[MUSIC] Sometimes there is an unequal balance between commerce and those who pay the price for it.

Such is the case with industrial pollution.

Not everyone is affected.

[MUSIC] The same.

Stay with us as we talk with attorney Lisa Jordan about environmental justice.

Next on Kentucky Health.

>> Kentucky Health is funded in part by a grant from the Foundation for a healthy Kentucky.

[MUSIC] >> Prior to the advent of World War Two, the United States source of rubber was from the rubber trees in Malaysia.

This changed after World War Two, when Japan.

After the conquest of Malaysia cut the U.S.

off from this source.

As this was.

Wartime in the US, like the rest of the world needed rubber.

What followed was an intense effort to produce synthetic rubber to meet wartime needs.

Of the available alternatives, it was decided that synthetic rubber would be produced using petroleum based butadiene.

This method was so effective that the needs of the military were fully met.

By 1944.

And today, two thirds of all rubber used is obtained using the same processes.

However, there is another side to this story, and that is the environmental and health cost of pollution from rubber production using butadiene.

Butadiene is a toxic chemical and when released into the air, water systems and soil is known to cause cancer, pulmonary disease, cardiac disease and reproductive dysfunction.

While pollution knows no boundaries, people living in areas with greater exposure to butadiene and other toxic chemicals generally suffer more and have poorer health outcomes than those in areas with minimal to no exposure.

To discuss this, and what has become known as environmental justice, we have, as our guest today, Professor Lisa Jordan.

Miss Jordan is a graduate of Louisiana State University and the Loyola University Law School and received a Masters of Law in Energy and the environment from the Tulane University Law School.

She began her legal career as an assistant district attorney in Orleans Parish, and was later appointed to the National Environmental Justice Advisory Council, a federal agency advisory committee, rather to the EPA that provided independent advice to the Environmental Protection Agency.

Miss Jordan is now the director of the Environmental Law Clinic and clinical professor of law, Tulane University Law School in New Orleans, where she educates law students in the representation of communities and individuals in Louisiana facing environmental and public access issues.

Professor Jordan.

Lisa, thank you for being with us today.

>> Thank you for having me.

>> So how does a nice lady from New Orleans get involved in environmental justice?

What was your pathway to doing this?

>> My.

So I was in my last semester of law school at Loyola and having no real idea yet in my last semester of what area of law I wanted to practice and environmental law was actually still relatively new, as a course to be taught in law school and Tulane University had actually an established program in it.

I went and I matriculated in my last semester.

I took two environmental law classes at Loyola, at Tulane, and I was and I was sold, I knew I knew from sitting down in the first class that this was this was what I wanted to do.

>> When did you know you wanted to be a lawyer?

>> That took a while.

I actually my my undergraduate degree is in pre-med.

Is in zoology.

And so I applied to medical school and didn't get in.

And then my father was a lawyer and he's like, why don't you try law school?

And I know, dad, that's I'm not going to like that.

And he, he inched me along.

Well, why don't you just take the Lsat and see how you do on that?

And then I did.

Well, well, just try us.

Try one year and and so he he inched me in and and then I was again.

>> Here we are.

Yes.

Fantastic.

Well, I think it's good to see that you took your father's advice.

So when we use the term environmental justice, what is it we're actually talking about?

>> We're talking about environmental justice really has two main components.

And the definition that's usually used is environmental justice is the fair treatment.

And meaningful involvement of all people, regardless of race, color, or national origin.

And fair treatment itself means that no group of people should bear a disproportionate burden of the results of industrial activity.

No.

No group of people should be disproportionately affected by that.

>> But when we look at it, at least to the untrained eye, it appears that not all communities are affected.

The same.

Is that a fair observation?

>> Yes.

That's our that's certainly our experience in Louisiana and in Cancer Alley in particular, and a couple of other overly industrialized communities.

>> When you say Cancer Alley, what are you talking.

>> About?

It's a stretch of land.

It's about 182 river miles of the Mississippi River from New Orleans to Baton Rouge.

And along this 182 stretch of the Mississippi River, there are communities.

And that is where the large percentage of industrial facilities are located in communities of color, largely.

I mean, there's all.

That's where they're concentrated.

And it's called Cancer Alley because our clients and the people in these communities see a disproportionate burden of cancer in their.

>> What type of chemical production or industrial plants do you find in that stretch of the road.

>> Or the.

A large percentage of them are plastics, components of plastic and plastic.

But petrochemical in general.

There's also oil refineries.

And so.

So under the broad category of petrochemical facilities.

>> We're going to talk a little bit more specifically about here in Louisville, in Kentucky.

But are there other areas in the country where you find these concentrated areas of industrial production?

>> Absolutely, yes.

There, there.

We're not the only state that has this issue.

They definitely exist in many other states.

>> Are they typically found in areas of minority communities and poor or lower income individuals?

Combination of the 2 or 1 or the other or.

Or is everybody going to be exposed?

>> It's I mean, there's in these many areas across the country where industrial pollution is concentrated.

Yes.

They are often in areas with both minority and low income communities.

And sometimes, yes, one or the other.

But usually they they go together.

>> Why is that?

I mean, well, I guess I should put it this way first.

Are people living there and then the industries come or are the industries there?

And then the people come.

>> I can only speak about Louisiana as far as that's concerned.

But the vast majority of the communities in Cancer Alley were there before the industry, because they are communities formed.

When formerly enslaved people were freed.

And these were the folks that were working on the plantations and now were free and established communities that we call free towns in these areas.

So they they were there first.

>> They were there first.

So I opened up talking about the area we have here in Louisville, which is Rubbertown.

That's what it tends to be called.

So I gather then that association with the population again of poor and or I should I keep saying poor, but I guess lower income individuals and racial minorities.

So that is not a unique finding for us here in Louisville.

It's what you find in Louisiana.

And in other places too.

>> Right, exactly.

>> What recourse do people have when they find themselves in these environments?

>> Well, I mean, you can look at this sort of traditional three areas of government.

You can look to the legislative branch to pass laws that will help protect you from these types of situations.

There are a number of states I know New York and New Jersey have environmental justice laws.

They're a little bit different, but they require their state environmental agencies to do an entire analysis.

If a community is an environmental justice community.

So one that is disproportionately burdened and largely black or low income.

There's laws in place that sort of require extra measures.

In some cases, it's the meaningful involvement aspect of environmental justice.

So the laws make sure that the company who wants to the industrial facility that wants to locate in one of these already overburdened neighborhoods has to reach out early and often to the community to let them know to to tell them what they're planning to do.

And it involves the community at an early phase, and it involves the meaningfully.

But sometimes the laws actually go farther and, and dictate substantive decisions based on potentially a finding that it's too much for the community.

So there are some legislative, you know, options where, where the government is willing to pass, where the state government is willing to pass those laws.

And then there are, of course, national environmental laws that that can can help.

But typically permitting of new facilities and permitting of the expansion of existing facilities falls to the state and not the federal government.

Then, of course, there's there's the executive branch.

And again, you know, that's the agencies that are largely doing this permitting and most for most large facilities that are going to pollute the air.

There's a mandated public involvement period.

Again, often they're not sufficient.

And that's why some states have chosen to require more.

If something is going to more burden, an already burdened community.

But there is some type of public notice involved.

And that's when people can start to learn about what this thing is.

So they can they can start by learning, by researching, you know, what this company is, what it's going to do.

Looking at the, you know, looking at their filings and of course, getting some experts, not just lawyers, but also, you know, science experts to help can be really extremely important.

>> So when you talk about the agencies, I gather you're talking about the regulatory agencies within the executive branch, correct?

Which EPA, I guess would be one of the Environmental Protection Agency, that would be one of these types of agencies, correct?

>> Yes.

>> How much teeth do they have nowadays?

There was a judgment, I guess, within the past five, seven years, Chevron, where which involved fishing and they went after how much the whoever regulates fishing could actually tell people what to do.

Is that impacted.

Also, when we look at environmental toxin release, also say the environmental protection agencies is that taking the teeth out of that?

>> I don't I think EPA still has plenty of authority to to help folks in environmental injustice situations.

I think they have plenty of authority.

What Chevron did was say, you know, when something gets to court and EPA, you know, usually it's a rule or a regulation.

So EPA passes rules that govern how things work across the entire country.

And, you know, including, you know, for, for different kinds of facilities and what kind of technology they might have to use.

And basically, Chevron said that they don't.

The agency does not get deference on what the law means.

And so that the judges get to be the ultimate payers of that.

But EPA still has, even with that, you know, lack of deference in place, it still has plenty of authority to to stop, you know, industrial facilities from overly burdening certain communities because it has a role in permitting as well.

And that's and that's an area where it isn't really a deference.

The deference doesn't really come up as much as it does when they're promulgating a rule that is supporting a law that Congress passed.

>> So I thought it was interesting.

So you talked about the legislative branches.

Then you talked about national things, and then you said the executive branch, but you didn't say judiciary.

And now all of a sudden it's interesting that you say, okay, now judges get to come in and say, who has who is the final arbitrator?

When you have.

Me complaining about environmental release, who am I taking my case to?

>> Well, it definitely depends on whether you have access to a lawyer.

Right.

And because for plenty, plenty of people across the country that that don't have the funds to hire a lawyer and who don't have an environmental lawyer that works pro bono, like our like our clinic, then the final say is the agency, because that the only place you can go next is court.

But if you do have access to a lawyer that can challenge a permit decision, for example, then the judge is the final.

There's a judge, you know, and if you're in federal court, it's an appointed judge.

If you're in state court in Louisiana, it's an elected judge.

But there is an objective person who looks at all the facts and and the law and applies the facts to the law and makes a decision.

Somebody who, you know, has has the training and, and the knowledge to apply the law and to learn the facts.

And that's why we think courts are so important, because every person is equal before a judge to every wealthy corporation.

And it's, it's an amazing thing to be able to do that.

>> Who, which group takes precedence?

Is it my local?

So our mayor and city council, is it our state legislator, our governor or what?

The feds, the federal government has established in general?

What how does that hierarchy go?

>> It depends on what you're talking about.

So so let's say you have an industrial facility that wants to locate in an environmental justice community.

If if the local government has a land use plan, then the local government has a direct say through that land use plan, because most land use plans require not most, but at least in Louisiana, a lot of the land use plans require an industrial facility to be approved by the by the, you know, some entity at the local level.

And so if that local entity doesn't approve it, then it's not going to go any farther.

Now, of course, the facility could sue the parish.

Everyone can go to court.

And so.

>> By the way, when you talk parish, that's our equivalent of a county.

>> Every place else.

Yes.

>> No problem.

I want to.

>> Make sure equivalent of a county.

And so yes, that that would be the end of it.

If if it doesn't comply with the land use plan, then they would be they would have the final say, but but if it does comply, then it usually kind of goes up.

The next level would be the state agency.

And typically the, the executive branch, like the governor wouldn't have any direct say in something like that.

It's the agencies who decide whether something is permitted or not.

Now, the heads of the agencies are appointed by the governor, just like the heads of the federal agencies are appointed by the president.

So they have that level of influence and who they put in place to, to lead the agency.

But on a case by case basis, it's the agency folks that are deciding whether something can come and and what kind of facility and what kind of technology it has to use.

And, and everything else.

>> When you're looking at it from the environmental aspect, do you tend to find, again, let's look at the EPA, Environmental Protection Agency again.

Do we tend to find that the scientists who are employed and or the regulators who are working there?

I'm assuming that they know their field fairly well and that they generally independent.

It is including, of course, the director being appointed by somebody.

They tend to be fair and open minded.

In your experience.

>> In my experience, no.

And I and I don't mean to say that people are trying to be unfair, but but what happens is, especially at the EPA level, EPA gets again, the states really control air permitting because even though EPA is the agency under the Clean Air Act that has the primary authority, they have delegated that authority to the state.

Yeah.

So the state gets to make the decision.

It's really the state's job to look very carefully at everything.

EPA does have oversight, right.

And so EPA on a large facility that's a major facility, a new facility, or a major modification of an existing facility like a large expansion, it will reach someone at EPA's desk.

And that person certainly has the ability to make a big difference, to, say, to object to the permit on behalf of the agency.

But there are so many, at least in Louisiana, there are so many of these permits that go up to these folks that that most of them just are really not reviewed.

Frankly, I don't believe at all.

And the way the law works is if it goes for a certain period of time and nobody from EPA objects, then it's considered to be valid.

So so you have to get someone's attention, right?

And then once you get their attention, then, you know, it's, it's sometimes a tough, a tough haul because it's hard to, it's hard to meet with agency people.

The agency people are usually located in a city that's not your city.

Right.

So for Louisiana, our agency people are in Texas, in Houston.

And it's a little bit hard to engage.

It's a little bit hard to have that conversation with the person who's making the decision for the for residents, it's difficult under some administrations, it was less difficult than others.

They made themselves more available under, for example, the Biden administration.

But it's difficult.

Whereas industry, because they work all the time with folks at EPA, they get these conversations.

And over many years, they they know these people and you get you get a phenomenon that we call regulatory capture, where basically just they're so used to working together that it just, there's just no way that a resident that a community member can combat that relationship, that long standing relationship.

>> So describe for me then your ideal relationship between then the government, the, the industrial company, who may be the potential source of pollution and the community.

What is that?

Your ideal look like?

>> I think again, starting with the meaningful involvement aspect of environmental justice, I do think that the program that some of the states have, where they require from the minute a company eyes an area to locate that they involve the community that they find out if people want them there.

I mean, that that doesn't happen.

Usually they, they get a lease on a piece of land.

They don't talk to anyone in the community.

The land is marketed to them by somebody in in Louisiana, the port of South Louisiana, that markets a lot of this land along the river.

And they, they pick a spot without a single person that lives in the area where it would be ever knowing.

Gotcha.

So that's, that's key.

Right?

Engage find out.

Or do people do people want your facility.

Tell them what you think you offer.

Right.

Tell them that you think you offer jobs or whatever it is that you you think you're doing.

Right?

But again, remember, even for those facilities, you know, they produce plastic and the facilities will always say, well, everybody uses plastic.

We need plastic.

Okay.

Yes.

To a certain degree.

Right.

But what we don't need is everyone.

If everyone uses plastic, okay, then everyone should feel the same negative consequences of the production of plastic.

But that's not happening.

Only some people are feeling the negative consequences.

Only some people are having the air emissions and breathing them in every day.

And and companies should acknowledge that and avoid those areas.

That's what I think should happen.

Now.

I don't expect that that ever will.

And so I think that that's where the state agencies have to come in with programs like these ones that I referenced, and not only say, okay, meaningful and meaningfully involve the community, but then, okay, you did.

And we think this is too much of a burden on what a community that's already breathing toxic air.

No, go somewhere else.

I think that's how the process should work.

>> To your knowledge, how many environmental justice clinics law clinics are there or similar organizations?

Because the obvious question is, what can I, as an individual do to advocate for myself?

>> Well, there's a lot that community members can do without lawyers and, and, and we always tell our clients to, to chase down every angle, right?

Like use all of the, you know, political access that you have, you know, talk to your, state representative, talk to your senator, talk, talk to anybody who you can get an audience with, send them a letter like go to your city council, do work that political angle, work, work the public angle, make sure the public understands what's happening to you.

Like be the voice because public involvement and public pressure in general helps.

It matters, right?

And so to do those things, educate yourself.

Right.

But, but educate others about who you are and what you're facing and why you don't want these things in your area.

And so that's what they can do even without a lawyer, right?

They can, they can push these things and they can, it takes a lot, right?

Never, never get up, give up.

You know, you're in for a long haul for most of these.

It takes, you know, a few years.

Right.

And it's a long haul.

But they, you know, our clients are just so resilient and they, you know, they get knocked down and they get back up and they keep going to speak at these hearings where nobody looks like they care, you know, but but they, they keep going and they and they get the word out and they create the stories and evidence that we bring to court.

Right?

So a lot of times when we do go to court, sometimes we have scientific evidence to support, for example, that a particular area is in the 99th percentile in the country for air toxic risk.

Right.

We have that evidence.

And and it's evidence kept by EPA.

It's a little harder to access.

Now that EPA shut down the EJ screen website.

But but we have that evidence.

But what we don't have without the community members is, is the stories is the lived experiences that they're dealing with is this, you know, my brother, you know, died of cancer.

My mother, you know, my all of those stories and, and what and when they walk outside, what they smell, how there's red dust, for example, there's an aluminum facility in Louisiana and people across the river every time they come outside, there's red dust on their car and their table every single day.

Right?

Those those pieces of evidence are really important to, to, to go to court with, frankly, to, to make sure that the judge understands there are real effects.

This isn't just some idea that, you know, I don't want this thing.

There are real impacts in people see them every day.

>> Give me your, your take home point.

If you what is the one thing you want people to know that they can do or about environmental justice to get us acting.

>> That.

I really think it's that they can make a difference.

And that might sound a little a little trite, but I, I hear so often from our clients that some other people in the community, when they're approached about joining the cause, right, to help.

And the more people, the better, right.

That they, their, their basic response is, I don't want it, but nothing we do is going to matter.

And so they don't get involved because they've already given up.

Yeah.

And so what I would say the main message is don't give up.

I've been there for big successes and small successes.

I've seen the communities do it on their own.

Even without our help.

When we file cases that we lost, I've seen them succeed.

I've seen them succeed with us.

So you can.

It's really true that a small group of people can make a very big difference.

>> I just want a yes or no, which is a hard.

>> Thing.

>> How do you.

Lawyers.

I know, but does it scare you when elected representatives come and tell you that they've signed an NDA, a non-disclosure agreement for something?

Does that as frightening to you as it is to me, it's.

>> Yes, it's it's very, very frightening.

And it's it's a whole new level of we have not really seen these NDAs before.

Like we're seeing now when you when you shut people out, knowledge is power, right?

>> That's, that's going to be a topic for another discussion next time you come up and visit us here in Louisville.

Thank you for being with us.

Thank you Lisa.

Appreciate it.

And thank you for being with us today.

I hope that you have a better understanding of the issues facing how we fairly mitigate the consequences of industrial pollution in ways that we can protect those most harmed from these pollutants.

If you wish to watch this show again, watch an archived version of past shows.

Please go to ket.org forward slash Health.

If you have a question or comments about this or other shows, we can be reached at KY.

Health.

At ket.org.

[MUSIC] I look forward to seeing you on the next Kentucky Health.

In the meantime, do advocate for yourself.

Talk to your local representatives, be it at the council, the mayor, office, or whatever.

Even your neighborhood groups.

Organize.

If you have a concern, probably somebody else does.

So reach out and together we can correct some of the harmful effects of some of the pollutants that we are all experiencing.

Take care.

See you next week.

>> Kentucky Health is funded in part by a grant from the Foundation for a Healthy Kentucky.

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