FL/Shoreline_Structures (last modified Jan. 12, 2017) (noting an increase in armoring permits following the 2004 and 2005 active hurricane seasons).

[136] Fla. Admin. Code R. 62B-33.0051 et seq. (2008).

[137] See, e.g., Chris A. Boyd & Niki L. Pace, Coastal Alabama Living Shorelines Policies, Rules and Model Ordinance Manual 9 (n.d.) (an Alabama Geological Survey conducted between 2009-2012 estimated 223 miles of Alabama’s shorelines were armored with hard structures).

[138] Id. at 18.

[139] Id.; Staats & Mills, supra note 134.

[140] Bolstad, supra note 132.

[141] Univ. of Mass. Amherst, Restore and Protect Natural Shorelines: Use Living Shoreline Techniques, Climate Action Tool (2017), https://climateactiontool.org/content/restore-and-protect-natural-shorelines-use-living-shoreline-techniques#:~:text=Living%20shorelines%20refer%20to%20a,other%20natural%20or%20organic%20materials.

[142] Id.

[143] Id.

[144] Id.

[145] Regents of Univ. of Calif., Beach Nourishment, Explore Beaches, https://explorebeaches.msi.ucsb.edu/beach-health/beach-nourishment (last visited Mar. 5, 2021); Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Env’t Prot., 560 U.S. 702, 709 (2010).

[146] Understanding Living Shorelines, NOAA, https://www.fisheries.noaa.gov/insight/understanding-living-shorelines (last visited Mar. 5, 2021); Univ. of Mass. Amherst, supra note 141.

[147] Understanding Living Shorelines, supra note 146.

[148] Id.

[149] Rachel K. Gittman et al., Marshes With and Without Sills Protect Estuarine Shorelines from Erosion Better Than Bulkheads during a Category 1 Hurricane, 102 Ocean & Coastal Management 94, 98–100 (2014).

[150] Id.

[151] Living Shorelines, Naturally Resilient Communities, http://nrcsolutions.org/living-shorelines/ (last visited Mar. 5, 2021).

[152] Trista Talton, Living Shorelines: Better than Bulkheads, Coastal Review Online (Feb. 8, 2016), https://coastalreview.org/2016/02/12896/.

[153] Id.

[154] Id.

[155] Natural and Structural Measures for Shoreline Stabilization, USACE (2015), https://coast.noaa.gov/data/digitalcoast/pdf/living-shoreline.pdf.

[156] Id.

[157] Regents of Univ. of Calif., supra note 145.

[158] Id.

[159] Id.

[160] Id.

[161] Moorman et al., supra note 13.

[162] Guidance for the Successful Use of Living Shorelines, National Centers for Coastal Ocean Science (2017), https://coastalscience.noaa.gov/project/guidance-living-shorelines/.

[163] Bolstad, supra note 132; Natural and Structural Measures for Shoreline Stabilization, USACE 2–4 (2015), https://coast.noaa.gov/data/digitalcoast/pdf/living-shoreline.pdf (USACE/NOAA report found the most expensive living shorelines may cost up to $1000-$2000 per linear foot to construct and up to $100 per year to maintain, while shoreline armoring generally cost up to $10,000 per linear foot to construct and up to $500 per year to maintain).

[164] Understanding Living Shorelines, supra note 146 (implementation costs for living shorelines are generally cheaper than shoreline armoring because green materials, like vegetation, are less expensive than hard materials, like concrete; maintenance costs are generally lower as well because living shorelines grow over time and can naturally recover from storm and flooding events).

[165] Living Shorelines, Georgetown Climate Center, https://www.georgetownclimate.org/adaptation/toolkits/managed-retreat-toolkit/living-shorelines.html (last visited Apr. 18, 2021).

[166] Justin Aciello, House Passes Bill That Would Create Federal Grant Program to Support “Living Shorelines,” WHYY (Dec. 11, 2019), https://whyy.org/articles/house-passes-bill-that-would-create-federal-grant-program-to-support-living-shorelines/, (executive director of the American Littoral Society describing how living shorelines restore shorelines and habitats, while protecting communities); Bolstad, supra note 132 (Bolstick noting the Corps’ preference towards living shorelines because living shorelines “help[] us in our environmental focus”).

[167] Trista Talton, Corps Eases Living Shoreline Permit Process, Coastal Review Online (Jan. 12, 2017), https://www.coastalreview.org/2017/01/corps-eases-living-shoreline-permit-process/; Bolstad, supra note 132 (shortening the living shorelines permit process to 45 days, rather than the previous 215 days, which gave shoreline armoring a competitive edge over living shorelines in the past).

[168] Auciello, supra note 166 (the bill would provide $50 million in federal funding to state and local governments and organizations seeking to develop living shorelines).

[169] Living Shorelines for Coastal Protection in Southern California, Conservation Biology Institute, https://scwrp.databasin.org/pages/living-shorelines/ (last visited Mar. 13, 2021).

[170] San Francisco Bay Living Shorelines Project, California Coastal Conservancy, https://scc.ca.gov/climate-change/climate-ready-program/san-francisco-bay-living-shorelines-project/ (last visited Mar. 13, 2021).

[171] Id.

[172] NJ Living Shorelines Projects, New Jersey Dep’t. of Env’t. Protection, https://njdep.maps.arcgis.com/apps/MapJournal/index.html?appid=049f4937cbdd437bb496a7aea94acd35&folderid=f4686d3c9a7048efb7a1dd8d877eb3f6 (last visited Mar. 13, 2021).

[173] John K. Miller et al., Living Shorelines Engineering Guidelines 7, https://www.nj.gov/dep/cmp/docs/living-shorelines-engineering-guidelines-final.pdf (last revised Feb. 2016).

[174] N.J. Admin. Code § 7:7-6.24 et seq. (2015).

[175] Building Coastal Resilience through Living Shorelines, NOAA Restoration Center (2019), https://www.habitatblueprint.noaa.gov/wp-content/uploads/2019/10/Fact-Sheet-2019-Living-Shorelines.pdf (as of 2019, the NOAA Restoration Center has supported more than 140 living shorelines around the U.S., noting living shorelines are gaining “national traction”).

[176] Lipiec, supra note 49, at 3.

[177] Coastal Zone Management Programs, OCM, https://www.coast.noaa.gov/czm/mystate/ (last reviewed Mar. 9, 2021) .

[178] Id.

[179] Id.

[180]16 U.S.C. § 1455.

[181] See generally, Coastal Zone Management Programs, supra note 177 (detailing the variety of ways in which states may choose to maintain CMP responsibility within the state government itself).

[182] Id.; MS Code § 57-15-6 (2013).

[183] Coastal Zone Management Programs, supra note 177.

[184] Id.

[185] Georgia Coastal Management Program, Georgia DNR, https://coastalgadnr.org/CoastalManagement (last visited Mar. 9, 2021).

[186] Final Evaluation Findings: California Coastal Management Program, OCM 1 (2019), https://coast.noaa.gov/data/czm/media/california-cmp.pdf.

[187] See generally Dave Owen, Cooperative Federalism, 9 UC Irvine L. Rev. 177, 198 (2018) (arguing “delegating authority to local governments means delegating authority into particularly complex and fragmented institutional terrains”).

[188] Id. at 199.

[189] See generally id. at 202 (noting a local government’s ability to gut state regulatory programs to further the local government’s particular interests or political ideologies).

[190] William R. Rath et al., Oceanfront State Coastal Management Programs 2 (2018).

[191] See generally, Coastal Zone Management Programs, supra note 177 (noting states with lead agencies that oversee collaboration and partnerships with local governments).

[192] Rath et al, supra note 190, at 5.

[193] Id.

[194] Id.

[195] See generally, id. at 7–15 (comparing various ways in which coastal states share CMP regulatory authority with their local governments).

[196] Id.

[197] See generally, About the National Coastal Zone Management Program, OCM, https://coast.noaa.gov/czm/about/ (last reviewed Mar. 10, 2021) (discussing the need for flexibility “to design programs that best address local challenges and work within state and local laws and regulations” in order to strengthen the ability of states to address coastal issues).

[198] La. Stat. Ann. § 49:214.28 (2017).

[199] Local Coastal Management Programs, La. Dep’t. of Nat. Res., http://www.dnr.louisiana.gov/index.cfm?md=pagebuilder&tmp=home&pid=111&pnid=192&nid=194 (last visited Mar. 10, 2021).

[200]N.C. Gen. Stat. §§ 113A-118.1, 113A-119; 15A N.C. Admin. Code 7J.0202

[201] N.C. Gen. Stat §§ 113A-121; 15A N.C. Admin. Code 7J.0202 (2018).

[202] Rath et al., supra note 190, at 15.

[203] Va Code Ann. §§ 28.2-101, 1204, 1306, 1406 (West 2017)

[204] Va Code Ann. §§ 28.2-1302, 1303, 1403 (West 2017).

[205] Or. Land Conservation and Dev. Comm’n., Oregon Coastal Management Program 7, 12–16 (1987).

[206] GA DNR Coastal Res. Div., Chapter One: Overview of the Georgia Coastal Management Program in GCMP Final Environmental Impact Statement 12 (1997).

[207] About the National Coastal Zone Management Program, supra note 197.

[208] See generally, Rath et al, supra note 190, at 2 (noting the unique feature of the CZMA is to afford states flexibility to address unique features and issues, which makes the CZMA more effective overall).

[209] Seth B. Shonkoff et al., The Climate Gap: Environmental Health and Equity Implications of Climate Change and Mitigation Policies in California – A Review of the Literature, 109 Climate Change 485, 486 (2011).

[210] Id.

[211] Dean Hardy et al., Racial Coastal Formation: the Environmental Injustice of Colorblind Adaptation Planning for Sea-level Rise, 87 Geoforum  62, 63 (2017). Without adequate representation in local and state committees, vulnerable communities are left with little protection provided for them. Tracy Fernandez Rysavy & André Floyd, People of Color are on the Front Lines of the Climate Crisis, Green America, https://www.greenamerica.org/climate-justice-all/people-color-are-front-lines-climate-crisis (last visited Apr. 18, 2021) (describing how, following Hurricane Betsy in 1965, local levee boards distributed federal funds for levee construction and maintenance unequally towards predominantly white communities. As a result, white communities had stronger levees than other communities in the area, with white communities’ levees ultimately withstanding Hurricane Katrina in 2005. Meanwhile, over eighty percent of homes lost in 2005 Hurricane Katrina belonged to Black residents).

[212] See, e.g., Hardy et al., supra note 211, at 69 (a study revealed white communities’ interests received priority in scientific and public meetings regarding climate change and sea level rise, despite white communities making up only fifty-six percent of Georgia’s coastal population).

[213] Id. at 63.

[214] Id.; Jacqueline D. Lau et al., Environmental Justice in Coastal Systems: Perspectives from Communities Confronting Change, 66 Global Environmental 1, 8 (2021).

[215] Hardy et al., supra note 211, at 69; see generally, Coastal Zone Management Programs, supra note 177 (summarizing different state CMPs, some of which address planning around arising coastal issues).

[216] Id.

[217] Wisconsin Coastal Management Council, Wisconsin Coastal Mgm’t. Program, https://doa.wi.gov/Pages/LocalGovtsGrants/CoastalAdvisoryCouncil.aspx (last visited Mar. 10, 2021).

[218] Final Evaluation Findings: Wisconsin Coastal Management Program, OCM 13–14 (2018), https://coast.noaa.gov/data/czm/media/WisconsinCMP.pdf.

[219] See supra Section II.

[220] Heather Weitzner, Effects of Erosion and Accretion on Coastal Landforms, New York Sea Grant 1 (Feb. 2016), https://seagrant.sunysb.edu/glcoastal/pdfs/CoastalLandforms.pdf.

[221] Storm Surge Overview, Nat’l. Hurricane Center & Central Pacific Hurricane Center, https://www.nhc.noaa.gov/surge/ (last visited Mar. 12, 2021).

[222] Coastal Flooding, Climate Change, and Your Health, CDC 12 (Nov. 2017), https://www.cdc.gov/climateandhealth/pubs/CoastalFloodingClimateChangeandYourHealth-508.pdf (estimated 2,544 persons).

[223] Living Shorelines, supra note 165.

[224] Richard B. Alley et al., Ice-Sheet and Sea-Level Changes, 310 Science 456, 456 (2005).

[225] Id.

[226] Coastal Resiliency, EPA, https://www.epa.gov/green-infrastructure/coastal-resiliency (last visited Mar. 12, 2021).

[227] Living Shorelines, Florida Dep’t. of Env’t. Protection, https://floridadep.gov/rcp/rcp/content/living-shorelines (last modified June 8, 2020, 11:41 AM).

[228] Donna Marie Bilkovic et al., The Role of Living Shorelines as Estuarine Habitat Conservation Strategies, 44 Coastal Management 161, 165 (2016).

[229] Rowan Jacobsen, As Coastal Flooding Surges, ‘Living Shorelines’ Seen as the Answer, Food & Environment Reporting Network (Mar. 19, 2019), https://thefern.org/2019/03/as-coastal-flooding-surges-living-shorelines-seen-as-savior/ (emphasis added).

[230] Id.

[231] Restore and Protect Natural Shorelines: Use Living Shoreline Techniques, Mass. Wildlife Climate Action Tool, https://climateactiontool.org/content/restore-and-protect-natural-shorelines-use-living-shoreline-techniques  (last visited April 18, 2021) (emphasis added).

[232] See Jacobsen, supra note 229 (research study recorded living shorelines that had lost one third of their vegetation in Hurricane Irene fully recovered within a year).

[233] See generally Chris Dinesen Rogers, Erosion Effects on Ecosystem, Sciencing, https://sciencing.com/about-6085011-erosion-effects-ecosystem.html (last updated Nov. 22, 2019) (discussing habitat loss and effects on wildlife due to erosion); Patty Glick et al., Executive Summary in Sea-Level Rise and Coastal Habitats in the Pacific Northwest, at v (2007), https://www.nwf.org/~/media/PDFs/Water/200707_PacificNWSeaLevelRise_Report.ashx (briefly discussing coastal erosion impacts to migratory species).

[234] See generally id. (noting some species may be able to respond to habitat loss or disruption, but others will not).

[235] Deadly Waters: How Rising Seas Threaten 233 Endangered Species, Center for Bio. Div. 6 (Dec. 2013), https://www.biologicaldiversity.org/campaigns/sea-level_rise/pdfs/Sea_Level_Rise_Report_2013_web.pdf.

[236] Id. at 2.

[237] Id. at 3.

[238] See, e.g., ABT Associates, Eval. of Hurricane Sandy Coastal Resilience Program 18 (Sept. 13, 2019), https://www.nfwf.org/sites/default/files/results/evaluationreports/Documents/hurricane-sandy-final-report-case-studies.pdf (discussing how living shorelines and restoration projects benefitted key coastal species, including migratory and resident fish, birds, and mammals).

[239] Morgan Stanley, Living Shoreline, Nat. Geo., https://www.nationalgeographic.org/encyclopedia/living-shoreline/ (last visited Mar. 12, 2021).

[240] Id.

[241] Understanding Living Shorelines, supra note 146.

[242] Doris Small, Shoreline Armoring, Vital Signs, https://www.vitalsigns.pugetsoundinfo.wa.gov/VitalSign/Detail/16 (last updated Feb. 11, 2021).

[243] Dugan et al., supra note 133, at 181 (the majority of reviewed studies were conducted along the Atlantic, Pacific, and Gulf coasts).

[244] Understanding Living Shorelines, supra note 146.

[245] ABT Associates, Case Study: Cost Effectiveness of Reducing Coastal Erosion Through Living Shorelines in the Hurricane Sandy Coastal Resilience Program 7 (2019), https://www.nfwf.org/sites/default/files/hurricanesandy/Documents/hurricane-sandy-living-shoreline-case-study.pdf.

[246] Emily J. Powell et al., A Review of Coastal Management Approaches to Support the Integration of Ecological and Human Community Planning for Climate Change, 23 J. Of Coastal Conservation 1, 12 (2019).

[247] Jennifer Allen, Living Shoreline Cost Depends on Site, Size, Coastal Review Online (Dec. 17, 2019), https://www.coastalreview.org/2019/12/affordability-key-in-pricing-living-shorelines/.

[248] Tom Herder, Living Shorelines: A Guide for Alabama Property Owners, Ala. Dept. of Nat. Res. and Mobile Bay Nat’l. Estuary Program 19 (2014), http://www.mobilebaynep.com/images/uploads/library/Living_Shorelines-10_30_14-Proof.pdf.

[249] Living Shorelines, supra note 165.

[250] Herder, supra note 248, at 5.

[251] Id. at 4; Trista Talton, Evidence Mounts of Shorelines’ Success, Coastal Review Online (Feb. 9, 2016), https://www.coastalreview.org/2016/02/12920/.

[252] The Costs of Shoreline Stabilization, South Atlantic Alliance (April 17, 2016), http://southatlanticalliance.org/wp-content/uploads/2016/04/17-Hoffman-The-Costs-of-Shoreline-Stabilization.pdf.

[253] See Allen, supra note 247 (discussing living shorelines sustaining only minor damage through two hurricanes in North Carolina); Herder, supra note 248, at 5 (stating living shorelines have been recorded to “perform as they did pre-storm”); Talton, supra note 251 (noting researchers’ evidence of living shorelines recovering quickly from storms without human intervention).

[254] Allen, supra note 247.

[255] Bulkhead Repair, Marine Clean Safety & Prevention, http://www.marineclean.com/Bulkhead%20Repair/ (last visited May 26, 2021).

[256] How Much Does It Cost to Repair a Seawall?, Reliable Counter (Oct. 31, 2019), https://www.reliablecounter.com/blog/how-much-does-it-cost-to-repair-a-seawall/#:~:text=The%20cost%20of%20seawall%20repair%20or%20installation%20varies,the%20seawall%20and%20the%20depth%20of%20the%20waterway..

[257] Id.

[258] See Univ. of Mass. Amherst, supra note 141 (discussing living shorelines’ capacity for self-repair following disturbances like coastal storms).

[259] Jacobsen, supra note 229.

[260] Id.

[261] Id.

[262] Carter S. Smith et al., Hurricane Damage Along Natural and Hardened Estuarine Shorelines: Using Homeowner Experiences to Promote Nature-Based Coastal Protection, 81 Marine Policy 350, 353–355 (2017).

[263] Living Shorelines Initiative, Northern Neck Planning District Commission, http://www.northernneck.us/living-shorelines-initiative/ (last visited May 26, 2021).

[264] Brad Rich, Report Cites Benefits of Living Shorelines, Coastal Review Online (July 27, 2015), https://coastalreview.org/2015/07/report-cites-benefits-of-living-shorelines/.

[265] Id.

[266] See Living Shorelines Along the Georgia Coast: A Summary Report of the First Living Shorelines Projects in Georgia, Georgia Dep’t. of Natural Resources 5–6 (2013), https://gadnr.org/sites/default/files/crd/CZM/Wetlands-LS/LivingShorelinesAlongtheGeorgiaCoast.pdf (noting the aesthetic value provided by living shorelines has helped bring $1.9 billion to coastal Georgia’s tourism industry annually).

[267] Travis O. Brandon, Nationwide Permit 13, Shoreline Armoring, and the Important Role of the U.S. Army Corps of Engineers in Coastal Climate Change Adaptation, 46 Env’t. Law 537, 553–554 (2016).

[268] Id.

[269] Arian Brucal & John Lynham, Coastal Armoring and Sinking Property Values: The Case of Seawalls in California, 23 Env’t. Economics and Policy Studies 55, 56 (2021).

[270] 16 U.S.C. § 1452(2)(A).

[271] Id. at (2)(C).

[272] See generally Coastal Zone Management Act, OCM, https://coast.noaa.gov/czm/act/ (last visited May 25, 2021) (noting the goal of the CZMA is to “preserve, protect, develop, and where possible, to restore or enhance the resources of the nation’s coastal zone”).

[273] Living Shorelines, supra note 165.

[274] See supra, Section V.

[275] Restore and Protect Natural Shorelines: Use Living Shoreline Techniques, supra note 231.

[276] Three Living Shorelines Creating Habitat, Protecting the Gulf Coast, NOAA (July 30, 2019), https://www.fisheries.noaa.gov/feature-story/three-living-shorelines-creating-habitat-protecting-gulf-coast.

[277] Id.

[278] Ben Sherman, NOAA Study Finds “Living Shorelines” Can Lessen Climate Change’s Effects, NOAA (Dec. 16, 2015), https://www.noaa.gov/media-release/noaa-study-finds-living-shorelines-can-lessen-climate-change-s-effects (the study focused on 124 living shorelines in North Carolina, finding the salt marsh shorelines stored enough carbon to offset 64 metric tons of carbon dioxide per year – the equivalent of burning 7,500 gallons of gasoline. The study concluded that converting just ten percent of North Carolina’s coastline to living shorelines would result in an additional offset of 870 metric tons annually – the equivalent of burning more than 100,000 gallons of gasoline).

[279] See supra Section V.A.

[280] See supra Section V.B.

[281] Sea Walls’ Impact on Water Quality, Glen Lake Ass’n. (Nov. 12, 2020), https://www.glenlakeassociation.org/sea-walls-impact-on-water-quality/.

[282] Emily Sweeney, Coastal Communities Rush to Repair Damaged Sea Walls Before Next Nor’easter, Boston Globe (Mar. 6, 2018, 3:05 PM), https://www.bostonglobe.com/metro/2018/03/06/coastal-communities-rush-repair-damaged-seawalls-before-next-nor-easter/CFwJDaHAbLPIi3KCRIdhxN/story.html.

[283] Id.

[284] Sea Walls’ Impact on Water Quality, supra note 281.

[285] See generally id.; see supra section V.A; see supra Section V.B; Sweeney, supra note 282.

[286] 16 U.S.C. § 1452(2)(A); Id. (2)(C).

[287] Lorenzo Mentaschi et al., Global Long-Term Observations of Coastal Erosion and Accretion, 8 Scientific Reports 1, 2 (2018).

[288] Weitzner, supra note 220, at 1; Alley et al., supra note 224, at 456.

[289] Nickolai Shadrin, Coupling of Shoreline Erosion and Biodiversity Loss: Examples from the Black Sea, 3 Int’l. J. of Marine Science 352, 352 (2013).

[290] Univ. of Mass. Amherst, supra note 141.

[291] Living Shorelines: Design Options – Oyster Reefs, Center for Coastal Resources Mgm’t. (2017), http://ccrm.vims.edu/livingshorelines/design_options/oyster_reef.html#:~:text=Restoration%20of%20the%20native%20oyster,structures%20to%20increase%20habitat%20diversity.

[292] Living Shorelines: Design Options – Marsh Sill with Planted Marsh, Center for Coastal Resources Mg’mt. (2017), http://ccrm.vims.edu/livingshorelines/design_options/marsh_sill_planted.html.

[293] See generally Emily J. Powell et al., supra note 246, at 12 (comparing the costs of various living shoreline materials against shoreline armoring structures).

[294] See generally, World of Change: Coastline Change, NASA Earth Observatory, https://earthobservatory.nasa.gov/world-of-change/CapeCod (last visited Mar. 18, 2021).

[295] Lipiec, supra note 49, at 2–3.

[296] Rath et al, supra note 190, at 5.

Zap the Sleeping Giant: Revamping Order 1000 to Facilitate Decarbonization Across the Western United States

Feb. 3, 2022   /   Benjamin Criswell

 

Synopsis

Across the United States, public policies with ambitious decarbonization requirements affect electricity systems spanning various jurisdictions and geographies. In 2011, the Federal Energy Regulatory Commission issued Order 1000, recognizing the importance of incorporating federal, state, and local public policy requirements into regional and interregional transmission planning and coordination. Alas, Order 1000 has failed to reconcile electricity grid balkanization across the western United States. This failure threatens to thwart decarbonization efforts, expose electricity customers to unfair rates, and undercut grid reliability. But even without new federal legislation, the Commission could revamp Order 1000 and leverage existing statutory mechanisms to facilitate the creation of transmission systems sufficient to comport with decarbonization goals and other public policy requirements.

You can read the full Comment here.

 

Additional Thoughts

This was a difficult paper to write because the world of electricity is rapidly evolving. As I note in the Forward, during the editing and publishing of this Comment, the United States enacted legislation and initiated a rulemaking process set to transform the development and management of the electricity grid. Further, CAISO (the grid administrator in California) released its first-ever “20-year Transmission Outlook.”  NorthernGrid, a recently-formed transmission planning region combining former members of ColumbiaGrid and NTTG (including Bonneville Power Administration), published its most recent Regional Transmission Plan. The Northwest Power and Conservation Council is nearing completion of its Eighth Power Plan. And the Northwest Power Pool continues developing its Western Resource Adequacy Program.

The Western Interconnection is at a critical and exciting moment. Policymakers continue to recognize the decarbonization imperative and accordingly plan for a grid that will feature greater contributions from wind, solar, batteries, and other technologies that reduce carbon emissions associated with our electricity systems. As regional and interregional plans take shape, stakeholders, regulators, and lawmakers must ensure the resulting monumental investments are prudent and compatible with a clean energy future.

New Issue of Environmental Law (Vol. 51, Iss. 4)

Feb. 2, 2022   /   Online Journal Editors

 

Check out Volume 51, Issue 4 of Environmental Law! You can see the Table of Contents here, and you can access the full articles here.

This Issue features writing from a variety of practitioners, academics, students, and more. Topics include coal plant closures, corporate governance, sustainable investment, animal agriculture, electricity transmission planning, climate change, carbon capture and storage, and even a constitutional right to fish!