Columbia Journal of Environmental Law

Bystanders to a Public Health Crisis

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Per- and polyfluoroalkyl substances (PFAS) are devastating our food systems and our health. Due to widespread use, these synthetic, long-lasting chemicals, are omnipresent at dangerous levels in our envi-ronment and our homes. Recent studies link even small exposure to PFAS to a host of adverse health outcomes, including cancer, autoim-mune diseases, thyroid disease, liver damage, childhood obesity, infer-tility, and birth defects.

Food consumption is a primary route of PFAS exposure. PFAS mi-grate from water, soil, fertilizers, pesticides, and compost into virtually every plant, fish, animal, and animal product, and ultimately (in the greatest concentration) into the consumer. In addition, food pro-cessing equipment, disposable dishes, and containers leach dangerous levels of these chemicals into processed food products, further infusing our every meal with PFAS. Consequently, it is no surprise everything from chocolate cake and microwave popcorn to free range eggs, wildcaught fish, organic milk, and organic kale can harbor staggering quantities of these toxic substances.

Despite the widespread presence of these substances and strong sci-entific evidence of their harmful impact on humans, federal regulation of PFAS in food is currently nonexistent. At least fifteen agencies have a mandate to ensure the safety of our food. More is not always better. In the case of regulatory agencies, it can lead to fragmented demand for attention, diffusion of responsibilities, and bureaucratic bystander apathy. This story has played out time and again with other toxic con-taminants like polychlorinated biphenyls (PCBs) and pesticides and is playing out yet again with PFAS. Despite our country’s devastating experience with past contaminants and the unprecedented scientific progress of our time, the federal response to new food safety threats has only become more sluggish and inadequate.

This article lays a pathway for change, taking the issue of PFAS food contamination as a case study for the broader dysfunction in the food safety regulatory system. Part II reviews the history of federal food regulation and explores the role that each federal actor in the field plays in ensuring the safety of the food supply. Part III provides back-ground on the chemical and toxicological profile of PFAS and their widespread presence in the environment in general and the food sup-ply in particular. Part IV examines possible approaches to more effec-tive regulation of environmental contaminants in food and proposes a readily available but currently overlooked mechanism for combatting the current public health crisis of PFAS in food. Lastly, Part V cata-logues the expected benefits of the solution and addresses anticipated skepticism. It concludes that the proposed approach can effectively protect consumers from PFAS in food today, while simultaneously gar-nering much needed data to usher in a more permanent solution in the future.

The Private Litigation Impact of New York’s Green Amendment

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The increasing urgency of climate change, combined with federal environmental inaction under the Trump Administration, inspired a wave of environmental action at the state and local level. Building on the environmental movement of the 1970s, activists have pushed to amend more than a dozen state constitutions to include “green amendments”—self-executing individual rights to a clean environ-ment. In 2022, New York activists succeeded, and New York’s Green Amendment (the NYGA) now provides that “Each person shall have a right to clean air and water, and a healthful environment.”

However, the power of the NYGA and similar green amendments turns on judicial interpretations of their scope. In the first decision to reach the issue, a New York trial court held, with little analysis, that the NYGA provides no private rights against private polluters. This conclusion could severely limit the reach and significance of state envi-ronmental rights.

This article examines a single question: Does the NYGA grant private rights that are enforceable against private parties? In answering this question, we examine the 50-year history of private litigation under green amendments, the substance and historical context of the NYGA, and the broader structure of New York’s constitution and environmental law. We conclude that the New York trial court got it wrong, and that the NYGA does provide a private cause of action against private parties. We further assess the indirect impact of constitutional envi-ronmental rights on private litigation, and conclude that the NYGA will have an enormous impact on private litigation generally, irrespective of whether New York’s courts reject private litigation under the NYGA. This discussion provides a novel evaluation of the shadow that consti-tutional changes cast on non-constitutional law.

Defending Race-Conscious Policy

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Beginning in the 1980s, a coalition of community groups, activists, and non-profits loosely referred to as the “environmental justice movement” campaigned to draw awareness to the disproportionate distribution of environmental burdens to low-income communities of color. These burdens cause severely negative health impacts, reduce property values (which in turn reduce generational wealth), and im-pact quality of life. Low-income communities of color also receive few-er environmental benefits, including parks and green space (which re-duces heat in urban areas) and access to healthy food. Climate change further threatens vulnerable communities by causing increased heat in already-overheated neighborhoods, more frequent and severe storms, and rising sea levels in coastal areas.

In 2019, New York State enacted the Climate Leadership and Com-munity Protection Act (CLCPA), an ambitious piece of legislation that creates a framework to reduce statewide greenhouse gas emissions and to invest in “disadvantaged communities” (DACs). The latter goal reflects the environmental justice movement’s success. The current set of criteria developed under the CLCPA to identify U.S. census tracts within New York as DACs considers, among a large set of factors, the racial and ethnic demographics of the tracts. While this approach re-flects the environmental justice movement’s values, it also makes the CLCPA vulnerable to a potential constitutional challenge. Drawing on decades of precedent from the U.S. Supreme Court in cases regarding affirmative action programs, a plaintiff might bring a case arguing that the New York State government is distributing benefits based onindividuals’ race or ethnicity, in violation of the Equal Protection Clause.

This Note examines the degree to which the CLCPA’s current DAC criteria are vulnerable to such a challenge, and sets forth how the state might argue that the DAC criteria do not violate the Equal Protection Clause. Specifically, this Note argues that the state could mount a strong argument at the outset that such a plaintiff cannot satisfy the requirements for standing. In the alternative, the state could argue that the criteria should not draw strict scrutiny because race and eth-nicity are relatively insignificant factors in a complex and context-sensitive process. If the criteria do draw strict scrutiny, the govern-ment could argue that it has a compelling interest in remedying the ef-fects of its past acts of racial discrimination, and that the criteria are narrowly tailored to this interest. And finally, the government could argue that even if the criteria are unconstitutional for considering race, the issue is severable, and the criteria can be easily amended to remove race and ethnicity.

Corporate Sustainability Due Diligence

2024-05-10T14:58:07+00:00

Ever since the concept of Corporate Social Responsibility (CSR) be-gan to take off in the 1970s, multinational corporations (MNCs) and international organizations have attempted to implement a variety of voluntary initiatives to detect and prevent human rights and environ-mental abuses within corporate supply chains. Despite these voluntary initiatives, however, human rights violations and environmental dam-age have continued to occur frequently within the supply chains of MNCs, leading to increased calls for binding, “hard law” remedies. The adoption of the United Nations’ Guiding Principles on Business and Human Rights (UNGPs) in 2011 catalyzed efforts to adopt domestic mandatory human rights due diligence (mHRDD) laws, and since 2017, a growing number of nations have passed more comprehensive human rights and environmental due diligence (HREDD) laws that recognize the connection between human rights and the environment. The most ambitious HREDD proposal thus far is the European Union’s proposed Corporate Sustainability Due Diligence Directive (CS3D), which, when enacted, will impose mandatory human rights and environmental due diligence requirements on corporations that conduct business in the European Union.

This Note assesses the feasibility and desirability of adopting domes-tic HREDD legislation in the United States based on the framework provided by the EU’s proposed CS3D. The predominant reliance in the U.S. on voluntary CSR initiatives and limited disclosure regulations is insufficient to prevent human rights and environmental abuses in the supply chains of US-based MNCs. This Note argues that the proposed CS3D provides a promising model for how Congress could take strong-er action in this area. Although it would not completely prevent adverse impacts and could be initially challenging to implement because of the ambiguity surrounding its scope, comprehensive federal HREDD legislation based on the CS3D framework would be a significant step towards filling in the gaps in U.S. corporate accountability.