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The Courts and Environmental Justice: Some Lessons for Policy Making by Robert W. Williams Political Science Tel. (O): (704) 638 5614 Livingstone College E-mail: obibob@hotmail.com 701 West Monroe St. http://members.tripod.com/~robtwms/ Salisbury, NC 28144 ABSTRACT I. INTRODUCTION A. [[ rewrite ??? Is it too similar to other work?? ]] The Environmental Justice (EJ) movement in America is a loose coalition of grassroots organiza- tions and public-interest groups. Emerging in the early 1980s the movement has argued forcefully that a healthy environment is not just about protecting nature from the ravages of industry and consumer- ism. Environmental protection is also quite importantly about ensuring the health and safety of people. The EJ movement contends that the poor in general, and people of color in particular, face disproportionate---and thus, unfair---environmental risks in their everyday existence. The successes won by the EJ movement over time are found mainly in some legislation at the state level, in a Presidential Executive Order, and in various victories in local arenas around the country. Notable for its failure to pass legislation is the US Congress. Yet the movement presses on in those and other political arenas. Until recently, another marked disappointment for the EJ movement was to be found in the several failed attempts by local EJ groups to seek legal remedies through the country's court system. As will be discussed herein two recent victories in the legal arenas of our court systems B. The legal academic community has addressed the judicial side of EJ matters, as well as some of the implications for political action. [[ citations: ??? ]] Cole, Luke ......??????? Light, Steven A. & Kathryn R. L. Rand. 1996. "Is Title VI a Magic Bullet? Environmental Racism in the Context of Political-Economic Processes and Imperatives." Michigan Journal of Race & Law, vol. 2 (Fall): 1 . Tsao ......... Under-represented in the social science literature, however, are the lessons that can be drawn for policy makers. I do not provide a legal analysis of what might work in future court cases as based on legal precedents and past interpretations of the law. Rather, in this paper I propose to examine how the court system in America has analyzed EJ issues so as to glean various lessons for government policy makers in their attempts to address such vital concerns. C. Assumptions of Present Study The theoretical premises underpinning this work center on the interplay between the courts and the American polity as a whole. The interrelations between the courts and policymakers at the federal level is well studied. [[ CiTaTions ???? ]] From such studies emerge two basic premises guiding my analysis. 1. The courts interpret the law, but the rulings are themselves subject to (re)interpretation, often after intense political struggle. a. Rulings which appear self evidently correct and just can, with the fullness of time, seem less so. For example, definitions of what constitutes the proper role of government in society can and have changed in various court decisions over our history. b. As a corollary, decisions are not necessarily permanent, although the longevity of some rulings may seem to have cast them in stone (e.g., Plessy v. Ferguson, 163 US 537 (1896)). This casts the doctrine of stare decisis in a different light. That doctrine specifies the role of precedence in the American legal systems. Precedence not only simplifies the legal reasoning process, but stare decisis tends to integrate (or nationalize) the political territory according to the same set of interpretations and philosophical justifications. However, adhering to pre- cedence does not always lead to justice as the Plessy case exemplifies. c. Court decisions are delivered from "on high" authoritatively (and literally in some instances) by supposedly rational and impartial judges. Paradoxically, at the same instance that precedence helps to integrate a territory legally, judicial rulings are seen (at least in the view of legal rationalists[[???]]) to stand outside of time and space. Rulings, rendered by putatively objective and rational judges, avoid the particularity of historical and geographical conditions. Closer examination, however, usually reveals the (complex) biases arising from particular eras and places that often inform the arguments of the judges themselves. Such biases include the racial/ethnic prejudices of the time, a pro-capitalist orientation favoring property rights and "small" government, or a deference to scientific and technological modes of reasoning (e.g., in the case of nuclear power in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defence Council (435 US 519 (1978)); also see Maleson 1982; cf. C. Cook 1980). 2. Court decisions are not isolated from the rest of the political system. Judges are influenced by, and in turn influence, the political situations and actors. a. The court system is a battleground; it is an adversarial arena which, while not neces- sarily conducive to the pursuit of the truth, nonetheless does figure prominently in the strategies of various actors. For example, following the principle of checks and balances, legislators may seek to circumscribe the scope of previous court rulings. Illustrative of this is the federal and state legislation, both passed into law and at- tempted, following the Roe v. Wade (410 US 113 (1973)) decision (see O'Brien 1986). [[ O'Brien, David M. 1986. Storm Center: The Supreme Court in American Politics. NY: W.W. Norton. ]] b. For its part, judges (including Supreme Court justices) are cognizant of public opinions. They may anticipate reactions by citizens and politicians, and thereby frame their decisions in ways that ameliorate the expected public response (as in Brown v. Board of Education, 347 US 483 (1954)). c. An analysis of the role of courts in EJ issues must scrutinize how groups (variously defined) pursue a constantly shifting search for the venues whether legal, administra- tive, or other, whether national or subnational that best further their interests. Cer- tainly, the court system "integrates" the country via legal precedents and via the "selective incorporation" of the Bill of Rights by the Supreme Court. Yet this tendency to subsume all places within an overarching national framework is itself fractured in as many pieces as there are access points into the political system. D. The argument From an analysis of court decisions on EJ I will argue that the lessons gleaned point to the need for a national perspective on environmental inequities. The courts focus on specific cases brought to them. The are thus reactive in nature and attuned to the individuality of the case (albeit with the goal to adjudicate it in terms of legal precedents). The doctrine of precedence notwithstanding, the courts have used different jus- tifications and different methodologies for discerning injustice. Such variations thereby spotlight variations in how environmental injustices are addressed. Those variations do not treat all Americans equally, yet the principle of formal equality impels us to toward a "universal" in this instance, national scope. People (should) have a right to be free from unhealthy living and working conditions. Certainly, local conditions vary nonetheless, justice must strive to be universal (at least as far as humanly possible) within the terri- tory of the country. Moreover, various factors indicate that environmental inequities occur on wider scale than the par- ticular places which are adjudicated. There are several indicators of inequities spanning the country as a whole: (a) social science researchers have uncovered this (although this claim is admittedly contentious; see below for social scientific counter-arguments); (b) grassroots activism is widespread across America; (c) the long history of racial and class disparities so instrumental in contributing to environmental inequi- ties point to causal forces operating at the national, if not international, level; and (d) the several court cases themselves from various parts of the country. Taken as a whole, those factors, highlight the need for a national dialogue and indeed a national policy for tackling EJ concerns. Yet throughout these nation- spanning dialogues we must remain sensitive to the local conditions of particular communities that inspired such a wide-ranging dialogue in the first instance. From our attention to the interconnection between the courts and environmental justice we will find lessons to assist national policy makers as they battle the serious problems of environmental injustice. In the sections that follow I will first discuss the political roles served by the country's court systems, with special emphasis on the role in environmental matters. Next, I will [[ .... ]] II. Courts in the American Political System A. Constitutional Roles 1. 2. 3. B. Relationship to Other branches 1. Congress can attempt to limit the jurisdiction 2. Congress can attempt to delineate 3. President appoints Federal judges (with advise and consent of Senate) C. Nature of court decisions 1. in general 2. on environmental matters [[ Wenner article in Env'l Policymaking in 1990s book ]] 3. on EJ matters a. A major avenue of EJ movement b. The various judges have ruled differently interpreting the Supreme Court decision on circumstantial evidence in different ways D. Limitations 1. tackle specific issues brought before them 2. expensive to litigate 3. shop for favorable court venue 4. The fragmentation of American polity into multiple access points (including the courts) is double-edged: it facilitates democratic participation in many ways, but also it can lead to splintered approach to problem solving. Schattschneider's concept of the manipulation of scope of conflict offers a useful way to understand such politics. III. The Nature of Environmental Injustice In this section we will ...... A. History of environmental injustice as a movement 1. 2. B. Social Science Findings 1. 2. Why the divergent findings? C. How are EJ issues framed in general? 1. Is environmental injustice a localized problem or is it wider in scope? 2. Causation versus correlation: as part of broader processes of racism and exploitation processes operating across a wider scale than the community (the place). 3. Environmental racism as an emphasis Criticisms of race as concept [[ racialization ]] [[ see discussion in 1998 AAG paper for some text and citations ]] IV. Environmental Justice in the Court Systems A. How have EJ issues been framed in court cases? That is, what issues surface in court cases that can help policy makers protect all of the American people? Although courts do not tackle the societal processes generating inequities, their adjudication of the political processes involved are important to study. B. Court cases On some of the court cases are cases involving EJ discussed here; hence, this section is more illustrative than exhaustive of all court cases. Some have gained significance in terms of precedence set and are consequently cited more frequently by activists and academics alike. 1. Types of burdens Burden is usually defined as occurring when one or more of the following is experienced: a. physical effects (health problems, increased noise levels, noxious smells, contaminated water supplies, polluted air); b. safety effects: increased traffic as dangerous to adults and children East Bibb Twiggs court case (706 F.Supp. 880 (M.D. Ga. 1989) at 882) c. economic effects (decreased property values; fewer job opportunities in blighted areas); d. aesthetic effects (unsightly facilities; despoiled landscape). e. community effects: threat to community character (East Bibb Twiggs Neighborhood Association v. Macon-Bibb County Planning & Zoning Commission (706 F.Supp. 880 (M.D. Ga. 1989) at 882). f. ecological effects: threat to ecological balance ( East Bibb Twiggs court case (706 F.Supp. 880 (M.D. Ga. 1989) at 882). g. stigmatic injury [[ CITation: ????? ]] All of the above effects could lead to deleterious health effects and diminished quality of life (Godsil 1991: 413). Admittedly, the causal mechanisms linking environmental conditions to health and quality of life for the poor and for people of color can be hard to discern with scientific exactitude, a fact that leads to unending societal debate; see Chase 1993: 347-53. In R.I.S.E. v. Kay (768 F. Supp. 1144 (E.D. Va. 1991)) at p. 1147. " 2. The citizens expressed concerns that the proposed landfill 1) would reduce the quality of life of area residents by increasing noise, dust and odor; 2) result in a decline in property values; 3) interfere with worship and social activities in Second Mt. Olive Church and grave sites on church grounds; 4) require major improvements in access roads; and 5) result in blighting an historic church and community. The Second Mt. Olive Baptist Church was founded in 1869 by recently freed slaves and subsidized an inadequately funded black school across the road for many years. Trial testimony of Rev. Parham. Plaintiffs' Exh. 3, 27. " 2. Procedural fairness Input from communities affected a. Luke Cole cases El Pueblo Para el Aire y Agua Limpio v. County of Kings, 22 Envtl. L. Rep. [[ Environmental Law Reporter ]] (Envtl. L. Inst.) 20,357 (Cal. Super. Ct. Sacramento County, December 30, 1991). [[ The issue of mandating translations of official documents has not been legislatively approved in California. See: 1996 Environmental Law Section, State Bar of California, "G. Public Review and Participation" [[ URL of rww's source: [Accessed: Wednesday, June 17, 1998 ] ]] b. The LES facility The Nuclear Regulatory Commission (NRC) is an independent regulatory agency and was not obligated to comply with President Clinton's Executive Order. But the NRC agreed to voluntarily adhere to it so as to avoid making decisions that might lead to environmentally inequitable consequences. The Atomic Safety and Licensing Boards (ASLBs) of the NRC perform certain functions, not only do they rule on the granting of licenses for nuclear installations (like power plants and uranium processing facilities), but they also perform an adjudicatory function. Louisiana Energy Services (LES) sought to build an uranium enrichment plant (the Claiborne Enrichment Center, or CEC) in Claiborne Parish, Louisiana, about 5 miles from the town of Homer in an area that is situated between the communities of Center Springs and Forest Grove, two unincorporated communities of African-Americans. LES applied to the NRC for a combined construction permit and operating license. Intervenors organized in opposition to the proposed facility. Both parties met in a series of ASLB hearings. The contention against the facility pertinent herein focused on charges that the siting process was flawed, leading to racially disparate and hence racist consequences. Louisiana Energy Services, L.P. (Special Nuclear Material License) (Claiborne Enrichment Center) LBP-97-8 "Final Initial Decision (Addressing Contention J.9)" May 1, 1997 The opponents based their environmental justice argument on the requirements of the National Environmental Policy Act of 1969 (NEPA) to discern the impacts of proposed industrial facilities (42 U.S.C. 4321 et seq.). The applicant's Environmental Report either failed to, or did not adequately, consider the effects of locating the facility near a rural black community of more than 150 families. Also, attempts to mitigate or eliminate the impacts were not pursued in the Environment Report. Although the language of the ASLB ruling speaks of disparate impacts on the communities of color in Claiborne Parish, this is framed in terms of procedural flaws. Specifically, the applicants, LES, failed to ameliorate the racially disparate impacts caused by, among other contentions, (a) the closing of a road heavily traveled by the communities; (b) the diminished property values; and (c) a worst-case scenario accident at the facility. In the words of the ASLB decision, ************* Racial discrimination in the facility site selection process cannot be uncovered with only a cursory review of the description of that process appearing in an applicant's environmental report. If it were so easily detected, racial discrimination would not be such a persistent and enduring problem in American society. Racial discrimination is rarely, if ever, admitted. Instead, it is often rationalized under some other seemingly racially neutral guise, making it difficult to ferret out. Moreover, direct evidence of racial discrimination is seldom found. Therefore, under the circumstances presented by this licensing action, if the President's nondiscrimination directive is to have any meaning a much more thorough investigation must be conducted by the Staff to determine whether racial discrimination played a role in the CEC site selection process. Before turning to a discussion of the evidence in this proceeding, we wish to emphasize that our determination that the Staff's limited review of the description of the siting process set out in the ER was inadequate and that the Staff now must undertake a thorough investigation, is not intended as a criticism of the Staff. The obligations imposed upon the Staff by the Commission's commitment to the President to implement the provisions of the Executive Order are new to the agency. Because this agency's primary responsibilities historically have dealt with technical concerns, investigating whether racial discrimination played a part in a facility siting decision is far afield from the Staff's past activities. Indeed, because racial discrimination questions have not previously been involved in agency licensing activities, this is an area in which the Staff has little experience or expertise. Nevertheless, if the President's directive is to have any meaning in this particular licensing action, the Staff must conduct an objective, thorough, and professional investigation that looks beneath the surface of the description of the site selection process in the ER. In other words, the Staff must lift some rocks and look under them. [[ Louisiana Energy Services, L.P. (Special Nuclear Material License) (Claiborne Enrichment Center) LBP-97-8 "Final Initial Decision (Addressing Contention J.9)" May 1, 1997 ]] ************* The ASLB did not grant LES a combined construction permit and operating license. But the ruling was rendered "without prejudice," indicating that LES could apply in the future after it had resolved the environmental injustices identified by the ASLB. Thus, it is possible that LES could correct the impacts that led the ASLB to conclude as it did, which thereby might allow the uranium enrichment facility to be built. Some activists remain optimistic, arguing that LES will not be able to correct the various problems that have beset it. [[NIRS press release in Nuclear Monitor, vol. 12, No. 4 1/2 , May 6, 1997 ]] 3. Discriminatory intent as ascertained via attempts to measure/operationalize disparate burdens How have the courts analyzed EJ issues? Specifically, how have the courts ascertained whether injustice had occurred in the cases brought before them? A preliminary answer is found in how the issue of racially disparate environmental impacts is framed in terms of discriminatory intent the guiding motif in determining whether an alleged injury deserves redress. If there is evidence of intent direct or indirect then equal protection would have been denied the plaintiffs under the Fourteenth Amendment to the US Constitution. Three cases evince what the courts consider to be proof of discriminatory intent: Bean v. Southwestern Waste Management Corp. (482 F. Supp. 673 (S.D. Tex. 1979)); East Bibb Twiggs Neighborhood Association v. Macon-Bibb County Planning Commission (706 F. Supp. 880 (M.D. Ga. 1989)); and R.I.S.E. v. Kay (768 F. Supp. 1141 (E.D. Va. 1991)). Federal courts follow the lead of the US Supreme Court in this matter. Two landmark Supreme Court cases are usually cited. In the absence of a "smoking gun," circumstantial evidence of discriminatory intent can be entered, as per the Supreme Court's Washington v. Davis (426 US 229, 48 L Ed 2d 597, 96 S Ct 2040 (1976)), and the Village of Arlington Heights v. Metropolitan Housing Development Corp. (429 US 252, 50 L Ed 2d 450, 97 S Ct 555 (1977)). Statistical evidence offered in the three federal court cases cited above ultimately was not persuasive to the judges. In lieu of direct evidence to intentionally discriminate (and thereby violate the 14th Amendment), indirect evidence, including statistical analyses can be used. " In Village of Arlington Heights v. Metropolitan Housing Development Corporation, the U.S. Supreme Court identified the following factors to be considered in determining whether an action was motivated by intentional race discrimination: 1) the effect of the official action; 2) the historical background of the decision; 3) the specific sequence of events leading up to the challenged decision; 4) departures from normal procedures; 5) departures from normal substantive criteria; and 6) the administrative history of the decision. 429 U.S. 252, 266-68, 97 S.Ct. 555, 563-65, 50 L.Ed.2d 450 (1977). " [[SouRCe: In R.I.S.E. v. Kay (768 F. Supp. 1144 (E.D. Va. 1991)) at p. 1149: ]] Three cases well exemplify the use of indirect evidence of discriminatory intent. Specifically, each examines the area around the noxious site in question in terms of its demographic composition and then and compares that impacted zone with the demographic composition of other zones in the city as a whole. a. Bean v. Southwestern Waste Management In the Bean v. Southwestern Waste Management Corp. court case (482 F.Supp. 673 (1979)), the plaintiffs used several definitions to measure disparate impact: ..... [[ ..... ]] (see also commentary: Collin 1992: 521-3; Godsil 1991: 413-6) Also in the Bean v. Southwestern Waste Management Corp. court case (482 F.Supp. 673 (1979)), the pre- siding judge utilized, among other analyses, a notion of racial disproportionality based on comparing the proportion of minority units with noxious facilities to the proportion of minorities within the city as a whole. To recast the reasoning in terms of my paper: racial disproportionality was determined by comparing the impacted units of analysis (census tracts) to what would be expected based on the entire minority population within the scale of analysis (the city of Houston). This metric is different from the more common one listed above. Here, there are not two subsets of the same overall population; rather, one subset (the impacted units) are compared to the total minority population within that analytical scale. The following are the steps of the judge's methodology, as inferred from the case itself (482 F.Supp. 673 (1979) at 679). (1) Determine percentage of people of color within Houston (i.e., within a local scale of analysis). The city's population was, as the case reads, 39.3% minority, and 60.7% Anglo. (2) How many census tracts within Houston have minority populations greater than the city average? These are labelled minority tracts, even if the majority of people within any was white. Anglo tracts are those with greater than 60.7% Anglos residing therein. The city has 42.5% minority tracts, and 57.5% Anglo tracts. (The presiding judge used census tracts as the unit of analysis, a unit which differed from the several types of analytical units used by the plaintiffs to provide of disparate siting); (3) How many minority tracts have one or more solid waste facilities located within them? Solid waste facilities are sited in 42.2% of the minority tracts and 57.8% of the Anglo tracts. (4) Subtract the percentage of impacted minority tracts from the overall percentage of minority tracts within Houston. This operation will yield the extent of disproportionality. In the Bean case the following holds: 42.5% - 42.2% = .3% dif- ference. From this the judge concluded that there was no signifi- cant difference between the overall proportion of minority tracts within the city and the proportion of minority tracts with solid waste sites. There were no disparate burdens along racial lines. b. East Bibb Twiggs Neighborhood Association v. Macon-Bibb County Planning & Zoning Commission (Ga. 1989). This court case used as its criterion of discriminatory impact the notion of a numerical majority of African Americans in the vicinity of the proposed solid waste landfill. The measure of racial disproportionality is based on an absolute majority in the unit of analysis (the impacted census tract was about 60% black), and the larger area in which that tract is located (a county planning district that was about 70% black). The court in East Bibb Twiggs recognized that the impacted area would bear greater impacts than other locales within the District. Nonetheless, it takes more than one example within the District to prove discriminatory intent on the part of the defendants. The court did not find any such intent because the only other landfill within the District was in a majority white census tract (and because of a lack of other (circumstantial) evidence of discriminatory intent on the part of the planning commission). The fact that the overall population within the District was about 70% black was insignificant given the siting of the other, previous landfill in a predominantly white census tract in that same District. (See East Bibb Twiggs Neighborhood Association v. Macon-Bibb County Planning & Zoning Commission (706 F.Supp. 880 (M.D. Ga. 1989) at pp. 884-5, aff'd, 896 F.2d 1264 (11th Cir. 1989))). (See also commentary: Collin 1992: 524-7; Godsil 1991: 411-3). c. In R.I.S.E. v. Kay (768 F. Supp. 1144 (E.D. Va. 1991)) at p. 1148: An analysis of all previous landfill sites in King and Queen County, Virginia, as well as the proposed one (that led to the court case) used radial zones to ascertain the their demographic composition. All of the landfills were in zones that were predominantly African American (based on a criterion of a simple majority). That fact was the starting point of legal analysis, said the judge, but because the County had followed procedures there was no legal evidence of discriminatory intent (pp. 1149-50). 4. Disparate impact as the focus a. The RISE case is quite indicative of why EJ activists had long argued against using discriminatory intent as the criterion to legally prove environmental injustice. Many in EJ movement call for the relaxing of the intent requirement used to prove discrimination (Bullard 1994b == "Overcoming Racism in Environmental Decisionmaking." Environment, 36:4 ]] Coleman 1993). ************** Centner, Terence J., Warren Kriesel, & Andrew G. Keeler. 1996. "Environmental Justice and Toxic Releases: Establishing Evidence of Discriminatory Effect Based on Race and Not Income." Wisconsin Environmental Law Journal, vol. 3 (Summer); pp. 119+. Luke W. Cole, Environmental Justice Litigation: Another Stone in David's Sling, 21 FORD- HAM URB. L.J. 523, 534 (1994) (advancing Title VIII of the Civil Rights Act as a means to provide environmental justice); James H. Colopy, The Road Less Traveled: Pursuing En- vironmental Justice Through Title VI of the Civil Rights Act of 1964, 13 STAN. ENVTL. L.J. 125, 188-89 (1994) (noting that legislators and administrators "can easily conceal discriminatory motivation behind a facade of neutral justifications"); Lazarus, supra note 6, at 856 (concluding that environmental policy makers traditionally ignore the distribution of environmental benefits and burdens); Torres, supra note 10, at 437-45 (review of discrimination cases concerned with challenges based on the Equal Protection Clause). The court holdings of three siting cases show the lack of a viable cause of action. See infra notes 69-83 and accompanying text. ********************** b. A more recent court case, Chester, has been hailed as victory In Chester, Pennsylvania, a group calling itself "Chester Residents Concerned for Quality Living" (CRCQL) sought to prevent yet another waste processing facility (this one a soil remediation facility) from being located in a community of color. The group brought suit against the Pennsylvania Depatment of Environmental Protection (PADEP) in May 1996 charging discriminatory intent and disparate effect in the Department's siting procedures. Of the 11 solid-waste facilities built or proposed in Delaware County only three were sited in chiefly white communities. [[ Janofsky, Michael. 1996. "Suit Says Racial Bias Led to Clustering of Solid-Waste Sites" New York Times, May 29, 1996, Late Edition-Final, Section A, p. 15, col. 1. As cited in http:envirolink.org/orgs/pen/crcql/lawsuit.html. Accessed: April 10, 1998 ]] The plaintiff based its claim partly under Title VI, the 1964 Civil Rights Act (Sections 601 and 602 in 42 USC 2000d (1984)), and partly on the Act's implementations by Federal agencies like the Environmental Protection Agency (EPA), which has codified its interpretation in federal statutes (40 CFR. at 7.80(a) (1997). According to the Civil Rights Act, no one receiving federal money can intentionally discriminate, while the EPA implementation also incorporates a disparate effect standard: A recipient shall not use criteria or methods of administering its program which have the effect of subjecting individuals to discrimination because of their race, color, national origin, or sex, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program with respect to individuals of a particular race, color, national origin, or sex. [[ 40 C.F.R. at 7.35(b). ]] In the Chester case, CRCQL alleges that it was being denied equal protection under the laws: PADEP, through its siting procedures and through the effects of its actions, was in violation of Title VI and Federal regulations. Because PADEP received monies from the EPA the Department could not discriminate by intent or by effect, and according the plaintiffs sought relief. ************* SOURCE: (Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925; 1997 U.S. App. LEXIS 36797; 46 ERC (BNA) 1065 (3d Cir., Dec. 30, 1997)). It is important to distinguish at the outset between section 601 of Title VI, which was the basis of Count One of CRCQL's complaint, and section 602, which was the basis of Count Two. A private right of action exists under section 601, but this right only reaches instances of intentional discrimination as opposed to instances of discriminatory effect or disparate impact. See <=16> Alexander, 469 U.S. at 293, 105 S. Ct. at 716 ("Title VI itself directly reaches only instances of intentional discrimination."). In contrast, section 602 merely authorizes agencies that distribute federal funds to promulgate regulations implementing section 601. The EPA promulgated such implementing regulations, which provide in relevant part: A recipient shall not use criteria or methods of administering its program which have the effect of subjecting individuals to discrimination because of their race, color, national origin, or sex, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program with respect to individuals of a particular race, color, national origin, or sex. 40 C.F.R. at 7.35(b). This regulation clearly incorporates a discriminatory effect standard. ************* The judge dismissed the case, holding that there was no proof of intentional discrimination and that the plaintiffs had no private right of action by which to force PADEP to comply with EPA's regulations against disparate (discriminatory) effect (Chester Residents Concerned for Quality Living, et al. v. James M. Seif (944 F. Supp. 413 (E.D. Pa., 1996)) LEXIS 16475. Decided: November 5, 1996 ). CRCQL appealed the case to the Circuit Court level. In December 1997 the Appellate Court reversed the lower, district court decision, arguing that a private right of action did exist by which the plaintiffs could seek to force PADEP to adhere to the less stringent standard of proving disparate effect. (Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925; 1997 U.S. App. LEXIS 36797; 46 ERC (BNA) 1065 (3d Cir., Dec. 30, 1997)). EJ activists have hailed the Chester case as a victory, arguing that the precedence of discriminatory impact, rather than intent, has been established. [[ "Federal Court Gives Green Light to Environmental Racism suit against PA DEP", http://www.penweb.org/chester/lawsuit_victory1.html , Dated: 31 December 1997 RWW's Source: < http://www.envirolink.org/orgs/pen/crcql/lawsuit_victory1.html > Accessed: April 10, 1998 ]] [[ Several World Wide Web sites: CRCQL and its allies have a web site: http://www.penweb.org/chester/lawsuit_victory1.html [[ Is this CRCQL's home page????]] Environmental Justice Resource Center at Clark-Atlanta University: http://www.ejrc.cau.edu/ > ]] C. Lessons to be gleaned from the Various Court Cases 1. Specific lessons from the court cases: a. procedural fairness is important b. disparate impacts are crucial to discern whereas discriminatory intent is quite difficult to legally prove. 2. General Lessons for national policy makers from the court cases: a. The definition of those most affected by noxious sites is continually being debated. The court cases raises issues of race and ethnicity (which of course provided the basis for claims of denial of equal protection), but they also raise other concerns: notably, of economic status. Such seems to be one basic lesson that national policymakers learn: The definition of those affected will be broadened in the proposed legislation from race to include other demographic groups: ethnicity (all so-called minorities) and socio-economic status, especially low income. b. Pursuing EJ cases in different courts across the USA reflects the local inspiration of injustice and the grassroots aspect of the EJ movement in particular places. However, the local must be related to larger scales that help to create the problems in an individual locality. c. Basic goal is to tackle environmental injustice as a multi-scale phenomenon constituted by the conjunction of racism and the political economy of markets. d. In that way, the national focus on EJ issues promotes, rather than harms, sensitivity to local conditions. The national orientation provides support to local EJ groups. [[ ??? Will national standards maintain a focus on [[ sensitivity to ]] local conditions so important to EJ organizations as a grassroots movement? ??]] D. ¨Why is a national focus such as is manifested in President Clinton's Executive Order and in Congressional legislation arguably necessary to address environmental injustice? 1. That is, why is not a (more localized) court case-by-case approach necessary, but not sufficient? Namely, there is a disjuncture between the nature of environmental injustice and the capacity of the legal system to tackle the causes of the problems. 2. A national focus/orientation for addressing EJ concerns is important because different judges have reasoned differently in the various cases, each interpreting the precedents and the laws and regulations somewhat at variance with the others (as indicated previously with the examples of how disproportionate burdens were ascertained by the judges). 3. Although judges may use common precedence (stare decisis) and are bound to adjudicate according to the same laws and statutes and in that manner help to spatially integrate the USA as a whole they, nonetheless, use different justifications and methodologies in their decisions. a. As such, EJ legal decisions vary unevenly across the legal landscape of America. b. Plaintiffs and defendants alike seek venues that they deem favorable to their respective cases. (1) Multiple access points into the political system (such as via the different courts) may facilitate democracy, but it also may impede justice from being served. (2) Possible consequence: ..... justice is not quite as blind in some spots as others. 4. Justice defined as some type of fairness across a polity would require the essentially same interpretations. [[ CITations:???? geog equity = = Ian Hay article; David M. Smith book; ]] E. ¨Am I assuming that which I need to demonstrate, namely that injustices exist? That is to ask, do individual court cases provide enough of a basis on which to argue that national criteria are needed to address environmental inequity? 1. Individual cases give some indication that wider spread inequities (allegedly) exist. Nevertheless, my argument for a national focus is based on the normative principle that justice itself requires a national if not also international scope. The argu- ment for national standards is premised on a notion of geographic equity. [[ Bullard article in Environment periodical, "Decision making" ]] 2. An analogous example for using national political arenas to deal with what had been argued hitherto as a state prerogative (authority based on lower levels of gov- ernment) is the idea of citizenship, especially as framed / achieved via civil rights legislation and interpreted by the federal courts. V. Environmental Justice Legislation in Congress A. Section Intro 1. In this section I will discuss what EJ legislation introduced by the US Congress has already incorporated into the respective bills aspects that respond to the court cases (whether intentionally or not is immaterial to the present argument). 2. Also, herein will be examined what the legislation lacks and what could be gleaned from the court cases. 3. A note: that the EJ legislation has not passed does not weaken the argument presented here; rather, it should focus our attention on the politics involved in the legislative process but that is the topic for a different paper. 4. The EJ legislation introduced addresses at least these issues: a. disparate impact b. communities at risk include not only those of color but also other groups (economically distressed or socially disenfranchised) c. the geographic scope of the legislation spans the country d. The policy scope includes not only distinct bills on environmental justice, but also we find that EJ dimension inserted into other related bills (Superfund Authorization of 19??????). 5. In this section we will look at how the legislation targeted disparate impact and defined those communities which could potentially be impacted. The section ends with a discussion of assumptions entailed in EJ analysis (gleaned from, and inspired by, various court cases). B. Disproportional Impacts 1. Given the difficulty faced by the EJ movement proving discriminatory intent, the EJ bills emphasize disproportionate impact of people of color and the poor [[ ???? ]] The bills delineate the right to a healthy environment in which all Americans should live. 2. Legislation introduced in particular Congressional sessions. a. 102d Congress [[ ????? ]] b. 103d Congress "EJ Act of 1993" states the issue of disproportionate burdens very clearly: (1) Environmental Justice Act of 1993 103d CONGRESS 1st Session (June 24, 1993): S. 1161, fully entitled "To establish a program to ensure nondiscriminatory compliance with environmental, health, and safety laws and to ensure equal protection the public health." Section 2, Subsection (3) states: "Although environmental and health data of toxic chemical releases are not routinely collected and analyzed by income and race, racial and ethnic minorities and lower income Americans may be disproportionately exposed to toxic chemicals in their residential and workplace environments." (2) "Environmental Justice Act of 1992" 103d CONGRESS, 1st Session (May 12, 1993): H.R. 2105 Section 2., Subsection (1) requires : "(1) to require the collection of data on environmental health effects so that impacts on different individuals or groups can be understood;".... c. 104th Congress (1) 104th CONGRESS, 1st Session, ( January 4, 1995) H.R. 228, fully entitled " A Bill to amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, and for other purposes." [ Short title: "Superfund Reform Act of 1995" ] In Section 102, Subsection (i), paragraphs (2) and (3) the goal of the EJ study is to discern implicitly unfair and inequitable government responses to Superfund sites based on population, ethnicity, income, or race characteristics of the sites. "(i) Environmental Justice Study.-- ``(1) Report by the administrator.--The Administrator shall prepare and submit to Congress an Environmental Justice Study two years after the date of enactment of the Superfund Reform Act of 1995 and every 2 years thereafter. Such study also shall be provided to the Citizen Information Access Offices. The Admin- istrator and Citizen Information Access Offices shall ensure that copies of such studies are made available to the public. ``(2) Content of the report.--The Administrator's report shall include an analysis of each facility which shall compare information on priority setting, response actions, and public participation requirements conducted under this Act to the population, race, ethnicity, and income characteristics of each community affected by each facility. ``(3) Evaluation.--The Administrator shall evaluate the information in the study to determine whether priority setting, response actions, and public participation requirements were conducted in a fair and equitable manner and identify program areas that require improvements or modification. " d. 105th Congress (1) "Community Environmental Equity Act''. 105th Congress, 1st Session (April 30, 1997) H.R. 1506, entitled fully as " A Bill to amend the Public Health Service Act to prohibit discrimination regarding exposure to hazardous substances." "SEC. 2802. PROHIBITION AGAINST DISCRIMINATION. ``(a) In General.--A covered entity under section 2801 shall not, on the ground of race, color, or national origin, disproportionately expose any person or community to any covered substance. ``(b) Compliance.-- ``(1) Identification.--Any entity under subsection (a) shall consult and work in partnership with the States and local government officials and the Federal Government to comply with subsection (a). ``(2) Addressing disproportionate exposure.--Any entity under subsection (a) shall address the actual or potential disproportionate exposure to covered substances of individuals or communities, on the ground of race, color, or national origin, when pursuing State and local administrative pro- ceedings for the authorized handling, management, treatment, release, discharge, disposal, storage, transport, removal, movement, or delivery of covered substances. ******************* (2) "Children's Protection and Community Cleanup Act of 1998''. 105th CONGRESS, 2d Session (H.R. 3262) (February 25, 1998), fully entitled "A Bill to reauthorize the Comprehensive Environmental Response, Compensation, and Liability Act of 1980." TITLE IV--ENVIRONMENTAL JUSTICE SEC. 401. ENVIRONMENTAL JUSTICE. Section 116 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9616) is amended by adding at the end the following: ``(f) Environmental Justice.-- ``(1) Purpose.--The purpose of this subsection is to ensure that Superfund sites in economically distressed and socially disenfranchised com- munities are identified, evaluated, and cleaned up as quickly and effectively as Superfund sites in other areas. ``(2) Designation of special priority areas.--Not later than six months after the enactment of this subsection, the President, acting through the Secretary of Commerce, shall publish a list of `special priority areas', which shall be geographic areas in which residents face a high degree of eco- nomic distress or social disenfranchisement. The President shall update the list not later than two years after each official census count on social and economic characteristics performed by the Bureau of the Census under title 13, United States Code. The President shall state the reason for including each area on the list. The list shall include [[ ..... various geographic units are specified -- rww ]] ****************** C. Groups Impacted 1. Expand those who are included 2. Legislation introduced in particular Congressional sessions. a. 102d Congress [[ ????? ]] b. 103d Congress (1) H.R. 3425 103d CONGRESS 1st Session (November 3, 1993) entitled: "To redesignate the Environmental Protection Agency as the Department of Environmental Protection, and for other purposes." SEC. 112. OFFICE OF ENVIRONMENTAL JUSTICE. [[ includes these functions: {rww}]] (b) Functions.--The Director shall develop and, with the approval of the Secretary, implement a strategy to promote, to the greatest extent practicable and consistent with the provisions of this section and other provisions of law applicable to the Department, environmental justice for all people wherever they are located or work in the United States, and regardless of income, race, ethnicity, or national origin. (c) Environmental Justice Advisory Committee.-- (1) Establishment of advisory committee.--The Secretary shall establish an Advisory Committee on Environmental Justice (hereinafter in this subsection referred to as the ``Committee''), which shall advise the Secretary and the Director on matters relating to the strategic direction, policies, and programs of the Department under this section. (2) Appointments.-- (A) Membership.--The Committee shall be composed of not more than 15 members appointed by the Secretary. The Director and the Secretary (or their designees) shall be ex officio members of the Committee. The Secretary shall, in appointing members of the Committee-- (i) ensure that the Committee is fairly balanced with respect to points of view represented and with regard to racial, gender, ethnic, and geographic representation; (ii) include individuals who have knowledge of, and experience with, environmental conditions in racial minority, ethnic minority, or moderate- and low-income communities; *********************************** (2) S.171, 103d CONGRESS, 1st Session, entitled "To establish the Department of Environmental Protection, provide for a Bureau of Environmental Statistics and a Presidential Commission on Improving Environmental Protection, and for other purposes." SEC. 122. OFFICE OF ENVIRONMENTAL JUSTICE. There is established within the Department the Office of Environmental Justice. The Office of Environmental Justice shall-- (1) develop a strategic plan to ensure equality in environmental protection; (2) evaluate whether environmental policy is helping individuals who suffer the highest exposure to pollution, and identify opportunities for preventing or reducing such exposure; (3) compile an annual report on progress in achieving environmental equity; (4) require the collection of data on environmental health effects so that impacts on different individuals or groups can be understood; (5) identify environmental high impact areas which are subject to the highest loadings of toxic chemicals, through all media; and (6) assess the health effects that may be caused by emissions in the environmental high impact areas of highest impact. ************************ (3) "Environmental Justice Act of 1992" 103d CONGRESS, 1st Session (May 12, 1993): H.R. 2105, entitled "To establish a program to assure nondiscriminatory compliance with all environmental, health and safety laws and to assure equal protection of the public health." [Short Title: "Environmental Justice Act of 1992". SEC. 2. PURPOSES AND POLICIES. The purposes of this Act are-- (1) to require the collection of data on environmental health effects so that impacts on different individuals or groups can be understood; ************************ (4) "Environmental Justice Act of 1993" 103d CONGRESS 1st Session (June 24, 1993): S. 1161 , fully entitled "To establish a program to ensure nondiscriminatory compliance with environmental, health, and safety laws and to ensure equal protection the public health." SEC. 2 (3) Although environmental and health data of toxic chemical releases are not routinely collected and analyzed by income and race, racial and ethnic minorities and lower income Americans may be disproportionately exposed to toxic chemicals in their residential and workplace environments. SEC. 3. PURPOSES AND POLICIES. The purposes of this Act are-- (1) to establish and maintain information which provides an objective basis for assessment of health effects by income and race; (2) to identify those areas with the largest releases of toxic chemicals to the air, land, water, and workplace; (3) to assess the health effects that may be caused by emissions in those areas of highest environmental impact; (4) to ensure that groups or individuals residing within High Environmental Impact Areas have the opportunity and the resources to participate in the technical process which will determine the possible existence of adverse health impacts; (5) to identify those activities in high environmental impact areas found to have significant adverse impacts on human health; and (6) to incorporate environmental equity considerations into planning and implementation of all Federal environmental programs and statutes. ************************ (5) 103d CONGRESS, 2d Session: S. 2019 "AN ACT To reauthorize and amend title XIV of the Public Health Service Act (commonly known as the ``Safe Drinking Water Act''), and for other purposes." [[ No date of introduction was found in the text of the bill --rww ]] SEC. 122. OFFICE OF ENVIRONMENTAL JUSTICE. There is established within the Department the Office of Environmental Justice. The Office of Environmental Justice shall-- (1) develop a strategic plan to ensure equality in environmental protection; (2) evaluate whether environmental policy is helping individuals who suffer the highest exposure to pollution, and identify opportunities for preventing or reducing such exposure; (3) compile an annual report on progress in achieving environmental equity; (4) require the collection of data on environmental health effects so that impacts on different individuals or groups can be understood; (5) identify environmental high impact areas which are subject to the highest loadings of toxic chemicals, through all media; and (6) assess the health effects that may be caused by emissions in the environmental high impact areas of highest impact. ************************ (6) CERCLA reform act == "Superfund Reform Act of 1994". 103d Congress, 2d Session (H.R. 3800) [(August 26, 1994)] [Report No. 103-582, Parts I, II, and III] "A BILL To amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, and for other purposes. [Reported with an amendment, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed ] SEC. 102 ``(i) Environmental Justice Study.-- ``(1) Report by the administrator.--The Administrator shall prepare and submit to Congress an Environmental Justice Study two years after the date of enactment of the Superfund Reform Act of 1994 and every 2 years thereafter. Such study also shall be provided to the Citizen Information Access Offices. The Administrator and Citizen Information Access Offices shall ensure that copies of such studies are made available to the public. ``(2) Content of the report.--The Administrator's report shall include an analysis of each facility which shall compare information on priority setting, response actions, and public participation requirements conducted under this Act to the population, race, ethnicity, and income characteristics of each community affected by each facility. [[Emphasis added by rww]] ``(3) Evaluation.--The Administrator shall evaluate the information in the study to determine whether priority setting, response actions, and public participation requirements were conducted in a fair and equitable manner and identify program areas that require improvements or modification. ``(4) Actions based on evaluation.--The Administrator shall institute the necessary improvements or modifications to address any deficiencies identified in the study prepared under this section.''. ************************ c. 104th Congress No mention of groups in legislation d. 105th Congress (1) Children identified as a group potentially at risk in the "Childrens Protection and community cleanup Act of 1998" which seeks to amend the CERCLA. "SEC. 401. ENVIRONMENTAL JUSTICE. Section 116 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9616) is amended by adding at the end the following: ``(f) Environmental Justice.-- ``(1) Purpose.--The purpose of this subsection is to ensure that Superfund sites in economically distressed and socially disenfranchised communities are identified, evaluated, and cleaned up as quickly and effectively as Superfund sites in other areas." D. 1. 2. Legislation introduced in particular Congressional sessions. a. 102d Congress [[ ????? ]] b. 103d Congress c. 104th Congress d. 105th Congress E. How do the bills (many of which seek to avoid disparate burdens) define, or operationalize, disproportionate burdens? [[ namely, bills do not define it this would be left up to the proposed Office of Environmental Protection (or whatever it would be called) to discern and evaluate ]] 1. It is customary that legislation sets out the basic principles, while administrative agencies specify the specific implementation of those principles. However, some guidance might be gleaned some lessons learned from the court cases. 2. In doing so, we will need to some consider theoretical and methodological concerns, including the following: a. assumptions of analytical units (e.g., border effects [[ RISE v. Kay {2nd case}; Dean case = judge: insensitive to put facility so close to a school {but no intentional discrimination} ]], equal population density, equal population concentration, etc.) [[ EXtracT from 1996 AAG paper ]] b. MAUP *************** [[ From 1996 AAG conference paper]] Two closely related problems: scale and aggregation. Those two problems are said to comprise what is known as the Modifiable Areal Unit Problem (MAUP) (Openshaw 1989; Openshaw & Taylor 1979; Openshaw & Taylor 1981). [[ Former endnote: [[ Also see Burt & Barber 1996; Clark & Avery 1976; and Fotheringham 1989. However, there are critics who argue against the conventional understanding of the MAUP: e.g., Tobler (1989) argues that with proper methodological care the MAUP is avoidable in spatial analysis. ]] The scale problem revolves around the effects generated by the various possible sizes, or dimensions, that the unit of analysis can take. Many possible configurations of the analytical unit are possible when the unit is coextensive with the obser- vational unit: such range from relatively large units like the county and the ZIP Code area to relatively small units like census tracts. Also, we can fashion an analytical unit composed of multiple tracts (and thereby composed of several observational units). Thus, a multiple-tract analytical unit would be larger than a single tract analytical unit composed of the same constituent observational unit. Operationally defining the size of a unit of analysis can evidence the scale problem. Smaller analytical units potentially allow for a more homogeneous demographic composition. However, a smaller unit might also contain fewer members of the demographic group comprising our independent variable. A larger analytical unit, other things being equal, would presumably include more people of color who could be impacted by the hazardous site in their midst. Errors can arise from the scale problems in at least two instances during the operationalization phase: first, if we create an analytical unit larger than the smaller observational units that comprise it (e.g., aggregated zones composed of tracts, or radial zones created from block groups); and/or second, if our analytical unit is coterminous with an observational unit (e.g., census tracts), yet smaller observational units are available (e.g., block groups and blocks). The areal data for the different observational units constituting a larger analytical unit will supposedly be the sum (or perhaps mean) of the count of the relevant variables within the analytical unit itself. However, this is not necessarily the case. The scale problem leads to different possible statistical results, both descriptive and inferential, of the same data (Fotheringham & Wong 1991). Such errors resulting from the scale problem, in turn, may influence our determination of environmental inequities. How do we determine the appropriate size of an analytical unit? Do we select smaller units of analysis, or larger ones? That is, do we move methodologically from census blocks to census tracts to ZIP Code areas to counties? In Section VI below, I offer several suggested operational definitions of community with the scale problem in mind. The Aggregation Problem With the aggregation problem, the issue is not the dimensions or scale of the geographical object per se. Rather, even at the same scale, various possible configurations of the unit of analysis are possible. The aggregation problem arises when we delimit the borders of the analytical unit, or when we rely on the borders drawn for us in the data sets that we use. In both instances, we have partitioned the spatial objects and processes that we seek to empirically analyze. In the case of data sets, we have in effect cut across the observational units that contain the data. The inherently modifiable nature of areas created as analytical units can be illustrated by two examples. First, when framing the analytical unit we can use either ZIP Code areas or else the census tracts that lie within the boundaries of ZIP Code areas. Second, we can define a radial zone as an analytical unit, utilizing a GIS to extract the data from the census tracts that the zone encompasses or transfixes. Or else we can frame an analytical unit in terms of clusters of tracts adjacent to any tract with a toxic site. Both examples suggest only two of the several possible ways to empirically define the unit of analysis and to aggregate the data for EJ research. As with the scale problem, the aggregation problem leads to possibly different statistical results (Fotheringham & Wong 1991; Openshaw & Taylor 1979 & 1981). Such variation in results may influence our assessment of environmental inequity. Although perennial, the above methodological problems can be mitigated. Their consequences for the framing of our units of analysis will be examined in the next section. ********* [[ in a later section of consequences of meth. problems ]] The scale and aggregation problems highlight the dangers of operationalizing an analytical unit. Social scientists must recognize the artificiality of the units of analysis (as well as the limits of observational units from which the analytical units draw their information). Nevertheless, meaningful analytical units moderate at least some of the aforementioned negative methodological concerns (hopefully to manageable proportions). Meaningful must be theoretically justified: pursuing racial animus would suggest neighbor- hood as the analytical unit, while studying risk to population groups would suggest radial zones instead of an analytical unit like a single census tract. Above, I detailed several research assumptions common to much of the EJ literature. Simplifying assumptions are integral to social science. To abandon them, if such were possible, would mean that we forfeit the quest for generalizability. Nevertheless, we can moderate the assumptions's effects on our EJ re- search through the operationalization of the unit of analysis. ******************* c. F. Production of waste [[ ???? ]] G. VI. CONCLUSION A. 1. 2. B. 1. 2. // TEMPLATE VII. A. 1. 2. B. 1. 2. VIII. A. 1. 2. B. 1. 2.