Race, ethnicity, and air pollution: new directions in environmental justice.

• Author: Ahlers, Christopher D.

1. THE PROBLEM OF ENVIRONMENTAL JUSTICE II. TITLE VII AND EMPLOYMENT DISCRIMINATION A. Statutory Protection Against Discrimination in Employment B. Empirical Success of Employment Discrimination Claims Before Administrative Agencies III. TITLE VI AND ENVIRONMENTAL DISCRIMINATION A. Statutory Protection Against Discrimination by Recipients of Federal Assistance B. Judicial Case Law IV. ADMINISTRATIVE PROCEDURE ACT AND ENVIRONMENTAL JUSTICE A. Statutory Framework B. Judicial Case Law V. NEPA AND ENVIRONMENTAL JUSTICE A. Statutory and Regulatory Considerations B. Judicial Case Law VI. NEW SOURCE REVIEW AND ENVIRONMENTAL JUSTICE A. Prevention of Significant Deterioration Permits B. Nonattainment New Source Review Permits VII. TITLE V OPERATING PERMITS AND ENVIRONMENTAL JUSTICE A. Statutory and Regulatory Framework B. EPA Decisions on Petitions for Objections to Title V Permits VIII. LAND-USE PLANNING AND ENVIRONMENTAL JUSTICE A. Clean Air Act and Land-Use Planning B. Framing Environmental Justice as an Air Pollution Problem C. Air Pollution Loads IX. CONCLUSIONS I. THE PROBLEM OF ENVIRONMENTAL JUSTICE

   At a recent Environmental Law Forum presentation in Harrisburg, Pennsylvania, a representative of a natural gas developer generated a flurry of controversy by remarking that when constructing a pipeline, the company tries to avoid big houses with people who might oppose the development. (1) This controversy resulted in a letter from environmental groups to the Pennsylvania Department of Environmental Protection, requesting an investigation into past permits relating to natural gas operations, to evaluate their impacts on environmental justice communities/ This experience and the reaction to it highlight the politically volatile nature of discussions about the siting of industrial facilities, and the sensitive underlying currents of race, ethnicity, and poverty. But it also highlights the relatively primitive state of the law in protecting low-income minority communities from heavily-polluting industrial facilities under principles of environmental justice. The truth of the matter is that the executive's statement falls far short of demonstrating an unlawful siting practice.

   Existing legal scholarship has already established that it is debatable whether the siting of industrial facilities is based on demographics, or vice versa. (3) In early articles on the subject, Professor Been of New York University concluded that the siting of industrial facilities was more closely correlated with ethnicity than race, without disproportionally impacting the poor. (4) In response, other academics suggested the need for additional research, due to questions regarding reliability and causation. (5) Despite extensive studies and articles written on the subject, the best conclusion at present suggests only a correlation between industrial development and race. (6) But a correlation is far short of the standard of proof of discrimination that is typically required to win a discrimination case in court, or a challenge to a permitting decision before an administrative agency. (7)

   The thesis of this Article is that it is not necessary to resolve this academic debate in order to explore opportunities for protecting health and welfare of communities neighboring industrial facilities. Given the pattern of judicial decisions relating to environmental discrimination, environmental assessments, and permitting decisions, the framing of environmental justice as a matter of race and ethnic discrimination has encumbered the movement with an insurmountable burden of proof resulting in few judicial victories. (8) While creating a meaningful dialogue regarding air pollution, race, and ethnicity, such litigation has not led to strong precedential decisions which restrict the development of heavily-polluting industrial plants.

   Due to the limitations of the litigation approach, the best opportunity for meaningful restrictions on heavy industrial development lies in the area of land-use planning. (8) Environmental justice is primarily a problem of environmental pollution, and secondarily one of race and ethnicity. By addressing the air pollutants that lie at the heart of the problem, municipalities can work to remedy the problem of environmental discrimination, whether real or perceived.

2. TITLE VII AND EMPLOYMENT DISCRIMINATION

   1. Statutory Protection Against Discrimination in Employment

      To understand the legal protections against environmental discrimination, it is helpful to review federal employment discrimination law. Because environmental discrimination and employment discrimination have a common source--the Civil Rights Act of 1964 (10) --the empirical experience of the courts and administrative agencies in reviewing employment discrimination claims is helpful in evaluating the viability of legal protections against environmental discrimination.

      Title VII of the Civil Rights Act of 1964 (11) prohibits discrimination in employment "because of' race and ethnicity. (12) In an employment discrimination case, a plaintiffs challenge is to prove that an adverse employer action was based on an unlawful reason, rather than a lawful reason (such as job performance or workplace restructuring). (13)

      Of course, the line is not always clear. Indeed, employment discrimination law has evolved to reflect the fact that employer actions may sometimes be based on both a lawful reason and an unlawful reason. In such "mixed-motive" cases, the law recognizes that an employer action may be unlawful even if it is based on both an unlawful reason and a lawful reason. (14) While Title VII makes it easier for a plaintiff to prove unlawful discrimination in this instance, it restricts the employee to a remedy of injunctive relief and does not allow monetary damages or reinstatement. (15) This compromise makes it easier to prove a violation in an ambiguous case, but prevents the employee from recovering money damages. In contrast, Title VI does not reflect this nuanced approach, making it an "all or nothing" approach. (16)

   2. Empirical Success of Employment Discrimination Claims Before Administrative Agencies

      Statistics regarding the filing of employment discrimination complaints with employment discrimination agencies demonstrate the difficulty of persuading an agency to proceed with a charge of discrimination based on a finding of "reasonable cause." In 2014, the United States Equal Employment Opportunity Commission (EEOC) issued a reasonable cause determination in only 2.6% of cases nationwide, and a "no reasonable cause" determination in 64.1% of cases. (17) Over 72% of national race discrimination charges were filed in 15 states, as noted in the table below.

      With respect to employment discrimination claims filed with state agencies rather than the EEOC, complainants in these states have had a little more success. (19) Nevertheless, state agencies only issue "probable cause" findings for a small portion of race discrimination complaints. To judge the success of employment discrimination claims from the rate of probable cause findings might appear to underestimate the success of complainants, because complainants may settle their claims favorably. But a complainant might also settle a claim unfavorably. Any number of factors might contribute to settlement of a complaint, regardless of the complaint's degree of merit. Only a probable cause finding constitutes an agency's determination that there is a reason to believe discrimination has occurred.

      In all likelihood, the reason that so many race discrimination complaints fail is not that such complaints lack merit, or that people file discrimination complaints fraudulently or in bad faith. Rather, it likely reflects the fact that it is difficult to unequivocally tie an employer action to an unlawful reason, as opposed to a lawful reason. (20) Consequently, even with employment discrimination agencies highly skilled in evaluating issues involving race and ethnicity, it is difficult to successfully pursue a claim for discrimination. (21)

      Environmental discrimination changes the equation in ways that increase the difficulties for a claimant. In the environmental justice context, an environmental discrimination claim essentially asserts that a company intends to single out a particular community based predominantly on racial or ethnic characteristics. While a discrimination claim in the employment context is based on an alleged harm to a particular individual, in the environmental justice context it is based on an alleged harm to the racial or ethnic community as a whole. In addition, the decision making involved in developing a site for construction necessarily involves many more considerations than a decision in the employment context. Developers might focus on financial forecasts, the availability of raw materials, the accessibility of markets, and the favorability of local regulations--considerations having nothing to do with race or ethnicity. (22)

3. TITLE VI AND ENVIRONMENTAL DISCRIMINATION

   1. Statutory Protection Against Discrimination by Recipients of Federal Assistance

      Title VI of the Civil Rights Act of 1964 (23) is one of the leading authorities underlying the doctrine of environmental justice. (24) Beyond federal environmental programs, the statute broadly prohibits discrimination based on race, color, or national origin under any program or activity receiving federal financial assistance. (25) In its implementing regulations, the United States Department of Justice (DOJ) specifically prohibits the selection of the location of an industrial site or facility in a discriminatory manner. (26) In summary, both the statute and DOJ regulations prohibit discriminatory actions based on race or ethnicity.

      Like the DOJ, the United States Environmental Protection Agency (EPA) has a similar prohibition in its implementing regulations. (27) It is significant that these prohibitions extend to actions that have the...