An Analysis of Environmental Justice and Environmental Impacts in the New York State Marijuana Regulation and Taxation Act

Honors Thesis

Presented to the College of Agriculture and Life Sciences Cornell University in Partial Fulfillment of the Requirements for the Environment & Sustainability Honors Program

Table of Contents

1. Abstract
2. Introduction
3. Methodology
4. Literature Review
5. Policy Options/Context
6. State Case Studies
7. Analysis
8. Policy Recommendations
9. Implementation
10. Conclusion
11. Postscript
12. Acknowledgments
13. Bibliography

EXECUTIVE SUMMARY

After many years of policy development and multiple iterations, the New York state legislature and governor arrived at a satisfactory compromise, and legalized cannabis for recreational use by adults 21 years and older on March 31, 2021. Policymakers viewed this law as an opportunity to obtain revenue by adding an agribusiness product to the legal market, as well as to reinvest the revenue in the lives of the people that had been disrupted due to racially motivated mass incarceration. The Marijuana Regulation and Taxation Act of 2021 is unique for its inclusion of social justice measures and work to undo the damage inflicted by the criminalization of cannabis. As policymakers work to implement the bill and New York society shifts from contraband to commodity, it is worthwhile to analyze the current policy to determine avenues for further improvement. The following provides a comprehensive look at The Marijuana Regulation and Taxation Act in New York State to address environmental injustices and impacts of the law through state cannabis law case study comparisons, individual stakeholder experiences, literature analysis, and environmental impact review. A legal, regulated cannabis industry can be an example of an environmental justice success only if the benefits of the process outweigh the industrial and agricultural environmental impacts. This research recommends that the law should be amended and shaped through implementation of specific environmental justice directives.

INTRODUCTION

Humans have lived in organized communities for more than two million years. Those communities survived, in part, because of their reliance on plants and mastery of their uses. Cannabis cultivation dates back to approximately 12,000 B.C. in Asia, where archeological records indicate that early human societies grew cannabis as a remedy for aches and pains. The plant evolved in Asia before being introduced to modern-day Europe, Africa, and finally, the Americas.

There are few plants that have shaped, divided, and redefined the United States quite as much as cannabis. Scholars argue that tobacco, cotton, maize, and soy agriculture constructed the modern American landscape. These cash crops were — and still are — integral in forming our polity. But cannabis was particularly essential in the establishment of the early colonies — used in nearly every facet of daily life.

Most plants can only be grown in a few specialized climates. Cannabis earned its nickname “weed” for its hardiness, the fact that it can be cultivated more easily relative to other plant species, and that it will grow practically anywhere. However, if one spun a globe, and pointed a finger at random, chances are that the policy guiding that country is distinct from its neighbor. After thousands of years, humans still have not come to a consensus on the appropriate use and regulation of reality-altering substances such THC and CBD, two of the many cannabinoids found in cannabis.

Government regulation of the Cannabis sativa plant is a long and complex history which includes many twists and turns, oftentimes evading scientific fact. What complicates the academic study of cannabis regulation is that there is no one-size-fits-all regulation structure. In every country and even within each U.S. state, cannabis is rooted in a different social, cultural, and economic framework. However, the multitude of policy structures in existence offers an opportunity for analysis. Lawmakers and U.S. policymakers can learn from the successes and failures of cannabis regulation models in the various states to apply to their own market. In doing so, the nation can avoid being left behind in this lucrative, fast-growing market.

About 11.8 million Americans were reported to have used cannabis within the past year. These numbers have seen a net increase over the last 20 years during which the US has been inundated with a wave of new cannabis policy. As of this writing, more than half the states in the US have legalized medical and personal use marijuana. This moment in time is a watershed for the cannabis industry. Analysts have dubbed the excitement swirling around the potential of cannabis “The Green Rush” — to draw connections to the California Gold Rush. As “weed” is gaining acceptance nationwide as a commercial good, it seems appropriate to investigate the policy models underlying cannabis.

Biology

Cannabis sativa is a herbaceous, dioecious (separate male and female plants) flowering plant in the family Cannabaceae, which also contains its close cousin, Humulus (hops). As mentioned above, although the plant has been studied for millenia, prohibition of research on the genetic and pharmacology of cannabis has been stymied by government restrictions on research since the beginning of modern molecular genetics. The 2014 and 2018 USDA Farm Bills gave legitimacy and funding to the research of “hemp” (cannabis), which started the race for using modern genetic and agricultural tools to elucidate the origins, history, of cannabis, including specific nutrient needs, breeding, pest and disease management, biochemistry and, pharmacology discoveries, and a further understanding of the breadth and depth of this versatile plant. There are over 100 cannabinoids found in cannabis thus far, the most common being THC (tetrahydrocannabinol) and CBD (cannabidiol). All have a hydrocarbon structure that is extruded as resin from the trichomes (vestigial “leaf” structures around the flowers). Cannabinoids attach to cannabinoid receptors within the body to elicit a number of different reactions from feelings of euphoria and peace, to violence and depression. One of the differences between THC and CBD is that THC can cross the blood-brain barrier, and attach to cannabinoid receptors in the brain. This may affect decision making, rationality, and aggressive tendencies, especially in younger people. How each cannabinoid influences an individual is, at the time of this writing, not fully understood. Some preliminary studies in mice and rats have shown that CBD may also cross the blood-brain barrier, but further research is needed to confirm the results of these studies.

Cannabis has one of the worst and longest-running public relations campaigns of any plant. Society knows it by many nicknames and slang words. This section will lay out the biological definitions, and must be prefaced with the disclaimer that cannabis is relatively an under-examined subject of plant biology, due to stigmatization and restrictions on scientific research.

Public and private research institutions in the US — including Cornell Plant Science — are, to this day, blocked from conducting research on marijuana (THC). As THC is listed as a Federal Schedule 1 Drug, it is illegal to research the plant for agronomic or personal use. One problem is that the cannabinoid concentrations fluctuate during the life of the plant, and the variables that dictate that fluctuation is not entirely elucidated; if the plant exceeds 0.3 percent THC by volume at any point in its growing cycle, the research institution would immediately be in jeopardy of losing federal agency funding, which for Cornell University could amount to billions of dollars. The University of Mississippi is the only university in the country allowed to conduct research on THC. Today, biologists specializing in cannabis sativa research find themselves in a unique position. They are tasked with studying a plant with high political visibility and volatility with a small pool of vetted scientific knowledge. Another unique attribute is the community of amatuer growers who have informally studied the plant for years. Due to the absence of any scientific controls for their “experimentation”, their work cannot be recognized as valid.However, this informal work does sometimes have a role within the field. cannabis researchers do not discredit or ignore it. In fact, the work of independent vocative researchers and home growers can be valuable.

The Cannabis Sativa plant is a deep vibrant green, with palmate leaves that fan into five to nine-lobes with pronounced serrated edges. The leaves, achieving two to five inches in length, shoot off from a stiff central stem (cannabis translates to “cane-like”) which contains the bast — the fibrous part of the plant — and hurd — which transports carbon, nitrogen, minerals and other nutrients from the soil to the plant. Cannabis can grow to twenty feet in height, and burrow roots down into the soil up to approximately eight feet deep. Cannabis plants are also capable of phytoremediation; the filtering of toxins and pollutants from water and soil.

It is important to elucidate the dichotomy between the two legal identified types of cannabis: “marijuana” and “hemp.” These are not two different plants, but rather, the same plant that may produce differing levels of cannabidiols. According to USDA, “marijuana” is Cannabis sativa with 0.3 percent or more THC; “hemp” is Cannabis sativa with less that 0.3 percent THC — that is the only legal definition of hemp and marijuana.

As the legal definition of cannabis relies on a single number, thet number becomes the crux of this issue. The THC percentage within a given individual plant or cannabis-derived product determines its legal treatment. That is why it is befuddling to realize that this all-important number is actually an arbitrary distinction. The 0.3 percent threshold was determined by botanist Dr. Ernest Small, who was conducting preliminary research on the plant in the 1970s. In order to discuss his findings, he divided and labeled the groups of plants in his trials based on the 0.3 percent threshold. He did not intend for his arbitrary distinction to be definitive. In an interview, Dr. Small said: “At that time, when I did that study and published it, I had no idea that that would be used as a practical measure for countries licensing the amount of THC that would be permitted in order to grow it.” The European Union first adopted this arbitrary percentage, and the United States followed years later. This serves as a cautionary tale for the misappropriation of uncorroborated data.

Both hemp and marijuana can be processed and used industrially, medicinally and recreationally. In order to be consumed, the flower (or “bud”) or resin (oils/terpenes) must first be harvested, dried, and cured or filtered and distilled. For use in informal settings, the processed “marijuana” product is typically ground up, burned, and the psychoactive ingredient is thus inhaled as smoke. However, there are many alternative ways that people choose to ingest the herb to get the desired mind-altering or soothing effect.

To date, the CBD-based Epidiolex is the only cannabinoid-derived drug approved for prescription by the Food and Drug Administration, and is largely prescribed to epileptic patients. However, there are three synthetic cannabis-related drug products: Marinol, Syndros (dronabinol), and Cesamet (nabilone). However, if you walked into any pharmacy or general store in the country, one might think that the FDA fast-tracked these hemp-based substances. The CBD market is bursting with products boasting health claims ranging from calming menstrual cramps to reducing cancer risk. But the large majority of these tinctures, salves, and creams are not approved for use by U.S. Federal agencies, nor have the contents of most of the salves, tonics and lotions been verified by independent labs. State agencies can create their own regulations, and New York has done so as well, as will be discussed later in this paper.

This research primarily focuses on high-THC cannabis. Throughout this paper, high-THC cannabis will be referred to as either “marijuana” or “high-THC cannabis” and high-CBD, low-THC cannabis will be referred to as “hemp.”

History

At the nacency of the British colonies in North America, hemp was everywhere. In the ropes that anchored ships in port, in people’s work shirts, in mulch. The word “canvas” comes from “Cannabis,” as sails for ships were made from the bast and hurd of the cannabis plant. The plant was grown widely and prized for its durability. In fact, a law mandated that early settlers grow at least 100 acres of hemp in order to contribute to its commodity circulation.

The history of cannabis regulation is steeped in racism. In the early 1900s, The Spanish word “marijuana” was adopted by the U.S. government as the plant’s legal designation in order to create a negative association between Mexican/Latina/o people and drug use. This initial affront was followed by years of laws and amendments, most of which were based on disinformation regarding the source and effects of cannabis use. State-led public campaigns to sully the image of the substance often used racial epithets and negative imagery to draw further connections.

For the most part, racism and classism were the motors that largely informed all rules against cannabis over its entire legal history in the United States. Certain states began to restrict cannabis use and sale years before use became a widespread cultural practice. Legal scholars uncovered the reason why certain states moved earlier than others by reviewing newspapers from that era. Of the three main influences that emerged, racial prejudice was the most prominent. Sixteen states west of the Mississippi River criminalized the use of marijuana; all states with higher populations of Mexican immigrants. Cannabis criminalization was an attempt to eject Mexican communities from the United States. By rendering a popular leisure time substance illegal, U.S. officials were sending a clear message: you are not welcome here. This alienation of groups along race and class lines continues into present day legislation.

The American legal term “marijuana” was derived from the original Spanish word for Cannabis sativa, “Marihuana.” Etymologists identified the introduction of this word to the American lexicon in the early 1910s, around the same time that policymakers began controlling the substance. This time period coincided with the temperance movement, which is based largely in Christian religious purity and dedication. Around this time is when the perception of marijuana changed. As Mexican people came to America during one of the largest emigration periods in history, anti-immigrant sentiment spread concurrently. The Mexican population tripled from 200,000 to 600,000 during this time. Prejudice against Mexican workers and Black public figures, such as jazz musicians, largely fueled the opposition. Harry Anslinger, the first Commissioner of the Federal Bureau of Narcotics, was one of the most powerful agents behind engineering the War on Drugs. He worked to create a framework similar to that of alcohol prohibition, which had been lifted immediately prior to his appointment as Commissioner. Anslinger took initiative to target popular Black musicians with drug abuse problems — like singer Billie Holiday, Louis Armstrong, among many others — in order to further the racist connotation of drug regulations. Anslinger did not work independently. He had many allies with powerful interests who also had racist motives for ceasing Mexican immigration and African-American social mobilization.Anslinger took the helm of the Bureau in 1930. In 1934, Congress passed the Uniform State Narcotic Drug Act to assert control over substance trade and usage in the states. However, that wasn’t enough to stymie the spread. In 1937, Anslinger lobbied to help pass the Marijuana Tax Act, which created a de facto federal ban on marijuana by subjecting any trader or user of cannabis to steep fees. In theory, the Act restricted recreational use of the drug and regulated the market. But in practice, this law made it increasingly difficult for anyone in the cannabis business to turn a profit. The criminalization of cannabis was furthered by the Boggs Act of 1952 and the Narcotics Act of 1956, which established criminal consequences for marijuana possession and sale. Vilification of cannabis in the press and Hollywood also contributed greatly to the negative perception of the drug in the United States.

The most aggressive federal action on psychoactive substance use was the passage of the Controlled Substances Act of 1970, by President Richard Nixon. This law created a listing scheme divided into five categorical levels, a hierarchy based on potential for abuse and risk to human health. In an interview many years after Nixon resigned, one of his senior advisors, John Ehrlichman, admitted that they acted with the full intent of targeting and damaging communities based on racial or class identity.

“We knew we couldn’t make it illegal to be either against the war or blacks, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”

New York History

The legacy of marijuana prohibition in New York is not positive by any measure. In the 1930s, New York actually contradicted the negative national consensus towards marijuana. Mayor Fiorello La Guardia commissioned a report on the status of marijuana usage in New York City in order to ascertain his approach to regulation. The NY Academy of Medicine committee’s findings directly contradicted previous stances on cannabis. The report, “The Marijuana Problem in the City of New York,” concluded that the gateway drug theory that contributed to the vilification of marijuana was false. This claim was supported by the findings that marijuana does not lead to morphine, cocaine, or heroin addiction, the publicity concerning the catastrophic effects of marijuana smoking in New York City is unfounded.

Even with the significant findings of this report, the New York government did not relent in its regulation of cannabis. In the 1970s, Governor Nelson Rockefeller responded to the national fervor with his own set of drug laws, which became widely known as “the Rockefeller Drug Laws.” At its height of potency, this policy put more than 23,000 people behind bars. This punishing law was gradually adopted by other states throughout the 1970s and eventually became the national policy model for the War on Drugs. Under New York City Mayor Ed Koch in the late 1980s, data showed that Black and Latino/a people were 80 percent of total cannabis drug arrests. Mayor Rudy Giuliani is often lauded for being tough on crime and establishing law and order to the five boroughs. However, this law and order was racially enforced under his administration, the arrest rate of Black and Latino/a New Yorkers for marijuana-related charges increased to 85 percent. Ten years later, well into stop and frisk policy, the rate under Mayor Michael Bloomberg increased again to nearly 90 percent.

The original version of the Marijuana Regulation and Taxation Act was first introduced by Senator Liz Krueger in 2013. The law evolved and has been through many iterations since its introduction, based on feedback from advocates, the opposition, and scientific research. In 2014, The New York Times Editorial Board published a column calling to end marijuana prohibition nationwide. This was met with support from advocacy organizations and mostly silence from the general public.

The re-election in 2018 of Governor Andrew Cuomo was a seminal moment. Previously, the Governor had declared himself to be a strong skeptic of legalization, claiming that marijuana was a gateway drug and had more negative than positive impacts. However, his democratic primary challenger, Cynthia Nixon, struck a nerve with liberals in New York with her message of the racist enforcement of possession laws. She pushed Cuomo to change his tune on the matter and since his reelection, the governor has made it a priority to pass responsible laws that regulate marijuana consumption in New York State.

Thus, the new Governor Cuomo is a far cry from the old Governor Cuomo. He was a vocal opponent of cannabis policy reform until as recently as 2018. The impetus to his change of heart was his Democratic challenger in the gubernatorial race that year, Cynthia Nixon. Nixon, an activist and famous actress, is credited with helping to push Cuomo to consider marijuana legalization as a viable policy stance. She went so far as to label herself as the “cannabis candidate.” Although ultimately unsuccessful in the race, Nixon did succeed in raising the issue on the state priority list. In a 2019 speech outlining plans for his third term, Cuomo named cannabis legalization as one of his top priorities.

Nixon does not deserve all the credit for creaking open the policy window. Activists in organizations like Drug Policy Alliance and the ACLU have lobbied New York legislators for years to consider more just drug regulations. Additionally, as other states moved to legalize over the past five years, New Yorkers grew more favorable of progressive cannabis policy stances. However, Nixon’s intentional and high-profile centering of the issue lit the fire under Gov. Cuomo to finally seriously contemplate cannabis as a solution rather than the problem.

New York state currently operates under the rules set forth by the 2014 Farm Bill. The state did not accept the terms of the 2018 Farm Bill. Following up on their status, the Commissioner of the Agriculture and Markets department Richard Ball again objected to the terms of the Interim Rule in August of 2020, stating that they were “It is the Department’s view that many of the requirements concerning the scope and timing of sampling and testing, the disposal of non-compliant plants, and reporting are unrealistic and impose unreasonable burdens on growers and any state interested in administering a compliant program.” Continuing that the state will continue to advocate for “reasonable” requirements for hemp oversight.

Hemp has only been legal for research purposes until the passage of the 2016 Farm Bill. In the wake of that legislation, hundreds of New Yorkers applied for farm and dispensary licenses. The passage of the 2018 Farm Bill stimulated an economic boom, which was followed by a bust. The reason for many business failures could be largely attributed to the lack of a sturdy supply chain. The field was too crowded to accommodate so many competitors, it led to an “extinction event.” However, this cannabis market downturn varied by state; while Colorado and California experienced significant financial losses, more cautious states like New York experienced attenuated effects. Senate Majority Leader Chuck Schumer has been an outspoken supporter of hemp in recent years. He showed his support of the young market by pushing through $500 thousand in federal funding to start the first hemp seed bank in the nation: The USDA Agricultural Research Service’s Industrial Hemp Germplasm Repository at Cornell’s AgriTech site in Geneva.

Also in 2019, the state passed the most comprehensive regulations on hemp in the country to date. These criteria seek to seal gaps and loopholes in existing law and to streamline the process for hemp processors. Some of these regulations include license approval in order to operate as a business in NY. Another part of the law mandated all cannabis products will be tested by independent laboratories to test the levels of THC and CBD. This legislation was a significant precursor to the MRTA.

The state assembly and house spent the whole evening of March 30 voting on the Marijuana Regulation and Taxation Act. The question period for both bodies was lengthy, and included specific inquiries about THC level testing procedure, packaging rules, and driving impairment concerns. The lead Senate sponsor of the bill, Sen. Liz Krueger, said that her main intention was to “address the devastating impacts that the war on drugs has had on particular communities.”

Environmental Justice & Environmental Impacts

Victims of racist US drug regulations have also been victims of another type of prejudice: environmental racism. Environmental racism is racial discrimination in environmental policymaking. Environmental racism is part of the environmental justice movement. The Environmental Protection Agency 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 environmental justice movement within the United States began with the watershed moment of the placement of a landfill in a majority-Black community in Warren County, South Carolina in 1982. The community rose up in protest against the location of the landfill and led to the coining of the word “environmental racism.” The consequences of environmental degradation on humans abound. In the United States, communities of Black, Latinx Americans experience higher rates of cancer, asthma, lead poisoning, birth complications, and cardiac illnesses.,, While environmental conditions are just one factor that contributed to the frequency of these diseases, it is a significant exacerbator. The presence of industries that generate stressors on the environment can mean life or death for people who live nearby.

Dr. Robert Bullard, former Dean of the School Of Public Affairs and currently Distinguished Professor at Texas Southern University, is regarded as the father of the Environmental Justice movement for his authorship of the “17 Principles of Environmental Justice.” These are a collection of ideals that guide the direction of the movement. The principles were presented at the National People of Color Environmental Leadership Summit in October of 1991. Since their debut at the Summit, they have been integrated into environmental sociology literature as a framework for environmental justice work.

The case of cannabis agriculture and industry is novel for its paradoxical nature: legalizing cannabis is a just policy for many BIPOC (Black, Indigenous, and people of color) communities impacted by the War on Drugs. However, a legal cannabis industry still provokes environmental justice issues that disproportionately impact those same communities. Pro-legalization policymakers are often lauded for two things: their embrace of an environmentally beneficial commodity and their efforts against the racist legacy of the War on Drugs. However, their support and vote on these laws alone is not enough to guarantee those two efforts. It is just the first step to ameliorating centuries of unjust, undue harm on BIPOC communities. By applying the ideas of traditional and critical environmental justice to this issue, we can reveal inequities in the system and respond accordingly with policy, social movements, and economic choices. Examination of this topic in an environmental justice framework is relevant right now because the policy window for cannabis legalization nation-wide is open. With this momentum, now is the appropriate time to analyze the social and environmental justice consequences of the industrialization of this substance.

The legal cannabis supply chain can be simplified into five basic steps: 1) Production, 2) Processing, 3) Sale, and 4) Use. At each of these steps, a new iteration of cannabis is produced. In addition to the product, the process yields other outputs and byproducts. These waste, pollutant, and energy byproducts can have environmental consequences, including on the surrounding air, soil, and waterways. Environmental impacts can range from a mild chemical pollutant contamination to complete habitat or wildlife destruction. This paper is addressing the full range when referring to “impacts.” The issue of environmental degradation resulting from the industrialization of an unregulated cannabis industry will continue to worsen. Given the industry’s novelty, the legal actors involved in cannabis policy have a unique opportunity to shape the industry into a sustainable and equitable one. Institutional fixes are unlikely to completely solve the problem as long as democracy functions imperfectly and inequitably. The state government can take steps to mitigate these impacts even while the substance remains federally illegal.

Federal Legal Status

The United States categorizes Cannabis Sativa as a Schedule I level substance under the Controlled Substances Act (CSA). That means cannabis is illegal to use recreationally and/or medicinally on a federal or state level. However, that has not stopped 17 states from legalizing the growth and usage of the cannabis plant (34 have legalized for medical use). Cannabis policy is a patchwork hodgepodge across the map.

This CSA designation of Cannabis means that there is no accepted medical use and/or that there is high potential for abuse. This document is crucial to the thesis of this paper because it is the basis of the issue. There is ample scientific evidence to counter the claims of the CSA scheduling of marijuana and THC. There are many medically accepted uses for different forms of marijuana and THC, and studies have shown that claims of dangerous addiction were exaggerated to a false point. Advocates have previously argued for the national descheduling of “Marihuana,” “Marihuana Extract,” and THC from a level 1 to a level 5 or complete removal from the list. Attempts to de-schedule “Marihuana,” “Marihuana Extract,” and “Tetrahydrocannabinols” (THC) — as it is referred to on the Controlled Substances list — have thus far failed.

Why are New York, Massachusetts and other states able to develop their own set of laws to govern use of marijuana within their borders, while the plant remains illegal? The relationship between the states and the Federal Government is a dynamic one. Our Federalist society is structured such that the Federal Government has control of policy and law reigns supreme in many instances, but it’s power is limited in scope. States Rights has been the law of the land since the country’s founding. However, it is often the Federal Government who has the final say. U.S. courts typically follow the federal preemption doctrine, in that the Federal Government will supersede state law in certain cases. However, in the case of marijuana, state governments are able to pass their own decriminalization and legalization laws while the substance is still listed on the CSA.

Thesis Questions

The legalization and decriminalization of cannabis — specifically, marijuana — do not guarantee that justice will be distributed and enforced in an equitable, sustainable manner. This research is intended to propose recommendations to the existing Marijuana Regulation and Taxation Act in New York State. These will be substantiated with empirical and numerical evidence. The main research questions are:

1. How can the New York State government design and implement marijuana rules and regulations for producers and consumers that realize the goals of environmental justice?
2. How can the New York State government prevent and mitigate environmental impacts of the industry?

There are many tools at New York legislators’ disposal to create an implementation process that prioritizes just treatment of New Yorkers and the environment. It is critical to include policy that both uplifts lower-income, historically marginalized, over-penalized communities, and integrates environmental conditions such as water supply, air quality, geographic location, and a climate change timeline. In order to determine whether the Marijuana Regulation and Taxation Act succeeds in including environmental justice measures, this paper will review the law with the following set of criteria.

1) Fair Policy: A policy should be based on mutual respect and justice for all peoples, free from discrimination or bias.

2) Reparations: Victims of environmental injustice should receive full compensation and reparations for damages caused by environmental injustices.

3) Environmental Rights: Protection from exposure to harmful chemicals, including waste and byproducts that contaminate air, soil, water, and/or food.

4) Equity & System Integration: Participation as equal partners at every level of policy making and implementation. This includes needs assessment, planning, implementation, enforcement, and evaluation.

These criteria are drawn directly from Bullard’s Principles of Environmental Justice, specifically, the second, fourth, seventh, and ninth principles. This paper will give a wide view of marijuana policy with a particular focus on environmental and social justice directives.

METHODOLOGY

In order to conduct this research, several methods were employed. The first was inter-state and intra-state policy analysis. To present a well-rounded view of the variety of approaches to marijuana policy, I included case studies from states that are geographically, ethnically, and politically diverse from each other, as well as from other states within the country. In these case studies, I reviewed primary and secondary sources about marijuana policies in the states of Colorado, California, Oregon, and Massachusetts. These states were chosen due to the factors of varying time periods with legal marijuana models in place, geographic diversity, and demographic diversity.

A large portion of this paper is an analysis of the current, most viable piece of legislation in New York State: The Marijuana Regulation and Taxation Act. The current policies in New York were analyzed following the guidelines of the Stanford Law School “S.W.O.T” method.

The second research method was interviews with stakeholders impacted by or involved in cannabis law changes. Stakeholders include people involved in several aspects of the cannabis industry: geneticists, plant scientists, farmers, policy experts, government officials, and lawyers. The protocol and questions remained relatively constant for all interviews; the only exceptions to that rule were questions pertaining to the interviewee’s personal area of the industry. All interviews were conducted remotely over the phone, video conferencing, or email. Information from these interviews was integrated into the paper and noted as “personal interview.”

The interviewees were all between the ages of 18 to 60 years of age. Interviewees were selected based on certain attributes. Farmers and business owners were selected based on their geographic location in NYS and their amount of years of experience in the industry. The policy experts and officials that I interview are chosen based on their expertise level and proximity to the issue. I did not actively exclude nor include any interviewees based on their age, gender, race, ethnicity, or any other demographic identifier.

There were no incentives or compensation for participation in interviews. One potential risk of participation in the interview would be the inadvertent disclosure of evidence that indicated personal use or cultivation of recreational marijuana, both of which were previously illegal actions in the state of New York, and currently federally illegal. The degree of this risk is not significant because the changes of legal reprimand are minimal. The instance of interviewee self-incrimination was avoided during interviews by refraining from asking them about personal interactions with the substance.

The criteria for a successful implementation of environmental justice ideas were developed by reviewing what scholars have deemed successful programs, projects, and laws. The criteria for environmental justice to achieve this successful outcome were selectively extracted from the 17 “Principles of Environmental Justice.” The principles were reviewed for applicability to the topic at-hand and selected for use in this paper based on relevance to the topic.

LITERATURE REVIEW

Criminal Justice

A report by the ACLU found that marijuana-related arrests amounted to more than six million from 2010 to 2018, and of those arrested, Black people were the most frequent victims.

The same arrest pattern is present in New York State. Although marijuana is used at similar rates among groups of white and black New Yorkers, black New Yorkers are 4.5 times more likely to be arrested than white New Yorkers. In New York City, black people are nine times more likely to end up in handcuffs than white people for marijuana charges. This disparity is true across the state: the rate is 8 in Onondaga County and 7.5 in Niagara County. Same amount, same plant, different rules. Unjust enforcement of cannabis law has been one of the largest contributors to the overcrowded prison system in New York State since its inception. Although the incarceration rate decreased after New York decriminalized the substance in 2019, incarceration rates of Black people still exceeded that of White people by a factor of 2.6. This disproportionate enforcement has had lasting effects that extend beyond the arraignment. Undue and unjust imprisonment has harmed millions of New York families irrevocably. This history is the reason to include reparative policy in the MRTA that also acknowledges the disproportionate impacts of industries.

Environmental Justice & Environmental Impacts

The inclusion of environmental justice within legislation and legal proceedings is a relatively recent phenomenon. While sociology and natural resource scholars have been discussing the idea since the 1970s, the idea has only been included in legislation and administrative actions in the last few decades. The increased prominence of this idea can be attributed to coalitions built between scholars, environmentalist activists, and social justice advocate politicians., These collaborations have yielded administration and legal actions on the federal, state, and local level.

At the federal level, the inclusion of environmental justice policies has largely depended on who occupies the Oval Office. During his administration, President Bill Clinton made some administrative changes that helped advance environmental justice action. He signed an executive order in 1994 requiring all federal agencies to include achieving environmental justice as part of their mission. He also ordered the Environmental Protection Agency to form a national Environmental Justice Office and to include environmental justice in the National Environmental Policy Act of 1970 review procedure. These types of actions fell by the wayside during the George W. Bush administration, and to this day, agencies persist in resisting including environmental justice language., The Biden administration has brought environmental justice back to the table. Recent developments include the appointment of environmental justice advocates to official advisory roles for the first time in federal history. President Joe Biden created the The White House Environmental Justice Advisory Council and appointed environmental justice experts from a multitude of states in order to help realize the goals of his climate change executive order. Additionally, President Biden, including environmental justice directives in his “America Jobs” infrastructure Plan, appointed the first person of color to ever lead the Environmental Protection Agency.

One recent example of environmental justice policy at the state level is the New York Climate Leadership and Community Protection Act of 2019, which directs an Environmental Justice Working group — composed of community members from urban and rural areas across the state — to advise on the allocation of funds from renewable energy and other environmental mitigation projects to historically disadvantaged communities. Cities and towns are the places that often bear the brunt of environmental disturbances. When policies are designed with this discrepancy embedded, funding can be allocated proactively to subvert this phenomenon. Environmental damage types of impacts are felt the most acutely by the communities local to pollutant-emitting facilities. Historically, these communities are lower-income, racialized populations. These communities feel these impacts more harshly due to factors such as having vulnerable populations with age- and health issues., Author Richard Rothstein detailed many instances of discriminatory sites in his book “The Color of Law.” A review of a century of real estate planning in U.S. cities in towns revealed an intentional plan to segregate. After facilities are constructed, white families are more likely to move out of the area than BIPOC families.

Within the academic discourse on environmental justice is the “race versus class debate,” which is a conflict over the root cause of injustice: classism or racism. Many sociologists agree that it is a combination of the two attributes — and oftentimes gender as a third. Regardless of the “true” root cause, the reality is that environmental injustices occur at the hands of every industry, usually in minority communities. Researchers Francis Gupta and Vicki Been dubbed this resulting phenomenon as “coming to the nuisance.” They describe this theory as “the presence of a manufacturing facility makes the host neighborhood less desirable because of the nuisance and risks the facility poses. Property values therefore fall, and those who move into the neighborhood are likely to be less wealthy and have fewer housing choices.” The residential real estate industry promotes this pattern through their control of the zoning process of “locally undesirable land uses.”

Environmental justice is interpreted broadly for the purpose of this paper. The definition here is intersectional; it includes social, racial, and economic justice. All of these issues are interconnected and necessitate acknowledgement.

Environmental Impacts

Even though cannabis grows more readily than other similar crops, it is a resource-intensive crop to raise at an industrial commercial scale. Environmental impacts resulting from disruptive industries like cannabis production are numerous and cannot all be summarized here. This section will briefly touch on the environmental impacts of the marijuana production chain on location, land, water, and air.

Although exact numbers cannot be ascertained, a large quantity of marijuana agriculture companies choose to raise their crops in indoor facilities, known as Controlled Environment Agriculture, or CEA. Due to security, theft and quality concerns, marijuana seeds, for most growers, cannot simply be sowed in open agricultural fields. This has led the growers to use techniques like hydroponics or CEA in enclosed indoor buildings. Some of these facilities can be as large as airplane hangars to accommodate the volume of crop plants. The plant’s previously illicit status causes plant robbery to be a frequent occurrence in the industry. Although cannabis is a relatively easy seed to germinate and raise, the plants require frequent monitoring to maintain their chemical levels within the acceptable range for sale. Leaving the plants in an open field can jeopardize farmers who are licensed to only grow hemp, not cannabis, or vice versa. Without fencing or surveillance, state or federal authorities could approach the property unbeknownst to the farmer and randomly test the plants for THC levels. If they encounter measurements that are outside the acceptable legal range, the farmer could be at risk of losing their entire crop.

The discussion of water impacts includes all waterways — lakes, streams, oceans, reservoirs — in addition to water usage by the plant. Cannabis plants require a large amount of water from seed to harvest. Most of this water is used for irrigation, but other uses include dissolving nutrients, humidifying and cooling the cultivation environment, and managing pests or cleaning. A 2021 study estimated nationwide cannabis agriculture water utilization statistics using a benchmarking algorithm. The average indoor growth facility used 605,180 gallons of water on an annual basis, and the average outdoor facility used 306,000 gallons of water.

Mass-producing any crop can be a chemical-intensive process, and cannabis is no exception. Precipitation can cause fertilizer, herbicides, and pesticides to run off from farm fields into waterways. Improper waste disposal can easily occur at any step of the cannabis production process if not carefully regulated. One positive outlook is that marijuana will not yield as much litter as the tobacco industry does. Cigarette butts and filters already comprise a staggering portion of waterway pollution. About 33 percent of cigarettes smoked annually by Americans end up as litter in waterways. A difference between tobacco and marijuana is that cigarettes and cigars are pre-rolled and made of synthetic plastic. Marijuana is mostly inhaled through reusable glass, silicone, or plastic-based instruments, or joints rolled from biodegradable paper. Therefore, the waste generated from more frequent public smoking would likely not contribute a significant amount, but it should be considered as a potential environmental impact. However, plastic could be a significant contribution to landfills as a result of commercial cannabis production due to the use of plastic polymer-based products like ground cover plastic tarps, plastic propagation pots, plastic stakes and clips, and other disposable items. These tools are used widely in the agriculture industry, not just cannabis agriculture.

The discussion of air impacts includes air chemical content and human sensory experience: visual and olfactory. The emissions produced from individuals smoking cannabis is composed of dead organic plant material. Because this is a disparate and small volume event, its contribution to the atmosphere, even when totalled cumulatively, is inconsequential.

The discussion of energy impacts includes pollution by all the most common American energy sources: Fossil fuels (coal, natural gas, and petroleum), nuclear, and renewables (hydro, solar, and windpower). It is difficult to make specific recommendations because there is a lack of precise energy data from the cannabis industry. However, a recent study out of Colorado State University found what many industry insiders already surmised: the cannabis industry is an enormous suck on the energy grid. The researchers tabulated all the costs associated with indoor cannabis production, including externalities like the greenhouse gases generated from fertilizer manufacturing. Emissions costs vary by state location. Researchers conjectured that the most influential factor is geographic variance in climate and temperature, which causes facilities to need different levels of climate control. For example, the production of one ounce of dry cannabis flower grown in Hawaii yields an average of 16 gallons of oil. In California producing the same volume of flower yields more than double the amount. The contents of this air pollution — carbon dioxide and other volatile gaseous chemicals — can contribute to atmospheric ozone formation.

In large-scale growing operations, one farm can operate multiple indoor facilities equipped to grow hundreds of acres of plants. These facilities use high-wattage light fixtures, heaters, air purifiers, irrigation systems, and other electrically powered equipment in order to simulate optimal outdoor growing conditions. These devices suck up a lot of energy from the grid, and can emit a large volume of greenhouse gases. The study found that the energy necessary to produce just one kilogram of cannabis flower releases between two to five tons of CO2 into the atmosphere.

Social Justice & Public Health

For decades, lawmakers have harped on the same claims against marijuana without any addition of new evidence. In the book “Marijuana Federalism,” a group of cannabis policy experts and researchers present data to debunk many of these baseless claims against legalization. These allegations include that it is a “gateway drug” to other more addictive, harmful substances or a grim presence in communities. This book provides data for other factors: suicide rate, crime rate, road safety, youth outcomes, and economic outcomes. While more time must pass in the post-legalization timeline for many states in order to draw strong conclusions, the preliminary findings do not support the fear-mongering claims espoused by opponents to legalization. The authors concluded from reviewing data from eight legal states that use of other drugs did not significantly increase or decrease in the years following legalization. The suicide rate marginally decreased in several states. The crime rate did not deviate significantly from its typical cyclical pattern. Results on traffic accident frequency and road-related fatalities show no discernible change legalization. From school district data, legalization had no significant effect on school suspensions or academic performance. State economies did not significantly improve due to the fact that marijuana is a small percentage of the market. As more states, including New York, begin to transition to legal market models, continuous, diligent research monitoring these effects is necessary.

POLICY CONTEXT & OPTIONS

Policy Context

It is important to note the national and state-level sociopolitical context of this research. This research is being conducted during a time of heightened social awareness and political action. The murder of a George Floyd, as well as many other African Americans in the last few years, sparked national upheaval and ultimately prompted Congress to pass the Justice in Policing Act, which bans the chokehold in police arrests across the country. Beyond the Act, the national conversation has opened a policy window for racism in criminal justice. All legislation should include measures to protect and uplift historically wronged communities. While it will never be possible to repair the unquantifiable, intergenerational damage caused by the targeted persecution of Black and Latina/o people, it should not prevent modern-day policymakers from, at the very least, attempting to right the wrongs. There were several events and attributes of this year that created unprecedented and unique conditions for marijuana legalization in New York State. There are three key reasons that I will outline here: economic, political, and advocacy.

The onset and continuation of the COVID-19 pandemic required a complete restructuring of the state budget, taking money away from all programs deemed non-essential. This left budget planners scrambling to find alternate sources of capital for the state government. Previously an unsavory option, a taxed cannabis market suddenly appeared to be the most popular source. Many previously opposed lawmakers realized that not legalizing would cause the state to lose out on revenue that neighboring states were already receiving. Thousands of New Yorkers were driving across the northern border to patronize dispensaries in Massachusetts. The same would soon happen to the west once New Jersey set up its legal business market. The pandemic also caused nearly unprecedented job loss among New Yorkers. The demographic group that experienced the highest rate of unemployment was women of color. Additionally, the pandemic exposed dramatic equity rifts in the state and federal healthcare system, with the greatest fatality rates occurring among minority groups. The discriminatory pattern of the disease exacerbated pre-existing racist systems.

The pandemic made its first most acute landfall in the New York metropolitan area. Governor Cuomo was initially lauded for his organized pandemic response. However, a year after the first case was reported, the Governor found himself embroiled in multiple scandals. The most notable include: allegations of workplace sexual misconduct and the mismanagement of COVID-19 nursing home fatality data. Under calls for resignation from his fellow NY policymakers, signing adult-use cannabis into law in 2021 was a welcome distraction and victory for the disgraced governor. Assembly sponsor Crystal Peoples-Stokes acknowledged in her closing statement on the March 30 floor debate that they would likely not have come this far had it not been for the pandemic.

The third reason for the expansion of the marijuana policy window in New York is the advocacy work of organizers. These organizers, largely representing the same groups historically harmed by the War on Drugs, formed coalitions with state lawmakers like the Senate sponsor of the bill, Senator Liz Krueger. Through these partnerships, organizations like Drug Policy Alliance elevated the concerns of their members and succeeded in amending the bill to include provisions that benefited those communities. In addition to collaborating with lawmakers, organizers also spread awareness across the state through public information campaigns like Start Smart NY.

Policy Options

There exist a variety of regulation models for marijuana. One can observe nearly all conceivable combinations of such models within the United States today. The main models are:

1) Prohibition, 2) Decriminalization, 3) Legalization.

The prohibition of all forms of tetrahydrocannabinol-containing substances was the status-quo for much of United States history. The United States prohibited the drug on the federal level through the Controlled Substances Act. Prohibition is largely enforced through searches and seizures based on reasonable assumption of possession or sale. The simple steps that follow being caught using a prohibited substance are: arrest, court appearance, arraignment, sentencing.

Marijuana is not the only popular mind-altering substance with a controversial history. Scholars and lawmakers often draw parallels between cannabis and alcohol, and apply “cross-substance learning.” The ratification of the Eighteenth Amendment intended to improve American lives by banning alcohol consumption. This policy was a failure, creating extensive black markets for foreign alcohol and having the unintended boomerang effect of making alcohol a more desirable and precious commodity than it was previously.

A step between prohibition and decriminalization is defelonization: the reduction of a law violation from a felony to misdemeanor. This keeps people out of prison and in essence reallocates funds to other sources. Many states gradually eased restrictions on cannabis use before fully legalizing the commodity. Or, the state first turned to measures that removed criminal penalties for cannabis possession or sale.

According to Drug Policy Alliance, some benefits of decriminalization are saving money by reducing prison and especially jail costs and population size; freeing up law enforcement resources to be used elsewhere; prioritizing health and safety over punishment; reducing drug use stigma; removing barriers to evidence-based harm reduction practices.

The term “legalization” has come to mean the conversion of a good, substance, and/or activity from illegal to partially legal or fully legal.

New York legalized medical marijuana before it legalized the commodity for recreational use by adults. In 2014, New York lawmakers passed the Compassionate Care Act, which legalized cannabis for medical use. This allowed licensed doctors to prescribe cannabis-derived medications to patients.

STATE CASE STUDIES

As was previously stated, the opportunity for knowledge accumulation in the United States is unique due to the fact that policy analysts have several live semi-controlled experimental trials at their disposal. U.S policymakers can learn from this diversity of cases and draw blueprints for the appropriate management of marijuana in a particular country. States have reached legal marijuana status by alternate methods: ballot referendum, budget measure, executive order. By legalizing through a law instead of a ballot measure or budget line, the New York policy has better roots and wings. As a state law, it is automatically endowed with more institutional resources and longevity than an alternative. Legalizing with a three-way agreement with the assembly, senate, and Governor demonstrated that New Yorkers are committed to realizing this legislation.

A review of the environmental provisions of cannabis laws in other legal states revealed that most states are lacking in this area. This section will provide an overview of the cannabis law in Oregon, Colorado, California, and Massachusetts.

Colorado is known for being an early adopter in the marijuana business sphere. The state first legalized marijuana for medical use in 2000 and legalized recreational use in 2012. The state has had more years of trial and error in this system than most any other state. The original laws did not include specific provisions for environmental protection. However, now that time has passed and Coloradoans have realized the consequences of the industry, lawmakers are reconsidering and amending the original text. In response to concerns about energy usage, Colorado created the Retail Marijuana Code to set responsible electricity practices. If a business wishes to alter the construction of their grow facility in any way it must be first approved by the Marijuana Enforcement Division. Some cities have taken matters into their own hands. Boulder County, Colorado set up a carbon offset program to incentivize more conservative usage of energy or transition to renewable energy sources. The revenue generated from the tax goes to a funding source dedicated to community education. This type of market-based solution is a wise approach as it continuously generates capital and returns a portion of that capital.

Oregon leapt into the fray in 1973 when state legislators removed criminal consequences for possession arrests. However, the state re-criminalized it in 1997. Oregon legalized recreationally in 2015 and began sales in 2017. One farmer, Adam Kurtz of Fusion CBD, shared that “Business in Oregon is battling oversupply, low demand, and sub par hemp commodities on the market coupled with a drastic price reduction of raw goods over the last 15 months. We have had to scale back and shrink our footprint which does not always happen quickly. Oregon does have equity provisions in its law. The state distributes 40 percent of tax revenue to its public colleges and 20 percent to drug treatment programs. The state law also regulates the growth of marijuana on public lands and addresses its environmental impacts. However, there are gaps. While the Oregon Department of Environmental Quality does not have marijuana-specific requirements, it does monitor marijuana business activity for compliance to environmental ordinances, with one exemption: air quality regulations. When farms first apply for cannabis growing licenses, they are required to submit an Electricity and Water Use Estimate form, which helps both parties acknowledge and monitor input and output costs. When cannabis was first legalized, the state ordered a task force on energy and environmental impacts, and that group concluded four recommendations: 1) Support access to education and technical assistance related to cultivation practices; 2) Support the creation of voluntary third party certification programs; 3) Encourage research into cannabis issues, including environmental best practices, health, and other aspects of the cannabis sector; and 4) Investigate water regulations for small-scale producers. These conclusions are slowly being heeded by farmers.

California legalized marijuana for recreational use in 2016. By that time, marijuana for medicinal use had already been legal for 20 years, so the government had the advantage of a pre-existing similar regulation model to follow as a guide. California’s original law included many provisions for equity, but few specific to decrease environmental harm. That has since changed. One instance of environmental care and monitoring is the introduction of watershed restoration projects managed by the California Department of Fish and Wildlife. This is facilitated by the Cannabis Restoration Grant Program, a program that allocates funds to organizations and actors who engage in projects to “clean-up, remediate, and restore watersheds affected by cannabis cultivation, and related activities.” A bill currently in the California state senate includes a mandate that the Medicinal and Adult-Use Cannabis Regulation and Safety Act allows for licenses to be awarded if it complies with the California Environmental Quality Act (CEQA) or local cannabis ordinances is underway, if applicable, as specified. CEQA is California’s NEPA process law. The bill also includes two other sections: “The provisional licensed program has provided a legal path for California’s legacy cannabis businesses to continue operations while ensuring those businesses achieve compliance with the California Environmental Quality Act.” And “With almost 80 percent of all licenses under provisional status, it is vital that the provisional program continue for these existing businesses in the licensed system while they continue to undergo environmental review. This bill is still in committee, but if passed, it could exact adherence to environmental law for thousands for cannabis-related businesses.

One of New York’s closest neighbors in an established legalized cannabis market is Massachusetts. Fifty-four percent of Massachusetts voted to legalize marijuana in 2017 via a ballot measure known as “Question 4.” The state only directly addresses environmental amelioration in one section of the legislation. The section calls for the establishment of a working group dedicated to finding ways to limit environmental impacts, including “ways to reduce energy and water usage in the marijuana industry.” Additionally, the law also provides for a plan to establish environment and energy standards and requires compliance to those standards by cannabis businesses. The Massachusetts law attempted to ease entrance to the market for diverse applicants by establishing the Economic Empowerment Program. However, the intent of this program was not successfully realized. Still today, no EEP applicants have been able to obtain a dispensary license. This is because towns and cities award licenses based on capital instead of diversity profile. This is a lesson of which New York should be wary.

ANALYSIS

The Marijuana Regulation and Taxation Act states from the outset that three of its many intentions are to “protect the environment, improve the state’s resilience to climate change, protect the public health, safety and welfare of the people of the state…” Embedded in the law are protections for minority populations that seek to promote their equitable participation in the new upcoming market. This section will analyze the strengths and weaknesses of the MRTA in terms of its attempts to forward environmental justice and remediate environmental impacts on land, water, air, energy, and waste.

The MRTA states the following intent:

“The legislature finds that existing marihuana laws have not been beneficial to the welfare of the general public. Existing laws have been ineffective in reducing or curbing marihuana use and have instead resulted in devastating collateral consequences that inhibit an otherwise law-abiding citizen’s ability to access housing, employment opportunities, and other vital services. Existing laws have also created an illicit market which represents a threat to public health and reduces the ability of the legislature to deter the accessing of marihuana by minors. Existing marihuana laws have also disproportionately impacted African-American and Latino communities. The intent of this act is to regulate, control, and tax marihuana, heretofore known as cannabis, generate millions of dollars in new revenue, prevent access to cannabis by those under the age of twenty-one years, reduce the illegal drug market and reduce violent crime, reduce participation of otherwise law-abiding citizens in the illicit market, end the racially disparate impact of existing cannabis laws and create new industries and increase employment.” (S854A)

Strengths & Weaknesses

The MRTA contains many sections that advance the four main environmental justice criteria. Many pieces of its language are in alignment with recommendations made by the foremost cannabis policy experts. These include section 13, section 51, section 64, section 83, section 86, section 87, and section 99. The act has been lauded for including detailed restorative justice plans. However, within these same sections there is significant room for improvement.

Section 13:

This section concerns delegating roles to the Cannabis Control Board. One of those roles is the collaboration between the department of agriculture and markets and the department of environmental conservation in order to determine the right standards and restrictions on energy, pesticides, and water. The law created the “Office of Cannabis Management” within the Division of Alcohol Beverage Control, which is an executive agency under the jurisdiction of the governor. This office will be run by a Cannabis Control Board staffed by five appointed members. In addition, there will be a thirteen member Advisory Board, which will include knowledgeable professionals from pertinent areas like environmental conservationism, agriculture, healthcare, and social justice. This section advances the fourth environmental justice criteria of Equity & System Integration by fostering collaboration between the various authorities on the major areas implicated by this law. The actions of this body will oversee the implementation of the law, the people in it should represent the people who they wish to serve. A weakness in this section is the lack of specificity for the procedure under which these administrative bodies operate. While these offices will not automatically function efficiently and responsibly because they include a diverse array of experts.

Section 51:

Part of this section creates the New York State Community Reinvestment Fund. This Fund will be managed by the Advisory Board, who is tasked with distributing grants to worthy organizations and government agencies engaged in projects that reinvest in communities disproportionately affected by past federal and state drug policies. A second type of fund is created by this section. The “New York state cannabis revenue fund” will delegate all revenue generated by adult-use and medical cannabis sales. After administrative costs are paid, revenue will be proportioned in the following way: 40 percent to the State Lottery Fund for Education, 20 percent to the Drug Treatment and Public Education Fund, 40 percent to the Community Grants Reinvestment Fund. Notably, a small portion of these funds are specifically reserved to fund research through state universities dedicated to discovering methods by which to amend and improve the Marijuana Taxation and Regulation Act. Research topics include “any environmental impacts and hazards related to cannabis production.” A weakness here is that this subsection does not detail what constitutes an environmental impact or hazard, therefore it leaves room for an ambiguous spectrum. Also, based on the financial distribution calculations, money for projects assessing environmental impact will be very minimal. This section begins to advance the Reparations and Environmental Rights environmental justice criteria.

Section 64:

This section pertains to the criteria under consideration when an individual or group applies for a license. The licenses available under the MRTA are: cultivator, processor, dispensary, microbusiness, delivery, and nursery. There are two general categories of applicant types: “social and economic equity applicants” and everyone else. The law defines this type of applicant as someone who identifies as any of the following: “Minority-owned business,” “Women-owned business,” “disadvantaged farmers,” or “Service disabled veterans.” Section 87 includes more detail on the criteria for these categories. Applications including clear plans to benefit communities that have been “disproportionately impacted by enforcement of cannabis laws,” will also get expedited review treatment. In the event an applicant gets approved for a license to grow, sell, or manufacture cannabis, they must abide by a set of criteria, including one that specifies environmental remediation: “the ability to increase climate resiliency and minimize or eliminate adverse environmental impacts, including but not limited to water usage, energy usage, carbon emissions, waste, pollutants, harmful chemicals and single use plastics.” This is strong language that fulfills the third environmental justice criteria.There is some risk of lack of genuine accountability here with the use of the word “contribute” because it is vague and can potentially allow businesses to fall anywhere on the spectrum in their contribution, including the bare minimum. This section advances the Reparations, Equity and System Integration environmental justice criteria.

Section 83:

The legalization of adult-use cannabis will usher in a deluge of eager farmers, many who may be novices. The law and agricultural organizations/unions should set the tone for a responsible and sustainable industry. The law should incentivize cannabis farmers to adopt permaculture and regenerative agriculture practices. Implementing these practices has two crucial impacts: The first continuing the tradition of African and Indigenous peoples, which furthers the social equity goal of MRTA by uplifting historically marginalized communities. The second is positive environmental restoration. By engaging in diligent soil monitoring, farmers can have many positive impacts, including carbon sequestration.

The regenerative agriculture movement is growing in popularity and prevalence among American agriculture communities. Many regenerative agriculture methods are based in African and Indigenous traditions. These include intercropping and polycultures, water management, agroforestry, and permaculture. Implementing these practices would be an appropriate way to honor the communities who originated them. While the law cannot effectively ban certain conventional farming methods, it can incentivize more responsible, ethical methods.

Section 83 does this with the language “Such regulations, standards, and guidelines shall be guided by sustainable farming principles and practices such as organic, regenerative, and integrated pest management models to the extent possible.” In including this measure, this section advances the second environmental justice criteria of Reparations. This type of policy is also already being acted upon elsewhere by sitting state lawmakers. Sen. Michelle Hinchey introduced Senate Bill S4722, the “Soil Health and Climate Resiliency Act.” If passed, this law would establish programs to help farmers manage their soil health and grants for projects that reduce methane emissions. While this language is a good start, more guidelines and specifics are necessary for advancing responsible cannabis agriculture practices through this policy.

Section 86:

It is notable to consider the social construction of Cannabis as a plant-based product. It would be ideal if all cannabis product companies and farms adhered obediently to the state’s environmental rules. However, expecting imperfection is a reasonable assumption; companies will act in conflict with the requirements of the law. In today’s market, customers are more likely to purchase a product if the company participates in some form of socially responsible practices, including fighting climate change. Businesses will take advantage of the marketed conflation of a plant-based product and sustainable business practices. But just because a product is plant-based does not absolve it of the potential evils that can come from the conversion process to marketable product. The converse of this logic is rampant in today’s market. The “Impossible Burger” Is a ripe example. A synthetic, plant-based version of meat like the Impossible burger has a 89 percent lower carbon footprint compared to a beef patty of the same volume. However, it is still a muli-national company that participates in all the same practices as other companies in the American capitalist economy: growing facilities, laboratories, processing facilities, trucks for distribution and transportation — all largely powered by fossil fuels.

Cannabis companies were already abusing the advertising tactic of greenwashing to attract and trap customers. For example, a CBD brand might include an image of a earth or a green hillside, or terms like “organic” or “all-natural” As a consultant commented to Marijuana Business Daily in 2019, “Typically, a producer or a brand that wants to make a claim that they’re green makes those claims based on data or best practices or standards — all of which are largely missing in the cannabis industry.” The MRTA tasks the Cannabis Control Board with designing explicit rules to regulate advertising and packaging claims. This section advances the Fair Policy environmental justice criteria. Advocates against greenwashing will be crucial in shaping the details during the rulemaking period.

The federal government regulates greenwashing through the Federal Trade Commission’s “Guides to the Use of Environmental Marketing Claims,” or “Green Guides.” These guidelines require that all terms and imagery appearing on packaging and in advertisements be supported by tangible evidence of a company’s dedication to that particular practice.

Section 87:

This section defines what constitutes a “social and economic equity business,” and how they will be treated within the system. As stated previously, these are people who fit one of the following categories: individuals who were disproportionately impacted by the War on Drugs, minority-owned businesses, women-owned businesses, disadvantaged farmers, and service-disabled veterans. A minority-owned business is a business owned by a majority of one of the following ethnic or racial groups: Black, Hispanic, Native American, and Asian and Pacific Islander people. Women-owned businesses are companies in which greater than 51 percent is owned by women. Disadvantaged farmers are people who fit the criteria for a struggling farm operation, including things like “incurring operating losses, by low commodity prices and face the loss of farmland through development or suburban sprawl.” Service-disabled veterans are former military personnel who fit criteria previously designated in New York state law. Additional criteria that will be taken into consideration when applications are reviewed are the applicant’s income and whether they were previously convicted for a marijuana-related offense. This section directs the Cannabis Control Board to actively promote and expedite businesses that include diverse staff profiles. In this way, this section advances the Reparations environmental justice criteria.

POLICY RECOMMENDATIONS

New Yorkers will be best served if this law is implemented in a way that maximizes public health and welfare, allows for appropriate adult consumption activity, and minimizes environmental harm and injustices. In order to present a state cannabis system that realizes the four goals of fair policy, reparations, environmental rights, and equity in system integration, the New York state legislature must add to, remove, and amend the MRTA. Additionally, the state CCB should develop a best management practice guide. This guide would include ideas for how cannabis producers and vendors can adapt their practices to be more sustainable, including resilience planning for the changing climate.

A rigorous land use review prior to a growth licensing approval is a necessary step. Any project undertaken on New York state soil is subject to the State Environmental Quality Review Act (SEQRA). This is the state’s “mini-NEPA” process. It was created in 1975 and requires that all social, economic, and environmental factors be reviewed to determine the fate of development projects. Within SEQRA is the Environmental Conservation Law which directs state and municipal, boards, agencies, and authorities to seek an environmental assessment or EIS if they deem it necessary to approve one of their projects. All projects must also comply with local municipal environmental regulations. New York cannabis-related business will not be subject to federal NEPA review, unless a federal agency is implicated. For example, if the USDA provides grant funding to a hemp research institution, an environmental impact statement might be triggered.

These types of reviews are categorized by “resource area” type. For cannabis businesses and growth facilities, examples of these resource areas could be “Farmlands,” “Air Quality,” “Parkland and Recreational Facilities.” Assigning these categorical labels helps to signify to the government which agency will be implicated in completing the SEQRA. For Farmlands, the NYS Department of Agriculture & Markets and the USDA might be implicated, for Air Qualify, the Federal Highway Administration might be implicated. A key part of SEQRA is the addressal of the cumulative impacts of an action. This is the consideration of past, present, and foreseeable future actions together. In the case of cannabis, the cumulative impacts could be air, water, energy, and soil pollution.

1. Production

For both indoor and outdoor growing practices, the law should continue to advance responsible, sustainable farming practices like regenerative agriculture. An aid to this goal will be increasing accessibility to cutting-edge agricultural technology. Many farmers already use technology like drones to increase the efficiency of cultivation processes. However, there is a financial obstacle that inhibits many from accessing this kind of helpful technology. Drones equipped with video cameras and mapping technology can help farmers and researchers monitor crops remotely and address issues.

For indoor growing businesses, there are many actions that cannabis farmers can take to prevent and reduce air pollution. Installation of air filters, insulation, regular venting, temperature and humidity modulation, and usage of non-toxic, plant-based sanitation products. Regular inspections are necessary to make certain that facilities are operating up to regulatory standards. These would prevent bad outcomes from damage, malpractice, mistreatment, or misuse of equipment or techniques. Employees of such facilities should undergo a thorough training period in order to prepare to abide by all regulations.

It is not yet precisely clear how exactly cannabis growth cycles will change due to the warming climate. However, policymakers can embrace this unknown and allocate funds to researching climate change patterns and harvest cycles. With this proactive knowledge accumulation, farmers can more quickly implement sustainable growing methods and technologies when the impacts are imminent. Having an established practice of growing in indoor climate-controlled facilities should help, but this would be an avoidance tactic instead of an adaptation tactic. The Board should collaborate to determine alternatives in the event that cannabis agricultural firms have to quickly adapt to the changing climate in New York.

In the case of Cannabis agriculture, local community groups, unions, companies, or the government can lead awareness campaigns prior to and after the opening of a new facility to notify the populace of potential environmental impacts.

1. Manufacturing

Cannabis has thousands of potential uses in the New York market — from food to construction material to textiles. But the plant must undergo a significant amount of processing in order to become this variety of products. Cannabis manufacturing involves levels of factory machinery infrastructure parallel in sophistication to other process-intensive plant-based products like cotton. This necessitates a parallel level of regulation to regulate the sustainable function of the tools, the workers within these factories, as well as the externalities yielded. The Cannabis Board should collaborate with industry experts in other states to compile a guide of best practices. These practices would apply to every facet of the process: from the light bulb types installed in the ceiling to the sweeping waste disposal procedure on the floor.

The Cannabis Board and other administrative staff can utilize software like the EPA’s EJScreen — a mapping tool for the United States that displays demographic and environmental impact information — in order to determine whether the siting of a new processing facility is in an area that has a vulnerable public health situation or is already experiencing heightened rates of environmental injustice.

1. Sale

In addition to the existing social and economic equity applicant aid policies in the MRTA, the NYS government should take heed to adopt practices that smoothly integrate Cannabis businesses into communities. While a new, radical law such as this one could be viewed as an opportunity to restructure the state’s economic approach, such a transformation would be irresponsible to undertake in an economically uncertain post-COVID society. Therefore, the best ways to achieve a robust state-wide Cannabis industry are through the existing powerful institutions of the banks, brokers, real estate and insurance companies. The law does include measures to prevent the death of small businesses, like provisions against vertical integration, which in turn will stymie monopolization, market privatization, and centralization of wealth.

However, insurance companies and banks are still wary of cannabis companies, and will remain wary until it is federally legal. It’s new territory. This creates a hostile environment for entrepreneurs, who have had to rely on venture capital as the only sources of finance. There are only a handful of specialized investors who are open-minded to pursuing marijuana endeavors. There is movement on this front at the federal level. The House voted yes on the Safe Banking Act, which, if signed into law, would allow state-licensed cannabis businesses a path forward in the national financial world. For the first time, state-based businesses would be allowed to obtain a bank account, process credit cards, or provide loans to small businesses and entrepreneurs. This would be significant both tangibly and symbolically.

As for the external waste generated by the commercial market from packaging and other related debris, public information campaigns should be deployed to limit littering in public and waste disposal best practices should be set within business storefronts.

1. Use

The aim is to allow for appropriate use of cannabis products in any form in the most just way. This includes environmentally responsible use practices. The Board should include in their best practices recommendations and guidelines for the ideal social and environmental use of cannabis substances. Law enforcement is included in the “use” category. One of the most acute objections to the passage of legalization was the lack of a portable, reliable roadside test. Policymakers predict that, on the current research and development timeline, this type of test will be available beginning in the next few years. Researchers involved in this test design process should take heed to use methods that have the lowest environmental impact, such as reusable, washable lab equipment, low-energy digital software, and others.

A general recommendation is to allocate more revenue money specifically to cannabis environmental impact research, perhaps similar to California’s model. Continuous, careful scholarship of these impacts will prove essential in later iterations of this law. The motive for including all of these provisions in the law and implementation is not to create more obstacles for applicants who desire to join in on the cannabis market. Rather, these regulatory steps are essential to prevent and mitigate the environmental impact of what is predicted to be a flush market.

IMPLEMENTATION

The work is not over once Governor Cuomo signs the bill into law. That is when the difficult work of implementation and accountability begins. One thing that has held true as states legalize is that the legalization process is a gradual and adaptive transition. Dispensaries and booming business do not pop up overnight. To truly solidify a cannabis market within any state in the United States, the U.S. Congress must de-schedule cannabis and related chemicals and cannabinoids from the CSA. Additionally, Legal scholars and biologists argue that shifting or removing the arbitrary 0.3 percent THC threshold is necessary to institutionalize the cannabis market at a national scale., Until then, scholars can focus on making improvements within existing state policy models. Environmental justice must remain a top consideration through the implementation and adaptation steps. Governor Cuomo approved the NY legislature’s 2021 budget on April 6, which contained the $212 billion budget for Cannabis Law implementation. Over the next year (2021–2022) New York administrators will be focused on organizing the leadership bureaucracy and rulemaking. A few of the things on the to-do list are to appoint leaders to the Council and Board; make rules to flesh out the policy; accept, review, and approve or deny license applications; and amend existing laws to update them to support the goals of the MRTA. In order to fully realize the goals of the MRTA, the Governor and administrators should appoint people with the same defining characteristics as social and economic applicants.

The licensing application process is paperwork intensive, expensive, and slow. Farmers and business owners of hemp farms like Allan Gandelman of Head and Heal in Cortland, NY have already expressed their concern over the slow speed of review. Even though the MRTA prevents vertical integration, they are still worried that multinational corporations will beat them in the chase. The license application has not yet gone live as of submission of this paper. However, New Yorkers can expect it to look similar to states like Massachusetts. Based on the publicly available completed applications on the Massachusetts government website, the average time necessary to complete the application process was one to two years. The Green Boom went bust in 2019 after raw product supply exceeded demand. The most common issue was the lack of processing facilities and a sturdy supply chain. Companies learned the hard way that, in order to have a thriving market, all the pieces have to be in place first. New York is the economic capital of the United States. By removing barriers to entry, cannabis companies not only get a fighting chance, they can thrive with a confident stream of capital. If New York can fully embrace the full potential of cannabis as a commodity, there is no end to the economic benefit. The plant can be transformed into an innovative product in virtually every industry.

Amendments to existing laws can supplement and bolster legalization when it goes into effect. The aforementioned Climate Act of 2019 can help support the goals of MRTA through its existing environmental preservation measures and working groups. The Act provides for the following goal, which is in direct alignment with the goals of the MRTA.

“Ensuring career opportunities are created and shared geographically and demographically is necessary to ensure increased access to good jobs for marginalized communities while making the same neighborhoods more resilient. Climate change has a disproportionate impact on low-income people, women, and workers. It is in the interest of the state of New York to protect and promote the interests of these groups against the impacts of climate change and severe weather events and to advance our equity goals by ensuring quality employment opportunities in safe working environments.”

Existing major institutions can also help support the MRTA. In addition to playing a critical role as research centers, educational institutions can advance environmental justice provisions of MRTA by increasing the public’s IQ on the substance itself and the new law. A more informed public would theoretically lead to more informed consumers, who would hopefully support the environmental goals of new businesses and the government. Section 99jj pertains to creating a New York state drug treatment and public education fund. This would provision funds towards public campaigns and customized location-based programs, for example.

It is important to note that the passage of this law will not immediately dissolve the black market drug trade. In fact, the black market may never fully disappear. In states like California with legal cannabis, illicit markets continue to operate. State lawmakers hope that consumers will vote with their purses, choose the legal market instead, and effectively destabilize the black market in New York. Regardless, any reduction in the black market will have a net positive impact on the national and local level. Cartel operators have to use circuitous, inefficient transportation methods to move raw and processed cannabis products around the country. With the reinstatement of a legal system, this emissions-intensive transportation system will likely eventually become obsolete. More efficient supply chains will replace them and will beat them on economic viability.

Collaboration and sharing best practices with other legal states is within the language of the MRTA. This is a massive resource of information for the state of New York. For other states, the addition to New York to the ranks of legal states will help to advance the field of cannabis policy and increase market competition.

CONCLUSION

The MRTA does partially fulfill the four goals of environmental justice: 1) fair policy, 2) reparations, 3) environmental rights, 4) equity & system integration. It creates upward mobilization opportunities within the new market through licensing, funding community outreach, new programs, and more. To design cannabis legislation for producers and consumers that realizes the goals of environmental justice, New York lawmakers should amend and implement according to the recommendations set forth in this paper.

Once the Governor signed the MRTA into law, New York became the latest puzzle piece to snap into the legal map on the eastern seaboard. States without any legal cannabis regulation are in the minority. Its initiation into the ranks of legal states can have significant influential power. New York’s legalization is a symbolic watershed moment that the cannabis industry is not just limited to corners and shadows; only for “reefers” and bad actors. That it deserves serious consideration under the law and that constituents desire a new policy framework that benefits instead of harms. Given the state’s large, dense, and diverse population, analysts can conclude that New Yorkers reflect the will of other Americans. When New York acts, other states pay attention, and oftentimes follow. The state’s move on this law can be the domino needed to push federal government employees to reconsider bills like the MORE Act.

This legislation can also be a signal to investors and lawmakers that Americans are serious. Although the state is late to the game, New York can still be a role model to states who have yet to embrace progressive cannabis regulation. If legalization can succeed in New York, the finance and culture capital of the country, then it is an encouraging example for other curious states. In fact, high profile-Senators like Majority Leader Chuck Schumer (D-NY) seized the opportunity of his own state’s legalization to call for federal delisting. The momentum is gaining speed. In the weeks following the passage of MRTA in New York, the state houses of both New Mexico and Virginia legalized cannabis.

This moment in time — the period immediately following the passage of the law — is crucial. Policymakers should harness this implementation period to set the right tone for the future of NY cannabis policy. This law could be the blueprint that dozens of states will follow after. The fate of both the NY program and their programs weighs on the content of this law and its implementation. Prioritizing procedural equity is key in this period.

Environmental justice provisions need not be limited to only climate-focused law. A government truly dedicated to the righteous pursuit would include consideration of environmental justice in the review process of every bill. Law regulating the use of cannabis is an excellent opportunity.

Like any ambitious policy, the key to success is litigious accountability. We have learned that from the example of other states. Policy made in haste will not result in a sturdy, sustainable market. If New York cannabis legalization advocates want to see this market prosper, we must continuously adapt the approach to the needs of the people and the market. The process of integrating an outcast substance into the formalized structure of democratic government is a challenge, but the New York state government has laid out a more holistic roadmap in comparison to other states.

It will take several years to take effect, but eventually, this law will have an indelible impact on the social fabric within the state from Buffalo to Brooklyn. Many advocates have a dream vision of New York with rolling hills of flourishing Cannabis plants, reinvigorating every corner of the state. This vision is naive; this plant cannot be lauded as a panacea. Even if New York can achieve a fair implementation of this law, additional efforts must be made in order to strive towards environmental justice. But it is, at the very least, a potential salve to the inflamed economy. The bottom line is that cannabis is a plant with a variety of properties. If harnessed responsibly, within this plant lies great potential.

POSTSCRIPT

It is worth noting that this paper was researched and written between the dates of August 25, 2020 and April 26, 2021. In that time, there were several significant developments and changes in cannabis law within New York state and at the national level. The Marijuana Regulation and Taxation Act was signed into law on March 31, 2021, which occurred after the bulk of the research and interviews had been completed. Readers should acknowledge that the timing of this paper and the dynamic nature of the law may have impacted the content of this paper.

ACKNOWLEDGMENTS

To my editors and friends at The Cornell Daily Sun: you teased me, but gave me my first outlet to investigate this world of research. It earned me the joke title of Chief Cannabis Correspondent, and it was worth it. To the girl I brushed my teeth next to in our sorority bathroom, you were the first person who mentioned cannabis research at Cornell to me. This seemingly inconsequential moment led to this. To Professor Carlyn S. Buckler, I want to be you when I grow up. You are the coolest and kindest. I am so lucky to have you as my advisor. To Courtney Moran, thank you for being a friendly, familiar, yet faraway face in this new territory. Your friendship and mentorship was vital to my ongoing dedication to this project.

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