Tuesday, June 28, 2022


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Excerpted From: Helen Sprainer, Air Quality Equity: Why the Clean Air Act Failed to Protect Low-income Communities and Communities of Color from Covid-19, 30 New York University Environmental Law Journal 123 (2022) (194 Footnotes) (Full Document)


HelenSprainerBlack communities in the state of Louisiana are disproportionately dying of infection from COVID-19. A 46-year-old Black woman, who worked as a nurse at the New Orleans East Hospital, was exposed to COVID-19 while treating her patients and ultimately died. The hospital where she used to work is located in the 9th Ward of New Orleans, and 83 percent of their COVID-19 patients were Black in April of 2020. Similarly, the Zulu Social Aid & Pleasure Club--a center for Black culture in New Orleans--has been devastated by the virus. In the month after the Mardi Gras celebration of February 2020, twenty of the club's members were hospitalized and five members died. These two stories attempt to give life to the following statistic: in April of 2020, Black residents accounted for 70 percent of Louisianans who died from COVID-19, but only 33 percent of the total population of Louisiana. More recent analyses show that the extent of this disparity has decreased over time, with some reports finding that as of June 2021, Black individuals accounted for 39 percent of deaths, and others concluding that Black individuals accounted for up to 52 percent of deaths from COVID-19. Although the long-term trend suggests that this inequality is decreasing over time, even the lowest estimates demonstrate that Black individuals in Louisiana are disproportionately dying from COVID-19, especially as compared to their white counterparts. White Americans made up 62.9 percent of the population and only 46 percent of deaths as of June 12, 2021. Looking at the morbidity rate during this same time frame, Black individuals made up 51 percent of COVID-19 cases and only 33 percent of the population, while white Americans made up 36.2 percent of cases and 46 percent of the population. These statistics show an unmistakable trend: Black individuals in Louisiana are disproportionately infected with and dying from COVID-19.

There are a number of different factors that contribute to this injustice. This Note focuses on the fact that low-income communities and communities of color across the country are exposed to higher long-term concentrations of an air pollutant that makes COVID-19 more deadly. This disparity is an environmental justice crisis. EPA defines environmental justice as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The pandemic has created an environmental justice crisis because low-income communities and communities of color are disproportionately exposed to environmental health hazards that exacerbate the severity of infection with COVID-19. One of these environmental health hazards is fine particulate matter, a class of air pollution that is finer than 2.5 micrograms. One example of fine particulate matter pollution is the soot that streams from tailpipes, smokestacks, and wildfires. A Harvard study of COVID-19 mortality rates in the United States found that an increase in exposure of only 1 g/m in long-term fine particulate matter pollution is correlated with an 11 percent increase in the death rate from COVID-19. This environmental injustice begs the question: why are our environmental laws failing these communities?

To begin to answer this question, this Note takes a case study of the relationships between race, socioeconomic status, fine particulate matter pollution, and mortality from COVID-19 in an area of Louisiana that is called “Cancer Alley.” Cancer Alley is located in southern Louisiana along the Mississippi River. The low-income and minority residents in Cancer Alley are an “environmental justice community” because they experience a confluence of environmental, racial, and economic factors that contribute to disproportionately high environmental hazards and persistent environmental health disparities. Cancer Alley is heavily industrialized, and its residents are mostly Black and living in poverty. The racial and socioeconomic disparities in exposure to fine particulate matter and deaths from COVID-19 are devastatingly apparent in Cancer Alley.

The analysis in this Note finds that there are three main reasons for this inequitable exposure to fine particulate matter pollution in Cancer Alley. First, low-income communities and communities of color in Cancer Alley do not have the political power to control zoning in their communities, and largely white governance structures are zoning these communities for increasing industrial development. Second, the resulting industrialization has increased the amount of fine particulate matter pollution in Cancer Alley over the past five years. Third, long-term exposure to fine particulate matter pollution is one of the factors that makes these residents more susceptible to deadly infection from COVID-19.

After identifying the source of this environmental injustice, the next question is: how can our environmental laws begin to right this wrong? The relevant environmental law is the Clean Air Act, which regulates fine particulate matter at the federal level by way of National Ambient Air Quality Standards (NAAQS). The NAAQS for fine particulate matter establishes the maximum amount of this pollutant that can be in the atmosphere at any given time. This standard is supposed to be set at a level that is “requisite to protect the public health” and allows “an adequate margin of safety” to ensure that the American population is not exposed to dangerous levels of fine particulate matter pollution. Each state then comes up with an individualized plan--called a State Implementation Plan--to ensure that it is in compliance with the NAAQS. Accordingly, the Clean Air Act establishes a regulatory scheme of “cooperative federalism” whereby the federal government sets the goal for air quality and the states achieve that goal in a manner consistent with state and local policies and priorities.

After understanding how the Clean Air Act regulates fine particulate matter, the next question is: how much fine particulate matter pollution is in Cancer Alley, and how does this compare to the federal NAAQS? If, for example, the concentration of fine particulate matter pollution in Cancer Alley is not in compliance with the NAAQS, the solution would need to focus on enforcement of the federal standards. Accordingly, Louisiana could change its State Implementation Plan to address the excessive pollution with hyper-local solutions. If, by contrast, Cancer Alley is in compliance, this finding would suggest that the NAAQS are not sufficiently stringent to “protect the public health” because the communities in Cancer Alley are experiencing significant health impacts, despite compliance with the federal standards. The solution would then be to make the NAAQS for fine particulate matter more stringent at the federal level.

The most obvious solution to the environmental justice crisis in Cancer Alley is to work within the existing framework of the NAAQS and draw upon both federal and state authority under the Clean Air Act. Luckily, the Environmental Protection Agency (EPA) under the current Biden administration is already considering a change to the NAAQS for fine particulate matter because it recently announced that it is revisiting the standard that was upheld by the Trump EPA in 2020. Additionally, President Biden's memorandum entitled “Modernizing Regulatory Review” affords EPA and the Office of Management and Budget (OMB) the opportunity to undertake a rigorous and effective environmental justice analysis before promulgating the new NAAQS for fine particulate matter. This Note suggests that the Biden EPA should go one step further. To better protect environmental justice communities, the Biden EPA should promulgate new regulations for State Implementation Plans that would require states to research environmental injustices, come up with a plan to alleviate these inequities, and meaningfully include environmental justice communities in this process.

This Note's analysis proceeds in four parts. Section I discusses the relationships between environmental justice communities, fine particulate matter pollution, and mortality rates from infection with COVID-19. Section II provides an overview of how fine particulate matter pollution is regulated under the Clean Air Act and how environmental justice concerns are currently incorporated into the NAAQS. Section III is an analysis of the disparate impact of COVID-19 and inequitable exposure to fine particulate matter in Louisiana. Section IV proposes several different solutions to the problems identified and analyzed throughout this paper.

[. . .]

This Note's analysis of the relationships between race, socioeconomic status, fine particulate matter pollution, and mortality rates from COVID-19 shows that there is an intolerable environmental justice crisis in the United States. The pandemic has created an even greater sense of urgency to turn to existing environmental laws and begin to address this inequity. One of the few benefits of COVID-19 is that it has created such a massive disruption in how we live and how we govern ourselves that we are all left questioning the status quo and daring to make drastic changes. It is absolutely critical that society takes advantage of this unusual moment in history to make the country a safer and more equitable place.

Helen Sprainer is a judicial clerk for the Honorable Mary M. Schroeder, Senior Judge, U.S. Court of Appeals for the Ninth Circuit. J.D., New York University School of Law, 2021.

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Professor Emerita of Law
The University of Dayton School of Law