How Can Legal and Regulatory Enforcement Help Communities at Risk from the Climate Crisis?
From the farm fields of California to the low-lying neighborhoods along the shores of the Chesapeake Bay, structural racism and legally sanctioned inequities are combining with the effects of the climate crisis to put people in danger. The danger is manifest in heat stroke suffered by migrant farmworkers and failing sewer systems that back up into homes in formerly redlined neighborhoods. Fortunately, public interest attorneys across the country are attuned to these problems and are finding ways to use the law to force employers and polluters to adapt to the realities of the climate crisis.
The second installment in CPR's climate justice webinar series showcased some of the important work these public interest advocates are doing and explored how their efforts are affected by enforcement policy and resource changes at regulatory agencies, from the federal level on down. Scroll down to watch a recording of the hour-long discussion featuring Cynthia Rice of California Rural Legal Assistance, Jon Mueller of the Chesapeake Bay Foundation, and Joel Mintz, CPR Board member and professor at Nova Southeastern Shepard Broad College of Law.
Here are some points of discussion you won't want to miss:
- Cynthia Rice shared examples of how California agriculture producers are …
Originally published in The Revelator. Reprinted under Creative Commons license CC BY-NC-ND 3.0.
In recent months the Trump administration has intensified its assault on federal environmental safeguards on several fronts. It has proposed drastic reductions in the scope of protections against water and air pollution, lagged in the cleanup of hazardous waste contamination, allowed the continued marketing of toxic herbicides, narrowed the scope of needed environmental impact reviews, ignored and undermined legitimate scientific studies and findings, and dismantled government attempts to mitigate and adapt to the climate crisis.
Every bit as disturbing, but much less discussed, is a discouraging deterioration in the rigor of EPA’s once-effective enforcement program, which identifies and punishes polluters that skirt federal regulations.
The agency’s latest enforcement statistics reflect a dramatic decline in injunctive relief — the amount of money EPA-enforcement activities compelled polluters to commit to spending to correct their environmental …
The Chesapeake Bay Program has just compiled its annual data assessing progress toward the watershed-wide pollution reduction target under the Bay restoration framework known as the "Bay TMDL." The bottom line is that recent gains in Bay health could soon be eclipsed by the lagging pace of pollution reductions, with the likely result that the region will fall well short of the Bay TMDL 2025 target date to achieve the reductions needed to restore the Bay's health.
One of the primary causes of this slow pace of progress is that the agencies primarily responsible for Bay restoration simply aren't doing their jobs the way they used to. For example, the Maryland Department of the Environment (MDE) recently released its annual report showing the level of activity enforcing environmental laws. In 2018, the agency reported just 25 actions to enforce the federal Clean Water Act's core regulatory …
To serve the cause of justice, law enforcement must be prompt, even-handed, and appropriate to the circumstances of individual cases. In their handling of an important recent pollution case, however, the enforcement activities of the Environmental Protection Agency (EPA) and the U.S. Department of Justice (DOJ) have been none of those things.
The case involves the alleged use by Mercedes-Benz of software "defeat devices" in its diesel cars to override pollution control devices. There is considerable evidence that Mercedes' misconduct was intentional, and that over a period of years, its systematic cheating resulted in the emission of many times the allowable amount of nitrogen oxide – a pollutant that harms human health and contributes to climate change, smog, and other air pollution problems. In fact, one Mercedes diesel model's maximum emissions were found to be a whopping 91 times the emission standard.
The Mercedes-Benz defeat device scandal …
If a tree falls in a forest and no one hears it, does it make a sound? More to the point, if law enforcement issues a civil or criminal fine or sentence without anyone knowing, does it have an effect?
Thinking back to my criminal law course, I recall such philosophical discussions over the various theories justifying criminal penalties, such as incapacitation of the perpetrator, justice for the victim, and restoration of damages. But perhaps the most important theoretical basis for punishment – and I would think this is certainly true for punishment of environmental violations – is deterrence.
Leaving the realm of theory and philosophy, some recent stories in the news had me thinking once again about the state of environmental enforcement and the lack of deterrence. As I see it, two things must occur for a penalty to properly deter future violations: (1) the penalty must be …
Last month, the California Air Resources Board released a draft Aliso Canyon Methane Leak Climate Impacts Mitigation Program. The program comes in response to Gov. Jerry Brown’s January 6 proclamation that Southern California Gas be held responsible for mitigating the estimated 100,000 tons of methane released from the gas storage facility at Porter Ranch, which leaked the equivalent of about one-fifth of all other California sources of the powerful greenhouse gas combined over that same period. While this high-profile case is unique in both its global and local impacts, the response by California may nevertheless be illustrative of certain broader environmental enforcement trends.
Legal scholars from the Center for Progressive Reform and elsewhere have written about a recent policy shift in the federal approach to enforcement, which the U.S. Environmental Protection Agency (EPA) calls “Next Generation Compliance.” Spurred by damaging cuts to the agency …
Last month, the Environmental Protection Agency finalized a long overdue rule that was designed, according to EPA’s description, to move the agency “into the 21st Century.” Since many of the rules’ provisions still will not be in effect more than two decades after the turn of the century, this rulemaking plays right into the hands of those who insist that the federal government cannot work efficiently — ironic, because efficiency is the very purpose of the eReporting rule. In this case, the absurdly slow pace of the rulemaking process and the final rule’s protracted implementation schedule also serves the critics’ agenda. Even after more than a decade in the making, the final rule hampers EPA’s ability to shine a light on the problem of underreporting of water pollution in the United States.
The National Pollutant Discharge Elimination System (NPDES) has long been the centerpiece of …
The Concord Monitor has identified a New Hampshire factory (Franklin Non-Ferrous Foundry) that has been the subject of previous OSHA investigations and fines, yet continues to expose its workers to dangerous conditions. OSHA’s most recent fine, $250,000, came after the agency found that a worker had high levels of lead in his blood. The newspaper obtained OSHA documents that revealed a pattern of violations by the company. The New Hampshire case is a troubling reminder of how weak OSHA is -- and of how that weakness puts many workers at danger in this country today.
OSHA has cited the foundry for 57 violations over the last four years, including 25 “serious” violations, which means the violation has potential to kill or seriously harm an employee. The violations included exit doors that could not be opened from the inside without keys or tools. OSHA inspectors also found …
