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.