Environmental Justice: The Dawning of a New Era in Civil Rights

By Jason Perry, JD Candidate, The Ohio State University Moritz College of Law

June 13, 2003

Abstract: This essay stems from research I compiled while conducting an independent study regarding pollution in poor, nonwhite, and elderly communities.

Introduction.

Today, despite significant progress in environmental and civil rights protections, over three billion people worldwide still live in contaminated environments [fn1]. The environmental justice movement has arisen to combat such issues. Although this grassroots movement was originally launched in the Southern and Western U.S., it has become a global quest [fn2]. Our focus, however, will be limited to the U.S.

Our discussion of environmental discrimination will proceed as follows. First, with numerous complex spins having been put on the subject, I concisely delineate the problem and provide illustrations from affected communities. Second, the institutional arrangements that foster environmental discrimination are enumerated. Third, I explore how and why current Federal environmental jurisprudence is of little use to environmental plaintiffs. Fourth, I examine how traditional civil rights and contemporary environmental groups are joining forces to promote environmental justice. Finally, I offer strategies for insuring the long-term success of the environmental justice movement.

I. The Concept of Environmental Discrimination.

As used in this essay, the term "environmental discrimination" refers to the maldistribution of environmental benefits and burdens among communities with differing racial, income, and various other characteristics. Scholars have also used the term "environmental racism" to describe the effects of this phenomenon on people of color [fn3], but, since other groups (such as poor people) are affected, I use the all-encompassing term "environmental discrimination."

Environmental discrimination is a brutal reality. Empirical research dating back to the 1970s indicates that minorities and poor people bear the disproportionate burden of, among other things, air and sound pollution, poisoning from lead and pesticides, and trash disposal [fn4]. Studies are mixed as to whether race or socioeconomic class is the stronger predictor of an unhealthy environment, but, in my view, the issue is trivial to the overall picture; it is equally trivial whether disparate sitings occur intentionally. The crucial point is that certain groups systematically endure the burdens of our industrialized economy, namely pollution, while society in general accrues the benefits -- jobs, goods and services, and revenue.

Evidence from affected communities brings the maldistribution principle to life. White Mesa, Utah, a Native American "Indian" reservation, is located near a dump for the radioactive waste of International Uranium Corporation [fn5]. Another reservation, which is located in the small desert town of Parker, Arizona, houses a waste processing plant operated by USFilter/Westates, the company that handles some of America's most toxic wastes [fn6]. Emelle, Alabama, a poor, predominately African-American neighborhood, is home to the largest hazardous waste land fill in the United States. (The Emelle dump is approximately 2,700 acres in size and receives toxic materials from more than forty states in addition to numerous foreign countries [fn7].) Williamsberg, a predominately Hispanic neighborhood in Brooklyn, New York, is the site of twenty-eight facilities that regularly store hazardous materials, including Radiac Corporation, which handles radioactive waste one block from an elementary school [fn8]. Perhaps the most graphic example, however, is Louisiana's 85-mile industrial corridor. This corridor, which is nestled along the Mississippi River between New Orleans and Baton Rouge, contains 136 petrochemical facilities [fn9]. The air, ground, and water are so highly contaminated that residents and medical researchers have dubbed the region "Cancer Alley" [fn10].

The landmark study, Toxic Wastes and Race in the United States [fn11] found, among other things, that commercial hazardous facilities were most prevalent in neighborhoods with the highest concentration of racial and ethnic minorities; that the average minority population of communities with at least one hazardous facility was double the minority population of communities with no hazardous facilities; and that three out of five Hispanic-Americans and African-Americans lived in communities with at least one toxic waste site. Given the severity of degradation in poor and minority communities and the regularity with which such areas are degridated, it is highly unlikely that disproportionate environmental discrimination is a product of simple happen stance or a single individual or group. A more plausible explanation is that environmental discrimination, like racism and sexism, is institutional and systemic in nature. We next examine some of the crucial institutional arrangements that have led to the siting of hazardous facilities in minority and working-class neighborhoods.

II. Institutional Arrangements that Perpetuate Environmental Discrimination.

A. The Political Underpinnings: Lack of Symmetry Among Interest Groups.

Politics is nothing more than an arena in which groups with competing interests jockey for position to determine how scarce societal resources will ultimately be allocated. From a political standpoint, then, inequitable distributions of costs and benefits (such as that found in environmental discrimination) can be explained as the product of asymmetry among competing interest groups.

If equitable distribution of society's benefits and burdens is contingent on symmetry with respect to the influence of competing groups in the decision-making process, certain groups will inevitably be more heavily burdened because, as a practical matter, multiple factors (such as language barriers, disparities in financial or technical capital, and under-representation) converge to create significant asymmetry among interest groups. For example, a lack of fluency in English often results in the total exclusion of immigrants and ethnic minorities from community functions [fn12]. This was the case recently in Kings County, California. Despite the fact that 40 percent of Kings County residents were non-English speakers, county officials failed to provide translations of public documents related to a plan to site an incinerator in the area [fn13]. As Auscencio Avila, a Spanish-speaking resident, wrote to the county planning commission requesting translation, "[to] not do this is to keep the community ignorant of what is going to happen, and to keep the community without any political power …" [fn14]. But even if minorities and poor people have the requisite language skills as many do, their ability to digest the legal and physical ramifications of new regulations, many of which are highly vague and highly technical, is often inhibited by a lack of cash to hire expert witnesses or sustain group attendance at public hearings and legal proceedings [fn15]. These obstacles either lead many residents to vote without sufficient data to make an informed decision, or else prevent certain groups from participating in the political process altogether. For instance, a recent meeting concerning the expansion of a toxic waste dump located just eight miles west of Buttonwillow, California, a community comprised predominately of Latino farmers and oil field workers, was attended mostly by nonresident whites; the fact that a mere three Latinos attended [fn16] is significant because those in attendance wanted to double the size of the dump and increase its intake from only petroleum waste to more than 450 toxic substances [fn17]. Finally, if all the other hurtles are overcome, poor people and minorities simply do not have a voice in the political arena. Only two African-Americans were elected to the U.S Senate In the twentieth century [fn18], and a mere 87 people of color were elected to the U.S. House of Representatives during that same period [fn19]. In addition, despite progress in recent years, minorities are still notably absent from environmental organizations [fn20].

B. Legal Facilitators: Discriminatory Zoning and Land Use.

In a society where most law-makers are elected officials, it can reasonably be deduced that lack of political clout dovetails into legal disadvantage. Such disadvantage in the environmental rights arena rears its ugly head in the context of zoning and land use decisions [fn21]. Zoning is a powerful tool because it involves the use of local government authority to regulate land use, the siting of industrial and waste disposal facilities, as well as infrastructure development. Thus, zoning is an instrument that can be used to sort specific individuals into particular neighborhoods and push polluting facilities into vulnerable communities.

Between 1920 and the late 1970s, the city council of Houston, Texas placed eight out of every ten solid waste dumps in predominately African-American communities, even though African-Americans comprised no more than 25 percent of the city's population at any time during this period [fn22]. Claiborne Parish, Louisiana, the corridor for two mostly-black communities where the per capita income is only $5,800 annually and the black population is more than double the Louisiana average, was chosen as "the most appropriate" site for our country's first privately-owned uranium enrichment plant [FN23]. It might be possible to explain some of the aforementioned siting decisions using such neutral criteria as property value and proximity to surrounding industry; yet, de facto discrimination against poor people and minorities is prevalent regardless of the explanation. Pinpointing the source and effects of such discrimination is a difficult, if not impossible, legal undertaking. Section III explores how current environmental rights jurisprudence has converged to make this task so daunting and why it is consequently of little value for providing a viable remedy for those desperately in need of relief.

III. The Pro-Defendant Slant of Current Federal Environmental Jurisprudence.

A. The Fourteenth Amendment's Equal Protection Clause: The Hurtles of Showing Discriminatory Intent and Overcoming Rationality Review.

Supreme Court jurisprudence clearly establishes the elements needed for an equal protection claim, all three of which are required to obtain relief. First, there must be government action, state or local, which is either facially discriminatory or else backs private action that is discriminatory [FN24]. Second, the government action must be invidiously discriminatory -- treat similarly situated people differently without justification [FN25]. Finally, plaintiffs must prove discriminatory intent [FN26] -- the mere disparate impact of a statute or regulation on a particular group is not sufficient to PROVE intent to discriminate [FN27]. In the context of municipal service provision, however, some courts have held that a substantial disparate impact constitutes circumstantial proof of discriminatory intent [fn28].

Of these three elements, proving discriminatory intent is by far the most difficult [fn29]. This is in large part due to judicial reluctance to find such intent when the neighborhood is not predominately minority at the time of the original siting [fn30]. Courts also refuse to consider the cumulative effect of facilities sited by different agencies -- the courts generally prefer to consider the defendants action standing alone rather than to consider particular actions in the context of other decisions by the defendant or decisions by other local agencies [fn31]. In short, courts will not find discriminatory intent without a "clear pattern, unexplainable on grounds other than race," [fn32].

In lieu of all these hurtles, current Federal equal protection jurisprudence is of little help to environmental plaintiffs. The reason for this is that the schema provides several convenient safe havens to culpable decision-makers. For example, refusing to find discriminatory intent unless the community is predominately minority at the time of the original siting effectively allows a locale two outs for avoiding liability. It can either steadily increase the number of hazardous facilities in communities that were contaminated prior to becoming predominately minority, or, alternatively, site hazardous facilities in undesirable nonminority communities and subsequently adopt zoning and land use regulations that tend to push minorities into these areas. Similarly, judicial refusal to weigh the cumulative effect of hazardous sitings by different agencies allows for excessive pollution in certain communities despite the reality that the same institutional prejudices undoubtedly underlie the practices of different decision-makers. Requiring a clear pattern unexplainable on grounds other than race is also detrimental because decision-makers can easily avoid liability by simply using race-neutral criteria which, although analytically distinct from race, may be so closely correlated with it that they achieve the same or similar result while masking racist motives. The plight of environmental plaintiffs is further complicated by the rational basis level of scrutiny applied to such decisions -- many siting decisions undoubtedly have a seemingly rational justification at some level. In short, unless a plaintiff can show that a particular siting decision or group of siting decisions was adopted for the purpose of discrimination, he cannot prevail under the equal protection clause.

B. The Fair Housing Act: The Necessity of showing Actual particularized Harm Related to Sale or Rental of Housing.

Title VIII (The Fair Housing Act) [fn33] contains two provisions that could, at least in theory, be used to combat disparate hazardous sitings. The first is 42 U.S.C. § 3604(b), which outlaws discrimination with respect to "terms, conditions, and privileges of sale or rental of a dwelling, or in the provision of service or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin." The second is 42 U.S.C. §3617, which makes it unlawful to threaten, coerce, intimidate, or interfere with the exercise or enjoyment of any right granted or protected by §3604. Title VIII might be effective, therefore, if a plaintiff community can show that a zoning plan permitting commercial land uses in residential areas has a definable adverse impact on services or facilities that are closely associated with purchasing or renting a place to live. In theory it should also be implicated if the affected community can demonstrate that a particular land use threatens or interferes with residents' ability to enjoy such services or facilities.

Title VIII principles were used to fight a dump expansion plan in Buttonwillow, California. Opponents of the expansion argued that expanding the dump would segregate Buttonwillow and that such a segregative effect violated Title VIII [fn34]. Ruling on a series of motions, the judge dismissed the Title VIII claim [fn35].

In order to attain success under Title VIII, one must show actual damage to a particular piece of land [fn36]. Thus, environmental plaintiffs (like those in the Buttonwillow area) who want to show how a particular decision will result in future damage to their community cannot prevail under Title VIII.

Procedurally speaking, the plaintiff has only two years from the termination of a discriminatory housing practice to file suit in Federal court [fn37] and only one year to file with the Secretary of Housing and Urban Development [fn38]. Such a rapid response is simply impractical for environmental plaintiffs, given the political and socioeconomic constraints of most affected communities.

C. Title VI: Overcoming Uncertainty About Standing, the Justification of Race-Neutral Criteria, and Statutory Vagueness.

Title VI [fn39] forbids discrimination because of race, color, and national origin in programs and activities receiving Federal funds. Hence, individuals who are in a protected class and who have been harmed by a discriminatory action funded by the Federal government can bring a claim. Title VI environmental claims are generally brought against the state and local governmental entities that approved the permit rather than the permit applicant [fn40].

Title VI claims can be brought under both section 601 and section 602. As with equal protection plaintiffs, section 601 plaintiffs must prove discriminatory intent [fn41]. Section 602 plaintiffs, by contrast, must only prove disparate impact, as practices which have discriminatory effect are prohibited even where purposeful design is not present [fn42]. Still, a plaintiff in a successful section 602 claim must prove, ideally through statistical comparison of relevant data, that a proposed action will have a disparate impact on a protected group [fn43]. If a plaintiff is successful in showing disparate impact, the burden then shifts to the governmental agency to produce a legitimate, nondiscriminatory reason for the decision [fn44]. Title VI forbids only unjustifiable disparate impacts [fn45], and recent cases on point suggest that courts will permit as justification such factors as efficiency or significant cost savings, and the unavailability of suitable alternative sites [fn46]. Finally, once the agency has produced a legitimate, nondiscriminatory justification, the burden again shifts to the plaintiff to prove that the justification is pretextual or that the agency failed to adopt an alternative practice or location that would have been less discriminatory while still accomplishing the agency's purpose. Alternative practices must either be equally effective or comparably effective, depending on the jurisdiction [fn47].

Even if they have an otherwise good case, there are three potential hurtles that Title VI plaintiffs must overcome. First, they may or may not have standing, depending on the jurisdiction. For example, in Bryant v. New Jersey Dept. of Transp. [fn48], in which the plaintiffs were fighting a proposed highway through there neighborhood, the judge initially dismissed the case because the plaintiffs failed to plead that they were the intended beneficiaries of the Federal funds and thus could not show a nexus between the Federally-funded program and their right to sue. Eight days later, however, the Supreme Court held in Nat'l Credit Union Admin. V. First Nat'l Bank and Trust Co. [fn49] that congressional intent to benefit a class of plaintiffs is not required to find a particular plaintiff within the zone of interests for standing purposes. Taken as a whole, this decision does not ultimately resolve the question of whether there is a private right of action under Title VI, but rather, permits courts to reasonably reach differing conclusions. And courts have done just that. After the decision in National Credit Union Admin., for example, the Bryant court reinterpreted the relevant Department of Transportation regulation pursuant to section 602 as forbidding any action that has a racially discriminatory effect. Because the plaintiffs had initially plead discriminatory intent, they now had standing to pursue a Title VI claim.

The standing dilemma is even more uncertain in light of Chester Residents Concerned for Quality Living v. Seif, [fn50] In Chester, the Third Circuit found a private right under Title VI and its implementing regulations and held that declaratory and injunctive relief were available in discriminatory effect cases [fn51]. Although it did not articulate the grounds for its decision, the supreme Court remanded the case back to the Third Circuit with instructions to dismiss [fn52].

It is thus unclear whether a private right under Title VI even exists. Assuming that it does, there is still a question of whether agency regulations promulgating section 602 create such a right, and, if so, whether review is limited to the agency that promulgated the regulation.

In addition to uncertainties about standing, Title VI plaintiffs must also file their claims within a strict statutory period, which starts running at the time of the first violation or the latest date at which the plaintiff could have been made aware of the violation. Thus, plaintiffs who wait until a proposed action is in the final stage of approval could well have their suits time barred under Title VI, even if bringing their claims earlier means that they lack sufficient evidence [fn53].

The final noteworthy Title VI hurtle is the vagueness of the statutory language itself. Crucial concepts like disparate impact, affected population, and justification, for example, are not statutorily defined. This leads different courts to make different interpretations, and the results are neither always consistent nor predictable. As a practical matter, the statute's vagueness, strict proof requirements and rigid time constraints for filing converge to make Title VI virtually useless to those who need it most.

D. Federal Environmental Statutes: Inadequate Assessment of Human Environmental Quality Factors.

There are two major Federal statutes under which environmental plaintiffs can obtain relief, the National Environmental Policy Act (NEPA), and the Resource Recovery and Conservation Act (RCRA).

NEPA [fn54] requires that an environmental impact statement (EIS) be prepared in connection with "… major Federal actions significantly affecting the quality of the human environment" [fn55]. Notice that the "Federal action" limitation immunizes all siting decisions by state and local governments as well as private industries from the EIS assessment. Likewise, additional qualifiers (such as "major" and "significantly affect") operate to shield many smaller-scale Federal projects and even large-scale Federal projects that are deemed to have only a local effect. Most poignantly, however, the term "human environment" is defined and analyzed from the standpoint of physical environmental impacts; socioeconomic impact, standing alone, is insufficient for NEPA purposes [fn56].

RCRA [fn57] represents Federal waste management legislation. It requires that waste management facility applicants meet certain requirements to insure that hazardous and nonhazardous wastes are managed in ways that protect both the environment and human health [fn58]. Noteworthy for our purposes, RCRA allows for citizen suits to enforce these provisions [fn59], and permitting and site location is delegated to state enforcement agencies [fn60].

RCRA requires no assessment of socioeconomic impacts or factors. However, a state enforcement agency now has the discretion to consider environmental and health factors [fn61]. However, such an assessment may be of little benefit in practice, because, an agency cannot reject a permit solely on the basis of socioeconomic impacts unless those impacts are closely tied to environmental impacts [fn62]. If an applicant meets RCRA requirements, the agency must grant the permit regardless of the racial or socioeconomic composition of the community and regardless of the economic effect of the site on the community [fn63].

It is noteworthy that a plaintiff cannot actually obtain an injunction under NEPA or RCRA; she can only insure procedural compliance [fn64]. For this reason NEPA and RCRA often represent little more than procedural hurtles to a determined polluter.

IV. New Alliances and Strategies for Promoting Environmental Equity.

In the face of defendant-oriented law, environmental rights advocates have been forced to look beyond the Federal legal arena for relief. Some have sought legal relief at the state level (see part V), but, these groups have not confined themselves to the legal arena for vindicating their rights. Instead, urban environmental justice advocates have used public relations tactics to encourage traditional environmental groups, which have historically been comprised of elite white people with a conservation rather than an urban orientation [fn65], to recruit minorities for leadership positions and focus more on urban environmental issues [fn66]. The result has been a dynamic alliance that continues to employ a potent blend of civil rights rhetoric and local grassroots political organizing to combat discrimination [fn67].

The success of environmental justice coalitions continues to be paramount. Although I could write numerous pages about these successes and the tactics behind them, I will instead discuss only two coalitions. I have chosen these two groups both because of their tremendous success and because I believe they have developed a model that other groups can learn from and successfully implement.

A. MELA.

In 1985, a group of predominately Hispanic mothers in East L.A. formed a coalition - MELA (Mothers of East Los Angeles) - to fight construction of environmental and public health hazards in several East L.A. communities [fn73]. Concerned Citizens of Central Los Angeles (CCSLA), a predominately African-American coalition, joined MELA's campaign [fn74]. Together, these two groups developed the capacity to muster several hundred dedicated volunteers on short notice to attend public hearings, organize protests, and distribute bilingual literature [fn75]. To date, MELA and its allies have prevented the construction of what would have been the eighth prison in East L.A. (which involved an eight-year battle with the state of California), halted an industrial plan to run another city's oil pipeline through a predominately Hispanic community, and successfully prevented the siting of other hazards [fn76]. One of MELA's leaders - Aurora Castillo - received the Goldman Environmental Prize for her activism [fn77].

B. The Atgeld Gardens Coalition.

Atgeld Gardens, a predominately African-American housing project on Chicago's Southeast side, houses over 10,000 residents. The complex was built on top of an old garbage dump and is surrounded on all sides by pollutants - various chemical plants, a paint factory, seven land fills, contaminated lagoons that emit 30,000 tons of pollutants into the air annually, two steel mills, and a hazardous waste incinerator [fn78]. Residents in and around Atgeld Gardens have organized a variety of grassroots campaigns in protest of what they believe to be toxic levels of pollution in their neighborhood. Door-to-door voter registration and community organizing have resulted in extensive involvement. The Atgeld Gardens effort has been so successful in raising public awareness about environmental discrimination that the group has received support from local organizations like West Harlem Environmental Action and Blacks Against Nukes (Washington, D.C.) as well as national environmental groups such as Greenpeace and Earth Island Institute [fn79].

C. The Big Picture: The Role of National Environmental Groups.

A simple scrutiny reveals the strides that traditional environmental organizations and urban grassroots environmental groups have made in putting up a united front in the quest for environmental justice. Perhaps the best indicator is that several national environmental groups (such as Greenaction [fn68] and The Sierra Club Foundation [fn69]) have made environmental justice a high priority in their programming. The Sierra Club, for example, has created a National Environmental Justice Grassroots Organizing Project [fn70], which is designed to provide financial and technical support to local environmental activist groups. Greenaction, a San Francisco-based environmental justice organization, has launched a series of neighborhood youth forums to increase community awareness of environmental equity issues and train minority youth leadership for the movement (fn71]. Greenaction has also launched the Bayview Hunters point Mothers Environmental Justice Leadership Project, a campaign that provides African-American mothers with empowerment-based training in community organizing, media communications, leadership, and research [fn72].

V. Insuring the Long Term Success of the Environmental Justice Movement.

From my work on this project, I offer three suggestions for insuring the long term vitality of the environmental justice movement. First, given that Federal environmental rights jurisprudence is of little assistance in its current form, environmental justice advocates should resort to state jurisprudence. The highest courts of many states have read their state constitutions as containing more explicit and more exacting standards of equal protection than that currently articulated in Fourteenth Amendment jurisprudence. For example, the New Jersey supreme court held in Southern Burlington County NAACP v. Township of Mt. Laurel [fn80] that adequate housing for all people is an absolute essential in promoting the general welfare and is required in all land use regulation [fn81]. Moreover, the Court, in reviewing the township's justification for exclusionary zoning -- maintaining a rural setting and protecting the local tax base -- held that adequately housing all people is of such importance "that the general welfare which developing municipalities like Mt. Laurel must consider extends beyond their boundaries and cannot be parochially confined to the claimed good of the particular municipality." Under such a broad reading of general welfare, people experiencing environmental discrimination in New Jersey could likely successfully repeal through the courts exclusionary land use regulations that push minorities into living in contaminated areas. They could also compel the development of low-income housing in wealthier communities.

In addition to utilizing state judicial forums, environmental justice advocates should also campaign for municipal regulations that equitably distribute adverse sitings. Through extensive campaigning environmental justice advocates in San Francisco recently got the city to become the first U.S. municipality to enact the Precautionary Principle, a framework used in Northern and Western Europe for enacting laws that protect public health and the environment [fn83]. The san Francisco Precautionary Principle ordinance [fn84] is significant because it gives all San Franciscans an equal right to a safe and healthy environment [fn85]. Although I am skeptical of its potential to make a real difference because of its failure to impose obligations on decision-makers and provide for compensatory and injunctive relief, the San Francisco ordinance is at least a step in the right direction.

My final suggestion is pragmatic, controversial, and geared at bringing the diverse groups who are affected by environmental discrimination together to combat the problem. Because race is such a hot-button political topic, I believe that environmental justice advocates need to de-emphasize racial classifications in order to reach out to all affected groups, many of whom are white, to mount a united assault against the big polluters, who have a vested interest in keeping affected communities bickering amongst themselves in order to slow down progress and holt change -- race is but one of many factors that is correlated with environmental inequity. My concern that politically-created race issues might clutter the real debate motivated me to use the term "environmental discrimination," instead of the more popular term "environmental racism" throughout this essay.

Conclusion.

Environmental discrimination is a serious social problem that has harmful, sometimes fatal and often irreversible consequences on the population it affects. As we have seen, environmental discrimination is not a mysterious happen stance phenomenon, but rather an occurrence that is perpetuated by institutional arrangements (such as law and politics) which are set up to protect the interests of those in power. Through grassroots political organizing and alliances with national organizations that embrace traditional civil rights themes, local environmental justice advocates are making great progress in cleaning up their communities. The emerging philosophy seems to be that, just as minorities are protected from inferior employment and housing, so too should they be protected from inferior environments.

I see two potential stumbling blocks to the long term vitality of the environmental justice movement. First, as mentioned in the last section, some advocates focus too much on race and whether disparate sitings occur consciously. In my view this only complicates and weakens the debate and may even serve to alienate vital allies like the poor, the elderly, and working people, all of whom are viewed as easy targets for hazardous sitings. Second, advocates need to take care not to loose sight of the real problem, hazardous sitings and polluting land uses themselves. If such sitings and uses are merely made without prejudice, the burden is merely shifted from smaller groups to society at large. Excessive pollution is not inevitable; it occurs only because it is cheaper to pollute than to recycle and conduct activities cleanly. In order to avoid a mere spreading out of the burden, leaders must make prevention a cornerstone of the environmental justice movement.

Through a comprehensive focus on the real needs of affected populations as well as a prevention-oriented paradigm, environmental justice will become the next mountain to be climbed in the broader struggle on the road to social justice.

References

1. Robert D. Bullard, Confronting Environmental Racism in the 21st Century, speech presented at the UN Racism and Public Policy Conference, Durban, South Africa (September 3-5, 2001).

2. Id.

3. See e.g., Bunyan Bryant & Paul Mohai, eds. (1992A), Race and the Incidence of Environmental Hazards : A Time for Discourse . Boulder, CO: Westview Press.

4. See e.g., Leonard P. Gianessi et al., The Distributional Effects of Uniform Air Pollution Policy in the United States, 93 Q.J. ECON. 281 (1979); and Michel Gelobter, The Distribution of Air Pollution by Income and Race, Paper Presented at the Second Symposium on Social Science in Resource Management, Urbana, Illinois (June 1988).

5. John F. Harrington, The Devil's Dirt, Salt Lake City Weekly (May 29, 2003).

6. Julie O'Shea, Mountain View succeeded in keeping Superfund waste out of local air. But now it's being sent to an Indian reservation, where it's turned into something worse., The Mountain View Voice (May 16, 2003).

7. Charlie Cray, Waste Management, Inc: An Encyclopedia of Environmental Crimes & Other Misdeeds, Greenpeace Report (1991).

8. Luis G. Acosta, Testimony at New York State Legislative Hearings on Minorities and the Environment (Sept. 19, 1991), In MINORITIES AND THE ENVIRONMENT: AN EXPLORATION INTO THE EFFECTS OF ENVIRONMENTAL POLICIES, PRACTICES AND CONDITIONS ON MINORITY AND LOW-INCOME COMMUNITIES: PROCEEDINGS FROM THE 1991 PUBLIC HEARINGS SERIES (1991).

9. Robert D. Bullard, Dumping in Dixie: Race, Class, and Environmental Quality (Westview 1990), at 65.

10. Id.

11. Commission for Racial Justice, United Church of Christ (1987). Toxic Wastes and Race in the United States: A National Report on the Racial and Socio-Economic Characteristics of Communities with Hazardous Waste Sites. New York: Public Data Access. xiii-xvi.

12. Wayne A. Cornelius et AL, Mexican Immigrants and Southern California: A Summary of Current Knowledge, 73-78 (1982) (empirical research and analysis on the language barrier to political participation among Mexican immigrants).

13. Second Amended Petition for Writ of Mandate at 3, 4, El Pueblo Para El Aire y Agua Limpio v. County of Kings, No. 366045 (Cal. Super. Ct. Dec. 30, 1991).

14. Petitioners' Memorandum of Points and Authorities in Support of Petition for Peremptory Writ of Mandate at 30, El Pueblo (No. 366045) (quoting Auscencio Avila).

15. See Paul Mohai, Black Environmentalism, 71 Soc. Sci. Q. 744, 762 (1990).

16. See Luke W. Cole & Sheila R. Foster, From the Ground Up: Environmental Racism and the Rise of the Environmental Justice Movement 80 (2001).

17. Id., at 81-82.

18. See www.senate.gov/artandhistory/history/common/briefing/minority_senators.

19. See www.house.gov/ebjohnson/cbcformermembers.htm.

20. Philip Shabecoff, Environmental Groups Told They Are Racists in Hiring, N.Y. TIMES, Feb. 1, 1990, at A20.

21. Robert D. Bullard, The Threat of Environmental Racism, Natural Resources and Environment, 7 (3): 23- 26, 55-56 (1993).

22. Robert D. Bullard, Building Just, Safe, and Healthy Communities, 12 Tul. Envtl. L.J. 373, 394-95 (1999).

23. Nuclear Regulatory Comm'n, Draft Environmental Impact Statement for the Construction and Operation of the Claiborne Enrichment Center, Homer, Louisiana 3-108 (1993).

24. See generally Shelley v. Kraemer, 334 U.S. 1 (1948).

25. Plyler v. Doe, 457 U.S. 202 (1982).

26. Akins v. Texas, 325 U.S. 398 (1945); Keyes v. School Dist. No. 1, 413 U.S. 189 (1973).

27. Washington v. Davis, 426 U.S. 229, 239 (1976).

28. See, e.g., Hawkins v. Town of Shaw, 437 F.2d 1286 (5th Cir. 1971), aff'd en banc, 461 F.2d 1171 (5th Cir. 1972).

29. See Philip Weinberg, Equal Protection in The Law of Environmental Justice: Theories and Procedures to Address disproportionate risks, 10-14 (Michael B. Gerrard ed., 1999).

30. See generally Bean v. Southwestern Waste Mgmt. Corp., 482 F. Supp. 673, 677 (S.D. Tex. 1979), aff'd without opinion, 782 F.2d 1038 (5th Cir. Tex. 1986).

31. Id.; see also East Bibb Twiggs Neighborhood Ass'n v. Macon-Bibb County Planning and Zoning Comm'n, 706 F. Supp. 880 (M.D. Ga. 1989), aff'd, 896 F. 2d 1264 (11th Cir. 1989) (the court refused to consider the landfills and waste sites run by other agencies).

32. Village of Arlington Heights v. Metro. Hous. Dev. Co., 429 U.S. 252 (1977).

33. 42 U.S.C. § § 3601-3631 (1998).

34. Cole & Foster Supra fn16 at 95.

35. Id. At 97.

36. Coalition of Bedford-Stuyvesant Block Assn, Inc. v. Cuomo, 651 F. Supp. 1202, 1210 (E.D.N.Y. 1987).

37. Colin Crawford, Other Civil Rights Titles in The Law of Environmental Justice: Theories and Procedures to Address Disproportionate Risks, at 83 (Michael B. Gerrard ed., 1999).

38. Id.

39. 42 U.S.C. §2000d (1988).

40. Bradford C. Mank, Title VI, in The Law of Environmental Justice: Theories and Procedures to Address Disproportionate Risks 23 (Michael B. Gerrard ed., 1999).

41. Guardians Ass'n v. Civil Service Comm'n, 463 U.S. 582 (1983).

42. See New York Urban League, Inc. v. New York, 71 F.3d 1031 (2d Cir. 1995); Latinos Unidos de Chelsea v. Sec'y of Hous. & Urban Dev., 799 F.2d 744, 785 n.20 (1st Cir. 1986).

43. See Ferguson v. City of Charleston, 186 F.3d 469 (4th Cir. 1999). See also See also Richard J. Lazerus, Pursuing "Environmental Justice:" The Distributional Effects of Environmental Protection, 87 Nw. U. L. Rev. 787, 838 (1993).

44. See NAACP v. Med. Ctr. Inc., 657 F.2d 1322, 1331 (3d Cir. 1981).

45. See Mank, supra fn40], at 39.

46. Id.

47. Julia B. Latham Worsham, Disparate Impact Lawsuits under Title VI, Section 602: Can a Legal Tool Build Environmental Justice?, 27 B.C. Envtl. Aff. L. Rev. 631, 699-702 (2000).

48. Bryant v. New Jersey Dept. of Transp., 987 F. Supp. 343 (D.N.J. 1998).

49. Nat'l Credit Union Admin. V. First Nat'l Bank and Trust Co. 522 U.S. 479 (1998).

50. Seif v. Chester Residents Concerned for Quality Living 524 U.S. 974 (1998).

51. 132 F.3d 925, 927 (3d Cir. 1997).

52. Seif supra fn50.

53. See Jersey Heights Neighborhood Ass'n v. Parris Glendening, 2 F. Supp. 2d 772 (D. Md. 1998) (holding plaintiffs' claims time barred because they waited until the highway project had received final approval).

54. 42 U.S.C. § § 4321-4370 (1988).

55. 42 U.S.C. § 4332(2).

56. Sheila Foster, Impact Assessment, in The Law of Environmental Justice: Theories and Procedures to Assess Disproportionate Risks (Michael B. Gerrard ed., 1999), at 262.

57. 42 U.S.C. § § 6901-6981 (2003).

58. 42 U.S.C. § 6902(a) (1995).

59. 42 U.S.C. § 6972.

60. 42 U.S.C. § 6902(b).

61. Exec. Order No. 12,898, 3 C.F.R. 859 (1994), reprinted in 42 U.S.C. § 4321.

62. Foster, supra fn 56, at 279.

63. Id., at 280.

64. See Michael Fisher, Environmental Racism Claims Brought Under Title VI of the Civil Rights Act, 25 Envtl. L. 285, 307 (1995).

65. John A Adams, The Mainstream Environmental Movement: Predominantly White Memberships Are Not Defensible, 18 EPA Journal, 25-27 (1992); see also fn20.

66. Peter Reich, Greening the Ghetto: A Theory of Environmental Race Discrimination, 41 U. Kan. L. Rev. 271 (1992).

67. Joyce A Baugh, African-Americans and the Environment: A Review Essay, 19 Policy Studies Journal, 183-191 (Spring 1991).

68. See www.greenaction.org.

69. See www.tscf.org/foundation/programs/environmental.asp.

70. Id.

71. Sarah T. Hall, Neighborhoods Focus of Forum, Modesto Bee (June 20, 2003).

72. www.greenaction.org/org/accomplishments/fall2003.shtml.

73. Dick Russell, Environmental Racism: Minority Communities and their Battle Against Toxics, 11 Amicus J., 22-32 (Spring 1989).

74. Id.

75. Id.

76. See www.goldmanprize.org/recipients/recipientProfile.cfm?.

77. Id. The Goldman Environmental Prize is given annually to six "environmental heros," one from each of six regions - Africa, Asia, Europe, Island Nations, North America and South/Central America. For a more in-depth explanation of the award, see www.goldmanprize.org/prize/prize.html.

78. Robert V. Percival ET AL., Environmental Regulation: Law, Science, and Policy (1992), at 6 (Supp. 1993).

79. Karl Grossman, Environmental Racism, 4 Crisis 98, 31-32 (April 1991); see also www.lcusd.net/lchs/mewoldsen/Period2/environmentalracism.

80. 336 A.2d 713 (1975).

81. Id., at 724.

82. Id., at 727-728.

83. Ruth Rosen, Better Safe than Sorry, San Francisco Chronicle (June 19, 2003).

84. The San Francisco Precautionary Principle ordinance can be found at http://sfgov.org/sfenvironment/aboutus/innovative/pp/sfpp.htm.

85. See Id., section 100(A).