Statistical approaches to assessing charges of environmental racism and classism against the U.S. Environmental Protection Agency

Published date06 September 2000
Date06 September 2000
AuthorAdam Karp
Adam Karp 1
Discrimination law has evolved from litigating or prosecuting overt,
individual cases of egregious behavior solely by means of anecdotal
evidence and eyewitness testimony. Statistical evidence came to bear the
imprimatur of the United States Supreme Court in the Seventies as a
probative means of discerning guilt or liability, and has been used to shore
up patterns of prejudice at a systemic level since. Courtrooms of the
Twenty-First Century have struggled to define discrimination through a
quantitative lens, nonetheless relying on qualitative evidence to assist the
factfinder in rendering a verdict. Some definitions carry more precision
and accuracy than others. Consider the inflammatory National Law
Journal's indictment of the United States Environmental Protection
Agency ('EPA') as an example of the latter. In 1992, the National Law
Journal ran a Special Investigation of the EPA, claiming that the federal
Research in Law and Economics, Volume 19, pages 1-45.
Copyright O 2000 by JAl/FAsevier Inc.
All rights of reproduction in any form reserved.
ISBN: 0-7623-0308-5
government had fostered a racist imbalance in hazardous site cleanup and
its pursuit of polluters. Kudos to the columnists for bringing environ-
mental equity into the spotlight of public debate and for forewarning and
encouraging the EPA to conduct its enforcements reflectively, in order to
avoid being on the receiving end of a Title VI lawsuit. Nonetheless, the
methodology used by the National Law Journal belies a total under-
standing of the bureaucratic structure that pursued these actions and of
the notion of statistical significance. This Article confines itself to Region
X's actions between 1995 and 1999, applying linear regression and other
statistical tests to determine whether biases, found using the National Law
Journal's naive methodology, stand after due consideration of chance. The
NLJ approach finds evidence of bias, but the author also conducts more
complicated and appropriate analyses, such as those contemplated by the
National Guidance. After issuing some provisos, the author dismisses
charges of racism or classism. While the National Guidance represents a
positive first step in identifying environmental justice communities, those
with an above-average proportion of lower-class or non-Caucasian
inhabitants, it lacks statistical sophistication and econometric depth. This
Article concludes by recommending the use of normalized racial
distributions, Gini coefficients, and Social Welfare Functions to the EPA
and to other organizations conducting environmental justice analysis.
The National Law Journal ('NLJ') published a 1992 report citing vast penalty
and waiting time differentials as clear evidence of disparate racial impact (and
almost went so far as to impugn racist motives to EPA attorneys and
enforcement officers)) Unfortunately, this study provided very little other than
means and sample sizes. Furthermore, there was no consideration of confidence
intervals or p-values, statistical tools that capture standard error as well as
mean, and thereby help to provide a more complete picture of how seemingly
appalling results may fall within the bounds of chance. The stories of
victimized individuals and classes needed to be told, but the fashion in which
the editors published this study gave short shrift to statistical analysis and
sparse, if any, presentation of computation and methods. The numbers and
percentages they did manipulate, however, showed an inadequate under-
standing of geographical distribution of race and income throughout the United
States, as well as a working knowledge of how penalty ranges vary depending
on which statute is used to clobber the polluter. Nonetheless, their study raised
key points. I am optimistic that this analysis, though limited, will provide some
Statistical Approaches to Assessing Charges of Environmental Racism and Classism 3
insight into the way Region X conducts its own enforcements. Part II proceeds
in the spirit of the NLJ analysis, applying their techniques to Region X's
penalty-bearing enforcement actions between 1 October 1995 and 30 June
1999. It then appeals to the National Guidance as a basis for identifying
environmental justice ('EJ') communities and uses a variety of more advanced
statistical methods to test for significant disparities (e.g. chi-square, normal
approximation to binomial, linear regression, and nonparametric tests). Part III
recommends more sophisticated measures to the EPA for future EJ analyses in
the hope that the extra computational burden will lead to credible and powerful
A. NLI Redux
While the NLJ looked at 1091 of the 1214 national cases that the EPA
concluded between 1985 and March 1991, I studied 436 of the 447 actions
conducted by EPA Region X between 1 October 1995 and 30 June 1999. 3 The
NLJ further omitted 162 cases because they had no penalties. 4 I omitted an
additional 220 no-penalty cases for proposed and 230 no-penalty cases for
assessed penalty analysis. Eleven cases were removed because their ZIP codes
did not exist back in 1990, an important year given that all the demographic
information used to perform these analyses was based on the 1990 Census. It
may come as a surprise to some that the United States Postal Service routinely
swaps and redefines the boundaries of its ZIP codes irrespective of the
geographical grid (county, tract, block group) put in place by the Census
Bureau. Though it is unlikely that the boundaries shifted during the fifteen
months since the 1990 Census was taken, one might find error in the NLJ
analysis for Docket listings in the five-year period preceding 1990. An identical
critique could be leveled at my analyses and other ZIP code-based studies
conducted in the latter half of this decade. Notwithstanding this potential for
miscalculation, please consider the following EPA Region X results. They are
based on the same naive methodology used in the NLJ report - contrasting the
average penalty for the least ethnically diverse quartile (1Q) with the average
penalty for the most ethnically diverse quartile (4Q), with each penalty-beating
action ranked in ascending order by proportion of people of color.
For all the federal environmental laws aimed at protecting citizens from air,
water and waste pollution, proposed penalties in white communities

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