Environmental Justice.....

The other day, I was riding my bike with my son and a friend down a local bike path. The friend was not familiar with the area and asked about the group of houses on the left of the trail. I explained this was a local low income housing project that had been in existence since the 1970's or so. I explained that admission was income based, that it was inhabited by primarily African American and other low income, communities of color. He then looked to the left and asked what the large, industrial looking facility was on the other side. I explained that was the local community incinerator where the city and county trash went to be burned. Of course, a by product of such incineration is dioxin, a seriously dangerous compound. From being in the area, I also recall complaints about ash spread over cars and yards when there would be temperature inversions. I do not know which was sited first, nor whether this is a case of environmental racism or simply an unfortunate accident of geography. But it did get me thinking.

Just what is “environmental justice”? It typically is thought about in the context of poor or minority persons being sited as the location of a landfill, or targeted as the location for some equally polluting or environmentally damaging facility. The result to the population is alleged to be everything from a diminished quality of life to cancer. A civil rights case made up of a Love Canal situation.

Definitions are in order. Environmental Inequity is a geographic reality. It refers to a pattern in which hazardous waste sites, polluting industires, nuclear waste dumps and other environmental threats are located or occur near communities of color or lower economic power. David E. Newton, Environmental Justice, Second Edition, ABC-CLIO, 2009, also availalble as a ebook at www.abc-clio.com, p 2. Environmental Racism goes beyond inequities and suggests there is a reason for such inequities based on race. Id., p. 3. Environmental Discrimination is also used in referring to unequal distribution of environmental insults, but suggests other communities such as the poor or low income may be affected as well as communities of color. Id., p. 3.

Executive Order 12898 entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-income Populations” was signed by President Bill Clinton on February 11, 1994, to focus federal attention on the environmental and human health conditions of minority and low-income populations with the goal of achieving environmental protection for all communities. The Order can be found on several federal government websites. The Order directed federal agencies to develop environmental justice strategies to aid federal agencies identify and address disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority and low-income populations. The Order is also intended to promote nondiscrimination in federal programs substantially affecting human health and the environment, and to provide minority and low-income communities access to public information on, and an opportunity for public participation in, matters relating to human health or the environment. The Presidential Memorandum accompanying the Order underscores certain provisions of existing law that can help ensure that all communities and persons across this nation live in a safe and healthful environment.

The House of Representatives sought to pass H.R. 1103 (110th): the Environmental Justice Act of 2007. The purpose of this Act was to codify Executive Order 12898, relating to environmental justice, to reuire the Administrator of the Environmental Protection Agency to fully implement the recommendations of the Inspector General of the Agency and the Comptroller General of the United States. It was introduced February 15, 2007 by Democratic Representative Hilda Solis from California. This bill was referred to committee and died when the 110th Congress adjourned.

However, courts have had a hard time recognizing how to enforce environmental justice. Cases are brought under Title VI, with jurisdiction being founded on 28 U.S.C Sections 1331 and 1343. A key question is whether there would be a private right of action.

Two Third Circuit cases have answered this question affirmatively. In Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925 (3d Cir. 1997) cert. granted 524 U.S. 915, 118 S.Ct. 2296, 141 L.Ed.2d 156 (1998), cert vac. as moot 524 U.S. 974, 119 S.Ct. 22, 141 L.Ed.2d 783 (1998), a community organization sure the Pennsylvania Department of Environmental Protection. The basis for suit was that the Pennsylvania Department of Environmental Protection permitted an industrial facility in a predominantly black community. Although the Third Circuit found standing and a private right of action, the case never developed fully, as the Developer withdrew its permit and the case was declared moot. In Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999) cert. den. 528 U.S. 1046, 120 S.Ct. 579, 145 L.Ed.2d 482 (1999). Third Circuit explicitly reaffirmed its position there is a private right of action.

Another early case, South Camden Citizens in Action, et al, v. New Jersey Department of Environmental Protection, 145 F.Supp.2d 446, 52 ERC 1523 (USDC NJ, 2001) , is essentially the highwater mark of environmental justice lawsuits. A community organization brought a Title VI claim against the state Environmental Protection Agency claiming a decision to issue air pollution permits for a cement processing facility would have a racially discriminatory impact. The Plaintiff made a motion for a Preliminary Injunction and the court held that:

1. the agency, as a recipient of federal funding, had an obligation under Title VI to consider racially disparate adverse impacts when determining whether to issue permit, in addition to applicant’s compliance with applicable air quality standards;

2. the community organization made a prima facie showing that the operation of the permitted facility would have a racially disparate adverse impact;

3. the harm to the community would have outweighed the harm to the permittee; and

4. the requirement that the community organization post security would be waived.

In South Camden, the motion for a preliminary injunction was granted. Specifically, the decision turned on the application of 42 U.S.C. Section 2000d which prohibits discrimination based on race and national origin by recipients of federal funding. The evidence showed that 91% of the residents of Camden, New Jersey were people of color. As mentioned, the court found that adverse health impacts were statistically shown.

However, this was before Sandoval v. Hagan, 197 F.3d 484 (11 Cir.1999) Cert. Granted 530 U.S. 1305, 121 S.Ct. 28, 147 L.Ed.2d 1051 (2000) was decided by the Supreme Court. In Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511 (2001) Justice Scalia held no private right of action to enforce disparate impact cases under Title VI of the Civil Rights Act of 1964. The context of the case was not environmental justice, but rather a decision to offer English only driver exams. Justice Scalia and the Supreme Court found that 42 U.S.C.A. Section 2000d allowed private individuals to sue. They stated such a right to sue to enforce the section was “beyond dispute”. p. 1516, 280. However, in a move which gutted the previous statement, the majority held that the only prohibition is against intentional discrimination Id. Justices Stevens, Souter, Ginsburg and Breyer authored and joined in a blistering dissent that Justice Scalia's opinion basically made the Supreme Court a limited review federal tribunal.

Just as importantly, it forced anyone seeking to bring suit over an environmental justice claim to show intentional discrimination. A heavy burden in any case.

Environmental justice cases are significantly few, and for good reason after Sandoval. However one case worth mentioning is The Sierra Club, et al., v. Gates, 499 F.Supp.2d 1101 (SD Indiana, 2007). In that case, environmental organizations brought an action against the federal government to enjoin a chemical destruction program. The District Court held that the environmental organizations failed to show likelihood of success on the merits. It should be noted that this case was decided post 9/11, when it was felt there was an immediate need to get rid of chemical weapons. However, the case involved a lengthy process that had started in 1993. Also significantly, alternative waste disposal methods and sites also had environmental justice issues. One reason this case is noteworthy is because it was not brought under Title VI, but rather the Resource Conservation and Recovery Act (RCRA) 42 U.S.C. § 6972(a), the Defense Authorization Act (DAA) 50 U.S.C. §1512 et seq., and the National Environmental Policy Act (NEPA).

Essentially the argument was that a supplement to the Environmental Assessment or Environmental Impact Statement was required because of changes in processing at facilities chosen after 2005, pursuant to 40 c.f.r. §1502.9(c). The District Court disagreed and the motion for preliminary injunction was denied. In 2008, the case was finally put to rest for good.The Sierra Club v. Gates, 2008 WL 4368531 (S.D.Ind. 2008), not reported in F.Supp.2d, involved the same case on cross motions for summary judgment. The Plaintiff’s motion for partial summary judgment was denied and the Defendant’s cross-motion for summary judgment on Plaintiff’s National Environmental Policy Act claims was granted. Defendant Veolia’s motion for summary judgment on the RCRA claims was granted and the Government’s motion for summary judgment on Counts 1, 6,7,8 and 9 was granted. Basically, the court agreed that the Army had taken a hard look at NEPA and even had looked again before making its decision to send chemical weapons to Port Arthur for incineration, rather than a DuPont facility. The environmental justice claim was denied because there was no underlying basis for the NEPA claim.

Although this was not a Title VI case, it evidences the same type of reasoning. If no law was broken, there could be no discrimination.

A further interesting fact is that there seems to be no legal protection for persons of low income. While many low income persons may very well be persons of color, that does not necessarily have to be the case. Many rural families in Pennsylvania are disproportionately impacted by oil and gas drilling. In fact, in some cases, their communities are specifically targeted for facilities by oil and gas companies promising jobs, infrastructure and tax benefits to communities. These poorer, rural communities do not have the wherewithal to hire attorneys and other experts and consultants schooled in oil and gas drilling. The promises are great, but probably not as great as the market would bear. There has been talk of oil and gas companies leasing in the Erie region of Pennsylvania at $50.00 per acre. The underlying oil and gas play is the Utica Shale, which in that region of Pennsylvania is likely a wet gas play with a large residual value in liquid constituents of gas. There is also an infrastructure in place to move that product. Yet the rentals are less than what is seen in other parts of Pennsylvania for a generally more homogeneous, but less lucrative, product. Ohio is seeing the same type of activity. West Virginia has been targeted because of its friendly regulations. However, one cannot help but notice that West Virginia has consistently had a lower per capita income than most states and that Ohio has had a very high unemployment rate.

It seems that environmental justice cases must involve public education, community organizing and political action to be effective. This will be especially true when the public being affected is not one of the traditional groups to be discriminated against.

One last case, not an environmental justice case, but one which is instructive should be discussed. That case is Massachusetts, et al, v. Environmental Protection Agency, et al, 549 U.S. 497, 127 S. Ct. 1438 (2007). In Massachusetts, states, local governments, and environmental organizations brought a suit for review of an order of the Environmental Protection Agency (EPA) denying a rulemaking petition to regulate greenhouse gas emissions from motor vehicles under the Clean Air Act. This is a complicated case, which is worthy of consideration in its own right. However, for purposes here, what is important is that the Supreme Court found federal jurisdiction and state standing to challenge a decision by EPA to not regulate greenhouse gasses. EPA based this decision not on what was found in the Clean Air Act, but on the dual grounds that (contrary to their own counsel's opinions) the Clean Air Act did not give EPA jurisdiction to regulate greenhouse gasses and that even if it had the authority, it would be unwise to set emission standards at this time (2003). The Supreme Court had no trouble disagreeing with both propositions.

The lesson for environmental justice advocates is that there is a difference between an enforcement decision, or a permit, and a rulemaking proceeding. As part of a coordinated effort, a rulemaking proceeding can force action and explanation, also involving public participation and political pressure, in a way that may not be more forceful than an action to force enforcement or challenge a permit. In addition, such an action does not depend directly on intentional discrimination or a new right being found for persons of lower income. Instead, environmental justice advocates could do an end around the environmental justice aspects and try instead to simply reach the goals without directly addressing the environmental justice aspects.

I hope to write more on environmental justice in the future. I hope that our society can find a way to lessen all environmental impacts for all persons so that no one feels they are being hurt by decisions which benefit all of society. In the meantime, we must be vigilant to look for permitting and enforcement agencies to do the right thing and follow their own laws and policies. If they do not, look to those laws and policies for relief.

The Nature of Property Rights: Personal, Private and Public....

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I have been reading a lot of political economic theory lately.  Mostly Libertarian Socialist.  But it has gotten me thinking about the nature of property.   Sort of a little "hobby" of mine.  So I have been reading various textbooks, case law, and a little book by Proudhon called "What is Property?"  Some of you may have heard of it.  It is, unfortunately, not something you sit and read on a sunny afternoon, but something you read a page or two at a time and then try to assimilate. 

The first thing I did, even before reading a page of Proudhon's book, was to look for definitions of property. I turned to a hornbook where I read that “[w]hen an individual claim or interest receives recognition and protection by the state we say that the party concerned has a legal right in the matter under consideration.” So, for instance a right to be free in the possession and enjoyment of someone's land and chattels. The correlative is that there is a legal duty. Brown, Ray Andrews, The Law of Personal Property, Second Edition, ©1955 Callaghan and Company. p. 2.

“Legal rights are, however, not static things, but they may be created, transferred, and lost. This capacity in an individual of creating, transferring, and divesting himself of legal rights is known as a legal power.” Id., p.2. A person may have a legal power, but no right, as in a thief. But this still does not define “property” itself, but rather describes property “rights”.

Such legal rights have been divided in personam and in rem. Id., p. 3 In personam is a right which exists only against a person. p. 4 In rem is available against persons generally. p. 4. In personam, the correlative rights exist only with respect to a certain class of persons. With in rem correlative rights exist in persons generally. Again, useful ideas, but not a definition. So I delved further and did find the following:

In the popular sense of the word property is often used in reference to those tangible things, which are subject to the rights, which we designate by the term ownership. A man's property we say consists of lands, buildings, furniture, cattle, wagons, automobiles and the like. In the legal sense, however, property means not the thing itself, but the rights which inhere in it. Ownership, or the right of property is, moreover, nor a single indivisible concept but a collection or bundle of rights, of legally protected interests. The owner of a given piece of land or chattel has not only the interest of possession, and of enjoyment and user, but also that of transfer to another, and even of directing how it shall be disposed of upon his death.

Id. p. 6. Now, this truly is a definition! However, it is an interesting one because it does not define the thing itself, but rather the thing by our relationship to it. Sort of an “it's property because we say it is” type of definition. In fact, under this theory, you could own all the property rights and not a stitch of what any layperson would call property at all. And many people do.

The definition and concept of property is obviously more complicated. “Certain physical things, such as air, light, and running water are by their very nature incapable of being owned. It is impossible to exercise over them that power of exclusive control which is the very center of the concept of private property.” Id. p. 7. Looking at a hornbook on real property law, I found even less explanation of property. Rather there was a gradual presupposition that everything came from God, passed through the divine right of King's through their fall, through barbarian rabbles and came out the other end of a feudal system wholly intact.

Having said that, two concepts are worth repeating. First, “Proprietary rights in land are, we may say, projected upon the plane of time. The category of quantity, of duration, is applied to them.” Moynihan, Cornelius J., Introduction to the Law of Real Property, West Publishing Company, 1962. The second concept is how the philosopher Cicero (at least according to Proudhon) compared the earth to a theater. Each person is accorded a seat and holds that seat while they occupy it. When they leave it is free for someone else to occupy.

These statements hit upon an important truth.  There simply are different types of property with different qualities.  A tautology that can be quite helpful.  The real question is not whether there is or is not property.  Obviously there is some sort of property.  Different forces work upon different types to make them property or to cause them to retain value as property. It appears the definitions of property may change depending on the “plane of time” or how many seats are in the theatre and how many people want to see the show.

Proudhon seemed to think there were two different concepts:  private property and personal property.

There most assuredly is some sort of personal property.  My clothes, my house, etc.  These are - more or less - inviolate.  We as a society simply frown upon people ripping other people's clothes off.  No matter how outlandish they are.  And given the way many people would look without clothes, I can support this. But I have also learned that just because I possess something cannot be a basis on which I own it.  Otherwise, I would simply need to steal something to appropriate it.  Otherwise, I could own a person.  Last check, society still frowned on owning people.  In fact, in some circumstances we frown on "renting" people, owning some animals, owning some substances, etc.  

On the other hand, we discuss PRIVATE property also as a type of property.  So you can "own" land you have never seen and never visited.  It is possible you don't even know you own it, as you could have "purchased" it as part of an investment. It seems simple possession cannot be the basis for property. Perhaps put in a more modern context, you own what you create.  Again, to some extent this is obviously true.  I have created this text, I have created the thoughts, I "own" this.  I guess I could take ads and "sell" space, or try to copyright it as intellectual property.  I have done none of this.  But by the same token, what right have I to sell space on the sheet of paper (or the webspace) where you are reading this?  I created the text, but not the medium.  I did not create the computer on which I write.  These ideas are mine, but they are spawned by what I have read.  Nothing exists in a vacuum.  So if everything and everyone contributed to this blog - this so-called property - then everyone owns a little piece of it.  And if everyone owns it, then NO ONE owns it.  

Yet, as a society, we protect these two types of property equally. 

But should we?  Of course, no one should take your home.  But if you simply are not making productive use of something and someone else needs it, or can make productive use of it, then what is the purpose of protecting your inchoate interest?  Protection of such an interest serves only to perpetuate the tendency of money to make money, but serves no useful purpose to society other than to increase capital.  In fact, it could be argued by taking away the ability of someone else to use the property, we have actually decreased productivity. 

Do not take this question as meaning that all retirement savings or other investments should be socialized or that private property should necessarily be abolished.  The aggregation of money for investment is extremely important for large projects and can serve the public interest. 

However, is it not also possible that we should recognize the distinction between what is essentially a human need for personal property that is inviolate and preserved to them as the fruits of their labors and the private property that is nothing more than property as exists on paper?  Such a distinction could have profound impacts on the way we view the environment, agriculture, energy, and all consumer goods.  I don't suggest an answer, but let's have the debate.

There is a false and mistaken division between private and public property in the United States today.  There is also a lack of respect for personal property.  This false division and lack of respect leads to a flaw in society.  A small number of self interested individuals make a lot of decisions for a large number of individuals about what is best for everyone.  By understanding (and perhaps abolishing) the "public versus private" distinction, we can start down a path of reinventing our society and decision making to benefit all persons.

My research indicates that laws and governments - states - spend a lot of time "protecting" private property.  In many cases or places, this is defined by its juxtaposition to "public property".  In this definition, public property is that which is owned by the state, and private property is everything else.

Following these definitions, the Complaints of the Declaration of Independence and the protections of the Fifth Amendment to the United States Constitution look as if they are meant to keep the state from "stealing" someone's property.  Indeed, that is a true statement.  However, it is far from the whole story.

In thinking about property (personal, private or public), we need to start earlier and from a different perspective.  To a large extent, prior to the Magna Carta all property was owned by the king.  I recognize this is a gross exaggeration and that there are numerous examples where this was not true.  However, this is a useful place to start.  The Magna Carta essentially granted rights, or "property", as that term can be loosely used away from the king, while retaining certain rights, or "property" in the king.

Now, there is an interesting characteristic of property that everyone knows and everyone forgets.  Property owns you.  While you "own" something, you always have some sort of obligation, whether it be a tax, maintenance or simply finding a place to store the property.  And, of course, you always have the risk of loss.  After you give property away, of course, you no longer own it.  So the peculiar thing is that the only time you actually exercise all the rights of property that you may have is at the particular time you give away those rights.

That bears repeating:  only at the time someone actually disposes of their property is that person taking complete control and exercising all the property rights they own. 

Taken one logical step further, the best of all possible worlds would be to give away the (property) rights, while still maintaining the ability to direct the use and management of the (property) rights.  The king knew this when he put his seal on the Magna Carta.  The Barons that forced the Magna Carta did not get freedom from the king.  The state knows this when it allows you to "keep" your property free from taking for public use without just compensation.  On a personal level, the parent who "gives" a car to their child to drive to and from school and work, and nowhere else, practices the same type of control.

So let's use this concept and redefine public property.  Public property is not just the property "owned" by the state.  Indeed, ownership by the state is not nearly so public as one might think.  The ownership or use of the property is limited by the owner - the state - not the public.  Public property is, rather, the whole of the rights that the public has.  This includes positive rights such as traditional deeded ownership of land, as well as negative rights, such as the right to zone, or set a speed limit.  Let's also do away with the idea of the state "owning" these rights.  While modern law seems to treat that as true, I am proposing that is the wrong way of looking at things.

The King gave way to Parliament in England.  However, in the United States the King gave way to the people.  In fact, in the Commonwealth of Pennsylvania, the rights have been protected by the Commonwealth as if in Public Trust.  The Pennsylvania Constitution essentially gives the people rights which - most rightfully - should be public property.

So then, private property is everything not owned by the people, right?  One certainly can make that distinction logically.  However, there is another more fundamental distinction at play.  Since so many property rights are subject to so many rights of the public, is there not a third, more inalienable property right?  Did the Declaration of Independence not indicate there were inalienable rights such as life, liberty and the pursuit of happiness?  Can someone take your intellectual property?  You can give it, perhaps without protection, but can they actually take it?

My suggestion is that there are certain personal property rights which are inviolate.   Nor should these be limited to your thoughts.  Life, liberty and the pursuit of happiness come to mind.  The clothes on your back should be your personal property, subject to no one else's right to remove them.  Of course, the line gets blurred, but generally the fruits of your labor should be yours.  You create it, you keep it or dispose of it.

However, all other property, including the money received if disposing of personal property, and no matter whether "private" or "public", is simply property.  Again, all other property, whether "private" or "public" is simply property.

It is neither good, nor evil.  One property right is limited by another.  In a society, one in which presumably there is a social compact, the concept of correlative rights allows for seemingly incongruous positions on property.  Taxes are an example of incongruous positions.  If your personal property was inviolate, and you sell it, why wouldn't the income be inviolate.  This is because taxes are simply a method of aggregating capital that presumably the public has agreed upon (this is another subject, for another day, but remember that whole "taxation without representation" thing). 

So the important thing turns out not what kind of property right we have after all.  The important thing is what we as a society choose to do with these rights.  Right now, much wealth (a form of property) is concentrated in a few holders.  This is not necessarily bad.  A concentration of wealth allows for investment.  What is dangerous is how the decision is made how that wealth should be exercised.  In other words, how and when will it be given away?  To who?  What restrictions will be placed on how that wealth is used?  As a society, we should be wary of  allowing a small group of persons to make those decisions.  Likewise, we still have the same tensions as the founding fathers regarding the tyranny of the majority.  More recently, we need to be concerned about the tyranny of what is loosely termed special interests. 

While I cannot answer specifics as to ownership or wealth transfer or regulations and rules on the use of property (who am I to impose this order unilaterally anyway), I do suggest that people stop thinking in terms of public versus private (and left versus right).  We need to begin to think of "us" and what is best for ourselves and our children.  It is not best for a small number of private interests to make public decisions.  It is not best for the public to abdicate their public responsibility and allow a small minority of persons to hold capital with little, if any, accountability to the public.

Talk with people.  Talk with your family.  Talk with your friends.  Talk with those who disagree with you.  What kind of social conscience do we all agree a large company like Walmart should have in return for the public allowing them to exist and concentrate wealth in a small number of people?  What are we willing to do to achieve this?