Securing Environmental Justice for Northern Birmingham

Securing Environmental Justice for Northern Birmingham

Tidying up my family’s summer vegetable and flower gardens brought some calmness to a hectic week. With every season and year that passes, playing in the dirt as therapy gains greater significance for me. I recall when my boys (now teenagers) were young, giving them a shovel and dirt or just being outside would provide hours of entertainment. Maybe the simplicity of the activity throws our souls back to a slower time. I don’t know.

Residents in northern Birmingham neighborhoods are not able to benefit from this therapeutic activity. Their summers are not filled with the simplicity of moving soil around on their property. They cannot allow their children or grandchildren to dig in the yards of their homes. In fact, if their children or grandchildren inadvertently do get down in the dirt (as kids often do) they have been instructed to wash their hands and take off their shoes before coming inside. Hundreds of residential properties are contaminated with toxic chemicals. Arsenic. Lead. PAHs. Soot continues to accumulate on porches and chemical odors are commonplace.

This summer, the EPA began their investigation into Gasp’s Title VI complaint — one of many actions Gasp has taken to address the pollution. We heard in-depth interviews and testimonies from folks living in the impacted neighborhoods. Residents shared the stark realities of how legacy and ongoing pollution have altered their lives and their health.

An elderly woman who every summer for years took pride in her large, well-nurtured vegetable garden that yielded produce for her family and her neighbors shared her memories. At times, the details escaped her, but the joy her backyard garden brought her was palpable. She wonders, now that she knows about the toxic soil, if eating those vegetables year after year could have affected her families’ health. She doesn’t garden anymore.

A retired veteran who gave 30 years of service to our country spends more time outside washing the soot that accumulates on his lawn furniture than he does sitting in that furniture enjoying the outdoors. As a self-described “clean freak,” he is fairly satisfied how the water pressure of the hose cleans the soot off of his new windows, but he grows tired of this mundane chore that is as frequent as taking out the trash.

Also this summer, news broke of Oliver Robinson taking bribes from Drummond Coal and Balch & Bingham to undermine the continued cleanup of toxic contamination in Birmingham and our efforts to expand the investigation into Tarrant.

While it is not terribly shocking that big polluters and their expensive law firms engaged in nefarious activity to maintain the status quo, the silence that followed was. Where are the other elected officials denouncing Drummond Coal’s and Balch & Bingham’s immoral behavior? Where are the opinion letters or full page ads from our corporate leaders and institutions demanding for an apology or, better yet, restitution and cleanup from Drummond Coal and Balch & Bingham? Will the reach of these companies’ tentacles prevent justice from taking priority over the health of entire neighborhoods of people? The health of our children?

The summer of 2017 could have been the beginning of a paradigm shift for the most powerful corporations and institutions in our state. The federal investigation is providing the “cover” for members of the leadership class to side with the residents in northern Birmingham neighborhoods and denounce the actions of Drummond Coal and Balch & Bingham.

Although fall has officially begun, it is not too late. We need to hear from the influential voices denouncing the immoral actions of these corporations and calling for the clean up and reduction of pollution in northern Birmingham neighborhoods. Perhaps by taking action today we can ensure that the generations of tomorrow will have the benefits of a clean and healthy environment.

Start by telling the Birmingham Business Alliance to remove Drummond CEO Mike Tracy and Balch & Bingham Partner Stan Blanton from their board of directors and from barring representatives from leadership for at least two years.

TAKE ACTION

Gasp Calls on Sessions to Recuse Himself

Gasp Calls on Sessions to Recuse Himself

FOR IMMEDIATE RELEASE

Gasp Calls on Jeff Sessions to Recuse Himself from North Birmingham Corruption Investigation

BIRMINGHAM, Ala. (Sept. 6, 2017) — Gasp, a Birmingham-based nonprofit organization dedicated to the reduction of air pollution through education and advocacy, has asked Attorney General Jeff Sessions to recuse himself from the ongoing investigation into public corruption related to the 35th Avenue Superfund Site in northern Birmingham.

The letter to Sessions reads, in part:

“Due to your well-documented connections to these two powerful companies, Balch & Bingham and Drummond Company, we believe such a recusal is necessary and appropriate under the circumstances in this case. For example, as a U.S. Senator, Balch & Bingham and Drummond were your second and third largest sources of campaign contributions. (Totaling over $300,000 according to public campaign finance records.)

“I would also like to point out that [Luther Strange] received $50,000 from Drummond Company in late 2014 and early 2015 during the height of events surrounding the NPL and Pinson Valley Site. Rather than investigating possible public corruption and bad behavior by Drummond and Balch & Bingham, Strange looked the other way and opposed Gasp’s proposals to bring much-needed relief to the northern Birmingham communities at every turn.

“Alabama has been ravaged by public corruption in recent years. Meanwhile, real people are being harmed by the toxic pollution spewing from industry in the northern Birmingham region. To avoid any perception of impropriety, I must insist that you recuse yourself. Thank you for your consideration.”

In June, former state Rep. Oliver Robinson was charged with bribery, conspiracy, fraud, and tax evasion. According to Robert Posey, acting U.S. Attorney at the time, Robinson took bribes totaling $360,000 in contracts through his foundation from Drummond Company’s law firm, Balch & Bingham.

Drummond and Balch & Bingham allegedly orchestrated the scheme in an attempt to stop an EPA proposal to add the 35th Avenue Site to the National Priorities List and to prevent the EPA from expanding its investigation into include nearby neighborhoods. After taking the money, Robinson worked to discourage residents from supporting the NPL proposal and from participating in soil sampling in a new site inspection.

Robinson accepted a plea agreement with federal prosecutors and entered a not guilty plea in July. He is expected to change his plea to guilty as soon as Thursday, September 7.

The letter was co-signed by: Cindy Lowry (Executive Director, Alabama Rivers Alliance), Jonathon Meeks (Chair, Sierra Club Alabama Chapter), Yohance Owens (Executive Director, Village Creek Human & Environmental Justice Society), Charlie Powell (President, People Against Neighborhood Industrial Contamination), Charles Scribner (Executive Director, Black Warrior Riverkeeper), Stephen Stetson (Senior Campaign Representative, Alabama Beyond Coal Campaign of the Sierra Club), Patricia Todd (State Representative, District 54), and Chester Wallace (President, North Birmingham Community Coalition).

For more information or to arrange a media interview, please contact Executive Director Michael Hansen at 205-701-4270 or michael@gaspgroup.org.

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Gasp, Inc. is a nonprofit health advocacy organization dedicated to reducing air pollution and protecting everyone’s right to breathe clean, healthy air through education and advocacy. Learn more at gaspgroup.org.

Federal Roundup: Recent Executive and Legislative Actions

Federal Roundup: Recent Executive and Legislative Actions

It’s been a few weeks since I updated everyone on executive and legislative actions. Sadly, this is not because there has been nothing to update; so this will be a long one! However, one reason this update is delayed is because I attended an inspiring conference two weeks ago that replenished my “hope budget” and gave me new energy to tackle the many and ever-growing attacks on clean air. Since I blogged last month, several new developments have cropped up and we have new updates:

New Developments

  • March 6, 2017: White House Announces Plan to “Close Out” Energy Star program: A spending blueprint would slash Energy Star and related programs, leaving $5 million “for the closeout or transfer of all the climate protection voluntary partnership programs.” According to our friends at ACEEE, Energy Star spend about $50 million through EPA and $7 million through the Department of Energy. According to the Obama administration, the Energy Star program saved consumers $34 billion in electricity costs and prevented more than 300 million metric tons of GHGs in one year while improving ambient air quality.
  • March 8: The HONEST Act (H.R. 1430): This proposed bill is sponsored by Lamar Smith, R-TX. The bill works “[t]o prohibit the Environmental Protection Agency from proposing, finalizing, or disseminating regulations or assessments based upon science that is not transparent or reproducible.” This bill is an attempt to revise the EPA’s scientific review process that guides their rulemaking. The bill was introduced on March 8, 2017 and passed by recorded vote in the House (228 – 194) on March 29, 2017.
  • March 13: Executive Order on a Comprehensive Plan for Reorganizing the Executive Branch: President Trump signed this Executive Order, where the stated purpose is “intended to improve the efficiency, effectiveness, and accountability of the executive branch by directing the Director of the Office of Management and Budget (Director) to propose a plan to reorganize governmental functions and eliminate unnecessary agencies (as defined in section 551(1) of title 5, United States Code), components of agencies, and agency programs.”
  • March 15: Republicans Joint Resolution on Climate Change: A group of 17 Republican members of Congress signed a resolution vowing to seek “economically viable” ways to combat global warming. It pledges to “study and address the causes and effects of measured changes to our global and regional climates” and seek ways to “balance human activities” that contribute.
  • March 17: Ozone Standards Implementation Act of 2016 (H.R. 4775). This proposed bill, sponsored by Pete Olson, R-TX, was reintroduced and aims to update to the national ozone standards, with various provisions that would change the way the Environmental Protection Agency reviews standards for particulate matter, lead and other air pollutants. The same bill failed last year and we blogged about its potential disastrous effects on air quality and public health.
  • March 21: President Trump is Not Considering a Carbon Tax: despite a meeting between Republican elder statesmen and Trump Administration officials, President Trump announced he is not considering a carbon tax.
  • March 28: Presidential Executive Order on Promoting Energy Independence and Economic Growth: President Trump signed this Executive Order. The goal is to halt the United States’ government’s attempts to curb carbon dioxide emissions with the goal of encouraging American business. We borrowed the words of our friends at NAACP on this day to express our extreme disappointment with this negligent and potentially disastrous change in course for addressing the impacts of climate change.
  • April 5: Congressional hearing on the RECLAIM Act of 2017 (H.R. 1731): At the hearing, ranking member Alan Lowenthal, D-CA, stated “[t]he idea behind the RECLAIM Act is to take part of the large unexpended balance in the [AML Fund] and devote it to projects where cleaning up mines leads to economic and community benefits. This is, quite frankly, a win-win.” There was testimony from the bill’s lead sponsor, Hal Rogers, R-KY, and three witnesses. The hearing itself was a major milestone for the RECLAIM Act.

FOLLOW UP ON ACTIONS PREVIOUSLY COVERED

  • Congressional Review Act put into play by U.S. Congress: The CRA allows senators and representatives who disapprove of a regulation to enter a resolution eliminating it. The resolutions require the signature of the president. So far this year, the following rules protecting the environment and human health have been targeted under the CRA:
  1. The Department of Interior’s Stream Protection Rule: Update: On February 16, 2017, President Donald Trump signed the repeal of the Stream Protection Rule.
  2. Department of the Interior Methane Flaring Rule: The House voted on February 3, 2017 with no action so far from the Senate as of the date of this post. Update: on March 21, 2017, some Republican lawmakers came out against using the CRA to repeal this rule. Specifically, Sen. Lindsey Graham said he believed the rule could be subject to improvement, not just cancellation. “I think we can replace it with a better reg, rather than a CRA.”
  3. Drilling and Mining on Public Lands: On January 31, 2017, the House introduced a joint resolution that would repeal the rules that allow the National Park Service to manage private drilling and mining in 40 parks across the country.

Status of Bills in U.S. Congress covered in previous posts:

Bill Number Sponsor Description Status
HR 998 Jason Smith, R-MO Establishes a commission to identify obsolete and unnecessarily burdensome regulations to be repealed. It also sets goals for the commission to reduce costs by 15 percent and to prioritize major rules that are more than 15 years old and rules that can be eliminated without diminishing effectiveness. No action since the bill passed the House on 3/1/2017.
HR 1009 Paul Mitchell, R-MI Requires independent agencies to submit rules to the Office of Management and Budget before they are published—essentially giving the president tight control of the rule-making process No action since the bill passed the House on 3/1/2017.
HR 1004 Tim Walberg, R-MI Would require agencies to publish more detail of forthcoming rules and regulations No action since the bill passed the House on 3/2/2017.
HR 637 Gary Palmer, R-AL Blocks the EPA’s ability to address climate change No actions taken since the bill was introduced. You can read our analysis of the bill here.
HR 861 Matt Gaetz, R-FL Would abolish the EPA effective December 31, 2018 No actions taken since the bill was introduced.
HR 958 Sam Johnson, R-TX Would leave EPA with a budget of less than $1 billion. This bill would eliminate EPA climate change programs and would also close all of the EPA’s regional offices, halt new regulations on ground-level ozone pollution and require the agency to lease unused property No actions taken since the bill was introduced.
  • February 21, 2017: Letter sent from automobile manufacturers to Scott Pruitt asking him to relax emissions requirements: The Alliance of Automobile Manufacturers sent a letter to Scott Pruitt (EPA Administrator) asking him to withdraw the Final Determination on Appropriateness of the Model Year 2022-2025 Light-Duty Vehicle Greenhouse Gas Emissions Standards under the Midterm Evaluation. Update: on March 15, 2017, President Trump announced plans to re-examine the CAFE (Corporate Average Fuel Economy) standards, taking a step back from Obama-era environmental regulations.
  • OMB Proposed Budget Cuts to EPA and NOAA: The proposed budget cuts would reduce EPA’s staff by one fifth in the first year and eliminate dozens of programs. Specifically, EPA’s staff would be slashed from 15,000 to 12,000. The proposed budget would also cut EPA’s grants to states, including air and water programs, by 30 percent and eliminate 38 separate programs in their entirety. Media outlets also discovered a four page budget memo that would slash NOAA’s budget by 17 percent, delivering steep cuts to research funding and satellite programs. Any such cuts would have to be codified through the congressional appropriations process. Update: U.S. Congress is currently in recess for the Easter holiday but are expected to consider OMB’s budget proposal upon their return.

Make sure you’re signed up to receive our e-newsletters. We send updates and action alerts about issues that could threaten air quality, public health, and the environment. We will also always provide ways for you to act on any development, whether it’s positive or negative.

EPA Makes Positive Changes to Comply with Civil Rights Act, but Uncertainty Remains

EPA Makes Positive Changes to Comply with Civil Rights Act, but Uncertainty Remains

On December 29, 2016, the EPA withdrew a proposed rule to amend its nondiscrimination regulation regarding compliance information for Title VI of the Civil Rights Act.

Last year Gasp weighed in on the proposed changes and objected to the removal of deadlines in the proposed rule. We are happy to report that EPA considered Gasp’s and other groups’ comments opposing this change and has decided to withdraw the proposed amendments.

EPA is also moving enforcement of external compliance with Title VI from the Office of Civil Rights to EPA’s Office of General Counsel. This is a positive step and will bring pertinent expertise and ability to handle the backlog of complaints to the process. In turn, this change could bring much-needed relief to communities suffering a disproportionate burden of environmental harm.

However, “disparate impact” is still not sufficiently defined in EPA’s final plan. From Gasp’s comment on the EPA’s Office of Civil Rights Notice of Proposed Rulemaking, a disparate impact can be legally defined as follows:

The Supreme Court of the United States addressed the concept of disparate impact under Title VII of the Civil Rights Act by reasoning that disparate impact liability furthered the purpose and design of the statute[1]. The Court noted that “Congress directed the thrust of [§ 703(a)(2)] to the consequences of employment practices, not simply the motivation[2].” Antidiscrimination laws should be construed to encompass disparate impact claims when their text refers to the consequences of actions and not just to the mindset of actors[3]. A plaintiff bringing a disparate impact claim challenges practices that have a “disproportionately adverse effect on minorities[4].” The U.S. Supreme Court also reasoned that “[r]ecognition of disparate impact liability under the [Fair Housing Act] also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment[5]. ” In its Interim Guidance, the EPA acknowledges that frequently “discrimination results from policies or practices that are neutral on their face, but have the effect of discriminating. Facially-neutral policies or practices that result in discriminatory effects violate EPA’s Title VI regulations unless it is shown that they are justified and that there is no less discriminatory alternative[6].”

As seen above, current case law reflects a disparate impact in the employment or housing context. EPA should have given some direction and definition as to what it looks like when a community is disproportionately impacted by environmental pollution. Without this critical guidance, and as has happened in the past, mere adherence to environmental regulations could become the standard without considering disparate impacts on minority communities.

The very intent of ensuring other agencies who receive funds from EPA comply with Title VI is to ascertain that environmental racism is not occurring, and address it accordingly if it is. Accordingly, EPA would need to provide very clear guidelines on what constitutes a disparate impact.

On January 18, 2017, EPA addressed the above issue in part by issuing a Final Compliance Toolkit. Importantly, EPA removed the rebuttable presumption that compliance with an environmental law is a defense to a disparate impact claim. Specifically, EPA will examine whether site-specific information demonstrates the presence of adverse health effects from NAAQS pollutants, even though the area is designated attainment for all such pollutants and the facility recently obtained a construction and operating permit that ostensibly meets applicable requirements.

EPA’s assessment would seek to establish whether a localized adverse health impact, as indicated by the NAAQS, exists in the area at issue and has been (or will be) caused by the emissions from the power station even though the impact of the facility had previously been modeled to demonstrate that the source met.

The Toolkit also recognizes impacts other than health impacts in a community. Specifically, the non-health harms EPA will consider, include, among other things, economic (e.g., depressed property values), nuisance odors, traffic congestion, noise and vermin.

With respect to the non-health harms alleged (e.g., economic, traffic, noise), Title VI allows agencies to consider whether these effects are occurring and, if so, whether they are sufficiently harmful to support a violation finding.

Gasp plans to continue to be a part of the conversation for further improving EPA’s Title VI compliance program. Gasp also enthusiastically welcomes the positive changes in the final plan. Although it is always uncertain how a new administration will handle agency actions, Gasp looks forward to an improved program in 2017.

[1] See Griggs v. Duke Power Co., 401 U.S. 424 (1971)
[2] Id. at 432 (emphasis added).
[3] See Id. and Smith v. City of Jackson, 544 U.S. 228 (2005).
[4] Ricci v. DeStefano, 557 U.S. 557, 577 (2009).
[5] Texas Dep’t of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. __ (2015).
[6] Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits (EPA, Feb. 5, 1998) at 2
Gasp Launches New Online Air Quality Tool

Gasp Launches New Online Air Quality Tool

FOR IMMEDIATE RELEASE

Gasp Launches New Online Air Quality Tool

BIRMINGHAM, Ala. (Jan. 5, 2017) — In an effort to reduce exposure to the harmful health effects of air pollution, Gasp this week announced that it has released a new online tool for users to get the current and next day’s air quality for the Birmingham area.

The Air Quality Widget displays the current air quality index, or AQI, with a corresponding color code based on the Environmental Protection Agency’s AirNow data. It updates twice per hour. The Widget also displays the following day’s forecasted AQI.

Gasp is making the Widget available for other websites to use as well. The code is available at gaspgroup.org/air-quality. Website administrators can simply paste the script into their website’s source code to render the Widget anywhere on their site. The Widget code is also available for different cities anywhere in the United States.

“As part of our mission for healthy air, we feel it is absolutely vital for everyone to have quick and easy access to the air quality report — just like the weather report,” said Outreach Director Kirsten Bryant. “We encourage everyone to bookmark our website so they can simply open their browser and get the current air conditions in just a click.”

The widget also links to information about the air quality index; the color-coding system used by the EPA; and information about the health effects of individual pollutants.

The new Air Quality Widget is an updated of a prior version of the tool that became obsolete after the EPA improved its security and data management.

Please contact Executive Director Michael Hansen at 205-746-4666 or michael@gaspgroup.org for more information about the Air Quality Widget or other programs.

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Gasp is a nonprofit health advocacy organization based in Birmingham, Ala. Our mission is to reduce citizens’ exposure to air pollution, educate the public on the health risks associated with poor air quality, and encourage community leaders to serve as role model by advocating for clean air and clean energy. gaspgroup.org

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