Parochialism: An Alternative Approach to Environmentalism in Times of Alternative Facts by Gonzalo E. Rodriguez

Parochialism: An Alternative Approach to Environmentalism in Times of Alternative Facts

by Gonzalo E. Rodriguez

Rivers “so saturated with sewage and industrial waste” that they regularly burst into flames.[1] Cities covered by clouds of smoke and fumes so dense that visibility is reduced to three blocks.[2] Buried pools of carcinogenic toxic waste resurfacing into homes and school yards, while women report abnormally high rates of miscarriage and children return home from play with burns on their faces and hands.[3] These were the type of events that led Congress to adopt the first-generation of command-and-control environmental statutes in the 1970s.[4] The successes of these statutes are undeniable. Since the enactment of the 1970 amendments to the Clean Air Act, aggregate emissions of criteria pollutants have decreased an average of 70 percent across the nation, while the gross domestic product increased by 246 percent.[5] The number of water bodies meeting quality standards has nearly doubled since the Clean Water Act amendments of 1972,[6] and 18-million acres of contaminated lands have been restored since the enactment of the Resource Conservation and Recovery Act in 1976.[7]

Despite the successes of national environmental policies, our fixation on the role of the federal government as the “standard-setter and steward of a healthy environment”[8] could undo nearly half a century of work. A sudden change in the nation’s political climate holds the future of national environmental policy by a thin thread. A wave of right-wing populism propelled Donald Trump–he believes, in contrast to at least 97 percent of publishing scientists, that climate change is a “hoax” invented by China[9]–to the Presidency of the United States, where he has begun to fulfill his campaign promises to gut environmental protections.[10] President Trump’s nominated Scott Pruitt, former Attorney General of Ohio whose tenure was defined by his cooperation with industry to undermine federal environmental regulations, to head the EPA;[11] Rex Tillerson, president and chief executive of Exxon Mobil, for Secretary of State;[12] and Rick Perry, former Texas governor who previously proposed to eliminate the same department he is now nominated to head.[13] Moments after the presidential inauguration, all mentions of climate change were purged from the White House website, with exception of Trump’s promise to do away with the Obama administration’s climate change policies.[14] By his fifth day in office, President Trump issued executive orders reviving the Keystone XL and Dakota Access oil pipelines,[15] freezing all EPA grants,[16] and ordering a media blackout at the EPA.[17] That same day, the Trump administration announced that any scientific findings from EPA researchers would be required to undergo a “case by case basis” review before their release, a move that would directly contradict the agency’s scientific integrity policy.[18]

The future of environmental protections need not, and in fact cannot, rest on the national political rhetoric du jour. Constitutional, political, and jurisdictional barriers also limit the abilities of federal agencies to prevent the further deterioration of the environment.[19] For example, almost half of the remaining water quality concerns in the United States are caused by nonpoint source pollution.[20] Yet, federal regulation has not succeeded in addressing this problem, as nonpoint source pollution is invariably tied to land use,[21] a matter reserved to the states and outside of the control of federal regulators.[22]

Not in my backyard!

Few things make an environmental activist break into cold chills faster than hearing this phrase. NIMBY, as it is often styled, is a pejorative term seen as a syndrome of our times; a product of racism and privilege.[23] The perpetrators of NIMBY have typically been affluent white communities that use their economic and political influence to drive proposed unwanted uses of land out of their neighborhoods.[24] The victims have often been poor communities of color that, due to their lack of economic or political influence (or perhaps knowledge of the proposed action) become unknowing or unwilling hosts to hazardous facilities.[25] Naturally, environmental organizations seek to avoid the NIMBY label; even organizations whose work fits neatly within the boundaries of parochialism, their goals might be stated in global terms to avoid the NIMBY stigma.[26]

Historically, the work of citizen activist groups was a capital-intensive matter, requiring both extensive human and financial capital.[27] However, the widespread availability of internet and the advent of social media has considerably eroded the foundation of this zero-sum situation. If a company decides that a given neighborhood is the perfect location for its new production facility, its air permit application is likely electronically accessible.[28] More importantly, social medial has allowed grassroots activists to organize successful campaigns with minimal resources, attracting supporters that would otherwise not be directly harmed by a given development project. One of the best examples is the movement against the Dakota Access Pipeline; by using the hashtag #NoDAPL, Standing Rock water protectors secured the support, and the ire, of climate organizers around the world.[29] The NoDAPL movement is one of the many successful environmental grassroots efforts that, while expounding globalized ideals, was aimed to address a specific local problem.[30] The increased access to information and power to virally attract support to local causes calls for a reappraisal of the value of local environmental activism.

Going Local

The environmental justice movement is no stranger to grassroots action. Three Los Angeles neighborhoods–Boyle Heights, Pacoima, and Wilmington–share a few things in common: their residents are almost entirely Latino and exceedingly poor, they have strikingly high population densities, and they rank among the most environmentally burdened communities in California.[31] A critic of environmental parochialism would label this as the result of NIMBYism; and there could certainly be some truth to that. However, local activism is precisely what is giving Angelenos hope for a better tomorrow. In April 2016, after years of tireless efforts from community organizers, the Los Angeles City Council unanimously adopted the Clean Up Green Up (CUGU) ordinance.[32] Conceived and propelled by four community working groups, CUGU is a “ground-breaking environmental justice strategy that will reduce and prevent pollution throughout the community.”[33] CUGU exemplifies the use of local governmental power to protect communities; it is a land use ordinance that creates an overlay district over Boyle Heights, Pacoima, and Wilmington.[34] Development proposals within the overlay district will be subject to stricter requirements intended to reduce their environmental impact on the community.[35]

The criticism against local action has two main flaws. As previously discussed, national command-and-control policies have been unsuccessful in addressing many localized environmental problems.[36] But also, local initiatives have the power to, and often do, spark wider change.[37] In 2007, San Francisco became the first city to ban single-use plastic bags.[38] Though the plastic bag industry did its best to bury this initiative, over 130 California cities adopted bag bans by 2014.[39] Two years later, California voters approved the first statewide single-use plastic bag ban in the nation.[40] Though the plastic bag industry naturally objected the initiative, the business community was in favor of the bag ban.[41] One explanation seems to favor reliance on local initiatives instead of immediately seeking change at a state or federal level. As more cities adopt measures such as the bag ban, it creates “patchworks of conflicting policies and laws in California’s 58 counties and 400-plus cities,” which pressure corporate executives to “accept statewide action in the name of uniformity.”[42]

It Takes (Many) a Village

We cannot rely entirely on local governments to devise and implement policies to prevent nationwide environmental degradation. Federal protections are necessary not only to regulate conduct in areas outside state jurisdiction, but also to maintain a uniform regulatory system. However, the need to secure clean air and water requires us to revise the traditional top-down approach toward environmental advocacy. As of the first week of February, Congress has already repealed the stream protection rule,[43] and will shortly move to roll back federal methane flaring rules.[44] U.S. Rep. Matt Gaetz, a Republican congressman from Florida, went as far as to draft a bill to eliminate the EPA.[45] Until Washington is ready to protect our environment, our lives, and the lives of those to come, states and local governments will need to fill the gap.

[1] Jennifer Latson, The Burning River that Sparked a Revolution, Time (Jun. 22, 2015), http://www. http://time.com/3921976/cuyahoga-fire/.

[2] The Southland’s War on Smog: Fifty Years of Progress Toward Clean Air, SCAQMD http://www.aqmd.gov/home/library/public-information/publications/50-years-of-progress.

[3] Eckardt C. Beck, The Love Canal Tragedy, https://archive.epa.gov/epa/aboutepa/love-canal-tragedy.html.

[4] See generally 42. U.S.C. § 7401 (1970) (Clean Air Act); 33 U.S.C. § 1251 (1972) (Clean Water Act); 42 U.S.C. § 6901 (1976) (Resource Conservation and Recovery Act).

[5] Progress Cleaning the Air and Improving People’s Health, US EPA, https://www.epa.gov/clean-air-act-overview/progress-cleaning-air-and-improving-peoples-health.

[6] James Salzman, Why Rivers No Longer Burn, Slate (Dec. 10, 2012, 5:20 AM), http://www.slate.com/articles/health_and_science/science/2012/12/clean_water_act_40th_anniversary_the_greatest_success_in_environmental_law.html. Though burning rivers are no longer a common sight, the EPA estimates that approximately “half of our rivers and streams, one-third of lakes and ponds, and two-thirds of bays and estuaries are ‘impaired waters,’ in many cases not clean enough for fishing and swimming. Id.

[7] RCRA’s Critical Mission & the Path Forward, U.S. EPA 5 (Jun. 3014), https://www.epa.gov/sites/production/files/2015-09/documents/rcras_critical_mission_and_the_path_forward.pdf.

[8] John R. Nolon, In Praise of Parochialism: The Advent of Local Environmental Law, 23 Pace Envtl. L. Rev. 705, 705 (2006).

[9] Caroine Kenny, Trump: ‘Nobody Really Knows’ if Climate Change is Real, CNN (Dec. 12, 2016, 1:51 PM), http://www.cnn.com/2016/12/11/politics/donald-trump-climate-change-interview/. Since then-presidential candidate Trump called climate change a “hoax,” he has softened his stance, instead stating that he is “somebody that gets it, and nobody really knows [if climate change is real].” Id.

[10] For a list of some of these campaign promises, see Jenna Johnson, ‘I Will Give you Everything.’ Here are 282 of Donald Trump’s Campaign Promises, Wash. Post (Nov. 28, 2016), https://www.washingtonpost.com/politics/i-will-give-you-everything-here-are-282-of-donald-trumps-campaign-promises/2016/11/24/01160678-b0f9-11e6-8616-52b15787add0_story.html?utm_term=.fcd0b7857fd7.

[11] Eric Lipton et. al., Scott Pruitt, Trump’s E.P.A. Pick, Backed Industry Donors Over Regulators, N.Y. Times (Jan. 14, 2017), https://www.nytimes.com/2017/01/14/us/scott-pruitt-trump-epa-pick.html.

[12] Donald Trump’s Cabinet is Taking Shape. Here’s the Latest List, N.Y. Times (Jan. 25, 2017), https://www.nytimes.com/interactive/2016/us/politics/donald-trump-administration.html.

[13] Id.

[14] Coral Davenport, With Trump in Charge, Climate Change References Purged From Website, N.Y. Times (Jan. 20, 2017), https://www.nytimes.com/2017/01/20/us/politics/trump-white-house-website.html.

[15] Steven Mufson et. al., Trump Seeks to Revive Dakota Access, Keystone XL Oil Pipelines, Wash. Post (Jan. 24, 2017), https://www.washingtonpost.com/news/energy-environment/wp/2017/01/24/trump-gives-green-light-to-dakota-access-keystone-xl-oil-pipelines/?utm_term=.a4b9d8a270a3.

[16] Brady Dennis et. al., Trump Administration Tells EPA to Freeze All Grants, Contracts, Wash. Post (Jan. 24, 2017), https://www.washingtonpost.com/news/energy-environment/wp/2017/01/23/trump-administration-tells-epa-to-freeze-all-grants-contracts/?utm_term=.9c37220732ac. EPA grants benefit not only local efforts to address issues such as environmental injustice, but are also the life source for many scientists, researchers, and state and local officials. Id.

[17] Trump Administration Orders Media Blackout at EPA, L.A. Times (Jan. 24, 2017, 12:40 PM), http://www.latimes.com/politics/washington/la-na-trailguide-updates-trump-administration-orders-media-1485281190-htmlstory.html.

[18] Nathan Rott, EPA Scientists’ Work May Face ‘Case By Case’ Review by Trump Team, Official Says, NPR (Jan. 25, 2017, 9:43 AM), http://www.npr.org/sections/thetwo-way/2017/01/25/511572169/epa-scientists-work-may-face-case-by-case-review-by-trump-team-official-says.

[19] Nolon, supra note 8 at 708.

[20] Id. at 712.

[21] See James C. Buresh, State and Federal Land Use Regulation: An Application to Ground Water and Nonpoint Source Polution Control, 95 Yale L.J. 1433, 1436-38 (1986).

[22] Land use regulation is the quintessential expression of the police power reserved to the states under the Tenth Amendment. See Berman v. Parker, 348 U.S. 26, 32-33 (1954). Federal attempts to intervene in local development decisions have been quickly repelled, as seen in Clean Air Act amendments that expressly prohibited federal regulators from imposing direct land use controls. Nolon, supra note 8 at 707.

[23] Michael B. Gerrar, The Victims of NIMBY, 21 Fordham Urban L. J. 3 at 495 (1993).

[24] See id.

[25] See id.

[26] See infra note 30.

[27] See generally Laurie A. Kutner, Environmental Activism and the Internet, 1 Electronic Green J. 1, 2 (2000), http://escholarship.org/uc/item/5vg787tz#page-2 (discussing grassroots organizations’ historically limited access to mass-media, requiring these organizations to rely on telephones, mass mailings, and rallies to communicate information).

[28] See, e.g., Public Notices, ADEM, http://www.adem.state.al.us/newsEvents/publicNotices.cnt.

[29] Nick Engelfried, How #NoDAPL United a Movement for Indigenous Rights, The Canadian Progressive (Sept. 18, 2016), http://www.canadianprogressiveworld.com/2016/09/18/nodapl-united-movement-indigenous-rights/.

[30] Social movement circles would not likely label the NoDAPL movement as NIMBY; the water protectors were not chanting “not here,” but rather “not anywhere.” Yet, this is a blurred line. Grassroots activists interested in addressing a specific local ill–“we don’t want that factory here!”–often adopt a tactical expansion approach–“we don’t want any factories, anywhere!–simply to avoid the NIMBY brand. See Nikolay L. Mihaylov et al., Local Environmental Grassroots Activism: Contributions from Environmental Psychology, Sociology, and Politics, 5 Behav. Sci. 122, 145 (2015).

[31] See CalEnviroScreen 3.0 Draft Indicator and Results Map, CA Office of Envt’l Health Hazard Assessment, http://oehha.ca.gov/calenviroscreen/report/calenviroscreen-30-draft (last visited Dec 1, 2016).

[32] Tony Barboza, L.A. City Council Adopts Rules to Ease Health Hazards in Polluted Neighborhoods, L.A. Times (Apr. 13, 2016, 5:59 PM), http://www.latimes.com/local/lanow/la-me-pollution-protection-20160412-story.html.

[33] Clean Up Green Up, Communities for a Better Env’t., http://www.cbecal.org/organizing/southern-california/clean-up-green-up/.

[34] For a copy of the draft ordinance, see Draft CUGU Ordinance, L.A. City Planning, http://planning.lacity.org/Code_Studies/greenla/Ordinance.pdf.

[35] See id.

[36] See Salzman, supra note 7.

[37] See Dan Walters, Opinion: California Often Follows Social Activism at Local Level, Sacramento Bee (Jan 4, 2015, 4:01 PM), http://www.sacbee.com/news/politics-government/politics-columns-blogs/dan-walters/article5367390.html.

[38] Mitch Silverstein, The Battle Against Plastic Bags in California; A Brief History, San Diego Free Press (Sept. 2, 2016), http://sandiegofreepress.org/2016/09/the-battle-against-plastic-bags-in-california-a-brief-history/.

[39] Id.

[40] The statewide ban had been passed into law in 2014; however, industry groups lobbied to subject the measure to a referendum. Samantha Masunaga et al., Where are All Those Plastic Bags? California Voters Decided to Get Rid of Them, L.A. Times (Nov. 12, 2016, 6:00 AM), http://www.latimes.com/business/la-fi-plastic-bags-20161111-story.html.

[41] Id.

[42] Walters, supra note 36.

[43] Ken Silverstein, Will Undoing the Stream Protection Rule Really Help Coal?, Forbes (Feb. 3, 2017, 07:30 AM), http://www.forbes.com/sites/kensilverstein/2017/02/03/will-undoing-the-stream-protection-rule-really-help-coal/#6cd288d3e785.

[44] Bruce Finley, Congress Ready to Roll Back Federal Methane Flaring Rule as Soon as Friday, Denver Post (Feb. 2, 2017, 06:04 AM), http://www.denverpost.com/2017/02/02/congress-federal-methane-flaring-rule/.

[45] Jessica B. Young, Florida Congressman Matt Gaetz Files Bill to ‘Permanently Abolish’ the EPA, Orlando Weekly (Feb. 1, 2017, 01:12 AM), http://www.orlandoweekly.com/Blogs/archives/2017/02/01/florida-congressman-matt-gaetz-files-suit-to-permanently-abolish-the-epa.

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