Is Justice Served?

Michael C. Gross

There's a clear split between the friends and foes of environmental justice. Advocates contend that minority communities in the United States have been forced to shoulder a disproportionate share of solid and hazardous waste for too long. Some critics argue that environmental justice is a creature of liberal public interest groups, and that it deprives minority communities of high-paying, stable employment.

Regardless, it's clear that the issue is not going away. With several U.S. landfills targeted for closure, including New York City's Fresh Kills, new communities will be asked to welcome waste. Some of them already are rejecting the presence of new businesses deemed to be polluters. So, where will the waste go?

Environmental justice advocates are pushing to ensure it won't be disproportionately diverted to minority communities.

The environmental justice movement began slowly, targeting a few select industries, but now it's a federal environmental policy initiative, prevalent in Congress, federal agencies and the courts.

According to a 1994 report by the Washington Post, in 1993 only 14 percent of non-whites lived in areas with no commercial toxic waste dumps, whereas 46 percent lived in areas that contained three dumps or an incinerator or one of the nation's largest landfills.

The issue most recently was addressed by the Environmental Protection Agency's (EPA), Washington, D.C., May 1998 report, "Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits," which allows the EPA to evaluate complaints of Title VI of the Civil Rights Act of 1964, which prohibits programs receiving federal funding from discriminating based on race, color or national origin.

Environmental Justice Emerges The concept of environmental justice in America dates back nearly 30 years to 1971, when the Council on Environmental Quality's report to the President documented the relationship between geographic distribution of pollution and minority groups. It acknowledged that "racial discrimination adversely affected the ability of the urban poor to control the quality of their environments."

This report was followed by a 1972 National Institutes of Health (NIH), Bethesda, Md., study, which found that coke oven workers, 88 percent of whom were "non-white," had 10 times the lung cancer rate of non-coke oven steel workers, 21 percent of whom were non-white. This resulted in charges that the industry assigned white workers to "cleaner" jobs, leaving "dirtier," riskier work, like heating coal to produce coke for steel-making, for minority employees.

Solid waste first entered the environmental justice picture in 1979 with a Houston Audubon Society study. "Invisible Houston: The Black Experience in Boom and Bust" found that from the early 1920s to the late 1970s, all of the city-owned municipal landfills and six of Houston's eight garbage incinerators were located in African American neighborhoods.

The study also determined that from 1970 to 1978, three of the four privately owned landfills accepting Houston's garbage were located in African American neighborhoods. In addition, while African Americans comprised 28 percent of Houston's total population in 1979, 82 percent of the public and private solid waste sites were located near them.

The movement received its first dose of national attention in June 1982, in the predominantly African American rural community of Warren County, N.C., near Raleigh-Durham. There, 414 people were arrested, including members of the Congressional Black Caucus, following a demonstration protesting the county's selection as a site for a polychlorinated biphenyl (PCB)-producing incinerator.

This incident resulted in a series of key reports and studies, and the phrase "environmental racism," coined at this protest, has since become the rallying cry of those involved in environmental justice.

The first of the storm of reports was the 1983 General Accounting Office (GAO) report, "Siting of Hazardous Waste Landfills and Their Correlation with Racial and Economic Status of Surrounding Communities," which concluded that "the distribution of African American populations was positively correlated to that of commercial waste treatment facilities and uncontrolled hazardous waste sites."

The GAO study was followed by the United Church of Christ's Commission for Racial Justice report in 1987. "Toxic Wastes and Race" determined that race was the single most important factor in the location of abandoned toxic waste sites, "more important than income, home ownership rates and property values."

The study further concluded that three of the five largest commercial hazardous waste landfills in the nation are located in predominantly African American or Latino communities, and accounted for 40 percent of the nation's total estimated landfill capacity in the 1980s.

Federal Involvement Scholars' and activists' responses to these reports resulted in a call for increased EPA involvement in research projects pertaining to environmental justice and in discussions with minority residents.

The EPA responded by creating the Environmental Equity Working Group in July 1990 to review and evaluate the evidence that racial minority and low-income people bear a disproportionate risk burden, to review current EPA programs to identify risk reduction measures already in place and to develop new approaches to reduce risk.

EPA's willingness to address these issues was considered a victory by environmental justice proponents. The working group's final two-volume report, "Environmental Equity: Reducing Risks For All Communities," was released in June 1992. It recommended that the EPA increase priority given to environmental equity issues, establish and maintain information to assess objectively risks based on income and race, and expand and improve communication with racial minority and low-income communities. To do this, the EPA established the Office of Environmental Equity, now called the Office of Environmental Justice.

William Clinton's presidential victory that same year excited environmental justice proponents. On Earth Day 1992, he had proclaimed environmental justice as "important to our domestic agenda."

Just one year earlier, his running mate, Al Gore, had sponsored the Environmental Justice Act in Congress. In an address to a group of prominent African American urban ministers he stated, "those who are less able to defend themselves, and those who have less economic and political power within the larger community are those most often taken advantage of and victimized with hazardous waste and pollution."

President Clinton explicitly gave his administration's blessing to environmental justice when he penned Executive Order 12898, signed on Feb. 11, 1994.

This six-part order ensures that federal agencies' programs "do not unfairly afflict environmental harm on minority and low-income populations." It requires every federal agency to create a strategy to "redress and prevent" inequity. Section 5, titled "Public Participation and Access to Information," requires that in planning federal programs, enforcing pollution laws and writing regulations, agencies must ensure that all population segments have equal opportunity to express their views.

Significantly, for the first time, the order required census and pollution data to be collected and analyzed by federal agencies.

While Executive Orders are not enforceable by the judiciary, they are important because they are mandates from the president to Cabinet officials. In response to the order, the Justice Department launched investigations into whether certain states had granted permits to companies for hazardous waste operations in predominantly minority communities, a violation of the Civil Rights Act.

Now, EPA's Title VI guidelines require wronged parties to file a complaint with the EPA's Office of Civil Rights within 180 days of the alleged discriminatory act. However, this deadline is flexible - essentially giving parties unlimited time to sue.

When evaluating an act, the EPA determines whether the proposed activity significantly impacts a population protected by federal Civil Rights laws. While the guidelines allow for dispute resolution through modifications to proposed activities, the Justice Department can take legal action against industries under EPA investigation.

Environmental Justice Criticism Critics of the federal government's efforts to address environmental justice contend that the issue exceeds the EPA's traditional mission and authority. They agree that the siting process historically has been biased, but say it's because of economics, not racism, injustice or flawed environmental policy.

In a 1994 Wall Street Journal editorial, New York University Law School professor David Schoenbrod suggested that environmental hazards are more likely to be placed in low-income communities because the jobs and tax base they create make residents more willing to accept perceived risks.

Schoenbrod wrote, "many toxic waste sites are not dumps, but rather abandoned factories whose construction was originally thought of as a plum to the locale."

Last August, during a hearing of the investigations subcommittee of the U.S. House of Representatives Commerce Committee, the EPA's environmental justice agenda was criticized for hindering urban renewal efforts without improving the urban environment.

Environmental justice program critics conclude that the EPA simply is "implementing programs that will drive manufacturing businesses out of urban areas and poor neighborhoods."

Legal Challenges So, what are the potential legal impacts of policymakers adopting environmental justice initiatives? The U.S. Court of Appeals found that local citizens could proceed in a suit objecting to the placement and operation of a soil treatment plant in a neighborhood which is 65 percent African American and predominantly low-income. [Chester Residents Concerned for Quality Living v. Seif, 3rd Cir., Dec. 30, 1997].

The remainder of Delaware County, Pa., where Chester is located, has a population that is 91 percent white and 6.2 percent African American.

Since 1987, Pennsylvania's Department of Environmental Protection had issued five waste management permits for sites in Chester (population, 42,000), while the remainder of Delaware County had been issued two permits (population, 502,000).

The U.S. Supreme Court ultimately dismissed the case because the company owning the plant declared bankruptcy, but the ruling still could signal a heavy docket of environmental justice cases in federal court in the future.

Where Are We Now? Despite the ongoing dispute over its validity, environmental justice has been recognized fully by legislators, administrative agencies and the courts. Ignorance of environmental justice policies can result in substantial legal fees and government investigations, which could potentially destroy small operators.

An understanding of the issues and a proactive approach, including discussions in which proposed facility plans and pollution prevention technologies and efforts are shared with communities, can help shield solid waste industry professionals from trouble.

In addition, waste haulers should highlight their job creation and community economic development strategies.

Working proactively with local community representatives, elected officials and environmental agencies on siting and permitting decisions, can go a long way toward dismissing the specter of environmental racism in the solid waste industry.

Since 1971 environmental justice has moved closer to the forefront. Published studies and reports are proof of its progress.

* 1971: The Council on Environmental Quality's Report to the President acknowledges that "racial discrimination adversely affected the ability of the urban poor to control the quality of their environments."

* 1972: A National Institutes of Health (NIHAU), Bethesda, Md., study reports that coke oven workers, 88 percent of whom were "non-white," had 10 times the lung cancer rate of non-coke oven steel workers, 21 percent of whom were non-white.

* 1979: "Invisible Houston: The Black Experience in Boom and Bust," by the Houston Audubon Society finds that from the early 1920s to the late 1970s, all of the city-owned municipal landfills and six of Houston's eight garbage incinerators were located in African American neighborhoods.

* 1982: In the predominantly African American rural community of Warren County, N.C., near Raleigh-Durham, 414 people are arrested, including members of the Congressional Black Caucus, following a demonstration protesting the county's selection as a site for a polychlorinated biphenyl (PCB)-producing incinerator.

* 1983: The General Accounting Office (GAO) report, "Siting of Hazardous Waste Landfills and Their Correlation with Racial and Economic Status of Surrounding Communities," concludes that "the distribution of African American populations was positively correlated to that of commercial waste treatment facilities and uncontrolled hazardous waste sites."

* 1987: The United Church of Christ's Commission for Racial Justice report, "Toxic Wastes and Race," determines that race is the most important factor in the location of abandoned toxic waste sites, "more important than income, home ownership rates and property values."

* 1990: The EPA creates the Environmental Equity Working Group to review and evaluate the evidence that racial minority and low-income people bear a disproportionate risk burden, to review current EPA programs to identify risk reduction measures already in place and to develop new approaches to reduce risk.

* 1992: EPA releases, "Environmental Equity: Reducing Risks For All Communities," recommending that EPA increase priority given to environmental equity issues. EPA establishes an Office of Environmental Equity (since renamed the Office of Environmental Justice) to oversee and coordinate the implementation of these recommendations.

* 1994: A Washington Post article reports that in 1993 only 14 percent of non-whites lived in areas with no commercial toxic waste dumps, whereas 46 percent lived in areas that contained three dumps or an incinerator or one of the nation's largest landfills.

* 1994: President Bill Clinton signs Executive Order 12898 to ensure that federal agencies' programs "do not unfairly afflict environmental harm on minority and low-income populations."

* 1998: The EPA releases, "Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits," allowing the EPA to examine complaints of Title VI of the Civil Rights Act of 1964, which prohibits programs receiving federal funding from discriminating based on race, color or national origin.