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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 landlls, incinerators,
and waste dumps, invariably involve some federal funding, plaintis 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 plaintis are to be successful.
Cole’s third approach is the “Environmental Law, With a Twist Approach.” Under this strategy, plain-
tis 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 eectively 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 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 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 aect communities with political 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 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
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.
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_Empowerment KeyEnvironmentalProtection_19EcologyLQ619-1992.pdf.
10. Cole, Remedies, supra note 7, at 1996.