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 ocials 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 aect communities with politica l and economic power and inuence. 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, aording the polluters’ high-priced lawyers the opportunity to obfuscate the real
issues with a barrage of testimony from government ocials and scientic 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 http://www.crpe-ej.org/crpe/images/stories/resources/8_RemediesForRacism_90MichLRev1991-1992.pdf.
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 http://www.crpe-ej.org/crpe/images/stories/resources/5_EmpowermentKeyEnvironmentalProtection_19EcologyLQ619-1992.pdf.
10. Cole, Remedies, supra note 7, at 1996.
12. e environmental impact statement (EIS) is dened as: “[a] document prepared by or for EPA which identies and analyzes, in detail, envi-
ronmental impacts of a proposed action. As a tool for decisionmaking, the EIS describes positive and negative eects and lists alternatives for
an undertaking, such as development of a wilderness area.” Whereas, an environment assessment (EA) is dened as: “A preliminary, written,
environmental analysis required by NEPA ... to determine whether a federal activity such as building airports or highways would signicantly
aect 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).