The Bureau of Environmental Justice and Change From the Top.

• Author: Rutherford, Mark

Table of Contents Introduction I. What Are the Strengths and Limitations of a State Government-Run Environmental Justice Enforcement and Litigation Office in Achieving the Goals of Environmental Justice? A. Strengths of the Bureau of Environmental Justice B. Limitations of the Bureau of Environmental Justice II. Are There Top-Down Alternatives to the Environmental Justice Attorney General Model That Might Generate More Public Participation? A. Community Action Agency Model B. General Environmental Justice Office C. "Offices of Goodness" III. Lessons Learned From Contrasting Environmental Justice With Other Policy Concerns Conclusion Introduction

On February 22, 2018, California Attorney General Xavier Becerra announced the establishment of a Bureau of Environmental Justice (Bureau) within the Environment Section of the California Department of Justice. (1) The Bureau's stated mission is to protect "people and communities that endure a disproportionate share of environmental pollution and public health hazards," which are often referred to as environmental justice communities. (2) The Bureau will work to ensure compliance with the California Environmental Quality Act (CEQA), remediate contaminated drinking water, address issues of environmental lead exposure, introduce enforcement actions to penalize illegal air and water polluters, and challenge actions taken by the federal government that worsen public health and environmental quality. (3) California Assemblymember Eduardo Garcia introduced a concurrent bill, AB 2636, to "provide additional support for [Attorney General] investigations and litigation intended to protect communities that endure a disproportionate share of environmental pollution." (4)

Previous failures by the federal and state governments to allocate environmental enforcement resources to minority communities may indeed be a leading cause for the inequity in environmental quality between minority and nonminority neighborhoods. (5) Without question, it is an important and laudable step to dedicate state resources to rectifying the disproportionate impacts of pollution and improving environmental quality in disadvantaged communities. In his comments at the announcement of the creation of the Bureau, Assemblymember Garcia aptly stated as such: "[j]ustice should not be reserved for the communities who can afford to investigate and litigate parties that break the law." (6) However, prominent environmental justice lawyer and commentator Luke Cole has criticized both litigation and top-down approaches as being ineffective and perhaps counterproductive as remedies to the problem of environmental justice. Cole argues that environmental justice is ultimately a problem of political and economic inequities exacerbated by a lack of participation in environmental decisionmaking by affected communities. (7) This presents a clear paradox: while the environmental justice enforcement that the California Attorney General's office is poised to provide is likely needed, top-down and litigation-focused approaches might disempower those communities, ultimately working against the goal of further self-determination in community environmental decisionmaking. In Part I, this paper will explore the genuine benefits an environmental justice-focused bureau of the Attorney General's office could provide, as well as its serious shortcomings.

If, as commentators such as Cole argue, litigation and top-down approaches are ineffective or counterproductive to addressing the root causes of environmental injustice, what options remain for policymakers who genuinely want to address the problem of environmental justice? Recent examples of major environmental injustices, such as the Flint Water Crisis, might signal the gravity of environmental justice issues to policymakers and encourage them to harness their moral obligation to prevent environmental injustice before it happens. To such policymakers, the costs of waiting for environmental justice communities to organize themselves to address the problems that affect them are morally, and perhaps politically, too high. Part II will address whether, in light of these costs, any other top-down public alternatives to the attorney general model of increasing environmental quality in environmental justice communities might more effectively address the root causes of environmental injustice.

Finally, Part III will address whether environmental justice, as a policy concern that is symptomatic of a democracy deficit, is unique in its tension with top-down and litigation-focused approaches as compared to other policy concerns. Environmental justice is similar to other policy concerns in that its regulatory response requires a delicate balance of technocracy and democratic accountability, as well as a leveling of the playing field upon which parties vie for influence. On the other hand, environmental justice differs from other policy concerns where the interested parties each have natural sources of leverage over one another, such as workers' rights.

1. What Are the Strengths and Limitations of a State Government-Run Environmental Justice Enforcement and Litigation Office in Achieving the Goals of Environmental Justice?

   If the state wants to alleviate the harms caused by environmental injustices in poor and minority communities, and if environmental injustices are caused or exacerbated by ineffectual enforcement, it makes sense to put more resources into environmental enforcement. Indeed, as Professor Richard Lazarus argues, "inequities in the distribution of enforcement resources" might lead to "less generous cleanup remedies, lower fines, slower cleanups, and more frequent violations of pollution control laws in areas where minorities reside in greater percentages than nonminorities." (8) If so, why not make affirmative efforts to reduce the inequity in the distribution of enforcement resources? A hypothetical Bureau could force cleanups, put bad actors on notice, and disincentivize indiscriminate dumping of pollutants. On the other hand, improving enforcement efforts would likely only play a limited role in stopping bad permits from being issued in the first place. Further, it would play no role in helping communities organize themselves to prevent environmental injustices from occurring in the future, and might even play a negative role in instances where emitters are technically in compliance with permits but continue to harm environmental justice communities regardless. In short, a state-government-run, litigation-focused Bureau of Environmental Justice can effectively provide sorely needed relief for some symptoms of environmental injustice, but cannot effectively address its causes.

   There is no silver bullet for environmental justice issues, and, to be fair, state officials never publicly claimed that creating the Bureau was an attempt to solve all of California's environmental justice issues in one fell swoop. If preventing environmental injustices is a serious governmental concern, however, it is still important to recognize the limitations and strengths of a Bureau of Environmental Justice so that policymakers can craft complementary or alternative solutions in the future.

   1. Strengths of the Bureau of Environmental Justice

      In many instances, the Bureau should be able to alleviate the most visible effects of environmental injustices. When successful, the Bureau could mandate environmental cleanups, enjoin continued pollution, and perhaps even create abatement funds that are channeled back into communities suffering from pollution. Effective enforcement also signals to polluters that the state government is taking environmental justice seriously, and creates incentives for better self-monitoring of potential harm-causing activity.

      As an elected official, the California Attorney General wields a popular mandate. (9) Arguments put forward by the Attorney General carry forceful weight in California courts, and through those arguments the Attorney General can play a role in expanding California law at the margins. Actions taken by the previous Attorney General, now-U.S. Senator Kamala Harris, show how Attorney General Becerra and the Bureau can wield such persuasive authority in the environmental justice context. (10) During Senator Harris's time as California Attorney General, her office "[promoted] interpretations of CEQA"--the California Environmental Quality Act, California's cousin to the federal National Environmental Policy Act (NEPA)--"that would require environmental justice impacts to be more explicitly addressed, despite many years of courts limiting the analysis of economic and social impacts under CEQA." (11) This "aggressive" and "unprecedented" interpretation "requires [CEQA] environmental review documents to analyze environmental justice-related impacts." (12) Attorney General Harris's arguments expanded CEQA's explicit requirement to consider a project's "social" impacts into an implicit requirement to consider its environmental justice impacts. (13) This was manifested in the Attorney General pushing San Diego County to consider, for example, whether a San Diego County Regional Transportation Plan unjustly favored freeway expansion over mass transit expansion to the detriment of air quality for local residents. (14) In another instance, the Attorney General pushed Riverside County to incorporate environmental justice impacts in its CEQA environmental review process. (15) Specifically, Riverside County was told that a project's addition of 1,500 diesel truck trips per day would exacerbate disproportionate impacts on the surrounding Hispanic and low-income residential community "who already suffer[ed] from substantial exposure to toxic air contaminants." (16)

      It is not hard to imagine this iteration of the Bureau taking a similar position on incorporating environmental justice impacts into the CEQA environmental review process. Further, it may also advance...