Environmental Justice: Is Disparate Impact Enough? - Jimmy White

• Publication year: 1999

COMMENT

Environmental Justice: Is Disparate Impact Enough?

I. Introduction

"Not in my backyard!" This simple statement and the vigorous efforts to enforce it have resulted over the last sixteen years in a growing movement in minority communities in search of what has been termed "environmental justice." It is claimed by activists, and proven in numerous studies, that minorities are more likely to be affected by the siting of hazardous waste facilities and the permitting of other hazardous waste producers than are whites.¹ The causes of these inequities are neither uniform nor easily identifiable.² Unfortunately, remedies may be equally elusive. Lack of resources, political power, and practical knowledge have proven all too often to be insurmountable obstacles to the resolution of conflicts over the siting of hazardous waste producers or handlers.³

Civil rights claims based on the Equal Protection Clause of the Constitution have proven particularly ineffective because discriminatory intent is so difficult to establish. Title VI of the Civil Rights Act of 1964⁴ and the Environmental Protection Agency's ("EPA's") implementing regulations⁵ have recently been utilized as a potential alternative to equal protection claims. During the 1998 term, however, the United States Supreme Court vacated the Third Circuit's decision in Chester Residents Concerned For Quality Living v. Seif,⁶ the first decision recognizing an implied private right of action under the EPA's regulations.⁷ Private citizens' groups are now faced with uncertainty on their ability to file private environmental justice actions without evidence of discriminatory intent.

This comment examines the environmental justice issue with an eye toward establishing the viability of Title VI as a tool for achieving some measure of protection for minority communities. Specifically, Part II provides a brief overview of the environmental justice problem, discussing both its chronological development and its substantive elements. Part III examines the traditional methods of recourse in environmental justice: claims brought under environmental laws and claims brought pursuant to the Equal Protection Clause and 42 U.S.C. Sec. 1983. Part IV introduces Title VI and the EPA's implementing regulations as an alternative to equal protection challenges. Part V introduces the reader to Chester, Pennsylvania, and provides initial procedural history for Chester Residents Concerned for Quality Living v. Seif. Part VI then provides an analysis of the Third Circuit's reasoning in Seif, identifying the rationale for an implied private right of action within the EPA's regulations. Next, Part VII examines subsequent litigation addressing the private right of action. This Comment then concludes by recognizing the growing trend in courts across the country allowing disparate impact claims under Title VI and associated implementing regulations, and urging the utilization of these provisions in addition to tools already in place for addressing environmental justice concerns.

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II. Environmental Justice Overview

Environmental justice advocates generally trace the movement's origin back to 1982, when state officials in North Carolina approved the siting of a poly-chlorinated biphenyl ("PCB") plant near a predominantly African-American community in Warren County.⁸ The protests that accompanied the controversy were comparable to those of the civil rights movement of the 1960s.⁹ The controversy over the PCB plant siting prompted Congressman Walter E. Fauntroy, who participated in the demonstrations, to request that the U.S. General Accounting Office ("GAO") conduct a study "of the socioeconomic and racial composition of the communities surrounding the four major hazardous waste landfills in the South."¹⁰ The study, entitled Siting of Hazardous Waste Landfills and their Correlation with Racial and Economic Status of Surrounding Communities, completed in 1983, found that "[b]lacks make up the majority of the population in three of the four communities where the landfills are located," and that "[a]t least 26 percent of the population in all four communities have income below the poverty level and most of this population is Black."¹¹ Furthermore, the study found that three out of every five African-American and Latino residents lived in communities with uncontrolled toxic waste sites.¹²

A broader study conducted by the United Church of Christ Commission for Racial Justice ("UCC") and reported in 1987, concluded that race proved to be a more significant factor in the siting of hazardous waste facilities than did socioeconomic status, even after the study controlled for urbanization and regional differences.¹³ In particular, the study found that "[i]n communities with two or more operating hazardous waste facilities or one of the five largest landfills, the mean minority percentage of the population was more than three times that of communities without facilities (38 percent versus 12 percent)."¹⁴ The study also concluded that in communities with one hazardous waste facility in operation, the minority percentage of the population was double that of communities without facilities.¹⁵ The GAO study and the UCC study represent the first detailed investigations into whether race plays a role in the selection of sites for hazardous waste facilities.¹⁶

The data provided by these studies prompted EPA Administrator William K Reilly, in 1990, to appoint an "Environment and Equity" working group.¹⁷ The group was charged with the task of assessing evidence that racial minority and low-income communities bear a higher environmental risk burden than the general population, and considering what, if anything, the EPA might do about it.¹⁸ The report, distinguishing between exposure to pollutants and consequent health effects, found that exposure did vary by race and by socioeconomic factors, and that "clear evidence [exists] that there are differences by race for disease and death rates."¹⁹ Among the reasons cited by the EPA report for the disparity between races were (1) the physical proximity to hazardous waste cites,²⁰ (2) minority consumption of contaminated food,²¹ and (3)

1159 minority farmworker exposure to pesticides.²² Finally, the Report suggested that some minorities may suffer disproportionately from environmental pollution, both because of the greater incidence of exposure and because members of minority groups may be more vulnerable to the effects of the pollution.²³

Many commentators believe the current distributional inequity can be attributed to the lack of political clout in minority communities.²⁴ This premise is supported by recorded efforts of private industry to minimize resistance to siting of their facilities. In 1984 Cerrell Associates conducted a study to determine the feasibility of siting a hazardous waste treatment facility in a particular area. The study noted that "all socioeconomic groupings tend to resent the nearby siting of major facilities, but middle and upper socioeconomic strata possess better resources to effectuate their opposition. Middle and higher socioeconomic strata neighborhoods should not fall within the one-mile and five-mile radius of the proposed site."²⁵ The obvious message to facility developers is to locate waste facilities in lower socioeconomic strata

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21. Id. at 15-16.

22. Id. at 16.

23. Id. at 22. The report stated the conclusion may be reached that some population groups identified as sensitive to the health effects of air pollution (asthmatics, persons with certain cardiovascular diseases or anemia, and women at risk of delivering low-birth-weight fetuses) appear to be "disproportionately composed of low-income or racial minority individuals compared to the general population." See also Lazarus, supra note 14, at 806 (discussing the increased sensitivity of certain population subgroups to most contaminants); and Dominique R. Shelton, The Prevalent Exposure of Low Income and Minority Communities to Hazardous Materials: The Problem and How to Fix It, 5 beverly hills B.A. J. 1, 3 (Summer/Fall 1997) (noting that exposure to hazardous materials can cause increased risk of cancer, birth defects, lung diseases, kidney disorders, liver problems, bone marrow diseases, and damage to the immune and nervous systems).

24. See Sheila Foster, Justice From the Ground Up: Distributive Inequities, Grassroots Resistance, and the Transformative Politics of the Environmental Justice Movement, 86 Cal. L. rev. 775, 799 (1998) ("Conventional industry wisdom counsels private companies to target sites that are in neighborhoods 'least likely to express opposition'—poorly educated and lower socioeconomic neighborhoods with little if any commercial activity"). See also Rachel D. Godsil, Remedying Environmental Racism, 90 mich. L. rev. 394, 400 (1991) (noting that, although civil rights groups have occasionally been successful in opposing the siting of hazardous waste facilities in their communities, "minority communities often do not have the political influence or resources to compete with their affluent white counterparts, nor the level of representation in the state legislatures to compete even with poor whites. Therefore, because hazardous waste sites must go somewhere, they are frequently placed in poor, minority communities").

25. Robert Bullard, Dumping in Black and White, in we speak for ourselves: Social Justice, Race, and Envdionment 4, 18 (Dana Alston, ed. 1990) (citing the Cerrell Associates report). communities, the population of which are disproportionately minority in make-up.

In addition to political powerlessness, segregated housing patterns in minority communities, low home and property values in and around selected communities, and lack of sufficient resources and practical knowledge of the process required to oppose hazardous waste facilities may all contribute to a developer's choice of sites.²⁶ It is even possible that part of the responsibility for...