Environmental Justice: a Tool for Community Empowerment

• Publication year: 1998
• Pages: 55
• Citation: Vol. 27 No. 12 Pg. 55

27 Colo.Law. 55 Colorado Lawyer 1998.

1998, December, Pg. 55. Environmental Justice: A Tool for Community Empowerment

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55

Vol. 27, No. 12, Pg. 55

The Colorado Lawyer
December 1998
Vol. 27, No. 12 [Page 55]

Specialty Law Columns
Natural Resource and Environmental Notes
Environmental Justice: A Tool for Community Empowerment
by Sandra Richardson
C 1998 Sandra Richardson

While researching documents in the Texarkana, Texas Public Library, a colleague recently happened across a transcript from a public meeting held in 1989. It read in part

. . . In the late 1970s [a democratic congress] ordered the 50 largest chemical companies to report all abandoned dump sites. My home is built right on top of one of those abandoned dump sites. A site that was used by . . . chemical companies from 1910 until 1960. . . . [I]n 1964 some white guy got the idea of building a nice community for the [blacks]. After all, in 1964, there was no choice about where blacks would live in Texarkana. We lived where we were told . . . Let me tell you . . . the prospect of being able to own our homes in a community with water and sewer service, paved roads, a neighborhood playground for our children hearts just beat faster . . . this was the real American dream . . . a dream that we could just begin to dream. Today, that dream is a nightmare! . . . [We do not live a normal life] . . . [W]e dare not bring our grandchildren into our houses . . . we no longer feel safe working in our yards . . . no fresh cut roses from our gardens sitting on a table . . . certainly we wouldn't keep a vegetable garden. . . .1

As a firestorm of controversy now rages over implementation of the U.S. Environmental Protection Agency's ("EPA") February 5, 1998, "Interim Guidance for Processing Title VI Administrative Complaints Challenging Permits" ("Interim Guidance"),2 residents of low-income communities and communities of color continue to endure adverse health and environmental impacts stemming from years of living in close proximity to the nation's hazardous waste sites and polluting industries.

This article provides a brief introduction to environmental justice and describes the recent developments that are currently affecting environmental siting, permitting, and enforcement decisions. The article discusses the genesis of the environmental justice movement, the definition of environmental justice, the executive order that spurred federal agencies into action, existing laws that provide opportunities to address environmental justice issues, the legal theories that are currently being tested to enforce environmental equity, and the EPA's current Interim Guidance.

Genesis of Environmental Justice Movement

The idea and purpose of the environmental justice movement is to prevent an inequitable distribution of environmental burdens on minority and low-income communities. Since the late 1980s, various definitions of environmental justice have been developed. The EPA, Office of Environmental Justice, defines environmental justice as:

The fair treatment of people of all races, cultures, incomes and educational levels with respect to the development, implementation and enforcement of environmental laws, regulations and policies. Fair treatment implies that no population of people should be forced to shoulder a disproportionate share of the negative environmental impacts of pollution or environmental hazards due to a lack of political or economic strength.3

Long before lawyers, law schools, and politicians popularized the environmental justice movement, individuals living in predominately low-income communities and communities of color were painfully aware that they bore an unequal burden because they lived in closer proximity to facilities where waste was disposed and hazardous waste and industrial facilities were sited, permitted, and operated than their more affluent and white neighbors.

Examples were numerous, from the predominately African American communities suffering adverse health effects from decades of industrialization in Louisiana's petrochemical corridor, called "cancer alley," stretching along the Mississippi River from Baton Rouge to New Orleans;4 the Latino populations living near the loading docks in Wilmington and San Pedro, California, and breathing toxic vapors from the loading of a number of refined petroleum products;5 the lingering health problems and systematic dismantling of the cultural identity of a low-income Latino community in north Denver due to decades of smelting operations;6 to the attraction to economically depressed Native American tribes by toxic waste companies proposing the siting and construction of nuclear waste repositories and hazardous waste disposal facilities and incinerators on tribal lands.7

One sociologist and leader in the environmental justice movement writes that people of color discovered environmental racism long before 1990.8 Studies showing the separate and unequal status of African Americans have been conducted for the past 100 years.9 With the advent of the civil rights movement in the 1960s, people of color became more vocal about problems associated with environmental issues.10 However, it was not until the 1980s that the environmental justice movement gathered strength.

An incident in rural and mostly African American Warren County, North Carolina, brought national attention to waste facility siting inequities. Widespread protests, marches, and 414 arrests resulted from public outcry over the selection of Warren County as the site for a polyclorinated biphenyl ("PCB") landfill.11 Numerous studies were published on the topic initially coined "environmental racism,"12 showing empirical data that low-income communities and communities of color shared disproportionate environmental and human health impacts.13 These studies have not enjoyed unanimous concurrence.14 Nevertheless, as a result of these studies and failed congressional attempts to pass a national Environmental Justice Act,15 the issues of racially inequitable policy making, siting, and permitting decisions caused President Clinton to issue an Executive Order ("EO") requiring federal agencies to address environmental justice issues in implementing their programs.16

EO 12898 and Accompanying Presidential Memorandum

EO 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,17 and an accompanying Presidential Memorandum18 were released on February 11, 1994, in an effort to address growing public concern over disproportionate environmental impacts on low-income and minority communities. The EO was "designed to focus Federal attention on the environmental and human health conditions in minority communities and low-income communities with the goal of achieving environmental justice."19 Moreover, the EO was intended to "promote nondiscrimination in federal programs substantially affecting human health and the environment, and to provide minority communities and low-income communities access to public information on, and an opportunity for public participation in, matters relating to human health or the environment."20

To accomplish these objectives, the EO contained the following provisions directing each federal agency to:

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