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Environmental Justice

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Vernellia R. Randall
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 Environmental Justice. The United States recognizes that low-income and minority communities frequently bear a disproportionate share of adverse environmental burdens and is working to implement existing laws that better protect all communities. "Environmental justice" is the fair treatment and meaningful involvement of all people regardless or race, color, national origin, culture or income with respect to the development, implementation, enforcement and compliance of environmental laws, regulations and policies. Fair treatment means that no group of people, including racial, ethnic, or socio-economic groups, should bear a disproportionate share of negative environmental consequences resulting from industrial, municipal and commercial operations or the execution of federal, state, local and tribal programs and policies.

On February 11, 1994, President Clinton issued Executive Order 12898 to all departments and agencies of the Federal government directing them to take action to address environmental justice with respect to minority populations and low-income populations. Agencies were directed, among other things, to address disproportionate human health or environmental effects of programs on such populations, to collect additional data on these subjects, and to coordinate their efforts through a newly-established, interagency working group.

While most environmental laws do not expressly address potential impacts on low income and minority communities, Executive Order 12898 directs the Environmental Protection Agency (EPA) "[t]o the greatest extent practicable and permitted by law . . . [to] make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations." Detailed information about the EPA's environmental justice program, the environmental justice federal advisory committee, and related financial assistance programs is available on the Internet at http://es.epa.gov/oeca/main/ej/index.html.

Recently, American Indian and Alaska Natives argued successfully to the EPA that Indian tribes had suffered environmental injustice because the Federal government had not provided them equitable funding and other agency resources necessary to develop environmental programs. Federally recognized Indian tribes generally have the authority to regulate activities on their reservations that affect their environment. Thus, such Indian tribes are in the process of developing comprehensive tribal environmental laws and regulations. However, unlike the states of the United States, Indian tribes had not, until recently, been provided the federal resources to assist them in the development of their environmental programs. Today, the EPA has significantly increased its funding and technical assistance to Indian tribes. As a result many tribes are now developing and enacting their own tribal environmental codes and beginning to take charge of their own environments through the enforcement of these codes and through an improved partnership with EPA.

Many groups and advocates are concerned that existing civil rights legal remedies may provide insufficient protection from environmental hazards for minority groups. In R.I.S.E., Inc. v. Kay, 768 F. Supp. 1144 (E.D. Va. 1991), aff'd, 977 F.2d 573 (4th Cir. 1992), for example, a Fourteenth Amendment challenge to the siting of county-run regional landfills in predominantly Black neighborhoods was rejected because the plaintiff had not provided sufficient evidence of intentional discrimination. The District Court stated that the Equal Protection Clause does not impose an affirmative duty to equalize the impact of official duties on different racial groups, but merely prohibits government officials from intentionally discriminating on the basis of race. Advocates have also asserted violations of Title VI of the Civil Rights Act of 1964 in environmental justice cases, but there have been no authoritative court decisions on this issue. In December 1997, the Third Circuit in Chester Residents Concerned for Quality Living v. Seif, 32 F.3d 925 (3d Cir. 1997), held that plaintiffs, Black residents of the predominantly Black city of Chester, Pennsylvania, had a private right of action under EPA's Title VI disparate impact regulations to bring a lawsuit challenging alleged discriminatory effects of the state's environmental permitting practices. The Supreme Court granted certiorari review, but then dismissed the case and vacated the opinion as moot when the permit at issue in the case was withdrawn in August 1998. 524 U.S. 974 (1998).

Some have argued that the U.S. Navy's use of Vieques Island in Puerto Rico as a bombing range has had negative environmental consequences for Puerto Ricans living on or near the island. In 1999, the death of a civilian security guard (the first in over sixty years of the Navy's use of the range) sparked extensive protests against the U.S. Navy's use of the range.

Federal agencies have addressed environmental justice issues in several contexts. For example, the White House Council on Environmental Quality (CEQ) issued guidance to agencies on addressing environmental justice concerns under the National Environmental Policy Act, 42 U.S.C. 4321-4370d, which requires agencies to analyze the environmental and related socio-economic, cultural and other impacts of their decisions. The EPA has established a formal advisory council made up of representatives from community organizations, academia, NGOs, industry, and state and local governments to advise the agency of environmental justice policy matters. Agencies have also conducted outreach to affected communities to hear about environmental justice concerns in a variety of contexts, ranging from siting of transportation projects to hazardous waste cleanup remedies to selecting supplemental environmental projects in environmental enforcement actions. Moreover, the Agency's Environmental Appeals Board and other administrative tribunals review agency decisions for compliance with Executive Order 12898, described above.

 

 

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Thanks to Derrick Bell and his pioneer work: 
Race, Racism and American Law
(1993).