city sunrise

You may have read something recently about the air being racist, which is of course ridiculous. It is true that if you are white in America you will tend to breathe air of a more premium quality. A recent study from the University of Minnesota found that black and brown Americans are more often trapped in neighborhoods laden with nitrogen dioxide than their white fellow Americans.

This is not news to us. Our abnormally high asthma and cancer rates testify to this. These reports are perennial, and media coverage of them rarely provides context for how these air disparities came into existence: unequal environmental legal protections.

Nor do the reports note that while waves of such antimatter tend to hover over the browner parts of Gotham, there is a Justice Alliance in place determined to protect them. The alliance is called the environmental justice movement, and it’s recently made significant headway inside the executive branch of the federal government.

President Obama’s first Environmental Protection Agency chief, Lisa Jackson, promoted environmental justice to top priority status in the agency’s overall mission in 2009. The resulting strategy, which the EPA began rolling out in March, is called Plan EJ 2014, and its primary goal is to end the culture of entitlement among polluters that dump toxic byproducts into the air, soil, and water of marginalized communities.

Why is this a big deal?

  1. Because if you believe that the health and lives of people of color are no less precious than white people’s, this plan helps bring environmental laws in harmony with those values.
  2. If you think that clean air is Don Sterling (I like black people. I feed them with oxygen and give them wind. I just don’t want them breathing me.), then you want to know who the Adam Silver is who can commission a smackdown.
  3. Because civil rights protections in America have been taking a beating lately. Thanks to the U.S. Supreme Court, we now have weakened voting rights protections, weakened affirmative action policies, and we were this close to losing valuable housing discrimination protections (which would have had negative implications for environmentalists).

While civil rights have been getting pushed backwards, environmental justice is been slowly rolling along progressively. That’s no small feat, especially for an agenda that was attacked almost immediately upon Obama claiming the White House in 2009.

To that end, the emergence of Plan EJ 2014 is something akin to The Dark Knight rising after years of allowing the evils of racism to corrupt the air for too long. The plan aims at not only racism, but also pollution and climate change, hoping it can take on three villains at the same time. To understand the significance of this fight, it’s helpful to understand how this justice strategy was developed.

At its heart, EJ 2014 is an attempt to resurrect – and weaponize – a 1994 executive order issued by President Clinton that formally acknowledged that the way the federal government was allowing business to happen was overburdening communities of color with pollution. The order directed all federal agencies to produce strategies to stop that, but early efforts faltered and George W. Bush ignored it. Reviving the order under Obama would be no simple mission. Whatever EPA came up with was sure to be hated on by business and industry, which were brats about anything that even resembled regulation. The plan also had to pass muster with environmental justice activists and mainstream environmental groups.

To lead the effort, Jackson found a Lucious Fox in Lisa Garcia, an attorney adept in creative lawyering and community empowerment — skills she developed while working as chief advocate for environmental justice and equity for the New York State Department of Environmental Conservation. Garcia would work alongside Charles Lee, director of the EPA’s Office of Environmental Justice.

Similar efforts had failed in the past. In New York, Garcia chaired a state government task force that released an environmental justice plan; environmental justice leaders in that city tell me it was one of a succession of such plans that went nowhere. In 1994, Clinton created a federal environmental justice task force to create strategies for incorporating environmental justice principles into executive branch operations. That, too, fell flat.

And while the bureaucrats met, the evidence for environmental racism continued to mount. In 2011, scientists found that American counties with the worst levels of ozone had significantly larger African American populations than those with less pollution. Poverty was not a huge factor in this. Meaning, companies were permitted to pollute near neighborhoods not because they were poor, but because there were fewer white people to suffer.

Companies argued they were doing nothing wrong because they were polluting within their permitted levels (except when they weren’t). But permitting analyses was fundamentally flawed: It was based solely on single pollutants from single sources. There was nothing that took into consideration the fact that some neighborhoods had clusters of pollution sources spitting out gumbo-scale pollutants.

Not to be outdone, Obama himself had been fucking up. He gave the EPA the green mandate, but then started pulling stuff like expanding offshore drilling for oil companies and delaying new regulations around ozone emissions. Such antics cost him his climate change czar, Carol Browner* — and he almost lost Jackson early on, too.

Many members of the environmental justice community concluded that anything short of a law, passed by Congress and signed by the president, would simply not be enough. For housing discrimination, there is the Fair Housing Act, and there’s a Voting Rights Act for voting discrimination. But there’s been no parallel act for environmental protections. Citizens have had to rely upon the Civil Rights Act for protection from environmental harm, but the EPA has failed to enforce that law as well.

Still, Garcia soldiered on. She visited dozens of communities gathering complaints and concerns from residents living with the heaviest pollution burdens. The main thing she heard was that the EPA needed to step up its enforcement game considerably, especially around civil rights.

“The communities drove a lot of the questions,” Garcia said in an interview about her approach to creating the plan. “The [EPA] staff not being able to answer these questions easily drove why the EJ program became so process-oriented — because staff didn’t have the tools and didn’t have the guidance needed to prioritize things like enforcement and compliance. So for me the plan really was, this is what the communities are saying.”

In 2012, the EPA completed a working draft of Plan EJ 2014 consisting of much-needed guidance for agencies officials on enforcement, permitting, and agency rulemaking. It also called for a bunch of online tools and GIS applications so that the agency could better identify pollution-riddled communities. President Obama’s Climate Action Plan was integrated into a later version of the plan, signaling that he had heard the concerns of environmental justice groups that his climate change treatise lacked strong language around protecting communities of color.

At this writing, Plan EJ 2014 is about 90 percent complete. Progress reports show that there’s been a tremendous amount of movement in terms of bringing new rules, guidelines, and applications online, but the EPA is still trying to wrap its head around cumulative risk assessment — permitting decisions that consider pollution clusters — and expanding public participation in agency decision-making. Jackson has since left for Apple, but her successor, Gina McCarthy, hasn’t shied away from prioritizing and finishing the project. Last month, Garcia left EPA to join Earthjustice as vice president of litigation for health.

In many ways, the plan itself is a civil rights achievement. It might die an early death like so many other plans before it, or it could live long enough to itself become a villain — another target for the civil rights-hatin’ Supreme Court. But without it, our black and brown neighbors will continue to suffer from breathing dirty air, due to the racism of unequal protection under the law. At least now, the powers that be can no longer feign ignorance.

This is part one of a series on Plan EJ 2014

* Clarification: A reader points out that Carol Browner left her post as White House climate czar before Obama dumped the EPA’s plans to update the ozone rule. However, the rule, spiked by Obama in 2011, was in the works well before her departure. Nonetheless, my intention was to say that Obama’s antics on climate change and pollution in general drove Browner out — not just the ozone rule.