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By Derrick Z. Jackson

U.S. Environmental Protection Agency (EPA) Administrator Michael Regan officially announced earlier this month that the Biden administration will reinterpret the Trump administration's definition of what constitutes "waters of the United States" – waterways that are deserving of federal protection.

By Derrick Z. Jackson

U.S. Environmental Protection Agency (EPA) Administrator Michael Regan officially announced earlier this month that the Biden administration will reinterpret the Trump administration’s definition of what constitutes “waters of the United States” – waterways that are deserving of federal protection.

Trump’s definition was actually a reinterpretation (or rejection) of what the Obama administration delineated as waters worthy of federal oversight. Obama had sought to increase protections under the Clean Water Act, based on EPA science conducted under both his administration and that of his predecessor, George W. Bush. The agency’s researchers had determined that many wetlands and rain-fed intermittent and ephemeral streams were significantly connected to larger bodies of water than met the eye – and thus those tributaries warranted protection.

The Trump administration’s own scientific advisors agreed with Obama’s interpretation. No matter, the Donald’s EPA gutted the rule on behalf of industrial and agricultural polluters by removing half of wetlands and a fifth of streams and tributaries from protection. That shift amounted to an overall 25-percent drop in protected waters, according to the U.S. Army Corps of Engineers.

Noting that the Trump rule “is leading to significant environmental degradation,” Regan said he would work toward a “durable definition” of waters of the United States. And he begins that effort at a time of year when, precisely because of decades of federally enforced cleanups, New England’s most famous river – and once one of its most infamous— the Charles, is as magical as Florida’s Everglades.

The most stunning drama this spring along the banks of the Charles, walking distance from downtown Boston, has been a pair of mute swans. They nested at a landing alongside a walking and biking path in the Back Bay neighborhood and produced nine eggs. Seven hatched. By predation or sickliness, the number of cygnets eventually went down to five.

A pair of swans swims protectively around its chicks.

A pair of swans swims protectively around its chicks. Derrick Z Jackson

Then, without warning, the mother died on the nest. A necropsy showed neither foul play nor ingested foreign objects did her in. The father then took on the chicks, sometimes letting them ride on his back. Even though the number of chicks has dwindled down to two as of late June, the family continues to stop strollers and joggers in their tracks, as do more familiar families of geese and goslings and ducks and ducklings cruising the waters and grazing on the grass.

A couple miles up the river from downtown, black-crowned night herons and great blue herons patrol the banks, snapping up river herring that have been restored through federal and state efforts. During the herring run, gulls often wait at a dam in the suburb of Watertown to gobble up the fish that evaded the herons’ beaks.

Osprey occasionally fly in to dive for fish. Muskrats cruise the reeds as turtles bask on floating logs. As the river heads deeper into exurban Boston, bald eagles have been nesting, continuing their remarkable recovery from a point in the 20th century when pesticides had led to their disappearance in most states.

A gull and a black-crowned night heron snap up river herring.

A gull (left) and a black-crowned night heron (bottom) snap up river herring. Those sightings — as well as a family of mallards (right) are all signs that the Charles River clean up has been successful. Derrick Z. Jackson

All this fauna can now be seen in a river once so polluted that the locals joked about people needing tetanus shots if they fell in. The foul Charles even inspired the Boston anthem “Dirty Water” by the Standells. As recently as 1995, the river earned a D for water quality at its mouth in Boston Harbor, a result of uncontrolled human sewage, railyard oil pollution, industrial waste, and landfills that crept up right to the water’s edge.

The river’s revival began in the 1980s when conservationists and the EPA joined forces to sue the state of Massachusetts over the levels of wastewater pollution in the Charles. That resulted in federal judicial oversight of more than $4.5 billion of mitigation projects managed by the state, most notably a massive waste-treatment facility and the overhaul of 100 miles of leaky sewage pipes and storm drains. Local conservation groups also convinced the Army Corps of Engineers to protect 8,000 acres of wetlands in the Upper Charles watershed.

The cleanup of the Charles River has won global acclaim for bringing back an urban body of water back from unspeakable industrial and human waste. Derrick Z. Jackson

Today the water is technically swimmable most of the time — though one dares not touch the riverbed with bare feet as it is still laden with heavy metals. Recognized a decade ago as one of the world’s most well-managed rivers, the Charles is now a year-round wonder of wildlife. Last winter, its waters, as well as the Boston Harbor’s, were full of mergansers, scoters, goldeneye, eiders, bufflehead, and loons.

It is the protection of the Charles’ watershed that EPA Administrator Regan should keep in mind as he sets forth to protect more American waterways. Despite accounting for fewer than six percent of the United States landscape, freshwater scientists consider wetlands to be precious jewels of the ecosystem. These marshes and swamps, where plants grow thick in soil saturated with water, are natural traps and filters for runoff and sediment. They also provide nurseries for aquatic life.

A muskrat swims in Great Meadows National Wildlife Refuge in Concord, Massachusetts.

A muskrat swims in Great Meadows National Wildlife Refuge in Concord, Massachusetts. Scientists have found wetlands to be critically connected to the health of larger bodies of water, like the Charles. Derrick Z. Jackson

It is also the part of the ecosystem that industry and factory agriculture continue to plow over and foul when they can get away with it. Consider the ill-fated Foxconn electronics plant in southern Wisconsin. After promising 13,000 jobs in 2017, the state gave the company a sweetheart deal of billions of dollars in tax breaks, as well as waivers to fill in 38 acres of wetlands to build their facility. The company now is only pledging 1,500 jobs while flooding and erosion risks have risen in the region because of the wetland loss.

In advance of this month’s announcement, Regan told a House committee in April that, while Trump went too far in his reinterpretation of the waters of the U.S., the administrator was not going back “verbatim” to the Obama-era rules. The statement was a clear effort to placate the farm lobby, which has unfurled ridiculous exaggerations that the Biden EPA would patrol every ditch to see if each is connected to rivers.

While it is politically understandable that Regan must get, as he said, “input from a wide array of stakeholders,” federal science nevertheless does not quibble about the interconnectivity of our waters.

As he gathers input, perhaps a trip to Boston, to gather input from the swans, herons, and herring, is in order. They are illustrating the importance of healthy watersheds and well-managed waterways via their nesting near the Charles, in their gathering along banks to feed, and by making their spring runs up the river.

Two swan chicks on the Charles River with their father.

Two swan chicks remain on the Charles River with their father as of late June. Derrick Z. Jackson

Reposted with permission from Grist.

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People gather in front of a church before participating in a national mile-long march to highlight the push for clean water in Flint on Feb. 19, 2016 in Flint, Michigan. The march was organized in part by Rev. Jesse Jackson. Bill Pugliano / Getty Images

By Derrick Z. Jackson

No punishment has yet fit the crime of the Flint water crisis, complete with its child poisoning and lethal outbreak of Legionnaire's disease. After a prior investigation fell apart in 2019, Michigan state prosecutors unveiled a slew of fresh charges against nine figures involved in the fateful penny-pinching move to switch Flint's water supply from Lake Huron to the Flint River in 2014. The river's waters, made corrosive from decades of industrial pollution, ate at Flint's old water pipes, releasing lead into drinking water and into the brains of thousands of children.

By Derrick Z. Jackson

No punishment has yet fit the crime of the Flint water crisis, complete with its child poisoning and lethal outbreak of Legionnaire’s disease. After a prior investigation fell apart in 2019, Michigan state prosecutors unveiled a slew of fresh charges against nine figures involved in the fateful penny-pinching move to switch Flint’s water supply from Lake Huron to the Flint River in 2014. The river’s waters, made corrosive from decades of industrial pollution, ate at Flint’s old water pipes, releasing lead into drinking water and into the brains of thousands of children.

Lead is a neurotoxin with irreversible effects and is not safe to ingest at any level. The New York Times and Education Week reported in 2019 that the percentage of Flint’s school children who qualified for individualized special education services more than doubled from 13 percent before the crisis to 28 percent after. Add to those victims, the one dozen people who did not survive their bouts with Legionnaire’s disease, a type of pneumonia that scientists linked to the water supply switch. The PBS program Frontline determined in 2019 that a total of 115 Flint residents had died of pneumonia during the outbreak, suggesting deaths attributed to Legionnaire’s had been undercounted, potentially by up to a factor of nearly 10.

Seven of the nine defendants — which include former state health and communications officials, former state-appointed emergency managers, and an ex-Flint public works manager — are staring down 5 to 15 years in prison for crimes including involuntary manslaughter and perjury. Former Michigan Governor Rick Snyder, however, only faces two relatively minor counts of willfully neglecting to intervene in his underlings’ incompetence and failing to adequately protect the public against disaster.

In theory, Snyder could end up in prison for a year, and prosecutors say it is possible he could face more charges. Without them, he would be getting off easy for being asleep at the wheel during one of the greatest instances of environmental injustice in recent American memory.

Or was he truly “asleep”? Snyder’s excuse during the crisis and ever since is that he never knew enough to stop the falling dominoes of decisions and cover-ups happening underneath him. Yet plenty of circumstantial documentation begs the contrary.

The City of Flint switched its water supply to the Flint River in April 2014. Snyder testified to the House Committee on Oversight and Government Reform in March of 2016, saying it was not until October 2015 that he learned that Flint’s drinking water had dangerous levels of lead and not until early 2016 that he became aware of the Legionnaire’s disease epidemic. “As soon as I became aware of it,” Snyder said, “we held a press conference the next day.”

However, Tim Walberg, a congressman from Michigan and member of the House Oversight Committee confronted his fellow Republican with documents indicating that senior state environmental and communications officials were emailing about concerns regarding a Legionnaire’s outbreak in Flint back in March 2015.

The Detroit Free Press, reporting on documents obtained by Progress Michigan, a watchdog group, cited a March 10, 2015, email from the environmental health supervisor of Genesee County, where Flint is the most populous city, saying that the dozens of Legionnaire’s cases diagnosed at the time “closely corresponds with the timeframe of the switch to Flint River water.” (The bacteria that causes Legionnaires is naturally occurring in many water systems across the country, and one water expert believes the switch over likely exacerbated an existing bacterial issue with the supply.) The supervisor characterized the epidemic as a “significant and urgent public health issue” and said the information was “explicitly explained” to Snyder’s environmental quality officials.

This month, the online investigative news site The Intercept detailed a series of back-and-forth phone calls dating back even earlier, to October 2014, between Snyder and his chief of staff Dennis Muchmore. Those calls occurred at the same time Muchmore was in dialogue with top state health officials, which included a phone call with someone at the Michigan Health and Hospital Association. A special prosecutor characterized that call as “presumably about the outbreak.” That call took place more than a year before Snyder told Congress he had found out about the deadly bacteria.

That same month that General Motors realized that the switch away from the Huron River was corroding new engine parts at its Flint plant. How much logic — or humanity — should it have taken to proactively wonder what the water was doing to residents, especially children, given what it was doing to car parts?

The Detroit Free Press reported that Valerie Brader, senior policy adviser and deputy legal counsel to Snyder, wrote other top aides in an October 14, 2014, email that Flint’s water was “an urgent matter to fix,” and that the supply should switch back to Lake Huron water delivered via Detroit’s regional system. Michael Gadola, then Snyder’s chief legal counsel, responded: “My Mom is a City resident. Nice to know she’s drinking water with elevated chlorine levels and fecal coliform.” Gadola, who today is a Michigan state appeals court judge, agreed Flint “should try to get back on the Detroit system as a stopgap ASAP before this thing gets too far out of control.”

Yet somehow Snyder allegedly knew little or nothing of these discussions swirling about him. Two major reports have concluded the buck stopped with him. A Flint Water Task Force report, which Snyder himself commissioned, said in 2016 that while the state’s environmental agency bore “primary responsibility” for causing the Flint water crisis, Snyder bore “ultimate accountability” for decisions coming out of his office.

Then a 2018 report by the University of Michigan’s School of Public Health concluded Snyder bore “significant legal responsibility” for failing to heed citizen complaints at the outset of the crisis, issue a timely emergency declaration, and wrest control from negligent state environmental and health officials. “Flint residents’ complaints were not hidden from the governor,” the report’s authors wrote. “He had a responsibility to listen and respond.”

Snyder, however, has been so unscathed by what happened in Flint that Harvard’s Kennedy School of Government awarded him a prestigious research fellowship in 2019. But howls from Flint, and an online protest petition started by a Kennedy School alum and signed by nearly 7,000 people forced Snyder to withdraw from the fellowship two days after it began.

The renewed spotlight on Snyder’s role in the water crisis comes at a critical time for those who work for environmental justice. Newly inaugurated President Biden has, on paper, given it unprecedented prominence in his federal agenda. Many nominees for his Cabinet have scored significant victories for communities dealing with pollution, including his nominee for attorney general, Merrick Garland, who would oversee the creation of the first environmental and climate justice unit within the Department of Justice.

Snyder’s blithe attitude about Flint symbolizes the urgency with which a Biden administration must make it clear to politicians and corporations that it is no longer business-as-usual to dump on poor people and communities made up predominately of people of color. At the federal level, Biden promises a Justice Department that will “hold corporate executives personally accountable — including jail time where merited.” That is a heavy lift in a nation where corporate executives largely continue to live large no matter how many faulty planes drop out of the sky, how many defective cars kill people, how many predatory banking practices cause people to lose their homes and life savings, and how many particles of pollution causes cancer and brain damage. CEOs might get fired, they might get fined, but they rarely face bars.

A paper last year by legal scholars from the University of Pennsylvania and the University of Southern California noted “the near disappearance of individual liability, especially for top executives,” in corporate crimes over the last decade. It concluded that “an enforcement regime that is limited in its ability to levy fines at an optimal level must rely on other forms of punishment — such as the imposition of liability on guilty individuals and the top executives who facilitate their crimes — to increase deterrence. Only then will corporate criminal punishment be seen as more than a cost of doing business.”

Similarly, Cary Coglianese and Sierra Blazer of the Penn Program on Regulation at the University of Pennsylvania Law School, co-wrote a 2019 op-ed in The Hill during the height of the scandals surrounding Boeing, after two of its 737 Max planes crashed, killing 346 passengers and crew members. Donald Trump’s Department of Justice had prosecuted lower-level technical pilots for fraud related to the federal approval process of the Max. “Prosecutions of lower-level employees would do nothing to assure the public that incentives at the very top of the organization align with passenger safety,” the pair wrote.

This month, Trump’s Justice Department announced a .5 billion settlement with Boeing over the fraud charges. No executive went to jail. Nadia Milleron, who lost her daughter, Samya Stumo, summed up the outcome for the Washington Post: “This is just a blip for Boeing.”

To-date, the Flint water crisis has been a blip for Snyder. Environmental injustice nationally will also remain a blip, if governors and CEOs can keep throwing underlings under the bus while riding off in their limousines. As it now stands, the prosecution of lower-level employees will not assure Flint residents who live with the effects of being poisoned that the law is aligned with their safety.

Reposted with permission from the author and Grist.

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U.S. Sen. Kamala Harris (D-CA) speaks at a hearing of the Judiciary Committee on June 11, 2020 in Washington, DC. Carolyn Kaster-Pool / Getty Images

By Yvette Cabrera

This story was originally published on Grist on July 30, 2020

By Yvette Cabrera

This story was originally published on Grist on July 30, 2020

Fifteen years ago, Kamala Harris — San Francisco’s District Attorney at the time — created an environmental justice unit in her office. The goal was to go after the perpetrators of environmental crimes that were hurting some of the city’s poorest residents.

The state attorney general’s office had emphasized the need for state and local law enforcement to step up because of a void left by federal authorities in the Bush administration who were busy rolling back environmental protections. “One of the best tools out there to go after polluters is to go after them on a criminal basis,” a spokesperson for then–State Attorney General Bill Lockyer told SFGate in 2005. Across the country, communities burdened by pollution and contamination have been calling for that type of accountability at the federal level for decades.

Now, even as the Trump administration continues to aggressively roll back environmental regulations, that dream has a better chance of materializing. Harris, as California’s junior senator, is fighting for a comprehensive piece of legislation that will give vulnerable communities the tools they need to address environmental disparities. On Thursday, Harris plans to introduce a companion bill in the Senate to the Environmental Justice for All Act introduced earlier this year in the House of Representatives by Democrats A. Donald McEachin of Virginia and Raúl M. Grijalva of Arizona.

“Environmental justice is interconnected with every aspect of our fight for justice. From racial justice and economic justice, to housing justice and educational justice, we cannot disentangle the environment people live in from the lives they live,” Harris told Grist in an email. “These crises we are experiencing have exposed injustices in our nation that many of us have known and fought our entire lives.”

The Senate bill, whose lead cosponsors are Democrats Cory Booker of New Jersey and Tammy Duckworth of Illinois, acknowledges how factors such as segregation and racist zoning codes have rendered communities of color more vulnerable to the effects of climate change and left them with limited resources to address ongoing environmental health disparities. To address this, the act aims broadly to meaningfully engage impacted communities in government decision-making processes, such as federal permitting decisions for infrastructure projects, the creation of climate resiliency plans, and the transition to clean energy.

For more than two years, Grijalva and McEachin have worked alongside environmental justice advocates to address these inequities during the drafting of the act. That work was underway well before the COVID-19 pandemic struck and before the death of Minneapolis resident George Floyd at the hands of a police officer this spring, which unleashed massive protests calling for the country to reckon with systemic racism. While the health crisis and movement for racial justice has put vulnerable communities in the spotlight, Grijalva told Grist that their aim was always to deliver a comprehensive environmental justice bill that could help these communities.

“The premise was … that we were going to deal with the systemic root causes, with the systemic solutions, not just cover up the problem or change one little thing or create another task force,” said Grijalva, who chairs the House Natural Resources Committee. “There had to be codified into law a systemic response to that systemic racism that created the situation.”

The Environmental Justice for All Act would amend the Civil Rights Act to allow private citizens and organizations that experience discrimination to seek legal remedies when a program, policy, or practice causes a disparate impact. It would also require federal agencies to consider health effects that might compound over time when making permitting decisions under the federal Clean Air and Clean Water acts. In addition, it would fund research on and programs to reduce health disparities and improve public health in disadvantaged communities. Under the act, new fees on oil, gas, and coal companies would go toward a fund to support workers and communities transitioning away from fossil fuel jobs. Finally, the act also intends to codify and make enforceable a longstanding executive order on environmental justice that then–President Bill Clinton signed in 1994.

McEachin told Grist that the House and Senate bills acknowledge the racist roots of environmental burdens in low-income communities and communities of color. “This is a moment in time that does not just focus on police brutality, does not just focus on confederate memorabilia. The focus is on 401 years of racial injustice in this nation, and part of that has to be environmental justice,” said McEachin. “If we’re going to achieve a clean energy future, climate justice, and relief for those communities, the frontline community has to be the very centerpiece of that plan.”

The Black Lives Matter movement has helped the act gain momentum toward passage in the House — Grijalva is optimistic that he’ll be able to bring the bill to the floor of the House for a vote by September. Some of the act has also been incorporated into other Democratic proposals, like the 538-page climate plan recently released by the House Select Committee on the Climate Crisis. Some of the act’s proposals are also reflected in the environmental justice plan released by presumed Democratic presidential nominee Joe Biden, said Grijalva.

For example, Biden plans to revise and reinvigorate Clinton’s executive order that directs federal agencies to review programs that may have disproportionately high or adverse health and environmental effects. Historically, the agencies have been inconsistent in addressing environmental justice within their strategic plans.

Environmental advocates who were involved in the creation of the House bill expressed enthusiasm for Harris’ sponsorship of the bill in the Senate and said that the legislation could be a game-changer for frontline communities. Kerene Nicole Tayloe, director of federal legislative affairs for the New York City–based nonprofit WE ACT for Environmental Justice, said that the consideration of cumulative health impacts during permitting processes would be particularly important, especially in states like Louisiana that don’t have meaningful environmental legislation on the books.

“Having something like the EJ for All bill, to consider cumulative effects in Cancer Alley and all of those kinds of places that have long been a dumping ground for companies and industry, I think would start to give communities the legal protections they need and put the tools in place,” said Tayloe.

Angelo Logan, who is the campaign director of the Los-Angeles-based Moving Forward Network and who was also involved in crafting the House bill, told Grist that he hopes the act sets the stage for more community involvement in creating legislation at the local, state, and federal levels. “I think there’ll be a dramatic change, a complete positive impact on communities that are the most impacted by environmental racism,” said Logan. “And the multiplying effects that it would have on communities is tremendous.”

As a presidential candidate, Harris made acting on climate change a top priority. Last year, while running for president, she unveiled a climate equity plan with Representative Alexandria Ocasio-Cortez of New York and created a climate agenda that would address the climate crisis and environmental injustices while building a clean economy with well-paying jobs. As California’s attorney general, she defended the state’s landmark climate laws in court and sued Chevron U.S.A. Inc. for damaging the environment. Holding polluters accountable will be critical moving forward, and the Environmental Justice for All Act will help communities do just that, Harris told Grist via email.

Race, she noted, is the No. 1 predictor of where polluting facilities in America are located. And 70 percent of Americans who live in the highest air pollution areas of our country are people of color. “These disparities were in part intentionally created and so we must intentionally address them,” said Harris. “That’s what this bill does.”

Reposted with permission from Grist.

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