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"What's Intent Got To Do With It?"

During the past few years discussion of "environmental justice" or "environmental racism" has expanded from the realm of a few grassroots organizations to become one of the trendiest issues of the day. Nearly everyone seems to be jumping into the fray—including the "big ten" environmental organizations, the EPA, Congress, corporate America, and on up to President Clinton. Likewise, within the legal community, the issue has moved from the discussions and litigation of a handful of activist attorneys to become the subject of numerous conferences, seminars, law school symposia, and so on.

Despite all of the current fascination with this subject, however, the legal community has probably accomplished little in providing assistance to poor communities and communities of color who bear the brunt of this society's environmental degradation. As a staff attorney with the Center for Constitutional Rights, I wish to explore here, albeit briefly, our grappling with the question of how progressive litigation organizations can best support communities engaged in these struggles, especially given the gulf between the limited resources of organizations such as ours and the enormity of the need.

By way of background, CCR is a non-profit legal organization that provides legal support to movements for social change. Starting with its origins in the civil rights struggles of the South in mid-1960s, CCR has been involved in many progressive legal struggles of our time, including reproductive rights, anti-Klan work, voting rights, international human rights, and U.S. government misconduct. CCR was among the first legal organizations to identify and begin litigating around issues of the environment as they affect communities of color. Such efforts grew directly from our involvement with grassroots struggles, where the constituencies we have traditionally worked with began to identify environmental hazards foisted on their communities in the context of the struggles around racial, economic, and political equality. Our early work in this area included a federal Clean Water Act challenge in 1982 to the government's failure to clean up a toxic waste dump in a predominantly African American neighborhood of Memphis (Greene v. Ruckelshaus).1 Since 1986, we have been working with the people of the Pacific nation of Palau in their struggle to keep out U.S. nuclear weapons.

Our work (like many others) was further spurred by the release in 1987 of the Commission for Racial Justice's Toxic Wastes and Race report, documenting the grossly disproportionate number of hazardous waste sites in communities of color, and after one of the researchers of that study joined our staff, CCR began making environmental racism a specific area of our litigation docket.

In the course of expanding our work in this area, we have sought to develop some sort of coherent approach in responding to the many requests for legal assistance. What role could CCR, as a civil rights-oriented legal organization (as opposed to, say, a community-based legal services office), play in this movement?

In the summer of 1990, I asked some of CCR’s law student interns to research the use of equal protection arguments around the siting of environmentally undesirable facilities, or what I termed "'reverse exclusionary zoning." They found that there were only a handful of reported cases, starting with Bean v. Southwestern Waste Management Corp., which utilized equal protection challenges in this context, and that all of the cases had foundered on the "intent"—for example, the inability to prove that the placing of a hazardous waste dump in a black neighborhood occurred because of an overtly racial motivation. Such proof is necessary, of course, in the aftermath of several Supreme Court decisions, such as Washington v. Davis and Arlington Heights v. Metropolitan Housing Development Corp., which held that disparate “impact” alone is insufficient to demonstrate a failure of equal protection.

One of CCR's interns, Rachel Godsil, went on that year to transform her research into one of the first published law review articles2 analyzing the use of equal protection arguments in the context of environmental racism. Subsequently, a plethora of academic writing on this subject has been published.

Yet for all the intellectual discourse, are the issues really that complex? Fundamentally, isn't environmental racism simply another manifestation of the disparities found in so many other aspects of society -such as health care, housing, employment, and education? After all, we live in a nation whose founding fathers (and I use that arcane term deliberately here) institutionalized a system of affirmative action for white males with property. Not only were women, African-Americans, Native Americans, and non-property-owning whites excluded from the economic dinner table, they were denied political power—particularly the right to vote. That only two centuries after the adoption of the U.S. Constitution the enormous disparities along the lines of race, and gender continue is hardly surprising, given the massive political and economic Head Start program provided to a single sector of society at the nation's founding.

Unfortunately, long-term historical perspectives are too often left out of the picture. Instead, we in the environmental justice movement find ourselves engaged in endless debates with each other and with our adversaries about the extent to which discriminatory patterns can be demonstrated to be "intentional" or whether they are merely the unintentional, benign byproducts of a supposedly value-neutral, laissez-faire market-place—as if the latter somehow makes it more acceptable. The counterattack on the "environmental racism" movement too easily seizes on this "intent" question as a means to dismiss the issue entirely. For example, in a recent article in the Wall Street Journal,3 New York Law School professor David Schoenbrod claims that:

Although minority communities have a disproportionate share of environmental problems, research suggest that the cause is not necessarily racial discrimination. Environmental hazards are likely to be placed in any community that either lacks political power or is willing to accept risks because they create jobs. . . Moreover, in many instances, the environmental hazards did not come to minority neighborhoods, but rather the minority populations came to the hazards.

This kind of reasoning, of course, completely ignores the question of why certain communities lack political power or are forced to accept poisoning in exchange for jobs. Is it somehow a mere accident that particular sectors of the population are poorer and powerless?

Whether or not a particular hazardous waste company decided for "invidious" racial motivations to site its facility on the wrong side of the tracks, it is certainly true that at some time it was "intended" that some persons, among them blacks, Hispanics, and Native Americans, would be politically and economically marginalized in the first place. While Professor Schoenbrod goes on in the above article to decry the "race-conscious making mandated" by the President's recent executive order on environmental justice, he conveniently ignores the history of race-conscious decision-making that has underlain this society ever since the arrival of Caucasians and Africans in the New World.

The challenge for progressive legal organizations such as ours is in the paradox of a legal and political culture that on one hand trumpets core values such as "equality," "fairness" and "due process," while at the same time vehemently adheres to so-called "free market" ideals which have tended to perpetuate existing inequalities along the lines of race, class, gender, sexual orientation, age, and national origin, among others. As Richard Kluger noted in his classic recounting of the Brown v. Board of Education school desegregation case, Simple Justice (at p 53.): "The legal rights of economically crippled people have probably always been frail in every land that called itself free, but the vulnerability of the weak has been especially acute in the United States, where good economics has so often determined what is good law."

If equality and equal protection are to have any meaning in a society in which certain members have been given a very substantial head start, it requires that we make every effort to redress the effects of longstanding past inequities. This surely means moving beyond arguments around the "intent" issue, and the "siting" issue, and addressing environmental racism both within the context of the institutionalized racism that suffuses all aspects of our society (jobs, housing, voting, etc.) and in finding remedies that can begin tipping the scales at least a bit closer towards equilibrium. Within the legal community, this means not only coming up with creative, new, "impact" litigation strategies or legislation, but also, for example, in a commitment to some rudimentary basics, such as providing or finding means to provide legal representation to those communities who usually lack such tools.4

In attempting to meet these goals, case selection has tended to follow some loose criteria:

a) We are strongly committed to taking cases that support movement building, because we do not believe that political change takes place solely through the courts (if at all), but rather, by the self-empowerment of oppressed people organized to demand political and civil rights, and the fulfillment of those rights (to which lawyers can sometimes assist in handling the mechanics of civil society's rules).

b) We also take cases that provide legal support where there is no other means of obtaining representation, such as legal services or pro bono services of lawyers.

c) We take cases where CCR can make a contribution within areas of particular expertise, such as constitutional law or international human rights.

d) We take cases which we think can dramatize and educate about the issues joining race, poverty, and the environment.

Since 1990, CCR’s environmental racism docket has grown to be local, national, and international in scope. Some of the new cases we have taken on include:

Williamsburg Around the Bridge Association v. Giuliani: New York City's sandblasting on bridges that run through poor neighborhoods caused lead dust to rain down on communities of color, raised soil lead levels to as high as 30,000 parts per million (the “safe level” is 500 parts per million), and doubled the already elevated blood lead levels in children.

The widespread lead contamination bas brought an unprecedented unity of diverse communities in seeking testing adequate testing and treatment of their children and measures to prevent a repeat of this disaster. For example, in Williamsburg, the Community Alliance for the Environment was formed, bringing together the Hispanic and Hasidic segments of this neighborhood, groups that are often in conflict over scarce housing resources and other resources.5

Lead has a severe impact on urban poor and communities of color: of the identified cases of poisoning in New York City were African American children, and 27% were Latino children. In 1991, among children with family incomes below $6,000 living in larger cities (over 1 million), 80.4% of white and 96.5% of African American children were projected to be affected with elevated blood levels.7

In re Matter of the Application of Missouri Waste Management Inc.: CCR assisted grassroots and Native American organizations in opposing a plan by four in South Dakota to jointly build and operate a dump on privately-owned land within the boundaries of the Sioux Reservation. Although the organizations had written and petitioned the local and state authorities and packed public hearings on the plan, South Dakota seemed intent on an expedited approval of the dump. CCR filed for an administrative hearing on behalf of the Ihanktunwan Game, Fish and Wildlife Services Committee of the Yankton Sioux Tribe, as well as Voices Organized to Save the Environment, the latter an organization of both Native Americans and non-native persons working together for the first time. At a four-day hearing in December 1993, CCR helped present expert geological and engineering testimony, and the Native organizations brought in a busload of their members from 200 miles away to speak in opposition. Nonetheless the State board voted 6 to 2 vote in favor of the dump, and an appeal has been filed to the State court.

Hinchey et al v. Trustees of Power Authority of N. Y.: This case seeks to stop the planned construction of massive hydroelectric dams to be built on the lands of the Cree Indians in the James Bay region of Quebec. The Cree have been actively opposing these projects, and their efforts have included litigation, lobbying, and various demonstrations, including a canoe trip by tribal members from northern Canada down to New York City to draw attention to the impact that exports of "cheap" Canadian hydropower to service the electric needs of New York will have on their way of life.

The flooding of vast areas (over 1,000 square miles) would destroy the traditional hunting and fishing grounds and rivers of the Cree, who are dependent upon the lands for their income and nourishment and for the survival of their culture and religion. Much of the power generated from these dams will be sold to New York. There are also effects in the U.S. on the environment and the economy: the power imports produced by capital-intensive hydroelectric projects deprive New Yorkers of jobs in the growing energy conservation field and will result in the export of billions of dollars.

Plaintiffs, including the Grand Council of the Cree Indians, individual members of Congress, and various environmental and energy groups, challenged the contract for electric sales from Hydro-Quebec to the New York State Power authority, based upon the compact clause of the US constitution, which requires that compacts between a state and a foreign state be approved by Congress.

In a related state court action, Sierra Club et al v. Power Authority of N. Y., a coalition of organizations, including the Cree nation, challenged the Power Authority's refusal to prepare an Environmental Impact Statement on the contract between New York and Quebec for power from dams.

After years of organizing, lobbying, and litigation, the newly appointed head of the Power Authority recently cancelled the contract with Quebec, due to, among other things, its devastating impact on the environment and the Crees, and settlement negotiations are in progress.

In Iron Cloud v. Sullivan, CCR sued the Indian Health Service (“IHS”) and others to stop the safety testing of unlicensed hepatitis A vaccine on Native American children and infants without the informed consent of their parents. The case was dismissed as moot, noting, however, that ...have grave doubts that the information provided by the government afforded those solicited an adequate basis for informed consent [but that] we have every confidence that the government has learned from this experience and will be less cavalier in the future in its approach to seeking voluntary informed consent from prospective subjects for experimental pharmaceutical tests to be conducted on Indian reservations or anywhere else."

In response to a concurrent administrative review petition, however, the FDA revealed that it modified its procedures in obvious response to the lawsuit, for which plaintiffs are now seeking attorney fees.

In Save The Audubon Coalition vs. City of New York, CCR assisted community organizations who sought to prevent the demolition of the Audubon Ballroom in Harlem, the site of Malcolm X's assassination, for the construction of New York City's first major commercial genetic engineering manufacturing facility. The community was concerned about both the cultural importance of preserving the site of Malcolm X's assassination and the potentially adverse health effects from commercial genetic engineering, including emissions that would occur in a closely inhabited urban setting among a large impoverished population whose resistance to biological injury is already compromised. Moreover, they believed that they were shut out of any meaningful participation in the decision-making process, and that their community had been targeted for a potentially hazardous facility.

CCR’s lawsuit challenged the failure to comply with the requirements regarding public comment on the Environmental Impact Statement, the utter failure to address the potential public health impact of the and hazardous chemicals used in manufacturing processes.

In addition, CCR has been involved on a national level in developing a network of other progressive lawyers and movements concerned with environmental racism. CCR staff members served on the advisory board of the first National People of Color Environmental Leader-ship Summit in 1991, and have helped to organize (and teach at) environmental law seminars for civil rights attorneys seeking to begin litigating in this field, as well as environmental law classes for non-lawyer community activists.

CCR sees the issues of race and poverty to be fundamentally related to environmental issues in society as a whole. While inner cities generally have the highest levels of exposure to environmental hazards such as lead, air pollution, and heavy industries, the impact of race and class in this society is such that persons of color often lack the mobility to avoid exposure to such hazards. Moreover, environmental issues frequently involve the "NIMBY" phenomenon ("Not in my Back Yard"), which usually means that environmental hazards will be sited in the back yards of those sectors of society with the least access to political power or legal resources. As long as society continues to inflict the environmental cost of modern human activities on the powerless, achieving a goal of an environmentally sound and sustainable world is impossible.

Matthew J. Chachere is a staff attorney working on environmental justice issues at Bronx Legal Services. He was formerly with the Center for Constitutional Rights.



Notes

1. Our early briefs sought to place the case in the larger context of the higher rate of exposure of African Americans to toxics, by citing, among others, the June 1983 Government Accounting Office report that found that 75% of the hazardous sites studied were situated in predominately African American communities.

2. Rachel Godsil, Remedying Environmental Racism, 90 Michigan L. Rev. 394 (1991)

3. Schoenbrod, Environmental 'Injustice' Is about Politics, not Racism, Wall Street Journal, 2/23/94, page A21.

4. This is really no different from the need in so many other social inequalities. In eviction proceedings in New York City, for example, only 10% of tenants are represented by counsel, while 90% of landlords have lawyers. So even assuming some "equal right" to minimally decent housing, the disparity of legal resources prevents any such right from becoming a reality.

5. Williamsburg/Greenpoint in Brooklyn is one of the most heavily polluted inner city neighborhoods in the country. Several studies have documented both the high number of hazardous industries in the community and the poor air quality. The 142,000 residents of Greenpoint are breathing some of the dirtiest air in America, with a level of toxic and suspected cancer-causing chemicals roughly 60 times the national average. Industry reports to the federal and state governments for 1987 and 1988 indicated that at least 1,450 tons of toxic chemicals were released into the air over the densely populated Brooklyn neighborhood in 1987. In addition, City studies have indicated that residents of Williamsburg run a greater risk of leukemia and stomach cancer than other city residents, and that neighborhood children had a particularly high rate of cancer.

6. Centers for Disease Control, Preventing Lead Poisoning in Young Children (Oct. 1991) at 1.

7. Based upon the report of the Agency for Toxic Substances and Disease Registry ("ATSDR”) of the Public Health Service, The Nature and Extent of Lead Poisoning in Children in the United States: A Report to Congress (July 1988) and a review and update of that Report by the Report's co-author, Paul Mushak, Ph.D., Proceedings of the First National Conference on Laboratory Issues in Children Lead Poisoning Prevention (1991) at 79-104.




Environmental Justice and the Law | Vol. 5 No. 2 & 3 | Fall 1994/Winter 1995

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