BY TAYLOR LILLEY, ESQ. AND BRITTANY WRIGHT, ESQ.
Environmental attorneys, whether in private practice, government agencies, or non-governmental organizations, are at the intersection of two related movements: the push to diversify the legal field and the call to engage in efforts to secure environmental justice. Both movements aim to increase representation and meaningfully include all voices in the decision-making processes surrounding clean water and air, access to nature, and the development of environmental policies. The first step to succeeding in these efforts is continuing to diversify the environmental law bar and the environmental movement as a whole.
Lack of Representation in the Environmental Law Field
The environmental field at large is an “overwhelmingly white ‘Green Insider’s Club,’” per the Green 2.0 report “The State of Diversity in Environmental Organizations: Mainstream NGOs, Foundations & Government Agencies.” Started in 2014, Green 2.0 surveys environmental non-profits, foundations, and agencies on gender and racial diversity composition. The first report published in 2014 found that despite people of color representing 36% of the U.S. population, the diversity composition in environmental organizations has does not exceed 16% across the organizations studied. The report highlighted specific barriers to hiring people of color, including recruitment practices that introduce unconscious bias, utilizing word-of-mouth and informal networks to advertise jobs, and ineffective use of the internship pipeline. The report also dispelled the myth that communities of color do not care about environmental issue and therefore do not apply for jobs with environmental organizations, as people of color “support environmental protection at a higher rate than whites.” In 2020, Green 2.0 released its fourth annual Transparency Report Card presenting the diversity data from the 40 largest NGOs and 40 largest foundations. The 2020 Report found positive trends in increasing diversity at non-profit organizations, noting that there are “more people of color among full time employees, senior staff, and board members in 2020 than in 2017.”
The legal profession similarly struggles with diverse representation. Per the 2020 American Bar Association “Profile of the Legal Profession,” 86% of lawyers are White and non-Hispanic although they only make up 60% of the United States population. As illustrated in figure 1 below, only 5% of lawyers are African American, despite being 13.4% of the population, and only 5% percent of lawyers are Hispanic, despite being 18.5% of the general population. Asian lawyers make up 2% of the bar, while 5.9% of the population identifies as Asian. Native American lawyers are 0.4% percent of the bar, while the U.S. population is 1.3% Native American. One positive trend is the increase in diversity among law students. As of 2019, 31% of students in law school identified as non-White compared to 25% in 2011.
Within the environmental law bar, improving diversity remains a struggle, though efforts are being made through programs at prominent law schools, bar associations, and environmental non-profits. Many of these programs, like the Environmental Justice Clerkship with the Environmental Law Institute and Howard University School of Law, are directed at training, mentoring, and retaining “more law students of color in the field of environmental law while advancing meaningful environmental justice efforts.” Another program working to improve diversity in the pipeline of candidates entering the environmental and energy law sectors is the Environment, Energy, and Natural Resources Law Fellows Mentorship Program. Created by a group of volunteer attorneys practicing environmental law in the Washington, D.C. region, the program seeks to increase access to the environmental law field by providing students from all backgrounds professional mentorship opportunities and exposure to career opportunities in the environmental field. When asked about the need to create such a program, the Fellows Program Director Jennifer Li noted:
It’s not a secret that the legal profession in general suffers from a representation problem. This is unacceptable in any field, but the imbalance can feel particularly acute in EENR practice, where the attorneys who help shape environmental laws and policies frequently do not have the same lived experience as the individuals who are most impacted by them. The EENR Law Fellows Mentorship Program is designed to help students from all backgrounds – including those who are frequently the only BIPOC [Black, Indigenous, and People of Color] or first-generation students in their classrooms – to feel like they belong and that this is a field where they can thrive and play an important role. Attorney mentors who can relate to that experience are critical for students and recent graduates who are trying to find an entry point and need help navigating various career paths. Besides having a model for success and knowing what that could look like, the importance of just having someone who has confidence in you and cheers you on can never be overstated.
As more diverse students enter the legal profession, the sector of environmental law is at a crossroads. Many of the organizations and agencies that environmental attorneys go on to work for struggle with the same diversity numbers as the legal field as a whole. And the next generation of lawyers are watching. Commitments to Diversity, Equity, and Inclusion are factoring in heavy in the job searching of Millennials and Generation Z. Environmental attorneys, both in the public and private sector, are posed to play an important role in improving diversity in the environmental field. The importance of increasing diversity in the environmental law field is underscored by the renewed focus of environmental justice and the intersection of social justice, public health, and the environment.
The Intersection of Environmental Justice and Environmental Law
The racial justice protests that followed the death of George Floyd were perhaps one of the most significant events of 2020, outside of the COVID-19 Pandemic. The protests sparked conversations around the nation and triggered a wave of renewed dedication to combatting systemic racism in all of its forms. The pandemic itself only added to this conversation by exposing the startling health disparities in low-income communities and communities of color. These communities are much more likely to live in close proximity to facilities that emit harmful air pollutants, increasing rates of respiratory illness and by extension the likelihood of contracting COVID-19. These developments left many across the nation wondering what role they had to play in addressing societal inequities. For the environmental community, and others, that means turning again to the charge of achieving environmental justice.
Environmental justice can be defined as “the fair and meaningful treatment of all people regardless of race, color, national origin or income with respect to the development, implementation and enforcement of environmental laws and policies.” The Environment Justice Movement is largely credited as beginning in Warren County, North Carolina in 1982, when the county’s predominantly African-American residents laid in the path of dump trucks carrying PCBladen soil. Warren County was selected by the federal government to house 6,000 truckloads of the soil in a newly constructed hazardous waste landfill. While the people of Warren County were ultimately unsuccessful in their attempts, their bravery and their cause ignited a national conversation around environmental justice and the relationship between race and exposure to environmental hazards.
The current environmental justice landscape is the product of the work of researchers, activists, politicians, and communities themselves. In 1987, the United Church of Christ Commission for Racial Justice released a report entitled “Toxic Waste and Race in the United States: A National Report on the Racial and Socio-economic Characteristics of Communities with Hazardous Waste Sites.” The report found that race was “the most significant among variables tested in association with the location of commercial hazardous waste facilities” representing a “consistent national pattern.” This report was followed by the publication of Dumping in Dixie by Dr. Robert Bullard, a novel that told the stories of five communities fighting for environmental justice and explored the intersection of race, class and environmental quality.
Confronted with mounting evidence of environmental racism and injustice, President Bill Clinton signed Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, into law on February 11, 1994. Executive Order 12898 directed each federal agency to make “achieving environmental justice part of its mission by identifying and addressing… disproportionately high and adverse human health or environmental effects of its programs, policies and activities minority populations and low-income populations.” The contributions of researchers and advocates, followed by EO12898, and buoyed by dedicated community activism, set in motion decades of discourse on environmental justice.
Though federal environmental justice initiatives have largely been lacking since the introduction of EO12898, recent years have seen a revived push for reforms aimed at addressing existing injustices and dismantling systemic racism in the environmental sector. In 2018, Representatives Raul Grijalva and Donald McEachin began an inclusive, community-led process to draft and develop the Environmental Justice for All Act (H.R. 5986). The process culminated in the convening of hundreds of environmental justice leaders and activists ta the U.S. Capitol in 2020. President Biden has also expressed his administration’s intent to make meaningful strides toward the goal of environmental justice with the signing of the Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, and the Executive Order on Tackling the Climate Crisis at Home and Abroad. In commenting on these new Executive Orders, Dr. Robert Bullard, a renowned environmental justice advocate and scholar said “[w]hen you have the most powerful legal department in the country saying that environmental justice is a basic right, I think that is a signal being sent across the country that this is real at the highest level.”
In Maryland, the State’s Environmental Justice Commission has come under fire for its failure to make any significant strides in the nearly two decades since its creation. The Commission met for the first time in 8 months after advocates across the state drafted a letter to Governor Hogan outlining the body’s failures, citing a lack of community representation as the cause. In a similar vein, Brandywine residents and Patuxent Riverkeeper filed a Title VI complaint in 2016, after the PSC issued a Certificate for Public Convenience and Necessity to the 859-megawatt Mattawoman Energy plant in the predominantly African-American Community.
As a result, in 2020 the PSC promulgated updated regulations for applications concerning the construction or modification generating stations and overhead transmissions line. The updated regulations included provisions to increase community engagement during the application process and require applicants to evaluate the characteristics of potentially impacted communities in the surrounding area. While these issues were resolved, in a sense, the resolutions were brought about by vocal criticism and action from advocates. Communities who are threatened with harmful environmental pollution should not be forced to be their own salvation. This pattern evidences the need for more robust and inclusive conversations about environmental justice in the State of Maryland. Environmental attorneys, given their expertise and presence in various aspects of the State’s operation, have an important role to play in ensuring that those conversations occur.
To this day, the fight for environmental justice is largely comprised of communities, advocates and grassroots activists. While they have gone a long way in driving conversations about equity in environmental enforcement, it is imperative that they receive the support necessary to cement meaningful change. Unfortunately, these advocates, who should have found a natural partner in environmental lawyers, often find themselves unable to secure the support of the legal community until the late stages of the permitting processes, if they are able to secure support at all. Environmental lawyers, like other subject matter experts are trusted for their technocratic perspective. In failing to adequately address environmental justice and support communities, environmental lawyers risk marshalling a partial justice.
Efforts to improve the diversity of the bar will only strengthen our collective practice and advocacy, especially as environmental attorneys are increasingly called on to engage in environmental justice work. Within our organizations, firms, and agencies, environmental attorneys can and should evaluate current hiring efforts and whether any unconscious practices are in place that limit lawyers of color from being hired and succeeding in their roles. Attorneys can also work to develop relationships with local law schools by partnering with environmental clinics, mentoring students, or speaking with affinity groups about career options in the environmental field. Communities of color care deeply about the environment, and often turn to attorneys when their communities are repeatedly carrying the burden of pollution. By diversifying our legal community and thereby developing deeper relationships with communities experiencing environmental injustice, environmental attorneys will better reflect the communities we serve, and be better advocates for it.