Environmental justice in Oregon: it's the law.

• Author: Collin, Robert W.

1. INTRODUCTION II. THE ROLE OF STATES IN ENVIRONMENTAL JUSTICE POLICY A. Federalism and Evolving Environmental Justice Policy B. Agency Institutional Norms Surrounding Race C. The Urban Context of Environmental Justice and Sustainability D. Why States Matter E. The New Jersey Experience III. OREGON AND ENVIRONMENTALISM A. Oregon's Native People B. Oregon's Farm and Forestry Workers C. Oregon's Urban Area." Portland D. Governor Roberts and the Citizen Advisory Committee 1. Process 2. Report Recommendations 3. Challenges to Implementation E. The Governor's Environmental Justice Advisory Board 1. Process 2. Report Recommendations 3. Challenges and Lessons Learned F. The 2008 Environmental Justice Task Force IV. SUMMARY AND CONCLUSION A. Environmental Justice and Sustainability Together in State Policy." The Case of Maryland B. Environmental Justice and Sustainability in Global Environmental Policy I. INTRODUCTION

   Environmental justice refers to the distribution of environmental rights and benefits by race, class, and income. These include substantive rights like clean air and water, and process rights like notice and the opportunity to participate in environmental decision making. Other terms like environmental racism and environmental equity are also used to describe environmental justice dynamics. (1) Other articles in this issue of Environmental Law document the increasing breadth and depth of environmental disproportionality. (2) More and more studies provide evidence of both environmental racism and environmental disparity as they become more longitudinal. One of the most recent nongovernmental reports is Toxic Wastes and Race at Twenty: 1987-2007, which documents, once again, some of the environmental disparities. They found that:

   * People of color make up the majority (56%) of those living in neighborhoods within roughly two miles of the nation's commercial hazardous waste facilities, nearly double the percentage in areas beyond two miles (30%).

   * People of color make up more titan two-thirds (69%) of the residents in neighborhoods with clustered facilities.

   * Nine out of ten U.S. Environmental Protection Agency (EPA) regions have racial disparities in the location of hazardous waste sites.

   * Forty of forty-four states (90%) with hazardous waste facilities have disproportionately high percentages of people of color in host neighborhoods--on average about two times greater than the percentages in non-host areas (44% vs. 23%). (3)

   These findings provide an early baseline for both environmental disparity and challenges to sustainable policies. As polices and laws about Environmental Justice have developed at the U.S. EPA, states have followed its lead. (4) This Article examines the development of state environmental justice activities in-Oregon. (5)

   States are an important link in environmental policy and intergovernmental relations. Most federal environmental money is funneled to states through the regional offices of a particular agency, and from there to states and municipalities. In the late 1990s, states were threatened with rescission and termination of these substantial revenue flows if they violated Title VI of the 1964 Civil Rights Act. (6) Under the Act, if state agencies were acting in a racially discriminatory manner, as alleged by many environmental activists, then the states' funding was potentially jeopardized. (7) In most states it would be unlikely that the state itself would replace lost federal funding at the same level. Although the U.S. Supreme Court ultimately held that citizens do not have a private right of action under Title VI, it served notice that environmental justice was a serious concern, and one that does not go away. (8) Subsequently, many states have embraced some principles of environmental justice. (9) In few states, if any, is there state recognition of environmental justice policy, principles, or practices without federal financial leverage. This is also true of many environmental policies. Environmental policy becomes effective when states and localities begin to facilitate the implementation of these policies. The same will hold true with environmental justice policy development at the state level.

   Part II of this Article discusses the general context of state environmental justice activities. The role of states in environmental justice policy development is a very dynamic and controversial area. States are key players in the intergovernmental relations that underscore U.S. environmental public policy. Although "best practices" may be in the eyes of a particular stakeholder, I note developments in practices and procedures. I give particular attention to the New Jersey approach to environmental justice. That state has a history of large, rapid urbanization and industrialized pollution, large populations of racial and ethnic subgroups, and poverty. To discount cities in any environmental policy is to essentially ignore meaningful implementation of current and potential environmental policies. This Part concludes with a discussion of the federal context of state environmental justice decisions and policies, focusing on federalism and institutional norms around Race.

   The next Part describes the evolving Oregon Environmental Justice experience. I begin with a brief description of environmentalism in Oregon as part of the policy context. Then I describe the first two state environmental justice initiatives, their processes and recommendations, and summarize some of the main policy recommendations of the two state reports. This section concludes with a description of ongoing efforts of the newly formed Oregon Environmental Justice Task Force.

   In conclusion I share my observations about the emerging policy context of sustainability and environmental justice as they co-evolve into "hard" law from their social policy context. Here I note Maryland's Environmental Justice and Sustainability Commission.

2. THE ROLE OF STATES IN ENVIRONMENTAL JUSTICE POLICY

   1. Federalism and Evolving Environmental Justice Policy

      Federalism systematically combines the principles of supremacy and localism in a way uniquely suited to finding just and sustainable solutions to local environmental problems. Goals of environmental justice and sustainable development may be directed by the federal government, but implementation of environmental policy is always local in some manner. Three models of federalism have shaped U.S. environmental policy. The first is delegated federal authority, the second is cooperative federalism, and the third is federal preemption. The three models of environmental federalism have different implications for environmental justice and sustainability policy. The first general model of environmental federalism is to provide financial assistance to encourage states to develop appropriate environmental programs and policies on their own. This is the primary federal approach for land management and solid waste disposal. (10) This model would greatly benefit state environmental justice initiatives because resources for the extensive public participation, data gathering and analysis, and interagency coordination required by the first wave of state environmental justice programs are very expensive in terms of time, money, and human resources. States with large areas of cumulative wastes, industrialization, and large, racially and economically segregated populations still have considerable leeway to go beyond federal requirements in all instances. States also have considerable leeway to do what they have done all along regarding environmental justice and sustainability--nothing. The second general model of environmental federalism is the cooperative federalism approach. Here, federal agencies set national environmental standards and states can choose to implement them or let the federal government do so. (11) This model would be awkward for state environmental justice programs. It would be awkward because federal standards of environmental justice are new to many state environmental agencies. Some would argue that it is awkward, but necessary. The recalcitrance and countervailing embracement of environmental justice by state environmental agencies directly affects the development of environmental policy, as the discussion of the two Oregon Environmental Justice reports will illustrate. Most state environmental agencies receive funding from the EPA. (12) Generally, if states want EPA money they must comply with minimal statutory requirements. In some instances, states are free to alter regulatory policies so long as they reach the same federally required environmental results. The third model of environmental federalism is the direct preemption of state law. (13) This model could be awkward for the same reasons as the cooperative federalism model. Direct preemption of state law may be necessary to implement regional strategies of environmental clean up, sustainability, and environmental justice, especially where state law conflicts with federal law.

      As environmental policy matures and includes more citizen monitoring and involvement, the role of communities will increase. (14) Those communities most affected by past, present, and future environmental impacts will need monitoring before any type of sustainability assessment, evaluation, or policy can begin. The strength of the environmental justice mantra "We Speak for Ourselves" lies both in its authentic voice and in the needs for future global, domestic, state, and local environmental policies to be based on accurate and complete information. The awkward and evolving dynamics of U.S. environmental federalism combine with vague and shadowy intergovernmental relations and political polarization of environmental issues and controversies to overshadow the fundamental need of environmental policy for citizen input and accurate environmental information. The polarization of land use planning at the local level and environmental...