As part of our Hot Topics in Environmental Law Summer Lecture Series, Sharmila Murthy, Northeastern University School of Law, gives an impactful Hot Topics lecture, “Sustaining Environmental Justice,” that dovetails with our last episode (28), "Advancing Environmental Justice in a Chaotic Time," by Marianne Engelman Lado, New York University School of Law and Vermont Law and Graduate School Distinguished Environmental Law Summer Scholar.
Narrator
This podcast is a production of the Maverick Lloyd School for the Environment at Vermont Law and Graduate School.
Christophe Courchesne
Hello and welcome to the Hothouse Earth Podcast. I'm Christoph Courchesne, associate professor of law and director of the Environmental Advocacy Clinic and associate dean for environmental and experiential programs here at Vermont Law and Graduate School. Welcome to our Hot Topics in Environmental Law Lecture series for today's episode. We are beyond pleased to welcome Professor Murthy joined Northeastern University in 2023 as professor of law and public policy.
When the School of Law and the College of Social Sciences, her scholarship focuses on examining legal barriers to achieving environmental justice, improving access to water, and addressing climate change. During the Biden administration, she had a very busy job, served as director of environmental justice and as a senior counsel at the White House Council on Environmental Quality. Prior to joining Northeastern's faculty, she served as Professor of Law and Director of Faculty, Scholarship and Research at Suffolk University Law School.
She received her J.D. from Harvard Law School, her MPA from Harvard Kennedy School of Government and her Bachelor in Sciences from Natural Resources from Cornell University. Join me in welcoming Sharmila Murthy.
Sharmila Murthy
Thank you so much, Christophe. Delighted to be with you all today. My talk today on sustaining environmental justice builds on a fantastic talk that my friend and colleague Marian Engelman Lardo gave as part of your hot topics series. And Marian and I worked closely together when she was at the EPA and I was at the White House Council on Environmental Quality during the Biden-Harris administration.
And my talk today, Sustaining Environmental Justice, is going to build on and complement her talk, advancing environmental justice in a chaotic time. So my talk today proceeds in two parts. First, I want to explain this concept of norm sustaining, and then I want to talk about the importance of sustaining norms to advance environmental justice for all at this particular moment in time.
So to explain the concept of norm sustaining, I actually want to take you back about a decade to 2015 when the Paris Agreement on Climate Change was first adopted by the international community, and under President Obama, the U.S. became a signatory to the Paris Agreement on climate change. But then in 2017, when President Trump took office for the first time, he announced that the U.S. would be withdrawing from that treaty.
Now, in response, there was quite a lot of outcry, including by states and cities. And so you had many states forming together to create the U.S. Climate Alliance, which was a bipartisan coalition of governors that were seeking to address the goals of the Paris Agreement on climate change and pledged to try and achieve those goals. Similarly, at the local level, you had mayors pledging to uphold the Paris Agreement goals, and the question was what did this all mean from the standpoint of international law?
Because traditionally, since the Treaty of Westphalia in the 1600s, we've always thought about international law, traditionally as between nation states. So what does it mean for states and cities to be pledging to uphold the goals of an international treaty? So in thinking through this question, I was really intrigued by a theory by Professor Harold Koh of Yale University called The Theory of Transnational Legal Process, which offered a different view on international law that it was a hybrid body of international and domestic law that was not generated solely by nation states, but by a multiple of actors from the private sector, the nonprofit sector, from states and cities.
And they all of these interactions were together, helping to internalize international law into domestic law and transnational legal process. Theory really focuses on how law influences why nations obey. And I want to read to you a quote from one of his early papers on this topic. Koch's transnational legal process theory predicts that nations will come into compliance with international norms if transnational legal processes are aggressively triggered by other transnational actors in a way that forces interaction and forums capable of generating norms followed by norm internalization.
So let's try and break down what that means with a simple analogy. Imagine that you are driving in a residential neighborhood at night and you see a stop sign. There are no cops nearby. There is actually no one else driving on the street. You're the only one there. You see the stop sign? Do you stop? If you stop, you can understand that as a process of true norm internalization.
And in the same way, we can think about the fact that nations may, in fact, be acting a certain way because they are internalizing certain norms. Now, this idea of norms was not new to the international literature. You actually had terms like Norm entrepreneurs and Norm sponsors. So, for example, when NGOs encourage governments to push for new ideas, they're often described as norm entrepreneurs.
When nations then take those new ideas into treaty negotiations, they're described as norm sponsors. But neither of these terms really seemed to explain what was happening when you had states forming the U.S. Climate Alliance and mayors and other local actors trying to pledge to uphold the Paris Agreement on climate change. And what I suggested is that they are actually acting as norm sustainer and that they are actually reinforcing and contributing to international law in three distinct ways.
So first, by publicly benchmarking their progress against U.S. targets, they could foster compliance by other nation-states. And especially when you have a big economy like California pledging to uphold the Paris Agreement on climate change, that would certainly have an impact on other nations. Second, strengthening key norms of international environmental law. So, for example, a key principle like common but differentiated responsibilities and respective capabilities, recognizing that countries have different backgrounds, have contributed differently to the problem, and also have differing abilities to respond to that problem.
And third, demonstrating the feasibility of climate actions to lay the groundwork for national policy. Now, this is consistent with our model of federalism in the U.S., where states have long been understood to be laboratories for democracy. And here the goal was to for states and cities to be able to show that, yes, climate action was, in fact, feasible. So when we had another administration take office, we would be able to pick up where we had left off.
So I outlined all of these ideas in a paper called States and Cities as Norm Sustainable a role for subnational actors in the Paris Agreement on Climate Change that came out in 2019 in the Virginia Environmental Law Review. Now, the reason that I've been thinking a lot about this prior work that I did at this moment in time is because we are at another moment in time where we need to be thinking about norm sustaining now, for the last number of years.
As Christof pointed out, I was working in the White House Council on Environmental Quality, focused on domestic environmental justice advancements and what we've seen since January 19th when President Trump took office again is a complete rollback of those advancements. And in fact, beyond environmental justice, we can understand the second Trump administration as really pushing back on funding mental norms that undergird our legal and our political system.
So, through a series of executive orders at a somewhat dizzying pace. We're seeing President Trump issue orders that really challenge the very norms that many of us have come to hold dear and many ways following the project. 2025 Playbook, which at one point when it was first released, was seen as quite radical, and in many ways, through these executive orders, what we see the Trump administration doing is normalizing these otherwise radical ideas.
So, for example, to pick some areas outside of the environment, we can look at immigration. We see that Trump and just these are literally pulled from the headlines, the news headlines that the Trump administration's deporting hundreds of immigrants, even as judges are ordering their removal to be stopped. We're seeing this in numerous instances. We're seeing attacks on students on immigrant visas.
The Trump administration trying to block their access to education. We're also seeing Trump attacking higher education with the most notable example coming from my alma mater, Harvard University, and Trump has sought to cancel all federal funds directed at Harvard. And we're seeing other universities being concerned about this. Researchers already beginning to self-censor and engage in anticipatory compliance because they're fearful about the power that the federal government is wielding.
And in a way pushing against really fundamental norms that we have long held to be important, like the importance of federal funding for academic research. Turning back to the environment. We are seeing massive rollbacks on important advancements so that the air we breathe is clean so that the water we drink is safe. There are massive rollbacks happening in the name of deregulation, which is really going to allow polluters free rein and be harming the American people.
In addition, hardly six months ago, the idea of diversity, equity, inclusion and accessibility were actually norms that many people in many institutions prioritized and held dear. And yet now we're seeing attacks on DTI and on environmental justice, and in particular on a day one executive order under the guise of claiming that these programs are somehow discriminatory or illegal without any actual legal citations in the executive orders.
I'm trying to terminate those programs within the federal government and all of those offices, and we've all white been watching the news and seeing the devastating impact on the federal workforce as well. So at this moment in time, this concept of norm sustaining is incredibly important. So while my earlier work had considered this with respect to international law, I'm now thinking about this concept of norm sustaining vis-à-vis the U.S. domestic law, and in particular, what can we do in this moment in time to sustain norms, to advance environmental justice for all?
Now, the challenge is, is that during the second Trump administration, we don't actually have all of the same tools that we had before because of the continued attacks. So we see, for example, in April, President Trump issued yet another executive order protecting American energy from state overreach. And in doing so, he is tasking the attorney general with identifying state and local laws that supposedly burden the development or use of domestic energy resources on the theory that they may be unconstitutional, preempted by federal law, otherwise unenforceable.
Once again, there's no proof that these are actual or valid legal claims, but rather by trying to speak them. He is trying to create law where it does not yet exist. Similarly, also prioritizing the identification of state laws that purport to address climate change or involve environmental, social and governance initiatives, environmental justice, carbon or greenhouse gas emissions and funds to collect carbon penalties or carbon taxes.
So essentially the same kind of reaction that we would hope to be seeing from states and cities may, in fact, be curbed somewhat by these very intentional actions that are directed at states and cities. Similarly, we see attacks at many other institutions that are critical for keeping an authoritarian regime in check. These are law firms, universal cities, and civil society groups.
We have all seen and may be personally experiencing the impact and the brunt of these attacks and cuts in funding. And it's with this in mind that I see myself as having an obligation to actually do what I can to sustain norms, to advance environmental justice. And as someone who is sitting in a university who also had the privilege to work at the White House Council on Environmental Quality during the Biden and Harris administration to advance environmental justice, I want to take this moment to actually share the historic work that we were able to accomplish to advance environmental justice, because if we do not document this history, if we do not analyze and share lessons
earned from what worked well and what didn't, then we will wind up reinventing the wheel at a future date. Instead, we need to keep these norms alive so that when we have another president in office who's actually going to be advancing environmental justice for all that we are able to pick up from where we left off. So with that, I would like to turn to the to the second part of my presentation and really briefly walk you through the some of the key initiatives that were undertaken on environmental justice during the Biden-Harris administration.
But I want to first start with a brief history of environmental justice and some seminal executive orders. Before I jump in, let me just pause and say that Marion Engelman Lado in her hot topics talk last week, which is also available on the Vermont Law website, does a great job of discussing the history of environmental justice. And so I'm going to very quickly hit some highlights, but I would refer you to her talk for a more fulsome discussion.
In 1994, President Clinton signed Executive Order 12898 on federal actions to address environmental justice in minority populations and low-income populations. This was really seen as the seminal executive order that really showcased the federal government's attention to environmental justice, and in particular, it directed federal agencies to address the disproportionately high and adverse human health and environmental effects on populations that had long been overburdened by pollution and otherwise neglected.
But the federal government did not do this out of the blue. Rather, they were really responding to decades of activism and action by civil society in communities to protest the unfair siting of toxic waste and other chemicals and other hazards in communities that were largely communities of color and low-income communities. And in particular, the protest sites in Warren County, in North Carolina around the dumping of PCBs really sparked national attention and galvanized the environmental justice movement.
In addition, there were key reports by civil society groups, including the United Church of Christ, which issued toxic waste and race in the United States. A national report on the racial and socioeconomic characteristics of communities with hazardous waste sites. A really creating the evidentiary basis for showing that not all communities are being treated fairly in our country. The federal government began to take notice even before the 1990s.
In the 1980s you had the General Accounting Office issuing a report on the siting of hazardous waste landfills and their correlation with racial and economic status of surrounding communities. And as a result of the 1994 Executive Order 12898, that President Clinton signed on environmental justice, you had the federal government begin to take meaningful steps to really address those disproportionately high and adverse human health and environmental effects on communities.
In addition, you had in 2011 a memorandum of understanding on environmental Justice and Executive Order 12898 that many federal agencies signed. They were recommitting to uphold the key tenants of Executive Order 12898 and in addition, this also included agencies that weren't mentioned in President Clinton's executive order, such as the Department of Homeland Security, which didn't even exist at that moment in time.
And of course, you had agencies like the EPA really trying to lead the way on environmental justice, but there had not actually been any presidential action per say since 1994, when President Clinton signed 12898 until President Biden took office. And you can still find on the Biden White House archives the website that our team put together that really documents and outlines all of our work on environmental justice.
So feel free to take a look at that after this talk. I'm going to focus today on two of the key executive orders that President Biden signed to advance environmental justice. But I want to say that he actually signed seven executive orders to advance environmental justice and in various ways, this was really about creating a whole of government effort and seeing the many ways in which environmental justice really does impact so many different issues and topics.
But let me first start with the key initiatives that were developed under 14 008, which was an order that President Biden signed within his first week in office, and it was on tackling our climate crisis at home and abroad. And it had it was a very large law executive order, and it had an entire section on securing environmental justice and spurring economic opportunity.
And I want to pause for a minute and actually just note the importance of bringing together these two concepts that spurring economic opportunity is so central to environmental justice, which has historically been focused on addressing those disproportionately high and adverse human health and environmental effects, as well as meaningful involvement. But in addition, President Biden really saw the flip side of the coin here, that it's not just about addressing harms, it's also about understanding who is sharing in the benefits of investments.
And he created something called the Justice 40 Initiative, which set a goal that 40% of the overall benefits of certain federal investments would flow to disadvantaged communities that are marginalized by underinvestment and overburdened by pollution. This applied to investments in clean energy, climate, clean transit, housing, legacy pollution, water infrastructure and training and workforce development. This was not a pot of money, but rather thanks to the bipartisan infrastructure law, the Inflation Reduction Act and others.
There was, in fact, an infusion of funds and the goal was to ensure that those funds and investments would, in fact, be shared more equitably. This required agencies to really think about how they were implementing their programs and making a series of changes to ensure that they were actually getting funds out to communities that might have otherwise been neglected or disadvantaged.
It applied to new and existing programs and as well to discretionary as well as formula funded programs. So in January of 2025, just within his last few weeks in office, President Biden did in fact launch a Justice 40 website. And through the Justice 40 initiative, which was really part of President Biden's historic Investing in America agenda, more than 500 programs across 19 federal agencies were identified and that, in fact, these programs reached and exceeded that goal of trying to target the benefits of investments to disadvantaged communities.
So you had, for example, the Department of Homeland Security showcases showcased on this this website, a project in Texas in Harris County Flood Control District buyout project, and essentially this county in Harris County, a community in Harris County, Texas, faced repetitive flooding. And there were so many flood loss claims submitted and ultimately the flood prone area was to be restored and the larger community would be protected from future flooding events.
Moving over to Ohio, the Department of Energy was also proud of a program that sought to establish Ohio's inaugural Net-Zero Energy neighborhood, and it really sought to create its first net zero energy disadvantaged community in the nation and to conduct comprehensive energy efficiency renovations on historical homes that hadn't been modernized. So these are just two examples of the Justice 40 initiative that was really seeking to target the benefits of investments in climate, clean energy and other areas and 40% of those to disadvantaged communities.
This term, disadvantaged communities was a term of art, and we used a tool called the Climate and Economic Justice Screening Tool to help identify those communities. It was an interactive mapping tool designed to identify disadvantaged communities at the census tract level. It applied to the entire U.S., including the district of Columbia and the U.S. territories. It used environmental, climate, socioeconomic data and other datasets to create indicators of burden and in addition, land within the boundaries of federally recognized tribes, including Alaska.
Native villages were highlighted as disadvantaged. This was a really lovely website that was very easy to use. You can see, as I said, you can still see an offline version of it at screening Hyphen tools dot com. A third initiative was called the Environmental Justice Scorecard. Now, this was a tremendously important initiative as well because it really underscored the commitment of the Biden-Harris administration to transparency and to actually having information shared with the public about what federal agencies were doing.
And so this was a very robust website that once again, is no longer up, but it had metrics and information from a whole number of agencies relating to the Justice 40 initiative, environmental and civil rights protection, in particular the National Environmental Policy Act, Title six of the Civil Rights Act, centering environmental justice in decision making, consultation and partnership with tribal nations, and also institutionalizing environmental justice.
And, you know, it's it was a tremendous effort because federal agencies do not actually always collect the same kind of data. And so even be trying to begin to standardize the kind of data that was being collected across the federal government was in and of itself a really important task. Let me now move on into talking about some of the key actors that helped to make this work possible within the federal government.
There's a really critical role for inter-agency bodies that actually help agencies work across silos and work across boundaries. And because President Biden had set environmental justice as a whole of government initiative, what he did is he elevated environmental justice by taking the preexisting inter-agency working group on environmental justice and renaming it the White House Environmental Justice Interagency Council.
And this was really important because it really tried to elevate and tried to enhance the coordination across the federal government on this important initiative. So we have a number of federal departments, as well as White House components that were very active to coordinate this work. In addition, the Biden-Harris administration took very seriously the fact that we needed to hear from community members.
And in particular it created under the Federal Advisory Committee Act, the White House Environmental Justice Advisory Council. So these were leaders from nonprofit groups, from the private sector, from state and local governments and tribes, from academic professors and other representatives that really provided an important voice to the federal government. And in particular, this is just an example of a very detailed recommendations that they would provide to the federal government that we at CQ would then share with our federal partners.
Louis-Jacques also held public meetings that were very well attended and provided an opportunity for members of the public to share their thoughts with the federal government. Tremendously important work and we're so proud when we were able to to hold the White House Summit on Environmental Justice in action. And it's hard to believe that that was basically just a year ago that that happened.
Now, let me turn to the next executive order. And in some ways, you can see that I think about this somewhat chronologically, because I was at the White House Council on Environmental Quality from 2021 through 2024. And so in many ways, I'm sharing with you the way in which I was experiencing this work. In 2023, President Biden signed revitalizing our nation's commitment to environmental justice for All.
Executive Order 14096 This executive order led to a number of key changes. First, it institutionalized the White House Office of Environmental Justice, and that was our team and created a new position. The federal chief environmental justice officer, led by Dr. Jalon Whyte Newsome, who I was privileged to work with. In addition, Executive Order 14096 created a federal government-wide definition of environmental justice.
Now, for a long time there, you know, EPA had a definition that was used by EPA and some other agencies used it, but there had never actually been a government-wide definition of environmental justice. And I want to just highlight why this definition is so important. First of all, this definition builds on recommendations that were provided by the White House Environmental Justice Advisory Council.
It talks about just treatment and meaningful involvement. So both sort of substantive and procedural aspects of environmental justice of all people, regardless of income, race, color, national origin, tribal affiliation, or disability. This is important. This was about environmental justice for all, not just focused on particular communities, but really thinking about how do we ensure that everyone has access to clean air, clean water, a safe place to live and play, and focused again on federal activities that affect human health and the environment so that people are fully protected from disproportionate unit and adverse human health and environmental effects.
And a call out to climate change. There was a call out to cumulative impacts. So important. And then also recognizing the legacy of racism or other structural or systemic barriers. And these are real, even in the face of changing norms that the Trump administration is now trying to do that, that we still do have the legacy of racism and other structural and systemic barriers that are affecting communities today.
Speaking to that second half of the coin, when I talked about the Justice 40 initiative earlier, I mentioned how important it was that President Biden was also thinking about ensuring that communities were sharing in the benefits of environmental protections and investments, that they have equitable access to a healthy, sustainable and resilient environment in which to live, play, work, learn, grow, worship and engage in cultural and subsistence practices are really robust definition.
This executive order has been revoked actually numerous times by President Trump. But the point is, is that this definition is still out there. It still exists. And one day, if we can keep these norms sustained, will once again hopefully have meaning for the federal government. Another key element of Executive Order 14096 signed in 2023, was an effort to ensure that federal agencies were thinking critically about how to advance environmental justice in all of their operations.
And a key way to do that was through strategic planning. And so in October of 2023, we had issued interim guidance to our federal agency partners that was called Strategic Planning to Advance Environmental Justice. And this was a template and a playbook for agencies to follow. And I'm proud to say that we actually had a lot of agencies actually issue their plans.
They saw it as critically important to be able to articulate for the American public how it was that they were going to be advancing environmental justice for all people. In addition, under the Biden-Harris administration, another really key aspect was heightened attention to science and data. And through the Office of Science and Technology Policy, that arm of the White House, the Executive Order 14096, created an Environmental Justice Subcommittee of the National Science and Technology Council.
And this brought together experts, scientists, researchers, experts across the federal government to really think critically about how they could better advance science, data and research to advance environmental justice. And in July of 2024, they released a tremendous report that once again, you can still find available unofficially or through the archives. I want to now turn to another key aspect of Executive Order 14 096, which is the way in which it incorporated key statutes.
When President Clinton signed Executive Order 12898 back in 1994, the actual executive order did not contain any references to statutes. Instead, he issued an accompanying memorandum to federal agencies that highlighted the importance of, in particular, the National Environmental Policy Act, or NEPA, and Title six of the Civil Rights Act. When President Biden signed Executive Order 14096 in 2023, that executive order actually specifically references these statutes because the goal was in many ways to show exactly how environmental justice is, in fact supported by legal authorities, many different legal authorities, but in particular these two.
And as a result, we saw a commitment. We saw agencies taking action to advance environmental justice through their work under the National Environmental Policy Act, as well as the administration finalizing the NEPA regulation. Now, of course, within, you know, just just shortly after taking office, President Trump's administration almost immediately sought to remove the NEPA implementing regulations. I mentioned Title six of the Civil Rights Act.
I want to just say a word about why Title six of the Civil Rights Act is seen as so relevant to environmental justice. And here's two quotes from a U.S. Department of Justice manual on Title six that disparate impact regulations seek to ensure that programs accepting federal money are not administered in a way that perpetuates the repercussions of past discrimination.
The Supreme Court has repeatedly held that Title six regulations validly prohibit practices having a discriminatory effect on protected groups, even if the actions or practices are not intentionally discriminatory. So disparate impact has long been seen as a very critical tool for addressing environmental justice these regulations. But we see the Trump administration taking aim at these longstanding regulations. So, for example in a executive order from just this past April called restoring equality of opportunity and meritocracy, taking aim at the Civil Rights Act of 1964, among other nondiscrimination laws.
And as a result, we're seeing federal agencies already beginning to try and roll back longstanding protections for on nondiscrimination such as DWIs. Department of Energy's recently promulgated direct final rule on rescinding regulations related to nondiscrimination in federally assisted programs or activities. And once again, the use of a direct final rule as opposed to a traditional notice of proposed rulemaking also just suggests a tremendous disregard by this Trump administration for the Administrative Procedures Act and for traditional legal processes.
And at this moment in time, when we are seeing such a rollback on so many fronts, on environmental protections, on immigration, on the rule of law, on due process, we are seeing a fundamental shift in the norms that we have once held sacred as a society. It's important to understand this concept of norm sustaining and really understand ways that we can be sustaining norms to advance environmental justice for all.
And I want to leave you on a perhaps hopefully, somewhat optimistic note to say that we do have a voice. We do have a role here. So together with my colleagues, former colleagues at the White House Council on Environmental Quality, as well as Marian Engelman, lato of the EPA, we wrote a blog a few months ago called Environmental Justice is not about Them.
It's about all of us. And we ended the blog with a few things that people can do. You can write to your elected representatives and let them know you stand for greater health and environmental protections for all. You can tell your state and local leaders to develop stronger laws, regulations and programs on environmental justice. And in particular, this was actually written before the latest executive orders attacking states and cities.
You can try to stand with your local and state leaders to withstand attacks by the federal government. You can volunteer with your local environmental and environmental justice organizations because despite the Trump administration's rhetoric, environmental justice is not about them. It's not about an other. It's about making sure no child is exposed to lead in water. It's about making sure no family fears that the air they are breathing is poisoning them.
About all of us. And for those of us that are academics like I am, we also have an obligation to keep telling this important story, to keep writing about the importance of environmental justice protections for all people. Because if we don't sustain these norms, who will?
Christophe Courchesne
Thank you, Listener for tuning into Hothouse Earth today to view the full lecture with the Q&A afterward, please visit the Vermont Line Graduate School’s YouTube Channel.
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