Addressing The Problem: The Judicial Branches

• Author: Barry E. Hill
• Profession: Senior Counsel for Environmental Governance, Office of International Affairs, U.S. Environmental Protection Agency
• Pages: 227-406

Chapter 5

ADDRESSING THE PROBLEM: THE JUDICIAL BRANCHES

5.1 Overview

Since the mid-1990s, there has been considerable discussion and activity within the traditional en-

vironmental law and civil rights law communities about how to address the issue of environmental

justice. Laws have been enacted on the state level; resolutions have been adopted by state legisla-

tures, and by national and state bar associations; courses have been taught at law schools; law re-

view articles have been written; lectures and speeches have been given; environmental justice legal

clinics have been established; conferences have been held; and research studies have been con-

ducted. This chapter focuses on one of the areas where there has been vigorous activity—environ-

mental justice litigation.

Civil rights lawyers and poverty lawyers have joined forces, in some instances, to serve their tradi-

tional clients, people of color and the poor, by addressing instances of environmental injustice. In

many respects, a new specialty in legal practice is being developed as these poverty and civil rights

attorneys, acting in concert with environmental lawyers, use the traditional strategies of both envi-

ronmental litigation and civil rights litigation to address, for example, racial or ethnic bias in the sit-

ing of pollution-generating facilities in minority and/or low-income communities. The new caselaw

they are developing can be examined from three perspectives:

·Procedural Justice. Are the environmental laws, rules, regulations, policies, or evaluation

criteria applied uniformly and enforced equally by federal and state regulators?

·Geographic Justice. Are some communities, neighborhoods, or regions disproportion-

ately burdened by exposure to environmental harms and risks?

·Social Justice. Does race, class, or other cultural factors play a role in governmental

decisionmaking or in a decision by corporate management to site a pollution-generating fa-

cility in a particular community?

Before this developing caselaw can be understood, however, it is necessary for the environmen-

tal litigator to review the genesis of this litigation on environmental justice in order to be an effec-

tive advocate.

Attorney Luke Cole has divided environmental justice litigation into three distinct approaches.2The

first can be categorized as the “Anti-Discriminatory Law Approach.” With this strategy, plaintiffs

seek relief through the federal courts by using the Equal Protection Clause of the Fourteenth Amend-

ment of the U.S. Constitution, which provides that no state shall “deny to any person within its juris-

diction the equal protection of the laws.” Under the equal protection doctrine, an official, acting un-

der the color of state law, may not base the distribution of environmental harms and risks—or bene-

fits, for that matter—on racial classifications. Any classification based on race is considered “sus-

pect” and could only be justified if there were a narrowly tailored effort to satisfy a compelling gov-

ernmental interest (the “strict scrutiny” judicial standard). The plaintiffs must show discriminatory

intent in the government’s decisionmaking process in order to prevail.

The second approach described by Cole is the “Title VI Approach.” Using this strategy,plaintiffs

bring claims under Title VI of the Civil Rights Act of 1964, which prohibits federal departments or

227

2. Luke W. Cole, Environmental Justice Litigation: Another Stone in David’s Sling,21Fordham Urb. L.J. 523-45

(1994).

agencies from funding state and local government programs that discriminate on the basis of race,

color, or national origin. The Civil Rights Act forbids discrimination by any program that receives

money from the federal government. Title VI, moreover, directs all federal departments or agencies

to promulgate regulations that ensure that the recipients of federal assistance do not use the funding

in a racially discriminatory manner. It provides that the federal government may cut off financing

for a program that does not end discriminatory policies or practices. Because most state and local

environmental projects, such as landfills, incinerators, and waste dumps, invariably involve some

federal funding, plaintiffs can seek relief under Title VI. Based upon the regulations that have been

promulgated by the federal government, discriminatory impact must be shown if the plaintiffs are to

be successful.

Cole’s third approach is the “Environmental Law, With a Twist Approach.” Under this strategy,

plaintiffs use traditional environmental laws to ensure that they are applied and enforced equally,re-

gardless of who—or, in some instances, because of who—inhabits the communities. For example,

traditional environmental litigation strategies can be used effectively to force federal or state regula-

tors to release studies; to force municipalities to hold public hearings on projects that pose potential

health hazards; or to force regulators to hire interpreters at public hearings where the community is

predominantly Spanish-speaking. Traditional environmental laws can be used to challenge the issu-

ance of construction and operating permits, siting of pollution-generating facilities, excessive dis-

charges from existing facilities, and non-enforcement of cleanup provisions by government regula-

tors.3With this approach, there has been a coalescing of environmental law and civil rights law strate-

gies, approaches, and tactics, and, perhaps more important, a combining of resources.

Despite recent successes in environmental justice litigation, however, lawsuits are still unpredict-

able, and in the view of some practitioners and activists, they may actually do more harm than good to

the long-term goals of an aggrieved community. According to Patty Prickett, an anti-pesticide activ-

ist from Los Angeles, there are three great myths of white America: “‘The truth will set you free’;

‘The government is on our side’; and ‘Weneed a lawyer.’”4The environmental justice movement re-

veals the fallacy of these adages and argues that the struggles within the movement are primarily po-

litical and economic and that legal remedies may be inappropriate, or even nonexistent.5

Like most statutes, environmental laws are the result of highly centralized political processes from

which communities of color have been traditionally excluded and in which they are still

underrepresented.6Similarly,an administrative process, such as the decision to site a hazardous solid

waste facility, is arguablya political process and should not be driven solely by the “Not In My Back

Yard” (NIMBY) opposition of white, educated, middle- and upper-class citizens who have become

increasingly knowledgeable about the environmental risks and harms associated with these facilities.

Prof. Robert Bullard contends, however, that public officials and private industry, in their search for

the path of least resistance, have responded to this NIMBY phenomenon with the “Place In Blacks’

Back Yard” (PIBBY) principle.7

Federal and state courts appear to be resistant to the idea of using existing environmental laws to

direct local government decisionmakers to redistribute environmental risks and harms in a manner

that might affect communities with political and economic power and influence. Given the increas-

ing conservatism of the courts, many environmental justice movement activists believe that this

trend is likely to continue. Thus, if an aggrieved community’s lawyers are not creative with respect

to their legal strategies and approaches to litigation, minorities and the poor will continue to bear

228 ENVIRONMENTALJUSTICE: LEGAL THEORY AND PRACTICE

3. Alice L. Brown, Environmental Justice: New Civil Rights Frontier,Trial, July 1993, at 48-53.

4. Luke W. Cole, The Struggle of Kettleman City: Lessons for the Movement,5Md. J. Contemp. Legal Issues 67, n.4

(1994) [hereinafter Cole, Kettleman City].

5. Cole, supra note 2, at 523.

6. Luke W. Cole, Remedies for Environmental Racism: A View From the Field,90Mich. L. Rev. 1991, 1995 (1992)

[hereinafter Cole, Remedies].

7. Robert D. Bullard, Dumping in Dixie: Race, Class, and Environmental Quality 4 (1990).

the disproportionate burden of environmental hazards “not in spite of our system of laws, but because

of our system of laws.”8

Moreover, it has been argued that a lawsuit is a narrow, shortsighted approach to a comprehensive

problem. If a lawsuit is lost, so is the immediate struggle. Even if a lawsuit is won, a community may

be disempowered because the fight has been taken out of the community,where the people can ensure

that they are heard, and into the courtroom, where polluters and their attorneys have greater eco-

nomic, political, and legal resources.9

Finally, it has been argued that environmental laws and litigation may not adequately address the

true nature of the problem, affording the polluters’high-priced lawyers the opportunity to obfuscate

the real issues with a barrage of testimony from government officials and scientific experts.10 The

communities that do prevail on legal grounds have primarily relied on traditional environmental laws

that emphasize jumping through procedural hoops, such as the preparation of an environmental im-

pact statement (EIS) as part of the permitting process under the National Environmental Protection

Act (NEPA).11 However, if an EIS is determined to be inadequate, it can always be redone,12 or the

polluter may have the “deep pockets” to challenge the decision and keep the community bogged

down in litigation. Or a project may even provide enough of an economic incentive that the legisla-

ture will subsequently change the law to favor the polluter.13

If there is no alternative to a lawsuit, legal claims must be supplemented by the expression of a

community’s political strength, which will highlight the cause, lift the community’smorale and pub-

lic profile, and build political momentum. Unquestionably, such lawsuits can be an effective means

of naming names; generating publicity and political pressure; gaining allies; providing inspiration to

other community groups; educating the affected community,the general public, government officials

and the judiciary; and pushing the narrow confines of the law.14

It is interesting to note that traditional environmental organizations attribute the success of the

modern environmental movement to its emphasis on litigation.15 For the low-income and minority

communities that comprise the environmental justice movement, however, litigation is not enough.

Despite the plethora of environmental laws that govern decisions at the local, state, and federal levels,

as well as the guarantee of equal protection under the Fourteenth Amendment of the Constitution and

several civil rights statutes, citizens who rely solely on legal remedies in their struggle for environ-

mental justice will flounder. Instead, litigation, combined with the same public and political organiz-

ing that broke down the institutional barriers of race and class in education, employment, housing,

and voting rights, is a powerful strategy to ensure that all live in clean, healthy, safe, aesthetically

pleasing, and productive neighborhoods. Litigation can be an effective means to this end, and a pow-

erful statement in itself of minorities’ belief that inequities exist with respect to environmental pro-

tection and enforcement.

THE JUDICIAL BRANCHES 229

8. Luke W. Cole, Empowerment as the Key to Environmental Protection: The Need for Environmental Poverty Law,19

Ecology L.Q. 619, 646 (1992).

9. Cole, Remedies,supra note 6, at 1996.

10. Id.

11. The environmental impact statement (EIS) is defined as: “[a] document prepared by or for EPA which identifies and

analyzes, in detail, environmental impacts of a proposed action. As a tool for decision-making, the EIS describes

positive and negative effects and lists alternatives for an undertaking, such as development of a wilderness area.”

Whereas, an environment assessment (EA) is defined as: “A preliminary, written, environmental analysis required by

NEPA ...todetermine whether a federal activity such as building airports or highways would significantly affect the

environment; may require preparation of a more detailed Environmental Impact Statement.” U.S. EPA, Guide to

Environmental Issues, Earth Day 53 & 52, respectively (25th ed. 1995) (520/B-94-001).

12. Cole, supra note 2.

13. Id.

14. Cole, Kettleman City,supra note 4.

15. Id. at n.18.