Still Searching for Environmental

Communities want improved environmental conditions, a goal that is bogged down by strong views on poverty, racism, and development.

CATHERINE M. COONEY

     Thus began the environmental justice movement. Even though the landfill in Warren County was ultimately built, activists say this protest publicly combined the issues of poverty, race, and environmental health like never before. The issues fueling environmental justice embrace an inherent conflict between industrial entities and environmental, health, and social justice advocates, and little common ground has yielded between these two sides over the last two decades. The U.S. Chamber of Commerce and other industrial groups see the problem in stark economic terms: Poor, disenfranchised individuals naturally migrate to cheap, contaminated land adjacent to industrial facilities because they cannot afford to live elsewhere. Today's strict environmental laws keep pollution from these facilities to a minimum, and the health problems associated with these communities are more likely related to lack of adequate medical attention, poor diets, cigarette smoking, and other issues related to living in poverty. On the other hand, environmental justice activists believe those who live near large industrial facilities, waste management plants, hazardous waste landfills, incinerators, and mines are exposed to much higher levels of pollution than those living in wealthier neighborhoods. These low-income, racial minority communities, in general, do not want these facilities, and they have been targeted for construction of these facilities because they have been unable, or unwilling, to speak up for themselves.

     In the years following the Warren County protest, countless stories have emerged of communities living adjacent to industrial facilities and fighting to close or clean them up. Residents of Convent, in Louisiana's "Cancer Alley," a stretch of land from Baton Rouge to New Orleans, last year pressured Shintech, Inc., to cancel plans to build a $700 million polyvinyl chloride (PVC) plant in their town. Native-American and environmental groups from the United States and Mexico have joined forces to stop the construction of a low-level nuclear waste facility in Ward Valley, Calif. In Southern California, students and teachers from an elementary school have sued a metal plating company and the state, charging that early deaths from cancer and numerous miscarriages should be blamed on lax enforcement of environmental laws. At the same time, some companies and a few states are beginning to confront environmental justice and are developing or have established programs that reach out to the residents living near industrial plants or that involve them in the talks leading up to the siting of a new facility. While opening a dialogue between community members and facility officials is a good first step, activists say the state agencies and companies themselves need to do much more.

The movement's roots
In 1991, grassroots environmental justice advocates met in Washington, D.C., at the First National People of Color Environmental Leadership Summit, hoping to define a movement that by its nature is highly complex. While meeting, it became clear that "the environmental justice movement brought together environmentalists, civil rights leaders, social justice, human rights, and women's rights advocates and redefined what the environmental movement is," said Robert Bullard, director of Clark Atlanta University's Environmental Justice Resource Center, in Georgia. "It is not a social movement. It is just as environmental as the Natural Resources Defense Council and the Audubon Society, but the difference is, we don't distinguish the environment from where we live or work. It is where we work, play, and go to school."

     Summit participants agreed that although they are asking that environmental laws be enforced equally and that action be taken to reduce high levels of pollution in their communities, a priority concern is gaining access to the negotiations that go on between state regulators and companies regarding the cleanup of a dirty plant, the siting of a new facility, or many of the other projects that will affect their day-to-day lives, said Richard Moore, coordinator for the Southwest Network for Environmental and Economic Justice.

     The organizers also decided against creating a national organization to articulate the voice of the movement and would instead maintain the grassroots organizational structure, Moore said. The hundreds and hundreds of local groups working within the movement were better off retaining the "bottom-up process" they had championed so far. Four or five larger organizations similar to the Southwest Network for Environmental Justice, such as the Indigenous Environmental Network in Bemidji, Minn., and the Center on Race, Poverty and the Environment in San Francisco, Calif., direct their efforts toward coordinating, educating, and empowering low-income, racial minority communities concerned about environmental justice, said activists from these and other organizations.

     Industry representatives have complained that the lack of a central voice makes it difficult for nonactivists to understand the movement and who it represents. Moore explains that narrowing the movement would allow those who have ignored the concerns of people living with industrial plants to continue to do so, by labeling them "special interest groups." While asserting that not all companies ignore the concerns of environmental justice groups, Moore said that "there has been a lot of conflict between states, companies, and grassroots organizations." The first step to understanding each other "is to acknowledge we have been in conflict."

Economics and housing dynamics
Some business interests adamantly dismiss the idea that there is a national environmental justice problem. Many argue that the issue boils down to the natural result of economics and housing dynamics.

     "It has to do with land use, rather than any notion of protecting the civil rights of minorities," said Ken Chilton of Washington University's Center for the Study of American Business in St. Louis, Mo., which published a 1988 study on environmental justice, "Are Storm Clouds Brewing on the Environmental Justice Horizon?" "If you look at these facilities before they were sited, generally you find that they were not predominantly minority communities. What you primarily find is that the housing dynamics led these areas to becoming predominantly minority areas. Why? Because lower economic people go where the housing prices are lower, and lo and behold, we have the less advantaged and generally racial minorities being housed on this soil."

     The U.S. Chamber of Commerce agrees with this argument. "Yes, there are certain areas that have higher concentrations of industry, but that does not affect minority and nonminority [populations] differently," said Bill Kovacs, vice president of environment and regulatory affairs of the Chamber. Originally, the city of Chester, Pa., had a majority White population, said Kovacs, referring to the community that sued the state Department of Environmental Protection over the siting of a solid waste facility (see photo on next page). "Then it began to look like a cesspool because [in the 1950s] there were no environmental standards in place." It became an industrial corridor, and went from 90% White in 1960 to majority Black, and racial minorities moved there because the contaminated land was cheap. "They sort of moved to the pollution," Kovacs said.

     Economic issues concern the National Black Chamber of Commerce (NBCC), which represents 69,000 members nationwide. But its members see the movement as committed to halting industrial development and preventing low-income African-Americans the opportunity to obtain badly needed job opportunities located close to home. Whereas activists had seen the proposed Shintech PVC plant as a health threat, Harry Alford, president and CEO of the NBCC, said, "I see opportunity." Today's companies usually come into a community with specific economic packages designed for the town, including building a community auditorium, contributions to help buy books and computers in local schools, and support for kids' sports teams, added Chilton. "The way to solve it is to make the facility an asset coming in," Chilton said.

     Activists maintain that well-paying jobs never materialize. The technical jobs often go to a workforce that is already working for the company, that has been trained at another plant, and that has relocated, said Moore.

     "As a whole, the people in the community couldn't work there," said Phyllis Glazer, head of Mothers Organized to Stop Environmental Sins (M.O.S.E.S.), a grassroots organization that protested the operation of a hazardous waste facility in Winona, Tex., which is now closed. "Maybe a handful of people worked at the facility, 5 or 6, out of 16 there at the high point." But these were low-income jobs, such as sweeping the ground and mixing chemicals, she said.

     Hiring unskilled workers into technical jobs requires training, time, and monetary commitment by company officials, said Moore. "We have a largely untrained and unqualified workforce," he said. Before a new facility is sited, corporate officials meet with state officials three or four years in advance of the ground breaking to negotiate employee perks, such as low-interest mortgages, for those trained workers who will relocate. "They are trying to protect their employees and we understand that." Moore suggested that in three or four years, the company can set up a technical school or put resources into an existing school to train local employees.

     Local residents should be involved in those early talks, Moore added. The residents are likely to bring up health and safety plans for workers and the community and request information on the chemicals to be used at the plant and the potential health hazards associated with them, all issues the companies are, in general, very reluctant to discuss, said Moore. "These kinds of things are going to have to be included in the process. We just can't agree with it [the new facility] if it is not."

A role for the government?
Following the People of Color Summit, the federal government began to take note of the environmental justice movement, said Bullard. EPA Administrator William Reilly, a Bush administration appointee, set up an Office on Environmental Equity and a working group to review the issue. In 1992, EPA published the report, "Environmental Equity: Reducing Risk for All Communities." A review of existing studies, this study basically confirmed what the activists had been saying, Bullard said.

     In 1994, President Clinton appeared to embrace the environmental justice cause with the signing of Executive Order No. 12898, which directed all federal agencies to ensure that no federal funds are used in any program that resulted in a violation of Title VI of the 1964 Civil Rights Act. Title VI bars discrimination of any individual or group based on race, color, or national origin. Activists filed a flurry of petitions with EPA, alleging that their state regulator had discriminated against them and violated Title VI. Sixteen petitions were filed in 1994 alone. Now EPA has a total of 61 Title VI petitions on file. Besides 32 that have been rejected or dismissed and three that are pending state action, 26 are waiting for a decision (2).

     EPA is moving very slowly on the petitions, which annoys both industry interests and activists. Several grassroots organizations interviewed for this story use the delay in resolving the petitions to bolster their complaint that the agency has taken no real action on their concerns. "Most of the petitions are just languishing at the agency," said Glazer. "I think EPA is trying to get rid of this issue as soon as it can. It's for show." Industries, and in particular those industries cited in a Title VI petition whose plans are now on hold, are concerned that the entire petition process makes it very difficult for them to expand.

     Director of EPA's Office of Civil Rights (OCR), Ann Goode, agrees there is a backlog of Title VI petitions at the agency and said her bosses are committed to getting staff on board to handle them. Her office is set to hire seven new employees, in addition to the two on staff, Goode said. OCR works closely with the agency's Office of General Counsel investigating the petitions, and Goode said she can always call on an army of outside contacts for help with the petitions.

Firestorm of opposition
In 1988, EPA released for public comment an interim guidance generally describing how the agency would handle Title VI petitions. The guidance, which was, by EPA's account, a draft document for internal use, set off a firestorm of opposition across the nation. Soon after its release, state agencies announced that EPA was planning to second-guess their permit approvals for industrial plants, and businesses proclaimed that EPA and the entire environmental justice movement was intended to stop business expansion. Detroit, Mich., Mayor Dennis Archer (D), who serves a city that is predominantly Black and who is an African-American, sponsored a resolution asking EPA to withdraw the guidance. In the resolution, which was easily approved by the U.S. Conference of Mayors in June, Archer asserted that the guidance, in its present form, would stop the development of inner-city brownfields and deny urban, low-income residents access to jobs and a healthier environment. All affected parties, including environmental justice advocates, criticized EPA for developing the guidance without their input.

     The mayors, governors, and business groups were largely agitated by the inclusion of the term "disparate pollution impact," the focus of most of the Title VI petitions. Most of these critics argue that EPA does not have the legal authority to add "disparate impact" to its legal analysis. Glenn Lami, chief counsel of the Washington Legal Foundation's Legal Studies Division, which filed petitions to dismiss 26 environmental justice complaints, argues that EPA's Title VI investigations should focus on whether there has been an intent to discriminate, which he says has never been shown in any complaint, rather than the currently vague disparate impact standard. "We think they don't have any legal basis for what they are doing," Lami said. "They are trying to incorporate a disparate impact policy that was created in employment law into the environmental law area. . . . Our feeling is that it is still an open legal issue." "I challenge anybody to find the term 'disparate impact' in any environmental statute," agreed the Chamber's Kovacs.

     This January, the National Governor's Association joined the critics. At its winter meeting, NGA adopted its first environmental justice policy, a narrowly worded amendment that echoes the mayor's concerns, asserting that the interim guidance could trample on a state's land use authority. The governors urged EPA to develop a "workable alternative," that clearly defined terms, such as affected community, standards, and methodologies, and to expeditiously move forward on the backlog of Title VI complaints.

     This policy was difficult to craft, according to several participants at the meeting. A number of governors felt very anxious about the wording of an environmental justice policy because they did not want to appear to be against civil rights, one participant said. The policy came so long after the release of the guidance because some governors felt their concerns were already raised by state agencies and mayors, and they wanted to give EPA some time to grapple with problems raised by critics.

     EPA has convened several outside advisory committees to recommend ways to either revise the interim guidance or the techniques that states might use to comply with Title VI, to help avoid future petitions. A new stakeholder group was scheduled to meet in the spring, said Goode. All of these recommendations and comments will be incorporated into a revised guidance and published in the Federal Register. But Goode was unable to predict when the new guidance would be released.

Pockets of progress
Officials from a few companies, industries, and states have come to realize that the protests and complaints from environmental justice activists will not go away. The National Association of Manufacturers (NAM), a lobbying organization that represents 14,000 businesses, drafted a revision of its environmental justice policy that the board of directors should approve this spring, said Keith McCoy, NAM's director of environmental quality. The old policy, written in 1994, "was terribly self-serving," said McCoy, and focused on compliance and enforcement of these laws. The revision emphasizes communication, he said, possibly through the establishment of a community advisory panel. The panel would "open an ongoing dialogue" so that when a company seeks to expand a plant, the community would have known about it years in advance, he said.

     NAM decided to change its policy partly because it thought EPA's interim guidance might become a regulation, said McCoy. Several members have set up community panels around the country. But not all NAM's members agree with the proposed revisions. "We have some members who would probably not want us to put out a policy like this," he said.

     Pennsylvania, Texas, and New Jersey are in varying stages of developing programs to prevent the filing of Title VI petitions. The New Jersey Department of Environmental Protection (NJDEP) is the furthest along. Its environmental equity task force completed a two-page policy and a five-page environmental equity process, detailing how the department would process permits for new facilities and expansions or modifications for existing plants.

     New Jersey's environmental equity program was developed in response to EPA's interim guidance, which deals with handling a complaint alleging discrimination after the complaint has been filed. "We went the exact opposite way from EPA," said Rita Thornton, state and tribal environmental justice grant coordinator for NJDEP. "We want the community input up front in a proactive manner. We don't want to wait until the end of the permitting process when emotions are high, when, unfortunately, things can get blown out of proportion."

     The process approved in February by business representatives, state and local government officials, academics, and community activists who sat on the task force is lengthy and includes an analysis of the area to see if it is environmentally "burdened." The policy has been stalled by the state business community, however, who are worried that after they participate in negotiations with community members, the DEP could still cancel the permit request, said Thornton.

     In other states the decision from the top has been to ignore any complaints and to deny that such a problem even exists. During the administration of [former Calif. Gov. Pete Wilson (R)], there was no policy for environmental justice. "Essentially, there wasn't a problem," said Jerry Martin, spokesman for the California Air Resources Board. California ties with Texas as the state with the most Title VI petitions (six) filed with EPA.

     Overall, the activists say, the pace of progress is too slow. Advisory meetings are a good first step, but much more needs to be done. All state agencies, and the EPA, need to ensure that the environmental laws in these communities are being enforced. The same agencies need to examine the cumulative impact of multiple industrial emissions in these towns and force companies to reduce pollution if the impact is shown to be harmful to human health. Businesses need to work harder at waste minimization and, in some cases, change their production processes to reduce their use of harmful chemicals, said Bullard.

Lack of uniformity
It is true that not every resident in each affected community opposes an industrial facility or how it is being operated. Just as businesses are not monolithic in their views, neither are residents. Activists worry, however, that news stories about an environmental justice dispute that give equal coverage to the local supporters of a facility confuse the public's perception of the environmental justice movement, without adequately expressing the issues for which the activists are fighting. "The press coverage about environmental justice is very narrow, covering only facility permits and toxics," but the movement consists of a variety of issues that concern minority communities, including worker safety, accident emergency response plans, and the construction of highways in neighborhoods, said Bullard. "We have become identified by the way we have been portrayed in the media," said Julie Hurwitz, director of the NLG Sugar Law Center, who is representing citizens who filed a Title VI complaint with EPA concerning the Genesee Power Station, a combination wood incinerator and power generator.

     "There has been a false dichotomy created by the way the mass media has defined the issues. You are either for environmental justice or you are for jobs, and never the twain shall meet. We are most definitely for economic development and jobs. We are simply for economic development that doesn't kill people," said Hurwitz.

     The groundswell of opposition from city mayors to large lobbying organizations following the release of EPA's interim guidance on Title VI petitions demonstrates the difficulty of resolving the issues raised by community members who live adjacent to industrial facilities. Grappling with these difficult issues can only be resolved with time, environmental justice advocates say.

     Despite what many would like to believe, the issue is not going away any time soon, said Richmond, Calif., Mayor Rosemary Corbin (D), who sits on an EPA advisory committee. The activists groups "are very serious," Corbin said, during a January meeting of the U.S. Conference of Mayors. "There has been a feeling that [EPA] should just ignore the issue, but I don't know how they could. . . . If someone files a lawsuit under Title VI, they are going to go through with it, whether we think they should or not."

References

(1) Foreman, C. H., Jr. The Promise and Peril of Environmental Justice; Brookings Institution Press: Washington, D.C., 1998.

(2)  "OCR Title VI Environmental Justice Complaints (62)," EPA Fact Sheet; U.S. EPA Office of Civil Rights, U.S. Environmental Protection Agency, U.S. Government Printing Office: Washington, DC, Nov. 25, 1998.

Catherine M. Cooney is an associate editor of ES&T.