A MODEL STATE ENVIRONMENTAL QUALITY ACT FOR 2007
By Science and Environmental Health Network (SEHN)
It is time to bring out the new models. Environmental laws, like automobiles, are due for a major redesign.
One place to start is with state environmental quality legislation. Fewer than 20 states have their own environmental quality acts, or "little NEPAs," most of them developed in the 1970s when the environment was high on the national agenda as well. Now more states are considering such legislation, especially as federal rules and enforcement have been gutted and subordinated to the politics of business interests.
SEHN's legal director, Joe Guth, has been helping states work out more comprehensive and forward-looking legal approaches to guaranteeing a livable world for future generations. In the process he has devised a model State Environmental Quality Act that incorporates the precautionary principle, environmental justice, consideration of cumulative harmful impacts, and the legacy we leave future generations as well as many other progressive developments in environmental policy and law of the last few years.
The full text of the act is available here. Read on to learn more about the model act and why we wrote it this way.
We've learned a lot since the big environmental laws were drawn up in the 1970s. Much of what we've learned can be summed up this way: You can't treat "the environment" as separate from humans. In fact, human health depends upon three "environments":
1) The natural environment (air, water, soil, flora and fauna)
2) The built environment (roads, power plants, suburban sprawl, chemicals, etc.)
3) The all-important social environment (relationships of trust, mutual respect, and friendship but also poverty, racism and white privilege, sexism, homophobia, insecurity, the sense that life is out of control, and so on). The social environment creates what the United Nations calls "the social determinants of health." There is a very large body of literature indicating the importance of these determinants of a person's resilience in the face of stress.
All three environments are always intertwined in all "environmental" work. This model law is the first, as far as we know, to address all three environments. It is aspirational, representing the best, most up-to-date thinking of the environmental movement in all its forms, including environmental justice and health. It is also a work in progress that is meant to be adapted, improved, and used in whole or in part.
We acknowledge the fine work of the State Environmental Resource Center (SERC), whose model bill provided the skeleton for this version. You can find it here.
What Is New in This Act
Our model act incorporates major changes to the SERC document, however, and in so doing breaks significant new ground. Here are some examples:
The Act leads off with the public trust duty of government and environmental justice and incorporates these principles throughout. Environmental justice is a primary, not a secondary consideration:
Chapter 1 (A) "... the State holds the environment in public trust for the benefit of all the people of the State, and therefore has an obligation to develop and maintain a high quality environment for present and future generations."
Chapter 1 (B) "[The state policy is to] take all action necessary to ensure the fair treatment of people of all races, cultures and incomes with respect to the development, adoption, implementation and enforcement of all environmental laws, regulations and policies."
This Act switches the burden of proof to proponents of a project to establish a reasonable certainty that the proposed project will cause no significant adverse effect on the environment or unfair treatment.
This language is found throughout the Act, for example in Chapter 3 Sec. 3.1:
"A proponent of any proposed project may prepare an Environmental Assessment demonstrating, on the basis of substantial evidence in light of a complete record, a reasonable certainty that the proposed project will cause no significant adverse effect on the environment or unfair treatment."
It incorporates the precautionary principle's approach to evaluating evidence of environmental harm or unfair treatment in the absence of complete scientific certainty.
In Chapter 2, the definition of "Evidence" (M) is:
"all information establishing facts and reasonable assumptions predicated on those facts, including evidence provided by individuals, community members and members of the public even if not presented in rigorous scientific form, as appropriate to the relevant social, economic or technical factor being evaluated. When a project raises a threat of harm to human health or the environment, that threat may preclude a conclusion that there is a reasonable certainty that the project will cause no significant adverse effect on the environment or unfair treatment even if all cause and effect relationships are not fully established scientifically."
It incorporates specific requirements for Environmental Assessments, Environmental Impact Statements, and government reviews of those documents to consider the public trust, environmental justice, future generations, cumulative impacts, and full analysis of alternatives.
Chapter 1 (J) "[The state policy is to] deny projects as proposed if there are feasible alternatives or feasible mitigation measures available, including the option of not doing the project at all, which would substantially lessen unacceptable adverse environmental effects or unfair treatment based on race, culture and income of such projects."
Chapter 3 Sec 3.1 (B): "The lead agency shall evaluate the Environmental Assessment, in consultation with the public, and shall consider information it receives from the public, as well as qualitative and quantitative social, technical and economic factors; the public trust; advantages and disadvantages in both the short term and for future generations; whether the project raises a threat of harm to human health or the environment; and cumulative impacts."
The definitions of environmental justice (unfair treatment) and cumulative impacts build on recent progress in environmental justice legislation, notably in California.
Chapter 2 (J) "'Cumulative Impacts' means the total of the public health and environmental effects in a geographic area or in a population from all types of degradation and damage from all sources combined, including pollution from all emissions and discharges, whether single or multi-media, routinely, accidentally or otherwise released.? The Cumulative Impacts that may be caused by a particular source of degradation of the environment or damage to public health means the total of all adverse effects to human health and the environment that the source may cause, taking into account all factors that may affect the impact of those adverse effects, including all other sources of environmental degradation or health damage, the existence of sensitive or highly exposed populations (including children and workers), and all relevant socioeconomic factors and social determinants of health including income, access to health care and health status of the affected populations."?
This bill contemplates that projects might improve the environment and not always degrade it. It creates a preference for alternatives that improve the environment over those that are neutral, and for those that are neutral over those that degrade the environment.
Chapter 3 Section 3.3 (C) (ii) "[The lead agency will] prefer projects and alternatives that the proponent has demonstrated are reasonably certain to provide an improvement in the quality of the air, water, soil and biodiversity of the environment over those that will not affect such quality; and prefer projects and alternatives that the proponent has demonstrated are reasonably certain not to affect such quality over those that will diminish it."
It requires that any compensating remediation benefit the same community that is damaged by other aspects of a project.
Chapter 3 Section 3.3 (C) (iii) "[The lead agency will] ensure that if a project or alternative comprises one element that remediates existing environmental damage or unfair treatment as compensation for a significant adverse effect on the environment or unfair treatment caused by another element of the project, such remediation benefits the same community as is harmed by the significant adverse effect or unfair treatment;
It requires proponents of projects to pay for all agency attorney fees and expenses if they challenge an agency finding--Chapter 3 Section 4.3 (D)--and provides for agencies to require a performance bond from proponents of projects--Chapter 3 Section 3.3 (C) (iv).
You can find the model law as a PDF document here. We hope you will use this model law, adapt it, and make it better. Let us know how it serves you.
The Networker is the newsletter of the Science and Environmental Health Network (SEHN), edited by Carolyn Raffensperger (firstname.lastname@example.org) and Nancy Myers (email@example.com). To subscribe, send any Email to firstname.lastname@example.org. You will receive an Email asking you to confirm that you want to subscribe.
You can also make a secure donation to SEHN. [Disclosure: I am president of SEHN's Board of Directors.--Peter Montague]
From: The Record (Hackensack, N.J.)
ARE 'CAPPED' TRASH SITES SAFE?
By Alex Nussbaum
Condos in Edgewater. High-rises in North Bergen. Schools in Paterson.
All sitting atop toxic chemicals.
Separated, in most cases, by a few feet of dirt, inches of asphalt or a thin plastic liner.
In North Jersey, this is the new definition of clean: Thousands of people living, working and playing on properties where pollution has been "capped" -- buried under pavement or dirt rather than removed.
As many as 540 sites statewide have been capped. More are on the drawing board ready to sprout million-dollar town houses, senior citizen complexes, strip malls and office buildings.
Developers love caps because they save millions when they don't have to dig up contamination and haul it away.
But caps also raise sticky questions: Is life atop a toxic tomb safe? Could chemical vapors seep out of the ground? Who'll make sure no one sticks a shovel in the wrong spot, unleashing poisons through the simple act of planting a tree?
And if they did, who would know? New Jersey has one inspector -- the "cap cop" -- to check these sites.
Environmentalists have long maligned caps as "pave and wave" for what they say is the shoddy quality of the cleanups. Now, state officials are also concerned.
"Many would argue that... the quality of the remediation is poor," the state's environmental commissioner, Lisa Jackson, told a committee of state legislators last fall, "and that developers pursue the cheapest solutions in order to quickly get a profit."
More than 120 sites in North Jersey are capped. The list includes The Promenade and City Place, a mix of tony condominiums, rental apartments and shops built above arsenic and asbestos deposits along Edgewater's waterfront. It includes the parking lot of the Lowe's superstore in East Rutherford. And Half-Moon Harbor, a luxury apartment tower along the Hudson in North Bergen.
The mother of all capping projects may be the EnCap development in the Meadowlands, where 500 acres of leaky landfills are being transformed into a 2,600-unit luxury golf community.
Homes, fairways and a hotel will sit atop a cap of construction debris, dredged material from New York Harbor and clean fill. Beneath that cover: a stew of trash, chemicals and whatever else was buried in the sprawling dumps.
"A toxic layer cake" sneers Jeff Tittel, director of the state Sierra Club.
State officials said they knew of no caps that had failed in New Jersey. But environmentalists worry the practice is so new that nobody knows how long caps will last or if they'll break and endanger the public. Irene Kropp, an assistant environmental commissioner, acknowledges the risks: If not maintained, soil erodes; parking lots crack.
But critics aren't just worried about what's sitting atop a cap. Underground pollution can vaporize and spread to buildings on neighboring properties, they warn.
Lax oversight compounds the problem, the critics say. Property owners are supposed to inspect and certify the integrity of their caps every other year. But last year, just one-fifth filed reports, according to the state Department of Environmental Protection.
Even some of the private engineers who help design caps say the system needs to be improved.
"People need to know that the certification process is real and serious and that you have the hammer if they don't comply," said Jorge Berkowitz, an associate at Elmwood Park-based Langan Engineering, a consultant to cleanups statewide.
Caps have long been used to entomb trash in landfills. But they've become common features below housing developments and schools in recent years, a product of loosened regulations and a push to redevelop industrial properties.
The barriers may include high-tech geosynthetic liners to trap pollution underground. But caps are more likely to be a building, an asphalt parking lot or a few feet of cleaner soil.
Sometimes, the cap itself isn't clean: At EnCap, sediment dredged from the harbor and used as part of the cap is itself tainted with heavy metals and PCBs -- but those levels are supposed to be low enough to pass state regulations.
An EnCap spokeswoman said the project is far from a drive-by cleanup and that it will include a variety of safeguards. In addition to a 24- foot thick cap, the site will have gas collection systems, 11 miles of underground piping to suck up liquid toxins and a six-mile vertical wall around the property, Brittany Burkett said.
All of it will meet the state's environmental standards, she promised.
Builders and consultants say caps are safe -- and often the only economical way of getting polluted property back on the tax rolls. With New Jersey's history of heavy industry, it's unrealistic to expect every site to be restored to pristine conditions, said Berkowitz, who headed a DEP cleanup program in the 1980s.
"You can't dig up all of New Jersey and send it to Ohio," he said.
Even environmentalists like Tittel say caps have their place -- just not on sites where the public, especially children, will be spending a lot of time. The DEP commissioner said caps will remain a part of the state's cleanup options.
But in her testimony before a state Senate panel last year, Jackson said the state needs more authority over projects that put homes and schools above tainted sites.
State legislators rewrote the cleanup requirements for industrial sites in 1993, after companies, local officials and others complained the stringent rules made it prohibitively expensive to restore many properties. The changes stripped the DEP of its ability to order specific remedies -- limiting it instead to accepting or rejecting what a site owner proposes.
The result, environmental groups complain, has been a bias toward the cheapest solution -- typically, a cap.
"There's nobody looking at these things. There's nobody monitoring these things," said Bill Wolfe, director of the group Public Employees for Environmental Responsibility. "They're an invitation for something to go wrong."
The DEP's Kropp agreed inspections need to increase. "I don't think one person driving around the state is the answer," she said.
She also said the department needs to find a better way of tracking caps, so they aren't forgotten as years pass and land changes hands.
The state's fear: that someone, sometime in the future, could sink a backhoe or extend a sewer pipe in the wrong spot and open a toxic Pandora's box.
"Time goes by, property owners come and go," Kropp said. "Residents could be exposed to contamination."
More caps proposed
As officials debate the problem, builders are proposing more caps.
In Wood-Ridge, developers plan to replace Curtiss-Wright, the sprawling, long-blighted engine manufacturer, with 740 units of new housing, retail space and a school. They will haul off tons of polluted soil, but leave some in place beneath the parking lot of a planned NJ Transit train station.
In Fair Lawn, public outrage last month helped derail plans for a gated community of town homes and senior housing at the old Clariant Corp. chemical factory. Soil and water beneath the surface are streaked with cancer-causing benzene, heavy metals and PCBs -- some at levels over 100 times what the state considers safe for direct contact.
"New Jersey is already not the safest place to live," said Michael Roney, one of the local residents who fought the plan. "To have people stacked in a high-density development on top of known carcinogens in the groundwater, it doesn't seem like a good idea."
Clariant said it would have followed state cleanup requirements that protect the public. The company has been treating toxic groundwater on-site for 15 years, noted Michael Teague, its vice president for environmental safety. The development plan called for removing more tainted soil and using a new technique -- injecting hydrogen peroxide in the ground -- to destroy pollution.
Whatever was left underfoot would have been safely sealed beneath a cap, Teague said.
Likewise, officials with the state's Schools Construction Corp. say they're comfortable with their decision to finance 14 schools on capped sites around New Jersey.
The list includes three buildings in Paterson -- International High School, P.S. 24 and the PANTHER Academy, a school for science and math students. The academy opened in 2004 on the site of an old auto shop, where some soil contains heavy metals and other pollutants, said Ron Carper, the agency's program manager for environmental services. The building's foundation and 2 feet of clean soil serve as caps.
The sites have "low levels" of contamination and the caps will keep students from touching any harmful pollution, Carper said. All 14 schools, he noted, will have special ventilation systems, in case chemicals vaporize and seep into the buildings.
"A lot of work goes into the design and engineering of these remedies," he said.
Still, Paterson is an example of the kind of confusion that can reign. Contacted last week, neither the district's facilities director nor its environmental project manager could say whether they had any buildings atop caps.
The idea schools are rising on still contaminated land was also news to residents in Paterson.
DeSion Brown works next to the Grand Street property where the International High School is under construction. He was surprised to hear the project will leave lead, copper and other industrial chemicals underground.
"I haven't heard anything about it and there's been dust and dirt blowing all around here for weeks," he said.
Most of the school's neighbors "don't really know enough to worry about the toxicity of this area," he said. "They wouldn't even know to ask."
* * *
By the numbers
** In North Jersey, the state has let owners of more than 120 polluted properties cover the contamination with a cap of soil, asphalt or some other material rather than removing it. That includes 57 sites in Bergen County and 50 in Passaic County.
** At least 36 towns in the area have capped sites. At the top: Paterson, with 19 caps; Clifton, 14; Passaic, 9; Carlstadt, 8; and Hackensack and North Bergen, with 7 each.
** Caps save money: One environmental consultant recalled a Hudson County condo development that spent $3 million to remove polluted soil. Capping would have cost less than $200,000, he estimated.
AFTER SEVEN YEARS IN COURT, VINDICATION FOR SEATTLE PROTESTERS
By Gerson Smoger
After seven years of litigation, Public Justice has just reached a landmark settlement against the City of Seattle for unconstitutionally arresting peaceful anti-World Trade Organization protesters. The settlement comes on the heels of an 11-day trial and favorable jury verdict Public Justice's litigation team had won this past January 28.
In the January victory, the jury in Hankin v. City of Seattle found that Seattle had unconstitutionally arrested about 175 peaceful protesters in the "no protest zone" it hastily created during the WTO Ministerial meetings in late 1999. Those protesters were wrongfully jailed for up to five days because the city overreacted to disruptive activities by a small number of violent demonstrators. The protesters were ultimately released and never charged with any crime.
Under the settlement just reached, the City will seal the arrest records and help make sure other government agencies expunge the arrests from their records, too. The City will also incorporate the federal court decisions that Public Justice won -- which found that police lacked probable cause for the arrests -- into its police training. Finally, the city will pay $1 million to the class.
The lead trial attorney was former Public Justice President and current board member Mike Withey. A number of Public Justice members and personnel, including executive director Arthur Bryant, worked on the case.
Gerson Smoger is Vice President of Public Justice and a principal in the Smoger Law Firm of Dallas, Texas and Oakland, California.
IN THE U.S., THE INCOME GAP IS WIDENING, DATA SHOWS
By David Cay Johnston
Income inequality grew significantly in 2005, with the top 1 percent of Americans -- those with incomes that year of more than $348,000 - receiving their largest share of national income since 1928, analysis of newly released tax data shows.
The top 10 percent, roughly those earning more than $100,000, also reached a level of income share not seen since before the Depression.
While total reported income in the United States increased almost 9 percent in 2005, the most recent year for which such data is available, average incomes for those in the bottom 90 percent dipped slightly compared with the year before, dropping $172, or 0.6 percent.
The gains went largely to the top 1 percent, whose incomes rose to an average of more than $1.1 million each, an increase of more than $139,000, or about 14 percent.
The new data also shows that the top 300,000 Americans collectively enjoyed almost as much income as the bottom 150 million Americans. Per person, the top group received 440 times as much as the average person in the bottom half earned, nearly doubling the gap from 1980.
Prof. Emmanuel Saez, the University of California, Berkeley, economist who analyzed the Internal Revenue Service data with Prof. Thomas Piketty of the Paris School of Economics, said such growing disparities were significant in terms of social and political stability.
"If the economy is growing but only a few are enjoying the benefits, it goes to our sense of fairness," Professor Saez said. "It can have important political consequences."
Last year, according to data from other sources, incomes for average Americans increased for the first time in several years. But because those at the top rely heavily on the stock market and business profits for their income, both of which were strong last year, it is likely that the disparities in 2005 are the same or larger now, Professor Saez said.
He noted that the analysis was based on preliminary data and that the highest-income Americans were more likely than others to file their returns late, so his data might understate the growth in inequality.
The disparities may be even greater for another reason. The Internal Revenue Service estimates that it is able to accurately tax 99 percent of wage income but that it captures only about 70 percent of business and investment income, most of which flows to upper-income individuals, because not everybody accurately reports such figures.
The Bush administration argued that its tax policies, despite cuts that benefited those at the top more than others, had not added to the widening gap but "made the tax code more progressive, not less." Brookly McLaughlin, the chief Treasury Department spokeswoman, said that this year "the share of income taxes paid by lower-income taxpayers will be lower than it would have been without the tax relief, while the share of income taxes for higher-income taxpayers will be higher."
Treasury Secretary Henry M. Paulson Jr., she noted, has acknowledged that income disparities have increased, but, along with a "solid consensus" of experts, attributed that shift largely to "the rapid pace of technological change has been a major driver in the decades- long widening of the income gap in the United States."
Others argued that public policies had played a role in the shift. Robert Greenstein, executive director of the Center on Budget and Policy Priorities, an advocacy group for the poor, said that the data understates the widening disparity between the top 1 percent and the rest of the country.
He said that in addition to rising incomes and reduced taxes, the equation should take into account cuts in fringe benefits to workers and in government services that middle-class and poor Americans rely on more than the affluent. These include health care, child care and education spending.
"The nation faces some very tough choices in coming years," he said. "That such a large share of the income gains are going to the very top, at a minimum, raises serious questions about continuing to provide tax cuts averaging over $150,000 a year to people making more than a million dollars a year, while saying we do not have enough money" to provide health insurance to 47 million Americans and cutting education benefits.
A major issue likely to be debated in Congress in the year ahead is whether reversing the Bush tax cuts would slow investment and, if so, how much that would cost the economy.
Mr. Greenstein's organization will release a report today showing that for Americans in the middle, the share of income taken by federal taxes has been essentially unchanged across four decades. By comparison, it has fallen by half for those at the very top of the income ladder.
Because the incomes of those at the top have grown so much more than those below them, their share of total income tax revenue has risen despite the reduced rates.
The analysis by the two professors showed that the top 10 percent of Americans collected 48.5 percent of all reported income in 2005.
That is an increase of more than 2 percentage points over the previous year and up from roughly 33 percent in the late 1970s. The peak for this group was 49.3 percent in 1928.
The top 1 percent received 21.8 percent of all reported income in 2005, up significantly from 19.8 percent the year before and more than double their share of income in 1980. The peak was in 1928, when the top 1 percent reported 23.9 percent of all income.
The top tenth of a percent and top one-hundredth of a percent recorded even bigger gains in 2005 over the previous year. Their incomes soared by about a fifth in one year, largely because of the rising stock market and increased business profits.
The top tenth of a percent reported an average income of $5.6 million, up $908,000, while the top one-hundredth of a percent had an average income of $25.7 million, up nearly $4.4 million in one year.
Rachel's Democracy & Health News (formerly Rachel's Environment & Health News) highlights the connections between issues that are often considered separately or not at all. The natural world is deteriorating and human health is declining because those who make the important decisions aren't the ones who bear the brunt. Our purpose is to connect the dots between human health, the destruction of nature, the decline of community, the rise of economic insecurity and inequalities, growing stress among workers and families, and the crippling legacies of patriarchy, intolerance, and racial injustice that allow us to be divided and therefore ruled by the few. In a democracy, there are no more fundamental questions than, "Who gets to decide?" And, "How do the few control the many, and what might be done about it?" As you come across stories that might help people connect the dots, please Email them to us at email@example.com. Rachel's Democracy & Health News is published as often as necessary to provide readers with up-to-date coverage of the subject. Editors: Peter Montague - firstname.lastname@example.org Tim Montague - email@example.com
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