Environmental Justice and Community-based Reparations

• Publication year: 2016

SEATTLE UNIVERSITY LAW REVIEW Volume 39, No. 4, SUMMER 2016

Environmental Justice and Community-Based Reparations

Catherine Millas Kaiman(fn*)

CONTENTS

INTRODUCTION ................................................................................... 1328

I. ENVIRONMENTAL JUSTICE CASE STUDY: OLD SMOKEY ................. 1331

II. THE ENVIRONMENTAL JUSTICE MOVEMENT ................................. 1334

A. The Early Days of Environmental Justice .................................. 1336

B. Environmental Justice Progress ................................................ 1338

III. TOOLS AND BARRIERS .................................................................. 1339

A. Environmental Laws .................................................................. 1340

1. National Environmental Protection Act ................................. 1342

2. Executive Order 12,898 ......................................................... 1343

3. Clean Water Act and Safe Drinking Water Act ..................... 1344

4. Clean Air Act ......................................................................... 1346

5. Resource Conservation Recovery Act .................................... 1347

6. Comprehensive Environmental Response, Compensation, Liability Act ............................................................................... 1347

7. Toxic Substances Control Act ................................................ 1348

B. Tort Compensation and Medical Monitoring ............................ 1350

C. Property Damage Claims for Environmental Justice Communities ........................................................................................................ 1352

D. Civil Rights Laws in an Environmental Justice Framework ..... 1353

1. Fourteenth Amendment Equal Protection Clause .................. 1353

2. 42 u.s.c. § 1983 Claims ........................................................ 1356

3. Title vi of the 1964 Civil Rights Act ..................................... 1356

IV. ALTERNATIVE REMEDIES: COMMUNITY-BASED REPARATIONS . 1358

A. Justifications for Community-Based Reparations ...................... 1358

B. Reparations Through the Ages ................................................... 1361

C. Suggested Model for Environmental Injustice Reparations ...... 1368

D. Community-Based Reparations in Practice ............................... 1372

CONCLUSION ....................................................................................... 1374

INTRODUCTION

This Article seeks to illuminate the lack of adequate legal remedies that are available for low-income, predominantly minority communities that have suffered historic environmental injustices. The Article not only discusses the lack of adequate legal remedies, but also proposes the use of local, state, and federal reparations programs for communities that have previously suffered environmental injustices; are still living with the effects of environmental injustices, by way of disease, air, soil, and water pollution; or are suffering current and ongoing environmental injustices.

As has been recently illustrated by Michigan's state action of providing lead-contaminated water for over a year to residents of Flint, Michigan, environmental injustices at the hands of local, state, and federal governments are, unfortunately, all too common.(fn1) Certainly, governments are not the only entities perpetrating environmental injustices; however, because governments are charged with enforcing environmental and civil rights laws, their own perpetration of environmental injustice is sometimes even more egregious than environmental misconduct by private entities.

This Article stems from the work of the University of Miami School of Law Center for Ethics & Public Service Environmental Justice Clinic.(fn2) The Environmental Justice Clinic began as a community-based project working with historic black churches in the West Coconut Grove(fn3) neighborhood of Miami. The Environmental Justice Clinic, in partnership with these historic black churches, community stakeholders, and local nonprofits, has been researching the environmental injustice of "Old Smokey"-the aptly nicknamed City of Miami Municipal Trash Incinerator.(fn4)

Using Old Smokey and the West Grove community as illustrations, this Article will demonstrate the lack of adequate legal remedies through traditional environmental law and civil rights law frameworks that continues to permit countless historic and current environmental injustices. In addition, this Article will show how someone living in any of these communities can rarely, if at all, achieve their own personal justice, justice for their families and friends, and justice for their neighbors and communities.

This Article seeks to illuminate the need for, and potential benefits of, community-based reparation programs by demonstrating: 1) there is a lack of adequate legal remedies available for historical environmental injustices; 2) even if a potentially adequate legal remedy does exist, it is either unattainable or barely attainable for low-income communities exposed to historical environmental injustices; 3) it may be more financially beneficial for the polluter to actually create a reparations program than to defend against potential litigation, media scrutiny, and community protests; and 4) reparations programs would not only provide potential closure to the wounds of the historical injustice, but the programs would also be designed by the community, for the community, and thus give power back to the community made powerless by the initial polluters.(fn5)

Part I of the Article will examine the case study of Old Smokey in the West Grove and provide context for the numerous communities affected by historic environmental injustices.

Part II will discuss the meaning of environmental justice by exploring the movement's history and the status of environmental justice today across the country. Environmental justice is generally defined as the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.(fn6)

Part III will examine what environmental and civil rights laws govern current and ongoing environmental injustices and illuminate how, even when an environmental injustice is occurring, it can be incredibly difficult to stop through the available legal tools. This difficulty makes the case for how impossible it is to achieve justice for either current or historic environmental injustices. Communities that challenge environmental injustices through the major environmental laws, such as the Clean Air Act, Clean Water Act, or the Resource Conservation and Recovery Act, experience very limited successes, if any. Successes may include settlements that do not result in either adequate removal of the environmental injustice or proper remediation for properties affected, or health-related prevention and treatment for exposure to toxins. The communities' success usually only pertains to cleaning up the historic environmental injustice or stopping the siting of a new polluter in a low-income minority community, rather than address the heart of the environmental injustice-why was this polluter placed in this community and how can the community heal from this injustice? This Part will also examine the shift away from environmental law to typical tort-compensation models and the innovative use of medical monitoring. It will also explore the use of traditional civil rights claims brought under the Fourteenth Amendment Equal Protection Clause, 42 U.S.C. § 1983, and the Civil Rights Act of 1964 Title VI. It examines why the legal avenues and remedies available for communities suffering environmental injustice are more often than not inadequate and even more frequently, the remedies are wholly unsuccessful.

Part IV begins by outlining the history of reparations scholarship and practice in the United States and where the dialogue is today. Paying particular attention to Professors Alfred Brophy and Eric Yamamoto's influential scholarship on reparations theory, reparations for environmental injustice should incorporate the existing models with a greater community-based focus. The recommended framework for environmental injustice reparations must include: 1) recognition of and responsibility for the environmental injustice; 2) acknowledgment of the affected community; 3) respect and incorporation of the affected community in the discussion; and 4) reparations in the form of community-based or individual funds, which may be for community goods such as community centers, paved roads, medical monitoring, epidemiological studies, or any other community-based need. This Part will also briefly discuss how reparations programs could be implemented at the federal, state, and local level for communities that have suffered environmental injustices- some for nearly a century. This Part will discuss how, despite the negative political connotation associated with reparations in the United States, these programs could be made appealing to government officials. Perhaps, "throwing money at the problem" could not only benefit and seek to heal these communities, but could also alleviate time, money, and political forces from affecting government...