Addressing the Problem: The Private Bar and Corporate America

AuthorBarry E. Hill
Page 809
Chapter 6
Addressing the Problem:
The Private Bar and Corporate America
6.1 Overview
Although t he issue of environmental justice has gained the attention of the federal government, the aca-
demic community, the judiciary, Congress, and various state legislatures with a myriad of results, a ques-
tion may be posed: Have the private bar and industr y executives addressed this sensitive and controversial
issue? Unfortunately, the answer to that question is not, as yet, a resounding “yes.”
Based upon the wealth of available information about the impact of pollution, it should be expected by
now that the private bar, industry executives, and environmental compliance managers would realize that
emissions to the a ir, water, and land have adversely aected the health of many people living in minority
and/or low-income communities, and that many environmental protection programs have neglected those
populations while responding to the concerns of groups with greater political inuence. Since the mid-
1990s, the American Bar Association (ABA), severa l state bar associations, some law rms and individual
lawyers, and law school clinics have begun to respond to the concerns of those communities and to par-
ticipate in the environmental justice movement. Additionally, industry has initiated eorts to reach out to
people of all communities through such organizations as the Business Network for Environmental Justice
of the National Association of Manufactu rers. Moreover, several major corporations have developed and
issued policy statements and specic outreach procedures, such a s the Pacic Gas and Electric Company’s
Environmental Justice Policy and Environmental Justice Procedure, Lexmark International’s Environmental
Justice Policy, Waste Management’s purposeful and “systematic approach to stakeholder involvement,” and
Patagonia Works’ well-documented approach to being a socially and environmentally committed company
that funds organizations, including environmental justice organizations “that identif y and work on the
root causes of problems and are committed to long-term change.” But more state bar associations and law
rms, and more companies, need to initiate activities and companywide policies if the issue of environmen-
tal justice is to make progress in the private sector.
6.2 Private Bar
6.2.1 American Bar Association ABA Resolution on Environmental Justice and Report to the House of Delegates
On August 11, 1993, the House of Delegates of the ABA approved the ABA Resolution on Environmental
Justice. e resolution provided for support of several ABA activities that it believed could address the issue
of environmental justice. In 1993, the ABA was the rst mainstream organization to formally recogni ze
the validity of the issue of environmental justice, and to launch specic initiatives.
Over the next two decades, the ABA initiated a number of activities related to environmental justice.
Some of these ABA activities are highlighted and discussed below such as developing and making available
to the public the Directory of Pro Bono Legal Services Providers for Environmental Justice; the ABA Survey of
State Legislation, Policies, and Cases; and the ABA Survey of State Supplemental Environmental Projects. Since
these ABA initiatives promoted the notion of lawyers using their skills and abilities to assist communities
in the struggle for environmental justice, the Gerrard/Wilson article, Private Lawyers and Environmental
Justice, and the Quigley article, Reections of Community Organizers: Lawyering for Empowerment of Com-
munity Organizations, oer some interesting idea s.
Page 810 Environmental Justice: Legal Theory and Practice, 4th Edition
ABA Resolution on Environmental Justice and Report to
the House of Delegates
American Bar A ssociation
Standing Committee on Envi ronmental Law
Commission on Homelessness and Poverty Section of Individual Rights and Re sponsibilities
National Bar Association, Inc.
Hispanic National Bar A ssociation
RESOLVED, that t he American Bar A ssociation
d. supports actions by federal, state, territorial and loca l governments, private entities and academic
institutions to ach ieve implementation and enforcement of env ironmental laws, reg ulations and policies
so that a disproportionate share of the burden of environmental harm does not fall on minority and/or
low-income individuals, communities or populations;
e. urges federa l, state, territorial and local administ rative agencies to give priority attention to this
problem by, among other things, improving agency procedures governing access to information about
environmental impacts and applicable laws, by adopting reg ulations and policies to mitigate or eliminate
those impacts, and a ssessing and managing environmenta l risks so that they better take account of the
need to eliminate such inequities; a nd
f. urges Congress, state and territorial legislatu res a nd local governments to enact legislation, as
appropriate, and to take other appropriate measures to redress and eliminate situations in which minority
and/ or low-income people have borne a disproportionate share of harm to the environment.
BE IT FURTHER RESOLVED, that the A merican Bar Association urges:
a. Further docu mentation of the cause s and consequences of the inequitable distribution of envi-
ronmental burdens;
b. e delivery of legal services in the area of environmental law to eligible persons in minority and/
or low-income communities;
c. Additional training of environmental lawyers to recognize, address, and redress incidences of
environmental inequity;
d. L aw schools to consider the expan sion of curricula and clinical programs to educate students to
deal with these problems; and
e. State and local bar a ssociations to adopt resolutions similar to this A BA resolution.3
Adopted by the ABA House of Delegates, August 11, 1993, New York, NY.
e physical environment of A merica’s minorities—Hispanics, Native Americans, A sians, African
Americans, the poor of any color—has in one way or another been left out of the environmental
cleanup of the past two decades. Black children, as a whole, have more lead in their blood than
do white child ren. Blacks a re decidedly overrepresented i n air pollution nonattainment area s. e
environment of migrant farm workers, pa rticularly in their exposu re to ha zardous pesticides, h as
not been well protected, to say the lea st. People of color are much more likely to have h azardous
waste sites in their backyards than are whites. —John Heritage, Editor, Letter to Readers in EPA
Journal (Mar./Apr. 1992).
3. Available at
4. ABA, Report on Environmental Justice (Aug. 10-11, 1993), available at
Addressing the Problem: The Private Bar and Corporate America Page 811
e proposed resolution responds to an increasing body of disturbing e vidence that the burden of
adverse environmental impacts falls disproportionately on people of color and/or low-income populations.
While other terms have been u sed to describe th is phenomenon, notably “environmental racism” and
“environmental equity,” the term “environmental justice” is the preferred characteriz ation of this struggle,
reecting as it does the goa l to be achieved.
1. Growth of the Environmental Justice Movement
Over the past two decades, public and private institutions and ac ademic scholars have c onducted
research and investigation to determi ne whether the burdens of environmental harm and the benets of
environmental protection have been distributed inequitably to mi nority and/or low-income populations.
e studies show that our environmenta l laws, a s well as the means by which they are i mplemented
and enforced, do not adequately protect these populations. While the cau ses are many a nd varied, and
the specic instances of injustice sometimes dicult to establi sh under our current lega l framework, the
prevalence of environmental injustice—or the lack of environmental just ice—ca nnot be ignored and
should be addressed by the American Bar Association.
e environmental justice movement is said to have started in 1982 as a result of the outrage generated
by the decision of the State of North Carolina to bui ld a toxic waste la ndll for PCB-contaminated d irt
in Warren County. e contaminants to be buried there were to c ome from fourteen dierent counties
in the State. Warren County, however, had t he highest percentage of people of c olor of a ny county in
the st ate and was one of the poorest. e ensuing protest, t he rst nationa l African American protest
against the locat ion of a hazardous waste facility, involved not only residents of Warren County, but civil
rights, labor, and politica l leaders a s well a s environmental activists. Demonstrat ions in opposition to
the proposed site resu lted in the ar rests of more tha n 500 people, including Dr. Benjamin F. Chavis Jr.,
then-Executive Director of the United Church of Christ Commission for Racia l Justice (now Executive
Director of the National A ssociation for the Advancement of Colored People); Dr. Joseph Lowery of the
Southern Christian L eadership Conference; and Congressman Walter Fauntroy (D-D.C.).
2. What Studies Have Shown Over Several Decades
At least since the early 1970s, academics, social scientist s and federal agencies have been noting and
documenting the disproportionate distribution of the adverse eects of environmental pollution on lower
income populations; early in the 1980s attention was turned to the impact on minority populations. Some
of the more prominent of these studies and their results are set forth below.
a. Findings of the U.S. General Accounting Oce
In 1982, the same year as the Warren County protest, Congressman Fauntroy and Congressman James
J. Florio requested the U.S. General Accounting Oce (hereina fter, GAO) to conduct a study “to deter-
mine the correlation between the location of hazardous waste landl ls and the racial and economic status
of the surrounding communities.”
e GAO found, among other thing s, that Africa n Americans were the majority of the population in
three of the four communities where the four o-site hazardous waste landlls (Chemical Waste Manage-
ment, Sumter County, Alabama; Industrial Chemica l Company, Chester County, South Carolina; SCA
Services, Sumter County, South C arolina; and the Warren County PCB land ll, North Carolina) were
located. At least 26 percent of the population in all four communities had incomes below the poverty level
and most of that population wa s African American. In t he 1980 census, the poverty level w as $7,412 for
a family of four.
b. 1987 United Church of Christ Report
In 1987, the United Church of Christ Commission for R acial Justice (UCC) relea sed its report, Toxic
Wastes and R ace in the United S tates: A National Report on the Racial and Socio-Economic Characteristics
of Communities With Hazardou s Waste Sites (hereinafter, UCC Report). Among other things, the UCC

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