In This Issue
How To Protect the Future
As more and more people recognize that humans are ruining the
planet as a place suitable for human habitation, a central question
comes into focus: how can we protect the future, to assure that our
children will have a hospitable planet to live on? What habits of
thought, rules for behavior (laws), and institutions can we create to
make sure the Earth continues to support our species?
The Case for a Coal Conservancy
For all its success, the Nature Conservancy is sitting on the
sidelines as the biggest ecological catastrophe in human history —
runaway global warming — threatens to undo all the progress that the
organization has made in its history. That’s tragic, because the
Nature Conservancy has both the resources and the expertise to make a
difference.
Happy Birthday, Love Canal
The disaster at Love Canal in 1978, discovered by affected
community residents (not by government authorities), gave rise to a
social movement aimed at curbing exposures to toxic chemicals. That
social movement is still motivating the essential scientific research
that is continuing to discover new kinds of harm from toxic chemicals,
and government agencies are still playing catch-up.
Female Fetuses Are Sensitive To Hormone Disrupters
Exposure of females to hormone-disrupting compounds early in life
can lead to many reproductive disorders in adulthood, including early
puberty, impaired fertility, and uterine fibroids.
An Executive Order for Environmental Justice: Keeping the Promise
Here is a detailed proposal, submitted to President-elect Barack
Obama, for an “Environmental Justice” (EJ) executive order fixing the
broken EJ executive order, #12898, issued by President William J.
Clinton.
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From: Rachel’s Democracy & Health News, Nov. 19, 2008
HOW TO PROTECT THE FUTURE
By Tim Montague
The earth is our home — our only home. So far as anyone knows, there
is no other place in the universe hospitable to human life. If we ruin
the earth as a place suitable for humans, we are lost.
In 2000 the United Nations organized a massive study to assess the
condition of planet earth. Called the Millennium Ecosystem
Assessment, the study involved 1300 researchers from 95 countries,
who spent four years examining 24 ecosystems worldwide. The main
conclusion: of 24 ecosystems studied, 15 (about 2/3rds) are in serious
decline as a result of human activities.
When the Millennium Assessment was released, the scientific director
of
the project, Dr. Walter Reid, said, “At the heart of this assessment
is a stark warning. Human activity is putting so much strain on the
natural functions of Earth that the ability of the planet’s ecosystem
to support future generations can no longer be taken for granted.”
As more and more people recognize that humans are ruining the planet as a place suitable for human habitation, a central question comes into focus: how can we protect the future, to assure that our children will have a hospitable planet to live on? What habits of thought, rules for behavior (laws), and institutions can we create to make sure the Earth continues to support our species?]
by Tim Montague
The earth is our home — our only home. So far as anyone knows, there is no other place in the universe hospitable to human life. If we ruin the earth as a place suitable for humans, we are lost.
In 2000 the United Nations organized a massive study to assess the condition of planet earth. Called the Millennium Ecosystem Assessment, the study involved 1300 researchers from 95 countries, who spent four years examining 24 ecosystems worldwide. The main conclusion: of 24 ecosystems studied, 15 (about 2/3rds) are in serious decline as a result of human activities.
When the Millennium Assessment was released, the scientific director of the project, Dr. Walter Reid, said, “At the heart of this assessment is a stark warning. Human activity is putting so much strain on the natural functions of Earth that the ability of the planet’s ecosystem to support future generations can no longer be taken for granted.”
As more and more people recognize that humans are ruining the planet as a suitable home for humans, a central question comes into focus: how can we protect the future, so that our children can be assured of having a suitable home? What habits of thought, rules for behavior (laws), and institutions can we put in place to make sure the earth continues to support our species?
Now a new report from the Science and Environmental Health Network (SEHN), the International Human Rights Clinic at Harvard Law School, and the Indigenous Environmental Network (IEN) offers an overview of legal and social mechanisms that human societies, ancient and modern, have created to protect the future.
This short report — just 24 pages, plus appendices — examines three crucial aspects of protecting the future:
1. How do we formally acknowledge and assert that the present generation has an obligation to future generations, and that future generations have a parallel right to a habitable planet?
2. What legal and social relationships can embody our recognition that we have a duty to preserve our children’s only home, the Earth?
3. What institutions can we create to make those relationships real and effective?
Luckily we don’t have to start from scratch. Ancient human societies have passed down to us some of their own wisdom about these questions. For example, the Gayanshagowa, or “Great Binding Law,” of the Iroquois Confederacy, defines the duties, rights, and qualifications of leaders to take future generations’ interests into account in their decision- making: to “[l]ook and listen for the welfare of the whole people and have always in view not only the present but also the coming generations.” (p. 7) This ancient law finds modern expression in the Bemidji Statement developed by the Indigenous Environmental Network.
In modern times, humans have formally acknowledged the interests of future generations in various legal frameworks. These include declarations (like the Rio Declaration on Environment and Development), conventions (the Stockholm Convention on Persistent Organic Pollutants, for example), constitutions (notably, those of Bolivia, Japan, Norway and the U.S. states of Alabama, Colorado, Hawaii, Illinois, and Montana; see the appendix C of the report pp. 34-46 for details), as well as certain U.S. federal and state laws (like the California Environmental Quality Act).
For example, the Norwegian Constitution says, “Every person has a right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained. Natural resources should be managed on the basis of comprehensive long-term considerations whereby this right will be safeguarded for future generations as well.” (p. 39)
Another example is the 1987 report, Our Common Future: Report of the World Commission on Environment and Development (known as the Brundtland Report), and the 1992 UN Framework Convention on Climate Change, both of which connect actions by the current generation to the well-being of future generations. The Brundtland Report gave us what is still the most popular definition of sustainability: “Development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” (p. 4)
So we have examples, ancient and modern, of many ways that present-day humans have acknowledged their obligation to future generations. Arguably, this obligation, once acknowledged, creates a parallel right of future generations to inherit a habitable world. Rights are a particularly powerful concept in the law, often trumping other interests.
But how can a right to a habitable planet be safeguarded? We can have the best intentions, but if we don’t have a mechanism for representing the interests of future generations in decision-making, then those interests are likely to be ignored.
Courts, Ombudsmen, Guardians
The report describes three main ways that we can (and sometimes do) protect the environment for future generations: the courts, ombudsmen (or commissioners), and guardians (or trustees).
A functioning court system is essential. The courts interpret (and hopefully uphold) the law. Of course there have to be meaningful laws to uphold and the courts have to be independent from the influence of money or other sources of corruption. The report offers a few examples like the Philippines, which gave 44 minors the right to “sue on behalf of themselves and future generations because of concerns about unsustainable logging in the country.” (p. 13) And the Montana Supreme Court “found its state constitutional environmental provisions give private citizens and environmental groups the right to sue for environmental harms to public resources.” which theoretically protects the health and environment of future generations.
Assuming that the courts serve their basic function, then the appointment (or election) of ombudsmen and guardians for future generations are logical next steps. An ombudsman is an advisor who engages in a decision-making process on behalf of future generations. A guardian is a legal representative for future generations. The distinction between the two is subtle but important.
Ombudsmen and Guardians for Future Generations
Ombudsmen are independent advisors who review proposed laws or actions. They can serve as liaisons, mediators or investigators. Sometimes they have the right to sue. According to the report, “Many countries have established human rights ombudsmen. These authorities usually serve quasi-judicial roles, either as investigators or mediators.” And two countries, Canada and the United Kingdom, have established Ombudsmen for environmental issues. The U.K. Sustainable Development Commission uses “advocacy, advice and appraisal… [to] put sustainable development at the heart of Government Policy.” It reports to the prime minister and other ministers and describes itself as “the Government’s independent watchdog.” (p. 16)
Guardians give future generations a direct voice and a real presence in the decision-making process. According to the report, “Guardians are advocates rather than advisors and seek, in specific situations such as litigation and negotiations, to maximize the best interests of those who cannot speak for themselves.” (p. 19) The natural resource trustees authorized by the U.S. Superfund Amendments and Re- authorization Act of 1986 is a model for how guardians for future generations could work to protect the environment and health of future generations.
A precautionary approach is essential
Because there is inherent uncertainty when considering the impacts of present-day actions on future generations, courts, guardians and ombudsmen for future generations would rely on the precautionary principle to guide their work, the report says. The report uses the definition of precaution embodied in the 1998 Wingspread Statement: “When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically.” (p. 22)
The Wingspread Statement also specifies that “precautionary action” involves a systematic search for the least-harmful alternative to any intended action, as is spelled out in the U.S. National Environmental Policy Act. The key, according to the report, is that “The precautionary principle and alternatives approach acknowledge the needs and rights of present generations, they also support the protection of an ecologically healthy environment for future generations. Both support the proposition that each generation depends on its predecessors to bequeath it an inhabitable environment.” (p. 23)
Models for Protecting the Environment for Future Generations is a unique resource for anyone interested in really protecting the rights of future generations. It spells out in considerable detail how courts, ombudsmen and guardians can protect the future. It also reminds us that our right to a clean and healthy environment is still not recognized as a basic human right. According to Carolyn Raffensperger, one of the authors of the new report, this right, and extending it to future generations, are essential additions to the Universal Declaration of Human Rights of 1948.
In this report, you will find practical ideas and suggestions that you could put into practice in your town or city, your county council, your state, or your national government. In sum, here is an essential set of tools for protecting the future, some new, some ancient, but all explained clearly, concisely, and (so far as we know) collected together for the first time ever. Get yourself a copy of the new report here.
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From: Gristmill …………………………………….[This story printer-friendly]
November 19, 2008
THE CASE FOR A COAL CONSERVANCY
[Rachel’s introduction: For all its success, the Nature Conservancy is sitting on the sidelines as the biggest ecological catastrophe in human history — runaway global warming — threatens to undo all the progress that the organization has made in its history. That’s tragic, because the Nature Conservancy has both the resources and the expertise to make a difference.]
By Ted Nace
A generation before David Brower started raising hell at the Sierra Club, a similarly militant scientist named Victor Ernest Shelford organized the Ecological Society of America, becoming its first president in 1916. Shelford stepped down from that position when the Ecological Society of America shied away from taking controversial stands. With a small group of other activist scientists, he formed the Committee for the Preservation of Natural Conditions (1917) and later the Ecologists Union (1946) with the objective of taking “direct action” to protect threatened areas.
For Shelford’s Ecologists Union, “direct action” meant buying threatened areas. The approach proved wildly popular. Today, the Ecologists Union, renamed the Nature Conservancy, spends hundreds of millions of dollars every year putting land under protected status.
But for all its success, the Nature Conservancy is sitting on the sidelines as the biggest ecological catastrophe in human history — runaway global warming — threatens to undo all the progress that the organization has made in its history. That’s tragic, because the Nature Conservancy has both the resources and the expertise to make a difference.
Until now, most efforts to stop global warming have targeted greenhouse gas emissions, in particular emissions from coal, the most carbon-intense and abundant fossil fuel. Some groups have stressed the need for carbon capture and storage technology; others have advocated phasing out coal plants. But another approach that deserves attention is to limit coal at the supply end by placing reserves into some kind of trust.
Logically, limiting coal at the source has one big advantage over controlling emissions. In terms of climate change, it’s not the yearly releases of carbon dioxide that matter but rather the ultimate amount of carbon dioxide to accumulate in the atmosphere. Merely slowing down emissions is irrelevant if those emissions end up being released over a longer period.
So why hasn’t a “coal conservancy” strategy been developed? One possible reason is that the world’s coal reserves may seem too massive for such an approach to make any difference. After all, conventional wisdom holds that the U.S. alone has a “250-year supply of coal.” If that’s true, then moving some coal reserves into trust status would be a fruitless game of Whack-a-Mole in which industry simply shifted to other locations.
At first glance, official reserve figures confirm the conventional wisdom. Such numbers largely originate from the World Energy Council (WEC), which provides the data used by other authorities including the International Energy Agency, the US Energy Information Administration, and British Petroleum’s “Statistical Review of World Energy.” According to the WEC, the US and Canada indeed have 249.3 billion metric tons of recoverable coal — approximately a 250-year supply at the U.S.’s current rate of consumption of roughly a billion metric tons per year. The rest of the world consumes an additional four billion tons per year (China accounts for over half of that) and has another 600 billion metric tons of reserves.
A growing body of evidence, however, suggests that the WEC’s estimates of worldwide coal reserves are too high. In 2004, after Germany undertook a close review of its hard coal reserves, official estimates showed an astonishing drop from 23 billion tons to 183 million tons, a 99 percent reduction. Similarly, between 1980 and 2004 the United Kingdom reduced its “proved recoverable coal reserves” from 45 billion tons to 220 million tons, another 99 percent downgrade.
In 2007, Energy Watch Group, a private research effort initiated by German member of parliament Hans-Josef Fell, completed an analysis of worldwide reserve figures. The study concluded that “data quality of coal reserves and resources is poor, both on global and national levels.”
A similar conclusion was reported by a blue ribbon panel organized under the auspices of the National Research Council and funded by the Office of Surface Mining. The panel concluded that “it is not possible to confirm the often-quoted assertion that there is a sufficient supply of coal for the next 250 years,” noting that “the data that are publicly available for such projections are outdated, fragmentary, or inaccurate.”
A separate analysis by Cal Tech professor Dave Rutledge, borrowing techniques from peak oil analysis, also concluded that official reserve figures are overstated. Rutledge estimated that actual worldwide reserves are 382 billion metric tons, less than half the 847 billion metric tons figure reported by the World Energy Council.
Some climate activists have worried that reports of lowered reserves could encourage complacency on climate. But the implication of this new analysis is really the opposite. Despite the downward revisions, coal reserves are still large enough to push carbon dioxide levels into the danger zone. What changes with the new analysis is the possibility that taking some portion of reserves off the table could actually make a difference on climate change. In other words, the lower the reserves, the more a Coal Conservancy starts to make sense.
Currently, scores of coal projects in the United States are stymied due to financing problems, lawsuits, and other hangups. For developers who have assembled a package of coal rights only to be thwarted in developing those rights, a fall-back of “donate the coal, take the tax break, and run” might in some cases be a sensible financial strategy.
Private initiatives to place coal in trust status could also help spur a debate over the appropriate disposition of Federal coal, which dominates much of coal production in the West, including the massive Powder River Basin mines that produce 37 percent of the nation’s coal. Currently, Federal policy encourages coal use by pricing leases very cheaply. From a climate perspective that encouragement is entirely counterproductive, but with the details hidden behind arcane and complex leasing arrangements, the entire issue has remained hidden from view. The attention to reserves that a Coal Conservancy might generate could lead to a fresh look at Federal leasing policy.
A hint at what the Federal government could do to protect the climate is shown in Bill Clinton’s executive order creating the Grand Staircase-Escalante National Monument in 1996. At the time, few people realized that the area contained 11 billion tons of economically mineable coal, enough to provide a lifetime fuel supply for 165 coal plants of 500 megawatts each. Now this particular deposit of coal can never threaten to tip the planet into runaway warming.
As the recent “drill, baby, drill” hysteria shows, energy price spikes can lead to rapid loosening of environmental standards. One can imagine a time in the coming decades when regions of coal not currently being mined suddenly become the focus of intense development. For that reason, a smart climate protection strategy would involve placing those areas in trust before the pressure to develop them becomes intense.
Is it certain that a Coal Conservancy would make a difference? Of course not. But trying it would be vastly safer and cheaper insurance policy than any of the Buck Rogers geoengineering schemes being floated. Strangely, there’s no evidence that the approach has been even casually studied by those with the capability to make it happen.
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From: Chemical and Engineering News …………………..[This story printer-friendly]
November 17, 2008
HAPPY BIRTHDAY, LOVE CANAL
[Rachel’s introduction: The disaster at Love Canal in 1978, discovered by affected community residents (not by government authorities), gave rise to a social movement aimed at curbing exposures to toxic chemicals. That social movement is still motivating the essential scientific research that is continuing to discover new kinds of harm from toxic chemicals, and government agencies are still playing catch-up.]
By Erika Engelhaupt, Environmental Science & Technology
Niagara Falls, N.Y. — In the middle of an abandoned suburban neighborhood, a long grassy mound pokes up a few feet higher than the cracked streets surrounding it. A green chain-link fence surrounds the small hill, which is covered with wildflowers in summer — lavender chicory and small yellow daisies. The fence has no warning sign — not anymore — but this is Love Canal, the toxic waste dump that became synonymous with environmental disaster 30 years ago.
Adeline Levine, a sociologist who wrote a book about Love Canal, described to me the scene she had witnessed exactly 30 years earlier, on Aug. 11, 1978. “It was like a Hitchcock movie,” she said, “where everything looks peaceful and pleasant, but something is slumbering under the ground.”
That “something” was more than 21,000 tons of chemical waste. The mixed brew contained more than 200 different chemicals, many of them toxic. They were dumped into the canal — which was really more of a half-mile-long pond — in the 1940s and 1950s by the Hooker Electrochemical Co. In 1953, the canal was covered with soil and sold to the local school board, and an elementary school and playground were built on the site. A working-class neighborhood sprang up around them.
“The neighborhood looked very pleasant,” says Levine, who was a sociology professor at the State University of New York, Buffalo, in 1978. “There were very nice little homes, nicely kept, with gardens and flowers and fences and kids’ toys, and then there were young people who were rushing out of their homes with bundles and packing up their cars and moving vans.”
Love Canal was in the midst of an all-out panic when Levine arrived; just nine days earlier, the state health commissioner had declared an emergency and recommended that pregnant women and children under the age of two evacuate the neighborhood. A week after that, the state and federal governments agreed to buy out homes next to the canal.
Levine spent all day interviewing people and was soon obsessed with their plight. Residents spoke of miscarriages, cancers, and children born with birth defects. She spent her vacation in New York City the next month knocking on doors and getting turned down for grants by foundations that couldn’t imagine why a sociologist would want to study an environmental problem. By that time, the entire country was watching the drama of the Love Canal neighborhood play out on their TV screens.
I was four years old at the time, and I don’t remember a thing. But later, as a teenager in the late 1980s, I lived about 2 miles from Love Canal as the crow flies, on Grand Island, a literal suburban island in the Niagara River. My father remembered Love Canal, and before he took an engineering job in the area, he asked how far away it was. He wasn’t too happy to learn that he would be living nearly within sight of it across the river. Even a decade after the neighborhood’s plight hit the news, the words “Love Canal” seemed to be stamped on our brains in shrieking orange capital letters — just as Bhopal, Chernobyl, and Three Mile Island would later be.
After the summer of 1978 came the buyout of some 900 homes; years of legal battles and disputed health studies; the formation of the Superfund cleanup program, which for the first time called on businesses to pay for pollution cleanups; and a new awareness of the dangers of living with chemical waste. Levine’s book about Love Canal became a seminal work in a new field, environmental sociology.
But in the beginning there was just a neighborhood that didn’t even think of itself as Love Canal. The dump only came to define the LaSalle neighborhood after 1978, when the world learned about the toxic waste buried there.
A CANAL CALLED LOVE. Love Canal got its name from William T. Love, an entrepreneur and developer in Niagara Falls in the late 1800s. The electrochemical industry was drawn to the waterfall because it generated cheap hydroelectric power to feed its electricity-hungry manufacturing processes. And Love had a deal for them. He would build an industrial city, called “Model City” in the optimism of the day, centered on a canal connected to the Niagara River. He started digging in the 1890s.
Love’s dream collapsed after the inventor Nikola Tesla came up with alternating-current electricity, which could travel farther by wire than direct current and obviated the need for factories to locate near the falls. The canal Love left behind became a half-mile-long swimming hole. But later, Elon Hooker decided to locate his electrochemical company near the canal, and the business eventually became the largest industrial enterprise in town, making chemicals and plastics.
In 1941, Hooker Chemical (which underwent various name changes and was later bought by Occidental Chemical Corp.) decided to use Love’s canal for waste disposal. The canal was nearby in what was then a sparsely populated area, and the soil was largely composed of impermeable clay that Hooker’s engineers thought would contain the chemicals well. From about 1942 to 1953, Hooker disposed of thousands of tons of chemical waste there, some of it loose and some in metal drums.
No one knows exactly what Hooker dumped, but perhaps one-quarter of the waste was benzene hexachloride, the main component of the pesticide lindane, a neurotoxin. There were chlorobenzenes (used in the synthesis of DDT) and dozens of other organic chemicals, many of which were known to be toxic. The waste also contained an estimated 120 lb of 2,3,7,8-tetrachlorodibenzo-p-dioxin, commonly called dioxin, which is a by-product of trichlorophenol manufacture. At the time dioxin was buried at Love Canal, it was not thought to cause disease, but it is now known as one of the most carcinogenic chemicals in the world. In those days, Hooker’s landfill methods were legal and quite common; companies were allowed to dump waste in almost any manner, as long as they owned the land on which they dumped.
TOXIC BUBBLES. Sylvia Jean Gondek grew up next to the canal while Hooker was dumping. Her family moved into the Griffon Manor housing project around the beginning of 1946, joining the flood of returning GIs and their families after World War II. Their neat white row house was located at 2604 Frontier Ave., adjacent to the southern end of the canal, where Hooker had concentrated its dumping.
She remembers Love Canal as basically a playground for the neighborhood kids. “What you saw from the projects was a big mound of dirt,” Gondek says. “We would play cowboys and Indians there, and in the winter we would slide down the sides in our sleds. The back side [of the mound] was an open water area, which was supposed to be taboo, but the older boys would swim in the canal and play on the drums, which my sister and I never did do.”
In 1953, Hooker sold the canal to the Niagara Falls school board for a token dollar, with a warning that the site contained chemicals that should not be disturbed by digging. However, it was agreed that a school (with no basement) and a playground would be acceptable. The site was supposed to be covered with several feet of clay to contain the chemicals, but later testing found only a few inches of soil covering metal drums in some areas.
Chemicals soon started rising to the soil’s surface, Gondek recalls. “We kids would go over [by the canal], and you would see a bubble form — oh, I would say about 9 to 12 inches in diameter,” she says. Kids would quickly gather up stones to throw into the chemical-filled hole. They didn’t know it, but the bubbles formed when a metal drum of chemicals rusted through and broke underground. The soil above it would collapse into the drum and force chemicals to the surface; then the sides of the hole would close back up after a minute or two. “It would open up sort of in slow motion, and then it would break, like a bubble would, and then you would throw the stones in. It was a game we played.” The kids didn’t think about whether it was dangerous. “As a child, you shouldn’t have to.”
Gondek moved away from Love Canal at age 12 in 1955. Years later, her third son was born with what her doctor described as a birth defect in both eyes; his vision cannot be fully corrected with glasses, which kept him out of military service. She wonders whether her chemical exposure could have caused it. “I’ll never know,” she says.
A lot of people who moved away from Love Canal in the ’50s and ’60s felt guilty about the possibility that they might have harmed their children inadvertently, says Levine, the sociologist. “When I interviewed them, they would say, ‘I know it doesn’t make sense because I didn’t know about the chemicals, but I feel like it was my fault somehow,’ ” she tells me.
A number of studies, including both peer-reviewed research and informal surveys, have found unusually high rates of congenital malformations, or birth defects, in children born to mothers who lived at Love Canal. However, it’s impossible to say whether any one instance was tied to chemicals. And Gondek never had any medical tests for chemical exposure until 1978, when the situation in Love Canal gained national attention. At that time, tests could not detect very low levels of chemicals remaining in blood so long after exposure, so Gondek’s blood was tested in the same way as that of many other Love Canal residents: for liver enzymes that would indicate possible damage by chemicals to the liver. Her doctor told her she was fine.
THE SUMMER OF 1978. Michael Brown, a reporter at the Niagara Falls Gazette, wrote a couple of stories in May of 1978 about the wastes buried at Love Canal. A young housewife named Lois Gibbs noticed them in the paper. She lived three blocks from the canal, which she figured was too far away for the chemicals to affect her, but out of curiosity she took one of the articles to her brother-in-law, who was a biology professor. When he told her that some of the chemicals listed can affect the nervous system, Gibbs thought about her 5-year-old son Michael’s epilepsy and about his growing list of other health issues, including asthma, liver problems, and a urinary disorder, all of which developed after moving to Love Canal. Michael was in kindergarten at the 99th Street School — the school that had been built directly on top of the dump. Gibbs tried unsuccessfully to convince the school superintendent to transfer Michael to another school.
Meanwhile, unusually heavy snow and rain in 1976 and 1977 had raised the water table and flushed more chemicals out of the canal. “The plastic liner of Mrs. Schroeder’s swimming pool popped right out of the ground [because of water pressure],” Gibbs says, referring to Karen Schroeder, who lived on 99th Street right next to the canal. In some homes, multicolored chemicals were seeping through the concrete walls of basements.
At the time, scientists were just beginning to seriously study the effects of living in contaminated areas for long periods of time — chronic low-dose exposure. Most previous studies had focused instead on workplace exposure, where people were breathing or handling concentrated doses. As a result, the first health officials to begin talking to Love Canal residents had little specific information about health risks. Their advice to families who were seeing and smelling chemicals in their basements was to stay out of the basement, just in case.
So residents at Love Canal started tallying illnesses for themselves, Gibbs says, and they found alarming numbers of miscarriages, birth defects, and illnesses in the neighborhood. Amid growing complaints, the U.S. EPA and the New York Department of Environmental Conservation stepped in to test the air in basements of homes bordering the canal. They found benzene levels up to six times higher than federal limits in some cases.
Fred and Barbara Jarzab’s home on 97th Street was one of those tested. The Jarzabs lived near the north end of the canal, where fewer chemicals had been dumped, and they had never noticed any chemicals in the basement. So Fred wasn’t too worried when EPA installed an analyzer in the basement. Then, while he was out of town on a business trip, Barb called him and said they had told her the basement had dangerous levels of benzene and toluene. She wasn’t sure what it all meant, but they had told her not to let the kids go into the basement. When I asked if she kept going to the basement, Barb said she had to; the washer and dryer were down there. “She held her breath,” Fred added.
On May 19, about a hundred residents attended an emotional public meeting at the 99th Street School. State and local health officials openly disagreed about the severity of the health risks posed by the chemicals, and the meeting devolved into chaos. Frightened residents couldn’t sell their homes and couldn’t afford to abandon them. “The banks wouldn’t give loans on those houses,” Gibbs says. “You were literally stuck there.” Meanwhile, the health and contamination studies continued.
The state health department released its preliminary findings in July, confirming residents’ fears that women living near the southern end of the canal were experiencing greater than normal rates of miscarriage and birth defects. Karen Schroeder, whose swimming pool had emerged from the ground, told the Niagara Gazette that her knees shook when she heard the results. After living near the canal for years, she had given birth to a daughter who was mentally retarded, deaf, and had a cleft palate and a double row of bottom teeth.
On Aug. 2, 1978, state health commissioner Robert Whalen announced a state of emergency at Love Canal and recommended that pregnant women and children under the age of two temporarily move, as soon as possible, but did not offer any financial help. The neighborhood nearly rioted. A public meeting the next night became a shouting match between residents and officials. One man reportedly fell to the ground weeping after pleading with officials to move his children.
Within days, the governor announced that the state would buy the 239 homes closest to the canal, those on the two so-called inner rings, including the Jarzabs’ house. The Jarzabs spoke to me over coffee in the house they moved to from Love Canal nearly 30 years ago. The quiet cul-de-sac on Grand Island feels very far from the chain-link fence, although it’s only a few miles away. The state gave them a fair price for their house, they say, and they got plenty of help with moving. “We told the realtor we didn’t want to be anywhere near a chemical dump, so she had a map showing where they were, and there was nothing on Grand Island,” Barbara says. The island, with its favorable winds carrying away the smell of Niagara Falls industries, became a refuge for many Love Canal evacuees.
THE SECOND STORM. Gibbs, the homeowner activist, was left behind in the 1978 evacuation and became president of the Love Canal Homeowners Association. She continued fighting to convince the state and federal government to buy outer-ring homes as well. The health department and EPA argued that they had no evidence that chemicals were affecting homes beyond the first two rings; environmental testing in the outer rings found levels 1,000-fold lower than occupational safety limits. But those limits were not intended as residential standards, and it was unclear whether the levels were hazardous. “It was really scary,” Gibbs says. “We needed the health department to say what the health risks were.”
Gibbs, working with cancer researcher Beverly Paigen of Roswell Memorial Institute, developed a hypothesis that chemicals were migrating farther from the canal along swales, natural depressions created by old streambeds and ponds that had been filled in. Gibbs and Paigen mapped out higher illness rates among people living along swales. But the “swale theory,” as it became known, was controversial, and environmental testing along swales could not initially confirm it.
The final decision to purchase the remaining homes at Love Canal came in May of 1980, after sources leaked the results of an EPA pilot study on genetic damage that found that chromosomes were abnormally ring- shaped or acrocentric (meaning one part of the chromosome was shortened) in 11 of 36 people tested. Media coverage of Love Canal peaked, and the homeowners detained two visiting EPA officials (the press called them “hostages”) in an effort to draw more attention to their situation. The chromosome study had used no control group, and many scientists disputed the medical significance of the abnormalities, but the specter of genetic damage pushed the state to speed its buyout of approximately 700 more homes. Finally, President Jimmy Carter agreed to evacuate the residents, and Gibbs and her neighbors were able to move out.
The abandoned homes in the inner rings were bulldozed in 1982, and in 1988 the New York state health commissioner, David Axelrod, declared the area north of the canal to be safe for habitation based on an interagency review overseen by EPA. The Love Canal Area Revitalization Agency refurbished the empty homes north of the canal in the 1990s and sold them for 20% below market value, with waivers of liability for contamination.
At the same time, the state deemed the area east of the canal and south of Colvin Boulevard to be “uninhabitable” because of higher contaminant levels. This meant the area would not be redeveloped, but commissioner Axelrod said that the contamination was not an immediate health threat to the few residents still living in the area.
The 20,000-plus tons of chemicals buried at Love Canal are there to this day; EPA deemed it too dangerous to try to remove them. The New York Department of Environmental Conservation installed a leachate collection system to capture any rainwater that filtered through the canal. The canal area, including the land where houses on the two inner rings had been razed, was capped and fenced, and a leachate treatment plant was built. EPA added a synthetic barrier layer to the site in 1982 and improved and expanded the treatment system.
Occidental Petroleum (Hooker’s parent company) was found liable for the Superfund cleanup and settled a lawsuit with residents for $20 million. Of that, $3 million went to a follow-up health study, $1 million to a medical trust fund, and what remained after the lawyers’ take was divided among residents based on judgments of individual health damages.
HEALTH EFFECTS. Gibbs and many of the residents of the outer rings came to deeply resent what they saw as a runaround by the state health department. Gibbs says she was told that the information she collected on neighborhood illness amounted to “useless housewife data.” Her idea about swales carrying chemicals was refuted publicly, only to be partly vindicated in later comparisons by the department that found higher illness rates in “wet” versus “dry” locations. The health department, in turn, maintained that they were doing their best with the scientific tools they had.
The residents’ basic question — How did Love Canal affect their health? — is still in some dispute today. The New York State Department of Health (NYSDOH) has been working on a follow-up health study for nearly 10 years. A public draft of the report was posted on the agency website in October 2006, but the work was then split into four studies, which the agency is submitting to peer-reviewed journals. One paper, which outlines mortality in Love Canal residents, has been submitted for publication, but none have yet been published.
I spoke with Nancy Kim, acting director of the health department’s environmental health center, and Edward Fitzgerald, the principal investigator of the follow-up study. They were reluctant to discuss their results because the peer-review process is not complete, and they noted that the main issues being addressed surround the interpretation and discussion of the data.
The study compared the health of Love Canal residents to that of people living in New York state and Niagara County. The study used state registry data for more than 6,000 people who lived near Love Canal between 1942 and 1978, but included only people who were located and interviewed in 1978. The registries generally provide reliable data but lack data on many kinds of illnesses and on birth defects before 1983, cancers before 1979, and illnesses after residents moved out of state.
The study has been criticized, particularly by Gibbs’s organization, for relying on the limited registry data instead of reinterviewing residents to get a more complete health picture. Kim and Fitzgerald say that the department considered interviews but was afraid that residents wouldn’t participate. Stephen Lester, a scientist who has acted as a community liaison at Love Canal since 1978, represented community interests on an advisory panel at the beginning of the follow-up study. Lester is now the science director for the Center for Health, Environment & Justice (CHEJ), an advocacy group directed by Gibbs. He agrees that participation was an issue, because an attempt in the 1980s had garnered little but hostility from residents. “The community had lost all faith and trust in the state health department and wanted nothing to do with them,” he says. “I said it wouldn’t be easy, but if they could engage the community first and let them do the outreach instead of the health department, you could do something meaningful.”
Despite the conservative approach used, which the health department acknowledges is biased toward underestimating health effects, some striking results emerged in the draft report. Children born at Love Canal were twice as likely as other children in other parts of the county to be born with a birth defect, a statistically significant finding. Children conceived at Love Canal were more than twice as likely to be female compared with children conceived after the mother left the neighborhood. This is consistent with findings in Seveso, Italy, where more girls were born to fathers (but not mothers in that case) who were exposed to a dioxin cloud released in a pesticide plant accident in 1976.
The draft also reported elevated rates of kidney, bladder, and lung cancers at Love Canal, though few of the comparisons were statistically significant. The language of the report tends to be conservative in describing the severity or strength of effects, emphasizing the relatively small number of data points.
The final studies will include some new statistical analyses of the levels of chemicals in residents’ blood, based on blood samples collected in 1978 and stored by the health department. The study used methods that were not available in 1978 to detect part-per-billion concentrations of chemicals (gas chromatography with microelectron capture detection and mass spectrometry).
LESSONS LEARNED, AND NOT LEARNED. Stephen Lester arrived at Love Canal on Oct. 10, 1978, the day the state’s cleanup work was set to begin, as an environmental consultant assigned to represent community interests during construction of the leachate containment system. He saw buses idling on street corners throughout the neighborhood, ready to sweep people away if a bulldozer ruptured a tank and sent toxic fumes into the air. Residents were horrified and scared. Signs were posted on homes around the community reading “Give me liberty — I’ve already got death” and “Evacuate us now!”
Love Canal serves today as a case study of the pitfalls confronting agencies working with the public. The health department’s relationship with residents soured early, when officials either could not or would not provide straight answers and came across to residents as condescending. Particularly for homeowners in the outer rings — stuck in unsellable homes and afraid of the health consequences of staying — there was a widespread feeling that the public-health system, including the scientists, was failing them.
“At Love Canal, people were given slips of paper listing levels of six or seven chemicals found in their basements,” Lester says. “People wanted to know, ‘What does this mean? Does this mean I’m going to get cancer, or will my kids get sick?’ I remember one woman in particular — I told her, ‘I can’t say what this means for you as an individual, I can only tell you in general what the risks are.’ She said to me, ‘We can put a man on the moon, and you’re telling me that we don’t know what these chemicals are going to do to us?’
“Here we are 30 years later, and we still don’t have a government agency capable of taking on health problems in communities and answering people’s questions about their health,” Lester says. Part of the problem is that the basic toolbox for environmental health studies has barely changed in 30 years, he notes. Although analytical methods for detecting low levels of chemicals have improved, the general approaches for studying community health — surveys, registry data, and epidemiological analyses — have remained much the same. How much better could the methods really be? “The tools are limited. But a lack of political will has prevented anyone from really thinking out of the box and applying different approaches.”
In contrast, public participation, when done well, has improved federal agencies’ decision-making, according to a report released in August by the National Research Council. Since Love Canal, and largely spurred by it, citizens’ groups have demanded more inclusion in decisions that affect their communities, such as the cleanup of Superfund sites. Some form of public participation is often required by law now, though it often takes the limited role of public information-gathering meetings.
LOVE CANAL’S LEGACY. The crisis at Love Canal spurred some immediate change. In New York, the state health system was prompted to create a registry of birth defects.
Love Canal also spawned the Superfund law. In 1980, President Carter signed the Comprehensive Environmental Response, Compensation & Liability Act, creating a fund paid into by waste generators for cleanup of the nation’s most toxic sites. The program is nearly out of money now and has a huge backlog of sites needing cleanup, but it established the “polluter pays” concept.
Today, nearly half of the U.S. population lives within 10 miles of one of the EPA’s 1,304 active and proposed Superfund sites, according to the Center for Public Integrity, a nonprofit group dedicated to investigative journalism.
And environmental scientists continue to uncover the long-term health effects of chemical exposure. Endocrine-disrupting chemicals (including dioxin), which were virtually unknown in 1978, are currently one of the hottest topics in environmental health science. Researchers have found that, in some cases, these chemicals can cause reproductive effects that carry forward for multiple generations. The follow-up health study of Love Canal finds a disturbing trend that echoes that pattern: Children born to mothers who lived on the canal during pregnancy have increased risk of adverse pregnancy outcomes themselves later in life, including low birth weight, preterm birth, and babies born small for their gestational age.
Perhaps most importantly, Love Canal inspired a generation of activists like Erin Brokovich to take on environmental problems in their communities. “It took the environmental movement back to the grass roots,” says Levine, after a decade when environmental battles were waged increasingly in court and out of the public forum.
LOVE CANAL TODAY. George Kreutz and his three young boys live on 101st Street, in a part of the Love Canal neighborhood that had the highest contamination levels. The area was deemed uninhabitable by the state health commissioner in 1988; new houses cannot be built there, but people can continue living in the ones left standing by homeowners who chose not to evacuate. When Kreutz and his girlfriend rented the small blue house in December 2007, he says he had no idea Love Canal was in his backyard. The chain-link fence is visible just across the street.
Kreutz says he didn’t think much about all the open space in the neighborhood when he moved in. “It just looked like a field,” he says. He adds that he’s happy with the house, which he calls immaculate except for the weeds sprouting from the gutters. It’s quiet, the rent is cheap, and the only real problem he noticed was a lot of illegal dumping among the tall weeds (an entire pallet of phone books rests a few steps beyond his neatly mowed yard).
Kreutz, 33, grew up in Florida and had never heard of Love Canal until he moved in. When people mentioned it, he did an Internet search. “When I put Love Canal in the computer, it just blew up on my computer screen.” At that point, Kreutz got nervous about living there with his sons, aged five, two, and 10 months.
While George and I talk in his driveway in front of the disassembled car he was working on, his towheaded older boy comes outside. He bounces a ball and walks slowly around the small front yard. “Do you worry about letting the kids play outside?” I ask. “They’re not allowed outside the mowed area,” he says. “I would never have put my children in that situation if I had known about it,” he adds. He plans to move as soon as he can afford to.
The rest of Niagara Falls has not fared much better. Today, my drive through the area is a tour of industrial smells — rubber, sewage treatment, and various shades of acrid and sour odors near the chemical plants. And then I start noticing the landfills — they seem to rise up everywhere. The region is home to more landfills than just about anywhere else in the nation, including some of the largest toxic waste landfills. Residents of nearby Lewiston and Porter are currently fighting for cleanup of the former Lake Ontario Ordnance Works, a landfill and hazardous waste storage site containing about 8 million metric tons of hazardous waste, including PCBs and radioactive waste dating back to the Manhattan Project.
LOIS GIBBS TODAY. Large framed black-and-white prints hang on the back wall of Gibbs’s office at CHEJ, showing kids at Love Canal and kids in other towns with their own tragedies. Gibbs was there for all of them. She is petite, with lively green eyes that add to the impression she is much younger than she is. She has a way of drawing people in and making them feel like part of something, and it is easy to see how her magnetic charm, combined with what she describes as an Irish no- nonsense practicality, helped make her into a leader.
But this is only in retrospect. In 1978, Gibbs was a quiet housewife with a high-school education. “You know,” she says, “I was from Grand Island. There, either you’re really out there [waving her arms above her head to paint a picture of the kind of wackiness that passes for renegade in small towns] or you’re really shy. I was shy.” When she decided to reach out to neighbors, she didn’t know how to act or what to say. So she wrote up a petition calling for closing the 99th Street School and decided to imitate what she had seen other petitioners do: She started knocking on doors.
So many people called her after Love Canal looking for advice about hazards in their neighborhoods that Gibbs decided to make it a full- time job. She moved to the Washington, D.C., area and established CHEJ to help communities organize against environmental threats.
Despite the lessons that should have been learned from Love Canal, Gibbs says toxic waste continues to threaten schoolchildren. A 2005 study by CHEJ found half a million children attending schools within half a mile of toxic waste dumps in just four states — New York, New Jersey, Massachusetts, and Michigan. Only seven states have laws prohibiting the construction of schools on or near hazardous waste sites.
She says she’s sad when she sees her old neighborhood at Love Canal so quiet now; in her memories, Love Canal is a thriving neighborhood chock-full of kids barreling along on Big Wheel tricycles and walking home from school for lunch, giggling and yelling. “The thing about Love Canal is, I loved that community,” she says.
Gibbs’s house on 101st Street was reduced to rubble long ago, but a huge evergreen tree stands in what used to be her front yard. Touring her old neighborhood this summer, she points the tree out proudly to a small flock of reporters. She and her son Michael planted the tree when they moved in, planning to decorate it each Christmas. “It withstood all of this,” she says, adding that now it reminds her where she lived. It’s clear this place remains part of her; it made her who she has become.
Back in Washington, D.C., I mention to her that many of my friends who are my age have never heard of Love Canal. “Keep telling the story,” she says, “we need to remember it.”
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Erika Engelhaupt is an associate editor of ES&T.
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From: Environmental Science & Technology ………….[This story printer-friendly]
November 12, 2008
FEMALE FETUSES ARE SENSITIVE TO HORMONE DISRUPTERS
[Rachel’s introduction: Exposure of females to hormone-disrupting compounds early in life can lead to many reproductive disorders in adulthood, including early puberty, impaired fertility, and uterine fibroids.]
By Janet Pelley
Although the association between human male reproductive health and synthetic chemicals has been explored for more than 10 years, researchers have just compiled a similar evaluation for females. The study, published online in Fertility and Sterility in October, indicates that exposure in the womb to chemicals that disrupt the endocrine system may be an important factor in painful and costly reproductive diseases that affect a majority of adult women in the U.S.
A team of 18 scientists combed through more than 300 studies on the contribution of endocrine-disrupting compounds to disorders of the ovary, uterus, breast, and pubertal timing. Experiments with rats and mice reveal that many ubiquitous chemicals such as PCBs, the herbicide atrazine, and plasticizers have detrimental effects on the female reproductive tract. Because the reproductive physiology of humans and rodents is remarkably similar, it is reasonable to predict that human female reproductive fitness can be disrupted by these compounds, according to the study.
Human epidemiology studies also support these predictions, the researchers add. For example, women who were exposed in the womb to diethylstilbestrol (DES), an estrogenic compound used before 1971 to prevent miscarriages, are more likely to have rare cervicovaginal cancers, decreased fertility, and breast cancer.
“We’re increasingly finding that early life exposures are critically important for adult onset of disease,” says report coauthor Sarah Janssen, a reproductive biologist at the Natural Resources Defense Council, an advocacy group. Studies on rodents have shown that exposure to the plasticizer bisphenol A (BPA) early in life disrupts the growth of breast tissue, leading to cancerous lesions in the mammary glands of adult animals. Human studies have shown that exposing normal breast tissue samples to environmentally relevant concentrations of BPA results in changes in gene expression similar to those found in aggressive breast cancer, Janssen says.
The researchers call for international coordination of research and more data on human exposures, especially data linking human fetal exposures to adult onset of disorders and improved data on the occurrence of women’s reproductive health problems. They recommend making information on how to reduce exposures more accessible to the public and call for reducing contamination of air, water, and land with endocrine-disrupting compounds.
Copyright 2008 American Chemical Society
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From: Center for Progressive Reform ………………….[This story printer-friendly]
November 13, 2008
AN EXECUTIVE ORDER FOR ENVIRONMENTAL JUSTICE: KEEPING THE PROMISE
[Rachel’s introduction: Here is a detailed proposal, submitted to President-elect Barack Obama, for an “Environmental Justice” (EJ) executive order fixing the broken EJ executive order, #12898, issued by President William J. Clinton.]
By CPR Member Scholars**
[Rachel’s introduction: The Center for Progressive Reform in Edgewater, Maryland has issued a new report titled “Protecting Public Health and the Environment by the Stroke of a Presidential Pen: Seven Executive Orders for the President’s First 100 Days.” Here is their proposal for an executive order on Environmental Justice.]
Introduction
U.S. environmental laws have dramatically improved the quality of the nation’s air, water, and wilderness, while saving countless lives. But environmental protection efforts continue to produce radically unequal results when compared on the basis of race, class, sex, and age.
For instance, African Americans have the highest asthma rates of any racial or ethnic group in the country and are three times as likely as whites to be hospitalized for asthma treatment.[12] Poor children and children of color are eight times more likely to have elevated levels of lead in their blood than other children.[13] Respiratory illnesses and elevated blood lead levels are but a few of the troubling indicators that stem from documented disparities in exposure to a wide range of pollution and risk-generating practices.
The nation’s environmental laws also produce inequalities based on diversity in culture and lifeways. For example, the fishing tribes in the Great Lakes, the Pacific Northwest, and elsewhere are disproportionately harmed when the fish on which they rely become contaminated with mercury. In fact, nearly one-third of Native American, Asian American and Pacific Islander, and “mixed race” women of childbearing age have blood mercury levels above EPA’s “safe” threshold, putting their developing babies at risk. This level is more than double that for white women.[14] Global climate change is also complicating the picture. Vulnerable populations like the poor and the elderly will be especially at risk as droughts, heat waves, and storms intensify.
Moreover, many fear that even well-intended policies to confront climate change could backfire in environmental justice terms. Capand- trade proposals — which promise efficient reductions in greenhouse gas emissions — could actually intensify local concentrations of particulate matter and other pollutants that accompany carbon emissions in poor cities, if polluters there choose to buy extra permits to pollute. In addition, investments to promote clean energy and expand “green collar” jobs run the risk of bypassing those in shuttered industrial towns or the crime-ridden inner city, reinforcing the country’s “wealth gap.”
Responding to such inexcusable disparities in the distribution of environmental benefits and burdens, Executive Order 12898, issued by President Bill Clinton in 1994, promised to reshape federal agency action toward achieving environmental justice for minority and low- income communities. The 15th anniversary of the Order will arrive just three weeks into the new President’s term. Even cursory reflection reveals that Executive Order 12898 has failed to live up to its promise, and needs an overhaul.
EXECUTIVE ORDER ENVIRONMENTAL JUSTICE: KEEP THE PROMISE
REQUIRE agencies to analyze the environmental justice impact of rules and require them to address environmental injustice affirmatively.
The failures of Executive Order 12898 are in part attributable to shortcomings in the provisions of the Order itself. Its biggest fault is its timid approaches to key concepts like “environmental justice communities” and “subsistence.” For instance, the Order makes the mistake of framing too narrowly the inquiry of what an “environmental justice community” might be, insisting that its harms be “disproportional” to some undefined standard. As a result, intractable problems of proof stymie constructive action.
The understanding of “subsistence” is troubling too, with potentially dire consequences for American Indian peoples’ cultural resources and rights. For American Indian tribes and Alaska Native villages, subsistence goes beyond physical sustenance. Rather, it describes a communal way of life that has physiological, psychological, social, cultural, and spiritual dimensions. And it implicates practices to which Indian tribes have legal rights, including rights protected by treaties and the federal trust responsibility. The original Order, however, failed to make such an understanding explicit, and today many federal agencies too narrowly define subsistence to refer to a threshold level of individual caloric intake. If tribal members no longer meet this threshold, agencies do not count them as “subsistence” populations — and decline to consider whether agency actions contribute further to depletion and contamination of the fish, wildlife, and plant resources. Thus, under the original Order, agencies may permit contamination of fish, advise tribal people to curtail their intake of this traditional food, and then effectively penalize them if, as a result, fish no longer comprise the “principal portion” of their dietary intake. This approach actually undermines the subsistence way of life it is supposed to honor.
Additionally, the original Order provides little impetus for an affirmative environmental justice agenda. Its focus is primarily limited to the elimination of disproportionate environmental burdens. But the emergence of the new “green” economy holds the promise that environmental protection will spawn a new set of economic opportunities — new jobs, new investments in infrastructure, and new technologies. As these new environmental benefits begin to take shape, the U.S. government must ensure that they are distributed in a way that is inclusive and fair, so that all communities share in the dividends of the new green economy.
Finally, the original Order gives little direction to agencies in integrating environmental justice into their core missions, and provides no meaningful mechanism for measuring progress and holding agencies accountable over the long term. Agencies issue scores of regulations each year that have environmental justice implications. But these agencies often fail to ask who will bear the burdens and who will reap the benefits of a regulation, or to consider whether the regulation ameliorates or exacerbates current inequities.[15] As a result, environmental justice often fails to make it onto agencies’ radar screens.
When agencies do identify environmental justice as a potential concern during the rulemaking process, their responses often indicate a misunderstanding of the relevant issues.
For example, when EPA purported to assess the environmental justice impacts of its final “Clean Air Mercury Rule,” which would have postponed and weakened reductions in mercury emissions, EPA observed that Native Americans, Southeast Asian Americans, and others would be better off with the rule’s meager reductions than with nothing. Indeed, in a particularly callous twist, EPA asked “whether high fish- consuming (subsistence) populations would be disproportionately benefited by the final rule,”[16] despite EPA’s own data showing that many in these groups would be left exposed to unsafe levels of mercury in fish.
Solution by Executive Order
After nearly 15 years of false starts and neglect, the next President can take the first meaningful steps towards fulfilling the nation’s commitment to Environmental Justice by amending or replacing the original Executive Order on environmental justice. The new Order should:
(1) clarify the key terms “environmental justice communities” and “subsistence”;
(2) require a meaningful analysis of the environmental justice impacts and implications of all major new rules;
(3) impose on agencies a substantive obligation to take affirmative steps to ameliorate environmental injustice;
(4) launch an affirmative environmental justice agenda; and
(5) hold agencies accountable for carrying out their environmental justice obligations. As is the case with the provisions of the existing Executive Order on Environmental Justice, all of these recommendations are consistent with the goals of Title VI of the Civil Rights Act.
1. Clarify Key Terms
The phrase “environmental justice community,” while easily understood conceptually, has proved difficult to define with precision. The contexts in which environmental injustices occur vary widely, rendering abstract definitions inadequate. In addition, national databases do not typically capture all of the impacts that occur at the local level. Accordingly, a more appropriate framework for identifying “environmental justice communities” should be developed to account for these issues. This framework should include the following features:
(1) a broad list of factors that allow for the identification of areas of concern without excluding disadvantaged communities;
(2) a requirement that agencies consider both communities that are disproportionately impacted and those that face unacceptably high risks or exposures; and
(3) language that is carefully phrased to avoid giving rise to debates about causation.
Second, the new Order should address American Indians’ and Alaska Natives’ unique concerns regarding “subsistence.” The original Order directs agencies simply to collect information about subsistence consumption of fish and wildlife and to issue consumption advisories when these resources are contaminated. While it provides that these agency responsibilities “apply equally to Native American programs,” it fails to address the special circumstances, political status, and legal rights of Indian tribes and their members. The next President should, after consulting with tribal leaders, take steps to address Indian tribes’ subsistence concerns, by amending Executive Order 12898 (a) to correct its misunderstanding of “subsistence” and (b) to direct agencies, after consulting with tribes according to Executive Order 13175,[17] to develop strategies to address the adverse impacts of federal programs, policies, and activities on the subsistence practices of American Indians and Alaska Natives.
2. Require a Meaningful Environmental Justice Analysis of Major Rules
The new Order should require agencies to conduct an environmental justice analysis for each major rule. Further, in order to ensure that such analyses are rigorous and meaningful, the new Order should direct the EPA to create an advisory committee charged with developing an appropriate methodology and protocol for conducting such analyses. This advisory committee should include members of the environmental justice community. It should also conduct a series of meetings around the country with various environmental justice communities and use their input in developing the methodology. The methodology should include specific procedures for agencies to conduct outreach to and obtain input from affected environmental justice communities in conducting these analyses.
3. Make a Substantive Commitment to Ameliorate Environmental Injustice
Analysis is a waste of time and resources unless it is linked to a commitment to take meaningful action. Section 1-101 of the existing Order directs agencies to “address” environmental justice concerns, but this language has proved to be too vague. Agencies often interpret it as requiring only analysis, not action. Accordingly, the new Order should impose on agencies a clear obligation to take affirmative steps to ameliorate environmental injustice to the maximum extent feasible, consonant with other legal obligations and constraints.
4. Launch an Affirmative Environmental Justice Agenda
The next President should launch an affirmative environmental justice agenda, announcing a set of goals aimed at ensuring that the benefits of the emerging “green” economy are distributed in a way that is inclusive and fair. These goals should include the development of “green-collar” jobs, job training, and new green businesses in traditionally disadvantaged environmental justice communities. The federal government can encourage the achievement of these goals through tax breaks, the creation of “green enterprise zones,” and other creative solutions. Accordingly, the new Order should also direct each federal agency to exercise its discretion, consistent with existing law, to promote the goals of an affirmative environmental justice agenda wherever possible. Further, the Order should direct each agency to develop a plan outlining how existing programs will be administered in order to promote these goals and recommending new programs for achieving them, including, where appropriate, new proposed legislation.
The next President should launch an affirmative environmental justice agenda, announcing a set of goals aimed at ensuring that the benefits of the emerging ‘green’ economy are distributed in a way that is inclusive and fair.
5. Hold Agencies Accountable
The new Order should include procedures for holding federal agencies accountable for carrying out their environmental justice obligations. Specifically, it should require each agency to develop an agency-wide environmental justice plan that identifies and addresses programs and policies that threaten to undercut environmental justice. These plans should also incorporate the affirmative environmental justice plan described above. To ensure the ongoing and effective implementation of these plans, the Order should require agencies to revise and update their environmental justice plan every two years and submit it as a public report to the President. Furthermore, the Order should require that the President designate a new or existing office within the White House to oversee implementation of the new Order.
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CPR Member Scholars include (see biographies below): Rebecca M. Bratspies, David M. Driesen, Robert L. Fischman, Sheila Foster, Eileen Gauna, Robert L. Glicksman, Alexandra B. Klass, Catherine A. O’Neill, Sidney Shapiro, Amy Sinden, Rena Steinzor, Robert R.M. Verchick, and Wendy Wagner, and CPR Policy Analyst James Goodwin
About the Authors
Rebecca M. Bratspies is a Member Scholar of the Center for Progressive Reform and an Associate Professor of Law at the CUNY School of Law, New York, New York. She holds a J.D. cum laude from the University of Pennsylvania Law School and a B.A. from Wesleyan University. Before teaching, Professor Bratspies served as a legal advisor to Taiwan’s Environmental Protection Administration. Professor Bratspies has two forthcoming books:
Progress in International Institutions, and Transboundary Harm in International Law: Lessons from the Trail Smelter Arbitration.
David M. Driesen is a Member Scholar of the Center for Progressive Reform and a University Professor at Syracuse University. He holds a J.D. from Yale Law School. Prior to entering academia, Professor Driesen worked as a project attorney and then senior project attorney in the air and energy program for the Natural Resources Defense Council. He was an Assistant Attorney General in the Special Litigation Division of the Washington State Attorney General’s Office. Professor Driesen has published widely in the areas of environmental law and policy, including co-authoring the textbook Environmental Law: A Conceptual and Pragmatic Approach (Aspen 2007) with CPR Member Scholar Robert Adler.
Robert L. Fischman is a Member Scholar of the Center for Progressive Reform, Professor of Law, Harry T. Ice Faculty Fellow, and Professor of Public and Environmental Affairs (adjunct) at the Indiana University School of Law-Bloomington. Prior to his academic career, Professor Fischman served as Natural Resource Program Director and Staff Attorney at the Environmental Law Institute in Washington, D.C. He is a distinguished scholar whose articles have won recognition as among the most influential in environmental law. He has written on public land management, endangered species recovery, environmental impacts analysis, federalism, and global climate change. His book on management of the National Wildlife Refuge System has become the standard reference in the field.
Sheila Foster is a Member Scholar of the Center for Progressive Reform and a tenured full Professor at Fordham University School of Law in New York City.
Professor Foster has provided legal advice and expertise to a number of grassroots environmental justice organizations in New York, New Jersey, and Pennsylvania. For example, she was part of the litigation team suing on behalf of a community group in Camden, New Jersey claiming environmental racism in the placement of a cement recycling plant in their heavily polluted neighborhood. Professor Foster has published widely on the subject of environmental justice, and is the co-author of a NYU Press book, From the Ground Up: Environmental Racism and the Rise of the Environmental Justice Movement (2001).
Eileen Gauna is a Member Scholar of the Center for Progressive Reform and a tenured full Professor at the University of New Mexico School of Law.
Professor Gauna has worked closely with grassroots environmental justice organizations and networks in the Southwestern United States. For example, she conducted workshops on the applicability of civil rights laws to environmental permitting for the South West Organizing Project, Compadres , and Tucsonians for a Cleaner Environment. Professor Gauna has published widely in the area of environmental justice and together with CPR Member Scholar Cliff Rechtschaffen, co- authored the casebook, Environmental Justice: Law, Policy and Environmental Protection (2002).
Robert L. Glicksman is a Member Scholar and Director of the Center for Progressive Reform, and holds the Robert W. Wagstaff Chair at the University of Kansas School of Law. Professor Glicksman holds a J.D. from the Cornell Law School and is a nationally recognized authority on environmental and natural resources law. Prior to joining the faculty of the University of Kansas School of Law, Professor Glicksman worked in private practice, serving industrial clients in the energy and chemical industries. He has also served as a consultant to the Secretariat for the Commission for Environmental Cooperation, an international organization established by the North American Agreement on Environmental Cooperation (the environmental side agreement to NAFTA). He has published widely in the areas of pollution control, public natural resources management, and administrative law and is the co-author of numerous texts, including the environmental law casebook, Environmental Protection: Law and Policy (Aspen Publishers).
Alexandra B. Klass is a Member Scholar of the Center for Progressive Reform and an Associate Professor of Law, University of Minnesota Law School. Professor Klass received her B.A. from the University of Michigan, and her J.D. from the University of Wisconsin Law School. She has represented citizen groups, local governments, corporations in litigated and regulatory matters relating to wetlands, cleanup of contaminated property, environmental review, eminent domain, land use, wind power, and flood impoundment projects. Professor Klass’s articles have appeared in numerous law journals.
Catherine A. O’Neill is a Member Scholar of the Center for Progressive Reform and an Associate Professor of Law at Seattle University School of Law. She has worked on issues of environmental justice with various tribes, advisory committees, and grassroots environmental justice groups. Professor O’Neill is currently a member of the technical advisory board for the Swinomish Indian Tribal Community’s four-year study, “Bioaccumulative Toxics in Native Shellfish.” Professor O’Neill was a Ford Foundation Graduate Fellow at Harvard Law School. She has published numerous articles in the areas of environmental justice and environmental policy, many of which have been excerpted in casebooks, anthologies, and other collections on a diverse array of topics.
Sidney Shapiro is a Member Scholar and Director of the Center for Progressive Reform, and holds the University Distinguished Chair in Law at the Wake Forest University School of Law. Professor Shapiro has served as a consultant to the Administrative Conference of the United States, the Office of Technology Assessment of the U.S. Congress, and the U.S. Occupational Safety and Health Administration. Before entering academia, he served as a trial attorney in the Bureau of Competition of the Federal Trade Commission and later worked as the Deputy Legal Counsel, Secretary’s Review Panel on New Drug Regulation at the Department of Health, Education and Welfare.
Professor Shapiro has published dozens of articles on regulatory policy, health and safety laws, environmental law and administrative law in prominent law reviews as well as in specialty journals.
Amy Sinden is a Member Scholar and Director of the Center for Progressive Reform, and an associate Professor of Law at the Temple University Beasley School of Law in Philadelphia. Professor Sinden graduated summa cum laude from the University of Pennsylvania Law School. Before joining the Temple Law School faculty in 2001, Professor Sinden served as senior counsel for Citizens for Pennsylvania’s Future. Her recent academic writings have criticized the misuse of economic theory in environmental law. She has also written about the application of classical human rights norms to environmental conflicts.
Rena Steinzor is the President and a Director of the Center for Progressive Reform, and the Jacob A. France Research Professor of Law at the University of Maryland School of Law, with a secondary appointment at the University of Maryland Medical School Department of Epidemiology and Preventive Medicine. Professor Steinzor received her B.A. from the University of Wisconsin and her J.D. from Columbia Law School. She joined the faculty of the University of Maryland School of Law in 1994 from the Washington, D.C. law firm of Spiegel and McDiarmid. From 1983 to 1987, Steinzor was staff counsel to the U.S. House of Representatives’ Energy and Commerce Committee’s subcommittee with primary jurisdiction over the nation’s laws regulating hazardous substances. Professor Steinzor has published widely in the areas of environmental federalism, the implications of industry self-regulation on the protection of the environment and public health, and so-called “market based” alternatives to traditional regulation. Her most recent book, Mother Earth and Uncle Sam: How Pollution and Hollow Government Hurt Our Kids was published by the University of Texas Press in December 2007.
Robert R.M. Verchick is a Member Scholar and Director of the Center for Progressive Reform. He holds the Gauthier St. Martin Eminent Scholar Chair in Environmental Law and is Faculty Director of the Center for Environmental Law and Land Use at Loyola University, New Orleans.
Professor Verchick is a graduate of Stanford University and Harvard Law School. He has provided legal advice to community organizations in Missouri, Kansas, and in the state of Washington. Before entering academia, Professor Verchick practiced law in Seattle, representing a number of local governments (and private parties suing local governments) in disputes related to environmental and constitutional law. His written work focuses on environmental policy, environmental justice and disaster law, and has appeared in many venues. Professor Verchick is the author of an upcoming book on disaster and environmental law, to be published by Harvard University Press.
Wendy Wagner is a Member Scholar of the Center for Progressive Reform, the chair of the organization’s Clean Science Issue Group, and is the Joe A. Worsham Centennial Professor at the University of Texas School of Law in Austin, Texas. She received her law degree from Yale Law School. Before entering academia, Wagner served as an honors attorney with the Environmental Enforcement section of the Environment and Natural Resources Division of the U.S. Department of Justice, and as the pollution control coordinator in the Office of General Counsel of the U.S. Department of Agriculture.
Among Professor Wagner’s recent publications are two books on which she collaborated with other CPR Member Scholars: Bending Science: How Special Interests Corrupt Public Health Research (Cambridge: Harvard University Press, 2008) (with CPR Member Scholar and Director Thomas O. McGarity); and Rescuing Science from Politics: Regulation and the Distortion of Scientific Research (New York: Cambridge University Press, 2006) (editor, with CPR President and Director Rena Steinzor).
James Goodwin J.D., M.P.P., works with CPR’s “Clean Science” and “Government Accountability” issue groups. James joined CPR in May of 2008. He earned his B.A. in Political Science from Kalamazoo College, his J.D. (with a certificate in environmental law) from the University of Maryland School of Law, and his M.P.P. (with a concentration in environmental policy) from the University of Maryland School of Public Policy. Prior to joining CPR, Mr. Goodwin worked as a legal intern for the Environmental Law Institute and EcoLogix Group, Inc. He is a published author with articles on human rights and environmental law and policy appearing in the Michigan Journal of Public Affairs and the New England Law Review (co-author with Armin Rosencranz).
End Notes
[Because this is an excerpt from the longer report, most of the end notes have been omitted.]
[12] AM. LUNG ASSOC., LUNG DISEASE DATA IN CULTURALLY DIVERSE COMMUNITIES: 2005, 39, available at http://www.lungusa2.org/embargo/lddcdc/LDD.pdf.
[13] Physicians for Social Responsibility — Los Angeles, Childhood Lead Poisoning Prevention Act of 2007:
Background Information, http://actionnetwork.org/psr_la/alert-description.tcl?alert_id=10964644 (last visited Oct. 3, 2008).
[14] Kathryn R. Mahaffey et al., Blood Organic Mercury and Dietary Mercury Intake: National Health and Nutrition Examination Survey, 1999 and 2000, 112 ENVTL. HEALTH PERSP. 562 (2004).
[15] See, e.g., U.S. GOV’T ACCOUNTABILITY OFFICE, ENVIRONMENTAL JUSTICE: EPA SHOULD DEVOTE MORE ATTENTION TO ENVIRONMENTAL JUSTICE WHEN DEVELOPING CLEAN AIR RULES, GAO-05-289 (July 2005), available at http://www.gao.gov/new.items/d05289.pdf; U.S. GOV’T ACCOUNTABILITY OFFICE, ENVIRONMENTAL JUSTICE: MEASURABLE BENCHMARKS NEEDED TO GAUGE EPA PROGRESS IN CORRECTING PAST PROBLEMS, GAO-07-1140T (July 2007), available at http://www.gao.gov/new.items/d071140t.pdf.
[16] Electric Utility Steam Generating Units, 70 Fed. Reg. 28,606, 28,648 (May 18, 2005) (emphasis added).
[17] Exec. Order No. 13175, 65 Fed. Reg. 67,249 (Nov. 6, 2000) (establishing procedures for executive agency consultation and coordination with Indian Tribal Governments).
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