Addressing the Problem: The Judicial Branches

AuthorBarry E. Hill
Page 309
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 environmen-
tal 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; lectures and
speeches have been given; environmental justice legal clin ics have been established; conferences have
been held; and research studies have been conducted. is chapter focuses on one of t he area s where
there has been vigorous activity—environmental justice litigation.
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 lega l 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 et hnic bias in the siting of pollution-generating facilities
in minority and/or low-income communities. e new caselaw they are developing can be examined from
three perspectives:
  . Are the environmental laws, ru les, regu lations, policies, or evaluation criteria
applied uniformly and enforced equally by federa l and state regulators?
   . Are some communities, neighborhoods, or regions disproportionately bur-
dened by exposure to environmental harms and risk s?
    . Does race, class, or othe r cu ltural factor s pla y a role in governmenta l decision-
mak ing or i n a deci sion by corporate mana gement to site a pol lution-ge nerati ng facility in a
part icular communit y?
Before this developing caselaw 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ective advocate for environmental justice.
Attorney Luke W. Cole has divided environmental justice litigation into three distinct 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 t he 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 doc trine, 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 racia l classications. Any classication based on race is considered “suspect” and could
only be justied if there were a narrowly tai lored eort to satisf y a compelling governmental interest (the
“strict scrutiny” judicial standa rd). e plaintis must show discriminatory intent in the government’s
decisionma king process in order to prevail.
e second approach described by Cole is the “Title VI Approach.” Using this strategy, plaintis bring
claims under Title VI of the Civil Rights Act of 1964, which prohibits federal departments 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 that receives money from the federal
government. Title VI, moreover, directs all federal departments or agencies to promulgate regulations that
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.
Page 310 Environmental Justice: Legal Theory and Practice, 3rd Edition
ensure that the recipients of federal assistance do not use the funding in a racially discrimi natory 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 funding, plaintis 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 plaintis are to be successful.
Cole’s third approach is the “Environmental Law, With a Twist Approach.” Under this strategy, plain-
tis use traditional environmental laws to ensu re that they are applied and enforced equally, regardless
of who —or, in some instances, because of who —inhabit t he c ommunities. For example, traditional
environmental litigation strategies c an be used eectively to force federal or state regulators to release
studies; to force municipalitie s 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 issuance of construc-
tion and operating permits, siting of pollution-generating facilities, excessive discharges from existing
facilities, and non-enforcement of cleanup provisions by government regulators.5 With th is approach,
there has been a coale scing of environmental law and civil rights law strategie s, 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 will 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 argues
that the struggles within the movement are primarily political and economic and that legal remedies may
be inappropriate, or even nonexistent.6
Additionally, like most statutes, environmental laws are the result of highly centralized political pro-
cesses from which communities of color have been traditionally excluded and in which they are still under-
represented.7 Similarly, an administrative process, such as the decision to site a hazardous solid waste facility,
is arguably a 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 knowledge-
able about the environmental risks and harms associated with these facilities. Professor Robert Bullard con-
tends, 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 courts appear to be resistant to the idea of using existing environmental
laws to direct local government decision makers to redistribute environmental risks and harms in a man-
ner that might aect communities with political 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 prob-
lem. If a lawsuit is lost, so is the immediate struggle. Even if a lawsuit is won, a community may be disem-
powered because the ght 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 economic, political, and
legal resources.10
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
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 KeyEnvironmentalProtection_19EcologyLQ619-1992.pdf.
10. Cole, Remedies, supra note 7, at 1996.
Addressing the Problem: The Judicial Branches Page 311
Finally, it has been argued that environmental laws and litigation may not adequately address the tr ue
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 lega l grounds have primarily relied on traditional environmental laws that emphasize
jumping through procedural hoops, such as the preparation of an environmenta l 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 challenge 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 will highlight the cause, lift the community’s morale and public prole,
and build political momentum. Unquestionably, such lawsuits can be an eective means of naming names;
generating publicity and political pressure; gaining allies; providing inspiration to other community groups;
educating the aected community, the general public, government ocials and the judiciar y; and pushing
the narrow connes of the law.13
It is interesting to note that traditional environmental organizations attribute the success of the mod-
ern environmental movement to its emphasis on litigation.14 For the low-income and/or minority commu-
nities 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 environmental justice will ounder.
Instead, litigation, combined with the same public and political organizing 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 eective means to this end, and a powerful statement in itself of minorities’ belief that inequities exist
with respect to environmental protection and enforcement.
is chapter begins with a review of the civil rights challenges based on the Equal Protection Clause
of the Fourteenth A mendment. e caselaw shows that the plaintis in these lawsuits have found it very
dicult to prove that discriminatory impacts resulting from the siting of unwanted environmental hazards
in their communities were the intent of government decisionmakers, as required by the 1997 Supreme Court
decision in Village of Arlington Heights v. Metropolitan Housing Development Corp.15 While the discrimina-
tory intent standard should be applied uniformly notwithstanding the nature of the discriminatory claim,
it is likely that diering judicial perceptions regarding the allocation of the burdens and benets of envi-
ronmental hazards versus the provision of municipal services can account for the divergence in these t wo
strands of caselaw. e disparate provision of municipal services can be remedied by providing more and
better services to aggrieved communities without substantially aecting the current beneciaries of those
services as in, for example, the Miller v. City of Dallas16 case. But, to use solid waste disposal as an example,
the garbage has to go somewhere, and given the lack of availability of land and the diculty of establishing
new landlls because of perceived environmental hazards as manifested in NIMBY initiatives, the stakes are
much higher in siting decisions. Under these circumstances, the cases show that federal and state court
judges are reluctant to allow the Equal Protection Clause of the Fourteenth Amendment or civil rights laws to
be used to determine how environmental harms and risks should be distributed.
11. Id.
e environmental impact statement (EIS) is dened as: “[a] document prepared by or for EPA which identies and
analyzes, in detail,
environmental impacts of a proposed action. As a tool for decision-making, the EIS describes
positive and negative eects and lists alterna-
tives 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).
13. Luke W. Cole, e Struggles of Kettleman City: Lessons for the Movement, 5 M. J. C. L I 67, n.4 (1994) [hereinafter Cole,
Kettleman City], available at s/stories/resources/ 2_StruggleofKettlemanCity_5Md_J_Contemp_LegalIssues67_1994.pdf.
14. Cole, supra note 4, at n.18.
15. 429 U.S. 252 (1997).
16. 2002 U.S. Dist. LEXIS 2341 (N.D. Tex. May 8, 2002).

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