Michael B. Gerrard, Editor

Environmental justice is the concept that minority and low-income individuals, communities and populations should not be disproportionately exposed to environmental hazards, and that they should share fully in making the decisions that affect their environment. This newly updated edition of The Law of Environmental Justice comprehensively examines the sources of environmental justice law and how evolving regulations and important court decisions impact projects around the country.

The 21 individual chapters, written by many of the leading practitioners and scholars in the field, are divided into three categories: legal theories, legal procedures, and legal objectives.

See the Update Service Table of Contents

In March 2008, an Environmental Justice Task Force created by the Albuquerque-Bernalillo County Air Quality Task Board (AQCB) issued its final report. The 52 page report includes nine key recommendations relating primarily to air quality, which are as follows (listed in order of priority): (1) support the adoption of environmental assessment provisions in regulations, statutes and ordinances at the state and local level; (2) monitor sources to ensure that modeled emissions are reflective of actual emissions; (3) explicitly consider EJ and cumulative impact in the permitting process and regulation; (4) strengthen enforcement of regulations and permits; (5) collaborate with the AQCB and the Environmental Improvement Board (EIB) to create new regulations or modify existing regulations; (6) improve the monitoring network so that air quality at the neighborhood level can be assessed more effectively; (7) ensure that human health and environmental monitoring data are collected, available, and analyzed appropriately through a collaborative center; (8) create an EJ ombudsman position; and (9) ensure that membership on appointed boards and commissions accurately reflect composition of the community. The full report is available at http://www.bernco.gov//upload/images/environmental _health/EJTaskForceFinalReport_31108.pdf.

On January 30, 2008, a Louisiana state appellate court reduced the amount of emotional distress damages awarded to state residents who, although showing no signs of injury, lived, worked or attended school on a contaminated landfill site in New Orleans. Holding that the amount of damages “shocked the conscience,” the court held that damages awarded to those exposed to contaminants at New Orleans’ old Agriculture Street Landfill Site far exceeded the only comparable award given in the state. The court therefore cut in half the maximum amount a resident living above the landfill site could receive, from $50,000 to $25,000. In the 1970’s, the city began developing a site that had been used for 50 years as a municipal landfill. Over the next 10 years, low income residences and an elementary school were built on the site. Despite testing that showed the presence of numerous toxic and hazardous materials at the site, neither residents nor students were told of the contamination. In 1994, the school was closed and EPA placed part of the site on Superfund’s National Priorities List for cleanup. In 2001, numerous residents filed suit and in 2005, after a bench trial, the court found that the city was liable under negligence and strict liability theories and awarded damages for property loss and emotional distress. Under the formula approved by the court, a student who attended the school could be awarded up to $2,000 and a resident living on the site for 20 years or more could receive $50,000 in emotional distress damages. The appeals court found only one comparable case, and in that case the most plaintiffs received was $2,000. Johnson v. Orleans Parish School Board, 2008 La. App. LEXIS 175 (La. App. 4 Cir. Jan. 30, 2008).

Beginning January 1, 2008, a law passed in Oregon (S.B. 420/L. 2007 Ch. 909) established an environmental justice task force and requires all 14 state natural resources agencies to follow prescribed steps to provide greater public participation and to ensure the involvement of persons who may be affected by agency actions. The task force consists of twelve members who are appointed by the governor. It is charged with advising the governor and natural resources agencies on environmental justice issues, identifying minority and low-income communities that may be affected by environmental decisions made by the agencies, meeting with environmental justice communities and making recommendations to the governor regarding concerns raised by these communities; and defining environmental justice issues in Oregon. The law also requires that the agencies take certain steps to ensure greater public participation. The law also requires all directors of natural resource agencies to report annually to the task force on the results of the agencies’ efforts to address environmental justice issues. The full text of the law is available at http://www.leg.state.or.us/07orlaws/sess0900.dir/0909.htm.

On November 21, 2007, Michigan Governor Jennifer Granholm signed Executive Directive No. 2007-23, “Promoting Environmental Justice.” The Executive Directive requires the Michigan Department of Environmental Quality (MDEQ) to develop and implement a state environmental justice plan that: (1) identifies and addresses discriminatory public health or environmental effects of state laws, regulations, policies and activities on Michigan residents; (2) includes measures to prevent discriminatory or negative public health or environmental effects; (3) provides policies and procedures for state departments and agencies to incorporate “environmental justice principles” into their decision-making and practices; (4) recommends mechanisms by which members of the public can request that state government take action to address alleged adverse or disproportionate social, economic or environmental impacts; (5) ensures that the state acts consistently with environmental justice programs of the federal government; (6) recommends mechanisms to monitor and measure the effects of implementing the state plan; and (7) ensures that the plan is implemented in a way that maximizes the promotion of environmental justice while minimizing or eliminating potential adverse or disproportionate social, economic, or environmental impact. The Executive Directive instructs MDEQ to actively solicit public involvement in developing the state environmental justice plan. The Directive also requires MDEQ to establish an environmental justice working group of state officials and members of the public to assist MDEQ in developing the state environmental justice plan. The Directive orders all state departments and agencies to cooperate with MDEQ on this subject. Finally, the Directive requires MDEQ to report to the Governor by July 1, 2008 on MDEQ’s progress in implementing the Directive, and to submit an annual report to the Governor on overall state activities to promote environmental justice. A copy of the directive is available at http://www.michigan.gov/gov/0,1607,7-168-36898-180696--,00.html.

Several environmental groups brought suit in federal court under the National Environmental Policy Act (NEPA) and other statutes seeking a preliminary injunction to enjoin the Department of Defense (DoD) and other government agencies from continuing shipments of the chemical warfare agent VX (also known as “hydrolysate”) from a chemical weapons depot in Indiana to an incineration facility in a low-income area in Texas and to enjoin a private company from incinerating hydrosate at the Texas facility. With respect to their NEPA claim, the environmental groups alleged that the government failed to properly assess the environmental impact of transporting the agent from Indiana to Texas and the likelihood of the chemical agent reforming over time. The court rejected this argument, holding that the record was clear that the government had properly considered the environmental aspects of both issues. It therefore held that plaintiffs were unable to show a likelihood of success on the merits of their claims and denied their motion for a preliminary injunction. Sierra Club v. Gates, 499 F. Supp.2d 1101 (S.D. Ind. 2007).

The Director of Natural Resources and Environment of the U.S. Government Accountability Office (GAO) gave testimony in July 2007 concerning the Environmental Protection Agency’s January 2007 Toxics Release Inventory (TRI) Burden Reduction Rule. The Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) requires certain facilities that use toxic chemicals to report their releases to EPA, which makes this information available in the TRI. Since 1995, facilities may submit a brief statement in lieu of a more detailed form if releases of a chemical do not exceed 500 pounds in a year. Under EPA’s new rule, this amount would be raised to 2,000 pounds. A 1994 Executive Order (E.O. 12898) sought to ensure that minority and low-income populations are not subjected to disproportionately and adverse health or environmental effects from agency activities. In a July 2005 report, GAO made several recommendations to improve EPA’s adherence to these environmental justice principles. In his testimony, the Director stated that EPA disagreed with GAO’s 2005 recommendations and did not meet the benchmarks mentioned in these recommendations; did not follow key aspects of its internal guidelines in developing the TRI rule, including some related to environmental justice; and that the rule change would save companies an average of less than $900 per facility while reducing the amount of information about toxic chemical releases previously available to the public. GAO, “Environmental Right-to-Know: EPA’s Recent Rule Could Reduce Availability of Toxic Chemical Information Used to Assess Environmental Justice,” (GAO-08-115T), available at http://www.gao.gov/new.items/d08115t.pdf.

A Hawaii federal court dismissed an environmental group’s citizen suit alleging a lack of opportunity to participate in the assessment of a hazardous waste fine. Hawaii had found the City and County of Honolulu and a company operating its landfill to be in violation of the landfill’s state-issued permit. The State ordered the City and the company to pay a civil penalty of $2.77 million without first providing public notice or an opportunity to comment. Envirowatch subsequently filed a citizen suit claiming that such lack of notice violated RCRA public participation requirements. The State moved to dismiss the suit on the grounds that the group failed to comply with the requisite 30 day notice period for citizen suits. Envirowatch opposed the motion, arguing that it did not have to comply with this notice period because Article III of RCRA allowed citizens to bring suit immediately when alleging hazardous waste violations. The district court disagreed and granted the motion, holding that the notice period was required because the environmental group’s case was based on a violation of public participation requirements found in Article IV of RCRA, not Article III. Envirowatch, Inc. v. Fukino, 2007 U.S. Dist. LEXIS 47088 (D. Hawaii June 28, 2007).

After issuing three environmental impact statements (EIS’s) over three decades, in 1998 the Department of Energy (DOE) approved operation of a nuclear waste repository in New Mexico. An environmental group commenced a nuisance action in state court against DOE, seeking to enjoin operation of the repository under NEPA. The group argued that DOE relied on faulty data regarding the subsurface geomorphology of the site in its EIS, thereby under-representing the environmental hazards of waste storage at the site. As part of its NEPA claim, the group sought to inject evidence outside of the administrative record based on research conducted by an expert consultant, who claimed that the EIS contained misrepresentations concerning the site’s hydrology. DOE removed the action to federal court and the court thereafter denied the injunction, finding that DOE’s actions were not arbitrary and capricious. On appeal, the 10th Circuit affirmed the decision, finding that the expert’s claims of misrepresentations did not overcome the presumption of regularity and justify inclusion in the administrative record as extra-record evidence, and that DOE’s approval was not arbitrary and capricious. Citizens for Alternatives to Radioactive Dumping v. U.S. Dept. of Energy, 485 F.3d 1091 (10th Cir. 2007).

The EPA’s Inspector General reported that the agency did not treat low-income and minority residents living near the Ringwood, New Jersey paint-sludge dump unfairly, although it did find that communication could be improved. The Ringwood site was added to EPA’s Superfund list in 2006 after having been deleted in 1994. For years, Ford Motor Company dumped chemical waste at the site from its Mahwah, New Jersey plant, which was closed in 1980. EPA declared the site clean 10 years ago after a $2.5 million, seven-year cleanup effort by Ford. The report found that Ringwood residents believe that EPA has failed to clean up the site and that residents perceived EPA’s relationship with Ford to be inappropriate. However, EPA officials said that staff interacted with Ford according to all of the agency’s regulations and that EPA’s relationship with Ford at Ringwood is typical for a Superfund site of this complexity. EPA OIG, “Environmental Justice Concerns and Communication Problems Complicated Cleaning Up Ringwood Mines/Landfill Site,” Report No. 2007-P-00016 (April 2, 2007).

The Nuclear Regulatory Commission (NRC) determined that five environmental and community organizations had standing to intervene and challenge Southern Nuclear Operating Company’s (SNC) petition for a early site permit at the Vogtle Electric Generating Plant near Waynesboro, Georgia. The petitioners alleged that SNC’s environmental report violated the National Environmental Policy Act (NEPA) because it failed to, among other things, provide a thorough analysis of the disparate environmental impacts of the project on the minority and low-income communities residing in close proximity to the site. In particular, the petitioners alleged that the environmental report failed to take into account the fact that these communities already have a higher than normal incidence of cancer, the effects of eating the chemically-laden fish that many of the residents catch, and the impacts on these communities during a radiological emergency and evacuation. However, NRC determined that petitioners did not provide sufficient evidence regarding the alleged existence of these adverse impacts, nor did they provide sufficient evidence that these adverse impacts disproportionately affect poor or minority communities in the vicinity of the facility. In re Southern Nuclear Operating Co., 2007 NRC LEXIS 30 (March 12, 2007).

According to a study released by Resources for the Future, a nonpartisan think tank, an EPA grant program aimed at helping communities affected by industrial pollution is failing to reach people who are most affected by such pollution. The study compared EPA Office of Environmental Justice grants to the agency’s Toxic Release Inventory between 1994 and 2005 and found most of the cash had gone to large populations with poor people and minorities but relatively low concentrations of toxic-chemical releases. The report recommends that EPA write clearer criteria for grant eligibility and re-evaluate a rule requiring that grants be delivered to all 10 EPA regions. While some regions registered reductions in toxic releases through the study period, Regions 8, 9, and 10 had increased pollution, according to the report. The EPA program delivered 90 grants of about $17,000 per year between 1994 and 2005. S. Vajjhala, “Building Community Capacity? Mapping the Scope and Impacts of the EPA Environmental Justice Small Grants Program,” Resources for the Future (April 2007).

The Federal Energy Regulatory Commission (FERC) authorized Gulf LNG Energy LLC and Gulf LNG Pipeline LLC to construct a liquefied natural gas (LNG) import terminal and a five-mile long pipeline from the terminal in Jackson County, Mississippi. In authorizing this construction, FERC noted EPA’s comment that the final environmental impact statement (FEIS) failed to fully address whether the proposed project would result in disproportionately high and adverse human and health or environmental effects on the surrounding minority and low-income populations and its recommendation that FERC analyze how the addition of the proposed project would impact the current pollution-load for these populations. However, FERC determined that the FEIS, which it prepared, analyzed this issue and determined that the proposed project would not have a disproportionately high or adverse human health or environmental effect on these communities. In re Gulf LNG Energy LLC, 2007 FERC LEXIS 277 (Feb. 16, 2007).

FERC authorized Bayou Casotte Energy LLC to site, construct, and operate a new LNG terminal in Jackson County, Mississippi. In authorizing the request, FERC discussed environmental justice issues and noted EPA’s comment that the FEIS failed to fully address whether the proposed project would result in disproportionately high and adverse human health or environmental effects on minority and low-income populations and its recommendation that FERC analyze how the addition of the proposed terminal would impact the current pollution-load for these populations. However, FERC determined that the EIS analyzed this issue and determined that the proposed terminal would not have a disproportionately high or adverse human health or environmental effect on these communities. In re Bayou Casotte Energy LLC, 2007 FERC LEXIS 283 (Feb. 16, 2007).

EPA rejected a petition it received from the Rutgers Environmental Law Clinic requesting that it object to the issuance of a state operating permit pursuant to Title V of the Clean Air Act that was issued by the New Jersey Department of Environmental Protection (NJDEP) to Marcal Paper Mills, Inc. located in Elmwood Park, New Jersey in December 2005. The company releases 66.5 tons of volatile organic compounds per year to make toilet paper, paper towels and napkins. The petition alleged that NJDEP did not adequately address the environmental justice issues raised, specifically that the company was in an area which was primarily low-income and minority with a disproportionately high percentage of residents with asthma. In rejecting the petition, EPA pointed out that environmental justice issues can be raised in various actions carried out under the Clean Air Act, such as when EPA or a delegated state issues a New Source Review (NSR) permit. However, unlike NSR permits, Title V does not impose new substantive emission control requirements. Title V also includes public participation provisions as well as monitoring, compliance certification and reporting obligations. Because petitioners failed to demonstrate that the company’s Title V permit did not identify and comply with the applicable Clean Air Act requirements, EPA denied the petition. In re Marcal Paper Mills, Inc., Petition No. II-2006-01, 2006 EPA CAA Title V LEXIS 8 (Nov. 30, 2006).

A federal appellate court held that two African-American residents of Darby Township, Pennsylvania have standing to pursue part of their complaint that township zoning officials violated their constitutional rights by approving a zoning variance allowing construction of an 800-unit self-storage facility in their residential area, but only on the grounds that the zoning decision affected their property values, not political power. The residents contended that township officials intentionally allowed the zoning variance as part of a plan to lower the property values and discourage residential development, perpetuating the white majority and decreasing the political power of African-Americans. The nine-acre tract had been acquired by the county redevelopment authority in 1960 as part of an urban renewal plan, but the property was later sold to private parties. No work was done on the property until 2003, when the zoning board approved the variance. The residents sued under the Fair Housing Act, which bars intentional racial discrimination. The district court granted the defendants’ motion to dismiss, holding that plaintiffs lacked standing to maintain the suit since they did not allege that they would return to the area of residential buildings were constructed on the tract. However, the appellate court reversed, holding that the plaintiffs properly alleged injuries to the property values and the neighborhood arising from approval of the variance. Taliaferro v. Darby Township Zoning Board, 458 F.3d 181 (3d Cir. 2006).

The Office of the Inspector General of EPA has found that the Agency has failed to direct enough resources to conduct environmental justice reviews. Its survey of EPA Program and Regional Offices found that 9 of the 15 offices responding had not performed environmental justice reviews as required by Executive Order 12898. Despite two memoranda from the EPA Administrator in 2001 and 2005 indicating the Agency’s commitment to EJ, the offices were not required to take any action. The Program and Regional Offices were not directed to assess whether any of their programs, policies or activities had a disproportionately high and adverse effect on EJ communities.

The report called for EPA to institute clear guidance describing what an environmental justice review is. It recommended that EPA have the offices identify which programs, policies and activities needed environmental justice reviews and establish a plan for conducting the reviews. Specific guidelines should be developed. The Agency agreed with the OIG’s recommendations. EPA OIG, “EPA Needs to Conduct Environmental Justice Reviews of Its Programs, Policies, and Activities,” Report No. 2006-P-00034 (Sept. 18, 2006).

EPA has issued requests for applications (RFA) for the Environmental Justice Collaborative Problem-Solving Cooperative Agreement (EJ CPS) and the Environmental Justice Small Grants (EJSG) programs. The EJ CPS program provides $100,000 grants to organizations to use collaborative problem solving with other stakeholders to address environmental justice issues. EJSG grant recipients receive $50,000 to assist them to develop local solutions to local environmental and/or public health issues.

No awards were issued under the programs after an announcement in February 2006 because not enough applications were received. EPA has since revised the RFA process to encourage more applicants. Applications for both programs will be accepted until midnight October 23, 2006. For more information, see www.epa.gov/environmentaljustice/index.html.

A recent study found that New York City children who lived in low socio-economic status areas had a 70 percent greater risk of asthma, independent of their own ethnicity and income level. The report from the Mt. Sinai School of Medicine concluded that prevalence of asthma was strongly correlated to attending a school in a low-income neighborhood. The rates of asthma City-wide were 13 percent, more than twice than the national hospitalization rates of 6.3 percent. But in communities consisting primarily of low-income minorities, the rate was three times the national average, or 17.9 percent. White children in those areas had higher asthma rates than whites in other communities. The study points to numerous pollution sources in the neighborhoods that could affect respiratory health, such as bus depots, truck routes, and power plants. L. Claudio, et al., “Prevalence of Childhood Asthma in Urban Communities: The Impact of Ethnicity and Income,” Mt. Sinai School of Medicine (2006).

The Louisiana Action Network (LAN) challenged the Army Corps of Engineers’ decision to issue an emergency permit to dump debris from Hurricane Katrina at a site adjacent to a Vietnamese community and a wildlife refuge. The District Court for the Eastern District of Louisiana upheld the permit. LAN claimed that there were no public hearings or opportunities to comment. The court found that the Corps had determined the cleanup of New Orleans was an emergency situation. Special procedures applied when issuing permits in emergency situations. The emergency permit was issued so that preliminary steps could be taken without waiting for the full Section 404 review; however, the Corps still planned to issue a public notice and follow the permitting process. Because the permitting process would be conducted, the court found the plaintiff was not injured. It said the ongoing permitting process “extinguishes any real harm suffered by the plaintiffs.” Louisiana Environmental Action Network v. U.S. Army Corps of Engineers, No. 06-2020, 2006 U.S. Dist. LEXIS 24344 (E.D. La. April 27, 2006).

The South Jersey Environmental Justice Alliance (SJEJA) petitioned EPA to object to a Title V permit issued in New Jersey. SJEJA claimed that the permit for G-P Gypsum Corporation did not consider environmental justice issues adequately. The wallboard manufacturing facility was located in an EJ community with a disproportionately high incidence of asthma and other lung diseases, according to the petition. EPA held that SJEJA failed to raise an issue showing non-compliance with the Clean Air Act. It noted that Title V permits do not require new emission controls, only that the recipient comply with applicable requirements. It said a Title VI action could be brought if SJEJA believed it was discriminated against, subject to the specific requirements of Title VI. In re: G-P Gypsum Corp., No. II-2005-05, 2006 EPA CAA Title V LEXIS 5 (Apr. 4, 2006).

The Sierra Club and the American Bottom Conservancy filed an objection to the Clean Air Permit issued to Onyx Environmental Services by the Illinois Environmental Protection Agency. The petitioners argued that the permit failed to address environmental justice issues, among other things. The Onyx facility was located in what the petitioners described as an environmental justice area in Sauget, Illinois, where other industrial facilities were located. The petitioners argued that EPA should have objected to the Title V permit issued to Onyx on the grounds that there was an unreasonable threat of harm that was borne disproportionately by the EJ community. EPA found no basis to object to a Title V permit due to EJ concerns. Other EJ arguments were rejected as untimely. In re: Onyx Environmental Services, No. V-2005-1, 2006 EPA CAA Title V LEXIS 4 (Feb. 1, 2006).

The California Global Warming Solutions Act of 2006 requires regulators to consider how emissions control may affect EJ communities. Cal. Health & Safety Code § 38500 ⁢et seq.&eit;. Section 38561(g) of the act requires the California Air Resources Board (CARB) to host public workshops on its carbon dioxide emission reduction plan. Some workshops must be held in communities with minority populations and/or low-income populations. CARB is charged with adopting regulations for greenhouse gas emission limits and reduction measures to achieve the maximum technologically feasible and cost-effective reductions. Under Section 38562(b)(2), CARB will ensure that the activities undertaken to comply with the regulations do not disproportionately impact low-income communities. Additionally, Section 38591(a) of the law requires CARB to establish an environmental justice advisory committee by July 1, 2007, with at least three members. The members will include people from communities in the state with the most significant exposure to air pollution, including communities with minority populations or low-income populations.

A citizens group called South Camden Citizens in Action (SCCIA) claimed that the New Jersey Department of Environmental Protection (NJDEP) discriminated against minority citizens by granting a slag grinding facility a permit. The St. Lawrence Cement Company operated the facility. According to census information, the neighborhood in which the individual plaintiffs lived had a minority population of 84.5 percent, and almost 34 percent of the residents lived below the poverty line. Numerous other industrial facilities were in the area. The slag grinding facility would emit dust, mercury, lead manganese, nitrogen oxide (NOx), carbon monoxide (CO), and volatile organic compounds into the air. The facility would also involve heavy truck traffic, with over 35,000 inbound deliveries per year, and 42,000 trucks departing per year. The truck route was planned through the residential area. SCCIA had filed a Title VI action with EPA, claiming DEP’s permit process had a disparate impact on their neighborhood due to their race. A preliminary injunction was granted, but subsequently suspended by the Third Circuit.

The SCCIA filed a second amended complaint alleging that the dust, soot, vapors, fumes, noise, and vibration caused a nuisance. The St. Lawrence facility intentionally and unreasonably interfered with the plaintiffs’ use and enjoyment of their homes, according to the complaint. The District Court of New Jersey held that the testimony of the plaintiffs and their expert failed to raise a material factual dispute. The court found that “reasonable minds could not differ that the proximate cause element of the Plaintiffs’ case has not been established.” The nuisance claim was dismissed.

The court reviewed the discrimination claims to see if plaintiffs alleged more than a disproportionate impact. The court noted that the plaintiffs’ expert testified as to the minority composition of the affected neighborhood, but could not conclude whether NJDEP intentionally discriminated against the area. The court held that the plaintiffs needed to show that NJDEP issued the permit because of the adverse effects it would cause the minority community. The plaintiffs could not show discriminatory intent by NJDEP’s waiving permit fees for projects, since St. Lawrence paid its permit application fees. Additionally, simply because NJDEP did not penalize St. Lawrence for building a lower smokestack than what it planned did not reveal intentional discrimination. The court found no evidence that NJDEP issued the permit to St. Lawrence because of the adverse effects it would have on the minority community. St. Lawrence’s summary judgment motion was granted. South Camden Citizens in Action v. New Jersey Department of Environmental Protection, No. Civ.A 01-702(FLW), 2006 wl 1097498 (D.N.J. March 31, 2006).

EPA issued its Title VI Public Involvement Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs. The guidance is intended to help entities that receive federal funding so that their permitting processes avoid Title VI pitfalls. It notes that the degree of involvement in permitting can directly affect the likelihood of subsequent discrimination complaints. The guidance is designed to enable recipients to involve the public in a meaningful way. One of the primary suggestions is to develop a public involvement plan. Another suggestion is to train staff on the permitting process and on how to engage the public, including cultural and language sensitivity training. 71 Fed. Reg. 14207 (March 21, 2006).

Petitioners before the Nuclear Regulatory Commission (NRC) argued that a permit renewal for the Palisades Nuclear Plant operating license denied environmental justice, among other issues. (Only the environmental justice issues are discussed herein.) The petitioners argued that the Michigan nuclear generating station was located in a predominantly black and low-income neighborhood. They contended that only three Indian Tribes were contacted regarding the permit renewal. They also claimed that the permit renewal failed to address how a catastrophic radiation release would unduly affect the low-income Latino agricultural workers in the area. Also, petitioners argued the lack of Spanish language emergency evacuation instructions was unacceptable.

The owner of the plant, Nuclear Management Company LLC (NMC), claimed these issues were outside the scope of its permit renewal. None of the petitioners’ claims showed a disproportionately high and adverse human health and environmental effect on minority or low-income people, said NMC. Additionally, a generic environmental impact statement covering the plant found societal and economic impacts from severe accidents were “small.” The NRC argued that while the application did not sufficiently address the adverse socio-economic impacts of a catastrophic release on Latino populations, the petitioners failed to identify a disproportional environmental impact on this population as compared to the population as a whole.

The NRC Licensing Board held that while environmental justice issues are considered in its hearings, they are reviewed only to see that impacts to minority and low-income communities are identified and considered, as in a NEPA review. The Licensing Board held that the appropriate issues were adequately considered. Other issues, such as alleged workplace harassment of blacks at the nuclear power plant, were not properly before the tribunal. The petitioner failed to raise any facts that showed impacts falling disproportionally on environmental justice communities. Also, the NRC noted that eleven tribes were contacted by NRC staff. The NRC Licensing Board held that no hearing was required on any of these issues and the proceeding was terminated. In the Matter of Nuclear Management Company, LLC, Docket No. 50-255-LR, LBP 06-10 (NRC Atomic Safety and Licensing Board Panel March 7, 2006).

A citizen challenged the issuance of a prevention of significant deterioration (PSD) permit issued by EPA for a electric generating facility located on land held in trust for an Indian tribe. The petitioner claimed that EPA failed to consider the human health or environmental effects the Diamond Wanapa Energy Center would have on “majority and minority populations.” The Environmental Appeals Board of EPA held that this issue was not preserved for review as the petitioner did not raise it during the comment period on the draft permit. Even if the issue were considered, the EAB held that the record showed EPA fully consider the human health impacts from the proposed facility. Other challenges, such as to the cumulative impacts analysis, how the air quality impacts were analyzed, or the categorization of the impact area, were denied. In re: Diamond Wanapa I., LP, PSD Permit No. R10PSD-OR-05-01; PSD App. No. 05-06; 2006 PEA App. LEXIS 12 (EPA EAB Feb. 9, 2006).

The South Jersey Environmental Justice Alliance, the New Jersey Public Interest Research Group, and South Camden Citizens in Action petitioned EPA to object to New Jersey’s issuance of a Title V Clean Air Act permit to the Camden County Energy Recovery Associates (CCERA) facility. CCERA is a municipal solid waste combustion facility that is capable of burning 350 tons of refuse per day. It is a major source of NOx, CO and SO2. The petitioners claim that NJDEP violated a federal environmental justice executive order. Under Presidential Executive Order 12898 (1994) federal agencies must make environmental justice issues part of their mission by identifying disproportionate impacts on minority and low-income populations. The petitioners claimed the Title V permitting process in this case failed to allow public participation and was a violation of those environmental justice concerns. Also, they argued that renewing a permit for a habitually violating facility in a environmental justice community violated the executive orders. EPA held that the petitioners failed to show how the Title V permit violated the Clean Air Act, and refused to object to the permit issuance. In the matter of Camden County Energy Recovery Associates Facility, Permit Activity No. BOP990001, petition No. II-2005-01, 2006 EPA CAA Title V LEXIS 2 (Jan. 20, 2006).

The North American Free Trade Agreement (NAFTA) Commission for Environmental Cooperation (CEC) issued a report regarding the risk North American children face from environmental exposure. The report, “Children’s Health and the Environment in North America,” pointed to 13 environmental indicators harming the continent’s children. Notable were both indoor and outdoor air pollution, which the report connected to the rising numbers of childhood asthma. The CEC linked economic status to environmental exposure, showing that children living in poverty are more likely to be exposed to multiple contaminants. For example, while lead paint exposure is down, lower income groups remain at a high risk of exposure. However, the report stopped short of blaming specific exposures to specific diseases, noting there was uncertainty regarding how susceptible children were to environmental risks. The 13 environmental indicators are broken into three groups in the report: asthma and respiratory disease; lead and other toxic substances; and waterborne diseases. The report is available online at www.cec.org/children. CEC Press Release (Jan. 26, 2006).

Solid waste companies challenged the New York City Department of Sanitation (DSNY) revisions of the siting rules for solid waste transfer stations. The 2004 siting rules prohibited new transfer stations – either putrescible or non-putrescible – in areas that already had a certain number of existing stations. Additionally, a buffer of at least 400 feet was required between transfer facilities and residential districts, parks, schools, hospitals and other transfer stations. Because of the rule change, the petitioning companies were told they would not get a permit to open a solid waste transfer facility.

The court refused to find the rules were arbitrary or capricious. The court noted that the new laws addressed the problem of waste station “clustering” that had been problematic with earlier rules. Other courts in 1994 and 1998 found that earlier, less restrictive rules did not satisfy a legislative mandate because they did not address the problem of waste stations near residences, schools and parks. This waste facility law was a reasonable exercise of DSNY’s police power to protect public health and welfare. The court clarified that the 2004 siting rule was not a complete ban on new transfer stations. Petitioners had also claimed that a 2004 Commercial Waste Management Study showed the new rules were irrational. The court disagreed, noting that the study reviewed the impacts only of existing stations, and did not conclude that the existing regulations were enough to address environmental effects of new stations. Jamaica Recycling Corp v. City of New York, 2006 N.Y. Slip Op. 26007, 2006 N.Y. Misc. LEXIS 50 (Sup. Ct. New York Co. Jan. 11, 2006).

An Environmental Justice Executive Order was issued by the Governor of New Mexico. The Order directs all cabinet level departments and boards and commissions to provide “meaningful opportunities” for public involvement in their decisions, recognizing the need to have public health and environmental issues presented in languages in addition to English. Those same governmental units will consider impacts to low-income communities and communities of color when making siting, permitting, compliance, enforcement, and remediation decisions. An Environmental Justice Task Force was create by the Order to serve as an advisory body. The Task Force will make recommendations for actions needed to address EJ issues. Its first report is due at the end of 2006. The Order is available online at www.governor.nm.state.nm.us/orders/2005/eo_2005_056.pdf. N.M. Exec. Ord. 2005-056 (Nov. 18, 2005).

The highest court in Pennsylvania affirmed that landfill siting applications must include a Harms/Benefits Test, analyzing whether the benefits of the project to the public clearly outweigh the known and potential environmental harms. Those harms and benefits must include social and economic factors. The plaintiff in the action was a planning to build a landfill in Clearfield County. Eagle Environmental LP (Eagle) outlined the short- and long-term harms and benefits of the project. It included things it would do to mitigate the harms. The Pennsylvania Department of Environmental Protection (DEP) agreed with Eagle that the benefits outweighed the harms, but included a statement that failing to provide for all the benefits described in the Harms/Benefits analysis would violate the permit. Eagle challenged the validity of the Harms/Benefits Test, arguing Eagle could be found in violation of the permit if the economic benefits it had outlined failed to come to pass, even if those economic benefits were outside its direct control. The court found the test was within the authority given to DEP under the Solid Waste Management Act (SWMA). The SWMA was to be “liberally construed” and the law required that DEP ensure that mitigation measures adequately protected the public health, safety and welfare. Accordingly, consideration of social and economic harms was authorized. Eagle Environmental, LP v. Commonwealth of Pennsylvania, 884 A.2d 867 (Pa. 2005).

The EPA Office of Environmental Justice is accepting applications for grants for community-based organizations. Two grant programs are available: the EJ Collaborative Problem-solving Cooperative Agreement Program (EJ CPS); and the EJ Small Grants Program. Each has different objectives, and the Agency recommends that applicants apply only for one. The EJ CPS is designed for groups that have completed the steps applicable for the EJ Small Grants Program. Those initial steps are identifying environmental and/or public health issue of concern; educate and involve the community; form multi-stakeholder partnerships; and set goals and develop problem-solving strategies. The EJ Small Grants Program provides $50,000. Groups that have completed those phases may be eligible for the 3-year $100,000 EJ CPS, which requires demonstrated partnerships, extensive EPA involvement, and a measurable link between program performance and OEJ programs. Conference calls are scheduled for Tuesdays during February and March. Applications are accepted through March 31, 2006. Information is available online at www.epa.gov/compliance/environmentaljustice/grants/index.html.

EPA has added an environmental health page to its Spanish website. The page, El medio ambiente y su salud, addresses how environmental issues affect Hispanic communities in the United States. In general the website provides Spanish translation of EPA news releases as well as outreach materials such as fact sheets of environmental health hazards. The website is available at www.epa.gov/espanol. The environmental health page is found at www.epa.gov/espanol/saludhispana/index.htm.

The California Department of Toxic Substances Control (DTSC) issued an imminent and substantial endangerment determination and order against the landowner of an abandoned chemical facility in Los Angeles. The DTSC used the EPA Environmental Justice Geographic Assessment Tool to determine that there were 6,500 people in a half-mile radius of the former plating company, which had left chromium, cadmium, cyanide and acid at the plant. The landowner was directed to cover all containers and tanks with hazardous substances and to provide a workplan for remediating the site. DTSC discovered that at least one release had occurred on site. The landowner was not fined. In re Spirito Family Trust, No. HWCA SPRD05/06 SAEO-4346, 2005 Cal. ENV LEXIS 71 (Cal. Dep’t Toxic Substances Control Oct. 7, 2005).

ARCO Terminal Services Corp. settled Clean Air Act charges with the United States, agreeing to perform an EJ project. ARCO was charged with failing to use emission control equipment to load vessels with organic liquids 294 times in a 7-year period. ARCO will pay $225,000 in addition to performing a Supplemental Environmental Project (SEP). For the SEP, ARCO will install $675,000 to reduce diesel exhaust from its cargo handling equipment. The SEP will reduce exposure of EJ communities to harmful emissions. See EPA Region IX website for details: www.epa.gov/region09/enforcement/eoy05/05air.html. 70 Fed. Reg. 61842 (Oct. 26, 2005).

Residents complained about a third landfill was planned for Madison County, Mississippi. They said the landfill disproportionately and adversely affected them, raising their environmental justice issues during an evidentiary hearing before the Mississippi Commission on Environmental Quality (MCEQ). The MCEQ determined that the siting raised “potential concerns.” However, it found that because the siting process had included “meaningful public involvement,” no significant environmental justice implications had been identified. State law did not require consideration of environmental justice, and that the most important factor in the Department’s EJ review was meaningful public involvement, which had been met. In re Amendment to Madison County Solid Waste Management Plan, No. 5058 05, 2005 Miss. ENV LEXIS 65 (Aug. 25, 2005).

A district court rejected claims that 50 years of mercury emissions from a chemical plant had injured neighboring residents. The chemical plant stopped operating in 1983. The class action suit alleged negligence, absolute and strict liability, trespass, nuisance, fraud and other claims. The so-called property class would represent all property owners within 25 kilometers of the plant. The other class, the fish class, included commercial, recreational and subsistence fishermen.

The court reviewed to see if class certification was appropriate for the property class. Three of the named plaintiffs did not have injury in fact because the court did not find the mercury levels on their property were higher-than-normal. The final of the four named plaintiffs did have elevated mercury levels, and the court found she had suffered an injury in fact. However, that plaintiff could not show that all her claims were timely. Most of the claims were blocked by a two-year statute of limitations, which began running when the plaintiff knew or should have known of the injury. The court said that date was November 16, 1998, when the plaintiff and others asked the plant to relocate their families. This start date meant the trespass claim was still timely, as that had a 6-year time limit. The court refused to find a continuing tort.

The court found that the air subclass of the property class was properly defined. The surface water and groundwater subclasses were not, and those two subclasses were denied class certification. The air subclass had numerosity, commonality, typicality, and adequacy. However, the court found common questions of law or fact did not predominated over those affecting just an individual. The common facts would establish background facts, not show liability. The court would have to determine separate statute of limitations deadlines for each plaintiff and look at the company’s alleged misrepresentations to each plaintiff. Class treatment in this action would not save time, found the court. Class certification was denied for the property class.

The court found the only named plaintiff in the fish class lacked standing, and so that class certification was also denied. LaBauve v. Olin Corp., 231 F.R.D. 632 (S.D. Ala. 2005).

Maine Initiatives has a grant program for grassroots organizations promoting social, economic and environmental justice in Maine communities. The Initiative offers $40,000 grants spread across three years based on a program's ability to improve the lives of specific Maine populations, emphasize community support, and focus on root causes, among other criteria. Only Maine-based organizations are eligible. Grant applications are due November 9, 2005. Information is available online at www.maineinitiatives.org/grants/aspx.

A new California law requires city and county general plans to consider environmental justice issues. Section 3 of Chapter 383 amends the Government Code. It requires that the Office of Planning and Research adopt advisory guidelines by the end of March 2006 to inform cities and counties how to address environmental justice matters in preparing general plans. The guidelines must also be developed in consultation with the Native American Heritage Commission to protect features and objects described in Public Resources Code. Section 4 of the Chapter requires cities and counties to consult with Native American tribes regarding preserving or mitigating impacts of places of interest described in the Public Resources Code. 2005 Cal. Stat. 383 (Sept. 29, 2005) (SB 1110).

A Rhode Island Superior Court found that the state Department of Environmental Management failed to make environmental justice reviews as required by state law. A neighborhood association from a predominantly black and Hispanic area challenged construction of public schools on a Providence, Rhode Island site it claimed was contaminated. The site was an unauthorized municipal landfill from 1950 to the mid-1970s. Tests conducted in early 1999 showed excessive levels of lead, arsenic and petroleum hydrocarbons in the soil, as well as the presence of volatile organic compounds, mercury and PCBs.

The Hartford Park Tenants Association, as well as several individual plaintiffs, claimed that DEM violated the Industrial Property Remediation and Reuse Act (IPRARA) by failing to consider environmental equity issues. DEM claimed the relevant provision, Section 5(a), applied only to agreements with bona fide prospective purchasers, a theory the court rejected. The court found that the General Assembly intended DEM to develop and implement environmental equity and public participation processes for the cleanup and remediation of contaminated sites.

The plaintiffs also argued that DEM violated IPRARA by not having any regulations or policies in place for considering environmental equity. The court said the law did not require DEM to establish such policies or procedures. On the other hand, there was no method by which to judge whether DEM had considered the issue. Notably, none of the documents filed in connection with site remediation mentioned environmental equity. The court found no credible evidence that DEM considered issues of environmental equity and held that DEM violated IPRARA.

As for public involvement, the court found that DEM had failed to ensure the City notified abutting property owners of the impending site investigation as required. Additionally, the first public hearing did not "fulfill the mandate of the statute." The first public meeting regarding the construction was not held in the neighborhood where the schools would be built. Also, public records were not kept at a local repository but were at DEM offices.

The plaintiffs claimed siting the school in the environmental justice area was an intentional act of discrimination. The court found no racial discrimination motivating the site of the school, but that the stated motive of providing a neighborhood school while under monetary constraints was legitimate. The defendants' actions did not shock the conscience or show deliberate indifference, according to the court. The court found no civil rights violation. A remedy for the environmental equity violations would be determined at a subsequent hearing. Hartford Park Tenants Association v. Rhode Island Department of Environmental Management, CA No. 99 -3748, 2005 R.I. super. LEXIS 148 (Sup. Ct. R.I., Providence Oct. 3, 2005).

Bronx Environmental Health and Justice, Inc. (Bronx EHJ) challenged the selection by the New York City Department of Environmental Protection (DEP) of a park in the Bronx for a 473,000-square foot water treatment plant. Bronx EHJ filed an Article 78 petition claiming DEP acted arbitrarily and capriciously. It faulted the air quality data, and it claimed DEP was unwilling to involve the public in the State Environmental Quality Review Act (SEQRA) process. Bronx EHJ claimed the decision to locate the plant in a section of Van Cortlandt Park adjacent to a poor minority neighborhood was discriminatory, and that a site in Westchester County was more appropriate. DEP countered that it complied with all SEQRA requirements and that it considered all potential environmental impacts of the plant. The park was the best site.

First, the court found the environmental impact statements (EISs) contained "all of the information necessary for the public to understand the potential environmental impact" of locating a plant at each of three potential sites. The court disputed the allegation that the public was not involved in the SEQRA process, noting public hearings were held in September 2003, February 2004 and March 2004. Additionally, a written comment period was held, during which several hundred comments were received. The court found the public was adequately involved in the review process.

The court found the request for an environmental justice analysis was premature as there was no requirement to complete one under SEQRA and the permit application had not yet been filed with DEC. However, DEP had completed an environmental justice analysis in its final supplemental EIS (FSEIS). The potential socioeconomic effects of the project were extensively analyzed in the DSEIS and FSEIS, according to the court.

The court denied the claim that selection of the site violated civil rights that included a "basic right to health and environment." The court found that Section 11 of Article I of the State Constitution, under which Bronx EHJ pled, did not provide any legal rights. The petition was denied. Bronx Environmental Health and Justice, Inc. v. New York City Department of Environmental Protection, N.Y.L.J., May 19, 2005, p. 20, col. 1 (Sup. Ct. Queens County).

The Sierra Club disputed a license issued by the Federal Energy Regulatory Commission allowing construction of an 800-kilowatt (kW) power plant in a United Nations Educational, Scientific, and Cultural Organization (UNESCO) site in Alaska, the Glacier Bay National Park and Preserve. Among the complaints of the Sierra Club was that the environmental impact statement (EIS) failed to consider the environmental justice impacts as required by Executive Order 12898. Certain Native Alaskan groups were allowed to hunt and fish in the Park, which was part of the National Wilderness Preservation System. The Sierra Club claimed the alienation of the land to build the power station would have a disproportionate impact on those groups.

The Federal Energy Regulatory Commission (FERC), which reviewed the Sierra Club challenge to the license, found that the EIS showed no significant impacts to subsistence use of the Park. The project would have "only minor impacts" on the char in the area, and no impact on other subsistence resources. The land exchange enacted to compensate for taking property from the Park would open up more land for the subsistence users. FERC found it "doubtful" that there would be any material impact on the Native Alaskan groups. In the matter of Gustavus Electric Co., Proj. No. 11659-003 (DERC Order Denying Rehearing March 24, 2005).

Our Children’s Earth Foundation (OCE) objected to the issuance of a Title V state operating permit for a petroleum refinery in Martinez, California. OCE filed a petition with EPA requesting the Agency to object to the permit. OCE claimed the permit failed to meet requirements under the Clean Air Act, and failed to consider environmental justice issues. OCE argued that the Bay Area Air Quality Management District failed to provide information on a timely basis, thus failing to meet public participation requirements. EPA found that any delay in providing documents did not result in a deficiency in the permit, and rejected the claim.

OCE also argued that the District’s failure to publish information about Tesoro Refining and Marketing Company’s compliance history was an environmental justice issue. EPA said that compliance with Title V requirements did not indicate whether an environmental justice claim existed. To make an environmental justice claim before EPA under these circumstances, OCE should file a complaint under Title VI of the Civil Rights Act. The District was required to comply with EPA’s Title VI regulations because it received federal funds. However, environmental justice was not a basis on which EPA could object to a state operating permit. EPA did object to the permit on some other issues, however. In the matter of Tesoro Refining and Marketing Co., 2005 EPA CAA Title V LEXIS 9 (EPA March 15, 2005).

A landfill was proposed for Chaparral, New Mexico, a residential, low-income, minority community at the Mexico border. A community group, Colonias Development Council (CDC), claimed the New Mexico Environment Department (NMED) did not consider the social impacts of another landfill on the community. CDC argued that the hearings officer did not allow testimony or cross examination regarding how the landfill would affect the quality of life in Chaparral, or the cumulative effects of multiple landfills and industrial sites in the area. There were four waste disposal facilities and three industrial sites within 60 miles of Chaparral.

NMED stated that the social impacts of living near a landfill were beyond the scope of its permit review. The New Mexico Court of Appeals held that NMED was not required to consider social impacts of solid waste permitting. The Supreme Court disagreed, finding that the legislature in the state Solid Waste Act did not limit the public hearings or the NMED review to technical considerations. The goal was to involve the public to the fullest extent possible, and to halt testimony regarding social impacts would have a chilling effect on public input. The court said that the hearing officer "must listen to concerns about adverse impacts on social well-being and quality of life."

The court also considered CDC’s claims of cumulative impacts. This issue was considered de novo. The court found that NMED had the obligation to consider the cumulative effect of large-scale garbage dumps and industrial sites on a single community. NMED was charged with protecting public health, safety and welfare.

Ultimately, the court found NMED did not respond to the community concerns raised at the hearing. While NMED imposes additional conditions on the landfill permit, it did not state its reasoning for granting the permit in "the face of so much public testimony against it." The court ordered NMED to have a limited public hearing to allow comment and cross examination regarding the cumulative impacts of allowing the landfill. Colonias Development Council v. Rhino Environmental Services, Inc., Docket No. 28337, 117 P.3d 939 (N.M. 2005).

The City of Jacksonville has agreed to pay $25 million to settle claims that it exposed predominantly minority neighborhoods to toxic incinerator ash. The agreement anticipates another $50 million in settlement proceeds from the City’s former insurers. Defendant Waste Management, Inc. did not settle. According to the suit, Jacksonville had seven incinerator sites for burning municipal waste - a practice that ended in the 1960s. The incinerator ash purportedly exposed 4,500 residents, mostly African-Americans, to lead, arsenic, dioxins and PCBs. Those chemicals were found in the air, soil, groundwater, and surface water at sites where the incinerator ash was dumped. The agreement requires the City to relocate some residents in neighborhoods near one contaminated site and to replace contaminated soil at four sites. Daily Envt. Rep. (BNA), p. A-2 (Sept. 6, 2005).

EPA has renewed the charter of the National Environmental Justice Advisory Council (NEJAC) for a one-year period. The council has 26 members from community groups, businesses, federal, state, local and tribal governments, and environmental groups. According to EPA, the group is designed to provide independent advice and recommendations to the Agency on environmental justice matters. The group has not met since April 2004. 70 Fed. Reg. 53359 (Sept. 8, 2005).

Seventy-five members of Congress criticized EPA's five-year plan to establish environmental justice priorities, finding the plan disregards race as an environmental justice consideration and fails to provide the tools necessary to identify EJ communities. The letter was sent to EPA Administrator Stephen Johnson on July 21, 2005, in response to EPA's draft "Environmental Justice Strategic Plan for 2006-2011," which was issued June 22, 2005. (See below for the draft Strategic Plan.) The Congressional group also criticized the plan for establishing a comparative risk scheme to be determined at the national level, rather than locally. According to the legislators, the strategic plan disregards key criticisms of existing efforts by EPA brought by a recent Inspector General report. A copy of the letter is available online at http://www.alceehastings.house.gov/news/press_releases/PressRelease.aspx?id=110

The Government Accountability Office (GAO) reviewed how EPA considered environmental justice when developing clean air rules and found the Agency came up short. GAO looked at the rulemaking for the gasoline rule (to reduce sulfur in gasoline and to increase fuel efficiency - 2000), the diesel rule (to reduce sulfur in diesel, to reduce emissions from new heavy-duty diesel engines - 2001), and the ozone implementation rule (to implement a new ozone standard - 2004). According to GAO, EPA gave "little attention" to environmental justice when developing the three recent rules. From initial studies that flagged key issues but left out environmental justice, to publishing the rules in final form and not mentioning environmental justice for two of the rules, EPA was not attentive to environmental justice as required by Exec. Ord. 12898. GAO blamed a lack of guidance and training for workgroup members for the lack of focus.

For the gasoline rule, EPA did not publish its information that potentially harmful air emissions would occur in 26 of 86 counties with refineries affected by the rule. When refineries commented that environmental justice issues could delay their permits, EPA stated that permits would not be delayed by such issues. The portions of the ozone rule that prompted comments concerning environmental justice were left out of the final rule. A copy of the report, "Environmental Justice: EPA Should Devote More Attention to Environmental Justice When Developing Clean Air Rules," GAO-05-289 (July 25, 2005), is available online at www.gao.gov/new.items/d05289.pdf.

A New York City court held that a request for an environmental justice analysis was premature in the case of siting a water treatment plant in a park in the Bronx. The plaintiff community group argued that the project was placed in a minority neighborhood. According to the court, New York environmental law required an environmental justice review only when an applicant is seeking a permit from the State Department of Environmental Conservation (DEC). While DEC would require a review, the permit application had not been filed yet. State environmental law did not require an EJ review as part of an environmental assessment. The court noted that the New York City Department of Environmental Protection (DEP) had completed an environmental justice analysis in its FSEIS in anticipation of its permit application. Because DEP was not required to prepare that EJ study, the court held judicial review of the study was premature.

Additionally, the court found the potential socioeconomic effects of the project were extensively analyzed in the DSEIS and FSEIS. The plaintiff claimed that DEP did not involve the public in the environmental review process, saying DEP held only one public meeting at which no question and answer session was held, due in part to disruptions by some attendees. The court disputed the allegation, noting public hearings were held in September 2003, February 2004 and March 2004. Additionally a written comment period was held, during which several hundred comments were received. The court found the public was adequately involved in the review process. Bronx Environmental Health and Justice, Inc. v. New York City Department of Environmental Protection, N.Y.L.J., May 19, 2005, p. 20, col. 1 (Sup. Ct. Queens Co.).

EPA issued the draft Framework for Integrating Environmental Justice and the draft Environmental Justice Strategic Plan Outline. The documents are the foundation for EPA's Environmental Justice Strategic Plan for 2006-2011. The Framework is a six-page document that describes strategic plan definitions, time frame and goals for the EJ Strategic Plan, but identifies only the specific environmental goals from the 2003-2008 plan: clean air and global climate change, clean water, land preservation and restoration, healthy communities and ecosystems, and compliance and environmental stewardship. It hopes to link the action plans from the regional offices with the plans of the programmatic offices. The draft Strategic Plan Outline states its goal of incorporating specific EJ targets into EPA's overall strategic plan. It lists twelve priorities that commenters are asked to rank. Those priorities are: 1) reduce asthma attacks; 2) provide safe fish; 3) provide safe drinking water; 4) reduce exposure to waterborne pathogens; 5) revitalize brownfields; 6) reduce childhood lead poisoning; 7) reduce exposure to mercury; 8) reduce exposure to pesticides; 9) reduce exposure to air toxics; 10) ensure compliance; 11) increase environmental health along the borders; and 12) have healthy schools. The two draft documents are available online at: www.epa.gov/compliance/resources/publications/data/planning/strategicplan/ej/index.html. 70 Fed. Reg. 36167 (June 22, 2005).

A community group in a predominantly white area of Dallas sued the Dallas Housing Authority (DHA) to enjoin construction of public housing in its neighborhood. The site was chosen following a 1987 consent decree where the DHA was accused by African-American plaintiffs of continuing racial segregation with its housing practices. The consent decree required DHA to site public housing in predominantly white areas to remedy past segregation. The site at issue, the Hillcrest site, was purchased following this order. The decree was reversed in 1999 by the Fifth Circuit because it was not narrowly tailored to ameliorate segregative policies. Acquisition of housing sites using non-racial criteria were still allowed, however, and DHA pursued building on the Hillcrest site.

The community group argued the decision to put public housing in their neighborhood was racially-motivated and violated their equal protection rights under the Fourteenth Amendment. The federal district court held that DHA had found the Hillcrest site was the best site in the entire city and that its selection was not based on racial criteria. The Fifth Circuit held the community group failed to show the district court's conclusions were wrong. There was no constitutional violation because the facts showed the Hillcrest site was not selected on the basis of the racial composition of the area. The lower court's decision was affirmed. Walker v. City of Mesquite, 402 F.3d 532 (5th Cir. 2005).

The EPA Office of Civil Rights issued draft guidance for recipients who administer environmental permitting programs to enhance public participation. According to EPA, the Draft Final Title VI Public Involvement Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs (Recipient Guidance) significantly revises a previous draft issued in June 2000. It is designed to help recipients of EPA assistance implement environmental permitting programs with more public involvement to reduce issues related to Title VI. The document is guidance only. It is based in part on a 1999 study that found that Title VI cases against brownfield redevelopment were less likely where the process provided "early and meaningful public involvement, and create[d] a benefit for the local community." According to the Recipient Guidance, recipients should focus on "early, inclusive and meaningful public involvement throughout the entire permitting process" to reduce the likelihood of complaints alleging discrimination. 70 Fed. Reg. 10625, 10628 (March 4, 2005).

The guidance provides a list of information for an effective Public Involvement Plan. A discussion of training tips, soliciting community input, encouraging stakeholder involvement, and using alternative dispute resolution techniques are included. The comment period for the guidance closed April 3, 2005. 70 Fed. Reg. 10625 (March 4, 2005).

A New York court rejected claims that environmental reviews for a water plant failed to consider environmental justice issues. A community group in the Bronx, New York opposed the construction of a water filtration plant in the third-largest park in New York City, Van Cortlandt Park. The water plant was part of a federal settlement where the City agreed to construct the filtration system to avoid millions of dollars in fines under the Clean Water Act. Friends of Van Cortlandt Park argued that the City had failed to take a hard look at the environmental effects as required under New York's State Environmental Quality Review Act (SEQRA). The group also argued the City failed to conduct an environmental justice analysis to identify and evaluate any potential adverse impacts of the project on minority communities in the area. The court ruled that an environmental justice review was not legally required, but that the City, in fact, had made such a review in the final EIS. The challenge was dismissed. Friends of Van Cortlandt Park v. City of New York, Index No. 114036/04 (Sup. Ct. New York Co. Dec. 3, 2004). [Note: Litigation challenging this project on environmental justice grounds is currently pending in New York State Supreme Court, Queens County.]

The New York State Department of Environmental Conservation (DEC) created two environmental justice work groups to help DEC develop and incorporate environmental justice information into its permit review process. The Disproportionate Adverse Environmental Impact Work Group report summarizes six methodologies for assessing adverse environmental impacts, makes recommendations for permit-specific analyses, and lists additional resources needed to develop a disproportionate adverse environmental impact analysis. The work group could not decide on one methodology for assessing adverse environmental impacts. That report is available online at www.dec.state.ny.us/website/ej/daeireport.pdf. The second work group, the Health Outcome Data Work Group was created in conjunction with the New York State Department of Health (DOH). Its report identifies reliable sources of existing human health data and recommends means to incorporate that data into the environmental review process. That report is available online at www.dec.state.ny.us/website/ej/hodreport. Comments were accepted through March 15, 2005. N.Y.S. Environmental Notice Bulletin (Dec. 15, 2004).

A federal court held that there was no intentional discrimination by the City of Dallas in allowing illegal dumping at a landfill in an African-American community. The District Court for the Northern District of Texas found that plaintiffs failed to prove an official policy permitted the dumping, and therefore, failed to establish the "official action element of their § 1983 claim." The court found the government knew of the illegal dump near an African-American residential area at least by 1982. The City had acted for years to stop the practice, albeit ineffectually. It obtained a judgment against the illegal dump in 1989 but failed to enforce it. However, the court refused to categorize the official lassitude as a policy allowing the illegal dumping. The court also concluded that there was no intent to discriminate based on the same reasoning. While the government may have shown "gross negligence" in failing to stop the illegal dumping near a minority neighborhood, and its "failure to stop the illegal dumping… had a disproportionate impact on African-Americans," there was no intent to discriminate. The court said it was "bewildering" that the City was unable to coordinate its departments to act in the best interest of its citizens, but the court did not find the City acted differently toward this community than toward others. (For the decision rejecting the City's motion for summary judgment, see Court Finds Racial Discrimination Could Have Motivated Landfill, below.) Cox v. City of Dallas, 2004 U.S. Dist. LEXIS 18968 (N.D. Tex. Sept. 22, 2004).

The parents and the school district in Lucero v. Detroit Public Schools reached a settlement and dismissed the case claiming disparate impacts by building a school on an industrial site for largely minority students. The settlement establishes a safety committee to check on the integrity of the engineering cap underneath the school and playground. The Detroit Public Schools (DPS) agreed to keep easily accessible records of maintenance and testing of the barrier, and to keep those records in Spanish too. The agreement set up a system for parents to seek to enforce compliance with the settlement, and created a protocol for making any repairs to the barrier. (Summaries of previous Lucero decisions are available below.) Lucero v. Detroit Public Schools, Case No. 01-CV-72792-DT (E.D. Mich. Oct. 7, 2004).

The District Court for the Eastern District of Michigan revisited its decision on whether § 1983 could enforce a private right of action granted under Title VI regulations. (See, "Court Refuses to Enjoin Opening of New School…" below, for the earlier decision and the facts of this case.) The Detroit Public Schools (DPS) had brought a motion to dismiss arguing the 2001 decision of the court was based on the holding in South Camden Citizens in Action v. New Jersey Dept. of Environmental Protection, 145 F.Supp.2d 505 (D.N.J. 2001), which had since been reversed by the Third Circuit. The Eastern District said its earlier decision was not premised entirely upon South Camden and since the basis for its decision was sound, it rejected defendant's contention that § 1983 did not form a basis for suit. The court also found the plaintiffs had a Fourteenth Amendment right to "personal bodily integrity." Because the students were compelled to attend school, and toxic chemicals had been discovered where their school was built, the court found plaintiffs' allegations sufficiently alleged a constitutional claim. Lucero v. Detroit Public Schools, Case No. 01-CV-72792-DT (E.D. Mich. Sept. 30, 2003).

California passed a law requiring state agencies to provide outreach to disadvantaged communities to promote access to grant information under the Water Security, Clean Drinking Water, Coastal and Beach Protection Act of 2002. The new legislation directs "outreach and technical assistance to communities throughout the state" and "to the maximum extent feasible" to disadvantaged communities. The Water Security Act authorized $3.4 billion in bonds to help water quality issues statewide. 2004 Cal. Stats. 716.

The Federal Motor Carrier Safety Administration incorporated environmental justice issues into its NEPA implementing procedures. Under the procedures, a categorical exclusion may not be used where the proposed action has a reasonably disproportionate impact on minority or low-income population. A "reasonably disproportionate" effect is described as being "high and adverse." The procedures incorporate NEPA and Exec. Ord. 12898. 69 Fed. Reg. 9680 at 9688-89 (March 1, 2004).

The Sixth Circuit held that school discrimination cases and affirmative action cases did not require government contractors to remedy past radioactive and toxic contamination in a segregated community. According to the court, government contractors did not have "to remedy past discrimination. That is, contractors have no affirmative duty to eliminate current effects of past discrimination by government entities."

Suit was based on a 2000 final report by the Oak Ridge Health Agreement Steering Panel (ORHASP) showing the health effects of radioactive and other toxic substances from the Oak Ridge nuclear weapons facility in Tennessee. Plaintiffs from the Scarboro community claimed they were harmed more because Scarboro was built for black employees at Oak Ridge and was closer to the site of contamination. The Scarboro plaintiffs claim their proximity made them more vulnerable to ongoing pollution in violation of their civil rights. The suit was dismissed for failing to file in a timely fashion. The Tennessee one-year statute of limitations had tolled well before the ORHASP report, and plaintiffs should have been aware of a potential personal injury claim in 1998 or 1999 when the preliminary reports were available. Ball v. Union Carbide Corp., 375 F.3d 554 (6th Cir. 2004).

Sullivan County applied for a state permit to expand its landfill in the Village of Monticello, New York. The landfill's existing permits would have to be modified, including its solid waste management facility permit, the State Pollutant Discharge Elimination System (SPDES) permit, and the Title V air permit. The area within a one-mile radius of the project was designated an Environmental Justice (EJ) Area by the New York State Department of Environmental Conservation (DEC) because a substantial percentage of the area's population was low-income. Low-income was defined as income less than the poverty threshold. DEC directed Sullivan County to develop a public participation plan to involve the EJ community, but challengers to the permit claimed the county made no meaningful outreach efforts. Following implementation in March 2003 of a DEC EJ policy, the county submitted a revised public participation plan.

The ALJ found DEC had complied with the state EJ policy by making efforts to reach the EJ community. The challengers argued that federal EJ policy was implicated because the county received federal grant money. They claimed the landfill would have disparate impacts on low-income and minority communities. The ALJ said because the landfill did not require a Prevention of Significant Deterioration (PSD) permit, the project was not subject to federal environmental justice mandates. In the Matter of County Landfill in the Village of Monticello, 2004 wl 1701672 (DEC ALJ July 20, 2004).

The New York City Department of Sanitation (DOS) sought a permit for a yard waste composting facility to be built in a park in Brooklyn. The composting facility would receive 15,000 tons per year of yard waste, mostly from residences. The composting area would be located on what was an ash landfill, and the land designated for the project was not developed or used as a park.

A neighborhood organization argued the area surrounding the proposed facility was an environmental justice community and that several environmental justice concerns were ignored in the permitting process. The group claimed the facility was moved from its current location in a relatively affluent community to the proposed site without sufficient notice. Reducing the area's parkland was part of a historic pattern of destroying parks in the community, according to the group. While the state EJ policy took effect years after the DOS application, the ALJ held it was relevant to the instant project. The ALJ found the hearing notice and distribution exceeded the minimum requirements under the policy. The ALJ said the Commissioner would consider the cumulative impact on all resources of the proposed project under New York State Environmental Conservation Law § 3-0301(1)(b), but that any EJ review under the State Environmental Quality Review Act (SEQRA) ended with the negative declaration. No hearing on the issue of environmental justice was required. In the matter of Spring Creek Yard Waste Composting Facility, DEC Application No. 2-6105-00666/00001 (DEC ALJ August 30, 2004).

The Nuclear Regulatory Commission (NRC) published its final policy statement on the treatment of environmental justice matters in NRC regulatory and licensing actions. (See below for the draft statement.) In addition to twenty-nine comments, 700 post cards were received expressing opposition to the policy. According to the policy, NRC will analyze disproportionately high and adverse impacts as part of its NEPA review. As required by NEPA, the Commission will look at "the socioeconomic impacts that have a nexus to the physical environment." NRC states it is committed to the general goals of Executive Order 12898, but that it would "strive to meet those goals through its normal and traditional NEPA review process." NRC said this position is consistent with its review in Louisiana Energy Services (Clairborne Enrichment Center) CLI-98-3, 47 NRC 77 (1998) that E.O. 12898 did not establish any new rights or remedies. The NRC Chairman in 1994 had issued a statement that NRC would follow the Order, but the Commission clarified its position that "EJ issues are addressed in the context of the agency's NEPA responsibilities" and that the Order "neither expanded nor limited the scope of the agency's NEPA responsibilities."

Critics of the new policy argued it will limit NRC's consideration of EJ issues and narrow the scope of E.O. 12898, or that it will undermine the goals and intent of the Order. The agency responded that the Commission was not required to follow the EO, but that it agreed with its general goals. A specific criticism was that the policy would not address cumulative impacts, but the Commission said those impacts are considered when preparing an environmental impact statement. Concerns that the new policy would limit public participation were countered by the statement that "[t]he NRC usually holds at least one public meeting in the vicinity of the proposed action involving an EIS." NRC said the scoping process in its regulations were consistent with the E.O. guidelines. The policy does not require an EJ review where an environmental assessment (EA) with a Finding of No Significant Impact (FONSI) is expected. The Commission said the policy did not "eliminate the possibility of an EJ review," but it will conduct a review where "the unique characteristics of low-income or minority communities" mean a "FONSI may not be appropriate." 69 Fed. Reg. 52040 (Aug. 24, 2004).

EPA issued a proposed policy on Guidance to EPA Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons. The policy is in response to Executive Order 13166 (Aug. 11, 2000) entitled "Improving Access to Services for Persons with Limited English Proficiency." It is directed at how the Agency assists Limited English Proficient Persons (LEPP) without unduly burdening its fundamental mission. According to DOJ, federal agencies must identify steps that recipients of federal financial aid can take to avoid administering their programs in a way that results in discrimination. Failure to ensure that LEPP can effectively participate in federal programs may violate Title VI of the Civil Rights Act of 1964. (69 Fed. Reg. 35602, 35604 (June 25, 2004).)

The starting point for the EPA program is for federal-aid recipients to evaluate four factors: 1) The number of proportion of LEPP eligible or likely to be encountered; 2) the frequency with which LEPP come in contact with the program; 3) the nature and importance of the program or service to people's lives; and 4) the resources available and costs to the recipient. EPA seeks to balance meaningful access by LEPP to critical services without unduly burdening small entities. Different language assistance services to be considered are the availability and competency of interpreters, hiring bilingual staff or staff interpreters, using telephone interpreter lines, and choosing which documents to be translated. The policy took effect June 25, 2004. 69 Fed. Reg. 35602 (June 25, 2004).

Plaintiffs, including several environmental groups and an environmental justice committee, brought suit against the Army Corps of Engineers claiming its flood control plans for the Trinity River in Dallas, Texas, did not comply with NEPA. An initial decision from the district court agreed that the Corps had failed to consider cumulative impacts of foreseeable future projects on the river. (Texas Committee on Natural Resources v. Van Winkle, 197 F.Supp.2d 586 (N.D. Tex. 2002). An injunction was imposed. The Corps prepared a supplemental EIS (SEIS) that the plaintiffs challenged, arguing the document failed to establish an accurate baseline condition against which the future projects would be measured. The district court found that "defendants properly established the baseline conditions in the SEIS." The court rejected the plaintiffs' other arguments and dissolved the injunction. Texas Committee on Natural Resources v. Van Winkle, 2004 wl 980392 (N.D. Tex. May 5, 2004).

A county and an environmental group teamed to enjoin the Department of Navy from constructing a landing field for Navy aircraft in Washington County, North Carolina. The plaintiffs alleged the EIS failed to fulfill its environmental justice requirements under the Administrative Procedure Act (APA). The decision does not describe any environmental justice concerns, however; it focuses on the EIS's failure to consider the impacts on the 100,000 birds at a nearby National Wildlife Refuge. The court said the evidence presented by plaintiffs suggested the Navy "may have inappropriately minimized the environmental impacts" of the project. In spite of a technical finding that the airfield would pose a "severe hazard advisory for bird strikes for 50 percent of the year" the Navy described the impact as minor and capable of being mitigated. The court balanced the harms between the parties and found it weighed in favor of the plaintiffs. An injunction was issued. Washington County v. U.S. Department of the Navy, 2004 wl 189448 (E.D.N.C. April 20, 2004).

Several citizens groups joined suit against the Federal Highway Administration (FHWA) arguing the agency violated NEPA in approving the FEIS for the Chittenden County Circumferential Highway (CCCH) near Burlington, Vermont. Among their complaints was that the FEIS did not adequately consider the environmental justice impacts on low-income and minority communities, Burlington's Old North End neighborhood in particular. Specifically, the plaintiffs contended the document showed the CCCH would create fewer jobs in urban areas that are accessible via public bus compared to outlying areas without bus transportation. Defendant countered that E.O. 12898 did not confer a private right of action. The court rejected defendant's theory noting that an environmental justice analysis was included in the FHWA environmental review, and that analysis was subject to review under the APA.

The court described the plaintiffs' argument that the highway disproportionately affected the poor and minorities as "unconvincing." It compared the projected number of new employees if CCCH were built to the no-build alternative. The court said the difference would be a 0.63 percent reduction, without delineating whether that impact would be the same for the environmental justice communities. Accordingly, the court said "it was not unreasonable" for the FHWA to decide that the proposed highway would not have a significant adverse employment effect on poor and minority neighborhoods. Therefore, the project complied with EO 12898. The document failed in other ways and the court issued an injunction until the NEPA requirements were met. Senville v. Peters, 327 F. Supp. 2d 335 (D. Vt. 2004).

Waste Management of Ohio, Inc. sought to construct a new solid waste transfer station in what was described in the opinion as a "highly industrialized part of Cincinnati." The nearest residence to the facility was within approximately 2000 feet. During the permitting process the Cincinnati Board of Health (BOH) received comments regarding environmental justice issues, notably that the proposed station would have an adverse effect on traffic and air pollution. Numerous other issues were raised. The BOH denied Waste Management a license and Waste management appealed. The Ohio Environmental Review Appeals Commission (ERAC) reviewed the case. It held that because Ohio had no specific environmental justice law, "environmental justice concerns could not form a basis for a lawful denial of a license for a transfer station." Evidence relative to EJ issues was excluded. ERAC found the denial of the license was unlawful and unreasonable. Waste Management of Ohio, Inc. v. Bd. of Health of City of Cincinnati, 2004 Ohio ENV LEXIS 3 (Ohio Envtl. Rev. App. Comm'n March 25, 2004).

A sand and gravel mine was operated as a non-conforming use in a residential area of Dallas that was predominantly African-American. The mining operation accepted solid waste as fill, in contravention of its permit. The community complained repeatedly and the owner of the mine was fined, but the City allowed the operation to continue. Eventually the City sued the owner and won but never enforced the judgment that would shut down the operation. The City gave a new certificate of occupancy to a new owner without ever inspecting the site. The plaintiffs sued the City alleging violations of their civil rights.

The District Court for the Eastern District of Texas found the history of the site allowed "a reasonable trier of fact to find racially discriminatory intent" in the City's failure to close the dump. The court also found a genuine issue of fact existed as to whether the City had a legitimate nondiscriminatory reason for its behavior. The court refused to dismiss the claims brought under 42 U.S.C. § 1983 and 42 U.S.C. § 1981. The claims brought under various housing acts were dismissed as all the plaintiffs were homeowners and the asserted laws only protected those seeking to own or rent. Cox v. City of Dallas, No. Civ. A. 398CV1763BH, 2004 WL 370242 (N.D. Tex. Feb. 24, 2004).

The Office of Inspector General of EPA (OIG) issued a report declaring the Agency "has not fully implemented Executive Order 12898 nor consistently integrated environmental justice into its day-to-day operations." It pointed to an early memorandum by former EPA Administrator Christine Todd Whitman as an example of the Agency's misdirection. The memo defined environmental justice as "the fair treatment of people of all races, cultures, and incomes." Memorandum of Administrator Whitman, "EPA's Commitment to Environmental Justice" (August 9, 2001) (emphasis in original). The OIG said the Environmental Justice initiative should commit to minority and low-income populations as targeted by the Executive Order. The Agency was criticized for failing to establish any "definitions, criteria, or standards" that would promote uniform efforts in enforcing environmental justice. For example, the Agency has not defined what makes a community minority or low-income, nor has it defined disproportionate, both of which are required by section 1-101 of the Executive Order. The report found different EPA Regions had different criteria for finding EJ communities. To determine income levels, for example, five regions used a variation of the federal poverty level. Five regions compared an area's low-income percentage with the State average. One region multiplied the state average by 1.2 to find the low-income threshold. The OIG took protocols for three regions and applied them to the same data to demonstrate the effect of lacking national standards. A city consisting of 167 census block groups was used. The results showed potential EJ communities numbering from 68 (Region 5) to 112 (Region 6), a difference affecting over 40,000 people.

EPA responded to the OIG report stating that its August 9, 2001 memo was sufficient. It denied that EO 12898 required the Agency to identify affected communities or define disproportionately impacted. The Agency said the Order required the Agency to conduct internal reviews of its programs, not to establish national standards. OIG Evaluation Report, "EPA Needs to Consistently Implement the Intent of the Executive Order on Environmental Justice" (March 1, 2004), www.epa.gov/oigearth/reports/2004/
20040301-2004-P-00007.pdf

A citizens group, Coliseum Square Association, Inc. (Coliseum Square), moved for attorneys' fees against the Department of Housing and Urban Development (HUD). At issue was a project in New Orleans that would convert a public housing project into a mixed-use development. An earlier decision described the environmental justice issues brought against HUD. See "Re-Opened NEPA Review Was Unripe for Judicial Review". After Coliseum Square filed suit against HUD and others, HUD reopened its environmental review under the National Environmental Policy Act (NEPA). It re-examined the environmental impacts of the project, including noise, drainage, traffic, and environmental justice issues, and issued another environmental assessment - finding of no significant impact (EA-FONSI).

Coliseum Square sued for attorneys' fees but the District Court for the Eastern District of Louisiana denied the motion. The court held that the Supreme Court case of Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep't of Health and Human Res., 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001), rejected awarding attorneys' fees when a party had been only a catalyst in causing change. Because HUD undertook revisions to its initial EA-FONSI by itself, the Eastern District held the action lacked a judicial imprimatur on the change that would make Coliseum Square a prevailing party. Coliseum Square Association, Inc. v. Martinez, No. Civ. A. 02-2207, 2004 WL 551217 (E.D. La. March 17, 2004).

The Army Corps of Engineers (Corps) planned to expand a lock in the Inner Harbor Navigational Canal in New Orleans. The project would increase the size of the lock over three-fold and would involve dredging. Several environmental and civic groups, including the Gulf Restoration Network, which is described as a "regional coalition of environmental and social justice groups," brought suit alleging violations of NEPA and the Resource Conservation and Recovery Act (RCRA). They claimed the sediment in the canal exceeded standards for industrial sites and dredging would release those contaminates into Lake Pontchartrain and surrounding communities. The Corps moved to dismiss alleging the plaintiffs lacked standing. The District Court for the Eastern District of Louisiana found the plaintiffs had standing, in part because they were persons "for whom the values of the area will be lessened by the challenged activity."

The court rejected the Corps' motion to dismiss the RCRA claim. The Corps