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The CCS Lifeboat: Charting a New Course for Industrial Carbon Capture

February 13, 2023   /  RYAN M. SWEENEY*

 

I. Introduction

It’s late on the night of April 14th, 1912, and Frederick Fleet and Reginald Lee are the crew members on duty in the crow’s nest of the RMS Titanic.[1] They spot something directly in the ship’s path. Fleet rings the lookout bell three times and calls the ship’s bridge: “Iceberg right ahead!” The bridge officers give the order to turn hard to port, but there’s a delay; the ship’s steam-powered steering mechanism takes up to 30 seconds to turn the tiller. We all know the rest.

What was it like to be those sailors, seeing imminent danger ahead and watching their ship turn too late? Did they believe the publicity claiming their ship was unsinkable? Or were they wondering about the lifeboats?

This article will discuss the basic concept of carbon capture and storage (CCS), the discord of the United States’ present industrial CCS course, and some possible alternatives. The article will then lay down planks for the carbon capture lifeboat, recommendations for practical legislative and administrative steps the federal government can take to steer away from the iceberg.

Primer on Carbon Capture & Storage

According to the Intergovernmental Panel on Climate Change (IPCC), humanity needs to keep planetary warming under 2.0 degrees Celsius to avoid the most cataclysmic effects of climate change.[2] To achieve this goal, the IPCC calculates we must reach net-zero emissions of carbon dioxide by approximately 2050.[3] This will require cutting approximately 800 gigatons (Gt)[4] of cumulative carbon dioxide (CO2) emissions between now and 2050, through some combination of (A) limiting future emissions and (B) removing existing carbon from the atmosphere.[5]

Industrial CCS techniques have potential to do both A and B—to a degree. Industrial CCS refers to mechanical and chemical methods for capturing and storing carbon molecules at fixed industrial sites, either limiting future emissions at facilities[6] through “point-source capture” or removing existing carbon from the atmosphere through “direct air capture.”[7] Of the 800 Gt total mitigation target, the International Energy Agency[8] estimates that industrial CCS should be responsible for sequestering a cumulative 120 to 160 Gt of CO2 by 2050, approximately 15 to 20 percent of the total.[9] To meet this target, by 2050 industrial CCS should be removing a net of 8 to 10 Gt of CO2 per year.[10] The current global industrial CCS capacity for removing carbon from the atmosphere is approximately 36.6 megatons per year,[11] less than 0.5 percent of the 2050 annual goal.[12]

Industrial CCS includes two models for storing carbon. Captured CO2 can be used for commercial purposes (the “commercialization model”) or disposed as a waste product (the “public service model”).[13] Under the commercialization model,[14] carbon is treated as a commodity and largely stored in a process known as “enhanced oil recovery” (EOR).[15] In EOR, CO2 is injected underground to repressurize oil fields and extract petroleum that is otherwise trapped in an unproductive well.[16] Under the public service model, CO2 is treated as a waste product and injected underground for permanent storage, also known as “geological sequestration” (GS).[17]

III. The Delusion & Dissonance of the Existing U.S. Carbon Capture Regime

The U.S. government has long recognized the potential for industrial CCS to assist in achieving our climate goals.[18] However, the government’s legal regime for this important pillar in the fight against climate change, which to date has largely focused on financial incentives, appears to be both delusional and self-defeating.

a. Financial Incentives

The U.S. has chosen an industrial CCS strategy that is all carrot, no stick. Although individual U.S. states and regional coalitions have instituted carbon pricing systems like a carbon tax or cap-and-trade,[19] the federal government has resisted calls for these measures for decades.[20] Instead, the U.S. has attempted to incentivize industrial CCS through subsidies, specifically tax credits.

In 2008, Congress created the 45Q tax credits. Section 45Q of the Internal Revenue Code authorizes tax credits per metric ton of GS carbon and EOR carbon.[21] The initial tax credits were set at $20 per ton of GS carbon and $10 per ton of EOR carbon.[22] Specifically, this meant any entity that injected CO2 underground without using it to extract oil (i.e., GS carbon) was eligible to claim $20 per metric ton of CO2 injected, while any entity that injected CO2 underground for the purpose of extracting oil (i.e., EOR carbon) was eligible to claim $10 per metric ton of CO2 injected. Congress has repeatedly extended these incentives, increasing the tax credits first to $50 per ton of GS carbon and $35 per ton of EOR carbon, and then again to $85 per ton of GS carbon and $60 per ton of EOR carbon with passage of the Inflation Reduction Act in August 2022.[23] Congress also expanded eligibility for the credits.[24] Unfortunately, these incentives have thus far been unsuccessful at scaling industrial CCS or making a meaningful dent in the net-zero mitigation goal, especially when carbon emissions for the entire lifecycle of a project are considered.[25] To hit its expected target of 120 to 160 Gt of cumulative carbon sequestration by 2050, global industrial CCS will need to be two to four times larger than the current global oil industry.[26] At recent rates of growth, global industrial CCS is projected to permanently store only 4.5 to 8.5 percent of the total mitigation target by 2050, well below the necessary 15 to 20 percent.[27]

b. Environmental Regulations

The federal government’s financial incentives appear to be at odds with its environmental regulations for injection wells. Pursuant to the Safe Drinking Water Act, the Environmental Protection Agency (EPA) is charged with protecting underground sources of drinking water (USDW) from pollution caused by drilling activities, which it does through the Underground Injection Control (UIC) program.[28] There are six classes of wells under the UIC program; EOR wells require a Class II permit, while GS wells require a Class VI permit.[29] The requirements for a Class VI permit are significantly more onerous than the requirements for a Class II permit. Specifically, a Class VI permit has additional planning, reporting, financial assurance, and monitoring requirements throughout the life of the project and for a default period of 50 years after project closure.[30] For comparison, hazardous waste facilities are only required to provide post-project monitoring and coverage for a period of 30 years.[31] The rationale for the additional requirements is that Class VI GS wells are expected to inject larger volumes of CO2 and have higher pressure and corresponding risk of USDW contamination than Class II wells, where the added pressure is relieved by extracting trapped petroleum.[32]

The additional burdens necessary to obtain Class VI permits have prevented completion of GS projects. The Wellington project, a demonstration facility in Kansas sponsored by the Department of Energy as a “test run” for the Class VI permitting process, provides a good example. The project sought a Class VI GS permit for permanent storage of 26 kilotons of CO2.[33] The project ran into roadblocks with the requirements for financial assurance and monitoring, which forced administrators to convert the project to a Class II well.[34] The EPA’s financial assurance regulations require project administrators to demonstrate the financial ability to complete all project tasks.[35] For the Wellington project, the emergency remedial plan was by far the largest expense, estimated by the EPA to cost between $3.2 million and $62.8 million.[36] Although the EPA allows financial assurance to be proven via numerous methods, these methods are either only available to larger corporations (e.g., self-demonstration tests) or not offered in the marketplace.[37] Third-party insurers do not provide coverage to this market due to the significant uncertainty of the risk.[38] Furthermore, even if insurers did provide coverage, the premium costs would far outweigh the benefits. As the Wellington administrators noted, “The cost of using a bond, insurance, or trust fund can be expensive and approach 3% of the face value annually. For coverage of $70M, the cost can approach $2M annually.”[39]

The amount of these premiums could decrease over time, particularly as more GS sites come on line, more data is obtained, and insurers become more confident in the risks. Geologists believe the risk of CO2 migration will go down over time as the CO2 plume becomes trapped in pore spaces through structural seals, capillary trapping, solubility trapping, and mineral trapping.[40] But at the high end of the premium range, including a 12-year period of facility operation and a 50-year post-closure monitoring period, the Wellington project could have been responsible for $124 million in premium payments. All of that to obtain a potential $2.21 million of tax credits.[41]

A successful project with a well-selected site would certainly be able to inject more CO2 and obtain a larger tax credit, but the general point stands: the financial assurance problem accounting for long-term liability for Class VI GS wells is out of step with the artificially low price of GS carbon tax credits, by orders of magnitude. Since creation of the Class VI permit in 2011, only two permits have been issued, both at a single ethanol facility in Illinois.[42] Those permits took the EPA six years to approve.[43] States have authority under EPA regulations to seek primacy over Class VI permit applications, which could speed up the permitting process, but to date the demand for GS under the existing industrial CCS regime has not been sufficient to generate significant state demand for Class VI primacy.[44]

While the 45Q tax credits appear designed to incentivize GS projects over EOR projects, the environmental regulations of the UIC program belie the notion that the federal government has a harmonious plan to address climate change through industrial CCS. Given the urgency and scale of the climate issues we face, far more needs to be done—and far sooner—if we are to avoid the iceberg.

IV. Competing Courses for Carbon Capture

There are several options the U.S. could pursue. One option would be to stay the course. The U.S. industrial CCS strategy sought to incentivize and scale GS by using EOR as a commercial springboard.[45] The federal government has doubled down on this strategy, pumping billions of dollars into new development projects in addition to the expanded tax incentives.[46] There are some indications that industry is responding to the new investment—the Global CCS Institute reported there were 27 industrial CCS projects operating around the world in 2021, with 108 more projects in development, 36 of them in the U.S.[47] However, this strategy relies on a flawed assumption about the commercial viability of carbon as a commodity, and often does not consider the emissions from a project’s entire carbon lifecycle.[48] Analyses of these factors show that there is no significant commercial market for carbon without government subsidy,[49] and that EOR has not made significant progress toward net carbon reductions.[50]

Researchers and environmental commentators have proposed various course corrections. Some proposals would ignore CCS and focus on installing a carbon tax and cap-and-trade system;[51] others would abandon the “polluter pays principle” in liability and financial assurance requirements;[52] still others would remove all subsidies for industrial CCS and reallocate that funding for natural (i.e., biological and chemical) CCS initiatives.[53]

Yet completely abandoning industrial CCS appears short-sighted and incompatible with the current U.S. political system. World energy demand is expected to increase into the future,[54] and the fossil fuel industry and its carbon emissions are not going away any time soon.[55] Additionally, the carbon capture problem will require a monumental effort “similar in scale to wartime mobilization.”[56] Global annual spending on physical assets for the net-zero transition is currently estimated at $5.7 trillion; a January 2022 report by McKinsey projected that meeting our net-zero goals will require a $3.5 trillion increase in spending per year.[57] As previously noted, by 2050 the global CCS industry will need to be two to four times larger than the current global oil industry.[58] It is difficult to see this type of civilization-wide mobilization coming together without the help of private industry. It’s all hands on deck to address this problem.

A middle course for the near future could acknowledge the flaws of the EOR-commercialization model while simultaneously acknowledging the important role fossil fuel companies must play. Moving toward a public service model for industrial CCS can accomplish these objectives.

V. Recommendations for a New Course: A Public Service Model

Assuming the U.S. government will continue to favor subsidies over carbon pricing in the near future,[59] there are several steps the legislative and executive branches can take to move toward a middle course. Congress can add three planks to the CCS lifeboat:

  1. Remove the EPA’s financial assurance barriers for Class VI wells by passing legislation modeled on the Price-Anderson Nuclear Industries Indemnity Act;[60]
  2. Bring the duration of operator responsibility for post-injection site care in line with other hazardous wastes, from a 50-year default down to a 30-year default; and
  3. Phase out 45Q tax credits for EOR projects, and dramatically increase 45Q tax credits for GS projects.

With these changes, the industrial CCS regime would retain important portions of the polluter pays principle—each Class VI well operator would be required to pay into the pool, and any operator responsible for USDW contamination or other CO2-related incidents pays more—while still acknowledging that capture and storage of CO2 is a valuable, necessary public service that should be subsidized accordingly.

The executive branch can also add its own planks to the CCS lifeboat, specifically to plug the liability leak. In the event Congress is unwilling to establish a Price-Anderson Act for industrial CCS or bring the duration of operator responsibility in line with other injection wells, the executive branch already has significant authority based on the language of existing, recent appropriations. There are two exclusive options available to administrative agencies and departments:

  1. Enter into limited indemnity agreements with GS projects, agreeing to cover financial assurance requirements of a Class VI well for GS carbon; or
  2. Pay for insurance premiums directly.

The Anti-Deficiency Act and the “self-insurance rule” provide two important bodies of law governing federal appropriations for indemnity and insurance. The Anti-Deficiency Act prevents the federal government from entering unlimited or open-ended indemnification agreements without specific congressional authorization.[61] However, the government can enter indemnity agreements without congressional authorization “where the indemnification agreement is a legitimate object of an appropriation, the agreement specifically provides that the amount of liability is limited to available appropriations, and there is no implication that Congress will, at a later date, appropriate funds to meet deficiencies.”[62]

The self-insurance rule states, “In the absence of express statutory authority to the contrary, appropriated funds are not available for the purchase of insurance to cover loss or damage to government property or the liability of government employees.”[63] In these situations, the federal government must generally operate as a self-insurer.[64] Yet this rule does not address the legality of the federal government purchasing commercial insurance premiums covering loss or damage to non-government property or liability of non-government employees. Additionally, even if the terms of the appropriation suggest the necessary insurance would cover government property or government employees—or where the government is found to hold “equitable title” to certain property[65]—there are exceptions to the self-insurance rule. These exceptions include when the government is purchasing insurance pursuant to the required terms of a contract or lease,[66] or where the object of the appropriation could not be “as readily accomplished without insurance as with it.”[67]

Thus, the executive branch has significant authority to enter indemnity agreements or pay for insurance directly, as long as doing so would be limited in scope by the terms of an indemnity agreement, lease, or other contract, and as long as the indemnity or insurance was necessary to achieve a particular appropriation’s purpose. Fortunately, Congress has made a number of recent appropriations that could be directly related—or are directly related—to expanding GS carbon projects,[68] and which are directly related to purposes contained in the Department of Energy Organization Act.[69] The recency and specificity of the congressional appropriations is important, particularly in light of Supreme Court precedent on the deference afforded to agency action, culminating with the decision in West Virginia v. Environmental Protection Agency in June 2022.[70]

The legislative and executive recommendations listed herein could right the ship, providing stability while additional planks (e.g., biological and chemical CCS methods) and structural changes (e.g., installation of a carbon tax and cap-and-trade system) necessary to achieve our climate goals progress below the waterline.

VI. Conclusion

The existing course charted by the U.S. government on industrial CCS is courting disaster. Industrial CCS technology has existed for almost a half-century, and the U.S. government has been investing in CCS for twenty years with the explicit goal of curbing carbon emissions. However, there has been little success at scaling the technology or making meaningful progress toward our climate goals, particularly because of the commercialization model and short-sighted environmental regulations. If we travel much further on this heading, it may be too late to turn the ship. But there is still time, and the recent passage of the Inflation Reduction Act shows political will to move in the right direction. The proposed legislative and administrative recommendations described in this article are concrete steps that can operate as the foundation for an industrial CCS lifeboat.

 

 

*Ryan M. Sweeney is an attorney living in Chicago.

[1] Walter Lord, A Night to Remember, New York: St. Martin’s Griffin (1955).

[2] Special Report: Global Warming of 1.5°C, Summary for Policymakers, IPCC (2018) (available at https://www.ipcc.ch/site/assets/uploads/sites/2/2018/07/SR15_SPM_version_stand_alone_LR.pdf).

[3] Id. Other greenhouse gases aside from carbon dioxide play a role in warming, most notably methane. Addressing emissions and existing concentrations of these other greenhouse gases will require their own strategies, some of which may use carbon emissions strategies as a model.

[4] A gigaton is equivalent to one billion tons; a megaton is one million tons; a kiloton is one thousand tons.

[5] Niall Mac Dowell, et al., “The role of CO2 capture and utilization in mitigating climate change,” Nature Climate Change, Vol. 7 (April 2017).

[6] According to the U.S. Congressional Research Service, point-source emitters are generally found in five industrial sectors: chemical production, hydrogen production, fertilizer production, natural gas processing, and power generation. Carbon Capture and Sequestration (CCS) in the United States, Congressional Research Service R44902 (Oct. 18, 2021) (available at https://crsreports.congress.gov) (hereinafter “CRS Report, Oct. 2021”). The Global CCS Institute identifies other industrial emitters, including waste incineration, ethanol production, and iron, steel, and aluminum production. Global Status of CCS 2021, Global CCS Institute (2021) (hereinafter “Global CCS Institute 2021 Report”).

[7] Point-source capture uses containers at the source of emissions, while direct air capture uses large fans to vacuum ambient air. “Point source carbon capture from industrial sources,” National Energy Technology Laboratory (available at https://www.netl.doe.gov/carbon-capture/industrial); Diana Olick, “These companies are sucking carbon out of the atmosphere—and investors are piling in,” CNBC (Jul. 29, 2021) (available at https://www.cnbc.com/2021/07/23/these-companies-are-sucking-carbon-from-the-atmosphere.html). Both methods then use membranes or chemical techniques to separate carbon for later transport and storage. “Point source carbon capture program,” National Energy Technology Laboratory (available at https://www.netl.doe.gov/coal/carbon-capture); Direct Air Capture of CO2 with Chemicals, American Physical Society (Jun. 1, 2011) (available at https://www.aps.org/policy/reports/assessments/upload/dac2011.pdf); Shigenori Fujikawa, et al., “A new strategy for membrane-based direct air capture,” Polymer Journal, 53:111-19 (2021) (available at https://www.nature.com/articles/s41428-020-00429-z.pdf).

[8] The International Energy Agency is an autonomous intergovernmental agency specializing in analysis and policy recommendations for the global energy system.

[9] Mac Dowell, et al., supra n. 5. The remainder is expected to come from increased efficiency, reductions in use, and natural CCS methods, including biological carbon removal (e.g., forestation and afforestation initiatives, soil initiatives, ocean fertilization) and chemical carbon removal (e.g., terrestrial enhanced mineral weathering, stimulating ocean alkalinity). Tracy Hester, “Legal Pathways to Negative Emissions Technologies and Direct Air Capture of Greenhouse Gases,” 48 Envtl. L. Rep. News & Analysis 10413 (May 2018).

[10] Mac Dowell, et al., supra n. 5.

[11] Ahmed Abdulla, et al., “Explaining successful and failed investments in U.S. carbon capture and storage using empirical and expert assessments,” Envtl. Res. Lett. 16:014036 (2020); Global CCS Institute 2021 Report, supra n. 6.

[12] See Justine Calma, “Visualizing the scale of the carbon removal problem,” The Verge: MSN.com (Apr. 7, 2022) (available at https://www.msn.com/en-us/weather/topstories/visualizing-the-scale-of-the-carbon-removal-problem/ar-AAVYFNZ), showing a good visual representation of the challenge for direct air capture technology.

[13] June Sekera & Andreas Lichtenberger, “Assessing Carbon Capture: Public Policy, Science, and Societal Need,” Biophysical Economics and Sustainability, 5:14 (Oct. 2020).

[14] The commercialization model is often called “carbon capture, utilization, and storage,” or “CCUS.”

[15] Sekera & Lichtenberger, supra n. 13. CRS Report, Oct. 2021, supra n. 6.

[16] Id.; Peter Connors, et al., Review of Federal, State, and Regional Tax Strategies and Opportunities for CO2-EOR-Storage and the CCUS Value Chain, U.S. Department of Energy, U.S. Energy Association, Orrick, and FTI Consulting (Sept. 21, 2020).

[17] Sekera & Lichtenberger, supra n. 13; The Tax Credit for Carbon Sequestration (Section 45Q), Congressional Research Service, Vers. 2:IF11455 (June 8, 2021) (available at https://crsreports.congress.gov) (hereinafter “CRS Report, June 2021”).

[18] The Department of Energy has funded research and development into industrial CCS since 1997, and Congress has repeatedly authorized financial incentives for industrial CCS since 2008. CRS Report, Oct. 2021, supra n. 6, at “Summary”; see also discussion of tax incentives for industrial CCS, infra.

[19] State and Trends of Carbon Pricing 2021, The World Bank (May 2021).

[20] Teal Jordan White, “Clean Air Act Mayhem: EPA’s Tailoring Rule Stitches Greenhouse Gas Emissions Into the Wrong Regulatory Fitting,” 18 Tex. Wesleyan L. Rev. 407 (2011); Effects of a Carbon Tax on the Economy and the Environment, Congressional Budget Office (May 2013) (hereinafter “CBO Report, May 2013”); “Sens. Whitehouse and Schatz Introduce Carbon Fee Legislation,” Sen. Sheldon Whitehouse Press Release (Nov. 19, 2014) (available at https://www.whitehouse.senate.gov/news/release/sens-whitehouse-and-schatz-introduce-carbon-fee-legislation) (hereinafter “Whitehouse Press Release”); Adele Morris, “Why the federal government should shadow price carbon,” Brookings Institute (July 13, 2015); Peter Nelson, “Carbon Pricing versus Federal Regulations to Reduce US Emissions,” Resources for the Future (March 1, 2017).

[21] 26 U.S.C. § 45Q (current). Similar to the 45Q incentives, section 48A of the Internal Revenue Code authorizes tax credits between 15 and 30 percent of a coal-fired power plant’s qualified taxable investment if it captures and sequesters 65 percent of its carbon emissions. 26 U.S.C. § 48A.

[22] Pub.L. 110-343 (enacted Oct. 3, 2008).

[23] Pub.L. 115-123 (enacted Feb. 9, 2018); Pub.L. 116-260 (enacted Dec. 27, 2020); Pub.L. 117-169 (enacted Aug. 16, 2022).

[24] Pub.L. 115-123; Pub.L. 116-260; Pub.L. 117-169. The prior statute put a claim cap on eligibility, allowing claims until 75 megatons of CO2 were captured and sequestered. The present law states facilities are eligible if they begin construction before January 1, 2033, and allows claims for a 12-year period once a facility is “placed in service.” Id. The Internal Revenue Service issued regulations to address the gap between the “beginning of construction” deadline and the “placed in service” trigger for the 12-year claims period, including a requirement that facilities must engage in continuous construction to be eligible. 26 C.F.R. § 1.45Q-2(g). However, this continuity requirement permits numerous exceptions, including allowances for delays in obtaining permits and financing. I.R.S. Notice 2020-12: Beginning of Construction for the Credit for Carbon Sequestration Under Section 45Q (March 9, 2020). As explained in more detail herein, obtaining permits and financing are common problems. Under this industrial CCS regime, a fossil fuel company seeking to engage in carbon additive-EOR can start construction on a facility in December 2032; toll the continuity requirement during the period it is waiting for EPA permitting or financing, possibly adding years before the continuity requirement resumes; take additional years to complete construction and place the facility into service; and then begin claiming tax credits for a 12-year period. CCS facilities “usually take seven to 10 years from concept study through feasibility, to design, construction, then operation.” Global CCS Institute 2021 Report, supra n. 6. Reflecting on the lackluster results of the industrial CCS regime to this point, it is not an unreasonable fear that fossil fuel companies may be collecting federal subsidies for net carbon additive activities into 2050 and beyond.

[25] Alex Dewar & Bas Sudmeijer, “The Business Case for Carbon Capture,” Boston Consulting Group (Sept. 24, 2019); Mac Dowell, et al., supra n. 5; Global CCS Institute 2021 Report, supra n. 6; Sekera & Lichtenberger, supra n. 13.

[26] Mac Dowell, et al., supra n. 5.

[27] Id. at 247.

[28] Federal Requirements Under the Underground Injection Control (UIC) Program for Carbon Dioxide (CO2) Geologic Sequestration (GS) Wells; Final Rule, Federal Register, Vol. 75, No. 237 (Dec. 10, 2010) (hereinafter “Class VI Final Rule”); Injection and Geologic Sequestration of Carbon Dioxide: Federal Role and Issues for Congress, Congressional Research Service (Jan. 24, 2020) (hereinafter “CRS Report, Jan. 2020”).

[29] Class VI Final Rule, supra n. 28; CRS Report, Jan. 2020, supra n. 28.

[30] Charles C. Steincamp, et al., “Regulation of Carbon Capture and Storage: An Analysis Through the Lens of the Wellington Project,” 51 Envtl. L. 4:1149 (2021); Class VI Final Rule, supra n. 28.

[31] Steincamp, et al., supra n. 30.

[32] Id.; CRS Report, Jan. 2020, supra n. 28.

[33] Steincamp, et al., supra n. 30.

[34] Id.

[35] Id.; 40 C.F.R. § 146.85.

[36] Steincamp, et al., supra n. 30.

[37] Id.

[38] Id.

[39] Id.

[40] Sally M. Benson and David R. Cole, “CO2 Sequestration in Deep Sedimentary Formations,” Elements (Oct. 2008) Vol. 4, 325-31; Christa Marshall, “Can Stored Carbon Dioxide Leak?” ClimateWire (June 28, 2010) (available online at https://www.scientificamerican.com/article/can-stored-carbon-dioxide-leak/).

[41] At the current 45Q rates, since passage of the Inflation Reduction Act.

[42] Anne Isdal Austin, et al., “State-Level Permitting Primary May Boost Carbon Capture and Storage,” JDSupra (Aug. 12, 2021); Connors, et al., supra n. 16; CRS Report, Oct. 2021, supra n. 6; Abdulla, et al., supra n. 11.

[43] Isdal Austin, et al., supra n. 42.

[44] Id.

[45] JJ Dooley, et al., “An Assessment of the Commercial Availability of Carbon Dioxide Capture and Storage Technologies as of June 2009,” U.S. Dep’t of Energy (June 2009); Wendy B. Jacobs, et al., “Proposed Roadmap for Overcoming Legal and Financial Obstacles to Carbon Capture and Sequestration,” Discussion Paper, Harvard Kennedy School of Government, Belfer Center for Science and International Affairs (March 2009).

[46] Justine Calma, “The infrastructure deal could create pipelines for captured CO2,” The Verge (Aug. 3, 2021).

[47] Global CCS Institute 2021 Report, supra n. 6.

[48] Sekera & Lichtenberger, supra n. 13.

[49] Id.

[50] Mac Dowell, et al., supra n. 5.

[51] See Jordan White, supra n. 20; CBO Report, May 2013, supra n. 20; Whitehouse Press Release, supra n. 20; Morris, supra n. 20.

[52] The polluter pays principle is “an environmental policy principle reflecting the idea that the costs of pollution should be borne by those who cause it.” Paul Bailey, et al., “Can Governments Ensure Adherence to the Polluter Pays Principle in the Long-Term CCS Liability Context?” 12 Sustainable Dev. L. & Policy 46 (2012).

[53] Sekera & Lichtenberger, supra n. 13.

[54] Id.; Mac Dowell, et al., supra n. 5. According to the U.S. Energy Information Administration, energy consumption in developed countries (members of the Organisation for Economic Co-operation and Development, or “OECD”) is projected to rise slightly through 2050. Globally, however, energy consumption is projected to increase by nearly 50 percent compared with 2020, mostly from growth in non-OECD countries. International Energy Outlook 2021: Narrative, U.S. Energy Information Administration, Oct. 2021 (available at https://www.eia.gov/outlooks/ieo/pdf/IEO2021_Narrative.pdf).

[55] Anyone suggesting otherwise has ignored the winds of U.S. campaign finance law. See Robert J. Brulle, “The climate lobby: a sectoral analysis of lobbying spending on climate change in the USA, 2000 to 2016,” Climatic Change, 149:289-303 (Jul. 19, 2018), showing that lobbying by corporate interests involved in production or use of fossil fuels outspent that of environmental organizations and the renewable energy industry by a ratio of ten to one. See also Niall McCarthy, “Oil and Gas Giants Spend Millions Lobbying to Block Climate Change Policies,” Forbes.com (Mar. 25, 2019) (available at https://www.forbes.com/sites/niallmccarthy/2019/03/25/oil-and-gas-giants-spend-millions-lobbying-to-block-climate-change-policies-infographic/); Mac Dowell, et al., supra n. 5.

[56] Mac Dowell, et al., supra n. 5.

[57] The net-zero transition: what it would cost, what it could bring, McKinsey & Co. (Jan. 2022).

[58] Mac Dowell, et al., supra n. 5.

[59] See Connors, et al., supra n. 16: “Absent a national carbon tax, capturing CO2 provides little financial incentive for entities to invest in costly CCUS technologies to capture CO2.”

[60] The Price-Anderson Act was able to adequately address similar problems to those facing industrial CCS by covering risk of nuclear accidents through a combination of an industry-pooled trust fund; capped liability for the operator responsible for an incident; and government indemnification of the remainder. “The Price-Anderson Act, Background Information,” Center for Nuclear Science and Technology Information (Nov. 2005) (available at https://ans.org/pi/ps/docs/ps54-bi.pdf).

[61] 31 U.S.C. § 1341.

[62] See Chapter 6(C), “The Antideficiency Act,” Principles of Federal Appropriations Law (The Red Book): Vol. II, U.S. Government Accountability Office (Feb. 2006, 3d ed.).

[63] See Chapter 4(C)(10), “Insurance,” Principles of Federal Appropriations Law (The Red Book): Vol. I, U.S. Government Accountability Office (Jan. 2004, 3d ed.).

[64] Id.

[65] Id., citing 35 Comp. Gen. 393 (1956) and 35 Comp. Gen. 391 (1956), finding the government was allowed to pay a lessor for the cost of insuring against the lessor’s risk where the government holds equitable title under a lease-purchase agreement.

[66] “The government frequently pays for insurance indirectly through contracts, grants, and leases.” Id., citing B-72120, Comptroller Decision on Insurance for Lease, U.S. Government Accountability Office (Jan. 14, 1948). Additionally, the Red Book notes “insurance may be purchased on . . . private property . . . where the owner requires insurance coverage as part of the transaction.” Id.

[67] Id.; see also exceptions to self-insurance rule stated in B-151876, Comptroller Comments on Department of Agriculture Announcement, U.S. Government Accountability Office (Apr. 24, 1964): “where services or benefits not otherwise available can be obtained by purchasing insurance.”

[68] This includes $825 million for fossil energy and carbon management activities in the Energy and Water Development and Related Agencies Appropriation Act of 2022. Div. D of the Consolidated Appropriations Act of 2022, Pub.L. 117-103. Congress also authorized $211.72 million for electricity activities, $750 million for fossil energy research and development activities, $319.2 million in non-defense environmental cleanup activities, and $7.026 billion in science activities from the Energy and Water Development and Related Agencies Appropriation Act of 2021, found at Division D of the Consolidated Appropriations Act of 2021, Pub.L. 116-260. From the 2022 Act, Congress also authorized $277 million for electricity activities, $333.863 million for non-defense environmental cleanup activities, and $7.475 billion for science activities. Pub.L. 117-103. All of these appropriations include similarly broad language about the expenditures, e.g., for “for plant or facility acquisition or expansion, and for conducting inquiries, technological investigations, and research concerning the extraction, processing, use, and disposal of mineral substances without objectionable social and environmental costs.” Pub.L. 116-260; Pub.L. 117-103. Congress has also authorized billions of dollars of appropriations for “Carbon Capture, Utilization, Storage, and Transportation Infrastructure” in the Infrastructure Investment and Jobs Act of 2021. Divs. D and J of the Infrastructure Investment and Jobs Act, Pub.L. 117-58.

[69] The Department of Energy Organization Act (42 U.S.C. § 7101 et seq.) includes the following purposes:

(2) To achieve . . . effective management of energy functions of the Federal Government.

(13) To assure incorporation of national environmental protection goals in the formulation and implementation of energy programs, and to advance the goals of restoring, protecting, and enhacing environmental quality, and assuring public health and safety.

(14) To assure, to the maximum extent practicable, that the productive capacity of private enterprise shall be utilized in the development and achievement of the policies and purposes of this chapter.

(15) To provide for, encourage, and assist public participation in the development and enforcement of national energy programs.

(17) To foster insofar as possible the continued good health of the Nation’s small business firms, public utility districts, municipal utilities, and private cooperatives involved in energy production, transportation, research, development, demonstration, marketing, and merchandising.

[70] 597 U.S. ­­___ (June 30, 2022).

Grand Canyon National Park (AZ), Glacier National Park (MT & Canada), Arches National Park (UT), Badlands National Park (SD), Great Smoky Mountains National Park (TN).

Regional Haze Rule – Redundant or Requisite?

February 13, 2023   /  KELLY HANSON

 

I. Introduction

Current requirements addressing regional haze are ineffective, as evidenced by the fact that many national parks suffer from significant air pollution, notably in the State of California.[1]  A study by the National Parks Conservation Association reports that out of 417 parks, 401 had air pollution issues related to one or more of the following: visibility, damage to ecosystems, climate change, and respiratory-related concerns.[2]  In some cases, the pollution is due to industry sources.  For example, the Grand Canyon National Park receives polluted air from various sources, including mining and power plants using coal in the Four Corners area.[3]

Congressional mandates require regulation of air pollution as defined by the Clean Air Act (CAA), which originally was enacted in 1955 with substantial revisions in 1970, 1977, and 1990.[4]  Pursuant to the CAA, the Environmental Protection Agency (EPA) must set National Ambient Air Quality Standards (NAAQS) that apply to certain air pollutants.[5]  When areas within a state do not meet the standard, the governor will designate them as nonattainment areas.[6]  Within three years of the application of the NAAQS, all states are required to institute a State Implementation Plan (SIP) that sets forth measures to meet the standards.[7]  When setting the restrictions, consideration of pollution that drifts into other states must be evaluated under the “‘Good Neighbor Provision.’”[8]  If the state’s SIP plan does not meet requirements under the CAA, the EPA must prepare a Federal Implementation Plan (FIP) instead.[9]  Other provisions in the CAA include programs setting emissions standards, cap-and-trade for acid rain, prevention of deterioration where air is clean, phasing out chemicals that affect the ozone, and elimination of regional haze in areas designated as national parks or wilderness.[10]  This last provision is known as the regional haze rule (RHR).

In 2018, the EPA suggested that the CAA’s RHR has made considerable improvements due, at least in part, to other provisions of the CAA.[11]  This position by the Trump administration indicates that the RHR is duplicative with other provisions in the CAA, but would the decision to water-down the RHR’s measures lead to noticeably worsened aesthetic and environmental conditions?  Is the congressional mandate to address haze met, if the agency allows fewer procedural requirements?  If it is, will it make any difference in the way states address plans to reduce haze?  Contrary to the assumptions of duplication, recent issues demonstrate that the RHR is not redundant.

On August 20, 2019, the Director of the Regional Air Division signed a memorandum entitled, “Guidance on Regional Haze State Implementation Plans for the Second Implementation Period.”[12]  While the memorandum notes that the guidance is non-binding, it replaces the 2016 draft guidance and reflects the EPA’s position with regard to the SIP plans.[13]  The EPA also provided clarifications to the guidance ahead of the deadline for the state SIP plans, which was July 31, 2021.[14]

The EPA guidance is intended to provide a detailed explanation of the reform roadmap, which was issued in 2018 and suggests that emission control can be addressed by other state and federal CAA programs.[15]  The guidance may be interpreted as allowing states to avoid visibility considerations and omitting instructions concerning identification of sources of pollution emissions.[16]  The purpose of the policy was to streamline plan requirements for pollution reduction around federal parks and wilderness lands and to focus the states on other CAA provisions that have visibility goals.[17]  The reform roadmap reflected the EPA’s plan to reform the RHR and promote the executive branch’s economic policies.[18]

In Part II, this paper addresses the background of the RHR including the political ramifications, as well as the statutory and judicial authorities and limitations of the requirements.  Next, Part III describes the specific technical aspects of the RHR requirements.  In Part IV, the paper explores the changes initiated by the Trump administration and their effects, noting items that did not remain.  Part V makes predictions about additional changes.  Finally, Part VI analyzes the issue of duplicative legislation with regard to the function of the RHR.

II. Background: Regional Haze Rule

Unlike the other provisions of the CAA and other pollution measures, the RHR focuses on safeguarding nature and ecosystems in protected federal lands rather than on public health.[19]  This contributes to its vulnerability to political pressure.[20]  The science behind the RHR indicates that minimal exposure can reduce visibility substantially, which means that strict enforcement would limit a wide range of economic development.[21]  Accordingly, the federal mandates can have a severely limiting effect on the states’ use of the land, and the states’ regulation of private businesses that affect it.  The RHR has improved visibility in some of the parks in the western states from 90 to 120 miles, while eastern parks have improved from 50 to 70 miles.[22]

The RHR has its origins in a 1999 addition to the rules implementing the CAA.[23]  The RHR governs two issues.[24]  First, it establishes the deadline for attaining natural conditions for visibility in Class 1 areas as the year 2064.[25]  Class 1 areas refers to national parks and federal wilderness lands.[26]  Second, it requires the states to show efforts toward making “reasonable progress” at ten year intervals.[27]  The RHR added to the existing efforts to reduce pollution including emission controls and other standards.[28]  This rule promoted both flexibility and regional cooperation in developing strategies under a multi-state approach.[29]

The requirement to improve visibility is a statutory one.[30]  It extends to those areas that are mandatory Class I, if the EPA determines that “visibility is an important value of the area.”[31]  Although pollution can affect general health and other sensory functions such as olfactory and, in some cases, auditory, those are not necessarily addressed by the RHR.  The federal statute mandates began in 1977, and these requirements included “modeling techniques (or other methods) for determining the extent to which manmade air pollution may reasonably be anticipated to cause or contribute” to the impairment of visibility.[32]  The regulations also would set methods for “preventing and remedying” pollution.[33]  The legislation allows for the exemption of a stationary source, if by itself or combined with other emitters, would not significantly impair visibility in a Class I area.[34]  The exemption does not apply to larger-capacity, “fossil-fuel fired” powerplants, unless it demonstrates that it is not located in such a close proximity to the protected areas that it would “cause or contribute to significant impairment of visibility in any such area.”[35]  The federal land manager must concur with the exemption.[36]

If the source is covered by the RHR, then the state must impose best available retrofit technology (BART).[37]  An earlier RHR allowed one of the factors testing for BART to be based upon an “’area wide’” or group basis.[38]  The D.C. Court of Appeals determined that this provision infringed upon the states’ authority under the CAA.[39]

III.  Regional Haze Rule Requirements

The program requirements for regional haze involve a state plan that must be submitted to the EPA.[40]  The elements of the plan include setting progress goals, calculating baseline and visibility conditions, establishing a long-term strategy, and then monitoring strategy requirements as well as implementation.[41]

First, the goals must consider economic factors and the rate of progress needed to achieve natural visibility by 2064.[42]  Each state must consult with other states that contribute to the impairment.[43]  If the states disagree, the state must incorporate in its plan the measures it employed to resolve the disagreement.[44]

Secondly, the state calculates the baseline using conditions from 2000 to 2004.[45]  The conditions are assessed with monitoring data that evaluates the “most impaired and least impaired days,” using available data and analysis techniques.[46]  Also, the first plan includes the “number of deciviews by which baseline conditions exceed natural visibility conditions for the most impaired and least impaired days.”[47]

Third, the long-term strategy must incorporate means to achieve the progress goals, including schedules for compliance and emissions limits that are enforceable.[48]  Here, again, the state must consult with other states that will be affected by its emissions in a Class 1 area, and whose emissions will affect its Class 1 area.[49]  The plan must include provisions to ensure the state will meet any required portion of reduction as agreed upon in a regional planning process.[50]  In listing all anthropogenic sources, it should consider “major and minor stationary sources, mobile sources, and area sources.”[51]  Also, the strategy must be based upon consideration of at least seven factors: other reduction programs, mitigation of construction, limits and schedules for goals, source schedules, smoke management, enforceability, and net effect of changes of emissions.[52]

Finally, the plan must include the monitoring strategy along with an implementation plan.[53]  States can participate in the Interagency Monitoring of Protected Visual Environments (IMPROVE) network or use other authorized means and must comply with reporting and record-keeping requirements.[54]  Revisions to the plans have similar requirements.  These include calculating the baseline, formulating the long-term strategy, establishing reasonable progress goals, and monitoring.[55]

IV. The 2017 Regulatory Revisions and Later Guidance

The revisions in 2017 did not eliminate significant requirements of the RHR.  Updates to the 1999 RHR addressing state requirements became final on December 14, 2016 and were published on January 10, 2017.[56]  The EPA’s revisions purported to clarify the interpretations of the RHR in place since inception.[57]  These include the focus on long-term goals, factoring contributions of other states’ pollution, and “setting reasonable progress goals that provide for a slower rate of progress than that needed to attain natural conditions by 2064.”[58]

In addition to coordination among regional states, the RHR addresses consultation between the states and the federal land managers.[59]  The 1999 RHR required that the state provide the manager an opportunity to consult before the public hearing and discuss assessments and recommended strategies.[60]  With the revisions for the 2017 RHR, the agency proposed early consultation requirements to ensure that the manager’s concerns could be incorporated in the long-term strategy.[61]  Second, the 1999 RHR required continuing consultations regarding SIPs and other visibility programs.[62]  The 2017 version did not recommend changes to this part of the RHR.[63] Additionally, the 2017 version retained the periodic revision updates to the monitoring strategy but eliminated them for the progress reports.[64]

Thus, the updates in 2017, as reflected by this section, did provide some minor editing of the requirements of the RHR.  The updates also encouraged participation with tribes regarding visibility issues, although the CAA and RHR did not require it.[65]  The purpose of the revisions to the regulations in 2017 was to streamline the administrative requirements the agency found to be “burdensome.”[66]

Similarly, the final guidance aimed to streamline the processes, and it did make some important changes to the draft guidance.  The purpose of the guidance is to assist with developing plans by reducing the burden on states and leveraging other pollution programs’ reduction of pollution.[67]  In the section covering consultation with other states, the guidance states that the requirements are procedural.[68]  It would require only that the states share and consider the data, but it would not require that the states duplicate their thresholds, approaches, or measures.[69]  Further, the guidance recommends that a state with concerns about pollution effects from a neighboring state request adoption of specific measures to reduce pollution from the sources.[70]

Additionally, the 2019 guidance revised the 2016 draft in several respects.[71]  For example, the 2016 draft indicated that the states would need to account for 80 percent of the relevant sources.[72]  In other words, the 2016 version required states to evaluate at least 80 percent of their pollution sources for compliance purposes, and anything less would not be considered reasonable.[73]  That requirement was deleted from the 2019 version of the guidance.[74]

Another missing element is a provision in the 2016 draft that could impose additional pollution controls on older facilities that use coal to generate power.[75]  The effect of this revision is lessened by the fact that the previous ten year SIPs addressed the coal plants, and most of them have been either upgraded or closed down.[76]  Nevertheless, these changes are significant and could result in more pollution emissions that contribute to haze issues.  The remaining sources left to regulate include prescribed fires and petroleum-based facilities.[77]  Ultimately, the states can proceed with more flexibility, which helps the states that cannot or do not want to meet the requirements, provided that the state acts reasonably.[78]

V. Possible Forthcoming Revisions to the 2017 Regional Haze Rule

Presumably, the EPA will continue to evaluate additional requirements under the RHR.  Subsequent to the 2017 revisions, the EPA posted an announcement on its website that it intends to revisit the RHR again.[79]  The agency intended to update provisions relating to the reasonably attributable visibility impairment (RAVI) requirements, consultation with the federal land managers, and possibly other sections of the RHR.[80]

Rarely used, the National Park Service has the ability under RAVI to identify a pollution source near the park lands as a significant source of emissions and, with state consent, make plans for reducing them.[81]  The RHR addresses large-scale areas with pollution from multiple sources in federal Class I areas.[82]  Conversely, the RAVI program can provide a mechanism to address either a single source or sources in smaller sections that are identified as causing the visibility impairment.[83]  If the EPA eliminates this seemingly forgotten provision, an objection may be difficult to justify.[84]

VI. Duplication of Efforts

Although the RHR does not allow states to enforce emissions reductions against another state, other provisions may assist with interstate air pollution.  The EPA issued the cross-state air pollution rule (CSAPR), after the D.C. Circuit court invalidated its predecessor in 2008.[85]  This is a cap-and-trade provision that addresses pollution across state lines.[86]  The CSAPR requires 27 states to reduce power plant emissions of ozone or fine particles that travel to other states.[87]  In 2014, the United States Supreme Court upheld the CSAPR, which allows the EPA to dictate the proportion of emission reduction among states.[88]  This provision could provide more effective remedies than the consultation provisions of the RHR.

Recent rules implementing changes to CSAPR have been challenged in court, however.[89]  The EPA determined that all states would meet the NAAQS 2008 standard for ozone by 2023, and it promulgated a rule to close-out this CSAPR provision.[90]  Second, the CSAPR update proposed pollution budgets, using readily available and cost-effective pollution controls.[91]  The D.C. Circuit rejected both rules, vacating the close-out and remanding the update.[92]  As a result of the lack of FIPs for twenty states, various environmental groups filed a lawsuit on February 7, 2020 in that court seeking declaratory and injunctive relief against the EPA based upon these two previous rulings.[93]  Accordingly, the idea that CSAPR will replace RHR provisions loses steam in the wake of the efforts by EPA to abandon the CSAPR provisions and its requirements.

Additional problems arise when pollution stems from international sources.  In one case, Mexican coal-fired plants released sulfur dioxide that impaired visibility in Texas’s Big Bend National Park.[94]  The Mexican government denied responsibility and noted that the emissions met Mexico’s standards.[95]  Presumedly, international agreements would be required to address all regional haze issues.  In the meantime, states are permitted to treat international, anthropogenic sources as natural visibility conditions in calculating the 2064 endpoint.[96]

VII.  Conclusion

The value in having the RHR is in the fact that it is regionally-focused to some extent and fosters cooperation between and among states.  It does not, however, provide for enforcement against a neighboring state.  Also, the requirement for federal land manager consultation may be helpful in bringing issues to light when attempting to influence the state to address certain sources.  The RHR does not allow states to address sources on federal lands or on tribal reservations, although tribes may be permitted to comment.[97]  Theoretically, the other provisions in the CAA regarding interstate emissions may create some overlap with the RHR.  If the other provisions of the CAA effectively limited or controlled pollution, then the special provisions for Class I areas under the RHR might not be needed.  Evidently, the other provisions are not utilized or enforced, and further curtailments of the RHR will not solve the pollution problems in Class I areas.

Further, if the parks have higher levels of pollution than other areas, that seems to indicate a failure to make progress under the RHR, despite previously noted improvements.  Certainly, the deleted provisions in the above-referenced guidance, which historically required reduction of emissions in a high percentage of sources, as well as measures to address coal-fired plants, would be useful in meeting the progress goals and target date.  Alternatively, if the states meet their target goals under CSAPR, the regional haze may be reduced or eliminated, but this provision only applies to about half of the states.[98]

Although there are multiple avenues for clearing haze, the EPA and partners can improve efforts by ensuring all states have a SIP or else a FIP in place.[99]  Additionally, revisions to the RHR should incorporate additional provisions to address identifying, monitoring, and reducing levels of pollution in the national parks and wilderness lands, either through existing provisions or another enforcement mechanism.  The EPA should continue enforcement of Good Neighbor provisions and extend the area to include all 48 continental United States.[100]  Also, efforts to reduce pollution from outside the nation’s borders, including areas near Alaska, may be necessary to meet the RHR’s goal.  In conclusion, the EPA position noted in the Director of the Regional Air Division’s 2021 clarification paper is that the RHR requirements must be met, though states may pursue other statutory provisions and methods to reduce emissions, thus ensuring a crisp, clear view of the treasured areas protected by this legislation.[101]

 

 

[1]Michael McGough, Pollution is a ‘significant’ problem at 401 national parks, report says (May 30, 2019) www.phys.org/news/2019-05-pollution-significant-problem-national.html.  (A temporary policy regarding enforcement during the pandemic may have affected monitoring and report deadlines, however.  See Memorandum from Susan Parker Bodine, Asst. Administrator, Environmental Protection Agency (March 26, 2020) EPA, https://www.epa.gov/sites/default/files/2020-03/documents/oecamemooncovid19implications.pdf.)

[2] Id.  The pollutants that affect visibility include nitrogen oxides, sulfur dioxide, particulate matter, volatile organic compounds, and ammonia.  EPA, Guidance on Regional Haze State Implementation Plans for the Second Implementation Period (August 20, 2019) at 11.  EPA, https://www.epa.gov/sites/default/files/2019-08/documents/8-20-2019_-_regional_haze_guidance_final_guidance.pdf .

[3] Melissa Breyer, Nearly every US National Park is plagued by ‘significant’ air pollution (May 8, 2019) https://www.treehugger.com/us-national-parks-are-plagued-air-pollution-4855006 (citing www.nps.gov/grca/learn/nature/airquality.htm).

[4] Congressional Research Service, Clean Air Act: A Summary of the Act and Its Major Requirements, (February 25, 2020 and updated September 13, 2022) https://sgp.fas.org/crs/misc/RL30853.pdf (citing 42 U.S.C. §7401 et seq.)

[5] www.4cleanair.org (citing New York, et al. v. Environmental Protection Agency, 781 F.App’x *4, *5 (D.C. Cir. 2019)).  The District of Columbia Court of Appeals (J. Millett) held that that EPA erred in denying New York’s petition regarding the CAA Good Neighbor provisions and remanded the case back to the EPA.  US Courts, https://www.cadc.uscourts.gov/internet/opinions.nsf/59B283676622CF1F852585A5005203B9/$file/19-1231.CORRECTED.pdf, New York, et al. v. Environmental Protection Agency, No. 19-1231 (D.C. Cir. 2020).

[6] Id.

[7] Id. at *6.

[8] Id.

[9] Id.

[10]Congressional Research Service, supra note 4.

[11]Memorandum from Andrew Wheeler, then-Acting Administrator, Environmental Protection Agency (September 11, 2018) Regional Haze Reform Roadmap, EPA, www.epa.gov/visibility/epa-releases-regional-haze-reform-roadmap.  While recognizing that states may pursue various and sundry provisions of the CAA to reduce emissions, the EPA demands “rigorous reasonable progress analyses” that further the goals of visibility under the statutes and regulations.  EPA, https://www.epa.gov/visibility/visibility-guidance-documents, Clarifications Regarding Regional Haze State Implementation Plans for the Second Implementation Period, Peter Tsirigotis, p. 2 (July 8, 2021).

[12]EPA, supra note 2.

[13] Id.  See EPA, www.epa.gov/visibility/draft-guidance-second-implementation-period-regional-haze-rule.

[14] Id. and EPA supra note 11.  Although the District of Columbia and 35 states submitted a SIP, 15 states did not meet the due date.  Finding of Failure to Submit Regional Haze State Implementation Plans for the Second Planning Period, 87 Fed. Reg. 52856 (August 30, 2022) (to be codified at 40 C.F.R. pt. 52).

[15] www.eelp.law.harvard.edu/2018/04/regional-haze-rule/  (Citing EPA,  www.epa.gov/visibility/visibility-regulatory-actions.  The memorandum by then-Acting EPA Administrator Andrew Wheeler stated that the RHR was adopted in 1999 and revised in 2017.  His memorandum set out a path for the EPA’s Office of Air and Radiation to implement the regional haze program with states having primary roles, reduce planning “burdens,” and defer to other CAA programs to reduce emissions and increase visibility.  It referenced the updated 2028 platform accounting for United States, as well as international, sources of pollution affecting Class I lands.  Also, the roadmap indicated that EPA would pursue rulemaking to amend provisions related to the reasonably attributable visibility impairment (RAVI) rules, the consultation with Federal Land Manager sections, and possibly other requirements.  See id.)

[16] Id. (Citing Sean Reilly, EPA unveils final haze guidelines, sparking enviro protest, E&E News (August 20, 2019) www.eenews.net/eenewspm/2019/08/20/stories/1061013699).

[17] Id.  (Citing Reilly, supra note 16.)  (The guidance was developed without transparency in contrast to previous administrations.  Id.  With a July 2021 suspense date, the guidance may be too late to influence the state plans.  Id.)  (Also citing Presidential Memorandum dated April 12, 2018, which directed the EPA to ensure efficiency and cost-effective measures for implementing programs including Regional Haze and National Ambient Air Quality Standards (NAAQS).  Id.  This directive ordered a review of all FIPs and development “at the request of affected States, consistent with law” to replace them with SIPs.  Id.)

[18] Id.  The EPA memorandum cites 83 Fed. Reg. 16761 (April 16, 2018), Presidential Memorandum to the EPA, Promoting Domestic Manufacturing and Job Creation—Policies and Procedures Relating to Implementation of Air Quality Standards.  The President’s memorandum directs EPA to review FIPs and, where permissible, convert to SIPs, as well as providing, among other revisions, directions regarding consideration of international emissions.

[19] Arnold W. Reitze, Jr., Visibility Protection Under the Clean Air Act, 9 Geo. Wash. J. Energy & Envtl. L. 127, 161 (Spring 2019).  But see Caitlin McCoy and Laura Bloomer, Regional Haze State Implementation Plans, Environmental & Energy Law Program, Harvard (April 23, 2018) (This article notes the public health benefits of the RHR in reducing pollutants such as nitrogen oxides, volatile organic compounds, and sulfur dioxide, which cause health effects and acid rain.  Id.)

[20] Id.

[21] Id.

[22] McCoy and Bloomer, supra, note 19.

[23] Clinton and Gore on Clearing the Air in Our National Parks, 1999 WL 235189 (White House) (April 22, 1999).  Vice President Gore announced the RHR at Shenandoah National Park in Virginia, noting that emissions trading options as well as a focus on regional partnership promised new avenues for combatting pollution in these special lands.  Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id. 

[29] Id.  There are five regional planning organizations (RPOs):  Western Regional Air Partnership (WRAP), Central States Air Resources Agencies (CENSARA), Lake Michigan Air Directors Consortium (LADCO), Southeastern Air Pollution Control Agencies (SESARM), and Mid-Atlantic Northeast Visibility Union (MANE-VU).  EPA, https://www.epa.gov/visibility/visibility-regional-planning-organizations.

[30] 42 U.S.C. §7491 (2022).  Visibility impairment is defined as “reduction in visual range and atmospheric discoloration.”  42 U.S.C. §7491 (g) (6) (2022).  US Code, https://uscode.house.gov/view.xhtml?path=/prelim@title42/chapter85/subchapter1&edition=prelim

[31] Id.  “Areas statutorily designated as Class I Federal areas consist of national parks exceeding 6,000 acres, wilderness areas and national memorial parks exceeding 5,000 acres, and all international parks that were in existence on August 7, 1977.”  https://www.govinfo.gov/content/pkg/FR-2022-08-30/pdf/2022-18678.pdf,

Finding of Failure to Submit Regional Haze State Implementation Plans for the Second Planning Period, 87 Fed. Reg. 52856 (August 30, 2022) (to be codified at 40 C.F.R. pt. 52) (citing CAA §162(a)).  The list of the 156 land areas to which the RHR applies is in 40 C.F.R. pt. 81, subpart D.  IdSee also, EPA, https://www.epa.gov/visibility/regional-haze-program, which provides a map of the United States marking the sites protected by the RHR.

[32] US Code, https://uscode.house.gov/view.xhtml?path=/prelim@title42/chapter85/subchapter1&edition=prelim, 42 U.S.C. §7491 (a) (1) and (3) (B) (2022).

[33] Id.  42 U.S.C. §7491 (a) (3) (C) (2022).

[34] Id.  42 U.S.C. §7491 (c) (1) (2022).

[35] Id.  42 U.S.C. §7491 (c) (2) (2022).

[36] Id.  42 U.S.C. §7491 (c) (3) (2022).

[37] Id.  42 U.S.C. §7491 (b) (2) (A) (2022).

[38] American Corn Growers Association v. E.P.A., et al., 291 F.3d 1, 6 (D.C. App. 2002).

[39] Id. at 9.

[40]ECFR, https://www.ecfr.gov/current/title-40/chapter-I/subchapter-C/part-51/subpart-P/section-51.308,

40 C.F.R. §51.308 (d).

[41] Id.  40 C.F.R. §51.308 (d) (1) – (4).

[42] Id.  40 C.F.R. §51.308 (d) (1)(i)(A)(B).

[43] Id.  40 C.F.R. §51.308 (d) (1) (iv).

[44] Id.  40 C.F.R. §51.308 (d) (1) (iv).

[45] Id.  40 C.F.R. §51.308 (d) (2) (i).

[46] Id.  40 C.F.R. §51.308 (d) (2) (iii).

[47] Id.  40 C.F.R. §51.308 (d) (2) (iv).  Deciview is the unit of measurement on the deciview index scale for quantifying in a standard manner human perceptions of visibility.”  ECFR, https://www.ecfr.gov/current/title-40/chapter-I/subchapter-C/part-51, 40 C.F.R. §51.301.

[48] Id.  40 C.F.R. §51.308 (d) (3). 

[49] Id.  40 C.F.R. §51.308 (d) (3) (i).

[50] Id.  40 C.F.R. §51.308 (d) (3) (ii).

[51] Id.  40 C.F.R. §51.308 (d) (3) (iv).

[52] Id.  40 C.F.R. §51.308 (d) (3) (v) (A) – (G).

[53] Id.  40 C.F.R. §51.308 (d) (4).

[54] Id.  40 C.F. R. §51.308 (d) (4).  Additional reporting requirements are listed in subsection (e) for the plan implementation of best available retrofit technology (BART).  Id.  40 C.F. R. §51.308 (e).  Progress reports and determinations of adequacy also are required.  Id.  40 C.F.R. §51.308 (g) and (h).

[55] Id.  40 C.F.R. §51.308 (f).

[56] Protecting Visibility in National Parks and Scenic Areas, Amendments to the Regional Haze Rule, EPA, www.epa.gov/visibility/final-rulemaking-amendments-regulatory-requirements-state-regional-haze-plans

[57] Id.

[58] Id.

[59] Protection of Visibility: Amendments to Requirements for State Plans, 82 Fed. Reg. 3078 (January 10, 2017) (to be codified at 40 C.F.R. pts. 51 and 52).

[60] Id.

[61] Id.

[62] Id.

[63] Id.

[64] EPA, supra note 2, at 3.  (This section lists the significant changes to the rule in 2017.)

[65] Protection of Visibility: Amendments to Requirements for State Plans, 82 Fed. Reg. 3078 (January 10, 2017) (to be codified at 40 C.F.R. pts. 51 and 52).

[66] Id.  See also EPA, supra note 2, at 3-4.

[67] EPA, supra note 2, at 1.

[68] Id. at 52.

[69] Id. 

[70] Id.

[71] Juan Carlos Rodriguez, 4 Takeaways From EPA’s Regional Haze Rule Guidance, www.law360.com (citing Draft Guidance on Progress Tracking Metrics, Long-term Strategies, Reasonable Progress Goals and Other Requirements for Regional Haze State Implementation Plans for the Second Implementation Period, (July 2016) at 73-74.)

[72] Id.

[73] See id.

[74] Id.

[75] Id.

[76] Id.

[77] Id.  According to Mary Uhl, who serves as executive director of the Western States Air Resources Council, motor vehicle emissions constitute a significant source, but those emissions are subject to federal regulation.  Id.

[78] See id.  (Quoting Debra Jezouit, Esq.)

[79] EPA’s Decision to Revisit Aspects of the 2017 Regional Haze Rule Revisions, EPA, www.epa.gov/visibility/epas-decision-revisit-aspects-2017-regional-haze-rule-revisions.

[80]Id.  See also Rodriguez, supra, note 71.

[81] Id.

[82] Protecting Visibility in National Parks and Scenic Areas, Amendments to the Regional Haze Rule, EPA, www.epa.gov/visibility/final-rulemaking-amendments-regulatory-requirements-state-regional-haze-plans.

[83] Id.

[84] Id.  (“‘The Western states have put down their marker that RAVI is a process that’s seen its time.’”  Id. (Quoting Mary Uhl.))

[85]George Cameron Coggins and Robert L. Glicksman, Interstate Pollution, 2 Pub. Nat. Resources L. §18:17 (2nd ed.) (February 2020) (citing North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008) and 71 Fed. Reg. 25304 (2006) wherein EPA denied petitions for reconsideration concerning the previous Clean Air Interstate Rule (CAIR)).

[86] Id.

[87] Id.  The CSAPR covers most of the eastern half of the United States, except for New England and Florida.  See EPA, www3.epa.gov/airmarkets/progress/reports/program_basics_figures.html#figure2.

[88] Id.  (Citing Environmental Protection Agency v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 1609-10 (2014)).

[89] www.4cleanair.org Washington Update (February 8-14, 2020).

[90]EPA, www.epa.gov/airmarkets/final-csapr-close-out.

[91] www.4cleanair.org Washington Update (February 8-14, 2020).

[92] Id.

[93] Id. (Linking to Complaint, Downwinders at Risk, et al. v. Wheeler, No. 1:20-cv-00349 (February 7, 2020) (citing State of Wisconsin, et al. v. Environmental Protection Agency, et al., 938 F.3d 303 (2019) and State of New York, et al. v. Environmental Protection Agency, 781 Fed.App’x *4 (2019)).

[94] Coggins and Glicksman, supra note 85.

[95] Id.

[96]EPA, https://www.epa.gov/system/files/documents/2021-08/epa-454-r-21-007.pdf.  Technical Support Document for EPA’s Updated 2028 Regional Haze Modeling for Hawaii, Virgin Islands, and Alaska at 28 (August 13, 2021) (citing 40 C.F.R. §51.308(f)(1)(vi) and EPA, https://www.epa.gov/visibility/technical-guidance-tracking-visibility-progress-second-implementation-period-regional, Technical Guidance on Tracking Visibility Progress for the Second Implementation Period of the Regional Haze Program (December 28, 2018)).

[97] The Eastern Band of the Cherokee Nation is part of the SESARM RPO, however.  EPA, supra note 29.  Hopefully, this will encourage additional participation.

[98] See EPA, www3.epa.gov/airmarkets/progress/reports/index.html (Progress reports from 2018 show some improvement but only for the eastern states in the program.)  See also EPA, www3.epa.gov/airmarkets/progress/reports/program_basics_figures.html#figure2.

[99]“On April 13, 2022, a coalition of environmental groups sued EPA for failing to enforce a July 2021 deadline for states to submit regional haze implementation plans; litigation is ongoing.“  Environmental & Energy Law Program,  https://eelp.law.harvard.edu/2018/04/regional-haze-rule/.

[100] See EPA, https://www.epa.gov/csapr/good-neighbor-plan-2015-ozone-naaqs (The EPA already has made recent, proposed additions to the CSAPR and Good Neighbor provisions.  Id.  “Under a consent decree, EPA must finalize the rule by December 15, 2022.”  Environmental & Energy Law Program,   https://eelp.law.harvard.edu/2017/09/cross-state-air-pollution-rule-and-section-126-petitions/.)

[101] EPA, supra, note 11.

https://fresh-energy.org/pollinator-friendly-solar-everybody-loves-it

Bee-nergy: A Texas Pollinator-Smart Solar Program is Smart for Texas

February 13, 2023   /  TREVOR HANCE

 

Introduction

This blog revisits Texas Senate Bill 1772 (2021) and asserts that Texas should create a “Texas Pollinator-Smart Solar Program.”

The creation of a Texas Pollinator-Smart Solar Program will incorporate existing synergies at the federal and local level, build on Texas’ leadership in the green-energy sector, improve opportunities for biodiversity (and specifically, Species of Greatest Conservation Need), bring more businesses to Texas providing good paying, equitable employment opportunities, incentivize businesses looking to relocate to Texas, and provide private landowners new revenue streams that align with the desires for a healthier, more informed (and more populous!) Texas.

A Texas-sized Goat Rodeo

In mid-February 2021, everything that could go wrong for the Electric Reliability Council of Texas (“ERCOT”), the sole grid source for nearly every Texan, did.  Two winter storms, Uri and Viola, thundered through Texas, creating an unprecedented week of high temperatures that never got above freezing (Texas ASCE, 2022).  Snow, ice, sleet, and generally cloudy conditions combined with freezing temperatures to make roads impassable for essential and emergency services, and either broke, froze or rendered inoperable water pipes, gas lines, coal plants, and wind turbines.  Even the City of Austin’s $460M biomass plant was in mothballs for the winter and unable to be restarted to relieve pressure. (Barer, D., 2021; Buchele, M., 2022; Fox7Austin, 2021).   Millions of people were left without power and water for days.

By year’s end, the state’s Department of Health and Human Services released its  official death toll of 246 people; independent reports put the figure closer to 850 (Domonoske, C. 2021; Hellerstedt, J., 2021; Aldhous, Lee, Hirji, 2021).

Beyond the loss of human life, a report released in February 2022 from the Texas Association of Civil Engineers estimated costs associated with the storms at approximately $300Bn and noted things could have been much worse (Texas ASCE, 2022).  According to the report, ERCOT was less than four and a half minutes from “black start conditions,” which means that the entire Texas electric grid would have gone down for weeks, or even months (Texas ASCE, 2022).

Wondering About Wildlife

Aside from human-centered concerns, nature had its own problems.

Texas is a natural funnel and flyway for migratory species, and the state (rather literally) comes to life each March. In Central Texas, near Austin, Texas Bluebonnets (Lupinus texensis) blanket pastures and the “cheap” alkaline soils along the highways.  By mid-month, monarch butterflies start to arrive, looking to lay eggs on their remarkable 3,000 km, five-generation journey from the oyamel mountains of Mexico’s transvolcanic belt to the U.S./Canadian border.

In March 2021, monarchs arrived in Texas to find phenology disordered.  An early February warm-spell (above 90 degrees in places like San Antonio) tricked some plants into early blooms that were then met with the brutal winter storms.  Non-native game species such as axis deer, a grassland species that had been imported from Africa for over 80 years for exotic-game hunting, perished on a massive scale, with some ranches seeing losses upwards of 60% (Wyatt, M., 2021). Mountain Laurels did not bloom at all in many places, patches of bluebonnets popped up here and there, and the monarch’s host plant, antelope horn milkweed native to Texas, had been stunted by February’s 151 hours of freezing temperatures (Bond, L., 2021; Maeckle, M., 2021).

In Spring 2021, nature looked a lot more “worrisome,” than “wonderful” in Texas.

Connecting Solar Energy and Pollinators: SB1772

Outside of the storms, the world was moving fast.  In May 2021, the CDC announced that those who had been vaccinated were safe from COVID, and the Texas Legislature was ready to get back to business.  COVID, ERCOT and the grid, an infusion of federal dollars, and a few other issues dominated discussions at the legislature.  In the mix was Texas Senate Bill 1772, ultimately reaching Texas Governor Greg Abbott’s desk by mid-summer.

The Bill, sponsored by three democrats and one republican, proposed to create a Texas Pollinator-Smart Solar Program to encourage the establishment and conservation of habitats for bees, birds and other pollinators at solar energy sites.

The bill directed Texas A&M Agrilife Extension (“AgriLife”) to develop a Certification Program to educate stakeholders on the benefits of solar energy production, create a “how to” for landowners to establish and maintain native pollinator friendly habitats, and help identify avenues to find grants and other financial incentives associated with these sites (SB 1772, 2021).

Solar energy sites with pollinator habitats that met program criteria would be awarded certificates by AgriLife signifying their successful participation in the program. (SB 1772, 2021).

With over 5,000 employees and a presence in every county across the state, Agrilife is well positioned to lead such a program and continue their mission of “enriching Texas through agriculture and life-sciences in a way that improves lives, environments, and the Texas economy” (AgriLife Extension, 2021).  Alternatively, the Texas Parks and Wildlife Department would be a strong candidate to lead the program based on its unique knowledge of wildlife patterns and mission to “manage and conserve the natural and cultural resources of Texas and to provide hunting, fishing and outdoor recreation opportunities for the use and enjoyment of present and future generations” (TPWD About, n.d.).

The Bill was vetoed by Governor Abbott with a note stating, “Senate Bill 1772 offered a program that was totally voluntary. Voluntary laws are not needed to drive public behavior.”

While not the subject of this paper, “voluntary” programs have proven beneficial and successful in Texas. As a “property-rights state” effectively engaging landowners and the general public is a proven strategy for conservation success.  For example, the Texas Department of Agriculture’s “Go Texan!” program has strengthened small businesses and the Texas economy (GoTexan, n.d.).  Further, TPWD has long embraced volunteers and citizen science projects as a method of data collection to help inform policy makers about the status of Species of Greatest Conservation Need, and relied extensively on citizen-science platform iNaturalist during and immediately after the 2021 winter storms (Bond, L, 2022; Texas Pollinator Bioblitz, 2022).

Unfortunately, with Governor Abbott’s veto, the Pollinator Smart Solar Program was not developed, and Texas moved on — perhaps to “greener pastures…”

A Year Later:  Greener Pastures

Although well known as a global leader in oil and gas production, in a March 2022 speech to the U.S. Chamber of Commerce, Governor Abbott touted renewables, stating: “You can have fossil fuels while at the very same time be leaders in renewable energy… We’ve got to be very clear that all forms of energy are essential” (Taschinger, T. 2022).

Surprising to many, Texas produces far more wind power than any other state– 24.7% of the national total (Oklahoma is second at 9.7%) and is number 5 in producing solar power, and Governor Abbott has predicted that Texas will leap to the number 1 spot for solar production by the end of the year (Governors Wind Energy Coalition, 2022). With an independent electricity grid, diverse topography, geography, and plenty of sunshine and wind, Texas is well positioned to continue to lead the country in renewable energy and markets are proving the transition true (Taschinger, T. 2022).  Right now, there are more than 130 gigawatts of wind and solar projects in the chute at ERCOT — quadruple their renewable capacity (Cohan, D. 2022).  Additional capacity (and transmission) will be needed to continue to meet the needs of this rapidly growing state that accounted for almost 35% of total U.S. population growth between 2019 and 2020 (Texas Demographics, n.d.).

GTT…”Gone to Texas”

Texas’ booming population is largely due to the economic opportunities available in a state that is energy rich and over 96% privately owned.  In 2015, Governor Abbott penned an op-ed for Forbes magazine laying out his philosophy, noting “we have built a framework that allows free enterprise to flourish, including less government, low taxes, reasonable regulations and the right-to-work laws that attract job creators and keep job growth here in the state of Texas.” (Abbott, G., 2015).

Initiatives that promote essential and effective conservation, jobs, and a more resilient and reliable grid are vital to continued successful growth in Texas.  Supporting the synergy between solar energy and pollinator protection can serve as a key component of Texas’ growth, benefiting all Texans. As described below, complementary federal and local initiatives underway, provide cost saving benefits to moving forward now with a Texas Pollinator Smart Solar Program.

Federal Initiatives:  Building Back through Biodiversity and Resiliance

One example of complementary initiatives relates to the 2021 Infrastructure Investment and Jobs Act that provides over $100Bn to upgrade the nation’s power infrastructure to deliver clean, reliable energy across the country. (Fact Sheet, 2021).  SB 1772’s directive to “find grants and other financial incentives associated with these sites” opens opportunities to improve renewable energy production and transmission, and relieves the capacity pressure currently in the ERCOT pipeline.

Another relates more directly to biodiversity-related conservation.  In President Biden’s first days in office he signed Executive Order 14008, to leverage the nation’s lands, ocean, inland waters, and wildlife as part of his administration’s efforts to address environmental health and climate change. Biden’s executive order promised to conserve at least 30 percent of U.S. lands and waters through support from the U.S. Department of the Interior, U.S. Department of Agriculture, U.S. Department of Commerce through NOAA, and Council on Environmental Quality.  (NRDC, 2021) The initiative looks to get farmers, ranchers, hunters and fishermen involved, highlighting opportunities for a broader, management-and-recreational approach to conservation (Wufei Yu, L., 2021).

While the entire effort lends itself well to this initiative, Principle 5, “Pursue Conservation and Restoration Approaches that Creates Jobs and Support Healthy Communities” and Principle 7 “Use Science as a Guide” are most applicable to this economic approach to the Pollinator Friendly Solar Program (America the Beautiful, 2021)

Federal Building a Better Grid Initiative:  Engaging Federal Funds to Support a More Resilient and Reliable ERCOT

As noted, Texas’ energy portfolio is diverse, and one of the emerging challenges is developing and funding reliable energy transmission.  In January, the Department of Energy (DOE) launched the Building a Better Grid Initiative to connect and upgrade the three independent grids in the United States.  The initiatives include more than $20Bn in federal financing tools (Dept. of Energy, 2022).  In April 2022, Michelle Manary, acting deputy assistant secretary at DOE’s Office of Electricity and point person for the administration noted that the administration is interested in interregional transmission improvements to help deliver affordable, clean while making the grid more reliable and resilient (Gerdes, J. 2022)  Although Texas has been slow to explore interregional relationships, with a reliable final failsafe option, Texas might have completely avoided the 2021 blackouts.

Fed Ag Incentives

Beyond the technical elements of energy production and logistics of transmission, buy-in from stakeholders, including landowners and its stewards are paramount in balancing the needs of humans, nature, and natural resources.

In February 2021, President Biden called on farmers, ranchers, and foresters to lead the way in offsetting greenhouse gas emissions in the climate change battle (Newberger, E., 2021).  A year later (February 2022), the United States Department of Agriculture announced $1Bn in incentives for regenerative agricultural practices (e.g. –  no-till, cover crops, and rotational cattle grazing systems that allow soil and grass to recover by moving cattle from pasture to pasture) that help drawdown carbon in the atmosphere (Newberger, E., 2022).

USDA Secretary Tom Vilsack has said the money could go toward creating new markets that incentivize producers to sequester carbon in the soil (Newberger, E., 2021), and that the initiative is intended to “incentivize creation of climate-smart commodities that hold higher value in the marketplace that farmers can generate additional profit from.”  (Newberger, E., 2022) With many farmers feeling the pinch from 2020 and the instability of 2022, many are looking for stable, long-term revenue opportunities.  USDA’s initiative could promote transitional and/or transformative conservation strategies.

Coupling these federal initiatives with a Pollinator Smart Solar Program where large ranches are being divided into smaller tracts (see below) puts Texas in the “cat-bird seat” to direct how funds best match local resources and landowner interests with state-based needs.

Texas, oh Texas…

Federal funding supporting infrastructure improvements and connections between landowners and diverse revenue streams can be a great kick-start to a Pollinator Smart Solar Program, allowing the state to focus on meeting existing and emerging state-defined priorities.  Specifically, focusing on effective conservation, stakeholder relationships, continued tax code benefits for changing land-ownership, and high-paying jobs in local communities will drive the program to long-term success.

One important byproduct of economic growth, a booming population, and generational change is that large landholdings frequently become smaller, fragmented landholdings.  Whether through inheritance or development associated with “new wealth” created through Texas’ vibrant tech sector and strong economy, lands involved in traditional agriculture and ranching are increasingly being converted to smaller tracts with owners who do not have experience or interest in those industries.  Some of the incentives for a Pollinator Smart Solar Program help these smaller tract landowners enjoy their own slice of Texas for productive purposes while maintaining cost and tax benefits of conservation-minded management.

Public and Private Conservation – a Texas Tradition

Unlike states further west, Texas is almost 100% privately owned, and effective conservation requires strategic public-private partnerships that improve biodiversity, environmental health, and equitable access to nature. Considering the lack of public lands that could be converted for projects like the Pollinator Smart Solar Program, there are basically two ways to preserve privately owned land as open space: buy it, or ask a landowner to donate or sell their development rights through a conservation easement that permanently restricts land use (see, Kimble, M., 2022). Current efforts are bringing together public-private partnerships and achieving natural resource conservation in ways previously not thought possible.

The Great Springs Project (Great Springs, n.d.) will create a nearly 100-mile greenway of contiguous protected lands covering 50,000 acres between Austin and San Antonio over the Edwards Aquifer — primarily on private land.  Involving the Aquifer is important, as it provides drinking water for nearly 2M households and is home to six endangered species (Kimble, M., 2022).

Similarly, the Nature Conservancy’s work with the City of San Antonio and Bat Conservation International has protected Bracken Cave.  At nearly 1,500 acres, Bracken is home to the world’s largest bat colony (Bracken Bat Cave, 2018).

Collectively, conservation (or “environmental”) projects receive strong bipartisan support in Texas. Over the past four years, greater than 70 percent of voters in Travis and Hays County approved nearly $100m each for parks, open spaces, and water conservation (Kimble, M., 2022). These initiatives build community, increase economic opportunity, and provide rallying points for people to recognize their “place” in the natural heritage of Texas.

Tax Incentives

Texas’ population continues to boom, and large property holdings are becoming smaller tracts that many landowners find “too big to mow but too small to graze.”  These “next-gen” landowners of tracts larger than 20 acres who engage in Wildlife Management for indigenous, native wildlife in a manner that “supports a sustained breeding, migrating, or wintering population of indigenous native wildlife for human use including food, medicine, and recreation” have access to certain tax advantages identified in the Texas Constitution and Tax Code (TX Const. Art 8, § 1-d-1; TEX. TAX CODE §23.51(7)(A); Agricultural Tax Appraisal, n.d.)

Importantly, songbirds, small mammals, whitetail deer, and other native plants are all eligible for wildlife management benefits, provided the landowner engages, at a “minimum intensity”, at least three of the following seven wildlife management practices annually as designated by the Texas Parks and Wildlife Department in that land’s ecoregion:

  • Habitat control;
  • Erosion control;
  • Predator control;
  • Supplemental water;
  • Supplemental food;
  • Supplemental shelter; or,
  • Conducts census.

(Agricultural Tax Appraisal, n.d.; Landowners: Naturalists, n.d.)

Pollinators in Peril

In addition to monarchs, other butterflies, as well as ants, bats, bees, beetles, flies, hummingbirds, moths, and wasps provide important ecosystem services, facilitating reproduction in approximately 90 percent of the world’s flowering plants, and approximately one out of every three bites of food consumed by humans (SB 1772 History, n.d.). In the United States alone, pollinators produce $40 billion worth of products annually through pollination, and their role in biodiversity is vital to maintaining healthy ecosystems (including serving as important food resources for a diverse array of animals including birds, insects, reptiles, and mammals). (Hutchins, B., Warriner, M., 2016).

Native pollinators are generally the most efficient and effective pollinators of native plants as well as many agricultural crops native to the western hemisphere like squashes and tomatoes, making them critical to the maintenance of Texas’ native landscape (TPWD Native Pollinators and Private Lands, n.d.).

Unfortunately, pollinators continue to suffer from loss of habitat and diseases. Increased land use by humans and exposure to parasites and pesticides have led to a deficit in flowering plants and even local extinctions of pollinator species. (SB 1772, 2021).

Buzz…Species of Greatest Conservation Need

Recovering America’s Wildlife Act (“RAWA”) and Species of Greatest Conservation Need

Moving slowly through the United States Congress, the Recovering America’s Wildlife Act (“RAWA”) would shift funds from the federal to state level to support execution of the state’s wildlife action plan.  It is estimated that if it passes, “RAWA” funds in Texas would exceed $50m (Billingsley, S., 2022).

Each state’s wildlife management plan includes a listing of Species of Greatest Conservation Need.  In Texas, the state’s Conservation Action Plan includes over 1300 species, 30 of which are native pollinator/flower visiting species (TPWD Species of Greatest Conservation Need, n.d.)

Designation as a Species of Greatest Conservation Need means the plant or animal is declining or rare and without attention, may need federal protection under the Endangered Species Act. RAWA would transfer managerial responsibility to states in an effort to apply local knowledge to efforts to prevent acceleration of threatened species to Endangered Species Act listing.

A Pollinator Friendly Solar Program could be designed to include targeted certification for Species of Greatest Conservation Need.  If targeted certifications were available, these landowners could be “fast-tracked” for additional RAWA funding for landowners and their solar projects in accordance with the language of SB 1772.

Texas:  Bundling Carbon Contracts

Pollinator-friendly solar can also unlock revenue for landowners through other means, including carbon-contracts.   In a carbon contract, a landowner agrees to set aside land from use or development, which reduces the amount of carbon dioxide in the atmosphere (Janzen, T., 2021).  The Pollinator Friendly Solar Program would provide a pathway for landowners to better understand this opportunity while restoring their lands in a way that supports biodiversity.

A February 2022 Texas Monthly article references a study that estimates global croplands could store an additional 1.85 gigatons of carbon each year, enough to offset the emissions of the entire global transportation sector (McCullar., E. 2022)

Texas: Bringing Business To Texas

Along with wildlife migration, human migration to Texas, both in-country and international, is occurring at an unprecedented pace, with front-page players like Elon Musk and Joe Rogan, as well as tech giants like Samsung and Apple, all calling Texas home these days and others looking for a foothold.  As Texas grows, adding opportunities to incorporate and improve investor, customer, and employee perception of companies will be increasingly important (for companies — and for the state).  The Pollinator Smart Solar Program gives businesses an opportunity to expand and incorporate PSSP into their campus and corporate strategy by building biophilic design into their expansion plans and improving increasingly relevant Environmental, Social, and Corporate Governance (“ESG”) scores. (Deckelbaum, A., Karp, B., Curran, D., Johnson, J. C., Lynch, L., & Bergman, M. (2020).

Locals Only: For Local Communities (county/city)

Creating a pollinator-solar connection would also be attractive to local economies. Local economies love growth that provides their community with strong, stable, and high-wage job opportunities, something not traditionally available in raw-land or agricultural settings.  Some local communities are ahead of community investment, looking to put workers just entering the workforce into stable, good-paying jobs, and incentivizing green infrastructure and green jobs for those historically underserved.

Austin – CCC

Many cities, including Austin and Houston, have developed job training programs that prioritize green industry skills.  Austin’s Civilian Conservation Corps is a workforce development program focused on green jobs, modeled (in spirit) after 1930s Civilian Conservation Corps program, with a focus on creating equitable access to low-barrier programs that provide income, support, and pathways to additional jobs/careers/training.  Austin is strongly committed to the program that works with multiple local partners for job placement and is building a pipeline to good paying job through an equity lens in the community.  Importantly, solar installation and green-space improvement (i.e. – trails, pollinator spaces) are amongst the training offered by ACCC (Austin’s Civilian Conservation Corps, n.d.).

Austin Watershed – an analogy

With a strong workforce, the City of Austin provides hundreds of thousands of dollars to individual residents and businesses who improve their water infrastructure and/or shift to gray water; while AustinEnergy has incentives for homeowners who install solar on their property. (Rebates, Tools & Programs, n.d).  Similar incentives can be offered to diversify local energy sources and offset pressure on energy producers, avoiding situations such as that in February 2021.

Conclusion

The creation of a Texas Pollinator-Smart program connects people through things we have in common:  healthy environments, clean, reliable energy, and communities who are responsible stewards of our precious natural resources.  Texas is a leader in many arenas and an expert in bringing stakeholders together to accomplish what’s most important to our state.  Continued leadership in the green-energy sector, improved opportunities for biodiversity (and specifically, Species of Greatest Conservation Need), more businesses in Texas with good paying, equitable employment opportunities, and providing private landowners new revenue streams that align with the desires of a healthier, more informed (and more populous!) Texas is good for everyone.  The economy is humming and renewable energy is in high gear — let’s make it buzz…

 

 

Abbott, G. (2015, March 09). Texas Means Business.  Retrieved from https://www.gregabbott.com/texas-means-business/

Agrilife Extension (2021).  About Texas A&M Agrilife Extension.  Retrieved from https://agrilife.tamu.edu/about/

Agricultural Tax Appraisal Based on Wildlife Management: Legal Summary of Wildlife Management Use Appraisal. (n.d.). Retrieved from https://tpwd.texas.gov/landwater/land/private/agricultural_land/legal-summary.phtml

Aldhous, P., Lee, S., Hirji, Z., (2021).  The Graveyard Doesn’t Life:  The Texas Winter Storm And Power Outages Killed Hundreds More People Than The State Says.  Buzzfeed Media.  Retrieved from https://www.buzzfeednews.com/article/peteraldhous/texas-winter-storm-power-outage-death-toll

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Barer, D. (2021, June 26). Austin’s biomass power plant idled again during mid-June energy crunch. Retrieved from https://www.kxan.com/investigations/austins-biomass-power-plant-idled-again-during-mid-june-energy-crunch/

Billingsley, S. (2022, January 21).  Recovering America’s Wildlife Act Passes U.S. House Committee. Retrieved from https://environmenttexas.org/news/txe/recovering-america’s-wildlife-act-passes-us-house-committee

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Landowners: Naturalists. (n.d.). Retrieved from https://w3.biosci.utexas.edu/jha/landowner-naturalist

Maeckle, M. (2021).  Reduced monarch butterfly population heads north from Mexico in wake of historic Texas freeze.  Retrieved from https://texasbutterflyranch.com/2021/03/03/reduced_monarch_population_texas_feeze_2021/

McCullar, E. (2022, February 16). Texas Ranchers Get Paid to Capture Carbon. Retrieved from https://www.texasmonthly.com/news-politics/grassroots-carbon-regenerative-ranching/

Newberger, E. (2021, February 12). Biden’s climate change strategy looks to pay farmers to curb carbon footprint. Retrieved from https://www.cnbc.com/2021/02/12/bidens-climate-change-plan-pay-farmers-to-cut-carbon-footprint.html

Newberger, E. (2022, February 07). Feds will spend $1 billion to spur farmers and ranchers to fight climate change. Retrieved from https://www.cnbc.com/2022/02/07/usda-to-spend-1-billion-on-agriculture-projects-tackling-climate-change.html

Newberger, E. (2021, February 12). Biden’s climate change strategy looks to pay farmers to curb carbon footprint. Retrieved from https://www.cnbc.com/2021/02/12/bidens-climate-change-plan-pay-farmers-to-cut-carbon-footprint.html

NRDC (2021, December 21). Biden Administration Provides Update on 30×30. Retrieved from https://www.nrdc.org/media/2021/211220-0#:~:text=Biden’s executive order promised to,report to the National Climate

Rebates, Tools & Programs. (2022, October). AustinTexas.gov, Retrieved from https://www.austintexas.gov/department/rebates-tools-programs

SB 1772 (2021).  Texas Pollinator Smart Program. Retrieved from https://capitol.texas.gov/tlodocs/87R/analysis/html/SB01772I.htm

SB 1772 History (n.d.). Retrieved from https://capitol.texas.gov/tlodocs/87R/analysis/html/SB01772I.htm

Solar Photovoltaics (PV) Rebate & Incentives. (n.d.). Retrieved from https://austinenergy.com/ae/green-power/solar-solutions/for-your-multifamily/solar-photovoltaic-pv-incentives

Taschinger, T. (2022, March 30). OPINION: Abbott is right to finally support green energy in Texas. Retrieved from https://www.beaumontenterprise.com/opinions/editorials/article/OPINION-Abbott-is-right-to-finally-support-green-17040477.php

Texas ASCE, Reliability and Resilience in the Balance. (2022, February 22). Retrieved from https://www.texasce.org/tce-news/reliability-and-resilience-in-the-balance/

Texas Demographics (n.d.). Retrieved from https://demographics.texas.gov/Search?q=Demographic Trends and Population Projections for Texas and the North Texas Region

Texas Pollinator BioBlitz. (2022, September 09). Retrieved from https://tpwd.texas.gov/education/bioblitz

TPWD About: Mission and Philosophy (n.d.).  Retrieved from https://tpwd.texas.gov/about/mission-philosophy

TPWD Native Pollinators and Private Lands:Targeting Effective and Efficient Pollinators. (n.d.). Retrieved from https://tpwd.texas.gov/huntwild/wild/wildlife_diversity/nongame/native-pollinators/explained.phtml

TPWD Species of Greatest Conservation Need. (n.d.). Retrieved from https://tpwd.texas.gov/huntwild/wild/wildlife_diversity/nongame/tcap/sgcn.phtml

TPWD Mission & Philosophy. (2015, July 24). Retrieved from https://tpwd.texas.gov/about/mission-philosophy

TX Const. Art 8, § 1-d-1;

TEX. TAX CODE §23.51(7)(A)

Wufei Yu, L. (2021, June 23). A reality check on Biden’s ’30 by 30′ conservation plan. Retrieved from https://www.hcn.org/articles/south-politics-a-reality-check-on-bidens-30-by-30-conservation-plan

Wyatt, M. (2021, March 17). How Texas’ exotic game were devastated by the winter storm. Retrieved from https://www.houstonchronicle.com/texas-sports-nation/general/article/How-Texas-exotic-game-were-devastated-by-the-16032850.php

clean air acts, environmental regulations, clean air, epa regulations, air quality, environmental law education center

Climate Crime at the ICC – Environmental Justice through the Looking Glass

February 13, 2023   /  PATRICK CANNING

 

Introduction

It is a fact, as well as a universally accepted view, that climate change has been caused primarily by western nations while poor and already disadvantaged nations have suffered disproportionately and will be more impacted in the future.[1] Climate burdens “fall disproportionately on individuals and populations least responsible for causing them and raise serious concerns about justice.”[2]

To make matters worse, the more affluent nations who have largely caused climate change often take an “after you” approach to the global south, a position where they assert they will not make meaningful emissions reductions unless poor countries do so first.[3]

The world has known since the 2018 IPCC report Global Warming of 1.5°C that the difference between 1.5°C and 2°C is equivalent to “hundreds of millions” of deaths.[4] Therefore it is important to have a public discussion regarding criminal accountability. But in doing so it is critical that questions of who has caused the problem, and who will bear the brunt of the impact, be kept at the fore of any such analysis.

While there are various definitions of Environmental Justice (“EJ”), it may be more helpful to look at what are widely accepted concepts, or elements of EJ. Four have long been accepted: 1. distributive justice, 2. procedural justice, 3. corrective justice and 4. social justice.[5] A fifth factor has recently been accepted – recognitional justice.[6]

Recognitional justice requires recognizing differences “between society’s dominant and subordinate groups” and to “acknowledge the institutionalization of unconscious biases, exclusionary processes, and normative judgments” that work through social structures to “manifest [in] racially disparate outcomes.”[7]

Distributive justice is about the fair and equal distribution of both costs and benefits, while procedural justice is about how you get there.[8]

Finally, a concept which is fundamental to EJ is “we speak for ourselves.”[9] This is also connected to recognitional justice.

The crime of ecocide should not be taken up by the ICC as is because it would violate these EJ principles and exacerbate the wrongs and imbalances which have driven climate change. While the application of criminal law to climate change is a worthy endeavor, other solutions should be found which are in keeping with principles of EJ.

This post will focus on an EJ critique of ecocide at the ICC, in the context of climate change. It will end with brief preliminary suggestions for other tools, but not go in depth on that. EJ is used instead of Climate Justice (“CJ”), because there may be less certainty regarding the newer evolving term CJ.

Back story

A potential new crime at the International Criminal Court (“ICC”), “ecocide,” is the topic of much discussion lately, as the ICC was presented with a definition for adoption in June of this year.[10] However, questions have arisen about whether that is a wise course of action, especially in relation to climate change.[11] Despite widespread support among the environmental movement, a number of issues have been raised with the crime of ecocide. The key critique here is the racial and economic imbalance in ICC prosecutions. As of July 2020 all 42 of the indictments issued by the ICC had been against Black and/or Arab Africans.[12]

The main explanation for this is that the Rome Statute was designed to be a court of last resort, and so is functioning as it should.[13] Implicit in that is that the crimes the ICC was created to address – mass atrocity violence[14] are not being committed in the western states due to the rule of law. While this is certainly debatable from an Indigenous or Black perspective, it is likely a widely accepted view.

Regarding climate change, however – that view is turned on its head.

Recognitional justice demands that our history be acknowledged

Professor James Thuo Gathii has pointed out that Third World Approaches to International Law (TWAIL) scholarship “contests the idea that international law is applicable everywhere and that we should therefore regard it as a view from nowhere” and challenges international law’s failure “to engage in its complicity in histories of colonization, plunder, and enslavement—whose legacies continue to date.”[15]

This engages recognitional justice, and the issue of race must be confronted openly.[16] In contemplating a crime of ecocide at the ICC, as it relates to climate change, the historical and present role of international law in creating imbalances of wealth and power must be frankly considered.[17]

Procedural unfairness

There are limits on ICC jurisdiction which create unfairness as they relate to climate change and ecocide. One is temporal – crimes cannot be retroactive, and so prosecutions for ecocide can only occur for actions after it is listed as a crime in the Rome Statute.[18] Western nations have had more capacity to slow GHG production[19] and while not all of them have, such as Canada, the UK has made significant progress.[20] Poorer countries will take longer to bring emissions down as they need energy to develop.[21] This leaves them potentially more vulnerable to a new crime of ecocide at the ICC as it relates to climate change, and therefore exacerbates unfairness and is contrary to corrective justice.

A further limitation is capacity/ willingness to prosecute. This is addressed in Article 17 of the Rome Statute, which says that a case is only admissible where, “the State is unwilling or unable genuinely to carry out the investigation or prosecution.”[22]

This means that the ICC will only prosecute where it determines that there is a lack of capacity or willingness to do so. It has been described as requiring the “admission of state incapacity and dependence.”[23] In the context of climate change this is another barrier against any prosecution of Western nations and violates the principle of procedural justice.

A corrective INjustice if the biggest emitters walk

Regarding climate change would the ICC be likely to prosecute on the basis of having caused the most harm, and what would that look like? Or would the complicity of international law, mentioned above, be repeated by the ICC in pursuing justice for climate change impacts, by “picking the lowest hanging fruit”?[24]

There are two ways to be prosecuted by the ICC, one is to be a signatory to the Rome Statute (to have surrendered to the jurisdiction of the court), and the other is to have a case forwarded by the UN Security Council (UNSC).[25]

The top three historical emitters, who have contributed the most to global climate change, are the USA, China, and Russia. [26] None are signatories to the Rome Statute, [27] and all three are permanent members of the UNSC, and consequently have a veto.[28]  Therefore the only way for persons from those three nations to be prosecuted by the ICC for ecocide as it relates to climate change is if the UNSC forwards the case, and they do not block it by veto.

This is also where “realpolitik” comes into play.[29] Germany is the 4th largest emitter historically, UK is 5th, France 7th and Canada is 9th (as of 2011).[30] Does anyone really think the ICC will prosecute their leaders?An answer to that can be predicted by looking at the past. In asking if the Prime Minister of the UK is likely to be prosecuted, one can simply ask, was Tony Blair prosecuted for the illegal invasion of Iraq? The ICC, and the UK’s highest court, have decided that he will not.[31] While the exact figure is unknown, it is clear that hundreds of thousands of civilians died in that war.[32] The UK is subject to ICC jurisdiction, but as EJ advocates may point out, Tony Blair is white, and comes from a Western European nation.

As further evidence of this divide, when the ICC hinted at investigating the USA for crimes in Afghanistan then-president Trump issued sanctions against the two black African members of the ICC Office of the Prosecutor. While Biden has withdrawn them, he has otherwise remained in lockstep with Trump and former administrations in saying that US nationals will not be subject to the ICC because the US is not a party (even though the US supports ICC jurisdiction against other non-parties).[33]

Prosecution for ecocide as it relates to climate change is virtually impossible against the three largest historical emitters, and hard to imagine for the top ten, other than, perhaps – India.

It would be the opposite of corrective justice to prosecute leaders or citizens of poorer countries, who have contributed the least, and already pay the most, while those who have done the most harm escape justice.

“We speak for ourselves” – a just process must be driven by developing nations

EJ nations and people must be allowed to speak for themselves. While it is true that African nations were drivers of the creation of the ICC,[34] there is now widespread and justified dissatisfaction.

The right international / UN body to address this could be the UN General Assembly, where there is “one nation one vote,” or a forum convened by those nations most impacted by climate change.[35]

If justice were the only concern, and the realities of global power were not, perhaps the most equitable solution would be a new tribunal similar to the International Criminal Tribunal for Yugoslavia, or that model, but brought and governed by the world’s poor, and with jurisdiction over the Western nations who have created the problem.

To be in keeping with basic principles of EJ, any international crimes or processes created to address climate change must recognize our structural differences and shared history. It must recognize the massive wealth created by and for the Western world in the course of creating the climate problem, the massive suffering of the world’s poor and people and nations of color as a result of it, and the social injustice of climate change. Most importantly it must be corrective – aimed at addressing that imbalance, not worsening it.

 

 

[1] Henry Shue, Climate Justice: Vulnerability and Protection, Oxford University Press, Oxford, UK, (2014) p. 4; Fiona Harvey, July 15, 2021, Move faster to cut emissions, developing world tells rich nations, The Guardian, online: https://www.theguardian.com/environment/2021/jul/15/move-faster-to-cut-emissions-developing-world-tells-rich-nations.

[2] Christopher Preston & Wylie Carr (2018) Recognitional Justice, Climate Engineering, and the Care Approach, Ethics, Policy & Environment, 21:3, 308-323, DOI: 10.1080/21550085.2018.1562527.

[3] Shue, H. (2014) Climate justice: vulnerability and protection (1st ed.). Oxford, UK: Oxford University Press, pp. 68.

[4] David Wallace-Wells, The Uninhabitable Earth, Crown Publishing, New York, 2019, p. 28 (print version); Global Warming of 1.5°C: IPCC, 2018: Global Warming of 1.5°C.An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty [Masson-Delmotte, V., P. Zhai, H.-O. Pörtner, D. Roberts, J. Skea, P.R. Shukla, A. Pirani, W. Moufouma-Okia, C. Péan, R. Pidcock, S. Connors, J.B.R. Matthews, Y. Chen, X. Zhou, M.I. Gomis, E. Lonnoy, T. Maycock, M. Tignor, and T. Waterfield (eds.)]. In Press, online: https://www.ipcc.ch/site/assets/uploads/sites/2/2019/06/SR15_Full_Report_Low_Res.pdf, pages 157, 263, and 464.

[5] Villa, C. Ahmad, N. Bratspies, R., Lin, R., Rechtschaffen, C., Gauna, E., O’Neill, C. Environmental Justice: Law, Policy and Regulation, 3rd Edition, Carolina Academic Press, LLC, Durham, North Carolina (2020), pp. 9-18, 22; Robert R. Kuehn, A Taxonomy of Environmental Justice, 30 Envtl. L. Rep. 10,681 (2000).

[6] Candice Youngblood, Put Your Money Where Their Mouth Is: Actualizing Environmental Justice by Amplifying Community Voices, 46 Ecology L. Q. 455 (2019).

[7] Ibid., p. 464, and Sheila Foster, Race(ial)Matters: The Quest for Environmental Justice, 20 ECOLOGY L.Q. 721 (1993), pp. 729-730.

[8] Robert R. Kuehn, A Taxonomy of Environmental Justice, 30 ENVTL. L. REP. News &

Analysis 10681 (2000), p. 10683 – 10684.

[9] Villa, C. Ahmad, N. Bratspies, R., Lin, R., Rechtschaffen, C., Gauna, E., O’Neill, C. Environmental Justice: Law, Policy and Regulation, 3rd Edition, Carolina Academic Press, LLC, Durham, North Carolina (2020), p. 25.

[10] Ian Profiri, June 23, 2021, “Legal experts present definition of ecocide for adoption by ICC,” Jurist, online: https://www.jurist.org/news/2021/06/legal-experts-present-definition-of-ecocide-for-adoption-by-icc/ .

[11] Sara K. Phillips, 9 July 2021, Unpacking “ecocide”: a note of caution for international criminalization, Stockholm Environment Institute, Perspectives, online: https://www.sei.org/perspectives/unpacking-ecocide-international-law/ .

[12] Ibid, also see Kamari Maxine Clarke, July 24, 2020, Negotiating Racial Injustice: How International Criminal Law Helps Entrench Structural Inequality, Just Security, online: https://www.justsecurity.org/71614/negotiating-racial-injustice-how-international-criminal-law-helps-entrench-structural-inequality/; Randle C DeFalco, Frédéric Mégret, 10 June 2019, The invisibility of race at the ICC: lessons from the US criminal justice system, London Review of International Law, Volume 7, Issue 1, March 2019, Pages 55–87, https://doi.org/10.1093/lril/lrz002; Also see the full list of indictees here: https://en.wikipedia.org/wiki/List_of_people_indicted_in_the_International_Criminal_Court#Vincent_Otti

[13] Emily Rowe, Flux: International Relations Review Vol. 11 No. 2 (2021) – Articles
The ICC-African Relationship: More Complex Than a Simplistic Dichotomy, p. 56, online:
https://doi.org/10.26443/firr.v11i2.75.

[14] Clarke, supra note 12; Christa-Gaye Kerr, Sovereign Immunity, the AU, and the ICC: Legitimacy Undermined, 41 MICH. J. INT’L L. 195 (2020), p. 211.

[15] Gathii, J. (2020). Promise of International Law: A Third World View (Including a TWAIL Bibliography 1996–2019 as an Appendix). Proceedings of the ASIL Annual Meeting, 114, 165-187. doi:10.1017/amp.2021.87, p. 2.

[16] Owiso Owiso, 19 April, 2021, ICC Sanctions Symposium: The United States of America, Racism and Sanctions Meet at the International Criminal Court, Opinio Juris, online: http://opiniojuris.org/2021/04/19/icc-sanctions-symposium-the-united-states-of-america-racism-and-sanctions-meet-at-the-international-criminal-court/; Kerr, supra note 14, page 213.

[17] John Reynolds & Sujith Xavier, The Dark Corners of the World, 14 J. INT’l CRIM. Just.

959 (2016), pp. 982-983.

[18] Rome Statute of the International Criminal Court art. 66 ¶ 3, July 17, 1998, 2187 U.N.T.S. 90., Article 24(”Rome Statute”); although there may be more flexibility to this than first meets the eye, see Gerhard Kemp, “Climate Change, Global Governance and International Criminal Justice” published in Climate Change: International Law and Global Governance Volume I: Legal Responses and Global Responsibility, eds. Oliver C. Ruppel, Christian Roschmann and Katharina Ruppel-Schlichting, Nomos Verlagsgesellschaft mbH, (2013) pp. 717-718, online: https://www.jstor.org/stable/j.ctv941w8s.

[19] Shue, supra note 1, p. 5.

[20] Climate Action Tracker: Canada, online: https://climateactiontracker.org/countries/canada/ ; Climate Action Tracker: UK, online: https://climateactiontracker.org/countries/uk/.

[21] Shue, supra note 1, p. 5 and pp. 27-36.

[22] Rome Statute, supra note 18,Article 17; Kerr, supra note 14, p. 195.

[23] Clarke, supra note 12.

[24] Frazer, Jendayi, Wall Street Journal, Eastern edition; New York, N.Y. [New York, N.Y]. 25 July 2015: A.11.

[25] Clarke, supra note 12.

[26] Duncan Clark, Which nations are most responsible for climate change? The Guardian, 21 April 2011, online: https://www.theguardian.com/environment/2011/apr/21/countries-responsible-climate-change .

[27] International Criminal Court, Signatories to the Rome Statute, online: https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx.

[28] United Nations Security Council, Current Members, online: https://www.un.org/securitycouncil/content/current-members.

[29] Emily Rowe, Flux: International Relations Review Vol. 11 No. 2 (2021) – Articles
The ICC-African Relationship: More Complex Than a Simplistic Dichotomy, p. 57, online: https://fluxirr.mcgill.ca/issue/view/7.

[30] Duncan Clark, Which nations are most responsible for climate change? The Guardian, 21 April 2011, online: https://www.theguardian.com/environment/2011/apr/21/countries-responsible-climate-change .

[31] International Criminal Court, 4 July 2016, “Statement of the Prosecutor correcting assertions contained in article published by The Telegraph,” online: https://www.icc-cpi.int/pages/item.aspx?name=160704-otp-stat; International Criminal Court, 9 December, 2020, “Preliminary examination, Iraq/UK, (Closed – decision not to proceed),” online: https://www.icc-cpi.int/iraq; Owen Bowcott, July 31, 2017, “Tony Blair prosecution over Iraq war blocked by judges,” The Guardian, online: https://www.theguardian.com/politics/2017/jul/31/tony-blair-prosecution-over-iraq-war-blocked-by-judges.

[32] Wikipedia, Casualties of the Iraq War, online: https://en.wikipedia.org/wiki/Casualties_of_the_Iraq_War#PLOS_Medicine_(2013).

[33] Owiso, supra note 16.

[34] Kerr, supra note 14, p. 198.

[35] A modification to the Rome Statute has been suggested where the UNGA could refer cases directly, see Alexandra Zavis and Robyn Dixon, Q&A: Only Africans have been tried at the court for the worst crimes on Earth, LA Times, online:  https://www.latimes.com/world/africa/la-fg-icc-africa-snap-story.html.

water quality CWA law

1,4-Dioxane: Why Drinking Water Regulations Won’t Work to Mitigate This Carcinogenic “Forever Chemical”

JANUARY 4, 2023   /  SCOTT HUDSON

 

Introduction:

The water you are drinking and using to cook, bathe and clean is likely contaminated with carcinogens.  If you are like most Americans, you take clean, fresh drinking water for granted.  However, recent studies show that municipal drinking water and groundwater in the United States and other industrialized countries is increasingly contaminated with 1,4-dioxane, a known carcinogen.  1,4-Dioxane and other “forever chemicals” constitute an overlooked environmental health hazard that is not addressed by current drinking water regulations.  This blog will discuss the sources of 1,4-dioxane, how it is getting into our ground and drinking water and its adverse environmental and health effects.  The blog will also discuss the limitations of using drinking water statutes to mitigate these impacts and recommend a comprehensive regulatory approach as a solution.

Background:

1,4-Dioxane is a by-product of industrial processes found in many common goods including dyes, anti-freeze, deicers and paint stripper, and alarmingly, in much-used consumer products such as shampoos and deodorants.[1]  It is often referred to as a “forever chemical” meaning that it can last for thousands of years and is resistant to water, heat and normal biodegradation.[2]

Historically, 1,4-dioxane was primarily a stabilizer in chlorinated solvents, which were used in wafer fabrication and cleaning for components of the semiconductor and printed circuit board industry.[3] Regulatory agencies required these solvents and solvent wastes to be stored in underground storage tanks, which leaked or were the source of spills, contaminating nearby groundwater.[4]  Due to its stability and reluctance to react with other substances, 1,4-dioxane was later used in a wide range of processes, which created new sources of contamination, such as leachate from landfills, detergent manufacturing plants and metal manufacturing/chroming facilities.[5]  1,4-Dioxane is also a by-product of manufacturing polyethylene terephthalate (PET) plastic and is used as a purifying agent in manufacturing pharmaceuticals.[6]  Although it was widely used, disposal methods varied and in some cases the technical guidance for disposal involved nothing more than pouring 1,4-dioxane into open trenches so it could evaporate.[7]

These lax methods along with 1,4-dioxane’s unique chemical properties and broad use have resulted in widespread environmental contamination of ground and surface water.  1,4-Dioxane is highly soluble in water and is not easily absorbed by soils.[8]   It also does not react with oxygen nor do soil micro-organisms degrade it.[9]  Therefore, it remains ever present in the environment until removed.[10]  Studies have also shown that because of its properties, 1,4-dioxane easily migrates to other areas.[11]  1,4-Dioxane is also a major contaminate in drinking water derived from surface water.[12]  The source of these contaminates is likely industrial wastewater, either directly from industrial wastewater treatment plants or from sewer collection systems, released into municipal wastewater treatment facilities.[13]

Municipalities identified 1,4-dioxane in their drinking water as early as the 1970s.[14]  But, the chemical only received regulatory attention when the Environmental Protection Agency (EPA) included it on the Drinking Water Contaminant Candidate Lists in 2009 and the Third Unregulated Contaminant Monitoring Rule in 2016.[15]  This prompted additional research on human exposure and impacts on the environment.  The International Agency for Research on Cancer and EPA classified 1,4-dioxane as a probable human carcinogen.[16]  This classification was based primarily on animal studies which focus on individual, singular pathways of exposure.  However, humans are exposed to 1,4-dioxane through multiple pathways by ingestion, inhalation and contact with the skin.[17]  Therefore, it is unclear what level of exposure humans actually receive and what effects it may cause.[18]  Obviously, exposure from multiple pathways and from multiple chemicals could cause increased risk of cancer or other health issues, but there is limited research with this methodology.[19]  The Center for Disease Control said that more research is needed to determine the effect of 1,4-dioxane and “forever chemicals” on human health.[20]

Studies about how 1,4-dioxane impacts the environment primarily focus on aquatic animals.[21]  Some studies indicate that 1,4-dioxane does not bioaccumulate and has a low order of toxicity to aquatic animals.[22]  However, other studies have shown that there is bioaccumulation in polar bears, birds and dolphins.[23]

Despite the health risks from 1,4-dioxane, EPA has not set a federal maximum contamination level for drinking water.[24]  Nor has it delineated any guidelines for surface water/groundwater or soil contamination.  EPA has calculated a screening level of 0.46 μg/L for tap water, based on a 1 in 10-6 lifetime excess cancer risk.[25]  It also promulgated a risk assessment, stating a drinking water concentration representing a 1 x 10-6 cancer risk level is 0.35 μg/L.[26]  In the meantime, more municipalities are recognizing 1,4-dioxane contamination in their water treatment or drinking water systems.[27]  This has prompted several states to finally set drinking water and groundwater guidelines on their own.[28]

However, state guidelines and efforts may not be very impactful, since 1,4-dioxane is difficult to remove from water, especially drinking water.[29]  Studies show that 1,4-dioxane is not removed from drinking water through normal conventional surface water treatment plants.[30]  Other common water treatment processes, such as granular-activated carbon absorption or packed-tower aeration, have also proven to be ineffective.[31]  Wastewater treatment plants cannot effectively remove 1,4-dioxane either.[32]  Most municipal wastewater facilities and water treatment plants are unable to remove “forever chemicals” like 1,4-dioxane with their current technology, which makes drinking water regulation ineffective in controlling them.

All of this prompts the question of what should be done to control 1,4-dioxane.  I believe the current efforts to regulate solely through drinking water systems and regulations is misguided and that a more comprehensive effort would be more effective.

Legal Analysis and Argument:

States and municipalities currently focus on controlling 1,4-dioxane by attempting to remove it from drinking water.  This is primarily because that is where contamination was originally discovered, and because state and local officials answer directly to the public, so they are under pressure to take quick action to correct drinking water issues.  As discussed above, this approach is ineffective and will not be successful in controlling drinking water contamination from 1,4-dioxane and other “forever chemicals.”  Instead, a comprehensive regulatory approach is needed that tracks 1,4-dioxane from cradle to grave, controls disposal, monitors for unauthorized releases and remediates existing contamination.

Fortunately, federal environmental and pollution control statutes provide the necessary tools for this comprehensive approach.  The Toxic Substances Control Act (TSCA) and Resource Conservation and Recovery Act (RCRA) allow EPA and states to regulate chemicals when generated, sold, distributed or converted to waste products from manufacturing or industrial processes.  The Clean Water Act (CWA) provides regulatory authority when these chemicals are released into the waters of the United States.  The Comprehensive Environmental Response, Compensation and Recovery Act (CERCLA) allows EPA and the states to clean up current and past releases of the chemicals, thereby eliminating the source of contamination.  Together, these statutes provide the regulatory framework necessary to control 1,4-dioxane and “forever chemicals.”  However, not all of these statutes have been updated to adequately respond to the threat of these substances.

Safe Drinking Water Act

Drinking water is regulated under the Safe Drinking Water Act (SDWA), which is administered by EPA.[33]  The Act gives EPA authority to either set maximum contaminate levels (MCLs) based on national health standards for a number of substances or require methods to treat water to remove contaminates through the National Primary Drinking Water Regulations (NPDWRs).[34]  EPA can then either enforce these standards or delegate to the states.  Once EPA and states set the MCL or required treatment for a particular contaminate, public water systems and utilities are responsible for implementing the regulations and treating the water to meet required standards.[35]  Public water systems must also monitor contaminate levels and report these to the state or EPA.[36]  Although EPA has set national standards on 89 chemicals, it listed nearly all of them between 1986 and 1996, when Congress forced EPA to evaluate and regulate drinking water contaminants on a regular basis.[37]  During this period, Congress and EPA regularly added new contaminates that public systems had to monitor and remove, which caused utilities to constantly upgrade their systems.[38]  Congress significantly amended the Act in 1996 after municipalities and water utilities complained they could not keep up with the growing list of contaminants.[39]

The amendments created a number of hurdles for listing new chemicals, weakened EPA’s ability to set standards and eliminated key provisions that required EPA to set health-based standards in specific instances.[40]  Since the 1996 amendment, EPA has not regulated any new contaminants except those explicitly ordered by Congress.[41]

Despite this challenging track record, EPA has taken initial steps to regulate 1,4-dioxane under the SDWA by including it on the Drinking Water Contaminant Candidate List in 2009 and the Third Unregulated Contaminant Monitoring Rule in 2016.  However, because of the 1996 amendments, EPA has a number of steps it must take, each with significant review periods, before it can set a federal limit.  Therefore, EPA is not likely to set limits for 1,4-dioxane anytime soon, which keeps the SDWA from being a viable method of controlling 1,4-dioxane in the near term.  Even if EPA could set immediate limits, the SDWA is not designed to control 1,4-dioxane and other “forever chemicals.”

The SDWA was enacted in 1974 after the Clean Air Act and Clean Water Act as part of a larger regulatory framework.  It was not designed as a pollution control statute.  Instead, it was intended to work in conjunction with the pollution control statutes by regulating conditions within drinking water systems and controlling contamination from non-pollution sources such as alkaline water.[42]  This focus affects the technology used by municipal systems to remove contaminants.  It is not focused on industrial chemicals such as 1,4-dioxane that come from some distances away, but instead on those contaminants normally found in drinking water systems.  As discussed above, these conventional surface water treatment technologies are not successful in removing 1,4-dioxane or other “forever chemicals.”  If states and municipalities want to effectively remove 1,4-dioxane, they will need to invest in new and more expensive technology, but they are unlikely to do this in the absence of a regulatory requirement.

This doesn’t mean that the SDWA shouldn’t play a role in controlling 1,4-dioxane and other “forever chemicals.”  It should, but only as part of a comprehensive regulatory framework that includes pollution control statutes and only as a backstop or last barrier to protect the public.  To affect that, EPA should complete the SDWA process and add 1,4-dioxane to its list of regulated chemicals, or Congress should take action to require EPA to add it, bypassing the SDWA process.  Additionally, EPA should utilize the existing pollution control statutes discussed below to control the introduction of 1,4-dioxane and remove as many of the sources of contamination as possible.

Toxic Substances Control Act

The TSCA gives EPA comprehensive authority to regulate the manufacture, use, distribution and disposal of chemicals.[43]  Once EPA identifies chemicals that pose a risk, it can require record-keeping requirements and impose regulations on storage and disposal.[44]

This includes not only chemicals manufactured in the United States but also those imported.[45]  This authority is an important step in controlling 1,4-dioxane and the first piece of a comprehensive regulatory framework.  EPA did take measures under the TSCA to evaluate 1,4-dioxane’s risk to humans and the environment, initiating a risk evaluation review in 2015.

Unfortunately, EPA determined in December 2020 that there was no unreasonable risk to the environment or general population.[46]  This seems unusual considering the independent 1,4-dioxane evaluations listed above.  However, on June 30, 2021, EPA announced it was reviewing its risk evaluation based on policy changes and stated that the previous administration had not taken into account the multiple pathways a person can be exposed when it made the “no unreasonable risk” assessment.[47]  This is certainly a step in the right direction and in line with scientific and medical information, but it also signifies delay in regulating this “forever chemical.”  EPA must finalize this process to allow it and the states to manage and monitor 1,4-dioxane prior to use and disposal.

Resource Conservation and Recovery Act

Congress enacted the RCRA to properly manage hazardous waste, thereby reducing the need for corrective action due to improper practices or disposal.[48]  RCRA establishes a rigorous regulatory program which manages hazardous waste from generation until disposal.[49]  The program imposes management controls on owners and operators of hazardous waste treatment, storage and disposal facilities and those that generate and transport the material.[50]  EPA promulgates regulations defining which chemicals are waste and hazardous, which then obligates industry to manage them.[51]  States can also regulate hazardous waste in lieu of the federal program if their regulatory regime is approved by EPA.[52]

RCRA is the second piece of a comprehensive regulatory framework for 1,4-dioxane, allowing EPA and the states to control disposal and storage of “forever chemicals.”  EPA listed 1,4-dioxane in 1980 as a hazardous waste under RCRA[53]  Therefore, EPA and the states can use RCRA to control improper disposal of 1,4-dioxane and prevent it from getting into ground and surface waters.  However, it appears the Act has been ineffectively implemented, since much of 1,4-dioxane contamination is the result of improper storage of chlorinated solvents in leaking underground storage tanks.  This could mean that EPA and the states are not adequately inspecting facilities or that spills and leakage are not being reported.  It is also challenging since 1,4-dioxane is often only a component of a compound or by-product of an industrial process.  However, EPA and the states will need to begin vigorously enforcing RCRA and its associated regulations in order to reduce 1,4-dioxane releases into the environment.

Clean Water Act

The Clean Water Act serves as the primary federal statute for addressing water pollution.[54]  The Act makes it unlawful to discharge any pollutant into the navigable waters of the United States without a permit.[55]  EPA identifies pollutants and must set the appropriate levels and surface water quality criteria in order to regulate industry discharges.[56]

The CWA is the third piece of a comprehensive regulatory framework for controlling 1,4-dioxane, allowing EPA and the states to prevent releases of 1,4-dioxane and other “forever chemicals” from wastewater treatment facilities and industrial sources into waters that provide the source of drinking water.  However, EPA has failed to develop recommended surface water quality criteria under Section 304(a) of the Clean Water Act for 1,4-dioxane to protect aquatic life or human health.[57]  Interestingly, it has required monitoring for the chemical in some National Pollutant Discharge Elimination System (NPDES) permits, and some permits containing effluent limits.[58]  Not regulating 1,4-dioxane under the CWA is a significant gap in the regulatory framework, since contamination in drinking water comes from surface and groundwater sources.  EPA must develop and promulgate water-quality criteria to control release of 1,4-dioxane to close this gap.

Comprehensive Environmental Response, Compensation and Recovery Act

CERCLA is a remediation statute designed to provide a unified federal response to past and ongoing releases of hazardous substances.[59]  It allows EPA to clean-up or force those responsible to clean-up releases of hazardous substances.  This is the final piece of a comprehensive regulatory framework for 1,4-dioxane.  EPA can use CERCLA to address the large number of spills, leaks and industrial sites that are the ultimate sources of 1,4-dioxane and forever chemicals in drinking water.

EPA does list 1,4-dioxane as a hazardous substance under CERCLA, subjecting it to regulation and clean-up.  EPA promulgated a memorandum in 2019, providing procedures and guidance for addressing it at Superfund sites.[60]  The memo notes that it is now possible to reliably analyze 1,4-dioxane at Superfund sites and provides guidance on characterization and remediation.[61]  This is recent guidance and has not been applied extensively to other sites.  However, this is the best method for addressing contaminated sites that are the source of 1,4-dioxane contamination.  Tracing drinking water contamination to its source and then using CERCLA to remediate these areas is key to reducing 1,4-dioxane in the environment and eventually in drinking water.

Conclusion:

EPA and the states are currently focusing on the SDWA to address 1,4-dioxane contamination of drinking water systems.  However, a better approach would utilize multiple federal pollution control statutes in conjunction with the SDWA to provide a comprehensive regulatory framework.  This would result in cradle-to-grave management and monitoring of the chemical, address spills and leakage and provide authority for remediation of contaminated sites, greatly reducing the amount of 1,4-dioxane in surface and groundwater.  Only a comprehensive approach will successfully combat challenging “forever chemicals” such as 1,4-dioxane.

 

[1] EPA Technical Fact Sheet – 1,4-Dioxane 2 (November 2017).

[2] The term “forever chemicals” refers to a family of chemicals of nonpolymer per-and polyfluoroalkyl substances that have a structure with a hydrophilic head and hydrophobic tail forming a carbon-fluorine bond that is one of the strongest in nature.  The strong bond makes them highly persistent in nature and in the human body thus earning the nickname “forever chemicals.”  For a description about the unique chemical properties of this class of substances see Philippe Grandjean and Richard Clapp, Perfluorinated Alkyl Substances: Emerging Insights into Health Risks, 25 NEW SOLUTIONS 147, 147-63 (2015); See also Kerri Jansen, “Forever chemicals no more? These technologies aim to destroy PFAS in water,” Chemical and Engineering News, (March 25, 2019), available at https://cen.acs.org/environment/persistent-pollutants/Forever-chemicals-technologies-aim-destroy/97/i12 (last visited October 7, 2022).

[3] See T.K.G. Mohr, 1,4-Dioxane and Other Solvent Stabilizers White Paper 10 Santa Clara Valley Water District of California. San Jose, California (2001).

[4] Amie C. McElroy, Michael R. Hyman and Detlef R.U. Knappe, 1,4-Dioxane In Drinking Water: Emerging For 40 Years And Still Unregulated, 7 Current Opinion in Environmental Science & Health, 117, 118 (2019).

[5] Id.

[6] EPA Technical Sheet, supra note 1, at 2.

[7] Mohr, supra note 2, at 10.

[8] Id at 12.

[9] Id at 13.

[10] Id.

[11] Id at 13-16.

[12] McElroy, supra note 5, at 119.

[13] Id.

[14] Toxicological Profile for 1,4-Dioxane, 9 Agency for Toxic Substances and Disease Registry (2012).

[15] McElroy, supra note 5, at 117 and EPA Technical Sheet, supra note 1, at 3; The Drinking Water Candidate Contaminant List (CCL) is an EPA list of drinking water contaminates that are known or anticipated to occur in public drinking water systems and are not currently subjected to EPA drinking water regulations.  The SDWA requires the EPA to update and publish the list every 5 years and to place those contaminants on the list that present the greatest public health concern related to exposure from drinking water.  The EPA will then determine whether to regulate these contaminates in a separate process known as Regulation Determination.  See Drinking Water Contaminant Candidate List and Regulatory Determination, EPA website at: https://www.epa.gov/ccl.  The Unregulated Contaminate Monitoring Rule is also a product of the SDWA and requires EPA to issue a list of unregulated contaminates every 5 years that must be monitored by public water systems.  This provides EPA with scientific data on the occurrence of contaminates.  Both the CCL and Unregulated Contaminate Monitoring Rule are seen as precursors to full regulation of a substance under the SDWA.  See Fifth Unregulated Contaminate Monitoring Rule, EPA website at https://www.epa.gov/dwucmr/fifth-unregulated-contaminant-monitoring-rule.

[16] Mohr, supra note 2, at 31 and EPA Integrated Risk Information System (IRIS) (2013); The International Agency for Research on Cancer determined 1,4-dioxane was a probable carcinogen in 2011 and EPA made their determination in 2013.

[17] Id.

[18] See Annie Snead, Forever Chemicals are Widespread in U.S. Drinking Water, Scientific American (January, 22, 2021).

[19] See id.

[20] Center for Disease Control and Prevention Website, National Biomonitoring Program, Per- and Polyfluorinated Substances (PFAS) Factsheet, online https://www.cdc.gov/biomonitoring/PFAS_FactSheet.html (last accessed October 7, 2022)

[21] Mohr, supra note 3, at 33-34.

[22] Id at 34.

[23] Regarding forever chemical’s effect on birds see L.A. Walker, et al. Perfluorinated Compound (PFC) Concentrations in Northern Gannet Eggs 1977-2014: a Predatory Bird Monitoring Scheme (PBMS) report Centre for Ecology & Hydrology, Lancaster, UK. (2015) available online at https://pbms.ceh.ac.uk; Regarding their effect on mammals see Julie Schneider, PFAS The Forever Chemicals, ChemTrust Report (July 2019) citing P.A. Fair and M. Houde, Chapter 5 – Poly- and Perfluoroalkyl Substances in Marine Mammals. Marine Mammals Ecotoxicology. Impacts of Multiple Stressors on Population Health. pp. 117-145.

[24] EPA Technical Fact Sheet, supra note 1, at 3.

[25] Id.

[26] Id; see also 1,4-Dioxane, EPA Integrated Risk Information System (IRIS) online at https://cfpub.epa.gov/ncea/iris2/chemicallanding.cfm?substance_nmbr=326 (last accessed October 7, 2022).

[27] Xindi C. Hu, et al, Detection of Poly- and Perfluoroalkyl Substances (PFASs) in U.S. Drinking Water Linked to Industrial Sites, Military Fire Training Areas, and Wastewater Treatment Plants, Environ. Sci. Technol. Lett. 2016, 3, 344−350

[28] EPA Technical Fact Sheet, supra note 1, at 4.

[29] McElroy, supra note 4, at 117.

[30]  Detlef R. U. Knapp ET Al., Occurrence Of 1,4-Dioxane In The Cape Fear River Watershed And Effectiveness Of Water Treatment Options For 1,4-Dioxane Control 51 Water Resources Research Institute of The University fo North Carolina, Report No. 478 (September 2016).

[31] McElroy, supra note 4, at 119 and Mohr, supra note 2, at 35.

[32] Id.

[33] 42 U.S.C. § 300f et seq.

[34] 41 U.S.C. § 300g-1 contain national drinking water regulations.  EPA SDWA regulations are found at 40 C.F.R. Parts 141-143.  See also Christopher L. Bell et al., ENVIRONMENTAL LAW HANDBOOK, 463-470, 20th Ed. (2009) for an overview of the Act and a description of regulatory issues.

[35] Id; See also Understanding the Safe Drinking Water Act, EPA publication EPA 816-F-04-030 (June 2004).

[36] Id.

[37] Annie Snyder, What Broke the Safe Drinking Water Act, Politico (05/10/2017 04:49 AM EDT Updated 05/11/2017 05:02 PM EDT) online at https://www.politico.com/agenda/story/2017/05/10/safe-drinking-water-perchlorate-000434 (last accessed October 7, 2022).

[38] Id.

[39] Id.

[40] Erik D. Olson, The Broken Safe Drinking Water Act Won’t Fix The PFAS Crisis, National Resource Defense Council (September 12, 2019) https://www.nrdc.org/experts/erik-d-olson/broken-safe-drinking-water-act-wont-fix-pfas-crisis (last accessed October 7, 2022).

[41] Id.

[42] See S. Rep. No. 93-231, at 3-4 (1973).

[43] 15 U.S.C. § 2641-2644; See also Bell, supra note 31, at 633.

[44] 15 U.S.C. § 2605-2607.

[45] Id.

[46] EPA Final Risk Evaluation for 1,4-Dioxane, EPA Doc# EPA-740-R1-8007 (December 2020).

[47] EPA News Release, EPA Announces Path Forward for TSCA Chemical Risk Evaluations (June 30, 2021), EPA website https://www.epa.gov/newsreleases/epa-announces-path-forward-tsca-chemical-risk-evaluations. (Last accessed October 7, 2022)

[48] 42 U.S.C.A. §6902.

[49] Jeffrey G. Miller and Craig N. Johnston, THE LAW OF HAZARDOUS WASTE DISPOSAL AND REMEDIATION, 46 (Thomson West 2nd ed. 2005).

[50] Id; See also Bell, supra note 31, at 142.

[51] Id.

[52] Id at 47.

[53] 40 CFR 261.33.

[54] 33 U.S.C. § 1251 et seq.

[55] 33 U.S.C.  § 1311.

[56] Id.

[57] Regulatory Framework 1,4-Dioxane, Interstate Technology Regulatory Council (February 2021).

[58] Id.

[59] 42 U.S.C. § 9601.

[60] Memorandum from Douglas Balotti, Director of EPA Superfund and Emergency Management Division on Procedures for Addressing Potential 1,4-Dioxane Contamination at Region 5 Superfund Remedial Sites (December 12, 2019).

[61] Id.

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.

 

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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.