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.