EPA stuck with backlog of environmental justice decisions

For the past four years, Rep. Joseph Knollenberg, R-Mich., has had a thing about the Environmental Protection Agency's environmental justice program--he's hated it. Year after year, Knollenberg has attached a rider to the EPA's budget bill barring regulators from using federal funds to implement an agency guidance document on civil rights.

This year, however, with a Republican in the White House and EPA Administrator Christie Whitman ranking environmental justice as a top priority, Knollenberg abandoned his rider for the agency's fiscal 2002 budget. At the same time, House Republicans are giving Whitman more money to handle civil rights complaints. At a July 10 appropriations markup, the panel provided $11.9 million for the agency's environmental justice efforts, an increase of $2.7 million above fiscal 2001.

The congressional change of heart apparently is designed to help Whitman clear up the backlog of civil rights complaints she inherited when she took the reins of the agency early this year. Those petitions, many of which charge state or local government agencies with unjustly allowing new smoke-belching factories to be built in already-polluted neighborhoods, were filed under an EPA program that empowers the agency as a civil rights watchdog over government offices and private contractors that receive federal money. Whitman is creating a 15-person taskforce to tackle the 66 environmental justice petitions now pending before the agency. At a recent Hill hearing, she promised to clear up that backlog by 2003.

The EPA is placing renewed emphasis on environmental justice cases at a time when green civil rights issues are heating up on several fronts, including a potentially precedent-setting court case that questions decisions made by New Jersey state environmental regulators during Whitman's term as governor:

• In April, the Supreme Court issued a controversial and potentially far-reaching civil rights decision that prevents private citizens from using Title VI of the 1964 Civil Rights Act to legally challenge state and local environmental agencies whose policies inadvertently have discriminatory results.
• In May, a federal district court ruled that New Jersey state environmental regulators violated the civil rights of Camden residents by allowing a cement plant to open in a highly polluted neighborhood. The state and the cement company are appealing the Camden decision, which used new legal arguments designed to circumvent the April Supreme Court decision. While governor, Whitman supported construction of the factory.
• In early July, the NAACP threatened to sue the manufacturers of lead paint. The NAACP charges that poor, minority children are most likely to be exposed to toxic lead dust from peeling paint.

That flurry of legal action is raising the stakes for Whitman as she attempts to handle the EPA's civil rights petitions. In this charged political climate, the agency's environmental justice decisions are likely to attract greater scrutiny and carry greater political consequences than ever before.

The issue of environmental justice first caught the public's attention in the late 1980s as civil rights groups increasingly accused state and local regulators of steering the dirtiest industries to build in poor, minority neighborhoods. In 1994, President Clinton issued an executive order directing federal agencies to ease the disproportionate impact that pollution has on minority and low-income neighborhoods.

Soon, community groups began filing petitions asking the EPA to police local cases of alleged environmental racism. The agency's efforts to handle those environmental justice petitions were immediately challenged by business groups and their friends in Congress, such as Knollenberg, who argued that new factories should be allowed to locate in minority neighborhoods to provide much-needed jobs.

Stuck in the middle and stymied by the congressional rider, the EPA was slow to take action; some environmental justice petitions have stagnated for more than five years.

Rather than waiting for the federal government to solve their environmental justice problems, some community activists took their cases to federal court, using Title VI to challenge state agencies whose policies, the citizens said, had an unfair impact on minority and poor neighborhoods. That's what the members of South Camden Citizens in Action did in February when the EPA failed to act on the group's petition to stop a new cement plant from opening in their waterfront neighborhood. That $50 million factory, built by the St. Lawrence Cement Group of Montreal, recycles old cement by grinding it into a fine powder for use as an additive to new cement.

The cement plant is anticipated to belch 60 tons of soot into Camden's already-polluted air each year. Nonetheless, New Jersey state environmental regulators ruled that the facility met all state air pollution standards. However, the officials didn't consider the cumulative impact that the plant's pollution would have on the community's residents, 90 percent of whom are black or Hispanic. The neighborhood is already home to a regional sewage treatment plant, a county trash incinerator, and two federal Superfund sites. Regulators also didn't weigh the potential health impact of the 77,000 trucks expected to travel through the neighborhood each year.

Sheila R. Foster, a law professor at Rutgers University (Camden), noted that even without the cement plant, air quality in the area violates EPA's health standards. "Local residents are already experiencing a high incidence of asthma and other respiratory ailments," she said.

Despite those concerns, in March 2000 then-Gov. Whitman cheered construction of the plant. She portrayed the new facility as part of the state's urban-revitalization efforts to provide much-needed jobs for city residents, who have traditionally suffered one of the state's highest rates of unemployment. At a groundbreaking ceremony for the plant, Whitman boasted that her administration was "working hard to get other industries to follow St. Lawrence's lead--not just here in Camden, but in other New Jersey cities," according to The Star-Ledger in Newark. Community leaders contend, however, that of the facility's 20 jobs, only a handful have been offered to local workers.

On April 19, U.S. District Court Judge Stephen Orlofsky issued a temporary injunction preventing the Camden facility from opening. In one of the nation's clearest environmental justice court victories, Orlofsky said that New Jersey's environmental policies violated the civil rights of Camden's minority residents. He argued that state officials should have considered the impacts of the cement plant's pollution together with industrial sources of pollution already located in the community, and the anticipated truck traffic.

But four days later, the Supreme Court pulled the rug out from under Orlofsky and the Camden citizens group. In the decision in Alexander v. Sandoval, Justice Antonin Scalia wrote that private citizens cannot use Title VI to sue state and local agencies whose policies or regulations unintentionally have a harsher impact on minorities. Instead, the court required communities to prove that the agencies intentionally discriminated--a far more difficult standard to meet. Legal experts say that Scalia's decision, which dealt specifically with an Alabama policy of requiring driver's license tests only in English, is expected to have far-reaching implications on future environmental justice and a wide variety of other civil rights cases. "What the court did is throw out 35 years of civil rights law," complained Joan Mulhern, senior legislative council for Earthjustice.

In the aftermath of the Supreme Court decision, Orlofsky allowed both sides in the Camden case to file new briefs. In May, he surprised everyone by once again siding with the Camden community group and ordering the cement factory not to open. Orlofsky based his new decision on an obscure section of the civil rights code enacted in the years after the Civil War--Section 1983--which allows citizens to file suit in federal court to force state agencies to comply with federal civil rights laws. Orlofsky apparently zeroed in on Section 1983 after Supreme Court Justice John Paul Stevens cited the provision in his dissenting opinion in Alexander v. Sandoval. As expected, the state immediately appealed Orlofsky's decision and, in late May, the 3rd U.S. Circuit Court of Appeals allowed the cement plant to open. Oral arguments on the appeal to Orlofsky's decision are scheduled for September.

The Camden case has become a rallying point for national civil rights advocates and business groups who have a stake in the legal future of the environmental justice movement. Several national civil rights and environmental groups have filed amicus briefs backing up Orlofsky's decision, including the NAACP, the American Civil Liberties Union, the Sierra Club, the Natural Resources Defense Council, and Environmental Defense. In its brief, the ACLU described the state's handling of the Camden case as "state-sponsored discrimination."

"Camden is the perfect example of a community suffering from environmental discrimination," said Jeff Tittel, director of the Sierra Club's New Jersey chapter. "It's a minority community. It's a poor, working class area that's trying to come back. Unfortunately over the years, the powers that be have put several polluting facilities in the community." Tittel warned that the cement plant could be the death knell for the community. "This development is a lost opportunity," he argued. "Camden has seen such a loss of population and so many abandoned houses. Instead of redeveloping here with something that could be a catalyst for neighborhood revitalization, they put a plant that's going to chase people out of the neighborhood."

National business and industry groups are joining forces to support the St. Lawrence cement company. They are filing briefs arguing that Orlofsky's decision will have a chilling effect on urban redevelopment programs throughout the country. Lining up on the side of New Jersey and the cement company are the U.S. Chamber of Commerce, the National Black Chamber of Commerce, the National Association of Manufacturers, the Washington Legal Foundation, and the American Chemistry Council, formerly known as the Chemical Manufacturers Association. Industry officials say the appeals court's willingness to overturn Orlofsky's injunction preventing the cement company from opening could indicate that the higher court is more sympathetic to the company's challenge.

Meanwhile, civil rights groups are also considering fresh forays into the environmental justice legal arena. At the NAACP's annual meeting in early July, association President Kweisi Mfume announced plans to sue the lead paint industry. Mfume argued that exposure to lead-based paint is a "civil rights issue" because low-income and black children are more likely to live in homes and apartments where they're exposed to lead-based paint dust. Lead-based paint was used widely in homes until it was banned in 1978. Lead poisoning has been linked to developmental problems and lower IQs in children.

Although most civil rights groups are looking to the courts for relief, some environmental justice activists are expanding the tactics they use to fight environmental justice cases. Robert Garcia, director of the Los Angeles-based Center for Law in the Public Interest's City Project, said his group has stopped several high-polluting facilities from being built in minority communities in Los Angeles by developing coalitions with a wide variety of community and business groups and getting local citizens involved in community-planning decisions early in the process. Speaking at a July 11 environmental justice conference at the George Washington University Center on Sustainability & Regional Growth, Garcia said he sees the courts as the last resort, but also as an important "legal hammer" for minority communities.

The Los Angeles center's most recent success came in June when community activists blocked construction of a proposed electric generating plant in a south Los Angeles black neighborhood. The targeted plant site, which is now cluttered with defunct oil wells, is in the middle of a 1,200-acre region that community activists are trying to salvage for use as a park. But the power plant was expected to receive quick approval under California's 21-day fast-track approval process created to alleviate the state's energy shortages.

Once Garcia's group learned about plans to build the facility, it enlisted the help of a wide cross section of local and national groups--everyone from church leaders and environmentalists to local government officials and business owners in the area. He also persuaded the Los Angeles Times to editorialize against the power plant. The onslaught worked: Within days, the energy company abandoned its plans. But other civil rights activists note that most community groups are not as politically savvy as Garcia's and don't have the people or resources needed to constantly monitor and fight plant construction proposals in their region.

As environmental justice cases are getting increased attention, the Bush administration's environmental team is sorting through the EPA's backlog of civil rights cases. Regulators say that little work has been done on 25 of the pending cases, which were directly targeted by Knollenberg's rider. Those petitions challenge state or local agency decisions to grant an air or water pollution permit to a new facility in a minority neighborhood. The EPA has also received petitions charging that state and local agencies have violated a local community's civil rights by conducting biased public hearings or by failing to enforce environmental violations in minority communities.

Along with handling existing civil rights claims, the EPA could soon see a flood of new environmental justice petitions as a result of the April Supreme Court decision. That ruling barred individuals from suing state or local agencies for unintentionally discriminating against minority communities, but it didn't limit EPA's legal right to handle such cases.

Some legal scholars worry that EPA may not have the money or the political stomach to take on the most controversial, long-term environmental justice cases. "No federal agency, including EPA, has shown any proclivity toward vigorous enforcement of these regulations," said Georgetown University professor Richard Lazarus. Even if federal regulators are willing to challenge state actions, "the remedies available to an agency in an administrative enforcement proceeding are limited," he said. In fact, EPA has few legal weapons to handle such claims. It can overturn a state's decision to grant an air or water permit to the facility in a minority neighborhood. Or it can cut off federal funding, a dramatic step that would be politically unpopular.

Environmental activists predicted that business lobbyists will do everything they can to tie EPA's hands. "Business doesn't want communities of color to be able to bring these claims," said Mulhern of Earthjustice.

Business leaders say they will continue to oppose any aggressive legal action or EPA moves to limit business development in minority communities. Richard A. Samp, chief counsel for the Washington Legal Foundation, said such broad policy decisions should be left to Congress, not to the courts or bureaucrats. Environmental justice questions "really are more political than they are judicial," he said. "They should be decided by policy makers."

Indeed, the environmental justice battle could wind up in Congress. An increasing number of civil rights and environmental activists are arguing for new legislation to overturn the April Supreme Court decision. Theodore M. Shaw of the NAACP Legal Defense and Educational Fund recently acknowledged that civil rights groups would be best served by a "statutory fix" that gives minority groups more access to the courts. But many are reluctant to reopen national civil rights laws at a time when conservative Republican leaders are in control in the White House and the House of Representatives. And so far, civil rights activists in Congress have not begun drafting legislation.

"We have to take into account the political climate right now," Shaw said at the George Washington University environmental justice conference. "But one way or another, we're not going to walk away from these issues."