AGs & Environmental Justice

Blurry image of smoke billowing over dark trees and shimmering water.

By Bethany A. Davis Noll and Lisa Garcia
June 3, 2021

Last week, the attorneys general of New York, Connecticut, the District of Columbia, Massachusetts, and New Jersey submitted a letter to the Army Corps of Engineers, urging the agency to conduct a rigorous reevaluation of the permits for the Formosa Plastics petrochemical complex in St. James Parish, Louisiana. With this letter, AGs have added their voices to opposition led by community groups seeking to stop the facilities from being built because of the disproportionate impacts on the predominantly African-American and low-income communities in the area and the contribution to climate change harms.
AGs are moving aggressively to ensure that environmental justice concerns like the ones implicated by the Formosa site are central to their environmental enforcement work. This demonstrates an increased commitment to working alongside and in support of community groups combating environmental pollution. And AG efforts on this front show that environmental justice considerations can and must be a key piece of the transition to clean energy. Along with the Biden administration’s recent commitment to supporting the federal agencies’ focus on environmental justice (including the Army Corps’) and the proposal to create a Senate-confirmed environmental justice position at EPA, these efforts demonstrate a real emphasis on addressing and ameliorating the past harms of environmental racism.
Several AG offices have had strong practices in this area for several years. In 2018, California created the Bureau of Environmental Justice and it recently announced that the bureau would expand to 11 attorneys. New Jersey’s environmental enforcement program has moved aggressively to enforce the laws in communities that are overburdened by pollution. In May, New Jersey’s AG office, in partnership with the Department of Environmental Protection, brought seven lawsuits regarding illegal dumping and releases of gasoline and toxic or chemical releases in overburdened communities. Washington also announced an environmental justice initiative, which has so far included a symposium with Gonzaga Law School on environmental justice issues in the state and the hiring of new environmental justice attorneys. And last year, New Mexico announced a new equity advisory council.
States and now the federal government have begun to focus more and more of their climate work on addressing the disproportionate burden of pollution on communities of color and low-income communities. This includes both affirmative investment and avoiding further harm. New York’s new Climate Leadership and Community Protection Act, for example, contains equity provisions, which require state agencies to direct 35% of benefits from spending on energy efficiency and clean energy programs to accrue to “disadvantaged communities.” (While this term remains controversial, the state is working with stakeholders to define the thresholds/details.) The Biden administration’s Justice40 plan similarly calls for 40% of all climate investments to go to disadvantaged communities. In addition, the White House Environmental Justice Advisory Council recently issued a series of recommendations which included the recommendation that “100% of investments must do no harm to Environmental Justice communities.” Given the especially high risks that people of color and low-income communities face from climate change pollution due to racist policies, these recommendations are crucial to achieving justice and better health outcomes.

To meet these goals, the states must continue to advance and prioritize their environmental justice work with and in communities. The transition to clean energy envisioned by the many state policies and the proposed federal policies will also need to be accompanied by strong enforcement both at the state and federal levels. State AGs have a big opportunity (and responsibility) to work with their state agencies to continue to ramp up investigation and enforcement in overburdened communities—especially in areas with multiple polluting facilities or with facilities that have shown a pattern of violations. It is a safe bet that with actions like the Formosa letter and growing departments in AG offices, there will be more news to come in this area.

Bethany A. Davis Noll is an expert in administrative and environmental law and an experienced litigator. She is Executive Director of the State Energy & Environmental Impact Center. Lisa Garcia is the Director of Fix, the Climate Solutions Lab at Grist, and a member of the Center's Advisory Council.