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Environmental Justice: Re-Emerging Issues

Environmental Justice: Re-Emerging Issues. Michael W. Steinberg Morgan Lewis Washington, D.C. Presentation to Clean Air Forum December 8, 2011. Overview. Overview. What is “Environmental Justice”? Origins of EJ Governmental Responses Key Legal Theories Resources Question & Answer.

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Environmental Justice: Re-Emerging Issues

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  1. Environmental Justice:Re-Emerging Issues Michael W. Steinberg Morgan Lewis Washington, D.C. Presentation to Clean Air Forum December 8, 2011

  2. Overview

  3. Overview • What is “Environmental Justice”? • Origins of EJ • Governmental Responses • Key Legal Theories • Resources • Question & Answer

  4. What is “Environmental Justice”?

  5. What is “Environmental Justice”? • No universally accepted definition of “environmental justice.” • 2011 GAO Report criticized EPA for lack of definition • “Environmental Justice: EPA Needs to Take Additional Actions to Help Ensure Effective Implementation” (October 2011) (GAO-12-77) • EPA response: We don’t need a better definition. • EPA’s Office of Environmental Justice: EJ means the “fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” • What do these terms mean?

  6. What is “Environmental Justice”?(continued) • Meaningful involvement: • “(1) potentially affected community residents have an appropriate opportunity to participate in decisions about a proposed activity that will affect their environment and/or health; • (2) the public’s contribution can influence the regulatory agency’s decision; • (3) the concerns of all participants involved will be considered in the decision-making process; and • (4) decision makers seek out and facilitate the involvement of those potentially affected.”

  7. What is “Environmental Justice”?(continued) • Fair treatment: “no group of people, including racial, ethnic, or socioeconomic groups, should bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commercial operations or the execution of . . . environmental programs and policies.” • As we’ll see, eliminating “disproportionate shares” is difficult to define, and even more difficult to achieve.

  8. What is “Environmental Justice”?(continued) • So EJ has at least 4 different aspects: • no intentional discrimination based on race in the administration of environmental programs; • meaningful participation in any governmental decision making on environmental issues; • equally stringent environmental standards & equally vigorous enforcement for all communities; and • equal distribution of environmental burdens & risks, so that no minority or low-income group bears a disproportionate share of those burdens or risks.

  9. What is “Environmental Justice”?(continued) • EJ lies at the intersection of environmental law and civil rights law: • Issues re disparate impacts &discrimination are governed mainly by civil rights law; • Issues re public participation, permitting,standard-setting, and enforcement are governed mainly by environmental law; • Many case involve both civil rights law and environmental law.

  10. Origins of EJ

  11. Origin of EJ • Extension of 1960s civil rights movement. • 1970s: Protests against placement of garbage dumps. • 1982: Warren County, North Carolina PCB site. • Early focus on siting of hazardous waste facilities: • Professor Robert Bullard, Clark Atlanta University (1983) • http://www.drrobertbullard.com/ • United States General Accounting Office (1983)

  12. Origins of EJ(continued) • Landmark study -- “Toxic Waste and Race in the United States” -- issued in 1987 by United Church of Christ’s (“UCC”) Commission for Racial Justice. • UCC concluded that race has been an important factor in the siting of commercial hazardous waste facilities. • Charles Lee, the lead author of that UCC study, is now the Director of EPA’s Office of Environmental Justice.

  13. Origins of EJ (continued) • Methodologies and conclusions of early studies widely criticized in academic literature. • results skewed by analyzing data at higher levels (county, Zip Code, census tract, census block, etc.) • Later studies reached different conclusions: • disparate impacts exist for specific minorities in particular rural or urban locations, but they are not uniform or “across-the-board”. • UCC’s “Toxic Wastes and Race at Twenty: 1987-2007” reports that the inequities are greater than ever.

  14. Origins of EJ (continued) • Underlying causes of the uneven distribution of environmental burdens are often poorly understood. • “Who was there first?” Was it the low-income, minority community, or the locally undesirable land use? • Example: Chester, Pennsylvania • Seif v. Chester Residents Concerned for Quality Living, 524 U.S. 915 (1998) (PADER permit for waste treatment facility in Chester, Pennsylvania). • Example: South Camden, New Jersey • South Camden Citizens in Action v. NJDEP, 274 F.3d 771 (3d Cir. 2001) (NJDEP air permit for cement processing plant in South Camden, New Jersey).

  15. Origins of EJ (continued) • EJ claims often overlook health and environmental benefits provided by the challenged facilities: • A refinery produces cleaner-burning gasoline that is marketed in several states & provides air quality benefits on a regional basis. • A chemical plant manufactures chemicals used in drinking-water treatment & purification systems around the country. • A pharmaceutical plant produces drugs used to fight infectious diseases throughout the country.

  16. Origins of EJ (continued) • EJ claims may also overlook the economic benefits provided by the challenged facilities: • Industrial operations often spur or sustain economic growth, increase tax revenue, create employment opportunities, and improve quality of life (e.g., health care, education) in host communities. • Numerous government programs and policies seek to attract industry to our poorest cities (“empowerment” zones, “enterprise” zones).

  17. Origins of EJ (continued) • Notable analysis by Chris Forman, published by Brookings Institution in 1998 • “The Promise and Peril of Environmental Justice,” by Christopher H. Forman, Jr. (1998) • Chris Forman on “Cancer Alley” in Louisiana: • blacks in south Louisiana actually have lower cancer rates than whites; • but they have higher cancer mortality rates than whites; • perhaps reflecting disparate levels of health care.

  18. Governmental Responses

  19. Executive Order 12898 • “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (1994) • Section 2-2: “Each Federal Agency shall conduct its programs, policies, and activities . . . in a manner that ensures that such programs, policies, and activities do not have the effect of . . . denying persons (including populations) the benefits of, or subjecting persons (including populations) to discrimination under, such programs, policies, and activities, because of their race, color, or national origin.”

  20. Executive Order 12898(continued) • Section 1-101: “[E]ach Federal agency shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations in the Unites States . . . .”

  21. Executive Order 12898(continued) • CEQ guidance defines “minority population” as any area with either: • more than 50% minority population; or • “meaningfully greater” minority population than either • (A) the general population; or • (B) some other area that is an appropriate point of comparison.

  22. Executive Order 12898(continued) • EO does not create legal rights enforceable in court by any person (§ 6-609); but • Anyone may use EO to raise EJ issues in permit appeals to EPA’s Environmental Appeals Board: • In re Chemical Waste Management, Inc., 6 E.A.D. 66, (1995) (EPA RCRA/HSWA permit renewal). • In re Knauf Fiber Glass, GMBH, 8 E.A.D. 121 (1999) (state PSD permit issued by California AQMD).

  23. Executive Order 12898(continued) • EO assigns EPA the lead agency role in implementation. • Widespread view that EPA has not acted aggressively enough to implement the EO • “Environmental Justice: EPA Needs to Take Additional Actions to Help Ensure Effective Implementation” (October 2011) (GAO-12-77) • Congress has considered bills to “codify” the EO into law, and nearly passed such a bill in 2007.

  24. Environmental Justice and The Obama Administration • Lisa Jackson’s EJ Agenda: • July 2009 Memorandum to all EPA staff; • New senior-level EJ position within EPA • Lisa Garcia is the Associate Assistant Administrator for Environmental Justice • in the Office of Enforcement and Compliance Assurance. • and she is also the Administrator’s Senior Advisor on EJ • 2010 EPA guidance on considering environmental justice concerns in regulatory decisions.

  25. Environmental Justice and The Obama Administration (continued) • Sharply Increased focus on EJ concerns in: • Environmental standard-setting; • Human health risk assessment; • Monitoring of air emissions; • Permit issuance, modification, & renewal; • Enforcement; and • Site remediation.

  26. Key Legal Theories

  27. Key Legal Theories • EJ litigation can arise over siting, construction, or permitting of industrial facilities near minority and/or low-income neighborhoods. • Most EJ litigation based on: • Equal Protection Clause of the 14th Amendment to the Constitution (ratified 1868); • Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d to 2000d-7 (2006) • Including EPA’s Title VI regulations at 40 C.F.R. Part 7 (1984) .

  28. Equal Protection Clause • States (including agencies & departments) are prohibited from discriminating on the basis of race, color, sex, or national origin. • Includes state decision-making on, e.g., environmental permits and other approvals, distribution of government services, etc. • For years, civil rights plaintiffs prevailed by showing that a challenged practice was had a discriminatory effect.

  29. Equal Protection Clause(continued) • Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977) held that only intentional discrimination violates the Equal Protection Clause. • Now plaintiffs must prove discriminatory intent. • This is a much greater burden.

  30. Equal Protection Clause(continued) • Test for whether a decision was motivated by discriminatory intent: • impact of the decision & whether it bears more heavily on a particular race; • historical background of the decision; • sequence of events leading up to the decision; • any departures, substantive or procedural, from the usual decision-making process; and • legislative and administrative history of the decision.

  31. Equal Protection Clause(continued) • Some EJ plaintiffs have prevailed even under the Arlington Heights analysis in municipal services cases re inequitable distribution of municipal services. • But they have failed to prove that the siting of any facility was intentionally racially discriminatory so as to violate Equal Protection • “The Equal Protection Clause does not impose an affirmative duty to equalize the impact of official decisions on different racial groups. Rather, it merely prohibits government officials from intentionally discriminating on the basis of race.” R.I.S.E. v. Kay, Inc., 786 F. Supp. 1144 (E.D. Va. 1991):

  32. Title VI • Section 601 of the Civil Rights Act of 1964: “No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of or be subjected to discrimination under any program or activity receiving Federal financial assistance.” • Federal government should not be underwriting discrimination with government grants, contracts, etc. • Section 601 authorizes lawsuits to terminate federal funding to any recipient in order to halt discrimination.

  33. Title VI(continued) • Section 602 authorizes federal funding agencies to issue anti-discrimination rules to implement the mandate of section 601. • Most federal funding agencies adopted rules in the 1960s based on DOJ’s “template” § 602 rules. EPA didn’t yet exist, so its didn’t issue such rules until 1984. • EPA’s rules follow the DOJ “template” and prohibit funding recipients from using “criteria or methods of administering its program which have the effectof subjecting individuals to discrimination because of their race, color, national origin, or sex.” • 40 C.F.R. § 7.35(b) (1984) (emphasis added).

  34. Title VI(continued) • Title VI process begins with an administrative complaint filed with the federal funding agency. • Funding agency has short time frame to investigate complaint and make initial finding. • If complaint appears to have merit, then agency seeks to compel corrective actions or, failing that, terminates funding to the recipient (this almost never happens).

  35. Title VI(continued) • State and local environmental agencies are major recipients of EPA funding (construction grants, revolving loans, etc.). • State and local environmental agencies are often the front-line decision makers on projects that raise EJ concerns (facility siting, permitting, enforcement, etc.). • EPA has struggled, with little success, to make Title VI an effective tool for addressing EJ concerns.

  36. Title VI(continued) • EPA has been very slow to review Title VI complaints. • well-publicized backlog of complaints awaiting review, some for as long as a decade • scathing criticism from EJ advocacy groups • 9th Circuit rebuked EPA for its slow pace. • EPA Draft Guidance on Title VI complaints • 65 Fed. Reg. 39,650 (June 27, 2000). • confrontational approach • withdrawn after Congress de-funded implementation).

  37. Title VI(continued) • EPA has rarely found merit in Title VI complaints. • Most complaints are simply dismissed for lack of merit. • EPA’s 1998 decision in Select Steel suggests that if a facility is complying with all substantive environmental requirements, then the state permitting agency cannot be found in violation of Title VI for issuing a permit, regardless of the demographics • http://www.epa.gov/ocr/docs/ssdec_ir.pdf • BUT: EPA is now reconsidering the Select Steel decision and evaluating whether to “overrule” it.

  38. Title VI(continued) • What “disparate impacts” are prohibited? • Save Our Valley v. Sound Transit, 335 F.3d 932 (9th Cir. 2003) (new light-rail stations located at street level in low-income Asian community but buried deep underground in white communities). • South Camden Citizens in Action v. NJDEP, 274 F.3d 771 (3d Cir. 2001) (NJDEP air permit for cement processing plant in South Camden).

  39. Title VI(continued) • What “disparate impacts” are prohibited? (continued) • “This proportional burden theory is an unmanageable proposition. . . . [H]ow is a multicultural society ever to locate a highway? Suppose a roadway runs by a neighborhood that is [25%] Anglo, [45%] Latino, and [25%] African American. . . . Will planners have to relocate the corridor to ensure that it affects each ethnicity proportionally? Simply to pose the question is to demonstrate the absurdity of the result: a twisting, turning roadway that zigs and zags only to capture equally every ethnic subset of our population.” • Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180 (4th Cir. 1999) (emphasis added).

  40. Title VI(continued) • What “disparate impacts” are prohibited? (continued) • “Transportation facilities cannot be everywhere; some persons will be close to one, others will not. Whether this is looked upon as benefit or burden will depend upon the outlook and interests of each person.” • Chester Residents Concerned for Quality Living v. Commonwealth of Pennsylvania, EHB Docket No. 93-234-MR, slip op. at 1524 (Oct. 20, 1993).

  41. Title VI(continued) • Are any “disparate impacts” prohibited today? • Alexander v. Sandoval, 532 U.S. 275 (2001) • Challenge to Alabama’s English-only driver’s license tests based on DOJ’s § 602 disparate impact regulation • District court ruled against Alabama; 11th Circuit affirmed. • HELD: Title VI of the Civil Rights Act of 1964 prohibits only intentional discrimination, not disparate impacts • HELD: No private right of action under Title VI to enforce a funding agency’s § 602 disparate impact regulations and

  42. Title VI(continued) • Alexander v. Sandoval, 532 U.S. 275 (2001) (continued) • Noted the “considerable tension” between Title VI’s focus on intentional discrimination and agency rules that prohibit even unintentional disparate impacts. 532 U.S. at 282. • But because Alabama did not challenge the DOJ regulations, Court “assume[d] for the purposes of deciding this case that the . . . regulations . . . are valid.” 532 U.S. at 282. EJ activists seek legislation to overrule Alexander v. Sandoval • E.g., Recommendation 10,Lawyers Committee for Civil Rights Under Law, “Now Is the Time” 68(2010)

  43. Title VI(continued) • Impact of Alexander v. Sandoval • On the one hand…. South Camden Citizens in Action v. NJDEP, 274 F.3d 771 (3d Cir. 2001) • District court held that NJ’s grant of air permits to a cement processing facility violated Title VI. • Third Circuit reversed -- because Sandoval clearly held that private individuals could no longer sue directly under § 602 to enforce the disparate impact regulations promulgated by EPA under Title VI.

  44. Title VI(continued) • On the other hand…. • Angelita C. v. California Dept. of Pesticide Regulations, Title VI Complaint 16R-99-R9 (EPA) • Complaint filed in 1999 on behalf of children attending schools near locations where methyl bromide was applied as a soil fumigant. • Charged CDPR with violating Title VI by renewing the pesticide registration for methyl bromide because it is used more near schools with more Latino students than it is near schools with fewer Latino students.

  45. Title VI(continued) • CDPR’s legal mandate is to analyze whether this pesticide is safe to use, not whether there would be “equal exposure“ to people of various national origins. • April 2011: EPA “initially concluded that there is sufficient evidence to make a preliminary finding of a prima facie violation of Title VI as a result of the adverse disparate impact . . . .” • The first such finding EPA has made under Title VI. • EPA said its finding “does not confirm any instances of actual health effects on individuals at the schools.”

  46. Title VI(continued) • In August of 2011, EPA reached a settlement with CDPR • CDPR agreed to perform additional air monitoring for methyl bromide & expand its “community education and outreach” • EPA agreed to conclude its investigation and resolve its finding. • EJ activist groups are furious with EPA because • Settlement reached without public comment/input • EPA’s first-ever “finding” of violation now resolved • No cut-off of federal funding

  47. Title VI(continued) • EJ activists have demanded (!) that EPA revoke settlement & reopen the case for public comment • EPA has politely declined • Key take-away message here: • EPA seeks to avoid the impact of Alexander v. Sandoval and treat its Title VI “disparate impact “ rules as if they are still binding and enforceable!

  48. Title VI(continued) • Other lines of defense for industry do exist. • Even if Title VI reaches disparate impacts, courts likely to recognize justifications similar to “business necessity” concept in Title VII cases. • Defendants may be able to justify disparate impacts based on safety or efficiency justifications, significant cost savings, or the unavailability of any suitable alternative sites.

  49. Resources

  50. Resources • Business Network for Environmental Justice (“BNEJ”). • Consists of individual companies & trade associations • BNEJ material on-line at • http://www.nam.org/Issues/Related-Coalitions/ERP/Business-Network-For-Environmental-Justice.aspx • Contact: Chip Yost, Vice President, Energy and Resources Policy, National Association of Manufacturers • cyost@nam.org • (202) 637-3175

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