Reflections on environmental justice.

• Author: Gerrard, Michael B.
• Position: US and New York

Environmental justice is a very hot topic. Yesterday's New York Times on the front page of the Metropolitan section had a story stating: Mid-Sized Plants Headed to Poor Areas. (1) The story stated, "The Pataki administration acknowledges in its own study that the electric generators that it wants to install around New York City would go into poor heavily minority communities, a finding that supports some of the arguments of the project's opponents." (2) This is quoting an unreleased environmental justice analysis that may or may not be valid, but it certainly shows how hot a topic it is. This morning I would like to say a couple of words about what environmental justice is, on what is the over-arching law on the subject at the federal level, and then to speculate a little bit--we're still at such an early stage that only speculation is warranted--as to how it will affect SEQRA [State Environmental Quality Review Act] and related processes.

The basic idea underlying environmental justice is that minority and low income individuals and communities should not be disproportionately exposed to environmental hazards and should be able to participate meaningfully in the decisions that affect their exposure to those hazards. Environmental justice first became a major issue in 1987 with the publication of a report called Toxic Wastes and Race in the United States, (3) published by the Commission of Racial Justice of the United Church of Christ, concluding that the racial characteristics of a community were the most important single indicator of proximity to hazardous waste sites. A lot of methodological issues have been raised about that study, but it had a tremendous impact.

The first fundamental legal basis for environmental justice law is the Equal Protection Clause of the United States Constitution. However, plaintiffs seeking to use the Equal Protection Clause to bring complaints on environmental justice grounds have uniformly failed because the courts require a showing of discriminatory intent before allowing an equal protection claim, and no one has ever been able to prove discriminatory intent in the environmental justice context of a litigation.

The Civil Rights Act of 1964 contained a very important provision, Title VI, (4) which has also become of great importance in environmental justice. Title VI says that "[n]o person in the United States shall, on the grounds of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subject[] to discrimination [involving] any program or activity receiving federal financial assistance." (5) So Title VI aims at recipients of federal financial assistance. Every state environment agency including the DEC [Department of Environmental Conservation] is a recipient of federal financial assistance and therefore is subject to Title VI. It doesn't matter whether the money goes to the particular program at issue; DEC is subject to Title VI. Title VI itself has been interpreted also to require a showing of discriminatory intent before it can be forced in court. However, Title VI allowed federal agencies to adopt implementing regulations. The Title VI regulations adopted by EPA [Environmental Protection Agency] as well of those of a number of other federal agencies don't require intent. Discriminatory effect is enough.

The question then arises: Can you go to court to challenge a recipient of an EPA grant, such as the DEC, if there is a finding of discriminatory effect? The issue of whether there is a private right of action for violations of EPA regulations is an unresolved issue. Three years ago, the U.S. Court of Appeals for the Third Circuit ruled that there was such a right in the Chester case. (6) The U.S. Supreme Court agreed to hear the case; but then the plant that was the subject of the controversy in the Chester case--a proposed soil remediation plant--was cancelled and the Supreme Court vacated the decision as moot. So we don't really know the answer to that.

The Supreme Court is about to decide another case called Alexander v. Sandoval (7) which is in a different area of law, but which also raises the same question. So by the time the Court adjourns for the year, around June or July, we may have an answer as to whether there is a private right of action for violations of Title VI regulations. (8)

Also very important is an Executive Order issued by President Clinton in 1994. Executive Order No. 112,898 (9) directs all federal agencies to consider environmental justice in their decision-making processes. The Executive Order, unlike Title VI, applies...