Environmental Justice for All

Jerome Balder

Everyone wants environmental justice. Some have it, some don’t. If your residential neighborhood is free from unwanted facilities and factories that belch noxious, hazardous and toxic pollutants into the environment, you have it. If your community is loaded with such pollution- releasing facilities, you don’t have it.

Based on innumerable research projects over the past 20 years, communities that have environmental justice are mostly white, middle class and have good health; communities that don’t have environmental justice are mostly African-American, low income and have poor health.

For more than 20 years, minority communities across the United States have been struggling to attain environmental justice through state and federal administrative procedures and through state and federal courts. Yet, in 20 years, no state permitting agency has ever been found to have violated civil rights law for approving permits in minority areas.

The first attempt of African-Americans to use the U.S. Constitution 14th Amendment (42 U.S.C. § 1983), to stop the proliferation of waste landfills in their neighborhood, was brought in Texas, Bean v. SW. Waste Management, 482 F. Supp. 673, 681 (S.D. Texas 1979). Though the court said it would not have granted the waste permit, nevertheless, it was obliged to deny plaintiff’s Motion for an injunction because plaintiff could not prove intentional discrimination.

After a few more environmental justice cases foundered because plaintiffs could not prove that the environmental discrimination was intentional, the use of constitutional law to attain environmental justice was abandoned.

Minority communities, thereafter, attempted to find environmental justice through the EPA’s Office of Civil Rights ("OCR"). The Civil Rights Act of 1964, in Title VI, 42 U.S.C. § 2000d, prohibits recipients of federal financial assistance (such as state departments of environmental protection) from discriminating against persons on the grounds of race, color or national origin. It also authorizes federal agencies, such as EPA, to promulgate regulations for enforcing Title VI, see 40 C.F.R. Part 7, and unlike 42 U.S.C. § 1983, it does not require proof of intent to discriminate if plaintiffs can demonstrate that the state action had the effect of creating an adverse disparate impact on a minority population.

Though EPA has accepted more than 60 citizen complaints for investigation of civil rights violations; in its entire history, the EPA has adjudicated only one. (Select Steel-1998). The EPA ruled in Select Steel that the Michigan Department of Environmental Quality had not discriminated, but the community was the ultimate victor because Select Steel decided to build elsewhere. EPA’s record of just one adjudication in its entire history suggested to environmental justice advocates that another means be found to use the EPA’s regulation in conjunction with private enforcement. Such an opportunity arose in 1996 in the case of Chester Residents v. Seif (Pa. DEP). In that Title VI action, an African-American, low income, poor health community used the EPA’s civil rights regulations to attempt to stop the construction of yet another (a fifth) waste disposal facility in their small community. Though the district court ruled that there was no private right to enforce the EPA regulations, 944 F. Supp. 413 (1996), the Court of Appeals reversed, 132 F3d 925 (1997). The Court of Appeals decision represented a qualitative change in the legal struggle for environmental justice. However, the victory was short-lived when the U.S. Supreme Court declared the case moot because the permittee gave up his permit to build. Another community victory.

The right of private enforcement of Title VI regulations is presently under review by the U.S. Supreme Court in Alexander v. Sandoval (S. Ct., No. 99-1908). The outcome of that case, though it concerns the Alabama Motor Vehicle Law, will affect the right of minority communities to use private actions to enforce EPA’s Title VI regulations and thereby to protect their communities from inundation by waste facilities and toxic pollution.

EPA’s civil rights regulations were promulgated in 1984, but it was in February 1998 that EPA began the process for adopting a guidance to be used by state environmental agencies to evaluate permit applications in respect to compliance with civil rights requirements. The EPA’s Interim Guidance of 1998 has been revised with the latest version appearing in two parts in June 2000, a Draft Title VI Recipient Guidance and a Draft Revised Guidance (65 Fed. Reg. 39650 (June 27, 2000)). These documents, though not final, are intended to guide state environmental protection agencies in how to investigate permit applications in respect to civil rights compliance.

At the present time, the EPA is prohibited from investigating civil rights complaints by Congressional enactment, until EPA formally completes development of their guidance document. (See H.R. § 4635 (10/27/00).) Should the Supreme Court, in Sandoval, find that private enforcement of Title VI regulations are also forbidden, Title VI may become a dead letter and the attainment of environmental justice will be in the hands of the victims by default.

While there still remains the possibility for redress through administrative or judicial efforts, a community in Camden, New Jersey, has recently brought a Title VI case against the New Jersey Department of Environmental Protection, South Camden Citizens in Action v. N.J. DEP, to prevent operation of a cement grinding facility that will discharge great quantities of fine inhalable particulates into the environment of an African-American/Hispanic community. That community already suffers from poor health, poor housing and poor health services; and it bears the burden of the county sewage plant and the county waste incinerator. Such a concentration of pollution-releasing facilities in a poor health community is contrary to the purpose of our environmental and civil rights laws.

If society cannot distribute the unwanted facilities in an equitable fashion, society should establish special isolated zones for housing these polluting factories, remote from all residences, black, white or green.

Jerome Balder is Director, Environmental Law Project, Public Interest Law Center of Philadelphia, Philadelphia, Pennsylvania.