Addressing the problem: the private bar and corporate america

• Author: Barry E. Hill
• Pages: 483-552

Chapter 6

ADDRESSING THE PROBLEM: THE PRIVATE BAR AND

CORPORATE AMERICA

6.1 Overview

Although the issue of environmental justice has gained the attention of the federal government, the

academic community,the judiciary, Congress, and various state legislatures with a myriad of results,

a question may be posed: Have the private bar and industry 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 ex-

pected by now that the private bar, industry executives, and environmental compliance managers

would realize that emissions to the air, water, and land have adversely affected 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 influence. Since the mid-1990s, the American Bar Association (ABA), several state bar

associations, some law firms and individual lawyers, and law school clinics have begun to respond

to the concerns of those communities and to participate in the environmental justice movement.

Additionally, industry has initiated efforts to reach out to people of all communities through such

organizations as the Business Network for Environmental Justice of the National Association of

Manufacturers. Moreover, several major corporations have developed and issued policy state-

ments and specific outreach procedures, such as the Pacific Gas and Electric Company’s Environ-

mental Justice Policy and Environmental Justice Procedure and Lexmark International’s Environ-

mental Justice Policy. But more state bar associations and law firms, and more companies, need to

initiate activities and companywide policies if the issue of environmental justice is to make prog-

ress in the private sector.

6.2 Private Bar

6.2.1 American Bar Association

6.2.1.1 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 ABAResolution on Envi-

ronmental Justice. The resolution provided for support of several ABA activities that it believed

could address the issue of environmental justice. In 1993, the ABA was the first mainstream organi-

zation to formally recognize the validity of the issue of environmental justice, and to launch specific

initiatives. One of the first major activities initiated by the ABA involved “the delivery of legal ser-

vices in the area of environmental law to eligible persons in minority and/or low-income communi-

ties.” The ABA’s Standing Committee on Environmental Law,the Section of Natural Resources, En-

ergy, and Environmental Law, and the Section of Litigation supported efforts by the Environmental

483

Litigation Section’sSubcommittee on Environmental Justice to develop a nationwide environmental

justice pro bono directory. In October 1996, the ABA(in cooperation with the Center on Race, Pov-

erty, and the Environment of the California Rural Legal Assistance Foundation, and the National

Conference of Black Lawyers) published the Directory of ProBono Legal Services Providers for En-

vironmental Justice. The publication listed information about law school programs (including clin-

ics), nonprofit organizations, law firms, individual lawyers, and legal services offices which had no-

tified the ABA that they were willing to offer free legal services on environmental justice matters to

communities and individuals. The listings were arranged by state or other major geographical area

(such as the District of Columbia or Puerto Rico). The directory was distributed, upon request, to

community groups and others throughout the country.

Over the next decade, the ABA initiated a number of other activities related to environmental jus-

tice, such as financing three comprehensive 50-state surveys to provide information to its members

and the public. Some of these activities are highlighted and discussed below.

ABA Resolution on Environmental Justice and

Report to the House of Delegates

ENVIRONMENTAL JUSTICE

Sponsors:

American Bar Association

Standing Committee on Environmental Law

Commission on Homelessness and Poverty

Section of Individual Rights and Responsibilities

National Bar Association, Inc.

Hispanic National Bar Association

RESOLVED, that the American Bar Association

a. supports actions by federal, state, territorial and local governments, private entities and academic

institutions to achieve implementation and enforcement of environmental laws, regulations and poli-

cies so that a disproportionate share of the burden of environmental harm does not fall on minority

and/or low-income individuals, communities or populations;

b. urges federal, state, territorial and local administrative 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 regulations and policies to mitigate or elimi-

nate those impacts, and assessing and managing environmental risks so that they better take account

of the need to eliminate such inequities; and

c. urges Congress, state and territorial legislatures and local governments to enact legislation, as ap-

propriate, 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 American Bar Association urges:

a. Further documentation of the causes and consequences of the inequitable distribution of environ-

mental burdens;

b. The 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 envi-

ronmental inequity;

d. Law schools to consider the expansion of curricula and clinical programs to educate students to deal

484 ENVIRONMENTALJUSTICE: LEGALTHEORY AND PRACTICE

with these problems; and

e. State and local bar associations to adopt resolutions similar to this ABA resolution.

Adopted by the ABA House of Delegates, August 11, 1993, New York, NY.

REPORT

The physical environment of America’s minorities—Hispanics, Native Americans, Asians, 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 children. Blacks are decidedly overrepresented in air pollution nonattainment areas. The envi-

ronment of migrant farm workers, particularly in their exposure to hazardous pesticides, has not been

well protected, to say the least. People of color are much more likely to have hazardous waste sites in

their backyards than are whites. —John Heritage, Editor, Letter to Readers in EPA Journal (Mar./Apr.

1992).

The proposed resolution responds to an increasing body of disturbing evidence that the burden of

adverse environmental impacts falls disproportionately on people of color and/or low-income popu-

lations. While other terms have been used to describe this phenomenon, notably “environmental rac-

ism” and “environmental equity,” the term “environmental justice” is the preferred characterization

of this struggle, reflecting as it does the goal to be achieved.

1. Growth of the Environmental Justice Movement

Over the past two decades, public and private institutions and academic scholars have con-

ducted research and investigation to determine whether the burdens of environmental harm and

the benefits of environmental protection have been distributed inequitably to minority and/or

low-income populations.

The studies show that our environmental laws, as well as the means by which they are imple-

mented and enforced, do not adequately protect these populations. While the causes are many and

varied, and the specific instances of injustice sometimes difficult to establish under our current le-

gal framework, the prevalence of environmental injustice—or the lack of environmental jus-

tice—cannot be ignored and should be addressed by the American Bar Association.

The environmental justice movement is said to have started in 1982 as a result of the outrage gener-

ated by the decision of the State of North Carolina to build a toxic waste landfill for PCB-contami-

nated dirt in WarrenCounty. The contaminants to be buried there were to come from fourteen differ-

ent counties in the State. Warren County, however, had the highest percentage of people of color of

any county in the state and was one of the poorest. The ensuing protest, the first national African

American protest against the location of a hazardous waste facility, involved not only residents of

Warren County, but civil rights, labor, and political leaders as well as environmental activists. Dem-

onstrations in opposition to the proposed site resulted in the arrests of more than 500 people, includ-

ing Dr. Benjamin F. Chavis Jr., then-Executive Director of the United Church of Christ Commission

for Racial Justice (now Executive Director of the National Association for the Advancement of

Colored People); Dr. Joseph Lowery of the Southern Christian Leadership Conference; and Con-

gressman Walter Fauntroy (D-D.C.).

2. What Studies Have Shown Over Several Decades

At least since the early 1970s, academics, social scientists and federal agencies have been noting

and documenting the disproportionate distribution of the adverse effects of environmental pollution

THE PRIVATE BAR AND CORPORATEAMERICA 485