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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

Environmental Justice 101  Posted: November 13, 2007
Environmental Justice 101
Louisville Bar Association
November 13, 2007
Tom FitzGerald

I. INTRODUCTION

As a regulatory concept, "Environmental Justice" is embodied in Executive Order 12898, signed by President Clinton on February 11, 1994.

As a movement and a concept, "Environmental justice," was not born in President Clinton's Executive Order 12898 in 1994.

It was born in the 1982 protests against the proposal by then-Governor Jim Hunt to dispose of PCB-contaminated soil in "predominantly black, rural and poor Warren County" North Carolina. Afton, in Warren County, was 84% black and Warren County had a higher percentage of black residents than any other county in North Carolina. The county ranked 92 out of 100 counties in lowest median family income in 1980.

The decision to dispose of the PCB-contaminated soil sparked protest marches and civil disobedience. The protests against the facility represented the first time since the late 1960's that a broad-based coalition had been mobilized to oppose what was called "environmental racism." The protests attracted national civil rights, labor and environmental activists, including D.C. Delegate Walter Fauntroy, who commissioned a General Accounting Office report, Siting of Hazardous Waste Landfills and Their Correlation With Racial and Economic Status of Surrounding Communities, GAO/RCED-83-168 (June 1, 1983), which found a positive correlation between race and the location of hazardous waste landfills.

The GAO Study concluded that “Blacks comprised the majority of the population in three of the four communities studied.”

The release of the 1987 report by the United Church of Christ entitled “Toxic Wastes and Race in the United States: A National Report on the Racial and Socio-Economic Characteristics of Communities With Hazardous Waste Sites,” expanded on the research, finding that racial and ethnic populations were five times as likely to be exposed to hazardous waste facilities, and four times as likely to be exposed to uncontrolled toxic hazards. Though socioeconomic status was one predictor of the correlation between populations and the likelihood of exposure to elevated hazards, both the United Church of Christ study and the work of Robert Bullard in “Dumping in Dixie: Race, Class, and Environmental Quality” (1990) suggest that race is the strongest predictor, with higher incidences of exposure for moderate as well as low income minority populations.

Since that time, scores of empirical studies have explored the relationship of race, income, class and political disengagement and the degree to which those communities and neighborhoods are disproportionately burdened by hazardous and environmentally undesirable land uses.

II. TOWARDS AN ANALYTICAL FRAMEWORK AND GOVERNMENT RESPONSE

Professor Bullard, who has written extensively on the topic, has identified some basic elements of the environmental justice "framework":

* the right of all individuals to be protected from environmental degradation;

* a model of public health prevention of harm as the preferred strategy (the precautionary principle); * allowing disparate impact and statistical weight to form the basis for a finding of discrimination, rather than merely intentional acts; and

* redressing disproportionate risk burdens through targeted actions and resources.

The environmental justice framework, according to Bullard, attempts to surface the issues of who benefits and who pays, and to assure that no segment of society is sacrificed or burdened because of vulnerability or racial discrimination.

In 1990, then-EPA Administrator Reilly empanelled a workgroup to review evidence that minority and low-income communities bore a disproportionate environmental burden. The workgroup report issued in 1992 made six findings, concluding that “there are clear differences between racial groups in terms of disease and death rates, but there was “limited data to explain the environmental contribution to these differences.” EPA, Reducing Risks For All Communities, 2. Lead was the notable exception, with a significantly higher percentage of Black children with higher blood lead levels. The workgroup also found that minority and low-income communities experience a greater than average exposure to hazardous waste facilities and selected air pollutants.

A 1992 study by the staff of the National Law Journal identified problems with EPA enforcement of hazardous waste laws, concluding that:

There is a racial divide in the way the U.S. Government cleans up toxic waste sites and punishes polluters. White communities see faster action, better results and stiffer penalties than communities where blacks, Hispanics, and other minorities live. This unequal protection often occurs whether the community is wealthy or poor.

Unequal Protection: The Racial Divide in Environmental Law – A Special Investigation, National Law Journal, September 21, 1992.

In August, 1993, the American Bar Association House of Delegates adopted an environmental justice resolution, supporting efforts to eliminate the disproportionate burdens of environmental harm borne by minority and low-income populations, urging improved access to information and decisionmaking, assessing risks and mitigating impacts, and urging remedial measures to redress situations of past harm. Among the specific recommendations of the ABA House of Delegates was for additional training of environmental lawyers to recognize, address and redress incidences of environmental inequity. In having this discussion today, we continue to tread a path towards better understanding of the issues and concerns with hazardous site remediation and environmental justice, racism and health.

III. EXECUTIVE ORDER 12898

In February, 1994, President Clinton issued Executive Order 12898, mandating that:

To the greatest extent practicable and permitted by law, and consistent with the principles set forth in the report of the National erformance Review, each Federal agency shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations in the United States and its territories and possessions[.]

The goal of environmental justice, as enunciated by EPA in response to the 1994 Executive Order, is to ensure that all people, regardless of race, national origin or income, are protected from disproportionate impacts of environmental hazards.

"Environmental justice is 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. Fair treatment means that no group of people, including a racial, ethnic, or socioeconomic group, should bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commercial operations or the execution of federal, state, local, and tribal programs and policies."

OECA 2000.

Executive Order 12898, by its terms, intended to focus federal agency attention on the effect of their decisions on low-income and minority populations, by directing the agencies to develop strategies for identifying and addressing disproportionate adverse impacts of their programs, policies and individual decisions. The EO was 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."

Among the specific components of the 1994 Executive Order was creation of the "Interagency Working Group on Environmental Justice" to provide coordination among agencies in implementing the order and establishing criteria for determining when environmental justice is being achieved. Additionally, each agency was "tasked" to develop a strategy to:

* promote enforcement of all health and environmental statutes in areas with minority and low-income populations;

* ensure greater public participation;

* improve research and data collection relating to the health and environment of minority and low-income populations; and

* identify differential patterns of natural resource consumption among low-income and minority populations (an issue relating to exposure assumptions).

The Executive Order also mandated that each agency conduct its programs, policies and activities that substantially affect human health or the environment "in a manner that ensures that such programs, policies, and activities do not have the effect of excluding persons including populations) from participation in, denying persons (including populations) the benefits of, or subjecting persons (including populations) to discrimination under, such programs, policies, and activities, because of their race, color, or national origin."

With respect to public participation, the 1994 Executive Order provided that each agency may translate crucial public documents, notices, and hearings relating to human health or the environment for limited English speaking populations; and shall "work to ensure that public documents, notices, and hearings relating to human health or the environment are concise, understandable, and readily accessible to the public."

With respect to the enforceability of Executive Order 12898, Section 6-609 of the 1994 order announced that "This order is intended only to improve the internal management of the executive branch and is not intended to, nor does it create any right, benefit, or trust responsibility, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies, its officers, or any person. This order shall not be construed to create any right to judicial review involving the compliance or noncompliance of the United States, its agencies, its officers, or any other person with this order.

At the time of issuance of the Executive Order, the President emphasized the provisions of existing law that could aid in achieving environmental equity, particularly the National Environmental Policy Act and Title VI of the Civil Rights Act, Nondiscrimination in Federally Assisted programs.

In April, 1995, EPA Administrator Browner introduced The EPA's Environmental Justice Strategy. This 25-page strategy document elaborated on the 6-page Executive Order. Significantly, the document framed the goal and principles of the strategy as being process-oriented: "Those who live with environmental decisions - community residents, State, tribal, and local governments, environmental groups, businesses-must have every opportunity for public participation in the making of those decisions. An informed and involved community is a necessary and integral part of the process to protect the environment."

The strategy emphasized outreach for public participation, and commits that EPA will:

- work to improve environmental education and training opportunities;

- ensure that public documents and notices are concise,understandable to the community involved, and accessible

- when appropriate, publish notices in languages and through media better designed to communicate with the intended recipients, and use translators in conducting public meetings;

- exchange information and expertise with stakeholders,

- administer grant programs to promote technical assistance

- provide environmental justice training to local governments and the public

With respect to public participation in permitting and siting decisions, the strategy identified "early and ongoing public participation in permitting and siting decisions", a commitment reflected in the "expanded public participation" rule for the RCRA permitting process and which expanded on the 1986 EPA Guidance of Public Involvement in the RCRA Permitting Program by requiring pre-application public notice and public meetings, equitable public participation, and establishment of information repositories.

The EPA Strategy also recognized that environmental justice is affected by and should affect decisions on enforcement, compliance assurance, and regulatory review, and that existing laws such as the National Environmental Policy Act (NEPA) and Title VI of the Civil Rights Act of 1964, provide "opportunities for Federal agencies to address environmental hazards" in minority and low-income communities. In this area, EPA committed to:

* actively encourage the use of creative and customized approaches to compliance problems, encouraging SEPS rather than cash fines, with a goal of reducing long-term exposures within affected communities

* educational outreach on citizens rights

* NEPA guidance:

In April 1998, EPA's Office of Federal Activities released the Final Guidance for Incorporating Environmental Justice Concerns in EPA's NEPA Compliance Analyses, a 55 page document which provides guidance on incorporating EJ concerns into the preparation of environmental impact statements and environmental assessments.

The NEPA guidance applies to those actions for which NEPA mandates EPA compliance. The guidance reflects the state of thinking by the Interagency Working Group on how to define the population, determining whether there are disproportionately high and adverse effects, cumulative and indirect effects, and the factors to consider in environmental justice analysis, including demographic factors, geographic factors, economic factors and human health and risk factors.

The guidance requires that the NEPA decision documents, which are the ROD following the final EIS or the FONSI following the EA, summarize the steps taken to address environmental justice concerns and where such impacts are identified, explain all alternatives and mitigation options analyzed and explain how environmental justice concerns were factored into the decision.

In order to enhance public participation the guidance suggests that community participation should be actively encouraged, that community knowledge should be recognized and that cross-cultural formats and exchanges should be used. Specific guidance regarding language or communication barriers, inconvenient access and distance to meetings, format of meetings, barriers such as unfamiliar surroundings, being outside the typical communications loop, schedule conflicts, technical complexity of issues and trust are addressed.

IV. TITLE VI OF THE CIVIL RIGHTS ACT

Title VI of the Civil Rights Act of 1964 is a federal law prohibiting discrimination on the basis of color, race or national origin in all programs or activities receiving federal financial assistance.

The adoption of the Interim Guidance For Investigating Title VI Administrative Complaints Challenging Permits touched off a firestorm of criticism from industry and states that the guidance went beyond the prohibitions of Title VI.

Title VI provides that: "No person in the United States shall, on the ground of race, color,or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

Title VI - Civil Rights Act of 1964.

The oversight of Title VI implementation is conducted by the Department of Justice, which requires each agency to develop regulations and guidance. EPA issued regulations in 1973 on how the EPA Office of Civil Rights would process administrative complaints under Title VI - they are found at 40 CFR Part 7.

In February 1998, an interim guidance was proposed by EPA in response to the 1994 Executive Order and the increasing number of complaints under Title VI.

According to EPA, the guidance created no new legal rights and was not intended to be used by recipients of EPA funding. The scope of the interim guidance was of concern, however, since it recognizes the EPA position that Title VI applies to "all programs and activities of a department or agency that receives EPA funds[,] including those programs and activities that are not EPA-funded.

For example, issuance of a solid waste landfill or permit-by-rule issuance under Subtitle D of RCRA, a program historically not grant-funded and administered largely by the states, or permit programs arising under state law that are not federally-delegated could be subject to a Title VI complaint if the recipient receives any funding from EPA. In the event of a violation and failure of compliance, EPA is required to initiate procedures to deny or suspend funding, and could refer it to DOJ for prosecution. The other controversial aspect of the interim guidance was the recognition that disparate impact, without proof of disparate intent, could support a Title VI violation. According to the interim guidance: "Title VI itself prohibits intentional discrimination. The Supreme Court has ruled, however, that Title VI authorizes Federal agencies, including EPA, to adopt implementing regulations that prohibit discriminatory effects. Frequently, discrimination results from policies and practices that are neutral on their face, but have the effect of discriminating. Facially-neutral policies or practices that result in discriminatory effects violate EPA's Title VI regulations unless it is shown that they are justified and that there is no less discriminatory alternative."

The case to which EPA referred was Alexander v. Choate, 469 U.S. 287 (1985). The 11th Circuit, in Elston v. Talladega County Board of Education, 997 F.2d 1394, 1396 (11th Cir. 1993) recognized that regulations adopted "pursuant to Title VI may validly proscribe actions having a disparate impact on groups protected by the statute, even if those actions are not intentionally discriminatory."

The opportunity to base a Title VI claim on disparate effect would substantially ease the burden of a petitioner from the current law, which has rejected claims of racial discrimination under the equal protection clause of the Constitution in waste facility siting cases based on disparate impact alone and has required a showing of discriminatory intent. Washington v. Davis, 426 U.S. 229 (1976). Even where a court found the siting of a solid waste facility nearby a residential neighborhood and a school without air conditioning to not "make sense" and to be "insensitive," that court rejected the Title VI claim based on statistical evidence and demanded evidence of purposeful discrimination. Bean v. Southwestern Waste Management Corporation, 482 F.Supp. 673 (S.D. Tex. 1979).

EPA's regulations implementing Title VI require two things – first that the criteria or methods of administering the program not have the effect of subjecting individuals to discrimination or have the effect of defeating or substantially impairing accomplishment of the objectives of the program with respect to individuals of a particular race, color, national origin or sex; second, that "a recipient not choose a site or location of a facility that has the purpose or effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination under any program to which this part applies" . . . . 40 CFR 7.35 (1994).

The Chester Residents Concerned for Quality Living v. Seif decision represented the only Title VI environmental case that reached a higher court. In that case, the Third Circuit reversed a dismissal of a Title VI suit against a soil treatment permit, and upheld the 40 CFR 7 regulations and the right of a private litigant to bring suit directly in federal court rather than utilizing administrative procedures. The Supreme Court granted certiorari, but was asked to dismiss for mootness because the permittee had by that time withdrawn the permit.

The Court dismiss the case but also vacated the Third Circuit opinion, leading some observers to question whether a private right of action exists for enforcement of Section 602 of Title VI. Seif v. Chester Residents Concerned for Quality Living, 119 S.Ct. 22 (1998). The door was closed on the possible use of Title VI to support a private right of action for disparate impact in the case of Alexander v. Sandoval, 532 U.S. ___ (2001). Sandoval brought a class action to enjoin the Alabama Department of Public Safety from administering state driver license examinations in English only, arguing that it violated the regulations of the Department of Justice regulations forbidding funding recipients from using criteria or administrative methods that had the effect of subjecting individuals to discrimination. The Court reversed the 11th Circuit, and found that while private individuals may sue to enforce Section 601 of the Civil Rights Act, that Section 601 prohibits only intentional discrimination, and that while agencies may adopt regulations under Section 602 proscribing activities with a disparate impact, there is no private right of enforcement of those regulations in the courts.

In the absence of a final guidance from EPA, in 2006, KRC sought clarification from EPA Counsel in the Office of Civil Rights on the applicability of the extent of a state’s obligations under Title VI.

The response indicated that to the extent that a department received federal assistance for any program, all programs of that department would be considered a “recipient” of federal assistance for purposes of compliance with Title VI. The applicability was explained in this manner:

"Although all states receive assistance for their environmental programs from EPA in one form or another, all departments within the state may not receive federal assistance, and therefore would not be subject to Title VI. For example, if a State’s waste program within their environmental department received federal money, but the air program did not, the air program would still be subject to Title VI because it is part of the State’s environmental department. However, if the State’s health department did not receive federal assistance, they would not be considered a recipient just because the environmental department received Federal financial assistance. Recipient status is only determined on a departmental level (e.g. environmental, transportation, etc.,) for those departments that receive] financial assistance from the Federal government, not on an agency level."

Thus, Title VI obligations have potentially broad applicability in permitting decisions for air, water and waste permits under delegated state programs where EPA funds any of the programs or activities of those state agencies.

The EPA manages a website at www.epa.gov, from which environmental justice materials can be accessed, including the NEPA guidance and the Interim Guidance for Title VI.

The question posed by the environmental justice framework is straightforward - how to allocate the burdens and benefits of economic development within a population and among subpopulations, and among generations. At the core, the law of environmental protection has evolved as an elaborate set of mechanisms intended to define and enforce an uneasy balance between the rights and responsibilities of industrial, commercial, institutional and residential neighbors, and between the individual and the society at large. Our justice or injustice towards others is defined by the attention that is paid or, as the case has been, that is not paid, to addressing and reducing the inherent disparity between public benefits and private costs - between the goods enjoyed by the population at large in areas often remote from the manufacturing and synthesizing of raw materials, intermediate products and finished goods, and the risks posed to those who create them and who reside in communities that bear a disproportionate negative burden from the environmental byproducts of the extraction, processing, and synthesizing of these products and goods, and waste disposal associated with the consumption of those goods.

This outline borrowed liberally from the presentation by Serena Williams before the 1995 LBA Seminar on Environmental Justice, and from a 1991 paper by David Lakin on Hazardous Waste and Race: Remedies for Minority Groups at Risk.


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