The Rhino in the Colonia: how Colonias Development Council v. Rhino Environmental Services, Inc. set a substantive state standard for environmental justice.

• Author: Fisher, Kristina Gray

1. INTRODUCTION II. BACKGROUND A. Waste Siting and the Origins of the Environmental Justice Movement B. Chaparral, New Mexico C. The Rhino Landfill Proposal D. The Hearing III. RHINO IN THE COURTS A. The Initial Appeal B. The Supreme Court's Decision IV. THE SIGNIFICANCE OF THE RHINO DECISION A. New Mexico Sets a High Bar for Other States B. Applicability to Other New Mexico Environmental Laws C. Impact on New Mexico's Solid Waste Act Regulations D. Evaluation of the Revised Regulations E. From a Procedural to a Substantive Environmental Justice Requirement V. AFTERMATH I. INTRODUCTION

   On July 18, 2005, the New Mexico Supreme Court handed down a groundbreaking decision in Colonias Development Council v. Rhino Environmental Services, Inc. (Rhino), (1) requiring the New Mexico Environment Department (NMED) to consider environmental justice criteria during solid waste facility permitting decisions.

   The decision was a dramatic' climax to a case already fraught with drama. It began when Rhino Environmental Services proposed to site a fourth landfill in Chaparral, New Mexico--the state's largest colonia. (2) The public hearing on the permit application took place amidst the national chaos and disruption of the terrorist attacks of September 11, 2001. (3) During this hearing, the NMED Hearing Officer bluntly informed the community members in attendance that their concerns about the disproportionate concentration of industrial and waste sites in the predominantly minority and low-income community of Chaparral were quite simply irrelevant to the permitting decision. (4)

   When the New Mexico Supreme Court overruled the agency and required it to consider environmental justice factors--including the socioeconomic status of the population, the cumulative environmental impacts of existing sites, and the social impact of living in a community surrounded by waste sites--in its Solid Waste Act (5) permitting decisions, it signaled a profound shift in the interpretation of New Mexico environmental law. Prior to the Rhino decision, NMED had assumed that it lacked the authority to consider such "non-technical" factors in its permitting decisions under the Solid Waste Act. (6) However, in the aftermath of Rhino, the agency revised its Solid Waste Act regulations to require additional public notice and the completion of a Community Impact Analysis for waste sites proposed within a four-mile radius of a vulnerable community. (7) Under the court's reasoning, similar reforms could be required for permitting processes under other state environmental laws, including New Mexico's Air Quality Control Act, Hazardous Waste Act, and Water Quality Act. (8)

   Even more importantly, the court's holding went beyond requiring additional procedural safeguards during the permitting process, and, for the first time, found that the Solid Waste Act and its regulations actually set a substantive limit prohibiting the siting of new or expanded landfills in communities that are disproportionately burdened by industrial sites if the cumulative harmful effects will constitute a public nuisance or a hazard to public health, welfare, or the environment. (9)

   Rhino not only affects environmental law in New Mexico. It also serves as a model for other state courts in the interpretation of their own environmental laws. Prior to the decision, no state court had held that environmental justice must be considered in the application of media-specific environmental laws like the Solid Waste Act (and only two had found such requirements in their broad state "Environmental Policy Acts" (10)). Not long after Rhino, however, the Pennsylvania Supreme Court came to a similar conclusion as the New Mexico Supreme Court and upheld the Pennsylvania Department of Environmental Protection's decision to include environmental justice criteria in its waste site permitting analysis despite the lack of any specific statutory mandate to do so. (11)

   Although it constitutes an important milestone in the jurisprudence of environmental justice, Rhino and the resulting revisions to New Mexico's Solid Waste Act regulations also illuminate the daunting challenges that remain. The effectiveness of the new regulations is limited by their narrow demographic and geographic definition of a vulnerable community and their broad exception for areas that have been zoned for industrial use. (12) In addition, the Community Impact Analysis falls short of a comprehensive analysis of the environmental justice impacts of a solid waste facility. Ultimately, although both the Rhino decision and the revised regulations move New Mexico closer to achieving environmental justice, they are only the first steps on the long and difficult journey toward that goal.

2. BACKGROUND

   1. Waste Siting and the Origins of the Environmental Justice Movement

      The environmental justice movement first coalesced as a response to inequalities in the siting of waste facilities. (13) In 1982, national attention was drawn to a large protest over the siting of a PCB landfill in Warren County, North Carolina. (14) The landfill was intended to store 30,000 cubic yards of PCB-contaminated soil from across the state. (15) At the time, Warren County was the poorest county in the state, with an annual per capita income of around $5000 and a population that was 65% black. (16) Most of the residents got their drinking water from shallow wells, as the water table was only five to ten feet below the surface. (17)

      When they learned of the proposal to site the PCB landfill in their neighborhood, Warren County residents were outraged, and they organized a massive protest. (18) More than 500 of the protestors were arrested, and national civil fights groups--including the United Church of Christ's Commission for Racial Justice, the Southern Christian Leadership Conference, and the Congressional Black Caucus--joined the effort against the landfill. (19) This event has come to be viewed as the catalyst for the emergence of the environmental justice movement as a force in its own fight, dedicated to redressing racial, gender, and socioeconomic inequities in the distribution of environmental burdens and benefits and ensuring a safe, healthy environment for all. (20)

      In response to the increasing awareness of the disparities in environmental risks and burdens sparked by protests like that in Warren County, studies were conducted that examined the distribution of landfills and hazardous waste sites. These studies included a 1983 General Accounting Office study which found that hazardous waste landfills were concentrated in predominantly minority and low-income communities, and the well-known 1987 report by the United Church of Christ's Commission for Racial Justice, titled Toxic Wastes and Race in the United States, which concluded that race was the single most significant variable determining where toxic facilities were located. (21) Although the environmental justice movement has rapidly expanded to embrace issues of workplace safety, neighborhood infrastructure (or lack thereof), and control over traditional lands and natural resources, the iconic environmental justice scenario still involves the siting of a toxic or hazardous waste facility in a low-income community of color.

   2. Chaparral, New Mexico

      Chaparral is an unincorporated colonia (22) located on the border between Dona Ana and Otero counties in southern New Mexico, just over twenty miles north of El Paso, Texas. (23) Twenty-two miles to the northwest, on the other side of the Franklin Mountains, the green ribbon of the Rio Grande winds though the thriving city of Las Cruces, New Mexico. (24) To the north and east lie the White Sands Missile Range and the Fort Bliss military reservation. (25)

      Census Bureau data on Chaparral is spotty at best. Although the parts of the community located in Dona Ana County have been categorized as a Census Designated Place, (26) census counts have been hindered by the fact that the community actually spans two counties and contains a predominantly minority population, which tends to be undercounted in censuses. (27) As a result, while the 2000 Census recorded 6117 persons in the Dona Ana portion of Chaparral, an estimate based on water bill data puts the community's actual population at around 20,000 as of 2006. (28)

      Despite these substantial flaws, the data recorded by the Census Bureau nevertheless provides a general indication of the social and demographic characteristics of Chaparral. Most of the developed area is contained within four Census Block Groups (29) (CBGs), three in Dona Ana and one in Otero county.(30) Within these four CBGs, the Census Bureau recorded a population that is 72% Hispanic, as compared to 63% in Dona Ana County, 32% in Otero County, and 42% statewide. (31) Slightly more than 20% of the Chaparral population demonstrated Limited English Proficiency (speaking English "not well" or "not at all"). (32) This is more than twice the rate of Dona Ana County overall, and four times the rate of Otero County and the state as a whole. (33)

      The median income across the four CBGs was $22,540, compared to the statewide average of $34,133. (34) Poverty rates (measured by the percentage of the population living below the federal poverty line) for the four CBGs ranged from a high of 49% to a low of 24%, averaging 39% across the four groups. (35) New Mexico's statewide poverty rate was 18.4%, while Dona Ana and Otero counties reported 25% and 19% respectively. (36) About a quarter of the Chaparral population over age twenty-five had completed high school, with 42% having obtained some schooling but not a high school diploma, compared to 21% statewide. (37) The CBGs containing Chaparral also reported a higher percentage of children: 36% of the population counted was under age eighteen, compared with 28% statewide. (38)

      Thus, the Census data paints a picture of a community that, compared to surrounding areas, is disproportionately young, low...