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 Commonwealth's Environmental Amendment...

On May 18, 1971, Pennsylvania's voters by a four-to-one margin ratified what is now Article I, Section 27 of our state constitution-the Environmental Rights Amendment.

"The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people."

The Environmental Amendment should not be thought of a shield to protect the environment. Rather, the Environmental Amendment should be a weapon to fight those that would take the public's property interest in clean air, pure water and the preservation of the natural, scenic, historic and esthetic values of the environment. The Environmental Amendment should be at the forefront of a new post activist environmentalism. One which is not concerned with externalities and trying to protect what is at risk, but which is integral to the Commonwealth and public's ownership interests and which uses that property for the benefit of all the people.

The case law on the Environmental Amendment is sparse. The seminal case is Commonwealth v. National Gettysburg Battlefield Tower, Inc. There are actually two cases, one in Commonwealth Court and one in the Supreme Court of Pennsylvania. Read together, these provide a basis for what came next and why I advocate the Environmental Amendment has been looked at wrongly.

On April 3, 1973, the Commonwealth Court decided that the evidence in favor of constructing an observation tower to look over the Gettysburg battlefield sustained the finding that the construction of the tower would not violate the Environmental Amendment. Commonwealth v. National Gettysburg Battlefield Tower, Inc., 8 Pa. Cmwlth. 231, 302 A.2d 886 (1973). Of course, this is just the result, the important thing is the reasoning. Essentially, the court looked at the Commonwealth's interest as a Constitutional interest and balanced it against the private property interest of the company seeking to build the tower. The Commonwealth Court even noted the Commonwealth's power to exercise eminent domain. Of paramount importance throughout this discussion, the court also found the Environmental Amendment to be self-executing and that the Attorney General had standing to raise the Amendment on behalf of the Commonwealth as Trustee of the public's resources. It should be noted the dissents felt that the Environmental Amendment was, in essence, too vague to be self-executing. What is “clean air” or “pure water”? The dissents felt that further legislative or regulatory action was needed to implement the amendment.

On October 3, 1973, the Pennsylvania Supreme Court, by a split decision, affirmed the Commonwealth Court's decision, and implicitly the decision that the Environmental Amendment was self-executing. Commonwealth v. National Gettysburg Battlefield Tower, Inc., 454 Pa. 193, 311 A.2d 588 (1973), reh. den. December 5, 1973. This decision was far from unanimous, nor without controversy. Further case law would prove that the decision whether or not the Environmental Amendment was self executing is essentially irrelevant.

On November 21, 1973, the Commonwealth Court decided the next, and possibly most important, case involving the Environmental Amendment, Payne v. Kassab, 11 Pa.Cmwlth. 14, 312 A.2d 86 (1973) aff'd 468 PA 226, 361 A.2d 263, 6 Envtl. L. Rep. 20,796 (PA 1976). The case involved the widening of a street in the City of Wilkes-Barre. The Plaintiffs were not Commonwealth agencies, but rather citizens who felt that taking of the River Common would violate the Environmental Amendment. The court found standing and also reiterated that the Environmental Amendment was self executing. However, the court imposed a three prong test. First, the court is to examine whether there was compliance with all applicable statues and regulations relevant to the protection of the Commonwealth's natural resources. Essentially, this means the self executing nature is irrelevant, as the applicable statues and regulations will be the executory provisions. Second, the court is to determine whether the record demonstrates a reasonable effort to reduce the environmental incursion to a minimum. This means the courts have “reinterpreted” a self executing, substantive, right to clean air or pure water as a right to “reasonably clean” air, or “as pure water as one can get, given the circumstances. Finally, the third prong weighs whether the environmental harm outweighs the benefits to be derived. To be perfectly clear, the court did not say whose benefits those were, or how they were to be weighed.

Complaints are irrelevant. This is the test: was the law followed, is the harm minimized and do the perceived benefits to someone seem greater than the harm.

The Department of Transportation was allowed to widen the road, just like the tower was allowed to be built at Gettysburg.

The next cases involving the Environmental Amendment continued this trend. The first significant case were Community College of Delaware County v. Fox, et al., and Central Delaware County Authority v. Fox, et al., both reported at 20 Pa.Cmwlth. 335, 342 A.2d 468 (1975). In these cases, several landowners were aggrieved by a local Township's actions with regard to sewage facilities. Essentially, the landowners tried to limit the sewer extension on the grounds that the long term development of the watershed would violate the Environmental Amendment. Of course, an attack on the Department of Environmental Resources decision to grant a permit under the Clean Streams Law and the Sewage Facilities Act is a somewhat collateral attack on the decision of the Township to build the sewer in the first place. Commonwealth Court lost no opportunity to rely on DER's scope of statutory authority and found the granting of the permits did not violate the Environmental Amendment because of the opportunity cost of open space or the cost to human health or happiness.

In Mignatti Construction Company v. Commonwealth of Pennsyvlania, Environmental Hearing Board, et al., and Township of Salford, et al. v. Commonwealth of Pennsyvlania, Department of Environmental Resources, reported at 49 Pa. Cmwlth. 497, 411 A.2d 860 (1980), the Commonwealth Court took an almost identical tack. The challenge was to an air quality permit under the Air Pollution Control Act. The Commonwealth Court followed the Payne test and reasoned that DER acted in accordance with law, minimized the impacts through conditions in the permit and (with no analysis) that the benefits of the quarry were substantial and outweighed the environmental harm that would result. Id., at 504, 864.

The take away is that the courts are not going to give teeth to this amendment in the face of administrative decision making. However, there is another take away. In both cases, the courts required compliance with the laws. Including, in some instances and manner, consideration of the economic impacts. The point is that one cannot use the Environmental Amendment to trump agency action, but one can possibly use it to influence that action.

Although totally different in terms of the type of case, the time in which it was decided and the lesson to be learned, the case of Einsig v. Pennsylvania Mines Corporation, 69 Pa. Cmwlth. 351, 452 A.2d 558 (1982) does have an instructive role to play. In Einsig, a coal owner brought an action to stop an oil and gas driller from drilling pursuant to a permit. The court decided the case on the basis of familiar principles of real property law. The only discussion of the Environmental Amendment was to compare the fact that DER's scope of responsibility to the public under the Environmental Amendment was different than its scope of responsibility as between the two competing natural resource producers. Again, the Environmental Amendment cannot be used to stop an administrative decision or action. It appears it can only be used to help influence that action in some way.

Turning from two private parties where the Environmental Amendment was only tangential, we now examine a case with two Commonwealth Agencies, where standing, as opposed to the applicability of the Amendment took center stage. In Commonwealth, Pennsylvania Game Commission v. Commonwealth, Department of Environmental Resources, Ganzer Sand & Gravel, Inc. and Hammermill Company, 97 Pa.Cmwlth. 78, 509 A.2d 877 (1986) the Commonwealth Court was faced squarely with the issue of what agency would represent the Commonwealth in determining whether the Environmental Amendment had been met. Ganzer Sand & Gravel desired to allow a waste fill site on Ganzer's property near a State Game Lands known as No. 218 – Siegel Marsh. The Game Commission feared a degradation of the environment and filed an appeal with the Environmental Hearing Board raising issues under the Dam Safety and Encroachment Act (DSEA). Commonwealth Court gave great deference to DER and specifically noted that, for purposes of the DSEA, DER was the agency that was to look out for wildlife, not the Game Commission. The Court followed the Payne v. Kassab three prong test. They found the law had been properly followed by DER and that no substantial issue had been raised under the second or third prongs.

On appeal to the Pennsylvania Supreme Court, that Court held that the Game Commission had standing to challenge the permit on the basis of the Dam Safety and Encroachment Act but thereby avoided addressing the impact of the environmental amendment, Commonwealth, Pennsylvania Game Commission v. Department of Environmental Resources, (Supreme) 521 Pa. 121, 555 A. 2d 812 (1988). Justice Larsen did take the opportunity in his concurring opinion, in which Justice Papadakos joined to point out:

“As one of this Commonwealth’s trustees of our natural resources and the public estate under Article I, section 27 of our Constitution, the Commission must have standing to take whatever legal action is necessary and appropriate to “conserve and maintain” our “clean air, pure water,” and “the natural, scenic, historic and esthetic values of the environment where threats to game or wildlife and to waterways and lands acquired and managed by the Commission arise. Commonwealth, Pennsylvania Game Commission v. Commonwealth, Department of Environmental Resources, (Supreme), supra, page 131.”

Thus, although there was some judicial recognition that the Game Commission is a trustee of resources under the environmental amendment, the recognition has been less than decisive.

This is instructive on two counts. First, as to what type of evidence must be presented. It is not enough to allege a damage to a bird, a plant or a viewshed. One must prove by clear and convincing evidence that a recognized right is economically damaged and that such damage outweighs the benefit of the proposed action. Second, it is clear that the burden is heavy. A private right should not be weighed against a private right pursuant to Einsig, supra., and a public's right as a public interest is not a traditional property right such as is capable of quantification.

Lest there be any doubt whether these conclusions make sense, read Belden & Blake Corporation v. Commonwealth, Department of Conservation and Natural Resources, 600 Pa. 559, 969 A.2d 528 (2009). In that case the Supreme Court was virtually incredulous that DCNR had the temerity to claim a special status for the public under the Environmental Amendment. The analysis was limited to whether Belden and Blake met its statutory (NOT constitutional) obligations and whether Belden & Blake tried to minimize its damage caused by the exercise of its property rights. The third prong of Payne: whether the damage outweighed the benefits, was virtually ignored under the guise of protecting private property rights. Essentially, a government agency stands in no better position than any other citizen.

The most recent instruction on the Environmental Amendment and its use came in 2012. In the case of Robinson Township et al, v. Commonwealth, Public Utility Commission, et al., 52 A.3d 463, the Commonwealth Court had occasion to review the constitutionality of “Act 13”, 58 Pa.C.S. 2301-3504. Act 13 repealed Pennsylvania's Oil and Gas Act and replaced it with a comprehensive code. Specifically, Act 13 preempted local regulations, including environmental laws and most zoning provisions. The Plaintiffs raised a myriad of constitutional challenges. One of these was Article I, Section 27 of the Pennsylvania Constitution – the Environmental Amendment. The Supreme Court deemed this a justiciable question. They specifically rejected the Commonwealth's reasoning that the Legislature was to make policy determinations such as whether zoning (a General Assembly created creature under the Municipalities' Planning Code) should be preempted. The Court specifically found municipalities had standing to raise the issue. However, when actually addressing Article 1, Section 27, the Supreme Court gave great deference to the General Assembly's decisions as to how to develop oil and gas, specifically Marcellus and other shale oils and gases. The express statutory language prohibiting local regulation was found to settle the question and to vest the authority for Article I, Section 27 in the Department of Environmental Protection.

So much for being self executing.

However, this also points out the avenue of attack. A plaintiff cannot expect to raise the Environmental Amendment against DEP and receive deference. However, a plaintiff can use the Environmental Amendment to force DEP to create an administrative record. Such a record can take time and can be used to indicate where proposed permittees may make accomodations. The record can also be used to appeal to the Environmental Hearing Board to show violations of DEP mandates in its own regulations. While this has proven difficult in the past, several times cases turned not on the facts, but the absence of evidence. Practitioners must make every effort to show damages. The evidence cannot be replete with references to plants and animals which everyone knows will suffer some harm by development. To be successful, a record needs to reflect that other property rights, on balance, will suffer more harm than the alleged benefit of the proposed action to be permitted. This means involvement early on in a case of expert economists, business and industry officials, as well as a frank appraisal of whether a plaintiff has a justiciable claim or simply has a bias against the project. To be successful, no such litigation will be inexpensive.

Quite simply, the Environmental Amendment will not shield the environment from damage. However, it can be used as a sword to force administrative agencies, most notably DEP, to consider valuable interests of other persons when making permitting decisions. The proof of these interests and damages to them will be key.