ENVIRONMENTAL JUSTICE 101
by Tom FitzGerald, Executive Director and Liz Edmondson, Staff Attorney
Environmental justice is a concept that seeks a more equitable distribution of pollution burdens throughout the United States. According to the Environmental Protection Agency, environmental justice means:
"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 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."
Although codified into an Executive Order by President Clinton, “environmental justice” as a concept blending civil rights and environmental protection movements, were born in the 1982 protests against the proposal by then-Governor Jim Hunt to dispose of PCB-contaminated soil in Warren County, North Carolina; the county with the highest African-American population and one of the poorest in North Carolina. The protests against the facility represented the first time since the late 1960’s that a broad-based coalition, including national civil rights, labor, and environmental activists, had been mobilized to oppose what was then called “environmental racism.”
II. EVIDENCE OF INJUSTICE AND AN ANALYTICAL FRAMEWORK
In the following years, various studies confirmed a correlation between 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. These include studies by the General Accounting Office, requested by William Fauntroy, the District of Columbia’s delegate to the U.S. House of Representatives, and Dr. Benjamin Chavis, then-head of the United Church of Christ’s Commission on Racial Justice, both of whom were arrested for their involvement in the Warren County protests. The National Law Journal, in a 1992 study, found that more stringent enforcement of Superfund sites occurred in predominantly white communities than in communities of color.
Professor Robert Bullard, author of Dumping in Dixie (1990), the first work to trace the rise of the environmental justice movement and document environmental racism, developed a framework for environmental justice. The framework seeks 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. The following basic elements make up the “framework”:
- The right of all individuals to be protected from environmental degradation;
- A model of public health where the prevention of harm is 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 the disproportionate risk burdens through targeted actions and resources.
III. EXECUTIVE ORDER 12898
On February 11, 1994, President Clinton issued Executive Order 12898, which directed federal agencies to consider the effects of their decision-making on environmental justice. 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.
Executive Order 12898 intended to focus federal agency attention on the effect of their decisions on low-income and minority populations; 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."
However, with respect to the enforceability of Executive Order 12898, Section 6-609 of the 1994 order stated:
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.
Although the Executive Order cannot be enforced and does not create a private right of action, in April of 1998, EPA’s Office of Federal Activities released the Final Guidance for Incorporating Environmental Justice Concerns in EPA’s National Environmental Policy Act Compliance Analyses, a fifty-five page document which provides guidance in incorporating environmental justice concerns into the preparation of environmental impact statements and environmental assessments. The guidance requires that the NEPA decision documents 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.
IV. LEGAL CONSIDERATIONS IN ADDRESSING ENVIRONMENTAL INJUSTICE
Legal theories that can be advanced to address environmental injustice are woven between the fields of environmental law and civil rights. Many of these remedies have been foreclosed in recent years or are not effective in addressing the underlying disproportionate impact suffered by the community.
A. The Equal Protection Clause of the Fourteenth Amendment of U.S. Constitution
The Equal Protection Clause provides that a state shall not “deny to any person within its jurisdiction the equal protection of the laws.” Plaintiffs employing the Equal Protection Clause as a remedy may argue that a government action, such as granting a permit to operate solid waste facilities in a predominantly minority neighborhood, amounts to racial discrimination under the Equal Protection Clause. To succeed in this type of claim, a plaintiff must first show that the government intentionally discriminated against similarly situated persons on the basis of race.
Historically, environmental justice plaintiffs have been largely unsuccessful in proving discriminatory intent because it is rare that evidence is found demonstrating blatant intentional discrimination. In R.I.S.E. v. Robert A. Kay, the plaintiffs challenged the siting of a landfill in a predominantly African-American area. Although the court noted that the board had a history of siting landfills in predominantly black neighborhoods, that a landfill in a predominantly white area was rejected by the board, and that there was strong opposition by the community to the siting of this landfill, the court found the plaintiffs had not proven the requisite intent required for a violation of the Equal Protection Clause.
B. 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. Title VI contains two provisions applicable to environmental justice plaintiffs, sections 601 and 602.
Section 601 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.” In other words, section 601 prohibits the federal funding of programs that engage in racial discrimination. Like cases brought under the Equal Protection Clause, cases interpreting Section 601 in the environmental justice context require plaintiffs to prove discriminatory intent, making a claim brought under Section 601 difficult to prove. See, e.g., Chester Residents Concerned for Quality Living v. Sief; New York City Environmental Justice Alliance v. Giuliani.
Section 602 authorizes federal agencies to promulgate regulations and guidance in implementing section 601. The oversight of Title VI implementation is conducted by the Department of Justice, which required each agency to develop the regulations and guidance. In 2006, EPA finalized a guidance document titled Title VI Public Involvement Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs (Recipient Guidance), at 71 Federal Register 14207 (March 21, 2006). A “recipient” is defined as “any state or its political subdivision, any instrumentality of a State or its political subdivision, any public or private agency, institution, organization, other entity, any person to which Federal financial assistance is extended directly or through another recipient, including any successor, assignee, or transferee of a recipient, but excluding the ultimate beneficiary of the assistance.” 40 CFR 7.25. “Assistance” is defined to include any grant or cooperative agreement, loan, contract, or other arrangement in the form of funds, services or personnel, property transfers for less than fair market value, leases, or right to use property.
The guidance recognized that a recipient of EPA assistance “may not issue permits that are intentionally discriminatory, or use ‘criteria or methods of administering its program or activity which have the effect of subjecting individuals to discrimination because of their race, color, or national origin.” Thus, under Section 602 only proof of a discriminatory effect is required, and not the higher standard of proof of a discriminatory intent, as under Section 601. Although this would have eased the burden of proof for plaintiffs bringing a claim under Title VI, in 2001, the United States Supreme Court held in Alexander v. Sandoval that there is no private right of action to enforce agency regulations promulgated under section 602. In light of Sandoval, the only remedy under Section 602 for discriminatory siting of a facility would be to request that the Justice Department withhold funding from an agency that discriminated in siting a facility, but only if that agency was in whole or part funded by EPA or with other federal funding.
The filing of a Title VI complaint with EPA does not suspend an issued permit, since Title VI complaints concern the programs and activities of Federal financial assistance recipients and on their actions rather than the permittees. “The primary means of enforcing compliance with Title VI is through voluntary compliance agreements, and suspension or termination of funding is a means of last resort.”
Left unanswered is whether the receipt of financial assistance from EPA or another federal agency, requires that the recipient comply with Title VI in all of their permitting and other actions, rather than those actions directly receiving federal financial assistance. For example, would receipt of federal assistance in a mining, wastewater, air, or other permitting program obligate the recipient to avoid discriminatory intent and effect in a program receiving no federal assistance, like a stream construction, dam safety, or no-discharge permitting program.
While the Sandoval decision closed the door on proving discrimination based on evidence showing disparate impact absent evidence of discriminatory intent, the 2015 decision by the U.S. Supreme Court in the case of Texas Department of Housing and Community Affairs, et al., v. Inclusive Communities Project, et al. offers an opportunity to approach environmental justice through fair housing law and regulations. In that decision, the Court affirmed that disparate-impact claims can be brought under the Fair Housing Act, so that the proof of disparate impact on fair housing due to government policies could be demonstrated using statistical evidence without having to prove discriminatory motive or intent. The proof must show that the activity causes the fair housing violation and that it has a disparate, negative impact on fair-housing protected classes. Once that is established the second consideration is whether there are other, less discriminatory practices that can be used.
C. OTHER REMEDIES
Because most of the civil rights type remedies under the traditional environmental justice framework have been foreclosed at this time, environmental justice advocates will most likely pursue any legal claims under state or federal environmental statutes, or under common law remedies, such as nuisance or trespass. With the difficulty of pursuing the civil rights claims that address the injustices plaintiffs face, lawsuits based on environmental statutes or the common law often do not remedy the underlying problem of discrimination, but may solve the environmental problem. In several cases, communities have successfully opposed the discriminatory siting of polluting facilities by building political and community power, in concurrence with legal strategies. A good example of this is in the agitation for and development of the STAR air toxics program in Louisville, which has been acknowledged by the GAO as being among the nation’s best.
V. ADDITIONAL RESOURCES
- Luke Cole and Sheila Foster, From the Ground Up: Environmental Racism and the Rise of the Environmental Justice Movement (New York University Press, 2000).
- Dr. Robert D. Bullard, Dumping in Dixie: Race, Class and Environmental Quality (Westview Press, 3d, 2000).
- U.S. General Accounting Office, Siting of Hazardous Waste Landfills and Their Correlation with Racial and Economic Status of Surrounding Communities (1983).
- Commission for Racial Justice, United Church of Christ, Toxic Wastes and Race in the United States: A National Report on the Racial and Socioeconomic Characteristics of Communities with Hazardous Waste Sites (1987).
- Marianne Lavelle and Marcia Coyle, Unequal Protection: The Racial Divide in Environmental Law, A Special Investigation, Nat’l L.J. Sept. 21, 1992.
- Exec. Order No. 12,898, 59 Fed. Reg. 7629 (Feb. 16, 1994).