Catholic University Law Review
When this country was struggling over voting rights, it adopted what are now called "grandfather clauses" to exclude certain groups from the democratic process. Although various types of laws excluded people from voting, a man could vote if his grandfather had been allowed to vote. [FN3] Applied to modern environmental laws, a grandfather clause, in essence, says, "if your grandfather could pollute, so can you."In the environmental arena, these laws make it much easier for companies or municipalities to expand older, existing facilities than to create new ones. They also make it significantly more difficult for opponents to shut down an existing facility than to block the siting or construction of a new one. But most troubling for the environmental justice movement, which in part seeks to distribute environmental risk more equitably, grandfather clauses make it difficult to reduce the risk presented by polluting facilities currently located in low-income minority communities. This Article examines the language and operation of specific provisions that amount to grandfather clauses in the Resource Conservation and Recovery Act (RCRA), the Clean Air Act, land use and zoning law, and certain state provisions. It illustrates how each of these systems of environmental regulation allows older polluting facilities to remain in operation, subject to less stringent regulation than is applicable to new facilities, thereby inflicting greater amounts of pollution on the neighborhoods in which they are located. This Article discusses the reasons lawmakers use grandfather clauses both in general and in environmental laws. It discusses the role of fairness in arguments for the creation of grandfather clauses, and in arguments for reducing or eliminating the benefits and protections they confer on older sources of pollution. Finally, it proposes some suggestions for eliminating grandfather clauses, or reducing or amortizing grandfathered benefits. This Article demonstrates that eliminating or reducing grandfathered protectionism can lead to the cleaning up or shutting down of polluting facilities, and potential environmental improvement for communities.
Heidi Gorovitz Robertson, If Your Grandfather Could Pollute, So Can You: Environmental "Grandfather Clauses" and Their Role in Environmental Inequity, 45 Catholic University Law Review 131 (1995)