Pandemic Opens Political Opportunities for Environmental Justice Policy in 2020

By Kay Jowers and Kate Konschnik

In 2020, the COVID-19 pandemic and protests of disproportionate police killing of Black Americans opened up political opportunities for addressing racial disparities across our social institutions in the United States. For those focused on the environment, that means greater consideration of environmental justice—the principle that all people, regardless of race, ethnicity, or national origin, are entitled to equal protection from our system of environmental and public health laws and regulations. We’ve seen movement on environmental justice at both the state and federal levels.

Responding to the current protest cycle, states have taken greater action to address environmental justice this year. A growing number of governors—including Governor Roy Cooper in North Carolina, Governor John Bel Edwards in Louisiana, Governor Chris Sununu in New Hampshire, Governor Gretchen Whitmer in Michigan, and Governor Tom Wolf in Pennsylvania—are convening task forces to study racial disparities in COVID-19 and other health outcomes. Some of these bodies have done a significant amount of work compiling research and making policy recommendations, in turn spurring state pledges. For instance, after Ohio’s Minority Health Strike Force released a Blueprint with 34 recommendations, Governor Mike DeWine issued an executive plan of action that includes concrete commitments to incorporate environmental justice in agency actions.

States are adopting environmental justice measures that reach beyond the pandemic. New Jersey, New York, and Virginia each passed new environmental justice legislation in 2020. New Jersey’s legislation may be the most comprehensive in the country, requiring an “environmental justice impact statement” for new permitting and permit renewals in overburdened Census tracts. Environmental justice measures are also appearing in state energy and climate legislation. In its historic Clean Economy Act retiring coal-fired power plants and setting aggressive renewable energy and decarbonization targets, Virginia encourages expanding low-income access to solar; requires periodic determinations to ensure the law does not impose disproportionate burdens on historically economically disadvantaged communities; and requires consideration of benefits for “local workers, historically economically disadvantaged community, … veterans, and individuals in the Virginia coalfield region” for energy programs, job training programs, and placement of renewable energy facilities. New York also enacted important environmental justice components in its new climate legislation and created a climate justice working group to oversee implementation.

This momentum extends to the federal realm—encouraging news since the only federal policy on environmental justice remains a 1994 executive order adopted by President Bill Clinton. In the 116th Congress, an unprecedented number of bills have been introduced on environmental justice, including measures that would respond to the Supreme Court’s 2001 ruling in Alexander v. Sandoval, 532 U.S. 275 holding that the Civil Rights Act does not empower private citizens to enforce its prohibition on discrimination based on race, ethnicity, or national origin (42 U.S.C. § 2000d). Instead, the Sandoval Court ruled that Americans experiencing disparate impacts must rely on federal agencies to take action. But federal agencies, including the Environmental Protection Agency, often fail to act, leaving those experiencing disparate impacts with few legal recourses.

The first bill introduced this year with language to address both environmental justice and a Sandoval fix was the Environmental Justice for All Act (HR 5986) on February 27, just as the COVID-19 pandemic was taking hold in the U.S. A companion measure was introduced in the Senate (S 4401) in the summer. In May, the Environmental Justice COVID-19 Act (HR 6692; S 3680) was introduced to appropriate $50 million in funding for environmental justice grant programs to monitor pollution and investigate disparate impacts associated with COVID-19. Its provisions were rolled into the House’s version of a coronavirus relief package, the HEROES Act (HR 6800). Meanwhile, the Equity and Inclusion Enforcement Act (HR 2574) was introduced specifically to address Sandoval.

Over the summer, as research began to emerge linking COVID-19 transmission rates and air pollution, the Public Health Air Quality Act of 2020 was introduced (HR 7822; S 4369) to require facility-specific monitoring of toxic air pollution in vulnerable communities. In September, the Environmental Justice Legacy Pollution Cleanup Act of 2020 (S 4617; HR 8271) was proposed to fund cleanup of legacy pollution, including National Priority List (“Superfund”) sites, abandoned coal mines, and former defense sites; replace leaded drinking water service lines; provide grant funding to overburdened communities; and prohibit new major air pollution sources from receiving permits under the Clean Air Act to site in overburdened communities.

Finally, the Clean Economy Jobs and Innovation Act, which passed the House on September 24, has a section on environmental justice (Title XI, HR 4447) that incorporates certain provisions from the Environmental Justice for All Act, including a Sandoval fix.

Though progress is slower at the federal level, the bicameral interest in these issues and the possibility of legislation that could house these provisions—for instance, another COVID stimulus package, or an energy bill conference after the election—raises hopes.

And yet, it is unfortunate that it takes multiple crises to seed a strong interest in environmental justice. Environmental justice has been an urgent matter for decades now, at least since the modern-day movement launched in Warren County, North Carolina. Decision makers in some states are taking action that will undoubtedly contribute to cleaner environments for low-income communities and communities of color most impacted by environmental hazards—which results in a healthier, safer, and more equitable society for all. Other states and the federal government have an opportunity to join these leadership states. The current proposals at the federal level provide a foundation for future enactments.

About the Authors
Kay Jowers is a senior policy associate with the State Policy Program at Duke University's Nicholas Institute for Environmental Policy Solutions.

Kate Konschnik is director of the Climate and Energy Program at Duke University’s Nicholas Institute for Environmental Policy Solutions and a senior lecturing fellow at Duke Law School.

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