Featured stories in this issue...
A Model State Environmental Quality Act for 2007
The Science and Environmental Health Network (SEHN) has written a
model environmental quality act -- a draft, mind you -- intended for
debate by the people and eventually enactment by state legislatures.
This is important, path-breaking work.
Are 'Capped' Trash Sites Safe?
For more than 25 years government officials, in cahoots with
highly-paid consultants, have pretended that "capping" old garbage
dumps and toxic waste sites renders them "safe." Now a major New
Jersey newspaper has begun to reveal the truth: this emperor has
never been wearing any clothes.
After Seven Years in Court, Vindication for Seattle Protesters
In the famous "battle of Seattle" in 1999, the Seattle police ran
amok, beating peaceful protesters and jailing them without cause.
Now, after seven years in court, the protesters have been vindicated.
In the U.S., the Income Gap Is Widening, Data Shows
Societies with large gaps between the super-rich and everyone else
are societies where stress is high, quality of life is relatively low,
health tends to be poor, and length of life is comparatively short.
The income gap in the U.S. has been steadily growing for three
From: The Networker, Mar. 15, 2007
A MODEL STATE ENVIRONMENTAL QUALITY ACT FOR 2007
By the 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
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,
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
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
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
"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
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
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
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
The Networker is the newsletter of the Science and Environmental
Health Network (SEHN), edited by Carolyn Raffensperger
(email@example.com) and Nancy Myers (firstname.lastname@example.org). To subscribe,
send any Email to email@example.com. 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]
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From: The Record (Hackensack, N.J.), Apr. 1, 2007
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
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
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
"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
"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
"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
* * *
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.
Return to Table of Contents
From: Public Justice, Apr. 5, 2007
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
Gerson Smoger is Vice President of Public Justice and a principal in
the Smoger Law Firm of Dallas, Texas and Oakland, California.
Return to Table of Contents
From: The New York Times, Mar. 29, 2007
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
"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
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
"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
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
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.
Return to Table of Contents
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 firstname.lastname@example.org.
Rachel's Democracy & Health News is published as often as
necessary to provide readers with up-to-date coverage of the
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