Addressing the Problem: The Judicial Branches

AuthorBarry E. Hill
Page 489
Chapter 5
Addressing the Problem: The Judicial Branches
5.1 Overview
Since the mid-1990s, there has been considerable d iscussion and activity within the traditional environ-
mental law and civil rights law communities about how to address the issue of environmental justice. Laws
have been enacted at the state level; resolutions have been adopted by state legislatures, and by national and
state bar associations; courses have been taught at law schools; law review articles have been written; lec-
tures and speeches have been given; environmental justice legal clinics have been established; conferences
have been held; and research st udies have been conducted. is chapter focu ses on one of the areas where
there has been vigorous activity—environmental justice litigation.
is chapter represents Professor Ruhl’s sixth degree of relevance where: “Actions are denied or delayed
necessary authorization on the basis of a perceived failure to facilitate the norm.” In many respect s, the
judiciary on the federal and state government levels has been instrumental in attempting to apply the still-
evolving policy of environmental justice into the rapidly developing law of environmental justice. Lawyers
representing environmental justice community-based organizations sought to have their environmental
and public health concerns addressed using the “e Anti-Discriminatory Law Approach” and “e Title
VI Approach” to litigation with mi xed success.
is chapter also represents Professor Ruhl’s seventh degree of relevance where: “e norm is fully
transformed into law to apply—measurable, rationalized, routine sta ndards of environmental evaluation,
authorization, and performance.” e judiciar y has issued favorable rulings when lawyers used efectively
e Environmental Law, With a Twist Approach” to litigation. Consequently, the hard law of environ-
mental justice has begun to take shape.
Civil rights lawyers and poverty lawyers have joined forces, in some instances, to serve their traditional
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 povert y and civil rights attorneys, acting in
concert with environmental lawyers, use the traditional strategies of both environmental litigation and civil
rights litigation to address, for example, racial or eth nic bias in the siting of pollution-generating faci lities
in minority and/or low-income communities. e new case law they are developing can be examined from
three perspectives:
   A re the environmental laws, rules, regulations, policies, or eva luation criteria
applied uniformly and enforced equally by federa l and state environmental regulators? Procedural
Justice refers to environmental regulators providing equa l enforcement of the laws and equal protec-
tion for all from environmental hazards. For example, Procedural Justice involves:
(1) Unequal protection in cl ean ing up envi ronmenta l h azards and conta minated sites in
some commu nities;
(2) Unequal enforcement in environmental quality controls in some communities; or
(3) Disparate risks in safe food c onsumption standards in some communities.
   Are some communities, neighborhoods, or regions disproportionately burdened
by exposure to environmental harms and risks? Geographic Justice refers to the spatial fairness of the
physical distribution of environmental risks, harms, and benets. For example, Geographic Justice
(1) Unequal placement of public infrastructures, such as highways, public transportat ion, etc. in
some communities;
Page 490 Environmental Justice: Legal Theory and Practice, 4th Edition
(2) Unequal siting of pollution-generating facilities in some communities; or
(3) Unequal siting of regional landlls in some communities.
   Does race, class, or other cultural fac tors play a role in governme ntal decisionmak-
ing or in a deci sion by corporate management to site a pollution-generat ing facility in a pa rticular
communit y? Socia l Just ice refers to providing oppor tunities for me aning ful public involvement
by aected com munities in the government’s dec isionma king processe s. For example, Social Jus-
tice involves:
(1) Disparate access of aected communities to information regarding exposure to pollutants;
(2) Disparate access of aected communities to the scientic community regarding research on the
relationship between pollutants and the adverse impacts on public health;
(3) Disparate access of aected communities to the technical community regarding providing
information/advice related to the cleanup standards at a contaminated site; or
(4) Disparate access of a ected communities to environmental regulatory agencies during the
review of rules and regu lations, and the development of policy.
Before this developing case law can be understood, however, it is necessary for the environmental litiga-
tor to review the genesis of this litigation in order to be an eect ive advocate for environmental justice.
Attorney Luke W Cole has divided environmental justice litigation into three disti nct approaches.4 e
rst can be categorized as the “Anti-Discriminatory Law Approach.” With this strategy, plaintis seek relief
through the federal courts by using the Equal Protection Clause of the Fourteenth Amendment of t he
U.S. Constitution, which provides that no state shall “deny to any person within its jurisdiction the equal
protection of the laws.” Under the equal protection doctrine, an ocial, acting under the color of state law,
may not base the distribution of environmental harms and risks— or benets, for that matter— on racial
classications. A ny classication based on race is considered “suspect” a nd could only be justied if there
were a narrowly tailored eort to sat isfy a compelling governmental interest (the “strict scrutiny” judicial
standard). e plaintis must show discriminatory intent in the government’s decisionmaking process in
order to prevail.
e second approach described by Cole is the “Title VI Approach.” Using this strateg y, plaintis bring
claims under Title VI of the Civil Rights Act of 1964, which prohibits federal depa rtments or agencies
from funding state and local government programs that discriminate on the basis of race, color, or national
origin. e Civil Rights Act forbids discrimination by any program t hat receives money from the federal
government. Title VI, moreover, directs all federal depar tments 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 o nancing for a program that does not end discriminatory
policies or practices. Because most state and local environmental projects, such as landlls, incinerators,
and waste dumps, invariably involve some federal f unding, plaintis can seek relief under Title VI. Based
upon the regu lations that have been promulgated by the federa l government, discriminatory impact must
be shown if the plaintis are to be succ essful.
Cole’s third approach is the “Environmental L aw, With a Twist Approach.” Under this strateg y, plain-
tis use traditional environmental laws to ensure that they are applied and enforced equally, regardless of
who—or, in some instances, because of who—inhabit the communities. For example, traditional envi-
ronmental litigation strategies can be used eectively to force federal or state regulators to relea se studies;
to force municipalities to hold public hearings on projects that pose potential hea lth 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 cha llenge the issuance of construction and operating per-
mits, the siting of pollution-generating facilities, the excessive discha rges from existing facilities, and the
4. Luke W. Cole, Environmental Justice Litigation: Another Stone in David’s Sling, 21 F U. L.J. 523, 526 (1994), available at http:// 523-1994.pdf.
Addressing the Problem: The Judicial Branches Page 491
non-enforcement of cleanup provisions by government reg ulators.5 With this approach, there has been a
coalescing of environmental law and civil rights law strategies, approaches, and tactics, and, perhaps more
important, a combining of resources.
Despite recent successes in environmental justice litigation, however, lawsuits are still unpredictable,
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 activist from Los
Angeles, there are three great myths of white America: ‘e truth wi ll set you free;’ ‘e government is on
our side;’ and We need a lawyer.’ e environmental justice movement reveals the fallacy of these adages
and a rgues t hat the struggles w ithin t he movement are primari ly political and economic a nd that legal
remedies may be inappropriate, or even nonexistent.6
Additionally, 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 underrep-
resented.7 Similarly, an administrative proce ss, such as the decision to site a hazardous solid waste facilit y,
is arguably a politica l 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 knowledge-
able about the environmental risks and harms associated with these facilities. Professor Robert Bullard
contends, however, that public ocials 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.8
Furthermore, federal and state cour ts appear to be resistant to the idea of using existing environmental
laws to direct local government decisionmakers to redistribute environmental risks a nd harms in a ma n-
ner that might aect communities with politica l and economic power and inuence. Given the increasing
conservatism of the courts, many environmental justice movement activists believe that this trend is likely
to continue. us, 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 the disproportionate burden of
environmental hazards “not in spite of our system of laws, but because of our system of laws.”9
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 ght has been taken out of the community, where the people ca n ensure that
they are heard, and into the courtroom, where polluters and their attorneys have greater economic, politi-
cal, and legal resources.10
Finally, it has been a rgued that environmental laws and litig ation may not adequately address the true
nature of the problem, aording the polluters’ high-priced lawyers the opportunity to obfuscate the real
issues with a barrage of testimony from government ocials and scientic experts.11 e communities that
do prevail on legal grounds have primarily relied on traditional environmental laws that emphasize jump-
ing through procedural hoops, such as the preparation of an environmental impact statement (EIS) as part
of the permitting process under the National Environmental Policy Act (NEPA).12 However, if an EIS is
determined to be inadequate, it can always be redone, or the polluter may have the “deep pockets” to chal-
lenge the decision and keep the community bogged down in litigation.
If there is no alternative to a lawsuit, legal claims must be supplemented by the expression of a com-
munity’s political strength, which wi ll high light the cause, lift the community’s morale and public pro-
5. Alice L. Brown, Environmental Justice: New Civil Rights Frontier, 29 T 48, 48-53 (1993).
6. Cole, supra note 4, at 541.
7. Luke W. Cole, Remedies for Environmental Racism: A View From the Field, 90 M. L. R. 1991, 1995 (1992) [hereinafter Cole, Remedies],
available at
8. R D. B, D  D: R, C,  E Q 4 (1990).
9. Luke W. Cole, Empowerment as the Key to Environmental Protection: e Need for Environmental Poverty Law, 19 E L.Q. 619, 646 (1992),
available at
10. Cole, Remedies, supra note 7, at 1996.
11. Id.
12. e environmental impact statement (EIS) is dened as: “[a] document prepared by or for EPA which identies and analyzes, in detail, envi-
ronmental impacts of a proposed action. As a tool for decisionmaking, the EIS describes positive and negative eects and lists alternatives for
an undertaking, such as development of a wilderness area.” Whereas, an environment assessment (EA) is dened as: “A preliminary, written,
environmental analysis required by NEPA ... to determine whether a federal activity such as building airports or highways would signicantly
aect the environment; may require preparation of a more detailed Environmental Impact Statement.” U.S. EPA, G  E
I, E D 53 & 52, respectively (25th ed. 1995) (520/B-94-001).

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