Electric Vehicles as Environmental Justice

Lisa Benjamin, Law Professor at Lewis & Clark Law School, joins Gus to discuss many of the topics addressed in her recent article, "EVs as EJ". Together they examine charging infrastructure for electric vehicles, mining of rare minerals in the United States and the 150 year old statute that governs this activity, and the positive and negative climate and environmental justice impacts that EVs bring.

Follow Lisa Benjamin on Twitter @DrLisaBenjamin
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Links
EVs as EJ by Lisa Benjamin

Transcript

Disclaimer: This transcript is auto-generated and has not been thoroughly reviewed for completeness or accuracy.

[00:00:00] Gus Herwitz: Welcome to Tech Refactored, a podcast in which we explore the ever-changing relationship between technology, society, and the law. I'm your host, Gus Herwitz, the Menard Director of the Nebraska Governance and Technology Center. Today I'm speaking with Professor Lisa Benjamin.

[00:00:27] Lisa Benjamin: I'm Lisa Benjamin. I'm an associate professor at Lewis and Clark Law School. 

[00:00:32] Gus Herwitz: Professor Benjamin is a globally recognized expert and scholar in energy, climate change and corporate law. She has law degrees from the University College London and the University of London.

And received her PhD from the University of Lester. In addition to her academic work, she has served on many of the most important boards and commissions relating to climate change, including serving as a member of the compliance committee of the United Nations Framework Convention on Climate Change.

Our discussion is prompted by her [00:01:00] recent article, "EVs as EJ", which looks at the impact of electric vehicles on environmental justice communities. As is so often the case, the impacts of new technologies are not evenly distributed, even where the impacts are overwhelmingly positive, there are usually complex trade offs and interactions.

Professor Benjamin explores these trade offs in her article, and we're going to explore some of them with her in this discussion. From the challenges of citing charging infrastructure for electric vehicles to the relationship between national security concerns and environmental justice concerns, that has brought new mining of rare earth minerals to the states and the 150 year old statute that governs much of that activity and will also talk about the importance of trust in fortune consensus and the unfortunate lack of trust that often exists between competing interests. But as is often the case when two law professors have a conversation. We're going to start with a question about the law

administrative [00:02:00] law. What, what, what is administrative law? And I think a lot of people know what environmental law is and have some sense of environmental justice, but administrative law always floats in the background of legal discussions. So could, could you tell us a a little bit about the role of administrative law, what it is and its importance to environmental law discussions?

[00:02:19] Lisa Benjamin:  Sure, and I will, One of the first questions that students ask me in my administrative law class, and that's one of my first slides. So administrative law is basically the law that governs the activities of federal administrative agencies. And it is actually codified in the United States in the Administrative Procedure Act.

And so there's a a statute that actually guides federal agencies as to how they should basically go about their business regulating. So how they should promulgate a rule or how they should conduct adjudications. So disputes that agencies administrate. And also it has a very famous provision on how [00:03:00] you can, uh, judicially review an agency's decision.

And so most students have heard of our arbitrary capricious review. And so that is the standard against which administrative agency actions are normally judged. It's one of the grounds of judicial review. 

[00:03:15] Gus Herwitz: It, it turns out that when we're thinking environmental law, where anything that a regulatory agency does, the, the, uh, Food and Drug administration, fda, uh, the epa, the National Highway Transportation Safety Administration, uh, the Federal Aviation Administration, all of these things that we think of, Food and drugs or the environment or highways or uh, uh, airplanes.

It's all governed by this thing called administrative law that, uh, is, uh, there in the background. 

[00:03:43] Lisa Benjamin: Yep, that's right. Once you see administrative law, you can't unsee it. It really is everywhere. And because federal agencies have such, um, an extensive regulatory reach, um, this is the law that sort of mandates how they go about regulating the issues that they have a statutory mandate to.[00:04:00] 

[00:04:00] Gus Herwitz: So you're working on this paper right now, uh, EVs as EJ electric Vehicles as Environmental Justice. And I'll just start by asking electric vehicles. There's a intuitive understanding, I think a lot of people have that these are electric vehicles. They're, they're clean, they're not burning gasoline, so they're good for the environment.

Are electric vehicles good for the environment? 

[00:04:22] Lisa Benjamin: So first on that point, there's actually been a few studies which I, um, had the pleasure of reading for this paper because I didn't really know a lot about the public perceptions around electric vehicles. I see quite a few of them in my neighborhood, but I live in a fairly affluent neighborhood, which is near the law school where I teach in, but there's really differential penetration of electric vehicles across the country.

And this study that I read said actually a sign. Percentage of Americans, I think it was between 35 to 40%, didn't actually think that electric vehicles had environmental benefits. And so, and about 40% of Americans didn't know anyone or themselves had not [00:05:00] driven in an all electric vehicle. And so it's actually really different, um, in different parts of the country.

In the penetration of electric vehicles themselves are, um, really patchy across the different states. So in relation to their environmental benefits. From cradle to grave, electric vehicles are cleaner in that they have reduced greenhouse gas emissions. Once they are on the road, they're often referred to as zero emission vehicles or ZEVs.

They have zero emissions from their tailpipe, and so you don't get the kind of. Pollutants that you would get out of a traditional internal combustion engine. But the component parts that go into electric vehicles do have greenhouse gas emissions associated with them. So if you look at the life cycle of EVs, There have to be minerals that go into the batteries that are the engine, basically of the electric vehicle.

And those have to be mined or imported. And the process of mining those minerals is quite a dirty process, which I [00:06:00] look at in the paper. In addition, they have to be manufactured in a factory, and so that is quite greenhouse gas intensive. In fact, a little bit more greenhouse gas intensive than manufacturing a traditional internal combustion engine car.

But even with all of those combined, it is actually cleaner and more environmentally friendly to have an electric vehicle, and it's even more environmentally friendly if the electricity that you use to charge the vehicle is basically clean electricity. So instead of having emissions out of the tailpipe, like a traditional internal combustion engine, Ev sort of shift the emissions from the tailpipe up to the power plant that produces the electricity, that then charges the battery that's in the electric vehicle.

And so if that electricity source is clean, then electric vehicles might be able to reduce the transportation emissions in the United States by over 80%. 

[00:06:53] Gus Herwitz: And and what portion of emissions do vehicles in the United States? 

[00:06:58] Lisa Benjamin: It is roughly about a [00:07:00] third, and so it is just above the emissions from the domestic electricity sector.

So transportation is now the largest source of greenhouse gas emissions in the United States. And so if both the electrification of vehicles can take place at a swift pace, And the source of the electricity to charge those cars is cleaner than it is then that could actually put the US on track for its targets to reduce emissions by 40%, which would be a huge improvement over even the picture last year of what it looked like in terms of the trajectory of US greenhouse gas.

[00:07:37] Gus Herwitz: What accounts for the successful uptake to date of electronic, I keep saying electronic vehicles of electric vehicles, um, and I, I guess I'm characterizing it as a successful uptake. Is it a successful uptake to date?

[00:07:50] Lisa Benjamin: Uh, it, the penetration was quite slow in the past couple of years, and then really in the past year or two, they really took off and I think a lot [00:08:00] of it was Tesla and the sort.

Cool factor is the only thing I could call it really with, um, Tesla cars and particularly, um, among wealthier families, it really has been a consumer shift in preferences towards electric vehicles. And of course the tax credits help a lot. And so one of my Uber drivers was driving a Tesla and he was like, Yeah, I got these great tax credits, which meant I could afford this and Teslas are not cheap.

And I was like, Wow, that's a really great credit. And so. In addition to the Tesla cool factor, I think there has also been a lot of help over the past couple of years with tax credits. And then frankly, it has penetrated industries. So the auto manufacturers recognize that consumers like them. There's a.

Big market for people to buy electric vehicles, particularly as the price of gasoline has skyrocketed. And during the pandemic, car sales really slowed. I mean, anyone who's been looking for cars has um, seen how [00:09:00] expensive they have become recently combined with high gas prices. Really are combination of factors that would lead a consumer if they can get tax credits and can afford it to buy an electric vehicle.

So industry recognizes that this is a growth area where they have been pretty stagnant with the traditional internal combustion engine for a few years. And so industry's really onboard. And so that means almost every ad I see for cars now it's an electric option, which has been a huge change. And even just watching the ads on TV in the past year, I've recognized.

The auto industry is really on board as well.

[00:09:34] Gus Herwitz: You've already identified a couple of distinct communities in the discussion, just in the last three, four minutes. You note that you and I, I as well live near a, a law school in a relatively, uh, affluent community. Tesla's have this cool factor that I think is.

Probably primarily cool to more affluent, uh, individuals. Tax credits are really great, but generally go to wealthier individuals who [00:10:00] are able to make purchases large enough to garner them. And industry. There are a lot of communities that are being left out here and I wonder if you have any reflections or you can say anything about the uptake or interest in.

Vehicles in a disadvantaged, marginalized other communities.

[00:10:17] Lisa Benjamin: Yeah, so I do know just in, uh, Portland, I've seen initiatives to try to at least get marginalized communities to be interested in, aware of, um, credits for purchasing electric vehicles because the penetration those neighborhoods is much less than in more affluent neighborhoods.

Partly for the reasons you explain that. Tax credits really work if you earn enough. To be able to get a tax credit, and particularly for tribal communities, they don't pay federal income tax, and so that's not helpful for them. So part of it is definitely initiatives in Portland to actually go into marginalized communities and have road shows with EVs and talk to community members about the benefits of [00:11:00] this.

And of course, To go along with that, there have to be charging stations in these communities to allow these communities to be able to charge their cars. And even like Tesla's proprietary in terms of their charging stations, and those in and of themselves are quite expensive. And so there hasn't been enough uptake within disadvantaged communities.

But one of the sort of, um, programs. Is happening in California, which I think is, uh, really interesting and could be replicable across other states is instead of tax credits to give low income households, grants, and so basically that's like a cash rebate. So that cash rebate increases the lower your income is against the purchase of an electric vehicle.

And so I think though there are. Incentives and ways to get communities that that EV market has not traditionally made incursions into to be able to afford electric vehicles as well as the charging infrastructure around that. And I will say part of it is also auto manufacturers. So in other large developing [00:12:00] countries like China that had decided a couple of years ago before the US to really push the manufacturer and sale of electric vehicles, the government has subsidized much smaller models of EVs, and so those smaller models are of course much more affordable.

So having sort of a Ford F-150 truck as an electric vehicle is great, but they're still really expensive, and so it's really important for auto manufacturers to be able to diversify and have smaller, more affordable models for communities as 

[00:12:28] Gus Herwitz: well. Do you know what's accounted for the, the lack of, I guess not even uptake, just development of smaller ev.

[00:12:36] Lisa Benjamin: I, I don't know. I would assume that in the United States, I've lived in several different countries and I'm always shocked by the size of cars in the United States. There definitely is a preference, let's say, compared to Europe for larger model cars in the US generally, and so there had been a real push.

By the auto industry to sell and market and manufacture, um, SUVs. [00:13:00] And so everyone probably remembers and we're still living with that. Um, SUVs are very commercially popular in the United States compared to other countries. And so that sort of dictated consumer preferences and. So you don't see a lot of small cars on the road in the United States generally, you see them much more in other countries in Europe in particular.

So part of it is sort of auto manufacturers and consumer preferences shifting. And then another thing I will say, just on a consumer preference side, this study that I read, which was really fascinating in terms of public perceptions of EVs, Part of it is also the acceleration rate. And so male consumers are um, much more willing to buy an EV if it accelerates really quickly.

And so I'm laughing cuz it just, I don't care about acceleration, but it's also like you have to sort of meet the demand, right? And you have to be able to manufacture cars that people are willing to buy. And I think the perception of acceleration in electric vehicles is that they were slower. And so models and [00:14:00] technologies catching up to that as.

[00:14:01] Gus Herwitz: Oh, that, that's fascinating. I, I know I'm, I'm one of those males who likes acceleration. There. Go, I don't have an, uh, uh, an ev but I think Tesla has, uh, uh, insane mode, they call it, where he, you could zero to 60 in 2.8 seconds or something. And , um, That's, uh, interesting that there's this perception that they are slower in acceleration because they, they're actually a whole lot faster.

[00:14:25] Lisa Benjamin: Mm-hmm. , There's also weird perceptions that the batteries might catch on fire. I mean, there's a lot of misperceptions among the American public, and so as we see the gating and popularity, I think consumer preferences will shift and shift quickly because they are a lot of fun to. So they are quite cool and they're really quiet and they're neat.

So I think they also are gonna be attractive to consumers. 

[00:14:45] Gus Herwitz: Yeah. So the, the perception of batteries catching fire, I immediately jump to, well, internal combustion engines are powered by gasoline. Mm-hmm. , which is this highly flammable, toxic, dangerous fumes chemical that we just. [00:15:00] Bandy about all over the place.

Uh, that, that seems really surprisingly dangerous to me. But that, that brings me to another question, which you've started to queue up. It's not enough to have EVs. You also need to have the charging infrastructure in place in order to use EVs. And this, I think, brings us more directly to your, your current paper.

Can you talk a little bit about the role of the charging infrastructure in the EV ecosystem? 

[00:15:27] Lisa Benjamin: Uh, yes, there's um, a huge demand for charging infrastructure and so a lot of portions of the United States, particularly outside of cities, I would say, does not have sufficient charging infrastructure to charge all of the EVs that will be on the road.

And it's a kind of interesting process that is taking place. Consumers and industry are all on board to manufacture, buy these cars. And yet the basic infrastructure to be able to run that is lacking. And so that kind of shows you that the sort of pace of this acceleration has far exceeded [00:16:00] what people expected it to be, and that actually leaves the gap, which is problematic.

So one of the issues that people have with electric vehicles is what's called rang anxiety. You don't know how far your battery is gonna carry you. And you have to be really careful about figuring out where to get to a charging station. So people who have to drive long distances, it's really difficult for them to do that if there's not a sufficient penetration of charging infrastructure.

And so the bipartisan infrastructure law that passed last year was very intentional about providing funding to build infrastructure, including charging infrastructure. And so it's an opportunity to be able. Build this along, not only highways, but also to build some of this charging infrastructure in cumulatively disadvantaged communities, which is the definition that the Department of Energy gives to what I would call our traditional environmental justice communities.

And so that. Charging infrastructure can also help with the penetration and sale of electric [00:17:00] vehicles, as well as entice people who do travel long distances, either for work or for vacations to be able to buy an electric vehicle. And in addition to that, you need like good charging stations, . And so that's the sort of high level, fast charging infrastructure as opposed to sort of a charger that would take eight to 10 hours.

I mean, You don't wanna sit on a highway charging your car for age 10 hours. And so it's really important that, um, the infrastructure is built that is publicly accessible. There's also an issue about the different brands, and so Tesla, for example, has a proprietary charging infrastructure. You sort of need a converter, basically.

And so the kind of infrastructure, it's availability, how much it's gonna cost, all of that is really important to make sure that people not only buy, um, EVs, but the, that it doesn't become like a fad that goes away, that, you know, people can have the ability to use these cars for all of their transportation needs.

[00:17:56] Gus Herwitz: Thinking about your comment that the uptake [00:18:00] was faster perhaps than, uh, most people had expected. Uh, I think back to all the discussion wow. 10, 15 years ago about, uh, hydrogen as a fuel. Um, and there was a lot of discussion back then about, well, we need to have the infrastructure to distribute, uh, hydrogen to fueling stations before we can have these vehicles.

It strikes me that there's something different that's happened with EVs, which is you can charge 'em at your house. So, uh, you could install a charger in your house and you could charge up the ev even if there isn't a broader infrastructure out there, and you couldn't have done that with hydrogen. Um, I don't know of anyone who has a hydrogen plant in their house.

Um, how has the, the role of. Home charging and the ability to install a charger, an individual homeowner to install a charger in their, uh, their garage or their house affected the uptake. And in particular, has it done So in an equitable sort of way? I 

[00:18:57] Lisa Benjamin: think it's been huge in terms of the initial [00:19:00] uptake amongst certain communities of electric vehicles.

So if I just walk around my neighborhood, every EV that I see, um, that's parked outside of a house, has its own charging infrastructure connected to the. And so for middle and higher income families, it's affordable to have a charger that you can charge and you know, pay for it through your electricity bill.

Some of these houses also have solar panels, which are directly connected and charging. And so all that means that you have to be able to afford all of these add-ons. So that's not gonna be affordable. Um, to be able to buy the car and buy the charger and pay for the electricity at home and get a solar panel, um, that's a huge upfront investment for a family.

And lower income families are just not gonna be able to do that. And then of course, people who live in apartment buildings, You have to have like a shared charging, um, infrastructure. You can't put a solar panel on your apartment. And so other families who are renting, it's really difficult to convince your landlord to invest in all of these things if you wanna get an EV and your, you don't own your own [00:20:00] home.

So it's great for a certain community to be able to do that from home, but it means that the larger penetration. Equitable penetration of this technology is not gonna take place unless we have better public infrastructure around charging that's affordable. Although, I will say that long term, once you buy an EV and you're just using electricity to charge it, it's much more affordable than having a, a traditional internal combustion engine car because depending on the price of gas, it's, you know, you're just paying for the cost of the electricity to charge.

Or there's less maintenance as well for it. So I 

[00:20:33] Gus Herwitz: want to go back to a term that you, uh, used a few moments ago that I expect to continue to explore a bit. Um, you used a term environmental justice communities, and I expect most people listening are generally familiar with the idea of environmental justice and the concept of environmental justice.

But I wonder if the term environmental justice communities is as familiar. Can you explain what you mean when you talk about environmental justice communities.

[00:20:57] Lisa Benjamin: Yeah, so [00:21:00] the EPA, the Environmental Protection Agency, developed a working definition of environmental justice communities as low income communities and or communities of color.

They're not necessarily mutually exclusive. There are overlaps, but you can have a community of color that is not a low income community and still. Bears a disproportionate burden of environmental impacts. And so if we think about traditional environmental justice communities that have made the news, Flint, Michigan would be one of them with lead poisoning through water.

Another very infamous environmental justice community is Cancer Alley in Louisiana where there's a cluster of fossil fuel infrastructure built basically around traditionally black community and the. Health impacts including cancer, increased rates of cancer have been astronomical for those communities.

So EJ communities is sort of a broad term, and that's the working definition of it. It has advanced, um, over time. And so the [00:22:00] Department of Energy has developed a definition that is linked to disadvantage, and so they use DACs or disadvantaged communities, and the Department of Energy looks at 36 criteria for those communities.

They're not just geographic clusters of people. They can also be migrant farm workers, for example, that move around. But the criteria includes things like dependence on fossil fuel for the economy, and so that could be a coal reliant community where a coal plant has closed. It could be, um, a community that is located next to farms where there's a lot of, uh, pesticide and runoff from industry.

It could be a community that is a highway adjacent community and therefore, um, suffers from a lot of public pollution from cars on the highway. And so there are more sophisticated definitions of an EJ community now, but the traditional working definition is a low income community or community of color. 

[00:22:54] Gus Herwitz: So we've identified at least one environmental justice community that's [00:23:00] implicated by EVs. Um, are, are there other communities or other examples that you can bring up? 

[00:23:06] Lisa Benjamin: So, uh, the, one of the impacts or benefits that I look at in the paper and the paper is really exploring whether. EVs are positive or negative for environmental justice communities and with most, um, research, the answer's not so simple.

So EVs could be really positive for highway adjacent communities because the tailpipe emissions would be significantly reduced or eliminated, and that would lead to significant health benefits for those communities who were often black communities and communities of color because of the history of the sighting of highways near or through those communities.

but on the sort of earlier life cycle end of an electric vehicle is the mining of the critical minerals. And those critical minerals are found often in the Western United States, and many of them are located and not mined commercially, uh, very much at the moment. But there are plans to do [00:24:00] that domestically.

And so those critical minerals are, many of them are found near Native American land and Native American communities. Both traditional environmental justice communities because they have born a disproportionate burden of environmental projects and fossil fuel projects and not benefited from those projects.

But they're also slightly different from environmental justice communities in that they are sovereigns and so they have treaty rights. And specific rights around consultation that the federal government is supposed to 

[00:24:32] Gus Herwitz: respect. I know in the paper you talk a bit about the mineral rights issues and the legal framework in the United States.

Can you tell us a little bit about how those rights are allocated historically and some of the issues that that is creating today? Yeah, 

[00:24:47] Lisa Benjamin: historically they've been allocated pretty poorly. Um, so the idea of critical mineral mining is really interesting because there is now this huge push, which is a bipartisan push.

Both the Trump [00:25:00] administration and the Biden administration have been very clear that they want to prioritize domestic mining of critical minerals. A lot of that is because it is the national security issue, and these minerals are required in lots of new technology, including laptops and cell phones and solar panels, and wind turbines and batteries for electric vehicle, as well as the batteries to store renewable energy.

So to be reliant on countries like China and Russia for the import of these minerals is a national security and economic issue. And so there's been a huge and quite sudden push to mine these minerals, which are pretty, um, plentiful, they are just really difficult and dirty to mine. And so that's why.

China for the most part, has processed a lot of these minerals and exported them. So the US is really concerned about improving domestic mineral mining. But the process itself is really dirty. And so this new sort of mining rush has been, um, analogized to the oil rush and the gold [00:26:00] rush, which. Was very friendly towards applicants who wanted to mine these minerals and these resources, but didn't provide a lot of environmental protections.

And funnily enough, the main piece of legislation around hard rock mineral mining, which are things like gold and lithium, is the 1872 Mining Act, which is of course quite out of date. And that was based on what a lot of indigenous scholars have called a settler colonial mentality. I e you stake it, you claim it, you mine it, and that's it.

You don't have to pay a lot of money to the federal government and you're not responsible for the a lot of the environment externalities. So two things on that. There is an interagency working group looking at updating the mining act, but of course that would require congressional. . And there's also Flip Mile, which is a piece of legislation which amended the General Mining Act and does allow the Bureau of Land Management, which regulates a lot of this federal land to refuse a [00:27:00] permit or refuse to open parcels of land to mining and can refuse a permit if the Permitees operations are gonna cause undue degradation to the public land and the Bureau of Land Management.

To balance sustainable yield and multiple uses of the land. So there's some federal protections for mining now, but I argue in the paper that the Bureau of Land Management should take a more stringent approach in terms of updating its regulations around mining, particularly because there's gonna be such a rush for industry to come in and mine these minerals in what are quite sensitive places for tribal communities.

And particularly where those minds are off reservation and tribes don't have a lot of control over what happens to the land. I argue that the Bureau of Land Management should take their interest into account when determining where to allow, uh, mining for these minerals. And there's already litigation going on in Nevada about [00:28:00] a lithium mine, and the rate of exploitation is gonna be significant.

And so there are estimates that. The amount of lithium that has to be mined to keep up with the technological advantages in consumer preferences is four to 6000% higher than it is today. So there's gonna be a lot of mining, a lot of processing. It's really dirty, it's very polluting, and I argue that the federal government should prioritize these communities when granting these permit.

[00:28:27] Gus Herwitz: There's something, uh, ironic, or ironic might be the wrong word, that we should recognize in the history that you, uh, just gave due to national security concerns. Largely, we've, uh, started to onshore a lot of this mineral extraction, and you noted that historically, of course it's been in done in China. The reason that's been done in China largely is because the Chinese government has been perfectly happy not to care so much about environmental concerns as we do in the United States.

So where perhaps net, on net this is [00:29:00] an environmental plus where Onshoring we're bringing these processes to the United States where there will be greater regulation, um, and more sensitivity to both environmental concerns and environmental justice concern. But also we're bringing these environmental harms to our shores and our communities.

[00:29:18] Lisa Benjamin: Mm-hmm. . Yeah. And I argue there should definitely be greater regulation in the United States than what the current system provides, and particularly because these are communities that have already born the burden of industry and exploitation. For national development over hundreds of years, and so they should not be bearing the burden of this particular technological revolution, and in fact should be benefiting from it, as should other environmental justice communities as well.

And so there is the opportunity to make mining cleaner and better and to protect the communities. That surround these areas. And there are some initiatives at the federal level as well about recycling minerals, and also [00:30:00] to try to investigate alternatives to these minerals to be used in these batteries.

And so there's other like research and development that could be really helpful, but that might not come on board for another 10 years. So for the next. Decade where there's gonna be this explosive growth. I argue that federal agencies should be better at protecting these communities in particular. Now, 

[00:30:21] Gus Herwitz: these communities aren't just a single homogeneous community, and as you note, they're not geographically defined necessarily.

They can be overlapping and uh, I expect have at times. I'd be surprised if it's not actually frequent conflicting interests. When there are conflicting interests between these communities themselves and these communities and any other community, how do we evaluate those conflicting interests and decide which ones should win out?

[00:30:51] Lisa Benjamin: I think it's a really difficult issue. I think that the transition to, uh, clean energy is gonna involve trade offs. [00:31:00] And sacrifices, and that's difficult. There's no sort of perfect or easy answer. I'm really clear in the paper that I don't advocate for not transitioning to clean energy because the impacts of climate change themselves are gonna disproportionately affect environmental justice communities, and we've already seen that in the United States, including tribal communities.

I think it's really difficult for agencies to balance different interests and the processes that we talked about at the beginning under the Administrative Procedure Act are designed for agencies to at least consult with and have public processes around rule making where they can at least take into the account.

Interests of surrounding communities, and they would do that where they were issuing permits as well. And then of course, if communities aren't unhappy with the decisions that agencies take, then they could of course, uh, sue them, uh, for judicial review of the agency decision for not taking into account their interest.

One of the main problems with environmental justice though, is that there hasn't been federal legislation to [00:32:00] protect environmental justice groups. And so many groups have used sort of equal protection or Title six attempts through, um, the EPA in particular to protect environmental justice communities.

But we don't wanna have federal environmental justice laws. A number of states have passed legislation where when a state agency is issuing a permit, they have to take into account environmental justice communities, but there's no federal legislation. And so really what we're left with is an executive order.

And the willingness of agencies themselves to take into account the, um, views of communities for environmental projects, major federal actions. We also have npo, which is a National Environmental Policy Act, and that is a largely procedural piece of legislation that agencies have to consult with affected communities.

But we have recently had a couple of, uh, cases where as part of a NEPA. Where a federal agency will develop, let's say, um, an [00:33:00] environmental impact statement. The federal agency has chosen to do what's called an EJ analysis, i.e. Are there any EJ communities that would be affected, and if so, how would they be affected?

And there have been a couple of cases just in the past year or two where courts have said to the agency, , you chose to do an EJ analysis voluntarily under npa. You did it really badly, go back and do it again. And so there isn't sort of law per se, in terms of the obligation of agencies to carry out an EJ analysis, but the guidelines around NPA do ask them to articulate the direct impacts of a project, the indirect effects and accumulative.

And where there's an EJ community that's affected, federal agencies should take those community's interest into account. It seems 

[00:33:46] Gus Herwitz: that it might be worth emphasizing, and this could be coming from a place of my own naiveté, that, that there's a, a real difference between. EJ communities and environmentalists or, uh, environmental, [00:34:00] uh, activist groups.

The way that you're talking, this is a, a much more legalistic, uh, analytical sort of way. Talking about the need to make trade offs than what comes to mind. And this may be coming from out outdated, uh, uh, views or my own particular biases, but then the traditional. With apologies to green peace, Green peace, uh, let's shut everything down and boycott, uh, approach to environmental activism and environmental work.

It feels like the discussion is more sophisticated and mature that, uh, you're participating in. And am I making this up or is there something 

[00:34:36] Lisa Benjamin: there? There's definitely something there. Traditionally, um, a lot of the federal regulation in the United States around for environmental protection was done in the 1960s, 1970s. 

And so you have robust legislation around clean air and clean water, and even endangered species. And those provisions for those resources, which of course do affect, [00:35:00] um, human beings are pretty robust. But yet at the same time, we don't have federal legislation, which actually protects people, particularly people who've been disproportionately burdened.

And so what you have when you have an EJ community and a lawyer goes to them, basically the lawyer will be saying, Can you find an endangered species in your neighborhood because they have protection under the law. And I'm sorry that you don't have that much protection other than what you can get under NEPA.

The equal protection doctrine. And so that's pretty offensive, as you can imagine, to these communities. And there has been, I think, not a great understanding by traditional big green NGOs about the needs of environmental justice communities. And so EJ advocates have often been more grassroots. More rooted in communities where they're having public health impacts, where sort of big green organizations have been advocating for, um, natural resources.

And there has been a pretty acrimonious split between these groups for a long time. I think [00:36:00] that the message of environmental justice is much more prominent now under the Biden administration that it ever has been. I think there's a greater understanding by traditional green groups, who, by the way, are not very diverse as well.

And so that is problematic in terms of funding for environmental justice groups, the foundations that provide the grants, the NGOs themselves. And so I think there's been a better understanding by sort of traditional green groups about how important environmental justice is, and that's really helped by the Biden administration.

Putting forward a number of executive orders, asking both federal agencies to be more aware of racial justice issues. The fact that there is all this funding that is directed towards environmental justice community groups, and the fact that the Justice 40 Initiative, for example, directs a certain percentage of federal funds to be invested in disadvantaged communities.

So I think there's a greater understanding. Both federal agencies and even among traditional [00:37:00] environmental groups of how important environmental justice is, what environmental justice is, who environmental justice communities are, and I'm hoping that leads to a more cohesive and collaborative relationship between the communities.

[00:37:11] Gus Herwitz: Yeah. And that brings us back to that idea of how do we balance competing interests when we know there are going to be winners and losers in these, um, discussions. And I, I wonder thinking in, in other, Where I work. Trust is such an important tool and it's really the language or the bedrock for building consensus and making those decisions about trade offs. How much of an issue is there with trust between the various stakeholders? 

[00:37:42] Lisa Benjamin: I think that a lot of EJ communities do not trust either the federal government or private industry. Um, and that's a sort of a broad statement, but I think that given the history of these communities with federal regulation, even just sort of the highways that we discussed, um, and industry really

purposely [00:38:00] citing heavy polluting factories and industry in these communities with no protection given to the people that live there. There has been decades of distrust. I will also say that EJ communities are not monoliths, and so a number of EJ communities, including tribal communities, are very reliant onto the fossil fuel industry, have used energy infrastructure.

To fund their own communities. And so it's not that all EJ communities are anti sort of fossil fuel or energy projects. I think one of the really major advances that the body administration has made, and I, when the administration came in and there were all these appointments within federal agencies and every class, I would have a.

Slide saying, Look, look who's been appointed. Look who's now the administrator of the epa. Look who's now, you know, the secretary of the interior. Like, look at all of these appointments of racially diverse as well as people who've been working in the EJ advocacy space for decades. Really well risk.

Affected EJ advocates, [00:39:00] not just people from sort of big green NGOs. I think that was a really important move for the Biden administration, and that does a huge amount to build trust between communities. So you had Administrator Reagan at the eba, for example, doing a justice tour, going to places like Cancer Alley in Louisiana that I just talked about.

And making sort of statements that these fence line communities or EJ communities are a priority for the EPA and where they have the ability to, for example, through enforcement, even if they can't promulgate a rule, even through...