Addressing the problem: the judicial branches

AuthorBarry E. Hill
Pages269-480
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 en-
vironmental 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 arti-
cles have been written; lectures and speeches have been given; environmental justice legal clinics
have been established; conferences have been held; and research studies have been conducted.
This chapter focuses on one of the areas where there has been vigorous activity—environmental
justice litigation.
Civil rights lawyers and poverty lawyers have joined forces, in some instances, to serve their tradi-
tional 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 poverty and civil rights
attorneys, acting in concert with environmental lawyers, use the traditional strategies of both envi-
ronmental litigation and civil rights litigation to address, for example, racial or ethnic bias in the sit-
ing of pollution-generating facilities in minority and/or low-income communities. The new caselaw
they are developing can be examined from three perspectives:
·Procedural Justice. Are the environmental laws, rules, regulations, policies, or evaluation
criteria applied uniformly and enforced equally by federal and state regulators?
·Geographic Justice. Are some communities, neighborhoods, or regions disproportion-
ately burdened by exposure to environmental harms and risks?
·Social Justice. Does race, class, or other cultural factors play a role in governmental
decisionmaking or in a decision by corporate management to site a pollution-generating fa-
cility in a particular community?
Before this developing caselaw can be understood, however, it is necessary for the environmental
litigator to review the genesis of this litigation in order to be an effective advocate for environmen-
tal justice.
Attorney Luke W. Cole has divided environmental justice litigation into three distinct ap-
proaches.2The first can be categorized as the “Anti-Discriminatory Law Approach.” With this
strategy, plaintiffs seek relief through the federal courts by using the Equal Protection Clause of
the Fourteenth Amendment of the 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 official, acting under the color of state law,may not base the distribution of environ-
mental harms and risks—or benefits, for that matter—on racial classifications. Any classifica-
tion based on race is considered “suspect” and could only be justified if there were a narrowly tai-
lored effort to satisfy a compelling governmental interest (the “strict scrutiny” judicial standard).
The plaintiffs must show discriminatory intent in the government’s decisionmaking process in
order to prevail.
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2. Luke W. Cole, Environmental Justice Litigation: Another Stone in David’s Sling,21Fordham Urb. L.J. 523, 526
(1994),available at http://www.crpe-ej.org/crpe/images/stories/resources/7_EJAnotherStone_21FordhamUrbLJ
523-1994.pdf.
The second approach described by Cole is the “Title VI Approach.” Using this strategy,plaintiffs
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. The 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 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 off financing
for a program that does not end discriminatory policies or practices. Because most state and local
environmental projects, such as landfills, incinerators, and waste dumps, invariably involve some
federal funding, plaintiffs 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 plaintiffs are to
be successful.
Cole’s third approach is the “Environmental Law, With a Twist Approach.” Under this strat-
egy, plaintiffs use traditional environmental laws to ensure that they are applied and enforced
equally, regardless of who—or, in some instances, because of who—inhabits the communities.
For example, traditional environmental litigation strategies can be used effectively to force fed-
eral or state regulators to release studies; to force municipalities to hold public hearings on pro-
jects that pose potential health hazards; or to force regulators to hire interpreters at public hear-
ings where the community is predominantly Spanish-speaking. Traditional environmental laws
can be used to challenge the issuance of construction and operating permits, siting of pollu-
tion-generating facilities, excessive discharges from existing facilities, and non-enforcement of
cleanup provisions by government regulators.3With 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 unpredict-
able, 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 activ-
ist from Los Angeles, there are three great myths of white America: The truth will set you free; The
government is on our side; and We need a lawyer. The 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.4
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 underrepresented.5Similarly, an administrative process, such as the decision to site a hazardous
solid waste facility, is arguablya 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 be-
come increasingly knowledgeable about the environmental risks and harms associated with these fa-
cilities. Prof. Robert Bullard contends, however, that public officials 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.6
Furthermore, federal and state courts appear to be resistant to the idea of using existing environ-
mental laws to direct local government decisionmakers to redistribute environmental risks and
harms in a manner that might affect communities with political and economic power and influence.
Given the increasing conservatism of the courts, many environmental justice movement activists
270 ENVIRONMENTALJUSTICE: LEGAL THEORYAND PRACTICE
3. Alice L. Brown, Environmental Justice: New Civil Rights Frontier,29Trial 48, 48-53 (1993).
4. Cole, supra note 2, at 541.
5. Luke W. Cole, Remedies for Environmental Racism: A View From the Field,90Mich. L. Rev. 1991, 1995 (1992)
[hereinafter Cole, Remedies],available at http://www.crpe-ej.org/crpe/images/stories/resources/8_RemediesFor
Racism_90MichLRev1991-1992.pdf.
6. Robert D. Bullard, Dumping in Dixie: Race, Class, and Environmental Quality 4 (1990).
believe that this trend is likely to continue. Thus, if an aggrieved community’s lawyers are not cre-
ative with respect to their legal strategies and approaches to litigation, minorities and the poor will