In Virginia, the state environmental agency this spring created an environmental justice office, tasking it with developing a plan to address systemic inequities in the sector.
New Jersey lawmakers last year passed legislation requiring reviewers to deny permits for new industrial facilities if the surrounding community is already saddled with too many other sources of pollution. Supporters dubbed it the “holy grail” for the environmental justice movement.
That same year, the state governors and federal agency heads overseeing the Chesapeake Bay restoration effort took a historic leap forward. By signing onto the partnership’s first diversity and equity plan, they committed to actions to root out injustices in the cleanup as well as within their own organizational structures.
Environmental justice initiatives have been making strides in states across the country. But in Maryland, EJ advocates are frustrated by what they say are comparatively small steps taken by the Democratic-controlled legislature and Republican Gov. Larry Hogan.
More than a year after Hogan pledged Maryland’s support for the Chesapeake Executive Council’s historic agreement, all sides seem to agree that environmental justice has at least inched forward inside the state government. But advocates say the push has lacked focus and, at times, undercut its own goals.
For example, they say, the Maryland Department of the Environment, the logical epicenter of the effort, posted an EJ “policy and implementation plan” last December but didn’t seek public comment before doing so.
“I felt like they went into a room and shut the door and came up with a plan they felt was right instead of meeting with stakeholders,” said Darya Minovi, policy analyst with the Center for Progressive Reform, a left-leaning advocacy group that has sought to pass EJ legislation.
And activists were largely disappointed earlier this year when lawmakers could only muster enough support to approve one EJ-related bill during their spring session. The legislation overhauled the state’s Commission on Environmental Justice and Sustainable Communities by broadening its membership, expanding its duties and requiring it to hold more meetings.
The changes didn’t go into effect until Oct. 1. In the meantime, environmentalists grumbled that three commission seats had remained open for months even though replacements they considered to be qualified had applied for the positions. The openings included slots for an environmental organization representative, a second health expert and a third resident of an affected community.
In sum, Maryland has taken a piecemeal, scattershot approach to EJ, activists say.
“I think they mean well. I don’t detect any specific animus,” said Fred Tutman, the Patuxent Riverkeeper and one of the state’s fiercest EJ champions. “But within the culture of state government, they’re trying to figure out how this environmental justice stuff fits in with their usual behavior.”
‘Totally dysfunctional’
For decades, activists and social scholars have raised alarms that government actions, from the permitting of polluting industries to the enforcement of environmental statutes, tend to put impoverished and minority communities in harm’s way. Their concerns led in 1994 to the first major federal EJ policy, an executive order by President Clinton requiring all agencies to tackle environmental inequities.
Maryland got the jump on its counterparts when Gov. Parris Glendening issued an executive order of his own in 2001, creating the state’s EJ commission. Virginia’s equivalent wasn’t formed until 2017.
But the commission languished for years, meeting infrequently and accomplishing no major reforms. Its inaction prompted a diverse group of environmental organizations to write to Hogan in August 2020, urging him to reorganize the panel and commit all state agencies to develop and follow EJ plans.
“That commission has been totally dysfunctional since after about the first year,” said Kathy Phillips, executive director of the Assateague Coastal Trust and the letter’s lead author. “It wasn’t putting out the reports it needed to put out. It was basically just a set of minutes from the meetings.”
The last straw, Phillips said, was the revelation that one of the commission’s two seats reserved for impacted communities was being occupied by Steve Levitsky, an executive with Perdue, the Salisbury-based poultry giant.
“That pretty much outraged people,” she added. Among the letter’s eight other signers were Tutman, the Riverkeeper; Sacoby Wilson, director of the University of Maryland School of Public Health’s Community Engagement, Environmental Justice and Health Lab; and Mary Ashanti, then-president of the Wicomico County NAACP.
This spring, state lawmakers responded by passing a bill rechartering the EJ commission, starting with its work schedule. No longer will the commission’s meeting dates be set by its chairman alone. Going forward, according to the law, it must convene at least six times a year and host at least four community “listening sessions.”
The law also repeals criteria requiring the commission to assess whether any communities are experiencing environmental injustice — that’s already well-established, advocates say. Instead, it empowers members to recommend actions to the General Assembly.
“I think it was a step forward,” Wilson said. In the past, he noted, “there were a lot of meetings and no action. It was all decisions about ‘What is an environmental justice community?’”
As of Oct. 1, the commission’s membership turned over completely. The political center of gravity shifted as well, with the governor’s appointment power cut in half, from 12 to 5. The legislature has at least 17 of its own slots to fill.
The membership must represent the racial, ethnic and geographic character of the state, the law specifies.
A plan, then progress
MDE Secretary Ben Grumbles said he had no qualms with the bill reorganizing the commission. “The criticisms resonated with us that the commission was not engaging enough and that the recommendations were sporadic,” he said. “So, we agreed with the spirit of the legislation.”
Although not mandated by the law before Oct. 1, the commission has been meeting more regularly this year. Its website reported six meetings through September and three more scheduled through December. And in August, several members trekked to the lower Eastern Shore to visit factory-scale chicken farms that critics say are polluting the region’s air and drinking water.
“The commission is much more active [now] than over the past decade,” Grumbles said.
Grumbles said his agency has begun implementing many of the recommendations contained in the EJ plan developed by his staff late last year. Among the most notable actions has been MDE’s appointment of an EJ point person: Devon Dodson, a senior adviser to Grumbles and former acting director of the Maryland Energy Administration.
The agency has also created an internal workgroup consisting of top officials from each division, Grumbles said. The group’s job is to develop procedures for advancing EJ in the department’s day-to-day activities. One of his top priorities, he added, is to improve communication with communities ahead of tough permitting decisions.
He cited the example of the agency’s air division hosting additional public meetings to gather input on a crematorium proposed by Vaughn Greene Funeral Home in Baltimore. The project has triggered outcry over concerns that the facility will pollute the air, damaging residents’ health in Black communities.
“It’s a greater outreach to the community before we even begin the public meeting process,” Grumbles said.
Becky Witt, a Community Law Center attorney representing the opposition, was impressed that MDE allowed participants to vent for as long as they wanted. The meeting lasted three hours. But she wondered whether it had made a difference.
“In my experience working with communities,” she said, “just because you have a meeting where people can come and tell you things, it’s not particularly useful unless you can use that information in the final decision.” Otherwise, “it feels a little hollow.”
Cumulative impacts count
Under the new law, the EJ commission is tasked with consulting mapping tools and other data sets to analyze how permitting and enforcement decisions affect overburdened communities. In a small but critical victory for advocates, the law specifically allows the group to study “cumulative impacts.”
The provision hints at the true prize for Maryland advocates: a law that mandates a permit to be rejected if it would pose environmental or health risks in low-income or minority communities already mired in pollution. New Jersey passed such a measure, the first of its kind, earlier this year.
“We encourage policymakers in Maryland to follow the lead in New Jersey and pass legislation that provides meaningful cumulative impact analysis in the department’s decisionmaking capacities,” said Evan Isaacson, a Chesapeake Legal Alliance attorney.
Such a strong environmental law would likely face vigorous pushback from development and industrial groups. A preview of the opposition came during debate over the commission overhaul bill.
Amid the pandemic and other troubling economic signs, said Marshall Klinefelter, president of the Maryland Asphalt Association, in written comments to lawmakers, “we must focus our resources on the most pressing issues like our crumbling roads and highways, improving public transit options, and addressing economic disparities within Maryland. We believe it is paramount to address the problems at hand before they are inadvertently exacerbated by misguided and burdensome legislation.”
Troubled recent past
The low point in Maryland’s recent EJ history came in 2016, when Black residents in the rural community of Brandywine in Prince George’s County filed a federal civil rights complaint over the state’s green light for a natural gas power plant in their midst.
The EPA forged a settlement in 2019 that stipulated corrective actions to be taken by three state agencies: the MDE, the Public Service Commission and the Department of Natural Resources. For its part, MDE was required to make certain air-quality information publicly available, conduct more-thorough public outreach in future power cases and undergo organization-wide civil rights training.
Jay Apperson, an MDE spokesman, said the agency has fully complied with the settlement and received a release letter from the EPA confirming it.
Wilson, of the University of Maryland, said he would give Hogan an “F” on his EJ performance. In the wake of the last year’s letter criticizing the commission, the governor’s office was silent on the issue, Wilson said. He suggests that each state agency should have an office devoted to EJ, and it should factor into every employee’s performance evaluation.
“Right now, we have an imbalance,” he said. “The industries have more power than the people do.”
Hogan’s office said the governor put his support into action with the adoption of the Chesapeake Executive Council’s EJ statement under his chairmanship. Hogan also stands behind the actions that the MDE has taken over the past year to address EJ concerns.
“Clearly, we need to give those efforts time to work before getting into progress reports,” Hogan spokesman Michael Ricci said. “As part of the implementation plan, we already have a designated official at each agency to provide coordination. Mandating that each agency expand its bureaucracy for this would likely slow down all of this work, and do more harm than good.”
Battle-tested fighter steps in
Advocates applauded the appointment of Monica Brooks to the commission earlier this year as an “affected communities” representative. After a Northern Virginia family proposed constructing 13 chicken houses near her home in Wicomico County in 2015, Brooks led a grassroots fight that ended with the family selling the land to a sod and organic produce farmer.
She stopped by the property in September and said that the currently fallow field had been resplendent a few weeks earlier with sunflowers. “Literally, people just stop here and take photos because it’s all sunflowers,” Brooks said. “It’s a much more beautiful landscape compared to what it could have been.”
But the battle isn’t over, she explained. She and other advocates are fighting for more widespread testing of air quality and private water wells in areas with high concentrations of chicken farms. Their main concern: nitrates, an agricultural pollutant linked to “blue baby” syndrome and cancers of the digestive tract.
A test of Brooks’ well water last spring showed nitrate levels slightly above 8 parts per million. The U.S. Environmental Protection Agency considers drinking water to be unsafe at 10 ppm and higher.
Brooks, who is Black, said she is encouraged by the sincere attitudes of many of her fellow commissioners. They want change. Now, she will be watching to see whether the state’s power hubs — the governor’s office and the legislature — will take the commission’s advice seriously.
“Part of environmental justice is being able to stand up to something that is truly unjust, to say, ‘This thing is causing me harm in my environment. And something should be done about it,’” Brooks said. “I don’t want to just scream into the wind.”
This article was originally published on BayJournal.com on Tuesday, October 13, 2021.