Updated on: June 20, 2012
In April 2012, EPA released a draft Plan EJ 2014 Supplement. According to the agency, the supplement sets forth goals, strategies, and activities that will assist the agency in building a robust Title VI civil rights program. In particular, the strategies outlined in the supplement include establishing a robust Title VI pre-award and post-award compliance program; strengthening Title VI in EPA’s National Program Management guidance, performance partnership agreements and performance partnership grants; partner with other federal agencies to improve and strengthen compliance with Title VI; and advance EJ goals through Limited English Proficiency initiatives. Comments on the draft supplement are being accepted until June 19, 2012. The draft supplement is available at http://www.epa.gov/environmentaljustice/plan-ej/civil-rights.html.
On April 18, 2012, EPA’s Office of Environmental Justice launched its Environmental Justice in Action blog. According to the agency, the blog is a resource for educating, communicating and engaging with government employees, external stakeholders and the broader public about the actions and ideas that stakeholders are using to advance the mission of environmental justice. The blog is available at http://blog.epa.gov/ej.
Federal Court Refused to Dismiss Lawsuit Concerning Permitting of Hazardous Waste Dumps in Low-Income and Latino Communities
On April 6, 2012, a California federal district court rejected EPA’s bid to dismiss a lawsuit involving a 15-year-old administrative complaint filed over the permitting of hazardous waste dumps in low-income, rural, and Latino communities. In particular, the court dismissed EPA’s motions contending the plaintiffs had waited too long to bring the claim under the Administrative Procedure Act (APA). At issue was whether the lawsuit is barred by the six-year statute of limitations that applies to APA claims, or if each day of EPA’s failure to address the civil rights claim over the last 15 years represents a separate violation of its duty under the statute. The court held that the lawsuit was timely because it seeks relief for the agency failure to meet its on-going duty. Plaintiffs filed the lawsuit in June 2011 and alleged that EPA had failed to issue preliminary findings in an administrative complaint accusing the California Department of Toxic Substances Control of violating Title VI of the Civil Rights Act of 1964 by permitting hazardous waste dumps in poor Latino communities. Although the court rejected EPA’s arguments, it did acknowledge that agency attorneys raised significant and substantial issues of controlling law. As a result, the court held that it would consider a motion for interlocutory appeal. Padres Hacia Una Vida Mejor v. Jackson, 2012 U.S. Dist. LEXIS 49047 (E.D. Cal. April 6, 2012).
District Court Held that Government Agency Must Take Steps to Ensure Complete Administrative Record in Case Concerning Bridge Located in EJ Community
Several environmental justice organizations in Detroit filed a lawsuit in May 2009 challenging the Federal Highway Administration’s (FHWA) record of decision (ROD) concerning the proposed construction of a new international bridge known as the Detroit River International Crossing, connecting Detroit, Michigan with Windsor, Ontario. The lawsuit alleged that the ROD violated NEPA by not properly accounting for environmental justice because the community where the bridge was to be located was an economically depressed and minority community. After filing the action, the plaintiffs filed a motion seeking discovery to determine whether the administrative record was complete. In an April 5, 2012 decision, the district court held that it was unable to evaluate the adequacy of the FHWA administrative record, and ordered FHWA to take additional steps in order to enable the court to assess the completeness of the record. Latin Americans for Social and Economic Development v. Federal Highway Administration, 2012 U.S. Dist. LEXIS 48452 (E.D. Mich. April 5, 2012).
Environmental Groups Seek to Intervene in Lawsuit, Alleging that EPA Failed to Enforce Consent Order at Wastewater Treatment Plant
On March 4, 2012, two nonprofit environmental groups filed a complaint in intervention in United States v. City of Baton Rouge, 01-CV-978 (M.D. Tenn.), alleging that EPA has failed to prosecute the lawsuit diligently and otherwise failed to enforce a consent decree entered into by the parties in 2002 concerning Clean Water Act violations at a wastewater treatment plant in Baton Rouge. According to the complaint, the plants continued violations under the CWA impose offensive odors, sewer flies, and unsanitary conditions on nearby minority residents, violating those residents’ human rights and creating an environmental injustice. The groups are being represented by the Tulane Environmental Law Clinic. The complaint in intervention is available at http://www.tulane.edu/~telc/assets/pdfs/3-4-12_BR_POTW_.5th_Cir.pdf.
Obama Administration Announced that Federal Agencies are Finalizing Strategies for Incorporating Environmental Justice into their Operations
On February 27, 2012, the Obama Administration announced that federal agencies are finalizing strategies for incorporating environmental justice into their operations. For example, the announcement mentioned that the Federal Transit Administration will help grant recipients determine if minority or low-income areas will be affected by transit projects, and the Labor Department is translating educational materials into Spanish, Chinese, and Vietnamese, so workers can avoid environmental hazards. The Veterans Affairs Department’s strategy will provide veterans, including minority and low-income veterans, with training and career opportunities for green jobs, and the Centers for Disease Control and Prevention will help communities assess how a project will affect the health of people living in environmental justice communities. For example, in Baltimore CDE is looking at how the redevelopment of a vacant property will affect human health. The environmental justice strategies and implementation plans of federal agencies are available at http://www.epa.gov/environmentaljustice/interagency/iwg-compendium.html.
On January 18, 2012, EPA released a draft guidance document entitled “Recommendations for Developing a Model Civil Rights Program at the Environmental Protection Agency.” The document explains what a model program would look like, and would include the following aspects: direct investment of senior leadership in the success of the program; an annual EEO Policy Statement by Administrator; inclusion of EEO, Title VI, and affirmative employment and diversity in strategic plans and performance objectives of offices and regions; inclusion in performance standards for all managers and supervisors an element for internal and external civil rights compliance; adequate funding and resources; direct reporting to the Administrator by the senior civil rights director; clear agency-wide statement and common understanding of civil rights mission and strategy; hiring, training and developing staff with the necessary skills, inclusion of timeliness, quality, outputs, and outcomes in employee performance standards; focused strategy for complaint prevention and compliance assurance; collaboration with and cooperation across all EPA offices and regions; broad integration of Alternative Dispute Resolution (ADR) approaches across civil rights and employee relations activities; and transparency and on-going stakeholder involvement. The guidance document is available at http://www.epa.gov/epahome/pdf/draftreport-1-18-12.v3.pdf.
On January 18, 2012, the New York State Department of Environmental Conservation (DEC) proposed regulations that would require electricity generating facilities in New York to evaluate potential environmental justice impacts in siting decisions. DEC said that the environmental justice draft rule would be the first in the United States to require an analysis of potential disproportionate impacts on nearby communities in major power plant siting decisions. The draft rules were proposed to implement provisions of the Power NY Act of 2011, which was signed by Governor Andrew M. Cuomo in August 2011. The proposed environmental justice regulations would establish a regulatory framework to analyze environmental justice issues associated with the siting or expansion of major generating facilities. Applicants would have to evaluate any “significant and adverse disproportionate environmental impacts” from a facility’s construction or operation. The analysis would have to include the cumulative air quality impact of the facility, as well as comparative demographic, economic, and physical data for the community where the facility would be located, versus data for the county and adjacent communities. The environmental justice draft rules are available at http://www.dec.ny.gov/regulations/79626.html.
Alabama Residents Filed Administrative Complaint With EPA Alleging Violations of the Civil Rights Act Concerning Landfill that Accepted Coal-Combustion Ash
On January 3, 2012, 50 Alabama residents living near a landfill that took coal-combustion ash from a Tennessee Valley Authority (TVA) plant filed an administrative complaint with EPA, alleging that the Alabama Department of Environmental Management should not have renewed the permit for the landfill and did so in violation of Title VI of the Civil Rights Act. According to the complaint, TVA, working with federal and state regulators, sent 414 train shipments of coal ash to the landfill from a 2008 coal-sludge spill in Roane County, Tennessee. The complaint alleges that foul odor from the landfill is affecting the health of the landfill’s neighbors, most of whom are African American, and dust from the dump is polluting their property. In re Alabama Department of Environmental Management Permitting of Arrowhead Landfill in Perry County, Alabama (EPA, filed Jan. 3, 2012).
Department of Transportation Released Guidance Document on Process to Address EJ Issues During NEPA Process
On December 16, 2011, the Department of Transportation (DOT) released a guidance document advising Federal Highway Administration (HFWA) offices on the process to address EJ issues during the NEPA process. Among other things, the guidance document states that EJ evaluations should describe the following information: identify existing minority and low income populations; explain coordination, access to information and participation; identify disproportionately high and adverse effects; and evaluate proceeding when there are disproportionately high and adverse effects on EJ populations. This guidance document is available at http://environment.fhwa.dot.gov/projdev/guidance_ej_nepa.asp.
On November 7, 2011, the Governmental Accountability Office (GAO) released a report finding that EPA has not defined key environmental justice terms, such as “minority” and “low-income communities,” which could hamper the agency’s ability to identify communities with environmental justice concerns. According to the report, without definitions, the agency could have a difficult time identifying communities that have environmental justice concerns and showing that its efforts are helping communities with disproportionate environmental impacts. In addition, the report found that the agency has not identified the resources, including the staffing, that it needs to implement environmental justice plans, and that it has not articulated the roles of states in the initiative or developed performance measures. The report found that states will have a significant role in implementing environmental justice plans through permitting, monitoring, and enforcement, GAO said, but their specific roles so far are unclear. The GAO analysis was conducted from May 2010 to September 2011. The report also found positive aspects of EPA’s implementation of environmental justice plans, namely that it has made progress on defining its mission and goals related to environmental justice, ensuring leadership involvement and accountability, and coordinating with other agencies. The report is available at http://www.gao.gov/new.items/d1277.pdf.
Environmental Justice Interagency Working Group Released Community Resource Guide and Interagency Directory
On October 7, 2011, Environmental Justice Interagency Working Group (EJIWG) announced the release of a community resource guide and interagency directory. The guide includes programs within agencies that may assist communities in reducing toxic exposures. These programs provide technical assistance, federal funding or a combination of both technical assistance and federal funding. Through this and other efforts, federal agencies are recommitting to improving the health and sustainability of communities across America. The interagency directory provides basic information about the role of the federal agencies contained in this publication including their organization chart and key contact information for agency program areas. The guide is available at http://www.epa.gov/compliance/ej/resources/publications/interagency/resource-guide.pdf. The directory is available at http://epa.gov/compliance/ej/resources/publications/interagency/directory.pdf. Information about the EJIWG is available at http://www.epa.gov/environmentaljustice/interagency/index.html.
EPA Released Update on Ongoing and Future Actions Concerning Integration of EJ in Decision Making and Research
In October 2011, EPA released a document entitled “Update on Ongoing and Future EPA Actions to Empower Communities and Advance the Integration of Environmental Justice in Decision Making and Research.” According to EPA, the update identifies ongoing efforts at EPA to develop and improve reliable scientific data for identifying disproportionate environmental and health impacts among racial/ethnic minorities, low income populations, and
indigenous people and tribes, while working to address and reduce these disparities. The update is the product of a conversation that began at the “Strengthening Environmental Justice Research and Decision Making: A Symposium on the Science of Disproportionate Environmental Health Impacts” held in the Spring of 2010. During the Symposium, many participants, including academicians and community advocates, provided recommendations to advance the scientific foundation of environmental justice issues, and also methods to ensure consideration of environmental justice in decision‐making. One recommendation and action item was for EPA to regularly engage the public and provide updates and progress reports to the public on environmental justice and community health efforts. The update provides a brief overview of ongoing and future actions across the EPA program offices and regions to: (1) advance the consideration of environmental justice in decision making; (2) build a science foundation for integrating EJ into policy‐making; (3) collaborate with governmental and nongovernmental partners and communities to meet environmental health needs; and (4) empower communities to take action to improve their environment and health.
In October 2011, in response to the August 4, 2011 MOU signed by federal agencies (see below), the Department of Housing and Urban Development (HUD) and the Department of Commerce (DOC) announced the release of their draft Environmental Justice Strategies. According to HUD, its EJ strategy is a four-year plan to address environmental justice concerns and increase access to environmental benefits through HUD policies, programs, and activities. HUD stated that after the strategy is final, it and its federal partners will continue to engage stakeholders through outreach, education and stakeholder events and respond to public comments through annual implementation reports. HUD’s draft EJ strategy is available at http://portal.hud.gov/hudportal/HUD?src=/program_offices/sustainable_housing_communities/HUD_Draft_Environmental_Justice_Strategy. DOC’s draft EJ strategy is available at http://open.commerce.gov/news/2011/09/30/department-commerce-draft-environmental-justice-strategy.
EPA Released Agency Roadmap to Help Integrate Environmental Justice Into the Agency’s Programs, Policies and Activities for the Next Three Years
On September 14, 2011, EPA released “Plan EJ 2014.” According to the agency, Plan EJ 2014 is a roadmap that will help it integrate environmental justice into the agency’s programs, policies, and activities for the next three years. Plan EJ 2014 identifies cross-agency focus areas, tools development, and program initiatives as three essential elements that will advance environmental justice across the EPA and the federal government. According to EPA Administrator Lisa Jackson, the plan addresses inequitable environmental impacts on poor and minority groups. The three-year period ends in the 20th anniversary year of Executive Order No. 12,898, which was signed by former President Bill Clinton in 1994 and which requires agencies to incorporate environmental justice into their work. In 2014, the agency will assess how well the plan achieved its goals and will determine next steps on environmentaljusticeactivities. According to the agency, it will incorporate environmentaljustice considerations into its rulemaking process by finalizing interim guidance that the agency issued in July 2010. In addition, the agency also intends to develop technical guidance on how to conduct environmental justice assessments of regulations and will help overburdened communities participate in the permitting process and will help permitting authorities address environmental justice. The agency further stated that it will consider environmental justice goals when it selects its national enforcement initiatives and intends to seek remedies in enforcement actions that will benefit overburdened communities. In addition, the agency intends to address environmental justice by supporting scientific research that aims to find solutions to environmental and health inequalities; providing legal assistance to EPA officials to advance environmental justice objectives; collecting and using geospatial information about overburdened communities; providing financial and technical assistance to communities; and recruiting employees to improve workforce diversity. Plan EJ 2014 is available at http://www.epa.gov/compliance/ej/plan-ej/index.html.
EPA Announced Settlement with Department of the Interior to Resolve Violations at Schools in Indian Country
On August 25, 2011, EPA announced a settlement with the Department of the Interior (DOI) to address alleged violations of waste, water, air, toxics and community right-to-know laws at schools and public water systems in Indian country owned, operated, or the legal responsibility of DOI’s Indian Affairs Office. The settlement addresses all alleged violations under the Resource Conservation and Recovery Act, the Safe Drinking Water Act, the Clean Air Act, the Clean Water Act, the Emergency Planning and Community-Right-to-Know Act, the Toxic Substances Control Act’s PCB provisions, and the Asbestos Hazard Emergency Response Act AHERA. According to EPA, the settlement will protect students’ health and the health of communities in Indian country by reducing potential exposure to environmental hazards. Pursuant to the settlement, DOI’s Indian Affairs Office (comprised of the Bureau of Indian Affairs (BIA) and the Bureau of Indian Education (BIE)), will correct all of the alleged violations at 72 schools and 27 water systems. DOI will implement an environmental compliance auditing program and an environmental management system designed to improve environmental practices at all of its BIE schools and BIA public water systems serving these schools. DOI has also agreed to install a solar energy system which will serve a school located in the Grand Canyon, which will ensure a more reliable source of electricity for the school and local community. DOI will also pay a civil penalty of $234,844 which it must spend to correct violations of AHERA at its schools. The settlement affects 60 tribes throughout the U.S. which have DOI Office of Indian Affairs schools or public water systems on or near their tribal lands. Information about the settlement is available at http://www.epa.gov/compliance/resources/cases/federal/bia-settlement.html.
On August 25, 2011, EPA announced a settlement to a civil rights complaint, pursuant to which California pesticide regulators will install an air monitor at a Watsonville, California school to track concentrations of methyl bromide. Methyl bromide is an odorless, colorless gas used primarily as a fumigant in agriculture to control insects, nematodes, weeds, pathogens, and other pests. It is also used as a structural fumigant. For agricultural uses it is injected into the soil prior to planting and then the fields are covered with tarps. Exposure to high concentrations of the gas can injure the central nervous and respiratory systems as well as the skin and eyes. The settlement under Title VI of the Civil Rights Act grew out of the agency’s investigation into the California Department of Pesticide Regulation’s (CDPR) annual renewal of the registration for the soil fumigant. Filed with EPA’s Office of Civil Rights in 1999, the complaint alleged CDPR’s registration of methyl bromide in 1999 discriminated against Latino children because the agency failed to consider the chemica’s potential health effects on children attending schools within a 1.5-mile radius of the application areas. In announcing the settlement, EPA stated that its investigation into the pesticide use in California from 1995 to 2001 raised concerns that there was unintentional adverse and disparate impact on Latino children resulting from the use of methyl bromide during that period. According to the agency, a high percentage of Latino children were enrolled in schools near fields where the chemical was applied from 1995 through 2001. CDPR voluntarily agreed to resolve the case because the agency has implemented significant restrictions on the use of methyl bromide. Methyl bromide is a restricted material that requires a use permit from the agricultural commissioner in the county where the application is planned. Under the settlement, CDPR will add the Watsonville school to its existing air monitoring network for methyl bromide. CDPR also will share the monitoring results with EPA and the public and has agreed to increase community outreach and education efforts to the schools in areas with high methyl bromide use. Angelita C. v. California Department of Pesticide Regulation, Case No. 16R-99-R9 (EPA Aug. 25, 2011).
17 Federal Agencies Signed Memorandum of Understanding Committing to Providing Annual Reports on Their Efforts to Address EJ Issues
On August 4, 2011, 17 federal agencies announced that they signed a memorandum of understanding (MOU) that will provide annual reports on their efforts to address disproportionate environmental burdens facing poor and minority communities. According to the MOU, the federal agencies will pay particular attention to environmental justice considerations relating to climate adaptation and commercial transportation. Additionally, the agencies agreed to address environmental justice considerations when implementing the National Environmental Policy Act and Title VI of the Civil Rights Act of 1964. The MOU requires the participating agencies to identify any environmental justice impacts from their programs and policies and prepare annual reports on their progress toward alleviating those effects, including performance measures for their efforts and responses to community concerns. The progress reports will be due Feb. 11 every year beginning in 2012. As part of the MOU, the agencies also agreed to a charter to better guide the interagency working group on environmental justice, which was established under President Clinton’s Executive Order No. 12,898. The interagency working group will review the agencies’ strategic plans every three years and identify environmental justice priorities that still need to be addressed. In September 2010, the Obama Administration reactivated the defunct Cabinet-level working group. During its first meeting, the working group ordered federal agencies to update their environmental justice strategic plans. The memorandum was signed by EPA, the White House Council on Environmental Quality, Health and Human Services Department, Justice Department, Agriculture Department, Commerce Department, Defense Department, Education Department, Energy Department, Homeland Security Department, Housing and Urban Development Department, Interior Department, Labor Department, Transportation Department, Veterans Affairs Department, the General Services Administration, and the Small Business
The MOU on environmental justice is available at http://epa.gov/environmentaljustice/resources/publications/interagency/ej-mou-2011-08.pdf.
Federal Agencies and Municipal Sewer Utility Entered into Consent Decree Whereby Utility Agreed to Improve Sewer Collection Infrastructure for Low-Income Housing
In July 19, 2012, the Department of Justice (DOJ), EPA and a New Jersey municipal sewer utility entered into a Clean Water Act (CWA) consent decree between the parties whereby the utility agreed to improve sewer collection infrastructure for low-income housing. The decree requires the Jersey City Municipal Utilities Authority (JCMUA) to invest $550,000 in a supplemental environmental project (SEP) to remove privately owned common sewers from homes in several neighborhoods and replace them with direct sewer connections, creating better wastewater collection. The consent decree specifies that the private sewers will be replaced at 30 homes with individual lateral sewers in order to connect these buildings to its combined sewer system and requires the project to be completed by Dec. 31, 2012. The proposed settlement resolves allegations that the Authority violated the CWA by failing to properly operate and maintain its combined sewer system, resulting in releases of untreated sewage into the Hackensack and Hudson rivers. Under the agreement, JCMUA will spend $52 million in repairs and upgrades and pay a $375,000 civil penalty. It will also spend $550,000 on the SEP, which the decree notes was not a project the defendant was otherwise planning. U.S. v. Jersey City Municipal Utilities Authority & the State of New Jersey (D. N.J.). The consent decree is available at http://www.jcmua.com/PDF%27s/Fully%20Executed%20Consent%20Order.pdf.
Report Found that EPA's Office of Civil Rights Suffers From Lack of Stable Leadership, Standard Operating Procedures, and Staff Without Proper Skills and Competencies
On April 4, 2011, the watchdog group Public Employees for Environmental Responsibility (PEER) released a report prepared by Deloitte Consulting that found that a lack of stable leadership, the absence of standard operating procedures and goals, and a staff without proper skills and competencies are among several problems confronting EPA’s Office of Civil Rights (OCR) . According to the report, some of the problems are include: (1) inadequate adjudication of claims under Title VI of the 1964 Civil Rights Act, which allege discrimination against certain communities affected by EPA regulations; (2) failure to adequately track, investigate, and resolve claims under Title VII of the 1964 Civil Rights Act that allege employment discrimination against EPA employees; (3) failure to complete compliance checks of grantees to ensure they are not discriminating; and (4) failure to file required employment reports. Overall, the report found that OCR has suffered from leadership instability, with a loss of four out of five top leaders over a 16-month period. In addition, the report found that there has been a lack of clear expectations, governance, and processes that has created an environment where employees are not provided the structure and guidance required for their roles. On April 1, 2011, EPA Administrator Lisa Jackson said in a memorandum that Deputy Administrator Robert Perciasepe has been tasked with leading a committee to review the report and recommend next steps. Deloitte was hired by EPA in 2010 to conduct the evaluation of the Office of Civil Rights. The report recommended that EPA first address OCR’s leadership and workforce competency deficiencies by: (1) filling leadership positions expeditiously with qualified, experienced, and motivated civil rights professionals; (2) re-evaluating staff roles and formally documenting the skills, competencies, and experiences needed for each role and then evaluate the current workforce against those requirements; and (3) developing and implementing a workforce plan that includes well-defined career paths, performance management processes, training programs, and recruitment and selection processes. The report is available at http://www.epa.gov/epahome/pdf/epa-ocr_20110321_finalreport.pdf.
A class of plaintiffs alleged that the Bay Area Metropolitan Transportation Commission, California’s largest bus-only transit system, engaged in funding decisions that disadvantage the transit system’s largely minority riders in comparison to the white ridership of the region’s light and heavy rail trains, primarily by failing to cover the system’s operational shortfalls. The defendants moved for summary judgment, challenging the standing of the plaintiffs as well as claiming that plaintiffs had failed to raise a material issue of fact as to intentional discrimination. The district court found that the plaintiffs had standing to maintain the action, and that there were triable issues of fact regarding whether the Commission intentionally discriminated against plaintiffs in its funding decisions. After trial, the court held that plaintiffs had established a prima facie case of disparate impact discrimination only as to the Commission’s conduct in disproportionately selecting and allocating funding to rail projects, as opposed to bus projects, in its Regional Transit Expansion Plan. However, the court found that the Commission had shown a substantial legitimate justification for its conduct and that the plaintiffs had not proven the existence of a less discriminatory and equally effective alternative, as they were required to do. Thus, the court dismissed the case. On appeal, the Ninth Circuit affirmed on different grounds, holding that plaintiffs did not establish a prima facie case given that their statistical evidence did not demonstrate that an expansion plan that emphasizes rail projects over bus projects would harm minorities given that minorities already benefit substantially from rail service. Darensburg v. Metropolitan Transportation Commission, 2011 U.S. App. LEXIS 3007 (9th Cir. Feb. 16, 2011).
District Court Dismissed NEPA Lawsuit Concerning Alleged Impacts of Proposed Light Rail Construction Project on Environmental Justice Community
A number of community organizations in Minneapolis and St. Paul, Minnesota, filed a lawsuit against the Department of Transportation, the Federal Transit Administration, and the local city council alleging that the defendants prepared a deficient final Environmental Impact Statement (EIS) for a light rail construction project in violation of the National Environmental Policy Act (NEPA). Among other things, the plaintiffs alleged that the EIS failed to adequately analyze the cumulative impacts of displacement on a predominantly African-American neighborhood that would be caused by the project. After discovery, both sides moved for summary judgment. The district court granted the motion in favor of defendants. In granting the motion, the court found that the EIS took the requisite “hard look” at the cumulative impacts of the proposed action and did not act arbitrarily or capriciously in its consideration of the past activities in the neighborhood at issue. The court noted that the agencies considered the potential adverse impacts of the project and rationally concluded that, despite these potential impacts, the project will provide substantial benefits to the environmental justice community. St. Paul Branch of the National Association for the Advancement of Colored People v. U.S. Dept. of Transportation, 2011 U.S. Dist. LEXIS 8111 (D. Minn. Jan. 27, 2011).
On January 28, 2011, the D.C. Circuit upheld the dismissal of a Native American tribe’s case against the Department of Energy, which sought the cleanup of two contaminated sites under the Uranium Mill Tailings Remediation and Control Act. The sites, which are located on Navajo tribal land, were contaminated by World War II and Cold War-era uranium mining. The Act, which creates a mechanism to clean up after such activities, requires the Secretary of the Department of Energy to designate uranium processing sites where remediation is required and to prioritize these sites. The Department declined to require remediation of the two sites. In its lawsuit, the tribe sought to compel the Department of Energy to remediate both sites under the statute. The district court declined to review the Department’s denial given that the statute bars judicial review of such decisions. On appeal, the D.C. Circuit upheld the district court’s decision. El Paso Natural Gas Co. v. United States, 632 F.3d 1272 (D.C. Cir. 2011).
EPA Formed New Group to Increase Tribes’ Role in Chemical Management and Pollution Prevention Activities
On December 21, 2010, EPA announced that it was forming a new tribal committee to provide tribes with an opportunity for greater input on issues related to toxic chemicals and pollution prevention. EPA announced that it was establishing a National Tribal Toxics Committee (NTTC) that will give tribes a forum for providing advice on the development of EPA’s chemical management and pollution prevention programs that affect tribes. According to EPA, the forum will help the agency better tailor and more efficiently address a variety of issues, including preventing poisoning from lead paint, expanding pollution prevention and safer chemical initiatives in Indian country, and better evaluating unique chemical exposures on tribal lands. According to EPA, a charter for the new NTTC is being developed and the membership of the council will be formed in early 2011. More information about the NTTC is available at http://www.epa.gov/oppt/tribal.
On November 23, 2010, the EPA announced the release of research that that found that low income neighborhoods appear to be the most susceptible to the West Nile Virus. According to EPA, the study is the first to use a statistical model to determine links between economic conditions and disease. West Nile Virus is a mosquito-transmitted disease that first appeared in the U.S. in 1999, causing human illness and death and costing millions of dollars to control. The Centers for Disease Control and Prevention (CDC) estimate that up to 100,000 people may be exposed to the virus every year. The research was led by scientists from the University of California at Los Angeles and the Orange County Vector Control District. Results from the study suggest that lower-income communities experience both higher prevalence of West Nile Virus in mosquitoes, and higher incidence of human disease. These results underline the importance and utility of considering economic variables in risk assessments of disease and have assisted the Orange County Vector Control District in planning and focusing its mosquito control efforts. As a result of this research, vector control agencies are now increasing their focus on identifying abandoned swimming pools and standing water sources, including storm and waste water drainage infrastructure. An additional 1,200 abandoned swimming pools have been identified in Orange County as suitable for treatment since this research was completed. The results may also alert healthcare providers to areas of higher West Nile Virus incidence, accelerating diagnosis of the disease. According to EPA, future research will focus on the biological mechanisms of West Nile Virus transmission at identified hotspots, and the effects that neighboring communities might have on the prevalence of the virus in a given area. Additional information regarding the research is available athttp://www.plosone.org/article/info%3Adoi%2F10.1371%2Fjournal.pone.0015437. (EPA Press Release Nov. 23, 2010).
Environmental Justice Advisory Council Released Draft Report Concerning EJ Considerations in EPA Permitting Process
On November 17, 2010, the National Environmental Justice Advisory Council recommended that EPA establish a formal workgroup to further study how to address environmental justice considerations in its permitting process. The Council’s draft report to EPA made 14 recommendations for addressing environmental justice when industrial facilities apply for various permits. However, the Council said that it needs more detailed information on the number and types of permits EPA issues or administers to provide a more thorough analysis. The draft report recommends EPA take a community-wide approach when it considers industrial facility permits, identifying all environmental justice concerns in a neighborhood rather than trying to address those considerations through individual permit applications. Other recommendations include maintaining lists of affected communities to be consulted when facilities apply for permits, encouraging facilities to sign good neighbor agreements with impacted communities to share environmental monitoring data, considering the cumulative impact of pollution for several facilities on those communities, and requesting the U.S. Army Corps of Engineers to perform independent analyses of environmental justice concerns through a reactivated interagency working group on environmental justice. The draft report also recommended that EPA review prior reports the National Environmental Justice Advisory Council have submitted that examined the issue of environmental justice considerations in the permitting process in more detail. According to the report, although EPA has made addressing environmental justice through permitting a priority, most of the concerns raised by affected communities may not be effectively resolved during the permitting process. In its analysis, the Council compiled a list of 117 environmental justice concerns that EPA potentially could consider during the permitting process, including emissions of toxic air pollutants, runoff from industrial farms, rodenticide application, and discharges into waterways. Of the concerns identified by the council, 64 percent could not be addressed through those permits. Information about the Council is available athttp://www.epa.gov/compliance/ej/nejac/index.html.
Court Granted Summary Judgment Motion by Plaintiffs in Lawsuit Alleging Non-Compliance With NEPA Concerning Expansion of Mine on Tribal Land
A Native American tribe in Colorado filed a lawsuit against the Department of Interior (DOI) concerning leases that allow private companies to extract coal on the tribe’s land in New Mexico for use at a power plant in New Mexico. In 1985, DOI’s Office of Surface Mining (OSM) conducted an environmental assessment under NEPA concerning the renewal of a permit by a company to continue surface mining operations. The environmental assessment found that the company’s proposal to mine 4,816 areas over a 15 year period and extract 120 million tons of coal would have no significant impact on the environment. Pursuant to the Surface Mining Control and Reclamation Act, the company was required to submit permit revision applications whenever it sought to expand its mining operations. In May 2004, the company submitted an application for a five year renewal of its permit. OSM determined that the permit renewal was categorically exempt from NEPA and approved it. That same year, the company submitted a permit application to expand its operations by 3,800 acres. OSM approved the permit and found that it would have no significant impact on the environment. The tribe filed suit, alleging that the government agencies violated NEPA by issuing the two permits by failing to comply with certain procedural requirements or satisfying its public notice and participation requirements. Given that the permit renewal had been superceded by a 2009 permit renewal, the district court found that this portion of the lawsuit was moot. With respect to the expansion permit, the court held that the action was not categorically exempt and that the environmental assessment was deficient because it failed to consider a reasonable range of alternatives, failed to take a “hard look” at the environmental impacts of the expansion, and that the process failed to involve members of the public. It therefore voided the environmental analysis and remanded the matter to OSM. Dine Citizens Against Ruining our Environment v. Klein, 747 F. Supp. 2d 1234 (D. Colo. 2010).
EPA Drafted Agency-wide Plan to Incorporate Environmental Justice Considerations Into Its Work by 2014
On July 27, 2010, EPA notified the National Environmental Justice Advisory Council that the agency is drafting a plan to better incorporate environmental justice considerations into every facet of its work , including permitting, rulemaking, and enforcement. The draft plan, known as “ Plan EJ 2014,” establishes a master plan for EPA to better address inequitable environmental impacts on poor and minority groups in both its own work and government-wide. The draft plan establishes five priorities across all of EPA’s activities: (1) incorporating environmental justice into rulemaking; (2) considering environmental justice concerns during the permitting process; (3) accelerating compliance and enforcement initiatives; (4) supporting community-based programs, and (5) fostering government-wide action on environmental justice.
The draft plan would be implemented by 2014, the 20th anniversary of Executive Order No. 12,898, which requires federal agencies to consider environmental justice aspects of their actions. EPA accepted comments on the draft plan until Oct. 1, 2010. Plan EJ 2014 is available athttp://www.epa.gov/environmentaljustice/resources/policy/plan-ej-2014.html.
On July 26, 2010, EPA released an interim guidance document to help agency staff incorporate environmental justice into the agency’s rulemaking process. The document, entitled “Interim Guidance on Considering Environmental Justice During the Development of an Action,” seeks to advance environmental justice for low-income, minority and indigenous communities and tribal governments who have been historically underrepresented in the regulatory decision-making process. The interim guidance requires EPA staff to identify populations that might be affected by their proximity to environmental hazards, those that are susceptible to multiple and cumulative environmental impacts, and affected communities that historically have not had their views represented during the rulemaking process. The agency will be required to ensure those populations are given the opportunity to participate during the rulemaking process after they have been identified. The interim guidance is meant to provide a framework for EPA staff to consider environmental justice implications of the agency’s proposed and final rules as required by a 1994 executive order, Executive Order No. 12,898. The interim guidance also identifies areas where EPA retains authority to address disproportionate environmental impacts on poor, minority, and indigenous communities. According to the guidance, EPA’s existing authority to establish health-based national ambient air quality standards (NAAQS) under Section 109 of the Clean Air Act provides an opportunity to consider the health impacts on minority, low-income, and indigenous populations without an additional requirement that those impacts are disproportionate. Sections 3002 through 3004 of the Resource Conservation and Recovery Act (RCRA) also require EPA to establish standards for generation, transport, treatment, storage, and disposal of hazardous waste that provide “broad discretion” to consider the impact on poor or minority populations. As part of the rule, EPA expanded its monitoring network for sulfur dioxide, particularly around busy highways where susceptible populations are more likely to be found. The interim guidance is available at http://www.epa.gov/environmentaljustice/resources/policy/ej-rulemaking.html. (EPA Press Release July 26, 2010).
Lawyers’ Committee for Civil Rights Released Report Concerning Environmental Justice in Government Projects and Decisions
On July 20, 2010, the Lawyers’ Committee for Civil Rights Under Law released a report, entitled “Now is the Time: Environmental Injustice in the U.S. and Recommendations for Eliminating Disparities,” which called on the Obama administration to take steps to entrench the principles of environmental justice in all government projects and decisions. The report makes 135 recommendations to the Obama administration for bolstering the federal government’s response to environmental justice issues. The report includes recommendations for various government agencies, including the EPA, Department of Justice, and White House Counsel on Environmental Quality. Among the report’s recommendations is that Title VI of the Civil Rights Act of 1964 be amended to allow citizen lawsuits to enforce provisions prohibiting the government from funding projects with discriminatory impacts. In addition, EPA’s Office of Civil Rights should also develop a comprehensive public reporting system on its investigations of disparate impacts under Title VI of the Act. The report also recommends that EPA and the Justice Department’s enforcement programs target their enforcement activities to protect the communities with the heaviest pollution burdens, that state enforcement programs be actively monitored, and that delegated authority to administer federal programs be withdrawn from states that fail to protect at-risk communities. The report also recommends that the federal government, particularly EPA, take additional steps to address the disproportionate impact of toxic air emissions, mining, and power plant emissions on low-income and minority populations.
In addition, it recommends a shift in transportation spending, with 80 percent of funding under the Surface Transportation Authorization Act dedicated to public transportation, with far lower spending on new road construction. The report is available athttp://www.lawyerscommittee.org/admin/site/documents/files/Final-Environmental-Justice-Report-6-9-10.pdf.
On March 29, 2010, the Inter-American Commission on Human Rights (IACHR) agreed to examine environmental racism complaints of Mossville, Louisiana, saying that U.S. courts and federal agencies have not provided a remedy for the toxic pollution in the community from fourteen nearby chemical plants. The IACHR determined that the town would have no reasonable prospect of success in U.S. courts on their claims regarding an alleged disproportionate discriminatory pollution burden, in part because the federal government is largely immune from these kind of tort claims. A citizen's group, Advocates for Environmental Human Rights, petitioned the IACHR to take up the complaint in March 2005. The petitioners alleged that Mossville residents suffered health problems caused by toxic pollution released from the chemical plants and that, despite scientific evidence supporting these claims, no remedy had been provided. According to the petition, 91 percent of Mossville's residents have at least one health problem associated with exposure to industrial pollutants, including nervous system failures, cardiovascular complications and skin disorders. The federal government argued that the IACHR did not have the authority to request the precautionary measures of relief sought because the petition sets forth standards well beyond those set in the American Declaration of the Rights and Duties of Man. The federal government also contended that domestic remedies had not been exhausted and that U.S. was not a party to the American Convention on Human Rights, rendering an action of this kind of IACHR unenforceable. The IACHR's decision to hear the case launches a three-month period where the U.S. and the petitioners can submit additional arguments and documentation. The ruling is available at http://www.ehumanrights.org/docs/IACHR_Ruling-Mossville_petition_admissible.pdf.
EPA Settled Environmental Justice Lawsuit Alleging a Failure to Investigate Discrimination in Washington State
On March 19, 2010, a federal court in Washington state entered a stipulated judgment in favor of the Rosemere Neighborhood Association. Rosemere is a non-profit community organization based in Clark County, Washington dedicated to environmental protection and improving the status of environmental justice communities. In entering the judgment, the court approved the final settlement agreement between Rosemere and EPA that concludes a seven year stretch of administrative Title VI complaints and litigation. In February 2003, Rosemere first filed a Title VI administrative complaint with EPA's Office of Civil Rights alleging that the City of Vancouver, Washington had discriminated in the provision of municipal services in violation of the Civil Rights Act of 1964. Rosemere alleged that Vancouver failed to use EPA funds to address fairly long-standing problems in low-income and minority neighborhoods in West Vancouver. Soon after, the city of Vancouver began an investigation into the internal operations of Rosemere and then revoked Rosemere's status as a 'recognized' neighborhood association. The city also stripped the neighborhood of its historical name, actions later deemed 'suspicious' by EPA in an investigative report. Rosemere filed a second Title VI complaint with the EPA in December 2003 alleging retaliation by the city of Vancouver. Rosemere subsequently filed suit against EPA on two separate occasions, citing EPA's failure to accept, investigate, and issue findings on Rosemere's complaints. Each time, EPA responded to Rosemere only after the litigation was filed and EPA sought to dismiss the cases as 'moot.' In September 2009, the Ninth Circuit reversed the district court's ruling to dismiss Rosemere, citing EPA's 'consistent pattern of delay.' The appellate court substantiated the claim that Rosemere is in 'realistic danger of sustaining a direct injury as a result of the agency's disregard of its own regulations.' In the settlement agreement, EPA's Office of Civil Rights admits that its actions were unlawful when it failed to process Rosemere's complaint of retaliation against the City of Vancouver. The settlement agreement requires EPA to take action on any additional Title VI complaints submitted by Rosemere over the next five years in accordance with regulatory timelines. The settlement agreement also requires EPA to report quarterly to the Rosemere Neighborhood Association for the next five years and specifically track the status of all Title VI administrative complaints submitted to and investigated by EPA. Rosemere Neighborhood Association v. EPA, (W.D. Wash., settlement entered March 19, 2010).
On March 9, 2010, EPA announced the release of EJView, a new public mapping tool. EJView will replace the agency's Environmental Justice Geographic Assessment Tool. The Tool was one of the first mapping tools designed to screen for areas with potential environmental justice concerns. According to EPA, EJView maintains the same functionality and types of data used in the Geographic Assessment Tool, but runs smoother, faster and easier. With EJView, users can overlay demographic, health and other environmental information on a map to get a snapshot of the multiple factors affecting a community. Users can also focus on an area of concern and generate reports for that area. EJView is available athttp://www.epa.gov/enviro/ej/index.html.
Federal Transportation Administration Held Up Funding for Oakland Project in Response to Allegations that Bay Area Transit Agency Failed to Comply with Civil Rights Laws
On February 12, 2010, the Federal Transportation Administration (FTA) announced that it would hold up $70 million in federal stimulus funding for an Oakland Airport Connecter Project in response to an administrative complaint filed with FTA's Office of Civil Rights in September 2009 by several nonprofit groups alleging that the Bay Area Metropolitan Transportation Commission (MTC) failed to comply with federal civil rights laws. By law, FTA is required to redistribute to other regions any money that is not obligated by March 5, 2010, unless the agency determines that the MTC has met all requirements for the project. The groups alleged that the MTC repeatedly failed to conduct the required service and fare equity analysis as required under Title VI of the Civil Rights Act. The FTA Commissioner found that this allegation was well-founded and indicated that this money would not be awarded to the Bay Area Rapid Transit (BART) system while the MTC remained out of compliance. (Feb. 12, 2010 Letter from FTA Commissioner to General Manager of BART).
Several community organizations, including a Minnesota branch of the National Association for the Advancement of Colored People (NAACP), sued three government agencies over their decision to construct a light rail system through a historically black community. The complaint, which was filed in federal district court in Minnesota, alleges that the plan of the Department of Transportation (DOT), the Federal Transit Administration (FTA) and a local municipal council to build an 11-mile light rail transit line through St. Paul's Rondo community violates NEPA by failing to adequately identify the adverse impacts of the project. Under NEPA, the FTA is required to prepare an environmental impact statement (EIS) for any major federal actions significantly affecting the quality of the human environment. After the defendants published the final EIS, plaintiffs submitted a response alleging that the assessment did not sufficiently detail the adverse impacts of business interruptions, lost parking and property value, tax and rental tax increases and that the report had erroneously analyzed the impact on community cohesion and displacement. St. Paul Branch of the NAACP v. U.S. Dept. of Transportation, 10 CV 00147 (D. Minn., filed Jan. 19, 2010).
On January 15, 2010, EPA announced that it will use a six-step process to assess the potential impacts of its hazardous waste recycling rule on low-income, minority, and tribal populations. The "Revisions to the Definition of Solid Waste' rule creates specific conditions for recycling hazardous secondary materials under the Resource Conservation and Recovery Act (RCRA). These conditions are different from the agency's hazardous waste requirements in that as long as the conditions of the rule are met, the hazardous secondary materials are not defined as "hazardous waste" and therefore are not subject to hazardous waste requirements under RCRA. In January 2009, the Sierra Club petitioned EPA to repeal the rule, arguing that the rule is unlawful and increases threats to public health and the environment without producing compensatory benefits and should therefore be repealed. In particular, the petition disagreed with EPA's findings that the rule would have no adverse environmental impacts on minority or low-income communities. EPA said in response that it would not repeal the rule but would investigate whether it should be amended in light of these concerns. The proposed methodology includes six steps: (1) hazard characterization, in which potential dangers are identified; (2) identification of potentially affected communities; (3) identification of the demographics of potentially affected communities; (4) identification of other factors that affect vulnerability in potentially affected communities; (5) synthesis of information to assess disproportional impacts; and (6) identification of potential preventive and mitigation strategies. The proposed methodology is available athttp://www.epa.gov/epawaste/hazard/dsw/ej-meth.pdf.
On January 3, 2010, a radioactive waste processing company in Tennessee agreed to settle a case brought by the U.S. Equal Employment Opportunity Commission (EEOC) for $650,000. The lawsuit alleged that the company's black employees were subjected to racial slurs and given more dangerous work assignments than white employees. According to the complaint, the majority of black employees were assigned to work on radioactive waste in the shop area, while white employees were put in other parts of the plant when possible to protect them from being exposed to the waste. The EEOC alleged that when the waste triggered an alarm warning that the radiation levels were too high, a supervisor would reset the alarm and make black workers keep working while white workers in the same situation were typically allowed to leave the shop. The consent decree gives the company 30 days to adopt an anti-discrimination policy unequivocally stating that racial harassment is not tolerated. The company also has to provide the EEOC with a monthly report showing employees' names, races and durations of their assignments in both shop and nonshop areas. The company is also required to designate a person in its human resources department to investigate race discrimination and retaliation complaints. Those investigators must start within two business days after the allegation is received, and records of those investigations must be kept for two years. The company also is required to conduct annual training on race discrimination, harassment and retaliation. EEOC v. Race, LLC, 07-2620 (W.D. Tenn, consent decree filed Jan. 3, 2010).
Ninth Circuit Grants Preliminary Injunction In Case Concerning Challenge by Indian Tribes to Proposed Gold Mine Near Sacred Site
On December 3, 2009, the Ninth Circuit held that the federal Bureau of Land Management (BLM) failed to take the requisite 'hard look' at the environmental impacts of ore transport and mine dewatering on federal land under NEPA. Several Indian tribes commenced an action in federal court challenging BLM's approval of a gold mining project on federal land in Nevada. The project is located near Mount Tenabo, an Indian sacred site. The proposed project included digging a new 850-acre mine pit, adding facilities for cyanide heap-leach processing, adding areas for disposal of approximately 1.5 billion tons of waste rock, and upgrading mine dewatering systems to remove surface and ground water that would otherwise fill the mines. BLM issued a final environmental impact statement (EIS) in October 2008, concluding that there would be no 'unnecessary or undue degradation of the public lands.' The Indian tribes filed a complaint in November 2008 and moved for a preliminary injunction, alleging violations of NEPA. The district court denied the motion. On appeal, the Ninth Circuit partially reversed, holding that BLM failed to consider the transport and processing of five million tons of refractory ore over a 10 year period and to conduct an appropriate mitigation analysis with respect to the environmental consequences of mine dewatering. South Fork Band Council of Western Shoshone of Nevada v. U.S. Dept. of Interior, 588 F.3d 718 (9th Cir. 2009).
EPA Required Additional Environmental Justice Analyses in Petition to Import and Incinerate Polychlorinated Biphenyls
In December 2009, EPA required additional environmental justice analyses on an industry petition to import and incinerate polychlorinated biphenyls (PCBs). Veolia ES Technical Solutions LLC petitioned EPA under the Toxic Substances Control Act (TSCA) for a one-year exemption from a federal ban on importing PCBs, in order to have authority to import the chemicals from Mexico and incinerate them at the company's Port Arthur, Texas, facility. Port Chester is home to many low-income and minority residents. While federal law bans the importation of PCBs for incineration, it does allow PCBs produced within the United States to be incinerated. In response, EPA required Veolia to conduct additional equity analyses for the petition. The company subsequently decided to temporarily withdraw its petition. Information about the petition and related documents is available at http://www.epa.gov/waste/hazard/tsd/pcbs/pubs/veolia.htm.
On November 24, 2009, EPA awarded a total of $800,000 in grants to five states to address environmental justice and public health concerns. EPA awarded the grants through its State Environmental Justice Cooperative Agreement, which provides funds for state-led environmental justice projects. EPA awarded $160,000 each to the Alaska Department of Environmental Conservation to develop a system to ensure tribal organizations participate in the Alaska Pollution Disposal and Elimination System permitting program; the California Department of Toxic Substances Control for public education programs; the Illinois Environmental Protection Agency for a lead paint outreach program; the Pennsylvania Department of Environmental Protection for an air pollution and solid waste education and remediation program; and the South Carolina Department of Health and Environmental Control for a pilot program to conduct environmental assessments and address environmental concerns. Information about this agreement is available athttp://www.epa.gov/compliance/environmentaljustice/grants/ej-sejca-grants.html.
Power Company Reached Agreement with City and Environmental Groups Concerning Emissions at Power Plant
On November 19, 2009, a power company in Connecticut reached an agreement with the City of New Haven, Connecticut and several environmental groups , agreeing to take steps to ensure there will be no net increase in emissions as a result of a planned expansion at the company's plant in New Haven. In exchange, city officials and environmental groups agreed not to oppose the project, the permit renewal for the existing unit, or the permits to construct and operate the new units. The agreement was signed by the company , the City of New Haven, the New Haven Environmental Justice Network, the Connecticut Coalition for Environmental Justice, and the Connecticut Fund for the Environment and details enforceable changes in operating protocols for the plant's existing unit. Those changes are designed to ensure that the three new peaking generating units will not increase overall emissions when they become operational in 2012. The company also agreed to provide $500,000 to fund environmental projects in New Haven's East Shore neighborhood. The agreement was reached under Connecticut's new environmental justice law, which took effect in 2009 and requires developers of power plant projects in urban areas to conduct significant community outreach before obtaining permits from the Department of Environmental Protection (DEP). The operating protocols include reducing the existing unit's maximum output while any of the peaking units are in service and reducing its minimum operating time. In addition, from May 1 to Sept. 30 and on 'unhealthy air days' as designated by DEP, the unit ' which operates on low-sulfur oil ' will be 'co-fired' with natural gas to the fullest extent possible. The unit will be co-fired with natural gas for at least one hour for each hour one of the peaking units operates. (PSEG Power Connecticut Press Release Nov. 20, 2009).
On November 17, 2009, EPA Administrator Lisa Jackson announced a national initiative to address environmental justice challenges in 10 U.S. urban areas. Speaking at the Brownfields 2009 conference in New Orleans, Louisiana, Jackson said EPA has committed $ 1 million to the Environmental Justice Showcase Communities initiative ' $100,000 per city ' over the next two years. The money will be used to test and share information on different approaches to increase EPA's ability to achieve environmental results in communities. The 10 cities selected to participate in the initiative are Bridgeport, Connecticut; Jacksonville, Florida; Kansas City, Missouri, and Kansas City, Kansas; Los Angeles; Milwaukee, Wisconsin; Port Arthur, Texas; Salt Lake City, Utah; Washington, D.C.; and Yakima, Washington. Jackson stated that EPA's brownfields program and the brownfields industry have a 'critical role to play' in the country's economic recovery and its future economic and environmental health, as well as advancing the cause of environmental justice. (EPA Press Release Nov. 18, 2009).
Public Service Commission Approved Programs to Reduce Peak Energy Demand in New York City, Helping Environmental Justice Communities
On October 15, 2009, the New York State Public Service Commission (PSC) approved programs to help reduce peak electric demand and emissions in Consolidated Edison Company of New York, Inc.'s (Con Edison) service territory, which will help lower long-term utility costs borne by ratepayers and emissions in communities where certain power plants exist. The PSC's approval of the demand response program specifically targets at least 50 megawatts in the Greenwood, Brooklyn area, considered to be an environmental justice community. In addition, as a result of the PSC's decision, no diesel-fired generation will be allowed within one-half mile of the generating stations located in environmental justice communities. The PSC noted that Con Edison's system experiences peak demand for only a small number of hours a year and only during the summer months. By decreasing the highest peaks, the infrastructure needed and therefore, the expense of meeting peak demand could be significantly reduced. Customers will have the ability to override the company's control of their appliances when events are called. The company proposes to initially enroll 5 megawatts in this program. The experience gained by Con Edison from implementing these programs would enable demand response reductions to be used in company planning after gaining an understanding of customer behavior in the pilots. If the pilots are successful at reducing peak demand, Con Edison would then reduce its load forecast and, eventually, adjust its infrastructure needs in subsequent years. The PSC initiated a proceeding in early 2009 to separate demand response from the Energy Efficiency Portfolio Standards proceeding to give more emphasis to peak demand reduction activities. Given the significant benefits in pursuing demand response, Con Edison was asked to file a plan with cost-effective demand response initiatives in its service territory, including programs to reduce system coincident peak, network peaks, and to reduce operation of generating units in environmental justice areas in order to help reduce emissions. (PSC Press Release Oct. 15, 2009).
On October 5, 2009, a coalition of environmental groups opposed to mountaintop mining petitioned EPA to include environmental justice in its extended review of surface coal mining permit requests in Appalachia. In its petition, the coalition requested that EPA include in its consideration of surface coal mining 'an environmental justice plan and strategy that will assess and prevent further disproportionate environmental and health effects from mountaintop removal mining.' The petition quoted Executive Order 12898 as directing every federal agency 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.' The groups stressed the low-income status of communities near mountaintop mines. On September 30, 2009 EPA confirmed that it will engage in a more extensive review of all 79 pending permits for surface coal mining in Appalachia. The agency's decision was based on its authority under the Clean Water Act to protect water quality. The members of the coalition include the Sierra Club, the Ohio Valley Environmental Coalition , Coal River Mountain Watch, Kentuckians For The Commonwealth, Southern Appalachian Mountain Stewards, the Appalachian Center for the Economy and the Environment, and Statewide Organizing for Community eMpowerment. The petition is available at http://www.sierraclub.org/ej/appalachia/MTR-Environmental-Justice-Petition-to-EPA.pdf.
On September 17, 2009, the 9th Circuit held that EPA's Office of Civil Rights (OCR) systemically refused to address allegations of discrimination in the use of agency funds. The decision stems from a 2003 Title VI environmental justice complaint filed with EPA by a nonprofit group against Vancouver, Washington. The nonprofit group alleged that the city had discriminated against low-income and minority neighborhoods by refusing to address failing septic systems, the lack of a comprehensive sewer network, contaminated ground and surface waters, poor air quality and industrial pollutants. OCR failed to respond to the second complaint within the required 20 days. After 18 months passed without a response, the group filed a lawsuit against EPA in federal court. Less than two months later, OCR informed the group that it had accepted the complaint for investigation and moved to dismiss the lawsuit as moot. In granting the motion to dismiss, the district court held that the delay was 'nothing 'more than an isolated instance of untimeliness and oversight,' and there was no evidence that the EPA's failure to act was a 'practice' the EPA might resume in the future.' The group sued EPA again in February 2007 after OCR had failed to issue a preliminary finding on the action. Ten weeks later, OCR concluded its investigation, finding that the city's actions did not amount to impermissible retaliation. It again moved to dismiss on mootness grounds, which was granted by the district court in 2007. On appeal, the 9th Circuit reversed, finding that the case was not moot because EPA could not show, as it was required to, the group would not suffer a delay in the future. As evidence of this, the court noted that EPA failed to process a single complaint from 2006 or 2007 in accordance with its regulatory deadlines. It therefore remanded the case back to the district court. Rosemere Neighborhood Association v. U.S. Environmental Protection Agency, 2009 U.S. App. LEXIS 20668 (9th Cir. Sept. 17, 2009).
On August 19, 2009, Arlington County, Virginia filed a lawsuit in federal court, alleging that the Federal Highway Administration (FHWA) and the Department of Transportation's (DOT) decision to exempt significant portions of a proposed federal highway project from requirements under the Civil Rights Act of 1964 constitutes intentional discrimination. The lawsuit seeks to address concerns over a highway project that would expand existing high-occupancy vehicle lanes along the 1-95/I-395 corridor. In the suit, Arlington County challenges approval of the project, alleging that it was arbitrarily segmented into a north and south direction in an attempt to avoid environmental view. The lawsuit alleges that the north section -- which runs through Arlington and several other counties including several predominately minority and low-income communities -- was excluded from environmental reviews in order to support growth in two southern counties characterized by 'white flight' and a lack of dense, transit-oriented development. The complaint alleges that the project would exacerbate environmental justice impacts already caused by the southern counties' development plans and that it would create 'a new protected class -- the largely white, exurban single occupancy rider of sufficient wealth to be able to afford the payment of significant tolls.' County Board of Arlington Virginia v. U.S. Dept. of Transportation, 2009 CV 01570 (D. D.C., filed Aug. 19, 2009).
On July 21, 2009, EPA Assistant Administrator for Solid Waste announced that EPA would thoroughly examine concerns that the definition of solid waste rule promulgated in October 2008 could have an adverse effect on minority communities. EPA reconsidered the final rule in response to a petition from Earthjustice. The rule, at 40 C.F.R. Parts 260 and 261, excludes certain hazardous secondary materials from regulation under RCRA if those materials are recycled. The rule would exclude 1.5 million tons of materials from RCRA regulation. It is in effect, although only Pennsylvania and New Jersey have adopted it. States are not required to adopt the rule because it eases restrictions instead of stiffening them. Among Earthjustice's complaints outlined in the petition is the lack of environmental justice consideration given to the rule before it was made final. In the final rule, which was published Oct. 30, 2008, EPA said it had performed an assessment of potential risks and had determined that no net impact is expected. See 73 Fed. Reg. 64,756. In its petition, Earthjustice disagreed. The group said it is 'inevitable' that the deregulation of facilities recycling hazardous secondary materials will lead to more polluted sites, including superfund sites, many of which will likely be located near poor neighborhoods. The solid waste final rule is available at http://www.epa.gov/epawaste/hazard /dsw/rulemaking.htm#2009.
On June 24, 2009, Cincinnati, Ohio passed an 'Environmental Justice Ordinance.' According to a city press release, the ordinance is the first of its kind where a municipality is using their police powers to enforce environmental justice in the form of an 'environmental justice permit.' The Ordinance applies to major new or modified air, water or land sources that pose a cancer risk exceeding a 1 in 1 million excess lifetime cancer risk, a hazard quotient exceeding 1.0 or an Acute Exposure Guideline Level from a projected accident of Level 2. The Ordinance explains the particular environmental and justice issues unique to Cincinnati. The Ordinance was enacted on June 24, 2009 by a closely divided 5-4 City Council vote. Any industry that wants to operate in Cincinnati that meets the definition of a 'proposed project' will be required to have an environmental justice permit in order to operate. A permit will be denied if the project would cause a public nuisance, which is defined as significantly interfering with public health by 1) causing an excess cancer risk; 2) causing an excess risk of acute health effects; 3) causing an excess risk in the event of an accident; or 4) constituting an 'air pollution nuisance' as defined by city law. In the press release, the City cited a National-Scale Air Toxics Assessment report released by EPA which showed that the excess risk of developing cancer due to toxic chemicals in the air in Hamilton County, where Cincinnati is located, is 4.7 times higher than what the EPA recommends. The City stated that the ordinance will offer its citizens an added measure of protection from industrial activities that pose significant health risks-protection that we currently do not enjoy. (Cincinnati Deputy Mayor Press Release June 24, 2009).
Environmental Justice Advocates Brought Suit Challenging California Air Resources Board's Plan to Implement AB 32
On June 10, 2009, environmental justice advocates filed a lawsuit challenging the California Air Resources Board's (CARB) plan to implement the state's Global Warming Solutions Act of 2006, more commonly known by its bill number AB 32. The complaint, filed in California Superior Court in San Francisco, alleges that the plan fails to maximize greenhouse gas emissions reductions and protect vulnerable communities, as required by AB 32. Plaintiffs further allege that CARB violated the California Environmental Quality Act in approving the plan. Most of the allegations in the complaint focus on the emissions trading program CARB proposed in the AB 32 Scoping Plan , which the plaintiffs staunchly oppose. The complaint seeks an injunction preventing implementation of the plan until CARB brings it into compliance with AB 32 and CEQA. The plaintiffs allege that CARB is pursuing a cap-and-trade program because it is the easiest strategy to curb the heat-trapping emissions. However, the complaint alleges that emissions trading will not achieve the 'maximum technologically feasible reductions' required under AB 32, nor will it improve air pollution in neighborhoods already suffering from poor air quality. Approved by resolution in December 2008, the Scoping Plan is a comprehensive, five-year strategy for cutting greenhouse gas emissions to 1990 levels by 2020, as required under AB 32. It includes a mix of measures targeting a broad spectrum of sources of greenhouse gases, some of which have already been implemented. According to CARB, most of the emissions reduction needed would be achieved through California's vehicle-greenhouse gas reduction regulations, a low-carbon fuel standard, energy efficiency measures, and the proposed emissions trading program, which the state hopes to link with a broader regional program. Association of Irritated Residents v. California Air Resources Board, No. 09-509562 (Cal. Super. Ct., filed June 10, 2009).
Deputy Secretary of the Department of the Interior Reaffirmed Agency's Commitment to Environmental Justice
On May 28, 2009, a Deputy Secretary of the Department of the Interior (DOI) stated at a panel discussion at the State of Environmental Justice in America 2009 conference that the agency is committed to taking environmental justice concerns into account in carrying out its duties. Deputy Secretary David Hayes stated that DOI, which administers public lands, will have to consider environmental justice factors as it plays a particularly significant role as the United States begins moving toward more environmentally sustainable energy sources such as solar and wind power. Hayes said environmental justice was among the considerations when the Bureau of Land Management retroactively withdrew 77 parcels of land in Utah 130,000 acres of public land leased for natural gas exploration to energy companies at its quarterly oil and gas lease sale on Dec. 19, 2008. Though energy sources such as wind farms do not produce carbon dioxide or hazardous emissions like fossil fuel-fired power plants, Cheryl Cook, deputy undersecretary for rural development at the Department of Agriculture, also a panelist, said environmental justice considerations still apply. Hayes said some environmental justice tools have become a bit stale in response to a question about the potential for updating Executive Order No. 12,898, issued in 1994, requiring federal agencies to consider the environmental impact of projects on low-income or minority populations. Although tools such as the National Environmental Policy Act, which requires federal agencies to review the environmental impact of their actions, are valuable, Hayes said the reviews also have become too routine, which can lead to some environmental justice concerns being ignored.
Claim Pursuant to New Jersey Environmental Rights Act Dismissed for Failure to Comply With Notice Requirement
In June 2006, an individual filed an action in New Jersey state court on behalf of himself and similarly situated plaintiffs against DuPont alleging claims based on medical monitoring, strict liability, private nuisance, public nuisance, trespass, punitive damages and negligence. In July 2007, DuPont removed the case to federal court based on diversity jurisdiction. In November 2006, plaintiffs amended their complaint to add a claim under the New Jersey Environmental Rights Act. In February 2007, DuPont filed an answer, which listed as an affirmative defense that the claim under the Environmental Rights Act should be dismissed because plaintiffs had failed to comply with the notice requirement under the statute, in particular that the plaintiffs had failed to notify the New Jersey Department of Environmental Protection (NJDEP) as required under the statute. In March, counsel for plaintiffs sent a letter to NJDEP informing it that the plaintiffs intended to file a claim under this statute. DuPont subsequently filed a motion to dismiss this claim. The court granted the motion, holding that the plaintiffs did not comply with the notice provisions of the statute and that their attempt to cure the defect was improper given that it was after the amended complaint had been filed. Scott v. I.E. DuPont De Nemours & Co., 2009 U.S. Dist. LEXIS 27934 (April 1, 2009).
Agencies' Determination of Development Options for Natural Gas Extraction On Indian Reservation Reasonable Under National Environmental Policy Act
A citizens’ group filed an action in federal court seeking a review of the Department of Interior’s Final Environmental Impact Statement (FEIS) concerning oil and gas development on the Southern Ute Indian Reservation, which was issued in 2002. The reservation is located in the San Juan Basin, which runs through northwestern New Mexico and southwestern Colorado, and is the second-largest natural gas-producing basin in the United States, including coalbed methane. Historically, revenues from oil and gas development have been a major source of income for the Southern Ute Tribe. The FEIS considered a number of development options for extracting the coalbed methane, including one that contemplated drilling 636 wells, a number substantially below what the Tribe wanted. This was the option that was ultimately selected by government agencies. The group alleged that the FEIS violated the National Environmental Policy Act (NEPA) because it failed to address the cumulative impacts of coal basin methane production and because it failed to properly analyze alternatives to the selected course of action. The district court denied the action, holding that the agencies were not required to review the cumulative impacts of coal basin methane production in the region given that geological differences in the Basin made segmented reviews rational. In addition, the court held that the agencies’ review of alternatives and its selection of a course of action were not arbitrary and capricious. San Juan Citizens’ Alliance v. Salazar, 2009 U.S. Dist. LEXIS 29804 (D. Colo. March 30, 2009).
On March 27, 2009, one of the nation’s largest nonprofit urban housing developers agreed to pay a $200,000 penalty and, along with 23 associated property owners, to spend more than $2 million in lead abatement actions under the terms of a consent decree. The decree resolves allegations by the EPA and the Department of Housing and Urban Development (HUD) that The Community Builders Inc. (TCB) and nearly two dozen property owners violated the federal Lead Disclosure Law by failing to inform tenants that their homes might contain potentially dangerous levels of lead at properties in 11 communities in Massachusetts and Connecticut. TCB is a nonprofit corporation that develops, finances, and manages affordable, mixed-income housing in numerous cities throughout the Eastern United States. The company focuses on large-scale, low-income housing redevelopment projects, many of which are financed using public and private funds under a federal low-income housing tax credit program. According to the government agencies, the alleged violations arose out of almost 300 separate lease transactions between TCB and the property owners and their tenants from August 2003 to March 2006. Under the terms of the settlement, TCB will pay a $200,000 civil penalty, which will be split between EPA and HUD. In addition, TCB and the property owners will carry out at least $2.05 million in lead-based paint abatement in residential housing over several years. This work will include window replacement, abatement of lead-based paint on interior and exterior “friction and impact surfaces,” and other measures to mitigate lead-based paint hazards. Under the agreement, TCB must hire certified inspectors/risk assessors to conduct clearance examinations to ensure that all work is done properly.
EPA Administrator Stated that Clean Air Act Finding on Greenhouse Gases to Include Focus on Environmental Justice
On February 27, 2009, EPA Administrator Lisa P. Jackson stated in an interview that the agency’s determination on whether greenhouse gas (GHG) emissions endanger public health and welfare would include a focus on effects on disadvantaged people and communities. Jackson said she wants to consider, “in particular, the impact on communities that are already disproportionately impacted by other types of pollution.” The EPA subsequently issued a proposed endangerment finding on April 17, 2009, which requires the agency to formulate greenhouse gas emissions limits for automobiles. In the interview, Jackson said EPA started with an endangerment document written by EPA in 2007 following Massachusetts v. EPA, which required the EPA to determine whether or not GHG emissions pose a danger to the public.
“It is a jumping-off point,” Jackson said of the Bush administration effort. “But one of the places where I believe we need more information that that document didn’t address is on disproportionately impacted communities and populations on the public health side.” A copy of the proposed finding is available at http://epa.gov/climatechange/endangerment.html
County Found Partially Liable for Submitting False Claims Regarding Race In Its Application to Receive Federal Funding for Public Housing
A county in New York State applied to HUD for federal funding, including Community Development Block Grants, on behalf of itself and 45 municipalities located in the county every year from April 2000 to April 2006. In order to receive the federal funding, the county was required to meet a number of fair housing obligations, including that the county would “affirmatively further fair housing.” To do this, the county was required to conduct an analysis of impediments to fair housing within its boundaries (including impediments imposed by race discrimination or segregation), take appropriate actions to overcome the effects of any such impediments, and maintain records reflecting the analysis and any actions it took. A nonprofit anti-discrimination law firm subsequently filed a lawsuit in federal court, alleging that the county had filed false claims to obtain more than $52 million in federal funding for housing and community development in violation of the False Claims Act. The county moved to dismiss, alleging that it had no legal obligation to consider race when it analyzed impediments to fair housing. In a July 2007, the district court denied the motion, holding that as a recipient of such federal funds it was required to do this. Following discovery, the firm moved for partial summary judgment, contending that there was no material issue of fact that the county knowingly submitted false certifications that it failed to analyze impediments to fair housing within the county by race. The court granted the firm’s motion in part, holding that the county made false claims under the statute but that there was a material issue of fact as to whether it did so with the requisite knowledge. Anti-Discrimination Center of Metro-New York, Inc. v. Westchester County, 2009 U.S. Dist. LEXIS 14399 (S.D.N.Y. Feb. 24, 2009).
New York State Department of Environmental Conservation Announced Notice of Availability on Contact, Cooperation and Consultation with Indian Nations
On December 12, 2008, the New York State Department of Environmental Conservation (DEC) announced that it had issued a Commissioner Policy on Contact, Cooperation and Consultation with Indian Nations. The Policy lays the groundwork for conducting relations with the Nations on a government-to-government basis. The Policy identifies the protocols to be followed by DEC staff in working with Indian Nations, and it endorses the development of cooperative agreements between DEC and Indian Nations to address environmental and cultural resource issues of mutual concern. The Policy calls for each division and each DEC regional office to appoint a single point of contact for handling Indian Nation matters, and assigns oversight of the policy to DEC’s Office of Environmental Justice in the Office of General Counsel. The Policy became effective 30 days after it was posted in the Environmental Notice Bulletin. The policy is available athttp://www.dec.state.ny.us/website/ej/index.html.
Court Held that Federal Government Properly Considered Environmental Effects of Transporting and Storing Chemical Warfare Agent
Several environmental groups brought suit in federal court under NEPA and other statutes seeking to prevent the Department of Defense (DoD) and other government agencies from continuing shipments of the chemical warfare agent VX (also known as “hydrolysate”) from a chemical weapons depot in Indiana to an incineration facility in a low-income area in Texas and to enjoin a private company from incinerating hydrosate at the Texas facility. With respect to their NEPA claim, the environmental groups alleged that the government failed to properly assess the environmental impact of transporting the agent from Indiana to Texas and the likelihood of the chemical agent reforming over time. The groups first moved for a preliminary injunction, which the court rejected, holding that the record was clear that the government had properly considered the environmental aspects of both issues. After discovery, both sides moved for summary judgment. The court granted DoD’s motion, holding that it considered all of the relevant factors in assessing the environmental impact of transporting the chemical agent as well as the possibility that the agent would reform over time. Sierra Club v. Gates, 2008 U.S. Dist. LEXIS 71860 (S.D. Indiana Sept. 22, 2008).
A class of plaintiffs alleged that the Bay Area Metropolitan Transportation Commission, California’s largest bus-only transit system, engaged in funding decisions that disadvantage the transit system’s largely minority riders in comparison to the white ridership of the region’s light and heavy rail trains, primarily by failing to cover operational shortfalls regarding the system. The defendants moved for summary judgment, challenging the standing of the plaintiffs as well as alleging that plaintiffs had failed to raise a material issue of fact as to intentional discrimination. The court found that the plaintiffs had standing to maintain the action, and that there were triable issues of fact regarding whether the Commission intentionally discriminated against plaintiffs in its funding decisions. Darensburg v. Metropolitan Transportation Commission, 2008 U.S. Dist. LEXIS 63991 (N.D. Cal. Aug. 21, 2008).
Court Held that HHS Office of Civil Rights Did not Unduly Delay An Investigation Concerning Construction of "BioSafety" Laboratory in Massachusetts
Residents of the neighborhoods of Roxbury and the South End in Boston sought a writ of mandamus compelling the Office for Civil Rights of the Department of Health and Human Services to conduct an investigation relating to the construction of a "BioSafety" Level 4 laboratory by the National Institute of Allergy and Infectious Diseases that would conduct research on the most dangerous biological agents, such as the Ebola virus. The laboratory would be the only Level 4 facility in the United States located in a densely populated urban neighborhood. According to the residents, the area was already overburdened by poor health and environmental pollution, as well as a disproportionate amount of environmentally hazardous sites and facilities. The area was designated by Massachusetts as an "Environmental Justice Community." The government opposed the writ, stating that the Office of Civil Rights would postpone a determination pending resolution of a related federal lawsuit that alleged that the National Institute of Health failed to comply with the National Environmental Policy Act. The district court denied the writ but held that the Office of Civil Rights should issue a decision within 90 days after the National Institute of Health released its final Environmental Impact Statement in April 2009. King v. Office for Civil Rights of the U.S. Dept. of Health and Human Services, 2008 U.S. Dist. LEXIS 65018 (D. Mass. Aug. 26, 2008).
On July 10, 2008, a federal jury returned a verdict for $11 million, finding that Zanesville, Ohio and the county in which it is situated had violated the civil rights of several of its citizens by failing to provide water to them for 45 years. In 1956, a local water board voted not to extend service to parts of the town. In 2002, two dozen black residents filed a complaint with the Ohio Civil Rights Commission, alleging that they had been denied service because of their race. In 2003, the Commission found probable cause of discrimination. After construction began, the residents filed suit in federal court. The verdict represents damages from the denial of water between 1956 and 2004. Kennedy v. City of Zanesville, 03 CV 1047 (S.D. Ohio 2008).
A group of low-income Latinos commenced a lawsuit against the Village of Farmingdale and the owners of an apartment building, alleging that they had engaged in discriminatory housing practices. The plaintiffs alleged that the Village’s adoption of a plan to redevelop the area was aimed at displacing them by creating housing that was unaffordable. According to the plaintiffs, in 2006 the Village began to investigate the possibility of redeveloping land within the town that included the apartment building. The Village’s plan called for the renovation of the apartment building. In December 2006, the owner of the building allegedly terminated the leases of all the tenants in the buildings, forcing them to move into new and more expensive housing. The defendants moved to dismiss the lawsuit. The court denied the motions, holding that the plaintiffs had adequately demonstrated standing and that they had alleged disparate treatment and disparate impact claims under the Fair Housing Act sufficient to survive a motion to dismiss. Rivera v. Incorporated Village of Farmingdale, 2008 WL 3367585 (E.D.N.Y. July 8, 2008).
On July 7, 2008, Connecticut enacted legislation that requires entities seeking to construct or expand a facility that is likely to become a significant new source of pollution in certain low-income communities in Connection be required to develop a plan for public participation. The legislation covers, among other things, new or expanded landfills, solid waste facilities, medical waste incinerators, and major sources of air pollution. It also restricts where certain asbestos-containing materials may be disposed, placed, deposited, or stored. Procedures required by the law include holding an informal public meeting and consulting with officials of the towns in which the facilities would be located or expanded to evaluate the need for a community environmental benefit agreement. 2008 Conn. Pub. Acts 08-94 (S.H.B. 5145).
Human Rights Petition Alleged Abuses Suffered by Residents of Louisiana Town As A Result of Government Approvals of Nearby Industrial Facilities
On June 23, 2008, an environmental organization filed a petition with the Inter-American Commission on Human Rights on behalf of the black residents in Mossville, Louisiana alleging human rights abuses suffered by these residents as a result of governmental approvals that have allowed industrial facilities--including an oil refinery, a vinyl manufacturer and a petrochemical facility--to dump toxic chemicals in the town. The petition includes a response to the federal government's arguments that defend its environmental regulatory system. A copy of the petition is available athttp://www.ehumanrights.org/docs/Mossville_Amended_Petition_and_Observations_on_US_2008.pdf.
In 2003, a neighborhood association and two citizen groups filed a citizen suit seeking to halt a dredging and lock modernization project on an industrial navigation canal near New Orleans, alleging that the project would churn up solid and hazardous waste on the canal's bottom and create an imminent endangerment under the Resource Conservation and Recovery Act. Plaintiffs also claimed that the Army Corps of Engineers had failed to take a "hard look" at the environmental consequences of the project under NEPA. The plaintiffs succeeded on their NEPA claim but ultimately dropped their other claims. Subsequently, plaintiffs moved for an award of attorneys fees and costs under the Equal Access to Justice Act. The government opposed the motion, arguing that plaintiffs should only be able to recover that portion of its fees and costs that were ultimately successful. The district court rejected the government's argument, holding that the claims involved a common core of facts and were based on related legal theories. It therefore awarded fees and costs on all claims. Holy Cross v. U.S. Army Corps of Engineers, 2008 U.S. Dist. LEXIS 42651 (E.D. La. May 30, 2008).
Developers of a proposed housing development in the City of Saratoga Springs, which was to include 20% affordable units, commenced a lawsuit alleging that the City’s prevention of the construction of the project amounted to intentional discrimination against African-Americans and families with children, amounting to a violation of the Fair Housing Act. In addition, the developers alleged that this had a disproportionate impact on African Americans. In October 2007, the district court denied the City’s motion for summary judgment except with respect to dismissal of the alleged State human rights law violation. With respect to the FHA claims, the City asked the court to certify an interlocutory appeal to the Circuit Court with respect to the timeliness of certain aspects of the plaintiffs’ actions and the sufficiency of the plaintiff’s disparate impact analysis. The district court certified the questions related to disparate impact. Specifically, the court noted that the developers alleged that the City’s overall land use policies prevented the construction of affordable housing, including those proposed as part of their project, and that this had a discriminatory effect on African Americans. Anderson Group, LLC v. City of Saratoga Springs, 2008 U.S. Dist. LEXIS 39028 (N.D.N.Y. May 13, 2008).
New Mexico Attorney General Issues Opinion Allowing County Board to Create Regulations that Incorporate Environmental Justice Principles
On March 12, 2008, the New Mexico Attorney General issued an opinion stating that the Albuquerque-Bernalillo County Air Quality Control Board has authority to promulgate regulations that incorporate environmental justice principles; and that while the Board has authority to adopt directives requiring staff to incorporate environmental justice principles into their work, these directives do not have a binding effect on parties in the permitting process. Relying on Colonias Dev. Council v. Rhino Environmental Services Inc., 117 P.3d 939 (2005), which requires agencies promulgating regulations to consider public input, the Attorney General opined that since the Air Quality Control Act is replete with references requiring public input, the Board has the authority to promulgate air quality permit regulations similar to the solid waste regulations. This allows Board staff to assign weight to public testimony regarding environmental justice principles and to factor in this testimony in determining whether to grant or deny a permit application. The opinion is available athttp://www.nmag.gov/Opinions/Opinion.aspx?OpID=380.
Rhode Island State Environmental Agency Entered Into Settlement Requiring it to Establish Stakeholder Group and Other Measures Involving Cleanup of Contaminated Site
In April 2006, a neighborhood association settled a lawsuit with the Rhode Island Department of Environmental Management concerning clean-up of a contaminated site. Pursuant to the terms of the settlement, the Department was required to establish a stakeholder group to develop legislation, regulations and policies addressing methods for insuring proper notice to abutting property owners and tenants, the Department's assuming jurisdiction over contaminated sites where the Department has information to suspect a possibility of release or contamination, the development and implementation of a community involvement process during the investigation and remediation of contaminated sites, and issues to consider and methods and standards to employ to ensure that the Department takes a "hard look" at environmental equity issues when reviewing clean-up plans. A copy of the settlement is available athttp://www.dem.ri.gov/programs/benviron/waste/springfd/041706co.pdf.Hartford Park Tenants Association v. Rhode Island Dept. of Env. Management, Index No. 99/3748 (Sup. Ct. R.I.).
In March 2008, an Environmental Justice Task Force created by the Albuquerque-Bernalillo County Air Quality Task Board (AQCB) issued its final report. The 52 page report includes nine key recommendations relating primarily to air quality, which are as follows (listed in order of priority): (1) support the adoption of environmental assessment provisions in regulations, statutes and ordinances at the state and local level; (2) monitor sources to ensure that modeled emissions are reflective of actual emissions; (3) explicitly consider EJ and cumulative impact in the permitting process and regulation; (4) strengthen enforcement of regulations and permits; (5) collaborate with the AQCB and the Environmental Improvement Board (EIB) to create new regulations or modify existing regulations; (6) improve the monitoring network so that air quality at the neighborhood level can be assessed more effectively; (7) ensure that human health and environmental monitoring data are collected, available, and analyzed appropriately through a collaborative center; (8) create an EJ ombudsman position; and (9) ensure that membership on appointed boards and commissions accurately reflect composition of the community. The full report is available athttp://www.bernco.gov//upload/images/environmental _health/EJTaskForceFinalReport_31108.pdf.
On January 30, 2008, a Louisiana state appellate court reduced the amount of emotional distress damages awarded to state residents who, although showing no signs of injury, lived, worked or attended school on a contaminated landfill site in New Orleans. Holding that the amount of damages “shocked the conscience,” the court held that damages awarded to those exposed to contaminants at New Orleans’ old Agriculture Street Landfill Site far exceeded the only comparable award given in the state. The court therefore cut in half the maximum amount a resident living above the landfill site could receive, from $50,000 to $25,000. In the 1970’s, the city began developing a site that had been used for 50 years as a municipal landfill. Over the next 10 years, low income residences and an elementary school were built on the site. Despite testing that showed the presence of numerous toxic and hazardous materials at the site, neither residents nor students were told of the contamination. In 1994, the school was closed and EPA placed part of the site on Superfund’s National Priorities List for cleanup. In 2001, numerous residents filed suit and in 2005, after a bench trial, the court found that the city was liable under negligence and strict liability theories and awarded damages for property loss and emotional distress. Under the formula approved by the court, a student who attended the school could be awarded up to $2,000 and a resident living on the site for 20 years or more could receive $50,000 in emotional distress damages. The appeals court found only one comparable case, and in that case the most plaintiffs received was $2,000. Johnson v. Orleans Parish School Board, 2008 La. App. LEXIS 175 (La. App. 4 Cir. Jan. 30, 2008).
Oregon Environmental Justice Law Created Task Force and Requires State Agencies to Take Steps to Increase Public Participation
Beginning January 1, 2008, a law passed in Oregon (S.B. 420/L. 2007 Ch. 909) established an environmental justice task force and requires all 14 state natural resources agencies to follow prescribed steps to provide greater public participation and to ensure the involvement of persons who may be affected by agency actions. The task force consists of twelve members who are appointed by the governor. It is charged with advising the governor and natural resources agencies on environmental justice issues, identifying minority and low-income communities that may be affected by environmental decisions made by the agencies, meeting with environmental justice communities and making recommendations to the governor regarding concerns raised by these communities; and defining environmental justice issues in Oregon. The law also requires that the agencies take certain steps to ensure greater public participation. The law also requires all directors of natural resource agencies to report annually to the task force on the results of the agencies’ efforts to address environmental justice issues. The full text of the law is available athttp://www.leg.state.or.us/07orlaws/sess0900.dir/0909.htm.
On November 21, 2007, Michigan Governor Jennifer Granholm signed Executive Directive No. 2007-23, “Promoting Environmental Justice.” The Executive Directive requires the Michigan Department of Environmental Quality (MDEQ) to develop and implement a state environmental justice plan that: (1) identifies and addresses discriminatory public health or environmental effects of state laws, regulations, policies and activities on Michigan residents; (2) includes measures to prevent discriminatory or negative public health or environmental effects; (3) provides policies and procedures for state departments and agencies to incorporate “environmental justice principles” into their decision-making and practices; (4) recommends mechanisms by which members of the public can request that state government take action to address alleged adverse or disproportionate social, economic or environmental impacts; (5) ensures that the state acts consistently with environmental justice programs of the federal government; (6) recommends mechanisms to monitor and measure the effects of implementing the state plan; and (7) ensures that the plan is implemented in a way that maximizes the promotion of environmental justice while minimizing or eliminating potential adverse or disproportionate social, economic, or environmental impact. The Executive Directive instructs MDEQ to actively solicit public involvement in developing the state environmental justice plan. The Directive also requires MDEQ to establish an environmental justice working group of state officials and members of the public to assist MDEQ in developing the state environmental justice plan. The Directive orders all state departments and agencies to cooperate with MDEQ on this subject. Finally, the Directive requires MDEQ to report to the Governor by July 1, 2008 on MDEQ’s progress in implementing the Directive, and to submit an annual report to the Governor on overall state activities to promote environmental justice. A copy of the directive is available at http://www.michigan.gov/gov/0,1607,7-168-36898-180696--,00.html.
Environmental Group’s Motion for a Preliminary Injunction Regarding Disposal of Chemical Warfare Agent in Low-Income Area Denied
Several environmental groups brought suit in federal court under the National Environmental Policy Act (NEPA) and other statutes seeking a preliminary injunction to enjoin the Department of Defense (DoD) and other government agencies from continuing shipments of the chemical warfare agent VX (also known as “hydrolysate”) from a chemical weapons depot in Indiana to an incineration facility in a low-income area in Texas and to enjoin a private company from incinerating hydrosate at the Texas facility. With respect to their NEPA claim, the environmental groups alleged that the government failed to properly assess the environmental impact of transporting the agent from Indiana to Texas and the likelihood of the chemical agent reforming over time. The court rejected this argument, holding that the record was clear that the government had properly considered the environmental aspects of both issues. It therefore held that plaintiffs were unable to show a likelihood of success on the merits of their claims and denied their motion for a preliminary injunction. Sierra Club v. Gates, 499 F. Supp.2d 1101 (S.D. Ind. 2007).
GAO Gives Testimony Stating that EPA’s Rule Change Regarding TRI Reporting Could Reduce Information Available to Assess Environmental Justice
The Director of Natural Resources and Environment of the U.S. Government Accountability Office (GAO) gave testimony in July 2007 concerning the Environmental Protection Agency’s January 2007 Toxics Release Inventory (TRI) Burden Reduction Rule. The Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) requires certain facilities that use toxic chemicals to report their releases to EPA, which makes this information available in the TRI. Since 1995, facilities may submit a brief statement in lieu of a more detailed form if releases of a chemical do not exceed 500 pounds in a year. Under EPA’s new rule, this amount would be raised to 2,000 pounds. A 1994 Executive Order (E.O. 12898) sought to ensure that minority and low-income populations are not subjected to disproportionately and adverse health or environmental effects from agency activities. In a July 2005 report, GAO made several recommendations to improve EPA’s adherence to these environmental justice principles. In his testimony, the Director stated that EPA disagreed with GAO’s 2005 recommendations and did not meet the benchmarks mentioned in these recommendations; did not follow key aspects of its internal guidelines in developing the TRI rule, including some related to environmental justice; and that the rule change would save companies an average of less than $900 per facility while reducing the amount of information about toxic chemical releases previously available to the public. GAO, “Environmental Right-to-Know: EPA’s Recent Rule Could Reduce Availability of Toxic Chemical Information Used to Assess Environmental Justice,” (GAO-08-115T), available athttp://www.gao.gov/new.items/d08115t.pdf.
Federal Court Finds Notice Required for Citizen Suit Alleging Violation of RCRA Public Participation Requirements
A Hawaii federal court dismissed an environmental group’s citizen suit alleging a lack of opportunity to participate in the assessment of a hazardous waste fine. Hawaii had found the City and County of Honolulu and a company operating its landfill to be in violation of the landfill’s state-issued permit. The State ordered the City and the company to pay a civil penalty of $2.77 million without first providing public notice or an opportunity to comment. Envirowatch subsequently filed a citizen suit claiming that such lack of notice violated RCRA public participation requirements. The State moved to dismiss the suit on the grounds that the group failed to comply with the requisite 30 day notice period for citizen suits. Envirowatch opposed the motion, arguing that it did not have to comply with this notice period because Article III of RCRA allowed citizens to bring suit immediately when alleging hazardous waste violations. The district court disagreed and granted the motion, holding that the notice period was required because the environmental group’s case was based on a violation of public participation requirements found in Article IV of RCRA, not Article III. Envirowatch, Inc. v. Fukino, 2007 U.S. Dist. LEXIS 47088 (D. Hawaii June 28, 2007).
Federal Appeals Court Affirms Denial of Citizen Group’s Suit to Enjoin Operation of Nuclear Waste Repository in New Mexico
After issuing three environmental impact statements (EIS’s) over three decades, in 1998 the Department of Energy (DOE) approved operation of a nuclear waste repository in New Mexico. An environmental group commenced a nuisance action in state court against DOE, seeking to enjoin operation of the repository under NEPA. The group argued that DOE relied on faulty data regarding the subsurface geomorphology of the site in its EIS, thereby under-representing the environmental hazards of waste storage at the site. As part of its NEPA claim, the group sought to inject evidence outside of the administrative record based on research conducted by an expert consultant, who claimed that the EIS contained misrepresentations concerning the site’s hydrology. DOE removed the action to federal court and the court thereafter denied the injunction, finding that DOE’s actions were not arbitrary and capricious. On appeal, the 10th Circuit affirmed the decision, finding that the expert’s claims of misrepresentations did not overcome the presumption of regularity and justify inclusion in the administrative record as extra-record evidence, and that DOE’s approval was not arbitrary and capricious. Citizens for Alternatives to Radioactive Dumping v. U.S. Dept. of Energy, 485 F.3d 1091 (10th Cir. 2007).
EPA Inspector General Finds that Agency Did Not Treat Low-Income and Minority Residents in Ringwood, New Jersey Unfairly
The EPA's Inspector General reported that the agency did not treat low-income and minority residents living near the Ringwood, New Jersey paint-sludge dump unfairly, although it did find that communication could be improved. The Ringwood site was added to EPA's Superfund list in 2006 after having been deleted in 1994. For years, Ford Motor Company dumped chemical waste at the site from its Mahwah, New Jersey plant, which was closed in 1980. EPA declared the site clean 10 years ago after a $2.5 million, seven-year cleanup effort by Ford. The report found that Ringwood residents believe that EPA has failed to clean up the site and that residents perceived EPA's relationship with Ford to be inappropriate. However, EPA officials said that staff interacted with Ford according to all of the agency's regulations and that EPA's relationship with Ford at Ringwood is typical for a Superfund site of this complexity. EPA OIG, 'Environmental Justice Concerns and Communication Problems Complicated Cleaning Up Ringwood Mines/Landfill Site,' Report No. 2007-P-00016 (April 2, 2007).
NRC Rejects Petitioners' Arguments that Proposed Nuclear Plant Would Disproportionately Impact Surrounding Minority and Low-Income Communities
The Nuclear Regulatory Commission (NRC) determined that five environmental and community organizations had standing to intervene and challenge Southern Nuclear Operating Company's (SNC) petition for a early site permit at the Vogtle Electric Generating Plant near Waynesboro, Georgia. The petitioners alleged that SNC's environmental report violated the National Environmental Policy Act (NEPA) because it failed to, among other things, provide a thorough analysis of the disparate environmental impacts of the project on the minority and low-income communities residing in close proximity to the site. In particular, the petitioners alleged that the environmental report failed to take into account the fact that these communities already have a higher than normal incidence of cancer, the effects of eating the chemically-laden fish that many of the residents catch, and the impacts on these communities during a radiological emergency and evacuation. However, NRC determined that petitioners did not provide sufficient evidence regarding the alleged existence of these adverse impacts, nor did they provide sufficient evidence that these adverse impacts disproportionately affect poor or minority communities in the vicinity of the facility. In re Southern Nuclear Operating Co., 2007 NRC LEXIS 30 (March 12, 2007).
According to a study released by Resources for the Future, a nonpartisan think tank, an EPA grant program aimed at helping communities affected by industrial pollution is failing to reach people who are most affected by such pollution. The study compared EPA Office of Environmental Justice grants to the agency's Toxic Release Inventory between 1994 and 2005 and found most of the cash had gone to large populations with poor people and minorities but relatively low concentrations of toxic-chemical releases. The report recommends that EPA write clearer criteria for grant eligibility and re-evaluate a rule requiring that grants be delivered to all 10 EPA regions. While some regions registered reductions in toxic releases through the study period, Regions 8, 9, and 10 had increased pollution, according to the report. The EPA program delivered 90 grants of about $17,000 per year between 1994 and 2005. S. Vajjhala, 'Building Community Capacity? Mapping the Scope and Impacts of the EPA Environmental Justice Small Grants Program,' Resources for the Future (April 2007).
EPA's Comment that FEIS Failed to Adequately Address Whether Proposed Gas Terminal Would Disproportionately Affect Surrounding Low-Income and Minority Communities Rejected
The Federal Energy Regulatory Commission (FERC) authorized Gulf LNG Energy LLC and Gulf LNG Pipeline LLC to construct a liquefied natural gas (LNG) import terminal and a five-mile long pipeline from the terminal in Jackson County, Mississippi. In authorizing this construction, FERC noted EPA's comment that the final environmental impact statement (FEIS) failed to fully address whether the proposed project would result in disproportionately high and adverse human and health or environmental effects on the surrounding minority and low-income populations and its recommendation that FERC analyze how the addition of the proposed project would impact the current pollution-load for these populations. However, FERC determined that the FEIS, which it prepared, analyzed this issue and determined that the proposed project would not have a disproportionately high or adverse human health or environmental effect on these communities. In re Gulf LNG Energy LLC, 2007 FERC LEXIS 277 (Feb. 16, 2007).
EPA's Comment that FEIS Failed to Adequately Address Whether Proposed Gas Terminal Would Disproportionately Affect Surrounding Low-Income and Minority Communities Rejected
FERC authorized Bayou Casotte Energy LLC to site, construct, and operate a new LNG terminal in Jackson County, Mississippi. In authorizing the request, FERC discussed environmental justice issues and noted EPA's comment that the FEIS failed to fully address whether the proposed project would result in disproportionately high and adverse human health or environmental effects on minority and low-income populations and its recommendation that FERC analyze how the addition of the proposed terminal would impact the current pollution-load for these populations. However, FERC determined that the EIS analyzed this issue and determined that the proposed terminal would not have a disproportionately high or adverse human health or environmental effect on these communities. In re Bayou Casotte Energy LLC, 2007 FERC LEXIS 283 (Feb. 16, 2007).
EPA Rejects Petition Requesting that It Object to Issuance of State Operating Permit Pursuant to Title V of the Clean Air Act Because of Impact on Surrounding Low-Income and Minority Communities
EPA rejected a petition it received from the Rutgers Environmental Law Clinic requesting that it object to the issuance of a state operating permit pursuant to Title V of the Clean Air Act that was issued by the New Jersey Department of Environmental Protection (NJDEP) to Marcal Paper Mills, Inc. located in Elmwood Park, New Jersey in December 2005. The company releases 66.5 tons of volatile organic compounds per year to make toilet paper, paper towels and napkins. The petition alleged that NJDEP did not adequately address the environmental justice issues raised, specifically that the company was in an area which was primarily low-income and minority with a disproportionately high percentage of residents with asthma. In rejecting the petition, EPA pointed out that environmental justice issues can be raised in various actions carried out under the Clean Air Act, such as when EPA or a delegated state issues a New Source Review (NSR) permit. However, unlike NSR permits, Title V does not impose new substantive emission control requirements. Title V also includes public participation provisions as well as monitoring, compliance certification and reporting obligations. Because petitioners failed to demonstrate that the company's Title V permit did not identify and comply with the applicable Clean Air Act requirements, EPA denied the petition. In re Marcal Paper Mills, Inc., Petition No. II-2006-01, 2006 EPA CAA Title V LEXIS 8 (Nov. 30, 2006).
Federal Appellate Court Allows Suit Alleging Violation of Constitutional Rights Due to Zoning Board's Granting of Variance for Self-Storage Facility to Proceed
A federal appellate court held that two African-American residents of Darby Township, Pennsylvania have standing to pursue part of their complaint that township zoning officials violated their constitutional rights by approving a zoning variance allowing construction of an 800-unit self-storage facility in their residential area, but only on the grounds that the zoning decision affected their property values, not political power. The residents contended that township officials intentionally allowed the zoning variance as part of a plan to lower the property values and discourage residential development, perpetuating the white majority and decreasing the political power of African-Americans. The nine-acre tract had been acquired by the county redevelopment authority in 1960 as part of an urban renewal plan, but the property was later sold to private parties. No work was done on the property until 2003, when the zoning board approved the variance. The residents sued under the Fair Housing Act, which bars intentional racial discrimination. The district court granted the defendants' motion to dismiss, holding that plaintiffs lacked standing to maintain the suit since they did not allege that they would return to the area of residential buildings were constructed on the tract. However, the appellate court reversed, holding that the plaintiffs properly alleged injuries to the property values and the neighborhood arising from approval of the variance. Taliaferro v. Darby Township Zoning Board, 458 F.3d 181 (3d Cir. 2006).
The Office of the Inspector General of EPA has found that the Agency has failed to direct enough resources to conduct environmental justice reviews. Its survey of EPA Program and Regional Offices found that 9 of the 15 offices responding had not performed environmental justice reviews as required by Executive Order 12898. Despite two memoranda from the EPA Administrator in 2001 and 2005 indicating the Agency’s commitment to EJ, the offices were not required to take any action. The Program and Regional Offices were not directed to assess whether any of their programs, policies or activities had a disproportionately high and adverse effect on EJ communities.
The report called for EPA to institute clear guidance describing what an environmental justice review is. It recommended that EPA have the offices identify which programs, policies and activities needed environmental justice reviews and establish a plan for conducting the reviews. Specific guidelines should be developed. The Agency agreed with the OIG’s recommendations. EPA OIG, “EPA Needs to Conduct Environmental Justice Reviews of Its Programs, Policies, and Activities,” Report No. 2006-P-00034 (Sept. 18, 2006).
EPA has issued requests for applications (RFA) for the Environmental Justice Collaborative Problem-Solving Cooperative Agreement (EJ CPS) and the Environmental Justice Small Grants (EJSG) programs. The EJ CPS program provides $100,000 grants to organizations to use collaborative problem solving with other stakeholders to address environmental justice issues. EJSG grant recipients receive $50,000 to assist them to develop local solutions to local environmental and/or public health issues.
No awards were issued under the programs after an announcement in February 2006 because not enough applications were received. EPA has since revised the RFA process to encourage more applicants. Applications for both programs will be accepted until midnight October 23, 2006. For more information, see www.epa.gov/environmentaljustice/index.html.
Low-Income New York City Children Have Asthma at Three Times the National Rate
A recent study found that New York City children who lived in low socio-economic status areas had a 70 percent greater risk of asthma, independent of their own ethnicity and income level. The report from the Mt. Sinai School of Medicine concluded that prevalence of asthma was strongly correlated to attending a school in a low-income neighborhood. The rates of asthma City-wide were 13 percent, more than twice than the national hospitalization rates of 6.3 percent. But in communities consisting primarily of low-income minorities, the rate was three times the national average, or 17.9 percent. White children in those areas had higher asthma rates than whites in other communities. The study points to numerous pollution sources in the neighborhoods that could affect respiratory health, such as bus depots, truck routes, and power plants. L. Claudio, et al., “Prevalence of Childhood Asthma in Urban Communities: The Impact of Ethnicity and Income,” Mt. Sinai School of Medicine (2006).
The Louisiana Action Network (LAN) challenged the Army Corps of Engineers’ decision to issue an emergency permit to dump debris from Hurricane Katrina at a site adjacent to a Vietnamese community and a wildlife refuge. The District Court for the Eastern District of Louisiana upheld the permit. LAN claimed that there were no public hearings or opportunities to comment. The court found that the Corps had determined the cleanup of New Orleans was an emergency situation. Special procedures applied when issuing permits in emergency situations. The emergency permit was issued so that preliminary steps could be taken without waiting for the full Section 404 review; however, the Corps still planned to issue a public notice and follow the permitting process. Because the permitting process would be conducted, the court found the plaintiff was not injured. It said the ongoing permitting process “extinguishes any real harm suffered by the plaintiffs.” Louisiana Environmental Action Network v. U.S. Army Corps of Engineers, No. 06-2020, 2006 U.S. Dist. LEXIS 24344 (E.D. La. April 27, 2006).
The South Jersey Environmental Justice Alliance (SJEJA) petitioned EPA to object to a Title V permit issued in New Jersey. SJEJA claimed that the permit for G-P Gypsum Corporation did not consider environmental justice issues adequately. The wallboard manufacturing facility was located in an EJ community with a disproportionately high incidence of asthma and other lung diseases, according to the petition. EPA held that SJEJA failed to raise an issue showing non-compliance with the Clean Air Act. It noted that Title V permits do not require new emission controls, only that the recipient comply with applicable requirements. It said a Title VI action could be brought if SJEJA believed it was discriminated against, subject to the specific requirements of Title VI. In re: G-P Gypsum Corp., No. II-2005-05, 2006 EPA CAA Title V LEXIS 5 (Apr. 4, 2006).
The Sierra Club and the American Bottom Conservancy filed an objection to the Clean Air Permit issued to Onyx Environmental Services by the Illinois Environmental Protection Agency. The petitioners argued that the permit failed to address environmental justice issues, among other things. The Onyx facility was located in what the petitioners described as an environmental justice area in Sauget, Illinois, where other industrial facilities were located. The petitioners argued that EPA should have objected to the Title V permit issued to Onyx on the grounds that there was an unreasonable threat of harm that was borne disproportionately by the EJ community. EPA found no basis to object to a Title V permit due to EJ concerns. Other EJ arguments were rejected as untimely. In re: Onyx Environmental Services, No. V-2005-1, 2006 EPA CAA Title V LEXIS 4 (Feb. 1, 2006).
The California Global Warming Solutions Act of 2006 requires regulators to consider how emissions control may affect EJ communities. Cal. Health & Safety Code § 38500 ⁢et seq.&eit;. Section 38561(g) of the act requires the California Air Resources Board (CARB) to host public workshops on its carbon dioxide emission reduction plan. Some workshops must be held in communities with minority populations and/or low-income populations. CARB is charged with adopting regulations for greenhouse gas emission limits and reduction measures to achieve the maximum technologically feasible and cost-effective reductions. Under Section 38562(b)(2), CARB will ensure that the activities undertaken to comply with the regulations do not disproportionately impact low-income communities. Additionally, Section 38591(a) of the law requires CARB to establish an environmental justice advisory committee by July 1, 2007, with at least three members. The members will include people from communities in the state with the most significant exposure to air pollution, including communities with minority populations or low-income populations.
A citizens group called South Camden Citizens in Action (SCCIA) claimed that the New Jersey Department of Environmental Protection (NJDEP) discriminated against minority citizens by granting a slag grinding facility a permit. The St. Lawrence Cement Company operated the facility. According to census information, the neighborhood in which the individual plaintiffs lived had a minority population of 84.5 percent, and almost 34 percent of the residents lived below the poverty line. Numerous other industrial facilities were in the area. The slag grinding facility would emit dust, mercury, lead manganese, nitrogen oxide (NOx), carbon monoxide (CO), and volatile organic compounds into the air. The facility would also involve heavy truck traffic, with over 35,000 inbound deliveries per year, and 42,000 trucks departing per year. The truck route was planned through the residential area. SCCIA had filed a Title VI action with EPA, claiming DEP’s permit process had a disparate impact on their neighborhood due to their race. A preliminary injunction was granted, but subsequently suspended by the Third Circuit.
The SCCIA filed a second amended complaint alleging that the dust, soot, vapors, fumes, noise, and vibration caused a nuisance. The St. Lawrence facility intentionally and unreasonably interfered with the plaintiffs’ use and enjoyment of their homes, according to the complaint. The District Court of New Jersey held that the testimony of the plaintiffs and their expert failed to raise a material factual dispute. The court found that “reasonable minds could not differ that the proximate cause element of the Plaintiffs’ case has not been established.” The nuisance claim was dismissed.The court reviewed the discrimination claims to see if plaintiffs alleged more than a disproportionate impact. The court noted that the plaintiffs’ expert testified as to the minority composition of the affected neighborhood, but could not conclude whether NJDEP intentionally discriminated against the area. The court held that the plaintiffs needed to show that NJDEP issued the permit because of the adverse effects it would cause the minority community. The plaintiffs could not show discriminatory intent by NJDEP’s waiving permit fees for projects, since St. Lawrence paid its permit application fees. Additionally, simply because NJDEP did not penalize St. Lawrence for building a lower smokestack than what it planned did not reveal intentional discrimination. The court found no evidence that NJDEP issued the permit to St. Lawrence because of the adverse effects it would have on the minority community. St. Lawrence’s summary judgment motion was granted. South Camden Citizens in Action v. New Jersey Department of Environmental Protection, No. Civ.A 01-702(FLW), 2006 wl 1097498 (D.N.J. March 31, 2006).
EPA issued its Title VI Public Involvement Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs. The guidance is intended to help entities that receive federal funding so that their permitting processes avoid Title VI pitfalls. It notes that the degree of involvement in permitting can directly affect the likelihood of subsequent discrimination complaints. The guidance is designed to enable recipients to involve the public in a meaningful way. One of the primary suggestions is to develop a public involvement plan. Another suggestion is to train staff on the permitting process and on how to engage the public, including cultural and language sensitivity training. 71 Fed. Reg. 14207 (March 21, 2006).
Petitioners before the Nuclear Regulatory Commission (NRC) argued that a permit renewal for the Palisades Nuclear Plant operating license denied environmental justice, among other issues. (Only the environmental justice issues are discussed herein.) The petitioners argued that the Michigan nuclear generating station was located in a predominantly black and low-income neighborhood. They contended that only three Indian Tribes were contacted regarding the permit renewal. They also claimed that the permit renewal failed to address how a catastrophic radiation release would unduly affect the low-income Latino agricultural workers in the area. Also, petitioners argued the lack of Spanish language emergency evacuation instructions was unacceptable.
The owner of the plant, Nuclear Management Company LLC (NMC), claimed these issues were outside the scope of its permit renewal. None of the petitioners’ claims showed a disproportionately high and adverse human health and environmental effect on minority or low-income people, said NMC. Additionally, a generic environmental impact statement covering the plant found societal and economic impacts from severe accidents were “small.” The NRC argued that while the application did not sufficiently address the adverse socio-economic impacts of a catastrophic release on Latino populations, the petitioners failed to identify a disproportional environmental impact on this population as compared to the population as a whole.The NRC Licensing Board held that while environmental justice issues are considered in its hearings, they are reviewed only to see that impacts to minority and low-income communities are identified and considered, as in a NEPA review. The Licensing Board held that the appropriate issues were adequately considered. Other issues, such as alleged workplace harassment of blacks at the nuclear power plant, were not properly before the tribunal. The petitioner failed to raise any facts that showed impacts falling disproportionally on environmental justice communities. Also, the NRC noted that eleven tribes were contacted by NRC staff. The NRC Licensing Board held that no hearing was required on any of these issues and the proceeding was terminated. In the Matter of Nuclear Management Company, LLC, Docket No. 50-255-LR, LBP 06-10 (NRC Atomic Safety and Licensing Board Panel March 7, 2006).
A citizen challenged the issuance of a prevention of significant deterioration (PSD) permit issued by EPA for a electric generating facility located on land held in trust for an Indian tribe. The petitioner claimed that EPA failed to consider the human health or environmental effects the Diamond Wanapa Energy Center would have on “majority and minority populations.” The Environmental Appeals Board of EPA held that this issue was not preserved for review as the petitioner did not raise it during the comment period on the draft permit. Even if the issue were considered, the EAB held that the record showed EPA fully consider the human health impacts from the proposed facility. Other challenges, such as to the cumulative impacts analysis, how the air quality impacts were analyzed, or the categorization of the impact area, were denied. In re: Diamond Wanapa I., LP, PSD Permit No. R10PSD-OR-05-01; PSD App. No. 05-06; 2006 PEA App. LEXIS 12 (EPA EAB Feb. 9, 2006).
The South Jersey Environmental Justice Alliance, the New Jersey Public Interest Research Group, and South Camden Citizens in Action petitioned EPA to object to New Jersey’s issuance of a Title V Clean Air Act permit to the Camden County Energy Recovery Associates (CCERA) facility. CCERA is a municipal solid waste combustion facility that is capable of burning 350 tons of refuse per day. It is a major source of NOx, CO and SO2. The petitioners claim that NJDEP violated a federal environmental justice executive order. Under Presidential Executive Order 12898 (1994) federal agencies must make environmental justice issues part of their mission by identifying disproportionate impacts on minority and low-income populations. The petitioners claimed the Title V permitting process in this case failed to allow public participation and was a violation of those environmental justice concerns. Also, they argued that renewing a permit for a habitually violating facility in a environmental justice community violated the executive orders. EPA held that the petitioners failed to show how the Title V permit violated the Clean Air Act, and refused to object to the permit issuance. In the matter of Camden County Energy Recovery Associates Facility, Permit Activity No. BOP990001, petition No. II-2005-01, 2006 EPA CAA Title V LEXIS 2 (Jan. 20, 2006).
The North American Free Trade Agreement (NAFTA) Commission for Environmental Cooperation (CEC) issued a report regarding the risk North American children face from environmental exposure. The report, “Children’s Health and the Environment in North America,” pointed to 13 environmental indicators harming the continent’s children. Notable were both indoor and outdoor air pollution, which the report connected to the rising numbers of childhood asthma. The CEC linked economic status to environmental exposure, showing that children living in poverty are more likely to be exposed to multiple contaminants. For example, while lead paint exposure is down, lower income groups remain at a high risk of exposure. However, the report stopped short of blaming specific exposures to specific diseases, noting there was uncertainty regarding how susceptible children were to environmental risks. The 13 environmental indicators are broken into three groups in the report: asthma and respiratory disease; lead and other toxic substances; and waterborne diseases. The report is available online at www.cec.org/children. CEC Press Release (Jan. 26, 2006).
Solid waste companies challenged the New York City Department of Sanitation (DSNY) revisions of the siting rules for solid waste transfer stations. The 2004 siting rules prohibited new transfer stations – either putrescible or non-putrescible – in areas that already had a certain number of existing stations. Additionally, a buffer of at least 400 feet was required between transfer facilities and residential districts, parks, schools, hospitals and other transfer stations. Because of the rule change, the petitioning companies were told they would not get a permit to open a solid waste transfer facility.
The court refused to find the rules were arbitrary or capricious. The court noted that the new laws addressed the problem of waste station “clustering” that had been problematic with earlier rules. Other courts in 1994 and 1998 found that earlier, less restrictive rules did not satisfy a legislative mandate because they did not address the problem of waste stations near residences, schools and parks. This waste facility law was a reasonable exercise of DSNY’s police power to protect public health and welfare. The court clarified that the 2004 siting rule was not a complete ban on new transfer stations. Petitioners had also claimed that a 2004 Commercial Waste Management Study showed the new rules were irrational. The court disagreed, noting that the study reviewed the impacts only of existing stations, and did not conclude that the existing regulations were enough to address environmental effects of new stations. Jamaica Recycling Corp v. City of New York, 2006 N.Y. Slip Op. 26007, 2006 N.Y. Misc. LEXIS 50 (Sup. Ct. New York Co. Jan. 11, 2006).
An Environmental Justice Executive Order was issued by the Governor of New Mexico. The Order directs all cabinet level departments and boards and commissions to provide “meaningful opportunities” for public involvement in their decisions, recognizing the need to have public health and environmental issues presented in languages in addition to English. Those same governmental units will consider impacts to low-income communities and communities of color when making siting, permitting, compliance, enforcement, and remediation decisions. An Environmental Justice Task Force was create by the Order to serve as an advisory body. The Task Force will make recommendations for actions needed to address EJ issues. Its first report is due at the end of 2006. The Order is available online at www.governor.nm.state.nm.us/orders/2005/eo_2005_056.pdf. N.M. Exec. Ord. 2005-056 (Nov. 18, 2005).
The highest court in Pennsylvania affirmed that landfill siting applications must include a Harms/Benefits Test, analyzing whether the benefits of the project to the public clearly outweigh the known and potential environmental harms. Those harms and benefits must include social and economic factors. The plaintiff in the action was a planning to build a landfill in Clearfield County. Eagle Environmental LP (Eagle) outlined the short- and long-term harms and benefits of the project. It included things it would do to mitigate the harms. The Pennsylvania Department of Environmental Protection (DEP) agreed with Eagle that the benefits outweighed the harms, but included a statement that failing to provide for all the benefits described in the Harms/Benefits analysis would violate the permit. Eagle challenged the validity of the Harms/Benefits Test, arguing Eagle could be found in violation of the permit if the economic benefits it had outlined failed to come to pass, even if those economic benefits were outside its direct control. The court found the test was within the authority given to DEP under the Solid Waste Management Act (SWMA). The SWMA was to be “liberally construed” and the law required that DEP ensure that mitigation measures adequately protected the public health, safety and welfare. Accordingly, consideration of social and economic harms was authorized.Eagle Environmental, LP v. Commonwealth of Pennsylvania, 884 A.2d 867 (Pa. 2005).
The EPA Office of Environmental Justice is accepting applications for grants for community-based organizations. Two grant programs are available: the EJ Collaborative Problem-solving Cooperative Agreement Program (EJ CPS); and the EJ Small Grants Program. Each has different objectives, and the Agency recommends that applicants apply only for one. The EJ CPS is designed for groups that have completed the steps applicable for the EJ Small Grants Program. Those initial steps are identifying environmental and/or public health issue of concern; educate and involve the community; form multi-stakeholder partnerships; and set goals and develop problem-solving strategies. The EJ Small Grants Program provides $50,000. Groups that have completed those phases may be eligible for the 3-year $100,000 EJ CPS, which requires demonstrated partnerships, extensive EPA involvement, and a measurable link between program performance and OEJ programs. Conference calls are scheduled for Tuesdays during February and March. Applications are accepted through March 31, 2006. Information is available online at www.epa.gov/compliance/environmentaljustice/grants/index.html.
EPA has added an environmental health page to its Spanish website. The page, El medio ambiente y su salud, addresses how environmental issues affect Hispanic communities in the United States. In general the website provides Spanish translation of EPA news releases as well as outreach materials such as fact sheets of environmental health hazards. The website is available at www.epa.gov/espanol. The environmental health page is found at www.epa.gov/espanol/saludhispana/index.htm.
The California Department of Toxic Substances Control (DTSC) issued an imminent and substantial endangerment determination and order against the landowner of an abandoned chemical facility in Los Angeles. The DTSC used the EPA Environmental Justice Geographic Assessment Tool to determine that there were 6,500 people in a half-mile radius of the former plating company, which had left chromium, cadmium, cyanide and acid at the plant. The landowner was directed to cover all containers and tanks with hazardous substances and to provide a workplan for remediating the site. DTSC discovered that at least one release had occurred on site. The landowner was not fined. In re Spirito Family Trust, No. HWCA SPRD05/06 SAEO-4346, 2005 Cal. ENV LEXIS 71 (Cal. Dep’t Toxic Substances Control Oct. 7, 2005).
ARCO Terminal Services Corp. settled Clean Air Act charges with the United States, agreeing to perform an EJ project. ARCO was charged with failing to use emission control equipment to load vessels with organic liquids 294 times in a 7-year period. ARCO will pay $225,000 in addition to performing a Supplemental Environmental Project (SEP). For the SEP, ARCO will install $675,000 to reduce diesel exhaust from its cargo handling equipment. The SEP will reduce exposure of EJ communities to harmful emissions. See EPA Region IX website for details:www.epa.gov/region09/enforcement/eoy05/05air.html. 70 Fed. Reg. 61842 (Oct. 26, 2005).
Residents complained about a third landfill was planned for Madison County, Mississippi. They said the landfill disproportionately and adversely affected them, raising their environmental justice issues during an evidentiary hearing before the Mississippi Commission on Environmental Quality (MCEQ). The MCEQ determined that the siting raised “potential concerns.” However, it found that because the siting process had included “meaningful public involvement,” no significant environmental justice implications had been identified. State law did not require consideration of environmental justice, and that the most important factor in the Department’s EJ review was meaningful public involvement, which had been met. In re Amendment to Madison County Solid Waste Management Plan, No. 5058 05, 2005 Miss. ENV LEXIS 65 (Aug. 25, 2005).
A district court rejected claims that 50 years of mercury emissions from a chemical plant had injured neighboring residents. The chemical plant stopped operating in 1983. The class action suit alleged negligence, absolute and strict liability, trespass, nuisance, fraud and other claims. The so-called property class would represent all property owners within 25 kilometers of the plant. The other class, the fish class, included commercial, recreational and subsistence fishermen.
The court reviewed to see if class certification was appropriate for the property class. Three of the named plaintiffs did not have injury in fact because the court did not find the mercury levels on their property were higher-than-normal. The final of the four named plaintiffs did have elevated mercury levels, and the court found she had suffered an injury in fact. However, that plaintiff could not show that all her claims were timely. Most of the claims were blocked by a two-year statute of limitations, which began running when the plaintiff knew or should have known of the injury. The court said that date was November 16, 1998, when the plaintiff and others asked the plant to relocate their families. This start date meant the trespass claim was still timely, as that had a 6-year time limit. The court refused to find a continuing tort.
The court found that the air subclass of the property class was properly defined. The surface water and groundwater subclasses were not, and those two subclasses were denied class certification. The air subclass had numerosity, commonality, typicality, and adequacy. However, the court found common questions of law or fact did not predominated over those affecting just an individual. The common facts would establish background facts, not show liability. The court would have to determine separate statute of limitations deadlines for each plaintiff and look at the company’s alleged misrepresentations to each plaintiff. Class treatment in this action would not save time, found the court. Class certification was denied for the property class.
The court found the only named plaintiff in the fish class lacked standing, and so that class certification was also denied. LaBauve v. Olin Corp., 231 F.R.D. 632 (S.D. Ala. 2005).
Maine Initiatives has a grant program for grassroots organizations promoting social, economic and environmental justice in Maine communities. The Initiative offers $40,000 grants spread across three years based on a program's ability to improve the lives of specific Maine populations, emphasize community support, and focus on root causes, among other criteria. Only Maine-based organizations are eligible. Grant applications are due November 9, 2005. Information is available online atwww.maineinitiatives.org/grants/aspx.
A new California law requires city and county general plans to consider environmental justice issues. Section 3 of Chapter 383 amends the Government Code. It requires that the Office of Planning and Research adopt advisory guidelines by the end of March 2006 to inform cities and counties how to address environmental justice matters in preparing general plans. The guidelines must also be developed in consultation with the Native American Heritage Commission to protect features and objects described in Public Resources Code. Section 4 of the Chapter requires cities and counties to consult with Native American tribes regarding preserving or mitigating impacts of places of interest described in the Public Resources Code. 2005 Cal. Stat. 383 (Sept. 29, 2005) (SB 1110).
A Rhode Island Superior Court found that the state Department of Environmental Management failed to make environmental justice reviews as required by state law. A neighborhood association from a predominantly black and Hispanic area challenged construction of public schools on a Providence, Rhode Island site it claimed was contaminated. The site was an unauthorized municipal landfill from 1950 to the mid-1970s. Tests conducted in early 1999 showed excessive levels of lead, arsenic and petroleum hydrocarbons in the soil, as well as the presence of volatile organic compounds, mercury and PCBs.
The Hartford Park Tenants Association, as well as several individual plaintiffs, claimed that DEM violated the Industrial Property Remediation and Reuse Act (IPRARA) by failing to consider environmental equity issues. DEM claimed the relevant provision, Section 5(a), applied only to agreements with bona fide prospective purchasers, a theory the court rejected. The court found that the General Assembly intended DEM to develop and implement environmental equity and public participation processes for the cleanup and remediation of contaminated sites.
The plaintiffs also argued that DEM violated IPRARA by not having any regulations or policies in place for considering environmental equity. The court said the law did not require DEM to establish such policies or procedures. On the other hand, there was no method by which to judge whether DEM had considered the issue. Notably, none of the documents filed in connection with site remediation mentioned environmental equity. The court found no credible evidence that DEM considered issues of environmental equity and held that DEM violated IPRARA.
As for public involvement, the court found that DEM had failed to ensure the City notified abutting property owners of the impending site investigation as required. Additionally, the first public hearing did not "fulfill the mandate of the statute." The first public meeting regarding the construction was not held in the neighborhood where the schools would be built. Also, public records were not kept at a local repository but were at DEM offices.
The plaintiffs claimed siting the school in the environmental justice area was an intentional act of discrimination. The court found no racial discrimination motivating the site of the school, but that the stated motive of providing a neighborhood school while under monetary constraints was legitimate. The defendants' actions did not shock the conscience or show deliberate indifference, according to the court. The court found no civil rights violation. A remedy for the environmental equity violations would be determined at a subsequent hearing. Hartford Park Tenants Association v. Rhode Island Department of Environmental Management, CA No. 99 -3748, 2005 R.I. super. LEXIS 148 (Sup. Ct. R.I., Providence Oct. 3, 2005).
Bronx Environmental Health and Justice, Inc. (Bronx EHJ) challenged the selection by the New York City Department of Environmental Protection (DEP) of a park in the Bronx for a 473,000-square foot water treatment plant. Bronx EHJ filed an Article 78 petition claiming DEP acted arbitrarily and capriciously. It faulted the air quality data, and it claimed DEP was unwilling to involve the public in the State Environmental Quality Review Act (SEQRA) process. Bronx EHJ claimed the decision to locate the plant in a section of Van Cortlandt Park adjacent to a poor minority neighborhood was discriminatory, and that a site in Westchester County was more appropriate. DEP countered that it complied with all SEQRA requirements and that it considered all potential environmental impacts of the plant. The park was the best site.
First, the court found the environmental impact statements (EISs) contained "all of the information necessary for the public to understand the potential environmental impact" of locating a plant at each of three potential sites. The court disputed the allegation that the public was not involved in the SEQRA process, noting public hearings were held in September 2003, February 2004 and March 2004. Additionally, a written comment period was held, during which several hundred comments were received. The court found the public was adequately involved in the review process.
The court found the request for an environmental justice analysis was premature as there was no requirement to complete one under SEQRA and the permit application had not yet been filed with DEC. However, DEP had completed an environmental justice analysis in its final supplemental EIS (FSEIS). The potential socioeconomic effects of the project were extensively analyzed in the DSEIS and FSEIS, according to the court.
The court denied the claim that selection of the site violated civil rights that included a "basic right to health and environment." The court found that Section 11 of Article I of the State Constitution, under which Bronx EHJ pled, did not provide any legal rights. The petition was denied. Bronx Environmental Health and Justice, Inc. v. New York City Department of Environmental Protection, N.Y.L.J., May 19, 2005, p. 20, col. 1 (Sup. Ct. Queens County).
The Sierra Club disputed a license issued by the Federal Energy Regulatory Commission allowing construction of an 800-kilowatt (kW) power plant in a United Nations Educational, Scientific, and Cultural Organization (UNESCO) site in Alaska, the Glacier Bay National Park and Preserve. Among the complaints of the Sierra Club was that the environmental impact statement (EIS) failed to consider the environmental justice impacts as required by Executive Order 12898. Certain Native Alaskan groups were allowed to hunt and fish in the Park, which was part of the National Wilderness Preservation System. The Sierra Club claimed the alienation of the land to build the power station would have a disproportionate impact on those groups.
The Federal Energy Regulatory Commission (FERC), which reviewed the Sierra Club challenge to the license, found that the EIS showed no significant impacts to subsistence use of the Park. The project would have "only minor impacts" on the char in the area, and no impact on other subsistence resources. The land exchange enacted to compensate for taking property from the Park would open up more land for the subsistence users. FERC found it "doubtful" that there would be any material impact on the Native Alaskan groups. In the matter of Gustavus Electric Co., Proj. No. 11659-003 (DERC Order Denying Rehearing March 24, 2005).
Our Children's Earth Foundation (OCE) objected to the issuance of a Title V state operating permit for a petroleum refinery in Martinez, California. OCE filed a petition with EPA requesting the Agency to object to the permit. OCE claimed the permit failed to meet requirements under the Clean Air Act, and failed to consider environmental justice issues. OCE argued that the Bay Area Air Quality Management District failed to provide information on a timely basis, thus failing to meet public participation requirements. EPA found that any delay in providing documents did not result in a deficiency in the permit, and rejected the claim.
OCE also argued that the District's failure to publish information about Tesoro Refining and Marketing Company's compliance history was an environmental justice issue. EPA said that compliance with Title V requirements did not indicate whether an environmental justice claim existed. To make an environmental justice claim before EPA under these circumstances, OCE should file a complaint under Title VI of the Civil Rights Act. The District was required to comply with EPA's Title VI regulations because it received federal funds. However, environmental justice was not a basis on which EPA could object to a state operating permit. EPA did object to the permit on some other issues, however. In the matter of Tesoro Refining and Marketing Co., 2005 EPA CAA Title V LEXIS 9 (EPA March 15, 2005).
New Mexico's Highest Court Finds Environmental Department Failed to Consider Landfill's Effect on Community
A landfill was proposed for Chaparral, New Mexico, a residential, low-income, minority community at the Mexico border. A community group, Colonias Development Council (CDC), claimed the New Mexico Environment Department (NMED) did not consider the social impacts of another landfill on the community. CDC argued that the hearings officer did not allow testimony or cross examination regarding how the landfill would affect the quality of life in Chaparral, or the cumulative effects of multiple landfills and industrial sites in the area. There were four waste disposal facilities and three industrial sites within 60 miles of Chaparral.
NMED stated that the social impacts of living near a landfill were beyond the scope of its permit review. The New Mexico Court of Appeals held that NMED was not required to consider social impacts of solid waste permitting. The Supreme Court disagreed, finding that the legislature in the state Solid Waste Act did not limit the public hearings or the NMED review to technical considerations. The goal was to involve the public to the fullest extent possible, and to halt testimony regarding social impacts would have a chilling effect on public input. The court said that the hearing officer "must listen to concerns about adverse impacts on social well-being and quality of life."
The court also considered CDC's claims of cumulative impacts. This issue was considered de novo. The court found that NMED had the obligation to consider the cumulative effect of large-scale garbage dumps and industrial sites on a single community. NMED was charged with protecting public health, safety and welfare.
Ultimately, the court found NMED did not respond to the community concerns raised at the hearing. While NMED imposes additional conditions on the landfill permit, it did not state its reasoning for granting the permit in "the face of so much public testimony against it." The court ordered NMED to have a limited public hearing to allow comment and cross examination regarding the cumulative impacts of allowing the landfill.Colonias Development Council v. Rhino Environmental Services, Inc., Docket No. 28337, 117 P.3d 939 (N.M. 2005).
The City of Jacksonville has agreed to pay $25 million to settle claims that it exposed predominantly minority neighborhoods to toxic incinerator ash. The agreement anticipates another $50 million in settlement proceeds from the City's former insurers. Defendant Waste Management, Inc. did not settle. According to the suit, Jacksonville had seven incinerator sites for burning municipal waste - a practice that ended in the 1960s. The incinerator ash purportedly exposed 4,500 residents, mostly African-Americans, to lead, arsenic, dioxins and PCBs. Those chemicals were found in the air, soil, groundwater, and surface water at sites where the incinerator ash was dumped. The agreement requires the City to relocate some residents in neighborhoods near one contaminated site and to replace contaminated soil at four sites. Daily Envt. Rep. (BNA), p. A-2 (Sept. 6, 2005).
EPA has renewed the charter of the National Environmental Justice Advisory Council (NEJAC) for a one-year period. The council has 26 members from community groups, businesses, federal, state, local and tribal governments, and environmental groups. According to EPA, the group is designed to provide independent advice and recommendations to the Agency on environmental justice matters. The group has not met since April 2004. 70 Fed. Reg. 53359 (Sept. 8, 2005).
Seventy-five members of Congress criticized EPA's five-year plan to establish environmental justice priorities, finding the plan disregards race as an environmental justice consideration and fails to provide the tools necessary to identify EJ communities. The letter was sent to EPA Administrator Stephen Johnson on July 21, 2005, in response to EPA's draft "Environmental Justice Strategic Plan for 2006-2011," which was issued June 22, 2005. (See below for the draft Strategic Plan.) The Congressional group also criticized the plan for establishing a comparative risk scheme to be determined at the national level, rather than locally. According to the legislators, the strategic plan disregards key criticisms of existing efforts by EPA brought by a recent Inspector General report. A copy of the letter is available online athttp://www.alceehastings.house.gov/news/press_releases/PressRelease.aspx?id=110
The Government Accountability Office (GAO) reviewed how EPA considered environmental justice when developing clean air rules and found the Agency came up short. GAO looked at the rulemaking for the gasoline rule (to reduce sulfur in gasoline and to increase fuel efficiency - 2000), the diesel rule (to reduce sulfur in diesel, to reduce emissions from new heavy-duty diesel engines - 2001), and the ozone implementation rule (to implement a new ozone standard - 2004). According to GAO, EPA gave "little attention" to environmental justice when developing the three recent rules. From initial studies that flagged key issues but left out environmental justice, to publishing the rules in final form and not mentioning environmental justice for two of the rules, EPA was not attentive to environmental justice as required by Exec. Ord. 12898. GAO blamed a lack of guidance and training for workgroup members for the lack of focus.
For the gasoline rule, EPA did not publish its information that potentially harmful air emissions would occur in 26 of 86 counties with refineries affected by the rule. When refineries commented that environmental justice issues could delay their permits, EPA stated that permits would not be delayed by such issues. The portions of the ozone rule that prompted comments concerning environmental justice were left out of the final rule. A copy of the report, "Environmental Justice: EPA Should Devote More Attention to Environmental Justice When Developing Clean Air Rules," GAO-05-289 (July 25, 2005), is available online atwww.gao.gov/new.items/d05289.pdf.
A New York City court held that a request for an environmental justice analysis was premature in the case of siting a water treatment plant in a park in the Bronx. The plaintiff community group argued that the project was placed in a minority neighborhood. According to the court, New York environmental law required an environmental justice review only when an applicant is seeking a permit from the State Department of Environmental Conservation (DEC). While DEC would require a review, the permit application had not been filed yet. State environmental law did not require an EJ review as part of an environmental assessment. The court noted that the New York City Department of Environmental Protection (DEP) had completed an environmental justice analysis in its FSEIS in anticipation of its permit application. Because DEP was not required to prepare that EJ study, the court held judicial review of the study was premature.
Additionally, the court found the potential socioeconomic effects of the project were extensively analyzed in the DSEIS and FSEIS. The plaintiff claimed that DEP did not involve the public in the environmental review process, saying DEP held only one public meeting at which no question and answer session was held, due in part to disruptions by some attendees. The court disputed the allegation, noting public hearings were held in September 2003, February 2004 and March 2004. Additionally a written comment period was held, during which several hundred comments were received. The court found the public was adequately involved in the review process. Bronx Environmental Health and Justice, Inc. v. New York City Department of Environmental Protection, N.Y.L.J., May 19, 2005, p. 20, col. 1 (Sup. Ct. Queens Co.).
EPA issued the draft Framework for Integrating Environmental Justice and the draft Environmental Justice Strategic Plan Outline. The documents are the foundation for EPA's Environmental Justice Strategic Plan for 2006-2011. The Framework is a six-page document that describes strategic plan definitions, time frame and goals for the EJ Strategic Plan, but identifies only the specific environmental goals from the 2003-2008 plan: clean air and global climate change, clean water, land preservation and restoration, healthy communities and ecosystems, and compliance and environmental stewardship. It hopes to link the action plans from the regional offices with the plans of the programmatic offices. The draft Strategic Plan Outline states its goal of incorporating specific EJ targets into EPA's overall strategic plan. It lists twelve priorities that commenters are asked to rank. Those priorities are: 1) reduce asthma attacks; 2) provide safe fish; 3) provide safe drinking water; 4) reduce exposure to waterborne pathogens; 5) revitalize brownfields; 6) reduce childhood lead poisoning; 7) reduce exposure to mercury; 8) reduce exposure to pesticides; 9) reduce exposure to air toxics; 10) ensure compliance; 11) increase environmental health along the borders; and 12) have healthy schools. The two draft documents are available online at:www.epa.gov/compliance/resources/publications/data/planning/strategicplan/ej/index.html. 70 Fed. Reg. 36167 (June 22, 2005).
A community group in a predominantly white area of Dallas sued the Dallas Housing Authority (DHA) to enjoin construction of public housing in its neighborhood. The site was chosen following a 1987 consent decree where the DHA was accused by African-American plaintiffs of continuing racial segregation with its housing practices. The consent decree required DHA to site public housing in predominantly white areas to remedy past segregation. The site at issue, the Hillcrest site, was purchased following this order. The decree was reversed in 1999 by the Fifth Circuit because it was not narrowly tailored to ameliorate segregative policies. Acquisition of housing sites using non-racial criteria were still allowed, however, and DHA pursued building on the Hillcrest site.
The community group argued the decision to put public housing in their neighborhood was racially-motivated and violated their equal protection rights under the Fourteenth Amendment. The federal district court held that DHA had found the Hillcrest site was the best site in the entire city and that its selection was not based on racial criteria. The Fifth Circuit held the community group failed to show the district court's conclusions were wrong. There was no constitutional violation because the facts showed the Hillcrest site was not selected on the basis of the racial composition of the area. The lower court's decision was affirmed. Walker v. City of Mesquite, 402 F.3d 532 (5th Cir. 2005).
The EPA Office of Civil Rights issued draft guidance for recipients who administer environmental permitting programs to enhance public participation. According to EPA, the Draft Final Title VI Public Involvement Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs (Recipient Guidance) significantly revises a previous draft issued in June 2000. It is designed to help recipients of EPA assistance implement environmental permitting programs with more public involvement to reduce issues related to Title VI. The document is guidance only. It is based in part on a 1999 study that found that Title VI cases against brownfield redevelopment were less likely where the process provided "early and meaningful public involvement, and create[d] a benefit for the local community." According to the Recipient Guidance, recipients should focus on "early, inclusive and meaningful public involvement throughout the entire permitting process" to reduce the likelihood of complaints alleging discrimination. 70 Fed. Reg. 10625, 10628 (March 4, 2005).
The guidance provides a list of information for an effective Public Involvement Plan. A discussion of training tips, soliciting community input, encouraging stakeholder involvement, and using alternative dispute resolution techniques are included. The comment period for the guidance closed April 3, 2005. 70 Fed. Reg. 10625 (March 4, 2005).
A New York court rejected claims that environmental reviews for a water plant failed to consider environmental justice issues. A community group in the Bronx, New York opposed the construction of a water filtration plant in the third-largest park in New York City, Van Cortlandt Park. The water plant was part of a federal settlement where the City agreed to construct the filtration system to avoid millions of dollars in fines under the Clean Water Act. Friends of Van Cortlandt Park argued that the City had failed to take a hard look at the environmental effects as required under New York's State Environmental Quality Review Act (SEQRA). The group also argued the City failed to conduct an environmental justice analysis to identify and evaluate any potential adverse impacts of the project on minority communities in the area. The court ruled that an environmental justice review was not legally required, but that the City, in fact, had made such a review in the final EIS. The challenge was dismissed. Friends of Van Cortlandt Park v. City of New York, Index No. 114036/04 (Sup. Ct. New York Co. Dec. 3, 2004). [Note: Litigation challenging this project on environmental justice grounds is currently pending in New York State Supreme Court, Queens County.]
The New York State Department of Environmental Conservation (DEC) created two environmental justice work groups to help DEC develop and incorporate environmental justice information into its permit review process. The Disproportionate Adverse Environmental Impact Work Group report summarizes six methodologies for assessing adverse environmental impacts, makes recommendations for permit-specific analyses, and lists additional resources needed to develop a disproportionate adverse environmental impact analysis. The work group could not decide on one methodology for assessing adverse environmental impacts. That report is available online at www.dec.state.ny.us/website/ej/daeireport.pdf. The second work group, the Health Outcome Data Work Group was created in conjunction with the New York State Department of Health (DOH). Its report identifies reliable sources of existing human health data and recommends means to incorporate that data into the environmental review process. That report is available online atwww.dec.state.ny.us/website/ej/hodreport. Comments were accepted through March 15, 2005. N.Y.S. Environmental Notice Bulletin (Dec. 15, 2004).
A federal court held that there was no intentional discrimination by the City of Dallas in allowing illegal dumping at a landfill in an African-American community. The District Court for the Northern District of Texas found that plaintiffs failed to prove an official policy permitted the dumping, and therefore, failed to establish the "official action element of their ' 1983 claim." The court found the government knew of the illegal dump near an African-American residential area at least by 1982. The City had acted for years to stop the practice, albeit ineffectually. It obtained a judgment against the illegal dump in 1989 but failed to enforce it. However, the court refused to categorize the official lassitude as a policy allowing the illegal dumping. The court also concluded that there was no intent to discriminate based on the same reasoning. While the government may have shown "gross negligence" in failing to stop the illegal dumping near a minority neighborhood, and its "failure to stop the illegal dumping' had a disproportionate impact on African-Americans," there was no intent to discriminate. The court said it was "bewildering" that the City was unable to coordinate its departments to act in the best interest of its citizens, but the court did not find the City acted differently toward this community than toward others. (For the decision rejecting the City's motion for summary judgment, see Court Finds Racial Discrimination Could Have Motivated Landfill, below.) Cox v. City of Dallas, 2004 U.S. Dist. LEXIS 18968 (N.D. Tex. Sept. 22, 2004).
Dispute Over Detroit School on Industrial Site Settled
The parents and the school district in Lucero v. Detroit Public Schoolsreached a settlement and dismissed the case claiming disparate impacts by building a school on an industrial site for largely minority students. The settlement establishes a safety committee to check on the integrity of the engineering cap underneath the school and playground. The Detroit Public Schools (DPS) agreed to keep easily accessible records of maintenance and testing of the barrier, and to keep those records in Spanish too. The agreement set up a system for parents to seek to enforce compliance with the settlement, and created a protocol for making any repairs to the barrier. (Summaries of previous Lucero decisions are available below.)Lucero v. Detroit Public Schools, Case No. 01-CV-72792-DT (E.D. Mich. Oct. 7, 2004).
The District Court for the Eastern District of Michigan revisited its decision on whether ' 1983 could enforce a private right of action granted under Title VI regulations. (See, "Court Refuses to Enjoin Opening of New School'" below, for the earlier decision and the facts of this case.) The Detroit Public Schools (DPS) had brought a motion to dismiss arguing the 2001 decision of the court was based on the holding in South Camden Citizens in Action v. New Jersey Dept. of Environmental Protection, 145 F.Supp.2d 505 (D.N.J. 2001), which had since been reversed by the Third Circuit. The Eastern District said its earlier decision was not premised entirely upon South Camden and since the basis for its decision was sound, it rejected defendant's contention that ' 1983 did not form a basis for suit. The court also found the plaintiffs had a Fourteenth Amendment right to "personal bodily integrity." Because the students were compelled to attend school, and toxic chemicals had been discovered where their school was built, the court found plaintiffs' allegations sufficiently alleged a constitutional claim. Lucero v. Detroit Public Schools, Case No. 01-CV-72792-DT (E.D. Mich. Sept. 30, 2003).
California passed a law requiring state agencies to provide outreach to disadvantaged communities to promote access to grant information under the Water Security, Clean Drinking Water, Coastal and Beach Protection Act of 2002. The new legislation directs "outreach and technical assistance to communities throughout the state" and "to the maximum extent feasible" to disadvantaged communities. The Water Security Act authorized $3.4 billion in bonds to help water quality issues statewide. 2004 Cal. Stats. 716.
The Federal Motor Carrier Safety Administration incorporated environmental justice issues into its NEPA implementing procedures. Under the procedures, a categorical exclusion may not be used where the proposed action has a reasonably disproportionate impact on minority or low-income population. A "reasonably disproportionate" effect is described as being "high and adverse." The procedures incorporate NEPA and Exec. Ord. 12898. 69 Fed. Reg. 9680 at 9688-89 (March 1, 2004).
The Sixth Circuit held that school discrimination cases and affirmative action cases did not require government contractors to remedy past radioactive and toxic contamination in a segregated community. According to the court, government contractors did not have "to remedy past discrimination. That is, contractors have no affirmative duty to eliminate current effects of past discrimination by government entities."
Suit was based on a 2000 final report by the Oak Ridge Health Agreement Steering Panel (ORHASP) showing the health effects of radioactive and other toxic substances from the Oak Ridge nuclear weapons facility in Tennessee. Plaintiffs from the Scarboro community claimed they were harmed more because Scarboro was built for black employees at Oak Ridge and was closer to the site of contamination. The Scarboro plaintiffs claim their proximity made them more vulnerable to ongoing pollution in violation of their civil rights. The suit was dismissed for failing to file in a timely fashion. The Tennessee one-year statute of limitations had tolled well before the ORHASP report, and plaintiffs should have been aware of a potential personal injury claim in 1998 or 1999 when the preliminary reports were available. Ball v. Union Carbide Corp., 375 F.3d 554 (6th Cir. 2004).
Sullivan County applied for a state permit to expand its landfill in the Village of Monticello, New York. The landfill's existing permits would have to be modified, including its solid waste management facility permit, the State Pollutant Discharge Elimination System (SPDES) permit, and the Title V air permit. The area within a one-mile radius of the project was designated an Environmental Justice (EJ) Area by the New York State Department of Environmental Conservation (DEC) because a substantial percentage of the area's population was low-income. Low-income was defined as income less than the poverty threshold. DEC directed Sullivan County to develop a public participation plan to involve the EJ community, but challengers to the permit claimed the county made no meaningful outreach efforts. Following implementation in March 2003 of a DEC EJ policy, the county submitted a revised public participation plan.
The ALJ found DEC had complied with the state EJ policy by making efforts to reach the EJ community. The challengers argued that federal EJ policy was implicated because the county received federal grant money. They claimed the landfill would have disparate impacts on low-income and minority communities. The ALJ said because the landfill did not require a Prevention of Significant Deterioration (PSD) permit, the project was not subject to federal environmental justice mandates. In the Matter of County Landfill in the Village of Monticello, 2004 wl 1701672 (DEC ALJ July 20, 2004).
The New York City Department of Sanitation (DOS) sought a permit for a yard waste composting facility to be built in a park in Brooklyn. The composting facility would receive 15,000 tons per year of yard waste, mostly from residences. The composting area would be located on what was an ash landfill, and the land designated for the project was not developed or used as a park.
A neighborhood organization argued the area surrounding the proposed facility was an environmental justice community and that several environmental justice concerns were ignored in the permitting process. The group claimed the facility was moved from its current location in a relatively affluent community to the proposed site without sufficient notice. Reducing the area's parkland was part of a historic pattern of destroying parks in the community, according to the group. While the state EJ policy took effect years after the DOS application, the ALJ held it was relevant to the instant project. The ALJ found the hearing notice and distribution exceeded the minimum requirements under the policy. The ALJ said the Commissioner would consider the cumulative impact on all resources of the proposed project under New York State Environmental Conservation Law ' 3-0301(1)(b), but that any EJ review under the State Environmental Quality Review Act (SEQRA) ended with the negative declaration. No hearing on the issue of environmental justice was required. In the matter of Spring Creek Yard Waste Composting Facility, DEC Application No. 2-6105-00666/00001 (DEC ALJ August 30, 2004).
The Nuclear Regulatory Commission (NRC) published its final policy statement on the treatment of environmental justice matters in NRC regulatory and licensing actions. (See below for the draft statement.) In addition to twenty-nine comments, 700 post cards were received expressing opposition to the policy. According to the policy, NRC will analyze disproportionately high and adverse impacts as part of its NEPA review. As required by NEPA, the Commission will look at "the socioeconomic impacts that have a nexus to the physical environment." NRC states it is committed to the general goals of Executive Order 12898, but that it would "strive to meet those goals through its normal and traditional NEPA review process." NRC said this position is consistent with its review in Louisiana Energy Services (Clairborne Enrichment Center) CLI-98-3, 47 NRC 77 (1998) that E.O. 12898 did not establish any new rights or remedies. The NRC Chairman in 1994 had issued a statement that NRC would follow the Order, but the Commission clarified its position that "EJ issues are addressed in the context of the agency's NEPA responsibilities" and that the Order "neither expanded nor limited the scope of the agency's NEPA responsibilities."
Critics of the new policy argued it will limit NRC's consideration of EJ issues and narrow the scope of E.O. 12898, or that it will undermine the goals and intent of the Order. The agency responded that the Commission was not required to follow the EO, but that it agreed with its general goals. A specific criticism was that the policy would not address cumulative impacts, but the Commission said those impacts are considered when preparing an environmental impact statement. Concerns that the new policy would limit public participation were countered by the statement that "[t]he NRC usually holds at least one public meeting in the vicinity of the proposed action involving an EIS." NRC said the scoping process in its regulations were consistent with the E.O. guidelines. The policy does not require an EJ review where an environmental assessment (EA) with a Finding of No Significant Impact (FONSI) is expected. The Commission said the policy did not "eliminate the possibility of an EJ review," but it will conduct a review where "the unique characteristics of low-income or minority communities" mean a "FONSI may not be appropriate." 69 Fed. Reg. 52040 (Aug. 24, 2004).
EPA issued a proposed policy on Guidance to EPA Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons. The policy is in response to Executive Order 13166 (Aug. 11, 2000) entitled "Improving Access to Services for Persons with Limited English Proficiency." It is directed at how the Agency assists Limited English Proficient Persons (LEPP) without unduly burdening its fundamental mission. According to DOJ, federal agencies must identify steps that recipients of federal financial aid can take to avoid administering their programs in a way that results in discrimination. Failure to ensure that LEPP can effectively participate in federal programs may violate Title VI of the Civil Rights Act of 1964. (69 Fed. Reg. 35602, 35604 (June 25, 2004).)
The starting point for the EPA program is for federal-aid recipients to evaluate four factors: 1) The number of proportion of LEPP eligible or likely to be encountered; 2) the frequency with which LEPP come in contact with the program; 3) the nature and importance of the program or service to people's lives; and 4) the resources available and costs to the recipient. EPA seeks to balance meaningful access by LEPP to critical services without unduly burdening small entities. Different language assistance services to be considered are the availability and competency of interpreters, hiring bilingual staff or staff interpreters, using telephone interpreter lines, and choosing which documents to be translated. The policy took effect June 25, 2004. 69 Fed. Reg. 35602 (June 25, 2004).
Plaintiffs, including several environmental groups and an environmental justice committee, brought suit against the Army Corps of Engineers claiming its flood control plans for the Trinity River in Dallas, Texas, did not comply with NEPA. An initial decision from the district court agreed that the Corps had failed to consider cumulative impacts of foreseeable future projects on the river. (Texas Committee on Natural Resources v. Van Winkle, 197 F.Supp.2d 586 (N.D. Tex. 2002). An injunction was imposed. The Corps prepared a supplemental EIS (SEIS) that the plaintiffs challenged, arguing the document failed to establish an accurate baseline condition against which the future projects would be measured. The district court found that "defendants properly established the baseline conditions in the SEIS." The court rejected the plaintiffs' other arguments and dissolved the injunction.Texas Committee on Natural Resources v. Van Winkle, 2004 wl 980392 (N.D. Tex. May 5, 2004).
A county and an environmental group teamed to enjoin the Department of Navy from constructing a landing field for Navy aircraft in Washington County, North Carolina. The plaintiffs alleged the EIS failed to fulfill its environmental justice requirements under the Administrative Procedure Act (APA). The decision does not describe any environmental justice concerns, however; it focuses on the EIS's failure to consider the impacts on the 100,000 birds at a nearby National Wildlife Refuge. The court said the evidence presented by plaintiffs suggested the Navy "may have inappropriately minimized the environmental impacts" of the project. In spite of a technical finding that the airfield would pose a "severe hazard advisory for bird strikes for 50 percent of the year" the Navy described the impact as minor and capable of being mitigated. The court balanced the harms between the parties and found it weighed in favor of the plaintiffs. An injunction was issued. Washington County v. U.S. Department of the Navy, 2004 wl 189448 (E.D.N.C. April 20, 2004).
Adverse Affects on Minority Employment Were Minimal
Several citizens groups joined suit against the Federal Highway Administration (FHWA) arguing the agency violated NEPA in approving the FEIS for the Chittenden County Circumferential Highway (CCCH) near Burlington, Vermont. Among their complaints was that the FEIS did not adequately consider the environmental justice impacts on low-income and minority communities, Burlington's Old North End neighborhood in particular. Specifically, the plaintiffs contended the document showed the CCCH would create fewer jobs in urban areas that are accessible via public bus compared to outlying areas without bus transportation. Defendant countered that E.O. 12898 did not confer a private right of action. The court rejected defendant's theory noting that an environmental justice analysis was included in the FHWA environmental review, and that analysis was subject to review under the APA.
The court described the plaintiffs' argument that the highway disproportionately affected the poor and minorities as "unconvincing." It compared the projected number of new employees if CCCH were built to the no-build alternative. The court said the difference would be a 0.63 percent reduction, without delineating whether that impact would be the same for the environmental justice communities. Accordingly, the court said "it was not unreasonable" for the FHWA to decide that the proposed highway would not have a significant adverse employment effect on poor and minority neighborhoods. Therefore, the project complied with EO 12898. The document failed in other ways and the court issued an injunction until the NEPA requirements were met. Senville v. Peters, 327 F. Supp. 2d 335 (D. Vt. 2004).
Waste Management of Ohio, Inc. sought to construct a new solid waste transfer station in what was described in the opinion as a "highly industrialized part of Cincinnati." The nearest residence to the facility was within approximately 2000 feet. During the permitting process the Cincinnati Board of Health (BOH) received comments regarding environmental justice issues, notably that the proposed station would have an adverse effect on traffic and air pollution. Numerous other issues were raised. The BOH denied Waste Management a license and Waste management appealed. The Ohio Environmental Review Appeals Commission (ERAC) reviewed the case. It held that because Ohio had no specific environmental justice law, "environmental justice concerns could not form a basis for a lawful denial of a license for a transfer station." Evidence relative to EJ issues was excluded. ERAC found the denial of the license was unlawful and unreasonable. Waste Management of Ohio, Inc. v. Bd. of Health of City of Cincinnati, 2004 Ohio ENV LEXIS 3 (Ohio Envtl. Rev. App. Comm'n March 25, 2004).
A sand and gravel mine was operated as a non-conforming use in a residential area of Dallas that was predominantly African-American. The mining operation accepted solid waste as fill, in contravention of its permit. The community complained repeatedly and the owner of the mine was fined, but the City allowed the operation to continue. Eventually the City sued the owner and won but never enforced the judgment that would shut down the operation. The City gave a new certificate of occupancy to a new owner without ever inspecting the site. The plaintiffs sued the City alleging violations of their civil rights.
The District Court for the Eastern District of Texas found the history of the site allowed "a reasonable trier of fact to find racially discriminatory intent" in the City's failure to close the dump. The court also found a genuine issue of fact existed as to whether the City had a legitimate nondiscriminatory reason for its behavior. The court refused to dismiss the claims brought under 42 U.S.C. § 1983 and 42 U.S.C. § 1981. The claims brought under various housing acts were dismissed as all the plaintiffs were homeowners and the asserted laws only protected those seeking to own or rent. Cox v. City of Dallas, No. Civ. A. 398CV1763BH, 2004 WL 370242 (N.D. Tex. Feb. 24, 2004).
The Office of Inspector General of EPA (OIG) issued a report declaring the Agency "has not fully implemented Executive Order 12898 nor consistently integrated environmental justice into its day-to-day operations." It pointed to an early memorandum by former EPA Administrator Christine Todd Whitman as an example of the Agency's misdirection. The memo defined environmental justice as "the fair treatment of people of all races, cultures, and incomes." Memorandum of Administrator Whitman, "EPA's Commitment to Environmental Justice" (August 9, 2001) (emphasis in original). The OIG said the Environmental Justice initiative should commit to minority and low-income populations as targeted by the Executive Order. The Agency was criticized for failing to establish any "definitions, criteria, or standards" that would promote uniform efforts in enforcing environmental justice. For example, the Agency has not defined what makes a community minority or low-income, nor has it defined disproportionate, both of which are required by section 1-101 of the Executive Order. The report found different EPA Regions had different criteria for finding EJ communities. To determine income levels, for example, five regions used a variation of the federal poverty level. Five regions compared an area's low-income percentage with the State average. One region multiplied the state average by 1.2 to find the low-income threshold. The OIG took protocols for three regions and applied them to the same data to demonstrate the effect of lacking national standards. A city consisting of 167 census block groups was used. The results showed potential EJ communities numbering from 68 (Region 5) to 112 (Region 6), a difference affecting over 40,000 people.
EPA responded to the OIG report stating that its August 9, 2001 memo was sufficient. It denied that EO 12898 required the Agency to identify affected communities or define disproportionately impacted. The Agency said the Order required the Agency to conduct internal reviews of its programs, not to establish national standards. OIG Evaluation Report, "EPA Needs to Consistently Implement the Intent of the Executive Order on Environmental Justice" (March 1, 2004),www.epa.gov/oigearth/reports/2004/
A citizens group, Coliseum Square Association, Inc. (Coliseum Square), moved for attorneys' fees against the Department of Housing and Urban Development (HUD). At issue was a project in New Orleans that would convert a public housing project into a mixed-use development. An earlier decision described the environmental justice issues brought against HUD.See "Re-Opened NEPA Review Was Unripe for Judicial Review". After Coliseum Square filed suit against HUD and others, HUD reopened its environmental review under the National Environmental Policy Act (NEPA). It re-examined the environmental impacts of the project, including noise, drainage, traffic, and environmental justice issues, and issued another environmental assessment - finding of no significant impact (EA-FONSI).
Coliseum Square sued for attorneys' fees but the District Court for the Eastern District of Louisiana denied the motion. The court held that the Supreme Court case of Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep't of Health and Human Res., 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001), rejected awarding attorneys' fees when a party had been only a catalyst in causing change. Because HUD undertook revisions to its initial EA-FONSI by itself, the Eastern District held the action lacked a judicial imprimatur on the change that would make Coliseum Square a prevailing party. Coliseum Square Association, Inc. v. Martinez, No. Civ. A. 02-2207, 2004 WL 551217 (E.D. La. March 17, 2004).
The Army Corps of Engineers (Corps) planned to expand a lock in the Inner Harbor Navigational Canal in New Orleans. The project would increase the size of the lock over three-fold and would involve dredging. Several environmental and civic groups, including the Gulf Restoration Network, which is described as a "regional coalition of environmental and social justice groups," brought suit alleging violations of NEPA and the Resource Conservation and Recovery Act (RCRA). They claimed the sediment in the canal exceeded standards for industrial sites and dredging would release those contaminates into Lake Pontchartrain and surrounding communities. The Corps moved to dismiss alleging the plaintiffs lacked standing. The District Court for the Eastern District of Louisiana found the plaintiffs had standing, in part because they were persons "for whom the values of the area will be lessened by the challenged activity."
The court rejected the Corps' motion to dismiss the RCRA claim. The Corps had argued RCRA did not allow citizen suits that sought to enjoin future actions. The court held that RCRA's primary purpose was to minimize threats to human health and the environment and it did not require plaintiffs to wait until "damage had occurred." Accordingly, the plaintiffs had sufficiently stated a cause of action under RCRA. Holy Cross v. U.S. Army Corps of Engineers, No. Civ. A. 03-370, 2003 WL 22533671 (E.D. La. Nov. 3, 2003).
The Nuclear Regulatory Commission (NRC) rejected a motion premised on environmental justice regarding payment of money to the Skull Valley Band of Goshute Indians. The Tribe received money from Private Fuel Storage as lease payments for storing radioactive material. The opponents, who are members of the Skull Valley Band, assert the Chief was not dividing the funds fairly. The NRC said this was not an environmental justice issue as it pertained to money, not the environment. Additionally, the NRC said the challenge was not part of its NEPA review, describing the complaint as a request for "a corruption investigation." The NRC refused to reopen the case record based on the motion. In the matter of Private Fuel Storage, LLC, NRC Docket No. 72-22-ISFSI: CLI-04-09, 2004 NRC LEXIS 43 (NRC March 24, 2004).
Governor James McGreevey of New Jersey has signed an Executive Order directing State agencies to address certain environmental justice issues. The order states that environmental health and quality of life in low-income and minority communities require a multi-agency response, and directs specific actions from several agencies. Under the order, the Department of Environmental Protection (DEP) must identify industrial facilities in environmental justice communities that should be targeted for more aggressive compliance, enforcement, remediation and permitting strategies to reduce residents' exposure to hazardous materials. DEP and the Department of Health and Senior Services are charged with creating Spanish-language websites, and the departments must work to communicate risks associated with fish consumption, when appropriate. In response to the high occurrence of asthma among children in disadvantaged communities, the order requires DEP and the Department of Transportation to develop a strategy to reduce particulate matter in those areas. A multi-agency Environmental Justice Task Force will address agency actions to ensure they address environmental justice concerns. The Task Force will address petitions from the public claiming disproportionate adverse effects from State programs or the community. In 18 months the Task Force will produce a status report. The order takes effect immediately and is valid for five years. A copy of the press release and the Executive Order are available online at www.state.nj.us/cgi-bin/governor/njnews
line/view_article.pl?id=1760. Governor McGreevy Press Release, Feb. 18, 2004.
The City of Boston intervened in a lawsuit against the Federal Aviation Administration (FAA) and the Massachusetts Port Authority (Massport) regarding the expansion of Logan Airport. Boston challenged the FAA and Massport methodology in assessing environmental justice issues relating to adding a new runway to the airport. The environmental document prepared by FAA and Massport compared the demographics of the population in the area actually to be affected by the new runway to the population in the area potentially to be affected. The actually affected area had a minority population of 34 percent; the potentially affected area, which was all of Suffolk County, had a minority population of 48 percent. Boston argued they should have compared the affected area to the entire City of Boston.
The Court of Appeals for the D.C. Circuit rejected Massport's argument that the environmental justice claims were made based on Executive Order 12,898 and a DOT order, neither of which allowed a private right of action. The court held that Boston made its arguments under NEPA and the Administrative Procedure Act (APA). Then the court rejected Boston's arguments, finding the methodology was reasonable and adequately explained. The larger comparison population desired by Boston was unreasonable since not all of the people in that area would be affected by noise from the airport. Communities Against Runway Expansion, Inc. v. Federal Aviation Administration, No. 02-1267, 2004 U.S. App. LEXIS 1403 (D.C. Cir. Jan. 30, 2004).
The Massachusetts Port Authority (Massport) wanted to add an additional runway to Logan Airport and sued the City of Boston to vacate a 1976 injunction limiting construction at the airport. The City of Chelsea intervened. Chelsea argued that the runway project would have a significant, adverse environmental impact that disproportionately affected minorities and low-income residents. Chelsea argued that Massport used a flawed method in the environmental document to assess the environmental justice impacts. Particularly, Chelsea argued that Massport improperly grouped Chelsea with other communities and evaluated the effects in aggregate. This was problematic to Chelsea as it has a higher minority and low-income population than any of the other affected communities, and it claimed the impact on it was diluted by averaging its demographics with those of surrounding communities.
Chelsea's data showed the new runway would increase the number of persons within the 65 dB noise range by 244 in its neighborhood, 32 in South Boston, and 139 in East Boston, all neighborhoods with large minority populations. Whereas the communities of Winthrop and Revere would have the noise effects reduced, and their communities have fewer minorities and fewer low-income residents. Massport argued that the 60 - 65 dB noise impacts to the Chelsea community will decrease with the proposed runway as compared to the no-build alternative. The Superior Court of Massachusetts found that the overall percentages of minority and low-income people affected by noise from the proposed runway were lower than the percentages of minority or low-income people in Boston or Suffolk County as a whole. As Chelsea could not show that Massport violated a required methodology, Massport's comparison was not arbitrary or capricious. Massachusetts Port Authority v. City of Boston, 17 Mass. L. Rptr. 158, 2003 wl 23163109 (Mass. Super. Ct. Nov. 18, 2003).
As part of an environmental justice initiative, the EPA enforcement office is training more than 100 police chiefs to identify environmental crimes. The program is in conjunction with the national Organization of Black Law Enforcement Executives. EPA says the training will help local police target environmental crimes such as illegal dumping of hazardous waste, and illegal asbestos removal. Macon, Georgia, Baton Rouge, and Vicksburg, Mississippi were chosen to host pilot projects because they are located in "Cancer Alley" - a geographical area in the Southeast where a heavy concentration of industrial facilities is alleged to cause disproportionate health problems. Urbana, Illinois, is the fourth city in the pilot program. It was chosen because of the high number of factories there. Inside EPA (Dec. 19, 2003).
An environmental justice advocacy group survived a motion for summary judgment in its claims that plumbing parts distributors are selling products that discharge lead into drinking water. The Mateel Environmental Justice Foundation brought suit under California's Proposition 65 Safe Drinking Water provisions and the Unfair Competition Law. The plumbing distributors claimed Mateel did not use the appropriate test and so its evidence of lead in drinking water could not be introduced. The trial court agreed, but the appellate court reversed.
The California First District Court of Appeal held that the State did not have an approved methodology for showing discharge of lead. The test proffered by the plumbing distributors was not, in fact, such a test. The court held the trial court erred in rejecting the seven tests Mateel used by relying on the faulty premise that the defendants' test was required. The action was remanded for consideration of whether Mateel's tests are valid under the standard for scientific evidence set in People v. Kelly, 17 Cal 3d 24, 130 Cal. Rptr. 144, 549 P.2d 1240 (1976). Mateel Environmental Justice Foundation v. Edmund A. Gray Co., Nos. A100075, A 100279, 2003 wl 22995271 (Cal. Ct. App. Jan. 2004).
An article summarizing the Title VI decisions from the Environmental Protection Agency's Office of Civil Rights shows that in every case that has been decided, all claims of discrimination have been denied. The article, "EPA Dismissal of Civil Rights Complaints," shows that of the 136 cases received by EPA since 1993, 75 were rejected without investigation. The agency accepted 26 for investigation but found zero showed timely evidence of discrimination. The remaining 30 are still pending. The decision is based on documents obtained through the Freedom of Information Act.
Several of the more striking cases are discussed in more detail, such as the action claiming the Arizona Department of Environmental Quality (ADEQ) discriminated against Spanish-speaking people during the permitting process for a hazardous waste facility. EPA found that ADEQ mailed fliers in English, announced in English that translation was available, and told callers that the hearing would be conducted only in English. However, no discrimination was found because the allegations were based on dates beyond the 180-day deadline for Title VI claims.
Lateness also doomed a claim from California that alleged the siting of a hazardous waste treatment facility discriminated against lower-income Latino residents. In that case the environmental review that found no adverse environmental effects failed to acknowledge the existence of an apartment building within a block and a half of the treatment facility. The apartment building predominantly housed Latino field workers. Discrimination based on the environmental review was held to be time-barred, and the claims of disparate enforcement by the State were rejected by EPA.
The article also points out the extensive time period over which these cases were reviewed. In one case, from Texas, the decision was issued almost 10 years after the case was filed. Most spent years before the Agency. The quickest response was concered a Michigan mini steel mill that had threatened to switch states if the civil rights claim lingered. The Agency reviewed the case and found there were no adverse impacts from the proposed project and therefore there were no discriminatory impacts. Michael B. Gerrard, "EPA Dismissal of Civil Rights Complaints," New York Law Journal, Nov. 28, 2003, p. 3. A copy of the article may be obtained from Michael B. Gerrard, email@example.com.
The Nuclear Regulatory Commission issued a draft policy for the Treatment of Environmental Justice Matters in NRC Regulatory and Licensing Actions. The crux of the policy is that NRC's environmental justice evaluations are to comply with NEPA, not EO 12898 or Title VI. According to the policy, EO 12898 did not establish any new substantive or procedural requirements applicable to the agency, and Title VI is inapplicable to NRC regulatory and licensing actions. Accordingly, NRC's review will not include racial motivation or equity issues as those factors "are not cognizable under NEPA." NRC will make an effort under NEPA to consider the socioeconomic circumstances of the communities surrounding its projects.
NRC will first determine whether there is a significant impact for the project, based on the premise that if there are no significant impacts, there can be no adverse impacts on minority or low-income communities. The agency expects that most projects will have little or no offsite impact. If the proposed activity might have an offsite impact, then the agency will check to see if the impact is on a minority or low-income community and would be significant.
While the notice of the proposed policy states that the agency has yet to "develop clear, defined procedural guidance for identifying minority and low-income communities and assessing the impacts they may experience," it has proposed some boundaries to NRC's environmental justice review. The agency will use set distances for determining the affected communities. For the Office of Nuclear Material Safety and Safeguards (NMSS) the potentially-affected area in urban sites is a 0.6-mile radius from the center of the proposed project. For rural sites the distance for NMSS projects is four miles. The Office of Nuclear Reactor Regulation (NRR) will use a 50-mile radius for actions involving power reactors. NRC will consider the surrounding community to be a minority or low-income community if its percentage of minority or low-income people significantly exceeds that of the state or county. Significantly is defined as twenty percentage points. If the percentage exceeds 50 percentage points, the "environmental justice matters are considered in greater detail." NRC also states that it will emphasize scoping, under 10 C.F.R. 51.29, and public participation when an EIS is being prepared.
Comments on the draft policy are accepted until January 5, 2004. 68 Fed. Reg. 62642 (Nov. 5, 2003).
EPA issued the "Toolkit for Assessing Potential Allegations of Environmental Injustice" for public comment. 68 Fed. Reg. 62588 (Nov. 5, 2003). The comment period ended March 4, 2004. The 150-plus page Toolkit is intended to provide a framework for EPA offices to assess and resolve environmental justice issues. The Toolkit states it is not to be used to review Title VI complaints.
The chapters are as follows: Introduction; Statutory/Policy Framework for Environmental Justice; Environmental Justice Indicators Framework; and Methodology for Environmental Justice Assessment. The environmental justice indicators chapter addresses the limitations permitting agencies have made in environmental justice reviews and describes dozens of factors to consider when making an environmental justice determination.
The Toolkit describes an EJ review as studying the stresses put on a subject community. Accordingly, a review should look at the sources of stress on a community such as the cumulative impacts, economic impacts, sensitive subpopulations where pre-existing disease occurs, and synergistic impacts caused when two pollutants combine together. It describes stresses on communities that might not appear as part of a NEPA review - such as length of time regulated facilities have been in the community, noise levels, number of non-point sources of pollution, and number of permit exceedances by regulated facilities, and health impacts such as infant mortality rate and number of diseases attributable to pathogens. Social impacts, such as distribution of languages spoken in the community and percent of community that is literate in English or another language, should be considered. It suggests evaluating government response as a means of determining the commitment by state or local government for encouraging public participation in decision making. As for economic indicators, the Toolkit recommends looking beyond income levels to consider the percent of homeowners, the number of brownfields, and the percent of the community employed by polluting industries. The draft policy is online at www.epa.gov.
EPA Study: Businesses Avoid Using Term Environmental Justice
EPA released "Moving Toward Collaborative Problem-Solving: Business and Industry Perspectives and Practices on Environmental Justice," a study of business and industry's views of environmental justice based on discussions with leaders of 15 companies in seven business sectors. The study found that most companies do not recognize or do not have explicit policies or practices to treat EJ communities differently. The business leaders stated they preferred not to identify a project as being associated with an environmental justice issue because it creates a negative connotation of the company as the "bad guy". The companies prefer to include so-called environmental justice issues within their framework of community involvement and sustainable development.
The anonymous companies discussed their practices for siting or obtaining permits in EJ communities. Twenty-five percent of the companies recommended by their peers for the study refused to participate in the study on the grounds that they did not consider their programs to be in the context of Environmental Justice.
Two representatives of the fifteen companies had not heard the term Environmental Justice. The study found that "many companies" had difficulties in 1) determining whether their facilities impacted an EJ community; 2) understanding and applying the concepts of adverse and disproportionate impacts; and 3) ensuring they are meaningfully involving the community in the decision-making process.
The businesses expressed a desire for more clarity in the environmental justice terminology. One interviewee asked whether a facility in Puerto Rico would be considered located in an EJ community because the population was Hispanic. Concern over contacting appropriate representatives of the community was also an issue. The companies also expressed frustration at long-operating facilities that come under Environmental Justice scrutiny as residential areas grew closer to them.
The study recommended early community involvement, extensive community involvement, and giving back to the community as effective ways of approaching environmental justice issues. Case studies in siting and permitting for a variety of industries are included. A copy of the report is available at www.epa.gov/compliance/resources/publications/ej/study-industry-
The Eighth Circuit rejected an argument that the Surface Transportation Board (STB) failed to consider environmental justice issues in the Environmental Impact Statement for a rail line from Minnesota to Wyoming. The rail line would increase train traffic from three per day to approximately 37 per day. Olmstead County, Minnesota claimed that the environmental analysis performed by STB did not use the correct data for determining the demographics of the area through which the rail line would go. Olmstead County wanted STB to use projected 2000 census data where available, and to use data that was based on units smaller than the census block group level. According to the county, this would give STB a more accurate view of the racial make-up of the affected communities. The Eighth Circuit held that Olmstead County's approach, which it described as using "a medley of assorted data," would be arbitrary compared to STB's approach.Mid States Coalition for Progress v. Surface Transportation Board, 2003 wl 22251298 (8th Cir. Oct. 2, 2003).
The Department of Transportation (DOT) regulations prohibiting federally funded projects from imposing disparate impacts on the basis of race do not create an individual federal right that can be enforced under a §1983 action, according to the Ninth Circuit. The case involved the location of an above-ground light rail line through a predominantly minority neighborhood south of Seattle. The rail segment through the minority neighborhood was planned for ground level while other portions of the twenty-one mile line would be underground or elevated.
The court held that the agency regulations cannot independently create rights enforceable under the Civil Rights Act. Only Congress can create an enforceable statutory right. The court said the regulation in question, 49 C.F.R. § 21.5(b)(2), prohibited more activities than were sanctioned by its authorizing statute, Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. The court held that the statute authorized agencies to implement regulations giving people the right to be free from intentional discrimination. It did not give them the right to be free from racially discriminatory effects. Plaintiffs' interpretation of the DOT "disparate impacts" regulation was beyond the scope of the statute. On a separate matter, the court held the district court did not abuse its discretion in requiring plaintiffs to pay $5,310.55 in costs as the losing party. Save Our Valley v. Sound Transit, 335 F.3d 932 (9th Cir. 2003).
EPA has enhanced the EnviroJustice Mapper system with the Environmental Justice Assessment Tool. This web-based tool allows users to specify a variety of geographical identifiers to obtain population and environmental hazard information for that area. Population numbers are based on census blocks. Sites may be chosen based on the following categories: watershed, zip code, state, city, county, EPA region, facility, and longitude/latitude. After the geographical scope is selected, a map appears. Users can choose from a list of environmental indicators, such as hazardous wastes, toxic releases, air emissions, and Superfund sites to be inserted on the map. According to EPA, agencies can use the website as an initial step in their environmental justice assessments. It is located atwww.epa.gov/enviro/ej/.
The Maryland Commission on Environmental Justice and Sustainable Communities is now authorized by statute. The 15-member group was created in 2001 by Executive Order. Exec. Order 01.01.2001.01. On May 22, 2003, Governor Robert Erlich signed the law enacting the Commission. The law defines environmental justice as "equal protection from environmental and public health hazards for all people regardless or race, income, culture, and social status." 2003 Md. Laws 460.
The Commission advises state agencies on environmental justice issues and reviews the impacts of current state and local laws on environmental justice and sustainable communities. The governor appoints 10 members and the remaining members are designees from state government. The Commission will submit to the governor an annual report of its findings and recommendations on December 31, 2003, pursuant to the Executive Order. Beginning October 1, 2004, the Commission will submit an annual report to the governor and the General Assembly, as required by statute. Previous annual reports are available online atwww.mde.state.md.us/assets/document/environmental_justice/
ejreport01/ej_2001_Annual_Report_part1.pdf. The Commission's homepage is at www.mdarchives.state.md.us.
The National Environmental Justice Advisory Council (NEJAC) has issued its report on how environmental justice may be advanced through a policy of pollution prevention. The council proposes changing the focus of how to achieve cleaner communities. First, it states that attention should be on preventing pollution at the source. Second, industries should build inherent safety and sustainability into their processes, rather than depending on cleanup and remediation.
The report emphasizes cooperation among stakeholders, which it names as communities, tribes, business and industry, and governments. It makes numerous recommendations on how communities can incorporate pollution prevention policies in their environmental plans. The 167-page report from the December 2002 meeting of NEJAC is available online atwww.epa.gov/compliance/resources/publications/ej/p2-
The Civil Rights Project at Harvard University issued a report finding that transportation funding inequitably affects minority and low-income communities. The report is called Moving to Equity: Addressing Inequitable Effects of Transportation Policies on Minorities. It notes that most transportation funding is spent on highways, which do little to assist low-income communities. The report encourages increased funding for public transportation in low-income communities. Low-income households spend greater proportions of their incomes on transportation-related expenses. Those making less than $11,944 spend 36 percent of their household budget on transportation. Households with an income greater than $60,536 spend only 14 percent. Public transport could enable central-city residents to reach jobs at the fringes of urban areas without needing an automobile.
The report also criticizes the implementation of the National Environmental Policy Act (NEPA) as not doing enough to make transportation policies equitable, and requests enforceable standards to measure whether low-income communities share equally in the benefits and burdens of transportation. The report asks Congress to give the Federal Highway Administration the power to withhold funds if a metropolitan planning organization or a state fails to comply with Title VI of the Civil Rights Act. It asks for more funding to enforce NEPA and Title VI reviews. The report is available at www.civilrightsproject.harvard.edu/research/transportation
The Environmental Protection Agency has created a new grants program awarding financial assistance to community-based organizations that seek solutions to environmental or public health issues. The "Environmental Justice Collaborative Problem Solving Grant Program" is open to 501(c)(3) organizations. Fifteen grants of $100,000 will be awarded for projects of up to three years. Applications are due September 30, 2003. The application can be downloaded at www.epa.gov/compliance/recent/ej.htmlor by called 1-800-962-6215. EPA Press Release, June 4, 2003.
Plaintiffs challenged a Housing and Urban Development (HUD) Environmental Assessment (EA) for failing to consider environmental justice issues related to the renovation of a housing development. Plaintiff's earlier suit was dismissed as not being ripe because HUD had reopened its NEPA review. Upon completion of the second EA, also finding no significant impact, plaintiffs filed this action. The district court held that the HUD EA adequately considered the environmental justice issues, noting that the project studied the relevant traffic, street use and seismic readings in the area. Coliseum Square Association, Inc. v. Dept. of Housing and Urban Development, No. Civ. A. 02-2207, 2003 WL 1873094 (E.D. La. April 11, 2003).
On remand, the U.S. District Court held that a citizens group stated a claim of intentional discrimination against the New Jersey Department of Environmental Protection (DEP) regarding a cement grinding plant in their mostly-minority neighborhood. The court found that DEP granted the cement plant's application for air permits without considering that the brunt of the impacts would be felt by the impoverished neighborhood of Camden. DEP argued that they did not have a discriminatory intent because air pollution criteria are the same throughout the state. However, the court held that plaintiffs' second complaint had a sufficient basis to state a cause of action of intentional discrimination under both Title VI and the Fourteenth Amendment. Plaintiffs alleged that the air permit was granted even though DEP knew of the disproportionate burden placed on a minority community and did not act to lessen that burden. Plaintiffs alleged that DEP had a "statewide pattern" of granting permits to polluting facilities in minority neighborhoods to "a greater extent than in predominately white communities." Accordingly, the court denied DEP's motion to dismiss as to the Title VI and Equal Protection claims. The court also found that plaintiffs adequately stated a claim of private nuisance against the cement plant. The court dismissed the claims under the Fair Housing Act, and for public nuisance. South Camden Citizens in Action v. New Jersey Department of Environmental Protection, Civ. Action No. 01-702 (D.N.J.), 2003 WL 1877856 (April 16, 2003).
EPA named 15 projects in the US and Puerto Rico as the 2003 Environmental Justice Revitalization Projects. The projects were selected for being collaborative efforts between the government and the community to address local environmental justice issues. To qualify, the projects must include at least two federal agencies and other, non-government stakeholders. Being selected as a project does not bring any federal funding.
Recipients include several tribal projects, including the first tribally-owned wind-power site; brownfields restoration; environmental justice training; and a creek restoration plan. The projects were chosen by the Federal Interagency Working Group on Environmental Justice (IWG), which is comprised of representatives from 11 federal agencies and several White House offices.
The Revitalization Projects are: Chelsea Creek Restoration Project, Chelsea and East Boston, Mass.; Revitalization of the Magic Marker Brownfields Site, Trenton, N.J.; Empowering Communities to Secure Drinking Water in Rural Puerto Rico; Utilizing Compliance Assistance to Achieve Community Revitalization in Park Heights, Baltimore, Md.; Vision 2020: For the Children of Anniston-Children's Health Environmental Justice Project, Anniston, Ala.; Glades Area Environmental Justice Training Collaborative, Belle Glade, Fla.; The Sustainable Redevelopment and Revitalization of Princeville, N.C.; The Arcade-Westside Area Revitalization Project: A Community-Based Collaboration, Rock Hill, S.C.; Waukegan Cleanup and Revitalization Plan, Waukegan, Ill.; Project ReGeneration: Building Partnerships for Livability and Sustainability in the Greater Kelly Area, San Antonio, Texas; Development of a Cheyenne River Sioux Tribal Park: A Tribal Lands Conservation Partnership, Eagle Butte, S.D.; Northeast Denver Environmental Initiative, Denver, Colo.; Tribal Wind Power - A Viable Strategy for Community Revitalization and Capacity, Rosebud Indian Reservation, S.D.; Effective Solid Waste Management for the Native Village of Selawik, Alaska; and Enhancing Tribal Consultation to Protect Cultural and Historic Resources, Colo., La., and N.M. More information is available at the EPA website atwww.epa.gov/compliance/environmentaljustice/interagency/index.html . EPA Press Release (May 2, 2003).
The New York State Department of Environmental Conservation (DEC) issued a policy to include environmental justice concerns in the agency's permitting process. The March 19, 2003 policy also provides for the application of environmental justice concerns to DEC's enforcement, environmental quality and public participation responsibilities. DEC will determine whether a project affects a minority or low-income community by using census block data and a geographic information system. Enhanced public participation is required for projects in "environmental justice areas" and alternative dispute resolution will be available to those communities. The policy also provides that the state's environmental review process will be available in Spanish within three months.www.dec.state.ny.us/website/ej/ejprogram.html
A plaintiff group consisting of non-profit organizations, a merchant's association and a neighborhood association brought suit against the Department of Housing and Urban Development (HUD) in part for HUD's alleged failure to consider environmental justice factors in its EA. At issue is a project to revitalize a 1500-unit housing project in New Orleans. After HUD's initial review of the project the retail portion of the scheme was changed by substituting a Wal-Mart Superstore. Plaintiff claims HUD's EA was defective as it failed to consider environmental impacts to the historic area, traffic and environmental justice elements. Because HUD reopened its reviews under NEPA and NHPA the court ruled that plaintiff's claims would interfere with the ongoing agency process and declared the matter unripe for review. Coliseum Square Association, Inc. v. Department of Housing and Urban Development, No. Civ.A. 02-2207 (E.D. La. Feb. 27, 2003).
An article in the Environmental Crimes and Enforcement Committee Newsletter of the American Bar Association's Section of Environment, Energy and Resources points to the increased trend of environmental justice issues being raised during sentencing. "Environmental Justice in Criminal Sentencing" links the "vulnerable victim" criteria for sentence enhancement with several cases involving environmental issues, such as asbestos (U.S. v. Ho, No. 01-20460 (5th Cir. 2002); U.S. v. Bragg, 207 F.3d 394 (7th Cir. 2000)). The article also notes that testimony regarding a disadvantaged community at the trial stage referred to the environmental justice aspects of the crime. U.S. v. Jackson, and U.S. v. Peters, No. 1:98CR00129-002 (E.D. Tex. Aug. 14, 2002), on appeal No. 02-41176 (5th Cir. 2002). Tracy D. Hester, Environmental Justice in Criminal Sentencing, Env. Crimes & Enforcement Committee Newsletter, Vol. 4, No. 2, Jan. 2003.
The Executive Director of the Transportation Research Board (TRB) seeks more resources for research into effects of surface transportation on environmental justice. Robert E. Skinner made the statement before the Congressional Subcommittee on Highways and Transit. He referred to environmental justice as one of a "growing list of important topics at the nexus of highways and the environment." Director Skinner proposed a new program to involve highway and environmental groups. The TRB is part of the National Academies. Congressional Testimony by Robert E. Skinner, Jr., 2003 WL 1171580 (March 4, 2003).
A development ¼-mile from a Superfund site has a population that is 99 percent black and a high rate of cancer. Plaintiffs from the development claimed the cleanup plan for the Superfund site was inadequate thereby continuing racial segregation in Florida by exposing minorities to hazardous substances. The district court dismissed the claim for lack of subject matter jurisdiction. The Eleventh Circuit held plaintiffs' complaint was a challenge to the cleanup plan, an action barred by section 113(h) of CERCLA. A suit challenges a cleanup plan under section 113(h) if it interferes with the implementation of the remediation. Asserting a plan is inadequate because it did not include a possible remedy, such as relocation, is an action that challenges the plan, according to the Eleventh Circuit. The court also rejected plaintiffs' claim that their suit was a constitutional challenge. The Eleventh Circuit found that the clear language of section 113(h) prohibits any challenges - constitutional as well as statutory - to unfinished remedial action. Broward Gardens Tenants Association v. U.S. Environmental Protection Agency, 311 F.3d 1066 (11th Cir. 2002).
The Fourth Circuit found a small community in central North Carolina bore a "disproportionate share" of the county's landfills and reinstated an environmental justice action against the county and the state. Plaintiffs challenged the construction of a landfill in Holly Springs, North Carolina, arguing that the actions of the government defendants violated their civil rights under federal law and violated public policy under state law. Holly Springs has the largest percentage of blacks of any municipality in the county and has four landfills in and around the town. Plaintiffs sought to enjoin construction of a new 471-acre landfill in the area. Plaintiffs argued that the county and the state Department of Environment and Natural Resources (DENR) have a pattern of intentional discrimination by siting or permitting undesirable landfills near minority communities, violating their civil rights and the equal protection clause.
The Fourth Circuit held the district court dismissed the equal protection and civil rights claims based on an incorrect calculation of the statute of limitations. The Fourth Circuit held the statute began only after DENR approved the permit because the statute could not begin to run if the matter was still dependent on an agency action or ruling. The Fourth Circuit upheld the dismissal of the claim under state law. And the court overturned granting DENR defendants sovereign immunity under the 11th amendment, holding plaintiffs alleged the necessary ongoing violations of federal law against those defendants. Franks v. Ross, No. 01-2354 (4th Cir. Dec. 4, 2002).
The Federal Energy Regulatory Commission (FERC) issued a certificate licensing construction of a natural gas pipeline through parts of Tennessee, Virginia and North Carolina. The commission required dozens of mitigation measures to environmental impacts along the 87-mile route but rebutted an EPA comment that the commission did not adequately address the impact of the project on pockets of minority or low-income populations. Construction of the pipeline will occur within 50 feet of 282 residences. The commission said it was not bound by Executive Order (EO) 12898 requiring a review of the impact of projects on disadvantaged communities. The commission did look at the route to see that it did not disproportionally impact minority counties. FERC rejected EPA's comment that the commission look at communities, rather than counties, to determine minority or low-income impacts. FERC pointed to the FEIS explanation that the pipeline would cross mostly rural areas. East Tennessee Natural Gas Company, Docket Nos. CP01-415-000, CP01-415-001, CP01-415-002, CP01-415-003, CP01-375-000, Federal Energy Regulatory Commission, 101 F.E.R.C. P61, 188, 2002 FERC LEXIS 2376 (Nov. 20, 2002).
EPA's top enforcement official said the agency is looking at ways to incorporate environmental justice more into its case selection process. John Peter "J.P." Suarez took the position of EPA Assistant Administrator for Enforcement in July 2002 and stated he is making clearing the backlog of environmental justice complaints a priority. He said that the task force formed in 2001 to address 66 environmental bias cases will resolve all but nine by the end of 2003. Suarez also said that the agency's supplemental environmental projects (SEP) policy could benefit low-income, minority and tribal communities. SEP are environmentally beneficial projects that companies agree to as part of a settlement agreement with EPA or the Department of Justice. Daily Rep. for Exec. (BNA), No 12 (Jan. 17, 2003) p. S-38.
Massachusetts Policy Makes Environmental Justice "An Integral Consideration" in Implementation of Environmental Programs
The Massachusetts Executive Office of Environmental Affairs has adopted a new environmental justice policy that seeks to clean up the neighborhoods of low-income, foreign born, non-English-speaking, and minority residents in furtherance of its Community Preservation Initiative aimed at preserving and protecting the commonwealth's natural resources. Guidance from the Massachusetts Environmental Justice Advisory Committee, a committee of stakeholders, drew the state's attention to the predominance of hazardous waste sites in minority and low-income communities. The new policy allocates funds for cleaning up hazardous waste sites in low-income areas, heightens scrutiny of industrial facilities and air emissions in targeted areas, enhances opportunities for community residents to participate in environmental decision-making, provides for expedition of permits for companies that plan to develop brownfields, and encourages open spaces in targeted areas. The final policy is available at http://www.state.ma.us/envir/docenvironmentaljusticepolicy.pdf. Additional information is available from LeAndrea Dames, Director of Environmental Justice/Brownfields Program by phone at (617) 626-1000, or by e-mail firstname.lastname@example.org.
NRC Reverses Licensing Board's Denial of Summary Disposition Motion on Intervenor's Environmental Justice Contention on Nuclear Waste Facility
The Nuclear Regulatory Commission (NRC) has reversed its Atomic Safety and Licensing Board's (the Board) denial of Private Fuel Storage's (PFS) summary disposition motion with respect to the environmental justice contentions of intervenor Ohngo Gaudadeh Devia (OGD), a group of opponents of PFS's proposed spent fuel storage installation. The facility would be built on land belonging to the Skull Valley Band of Goshute Indians (the Band). OGD intervened in the licensing proceedings, claiming that the license application failed to address the issue of whether individual OGD members, including Band members, might suffer environmental impacts of the proposed facility without enjoying its financial benefits. The Board scheduled a hearing on the issue of whether the Band had previously misappropriated funds paid to it on the PFS lease, thereby raising the concern that the proposed facility's adverse environmental consequences might not be offset by economic benefits. NRC reversed and granted summary judgment because OGD's claims were based on disparate economic benefits rather than environmental impact; because OGD is merely a subgroup of the pertinent environmental justice population; because part of OGD's claim was raised for the first time years after its original contention was filed; and because addressing OGD's claim would require inquiry into the financial affairs of a sovereign tribe, an inquiry prevented by federal Indian law. In the Matter of Private Fuel Storage, LLC, Docket No. 72-22-ISFSI, Nuclear Regulatory Commission, 2002 NRC LEXIS 171 (Oct. 1, 2002).
The New York State Department of Environmental Conservation (DEC) has issued a draft policy for incorporating environmental justice concerns into its permit process. The draft policy modifies the DEC environmental permit process by providing that DEC will: identify minority or low-income communities; provide information on environmental justice to applicants with proposed projects in those communities; enhance public participation requirements for proposed projects in those communities; establish requirements for projects in minority or low-income communities with the potential for at least one significant, adverse environmental impact; and provide alternative dispute resolution opportunities to allow communities and project sponsors to resolve issues of concern to the community. The draft policy is available from DEC's web site at www.dec.state.ny.us/website/ej/index.html. Additional information is available from Monica L. Abreu Conley, DEC's Environmental Justice Coordinator, by phone at (518) 402-8556 or toll free (866) 229-0497, or by e-mail at email@example.com.
The U.S. Supreme Court has denied a petition for a writ of certiorari to review a Third Circuit decision in a challenge to the New Jersey Department of Environmental Protection's issuance of a permit for a cement plant in a minority neighborhood. In South Camden Citizens in Action v. New Jersey Department of Environmental Protection (274 F.3d 771), the Third Circuit ruled that a citizen group could not enforce EPA's disparate impact regulations issued under Title VI of the Civil Rights Act in an action filed under 42 U.S.C. § 1983. The Supreme Court declined to review that decision. South Camden Citizens in Action v. New Jersey Department of Environmental Protection, 122 S.Ct. 2621, 153 L.Ed.2d 804 (2002).
The New Jersey Department of Environmental Protection (DEP) plans to withdraw regulations that it proposed to implement its Environmental Equity Policy. The policy (Administrative Order 2000-01) provides general guidelines for DEP to account for environmental equity in its permitting and decision-making procedures. The proposed rules would have codified an environmental equity process that provides for expanded community participation in permitting decisions. The outreach process would have been mandatory for certain new, modified, and renewal permit applicants. The proposed regulations also included a process through which a community could request that an applicant conduct outreach about a proposed project. However, DEP Commissioner Bradley Campbell has decided to withdraw the proposed rules. While the proposed rules had not been officially withdrawn as of mid-June 2002, DEP plans to publish a notice of withdrawal in the New Jersey Register. DEP plans to work with stakeholders to develop an alternative proposal. More information on New Jersey's environmental equity program is available from DEP's web site atwww.state.nj.us/dep/equity.
The EPA Office of Inspector General (OIG) will conduct an evaluation of the potential for emissions trading to cause disparate impacts on minority and low-income communities. EPA administers emissions trading programs to reduce air pollution, including the acid rain trading program to reduce sulfur dioxide emissions. EPA is seeking to expand the use of emissions trading under President Bush's Clear Skies Initiative. Some environmental groups have argued that purchasers of emission credits are likely to be concentrated in poor, urban areas, leading to the creation of localized toxic hot spots. In a memo dated May 13, 2002, the OIG announced that it would conduct "an evaluation of impacts of emission trading in potential environmental justice communities." The evaluation was requested by the watchdog organization Public Employees for Environmental Responsibility (PEER). EPA's memo is available from PEER's web site atwww.peer.org/EPA/Environmental_Justice_memo.html. PEER Press Release (May 23, 2002).
Federal Court Denies Class Certification in Action Arising From Diesel Fuel Spill in Mississippi River That Affected Drinking Water of Minority Community
A federal district court in Louisiana has refused a motion for class certification in an action arising from the spill of diesel oil from a barge in the Mississippi River. The spill occurred near the water system that supplies east bank residents of St. Charles Parish, Louisiana. Plaintiffs alleged that diesel oil from the spill entered the St. Charles Parish waterworks plant, that drinking water was tainted with the oil, that the water was distributed to residents' homes, and that some residents suffered injuries as a result. The court found that the named class representatives would not adequately protect the interests of the class. According to the court, none of the class representatives seemed to have his or her hands on the pulse of the case. While two of the representatives were involved in environmental justice issues, both no longer resided in the community. The court expressed concern that one of the representative's professed agenda regarding environmental justice (i.e., teaching corporate perpetrators of environmental injustice a lesson) could conflict with the interests of class members, who simply sought compensation for their alleged physical and emotional injuries. The court also found that liability could not be determined on a class-wide basis in this case, because proximate cause would be different for every person in the proposed class based on each person's likely variances of exposure to contaminated drinking water, pre-existing medical conditions, and individual sensitivities. In re American Commercial Lines, LLC, Nos. Civ. A 00-252, 00-2967, 00-3147, 2002 WL 1066743 (E.D. La. May 28, 2002).
Statute of Limitations Barred Toxic Tort and Environmental Justice Claims Against Drum Recycling Plant
A federal district court has held that the statute of limitations barred toxic tort and environmental justice claims brought by residents who lived near a plant that cleaned and recycled metal barrels for petrochemical companies. Plaintiffs alleged that the plant, which closed in 1990, contaminated the air, soil, and groundwater with hazardous substances. The court held that plaintiffs' state law tort claims were barred by the applicable statutes of limitations. The court also held that plaintiffs' claims under Title VI of the Civil Rights Act of 1964 and Title VII of the Fair Housing Act of 1968 were barred the applicable statutes of limitations. Noting that there is no federal statute of limitations for Title VI claims, the court applied the two-year Texas statute of limitations for personal injury actions. The court held that plaintiffs' state law and Title VI causes of action accrued in 1990 when the plant closed. The court rejected plaintiffs' arguments that their causes of action accrued as late as 1995 or 1996 under the discovery rule under Texas law or the federally required commencement date in the Comprehensive Environmental Response, Compensation, and Liability Act. The court also held that defendants' alleged attempts to fraudulently conceal environmental problems around the facility did not toll the statute of limitations, because plaintiffs knew or should have known that their causes of action accrued years before any alleged misrepresentation occurred. Achee v. Port Drum Co., 197 F.Supp.2d 723 (E.D. Tex. 2002).
Federal District Court Allows Residents of Minority Neighborhood in Dallas to Proceed to Trial on Claims That City Provides Services in Discriminatory Manner
A federal district court has held that residents of a predominantly minority and low-income neighborhood in Dallas, Texas are entitled to a trial of their causes of action alleging that the City provides municipal services in a racially and ethnically discriminatory manner in violation of the Equal Protection Clause. Plaintiffs' suit under 42 U.S.C. §§ 1981 and 1983 alleges that the City intentionally discriminates against residents of the Cadillac Heights neighborhood with respect to flood protection, zoning, protection from industrial nuisances, landfill practices, streets and drainage, and federal funding for housing and community development. The court found that plaintiffs raised a genuine issue of material fact concerning whether the City intentionally discriminated against plaintiffs by failing to extend a levee system designed for flood protection to their neighborhood. Plaintiffs raised genuine issues of material fact concerning their claims that the City intentionally discriminated by zoning of portions of Cadillac Heights and surrounding areas as heavy industrial, that the City failed to protect them from industrial nuisances, and that it failed to close and clean up illegal landfills in their neighborhood. Plaintiffs also raised genuine issues of material fact to support their claim that the City intentionally discriminated against them in its provision of street maintenance and drainage. The court held that plaintiffs are entitled to pursue their claims for diminution of property values, but not their claims for emotional damages or punitive damages. Miller v. City of Dallas, No. 3:98-CV-2955-D, 2002 U.S. Dist. LEXIS 2341 (N.D. Tex. Feb. 14, 2002).
EPA Administrator Rejects Environmental Justice Challenge to Clean Air Act Operationg Permit Issued by New York for Recycling and Ethanol Production Facility
EPA Administrator Whitman has rejected a claim that EPA failed to analyze the environmental justice impacts of a Clean Air Act Title V operating permit issued by the New York State Department of Environmental Conservation (DEC) for construction of the Orange Recycling and Ethanol Production Facility in Middletown, New York. A number of parties filed petitions requesting that EPA object to issuance of the permit on various grounds, including that EPA failed to evaluate the environmental disparate impacts on minority and low-income communities under Executive Order 12898. The petitioners asserted that the proposed plant site is in the vicinity of a day care center, nursery, retirement home, senior citizen apartments, three public schools, and three low-income housing projects. Administrator Whitman noted that environmental justice issues can be raised in a variety of actions under the Clean Air Act, such as when EPA or a delegated state issues a Prevention of Significant Deterioration or New Source Review permit. Unlike those permits, however, Title V generally does not impose substantive emission control requirements, but rather requires that all underlying applicable requirements be included in the operating permit. In this case, Administrator Whitman rejected the petition because petitioners did not show that the Title V permit failed to properly identify and comply with the requirements of the Act, the approved state implementation plan, or the requirements of Title V itself. Further, the environmental justice issues were not raised to DEC during the comment period on the revised permit, and cannot be raised for the first time in a petition to the EPA Administrator. Administrator Whitman noted that petitioners may file an administrative complaint under Title VI of the Civil Rights Act and EPA's Title VI regulations if they believe that the state discriminated against them by issuing the permit. In re Orange Recycling and Ethanol Production Facility, Pencor-Masada, LLC, Petition No. II-2001-05 (EPA Administrator, Apr. 8, 2002). The decision is available from EPA's Title V Petition Database athttp://www.epa.gov/region07/programs/artd/air/title5/petitiondb
Court Rejects Environmental Justice Challenge to New York DEC's PSD Permit Proceeding for Power Plant
Plaintiffs, members of a Native American community, sought to enjoin defendant, the New York State Department of Environmental Conservation (DEC) from proceeding with its consideration of a prevention of significant deterioration (PSD) permit application by defendant Ramapo Energy for construction of a gas-fired, 110-megawatt electric generating facility in the Town of Ramapo in Rockland County. EPA has delegated authority to DEC to issue PSD permits, but DEC must follow federal regulations when processing a PSD permit application. DEC, as instructed by EPA Region 2, informed Ramapo Energy that it was required to prepare an environmental justice analysis (EJA) consistent with EPA guidance. Ramapo Energy submitted an EJA to DEC. According to DEC, it does not have the legal authority or expertise to evaluate the substance of the EJA, a responsibility that remains with EPA. The U.S. District Court for the Southern District of New York held that certain claims brought by plaintiffs were not ripe for review because DEC had not issued a final PSD permit. If DEC does issue the permit, plaintiffs can appeal to the EPA Environmental Appeals Board and then seek judicial review. The court held that plaintiffs failed to state a claim for their cause of action under 42 U.S.C. § 1983 seeking to enjoin DEC from considering the permit application until it adopts regulations on the content and preparation of an EJA. Plaintiffs alleged in this count that DEC violated their rights under Title VI of the Civil Rights Act of 1964 and EPA's implementing regulations by reviewing the EJA without promulgated standards. The court held that no federal statute or regulation required DEC to issue standards for reviewing EJAs. The court held that EPA's Title VI regulations did not create a right enforceable through § 1983 where the alleged right did not appear in the statute. This conclusion is supported by the Third Circuit's recent decision in South Camden Citizens in Action v. New Jersey Department of Environmental Protection, 274 F.3d 771 (3d Cir. 2001). Perry v. Crotty, No. 01 Civ. 5068 (CLB) (MDF) (S.D.N.Y. Jan. 8, 2002).
District Court Improperly Dismissed Disparate Treatment and Retaliation Claims Against City That Denied Special Use Permits for Halfway Houses for Recovering Alcoholics
Plaintiff, a non-profit organization that provides housing and other assistance to low income people in Orange County, New York, challenged the decision by defendant City of Middletown to deny plaintiff a special use permit for two halfway houses for recovering alcoholics. The United States intervened as a plaintiff. Plaintiffs alleged that the City violated the Fair Housing Act (FHA), the Americans with Disabilities Act (ADA), and the Rehabilitation Act. The Second Circuit held that the district court erred in granting summary judgment to the City on plaintiffs' claims of disparate treatment and retaliation. The Second Circuit affirmed the district court's grant of summary judgment for defendants on the disparate impact and failure to make reasonable accommodation claims. The court held that plaintiffs' clients were "disabled" within the meaning of the three statutes. The court found that alcoholism was an impairment, that this impairment affected a major life activity, and that this effect was substantial. The court held that plaintiffs raised a triable issue of fact for their disparate treatment claims under the three statutes. A reasonable juror could have found that the City's proffered reason for denying the permit was a pretext for discrimination. City officials and Planning Board members made numerous statements from which a reasonable juror could infer that they denied the permit because of the identify of plaintiffs' clients. Although the City maintained that they denied the permit to preserve the land for industrial development, certain evidence casts doubt on the City's justification. For example, the City granted a permit to plaintiff for construction of a child-care facility on adjacent property. The court held that the district court properly dismissed plaintiffs' disparate impact claims under the FHA and ADA, as well as plaintiffs' reasonable accommodation claims under all three statutes. The court held that plaintiffs stated a claim for their allegation that the City retaliated against the non-profit organization for complaining about the permit denial by withdrawing funds for a different project. Regional Economic Community Action Program, Inc. v. City of Middletown, 294 F.3d 35 (2d Cir. 2002), cert. denied 123 S.Ct. 74, 154 L.Ed.2d 16 (2002).
The New Jersey Department of Environmental Protection (DEP) has proposed regulations to implement its Environmental Equity Policy. The policy (Administrative Order 2000-01) defines environmental equity as "the fair and equitable treatment in environmental decision-making of the citizens of all New Jersey communities regardless of race, color, income or national origin." The policy provides general guidelines for DEP to account for environmental equity in its permitting and decision-making procedures. DEP has proposed to issue regulations to implement the policy. The proposed rules would codify an environmental equity process that includes expanded community participation to be conducted among permit applicants, local communities, and DEP. The outreach process will be mandatory for certain new, modified, and renewal permit applicants. The proposed regulations also include a process through which a community can request that an applicant conduct outreach about a proposed project. The policy and proposed rules are available from DEP's web site atwww.state.nj.us/dep/equity.
The Federal Energy Regulatory Commission (FERC) has determined that its approval of a water withdrawal from a dam project on the Oconee River in Georgia would not have a disproportionate impact on the minority and low-income community of Dublin, Georgia. FERC's order authorized Georgia Power Company to allow a developer to increase its water withdrawal from Lake Oconee to provide water to its real estate development for drinking, artificial streams, and golf courses. In ruling on a request to reconsider that order, FERC upheld its approval of the water withdrawal, but ordered Georgia Power to prepare a drought contingency plan to address the project's impacts on downstream resources and water uses under drought conditions. Although not subject to Executive Order 12898, FERC nevertheless reviewed the project's environmental justice impacts. FERC found that the additional withdrawal would not significantly increase the number of days on which Dublin would have to operate under water restrictions. FERC also found no reason to expect that the withdrawal's effects on Dublin would be any more significant than the effects on other downstream communities that might have different economic or racial characteristics. In any event, FERC concluded that the drought contingency plan will ensure that any impacts on Dublin and other downstream communities are addressed. In re Georgia Power Co., Project No. 2413-046, 2002 FERC LEXIS (Feb. 1, 2002).
An advisory group to the New York State Department of Environmental Conservation (DEC) issued a report in January 2002 that recommends how DEC can incorporate environmental justice principles into its permit review, State Environmental Quality Review Act (SEQRA) process, and certain components of DEC's enforcement, public participation, and grants programs. The report and public comments on the report will be the basis for DEC's environmental justice policy. Recommendations for the permit process include: educating DEC staff and permit applicants on environmental justice issues; making information more widely available to the public; enhanced public notice and participation procedures; and encouraging the use of alternative dispute resolution to address conflicts in the permit process. Recommendations for the SEQRA process include: conducting a preliminary screening in DEC's SEQRA review to identify minority and low-income communities that may be affected by the proposed action; using a full environmental assessment form for unlisted actions in these communities; and providing an extended public comment period and public hearing for proposed projects that would have a significant adverse impact on a minority or low-income community. Copies of the report are available at www.dec.state.ny.us/website/ej/index.html.
The Federal Energy Regulatory Commission (FERC) has rejected environmental justice and other challenges raised by the City of Mount Vernon, New York to the construction of an interstate natural gas pipeline in New York State. The pipeline will run from Lake Erie to a terminus in Mount Vernon and will supply natural gas to the New York City area. Although Executive Order 12898 is not binding on FERC, the Commission nonetheless examined the environmental justice impacts of the pipeline. FERC concluded that the pipeline will not have a disproportionately high health or environmental effects on minority or low-income populations. FERC noted that the pipeline will affect populations from a variety of ethnic and economic backgrounds. About 1.9 miles of the pipeline will run through Mount Vernon, which is about 72 percent minority and is the only minority community along the 424-mile project. FERC determined that environmental impacts were generally temporary, alternate routing was not feasible, and adequate mitigation measures were established. FERC also found that approval of the pipeline would not violate Title VI of the Civil Rights Act of 1964 or the Equal Protection Clause. FERC ordered the company to negotiate with Mount Vernon officials and citizens on a route through the city to a connection point with a Consolidated Edison high pressure line. In re Millennium Pipeline Co., L.P., No. CP98-151-000, 2001 FERC LEXIS 3017 (Dec. 19, 2001).
NRC Rejects Claim That It Erred by Modifying Its Environmental Justice Analysis for a South Carolina Facility
The Nuclear Regulatory Commission's (NRC's) Atomic Safety and Licensing Board has rejected a claim by an environmental group that the Commission erred when it modified its NEPA environmental justice analysis for the Savannah River Mixed Oxide Fuel Fabrication Facility in South Carolina. The Commission changed the environmental justice analysis to correct a factual error and the modification conformed the analysis to NRC's environmental justice policy. In re Duke Cogema Stone & Webster, No. 070-03098-ML, 2001 NRC LEXIS 243 (Dec. 6, 2001).
Surface Transportation Board Rules That EIS Not Required for Abandonment of Railroad Line That Runs Through Minority Community
The Surface Transportation Board has ruled that an environmental impact statement under NEPA is not required for its determination of whether to grant Salt Lake City's petition for abandonment of a railroad line. The track is the subject of a dispute between Union Pacific Railroad, which seeks to return the line to service, and the City and local groups, which claim that reactivation would adversely affect the City's minority community through which the line traverses. The Board noted that abandonment of the line would allow the City to pursue alternative uses of the right-of-way, such as a rails-to-trails park or residential use. In re Salt Lake City, No. AB-33 (Sub-No. 183), 2001 STB LEXIS 947 (Dec. 14, 2001).
Third Circuit Rules That Plaintiffs in Environmental Justice Action Cannot Enforce EPA's Disparate Impact Title VI Regulations Under 42 U.S.C. § 1983
The Third Circuit has ruled that plaintiffs cannot use 42 U.S.C. § 1983 to enforce EPA's disparate impact regulations issued under Title VI of the Civil Rights Act of 1964. Plaintiffs, a community group and local residents, challenged an air permit issued by the New Jersey Department of Environmental Protection for a cement processing plant in a minority neighborhood in Camden. Plaintiffs alleged that the facility would have an adverse racial impact on them in violation of EPA's Title VI regulations. During the course of the litigation, the U.S. Supreme Court ruled in Alexander v. Sandoval that there is no private right of action under Title VI to enforce disparate impact regulations issued under Title VI. The district court subsequently ruled that Sandoval did not preclude plaintiffs from pursuing their claims under 42 U.S.C. § 1983 and granted plaintiffs' request to preliminarily enjoin operation of the facility. However, the Third Circuit has reversed the district court's decision and ruled that plaintiffs did not have an enforceable right through § 1983 under EPA's disparate impact regulations. The Third Circuit ruled that a regulation cannot create an interest that is enforceable under § 1983 unless the interest is already implicit in the statute authorizing the regulation. Because Title VI prohibits only intentional discrimination, plaintiffs could not use § 1983 to enforce EPA's regulations, which prohibit discrimination that has a disparate impact on minority and low-income communities. The court found that Congress did not intend by adoption of Title VI to create a federal right to be free from disparate impact discrimination, and that while EPA's regulations may be valid, they do not create rights enforceable under § 1983. South Camden Citizens in Action v. New Jersey Department of Environmental Protection, 274 F.3d 771 (3d Cir. 2001), cert. denied 122 S.Ct. 2621, 153 L.Ed.2d 804 (2002).
The California Air Resources Board (CARB) has adopted a plan to ensure that its programs, policies, and regulations do not adversely impact low-income and minority communities. The plan, called Policies and Actions for Environmental Justice, grew out of a two-year project by CARB staff, who worked with the state's 35 local air pollution control districts, environmental and community groups, and industry. The seven-point initiative calls on CARB to: 1) integrate environmental justice into all of its programs, policies, and regulations; 2) strengthen its outreach and education efforts in all communities, especially low-income and minority communities; 3) work with local air districts to meet health-based air quality standards and reduce health risks from toxic air pollutants in all communities, especially low-income and minority communities, through the adoption of control measures and the promotion of pollution prevention programs; 4) work with the local air districts to strengthen enforcement activities at the community level; 5) assess, consider, and reduce cumulative emissions, exposures, and health risks when developing and implementing programs; 6) work with local land-use agencies, transportation agencies, and air districts to develop ways to assess, consider, and reduce cumulative emissions, exposures, and health risks from air pollution through general plans, permitting, and other local actions; and 7) support research and data collection needed to reduce cumulative emissions, exposure, and health risks in all communities, especially low-income and minority communities. For more information, see CARB's web site at www.arb.ca.gov.
In October 2001, California Governor Gray Davis signed four bills to promote environmental justice in California. One bill (S.B. 32) authorizes local governments to investigate and clean up small parcels of contaminated property. It requires the California EPA to conduct scientific peer review of screening values, which are advisory numbers that estimate what cleanup levels are required for developing a property. It also requires development of a guidance document to assist communities, developers, and local governments with procedures used for cleaning up hazardous waste. A second bill (A.B. 1390) extends until January 1, 2007 the policy that directs air districts to target at least 50 percent of the $48 million appropriated for three diesel emission reduction programs to environmental justice communities. The bill uses air quality standards instead of socioeconomic standards to focus the funds. A third bill (A.B. 1553) requires the State Office of Planning and Research to adopt guidelines for local agencies when addressing environmental justice issues in their general plans. A fourth bill (S.B. 828) sets a deadline for development of a statewide, interagency environmental justice strategy.
EPA Region VII has issued draft interim guidelines for implementing EPA's environmental justice policy. The guidelines are intended for use by Region VII staff in enforcement, permitting, community outreach, and remedial actions. The guidelines are modeled on EPA's Draft Revised Investigations Guidance document, which EPA issued in June 2000 but has not finalized. The Region VII guidelines instruct staff to use environmental justice criteria, among other criteria, to set annual enforcement targets. The guidelines also suggest using environmental justice criteria during settlement negotiations with violators in the design of supplemental environmental projects. The Region VII Draft Interim Environmental Justice Policy is available at www.epa.gov/region07/specinit/ej.
State Court Rejects Environmental Justice Challenge to Air Permit for Polypropylene Plant in Louisiana
A Louisiana state appellate court has upheld a Clean Air Act Title V operating permit issued by the Louisiana Department of Environmental Quality (DEQ) for construction of a polypropylene plant in East Baton Rouge Parish. The Exxon plant will be adjacent to an existing Exxon facility. Polypropylene is a non-hazardous, food-grade plastic material used in the manufacture of many household products. Local environmental groups charged that DEQ failed to adequately consider the environmental justice impacts of the permit. The court found that the fact that the facility is next to the minority community of Alsen does not constitute environmental racism. The court noted that it was unfortunate that the original zoning placed this industrial complex next to the Alsen community. However, the court held that DEQ did not abuse its discretion in issuing the permit, because the facility is in an industrially zoned area adjacent to a state highway, railroad, and the Mississippi River. The court also noted that the new facility will emit less pollution than the previous plant at the site. North Baton Rouge Environmental Association v. Louisiana Department of Environmental Quality, 805 So.2d 255 (2001), cert. denied 813 So.2d 1086 (2002).
Court Refuses to Enjoin Opening of New School on Contaminated Site; Title VI Claim Available to Private Plaintiffs Via 1983 But Unlikely to Succeed on Merits
A federal district court has refused to issue a preliminary injunction to prevent the opening of a new elementary school on a former industrial site in a minority neighborhood in Detroit, Michigan. After contamination was discovered at the site, an environmental cleanup was conducted. The cleanup actions included installation of an engineered cap to prevent exposure to any remaining contaminants. Plaintiffs alleged that the plan to protect students from exposure to contaminants was insufficient and noted that there were significant problems with the remediation and control of contamination at the site. The court held that plaintiffs were not likely to succeed on the merits of their claim that the actions of the Detroit public school system created a disparate impact based on race or ethnicity in violation of the U.S. Department of Education's regulations implementing Title VI of the Civil Rights Act of 1964. While the court held that while there is a private right of action to enforce the Title VI regulations under 42 U.S.C. § 1983, plaintiffs failed to show a likelihood that they would succeed on the merits of their Title VI claim. The court found that plaintiffs failed to provide concrete evidence that allowing the school to open would likely subject the children to an unreasonable risk of exposure or that the assignment of students to the school would disproportionately affect Hispanic and African-American children.. Even if plaintiffs could show a disproportionate adverse impact, the court found that the school system offered a substantial legitimate justification for their decision: the former school's facilities were inadequate and there was no other place that would accommodate a new school of this size. Plaintiffs also failed to show irreparable harm, because a cleanup had been completed, the engineered cap was in place, and the school system agreed to adhere to a due care compliance plan and to increase monitoring. Lucero v. Detroit Public Schools, 160 F.Supp.2d 767 (E.D. Mich. 2001).
Court Allows Civil Rights Claims to Proceed Against Park Trustees for Ejecting School Children From Gramercy Park in New York City
Plaintiffs, the president of an arts group that is a lot owner in New York City's Gramercy Park and a group of school children, alleged that defendants, trustees of the Park, violated federal and state civil rights laws by ejecting a group of predominantly African-American and Hispanic high school students from the Park. The students were invited to the park by the president of the National Arts Club, but one of the Park's lifetime trustees ordered them to leave and called the police to eject them. Gramercy Park, a square in Manhattan surrounded by residential buildings, is owned in trust for the owners of the adjacent properties by a board of trustees, under the terms of a trust indenture created in 1831. A federal district court denied defendants' motion to dismiss the civil rights claims. However, the court dismissed plaintiffs' additional claim that the trust was invalid as a matter of New York property law. The court found that there were insufficient factual ties between the civil rights and trust claims to support supplemental or pendant federal jurisdiction over the trust claims.Bu v. Benenson, 181 F.Supp.2d 247 (S.D.N.Y. 2001).
EPA has launched a searchable database designed to give the public information on permitted facilities and their surrounding communities, including demographic information, health data, and the types of permits a facility has. The database, called the Environmental Justice Query Mapper, was developed by EPA's Office of Environmental Justice and Office of Environmental Information. The permitting information comes from several major media (air, water, solid, and hazardous waste) systems, integrated into single facility reports provided by the Integrated Data for Enforcement Analysis system. Demographic information is based on U.S. Census data. Data on the health of the surrounding community is provided by the Centers for Disease Control's National Center for Health Statistics. The database, called the Environmental Justice Query Mapper, is available athttp://es.epa.gov/oeca/main/ej/ejmapper.
EPA Administrator Whitman, in a memorandum to top agency officials, reaffirmed EPA's commitment to environmental justice and its integration into the Agency's programs, policies, and activities consistent with existing environmental laws and regulations. In the memo, Whitman said that EPA defines environmental justice as "the fair treatment of people of all races, cultures, and incomes with respect to the development, implementation, and enforcement of environmental laws and policies, and their meaningful involvement in the decisionmaking process of the government." The memo stated that integration of environmental justice into the programs, policies, and activities via Headquarters/Regional Office Memoranda of Agreements and Regional Office/State Performance Partnership Agreements is an EPA priority. Memorandum from Administrator Whitman, EPA's Commitment to Environmental Justice (Aug. 9, 2001).
Federal District Court Dismisses Challenge by Public Housing Residents to EPA Cleanup Plan for Nearby Superfund Site
A federal district court has dismissed a challenge filed by residents of two public housing projects in Ft. Lauderdale, Florida to EPA's cleanup plan for a nearby Superfund site. The housing projects are within one-quarter mile of the Wingate Road Superfund site, where Ft. Lauderdale operated a landfill and incinerator facility from 1951 to 1978. Plaintiffs alleged various constitutional violations, as well as violations of the Civil Rights Act of 1964 and the Fair Housing Act. Plaintiffs claimed that EPA, the Department of Housing and Urban Development, and the City knew that residents would be exposed to environmental hazards when the housing projects were constructed and that the defendants created a racially segregated system of low income housing. Plaintiffs also challenged a 1999 consent decree between EPA and 30 parties concerning EPA's $20 million plan to place a plastic cap over the site. Plaintiffs alleged that the plan would expose them to dioxins, arsenic, and other harmful substances. The court held that the suit was barred by the ban on preenforcement review in CERCLA ' 113(h). The court found that although plaintiffs alleged that defendants have perpetuated a system of de jure segregation, plaintiffs pointed to no practice other than the allegedly deficient cleanup plan. Broward Garden Tenants Association v. EPA, 157 F.Supp.2d 1329 (S.D. Fla. 2001).
EPA has established a task force to clear a backlog of civil rights complaints filed under Title VI of the Civil Rights Act. The task force leader is Gail Ginsberg, a regional counsel in EPA's Region V office in Chicago. EPA's Office of Civil Rights has been hampered by a lack of adequate staff and resources. The task force will bring additional staff to the process and free up the Office of Civil Rights to complete work on an EPA guidance document on investigation of Title VI complaints. EPA is restricted by Congress to working on complaints filed before October 1998. For more information on EPA's investigation of Title VI complaints, see EPA's web site.
Company Will Fund Environmental Justice Project Under Settlement of Clean Air Act Enforcement Action
The U.S. Justice Department and EPA have announced a settlement of a Clean Air Act enforcement action under which Air Liquide America Corporation will convert all its industrial refrigeration systems using ozone-depleting chlorofluorocarbons (CFCs) to systems using alternative, environmentally friendly refrigerants. The agreement covers refrigeration systems at 22 facilities in 18 states. The company will also fund an environmental justice supplemental project that will benefit a predominately minority community in Louisiana and pay a $4.5 million civil penalty. The environmental justice project calls for the company to dedicate an undeveloped parcel of land as open space in the industrialized area of Calcasieu Parish, Louisiana. EPA Enforcement and Compliance Update (June 26, 2001).
Third Circuit Lifts Injunction That Barred Operation of Cement Plant In Minority Community in Camden, New Jersey
The U.S. Court of Appeals for the Third Circuit has lifted an injunction that barred the operation of a cement plant in a minority neighborhood in Camden, New Jersey. The Third Circuit decision overturned a federal district court decision's to issue a preliminary injunction to halt operation of the plant. The district court held that the U.S. Supreme Court's Sandovaldecision did not preclude plaintiffs from pursuing their claims against the New Jersey Department of Environmental Protection for disparate impact discrimination, in violation of EPA's Title VI regulations, under 42 U.S.C. ' 1983. The Third Circuit implied that the cement company was likely to prevail on appeal and that the economic losses allegedly being suffered while the facility was closed exceeded the facility's health and safety risks. The court noted that the facility would be operating in compliance with its permits and only for the short period it takes to resolve the expedited appeal. The court also cited the potential loss of jobs in Camden if the injunction were not lifted. On June 18, 2001, plaintiffs filed a motion asking the Third Circuit to reconsider its decision to lift the injunction. Plaintiffs argued that the Third Circuit ignored its own prior decisions and failed to account for the district court's explicit findings that the risks posed by particulate emissions from the facility posed unique dangers to public health. Camden Citizens in Action v. New Jersey Department of Environmental Protection, No. 01-2224 (3d Cir. June 15, 2001).
A federal district court has dismissed a suit brought by a Chicago resident who alleged that various companies and government agencies violated environmental laws by polluting abandoned industrial sites in the Victory Heights West Pullman area. The court held that plaintiff's claims under the Comprehensive Environmental, Response, Compensation, and Liability Act (CERCLA) and the Resource Conservation and Recovery Act (RCRA) must be dismissed because he sought only monetary damages, which are not available in citizen suits under those statutes. The court held that it lacked subject matter jurisdiction over any claims that challenged the remedial actions being performed to clean up contamination at the industrial sites before completion of the remedial actions. Plaintiff's claim of environmental genocide must be dismissed because the federal genocide statute does not allow a private right of action. The court also held that to the extent that plaintiff's complaint sought relief for alleged environmental genocide or racism under other statutes, including 42 U.S.C. ' 1983, it failed to state a claim. Hassain v. Environmental Protection Agency, No 96 C 7873 2001 WL 630678 (N.D. Ill. May 29, 2001), aff'd 41 Fed. Appx. 888 (7th Cir. 2002).
Federal District Court Rules That Plaintiffs Can Proceed With Title VI Disparate Impact Claims Under 42 U.S.C. ' 1983; Issues Preliminary Injunction to Prevent Construction of Cement Plant in Minority Community in Camden, New Jersey
In the wake of the U.S. Supreme Court's Sandoval decision, a federal district court has ruled that disparate impact regulations issued under Title VI of the Civil Rights Act can be enforced under 42 U.S.C. ' 1983, even though they can no longer be enforced through a private right of action brought directly under ' 602 of Title VI.
In a previous decision, issued before the U.S. Supreme Court's ruling, the U.S. District Court for the District of New Jersey held that issuance of permits by the New Jersey Department of Environmental Protection (NJDEP) for construction of a cement plant in a minority community in Camden, New Jersey violated EPA's Title VI regulations. The court held that citizens are entitled to assert a private right of action under ' 602 of Title VI, a holding that was later nullified by the U.S. Supreme Court's decision. The district court went on to hold that even if a project complies with all environmental standards, there could still be a violation of Title VI if it has adverse disparate impacts. The court found that plaintiffs established a prima facie case of disparate impact in New Jersey based on evidence of "a strong, highly statistically significant, and disturbing pattern of association between the racial and ethnic composition of communities, the number of EPA regulated facilities, and the number of facilities with Air Permits." The court also found that NJDEP's permitting policies, while facially neutral, result in an adverse disparate impact on the basis of race, color, or national origin. South Camden Citizens in Action v. New Jersey Department of Environmental Protection, 145 F.Supp.2d 446 (D.N.J. 2001).
In a decision issued after the U.S. Supreme Court's Sandoval ruling, the federal district court ruled that Sandoval does not preclude plaintiffs from pursuing their claim for disparate impact discrimination, in violation of EPA's Title VI regulations, under 42 U.S.C. ' 1983. The court held that plaintiffs were entitled to preliminary injunctive relief based on this claim. The court found that Sandoval was limited to the holding that ' 602 of Title VI itself does not create an implied private right of action to enforce agency Title VI regulations that prohibit disparate impact discrimination. The court went on to hold that plaintiffs may in fact pursue a claim under ' 1983 for disparate mpact discrimination in violation of EPA's Title VI regulations. The court found that plaintiffs demonstrated that the EPA regulations gave rise to a federal right enforceable under ' 1983. NJDEP and the project applicant failed to show that the remedial scheme envisioned by Title VI's implementing regulations is so comprehensive as to foreclose enforcement of that right under ' 1983. South Camden Citizens in Action v. New Jersey Department of Environmental Protection, 145 F.Supp.2d 505 (D.N.J. 2001).
New York Siting Board Refuses to Include Environmental Justice in List of Issues for Evidentiary Hearing on Application for New Generating Units at Manhattan Power Plant
Consolidated Edison (Con Ed) applied to install new generating units at its East River Generating Station in Manhattan. Hearing examiners for the New York State Board on Electric Generation Siting and the Environment issued a ruling to identify issues to be considered at an evidentiary hearing concerning New York State Department of Environmental Conservation (DEC) permits and the New York law governing siting of electrical generating facilities (Public Service Law Article X). The hearing examiners refused to include environmental justice on the list of issues to be considered with respect to the DEC air permit. Project opponents argued that the project was subject to federal Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations) because the project required a Prevention of Significant Deterioration (PSD) permit under the Clean Air Act. They also argued that Con Ed's environmental justice analysis, prepared at EPA's suggestion, was inadequate because it did not review the proper community of concern and did not adequately analyze alternative proposals. The hearing examiners found that, under EPA regulations, states may not subject PSD permits to adjudicatory hearings. They advised project opponents to follow the applicable federal procedures for challenging PSD permits. A DEC regulation requires DEC to determine that the benefits of a proposed facility significantly outweigh its environmental and social costs before issuing a PSD permit. The hearing examiners found that this regulation did not require an environmental justice analysis, but determined that project opponents raised an issue that could be considered at the evidentiary hearing about whether Con Ed conducted an adequate analysis under this state regulation. In re Application of Consolidated Edison Company of New York, Inc., Case No. 99-F-1314 (N.Y. State Board on Electric Generation Siting and the Environment, Mar. 15, 2001).
Residents Charged With Criminal Trespass and Obstruction for Trying to Prevent New York City From Bulldozing Community Garden Not Entitled to Raise Justification Defense
Plaintiff New York State charged defendants, local residents, with criminal trespass and obstruction of governmental administration for trying to prevent New York City from bulldozing a community garden. This criminal proceeding is one part of a major environmental justice controversy. Defendants were arrested after attaching themselves to various fixtures in Esperanza Garden, a lower east side community garden on City-owned property. The court granted the State's motion to preclude defendants from raising the defense of justification. Although defendants claimed that the impending destruction of the garden was imminent, seven hours passed between the time they were aware of the City's intentions and the onset of the bulldozers. Defendants offered no explanation for why they did not seek alternative legal remedies during that time and failed to establish that the gravity of the harm they sought to avoid could justify their illegal activities. The court noted the City's conduct would be troubling if it leveled the garden in an effort to moot litigation, but found that a determination of the appropriateness of the City's conduct was a matter for the ongoing civil litigation. People of the State of New York v. Shenker(Crim. Ct., City of New York, Feb. 27, 2001).
U.S. Supreme Court Rules That There Is No Private Right of Action Under Title VI of the Civil Rights Act to Enforce Disparate-Impact Regulations
The U.S. Supreme Court has ruled that private parties cannot bring suits to enforce disparate-impact regulations issued under Title VI of the Civil Rights Act of 1964. Section 601 of Title VI prohibits discrimination in covered programs and activities, and ' 602 authorizes federal agencies to issue regulations to implement ' 601. In a 5-4 decision written by Justice Scalia, the Court noted that private parties can sue to enforce ' 601 of Title VI and that ' 601 prohibits only intentional discrimination. The Court assumed for purposes of deciding this case that regulations issued under ' 602 can validly prohibit activities that have a disparate impact on racial groups. However, the Court ruled that disparate-impact regulations issued under ' 602 cannot be enforced through a private right of action. The case involved a class action by a Hispanic woman challenging Alabama's policy of administering driver's license tests only in English. She argued that the policy violated the U.S. Department of Justice's ' 602 regulations, which prohibit recipients of federal funding from using criteria or methods of administration that have the effect of subjecting individuals to discrimination based on their race, color, or national origin. The federal district court agreed and enjoined Alabama's policy and the Eleventh Circuit affirmed. However, the U.S. Supreme Court reversed based on its ruling that Title VI did not provide a private right of action to enforce the Department of Justice regulations.
In a dissenting opinion, Justice Stevens offered a possible alternative route for private parties seeking to bring disparate impact suits against states in federal court. He suggested that the majority's decision is "something of a sport" because litigants who wish to enforce Title VI regulations against states in all likelihood must only reference 42 U.S.C. ' 1983 to obtain relief. Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001).Maryland Creates Commission on Environmental Justice
Maryland Governor Parris Glendening has issued an executive order that establishes a Commission on Environmental Justice and Sustainable Communities. The 15-member Commission will include state officials, representatives from business and environmental groups, local officials, and community members. The Commission will have no regulatory power, but it can make recommendations to the Governor and advise state agencies on environmental justice issues. The Commission will also examine the impact of current state laws, regulations, and policy on environmental justice, and will develop criteria to assess whether communities may be experiencing environmental justice issues. Executive Order 01.01.2001.01 (Mar. 9, 2001).
Environmental Defense Expands Its "Scorecard" Web Site to Include Additional Environmental Justice Data
The environmental group Environmental Defense has expanded its "Scorecard" web site to include information on the environmental risks facing different racial and ethnic groups in every county in the nation. The site provides data on four environmental risks'releases of toxic chemicals, cancer risks for hazardous air pollutants, Superfund sites, and facilities emitting criteria air pollutants (such as ozone and particulates). These environmental risks are applied based on the following seven factors: race/ethnicity, income, poverty, childhood poverty, education, job classification, and home ownership. The web site is at www.Scorecard.org.
Under a provision in the fiscal year 2001 appropriations act for the Department of Veterans Affairs and Department of Housing and Urban Development, EPA is barred from using appropriated funds to implement its Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits. EPA issued the interim guidance in February 1998, and issued revised draft guidances in June 2000 but has not yet finalized them. A similar provision was enacted in appropriations legislation for fiscal years 1999 and 2000. Pub. L. No. 106-377, 114 Stat. 1441.
The web site for EPA's Office of Civil Rights includes a list of complaints filed with EPA under Title VI of the Civil Rights Act and recent decisions by EPA in Title VI cases. The web site is www.epa.gov/ocr/t6complnt.htm.
EPA delivered a report to Congress on December 19, 2000 that summarizes EPA's efforts to identify sensitive subpopulations that may be at greater health risk than the general public from exposure to drinking water contaminants. Studies suggest that certain subpopulations, such as infants, children, and those with weakened immune systems, are more sensitive to waterborne pathogens than the general population. Additional information is available from EPA's Office of Water web page atwww.epa.gov/ow.
The Rhode Island Supreme Court has ruled that a recycling company's defamation suit against local residents was barred by the state's anti-SLAPP statute. Since June 1995, Plaintiff Global Waste Recycling has operated an unlicensed construction and demolition (C&D) debris recycling facility in an area zoned for residential use. Global has been permitted to operate the facility under a consent judgment and operation plan negotiated with the Rhode Island Department of Environmental Management (DEM) and a company that previously operated a recycling facility on the site. DEM notified Global in December 1996 that it was violating its recycling operation plan by leaving substantial quantities of process C&D material at the site. In July 1997, a group of local residents filed a petition with the town council to protest the expanding C&D material stockpiles. After a fire broke out at the facility, local residents were interviewed by a newspaper reporter and expressed their concern about the nature of the materials and whether Global was actually recycling them. One resident accused the company of burning lead and asbestos. Global then filed a defamation action against these residents. The state's Strategic Litigation Against Public Participation statute (the anti-SLAPP statute) provides conditional immunity to any person exercising his or her right to free speech concerning matters of public concern. The immunity is conditioned on the statements not being baseless. The Rhode Island Supreme Court held that the anti-SLAPP statute applied to Global's defamation suit and that the statute was not unconstitutionally vague. The court rejected Global's argument that the statute should apply only to statements before a legislative, judicial, or administrative body. Global Waste Recycling, Inc. v. Mallette, 762 A.2d 1208 (R.I. 2000).
Legislation enacted by California in 2000 requires the Secretary for Environmental Protection to convene a Working Group on Environmental Justice. The Working Group will assist the California EPA in developing an inter-agency environmental justice strategy. The Working Group includes the Secretary for Environmental Protection; the Chairs of the State Air Resources Board, California Integrated Waste Management Board, and State Water Resources Control Board; the Director of Toxic Substances Control; the Director of Pesticide Regulation; the Director of Environmental Health Hazard Assessment; and the Director of Planning and Research. The law also requires the Secretary for Environmental Protection, by January 1, 2006 and every three years thereafter, to submit to the Governor and Legislature a report on the implementation of the laws pertaining to environmental justice. Cal. Laws 2000, Ch. 728, S.B. 89.
Title VI Complaint Challenges New York City's Practice of Putting Most Diesel Bus Facilities in Minority Neighborhoods
West Harlem Environmental Action, a Harlem-based environmental group, has filed a complaint under Title VI of the Civil Rights Act to challenge the New York Metropolitan Transportation Authority's (MTA's) practice of putting most of Manhattan's diesel buses in minority neighborhoods. The group filed the complaint with the U.S. Department of Transportation. If an agency, such as the MTA, that receives federal aid is found to be engaging in discrimination, the federal government can withhold aid. The West Harlem group hopes to reduce pollution at MTA's diesel bus depots and parking lots in northern Manhattan, where many residents are African-American and Latino. The group argues that an already unfair burden will become even more acute with plans to close a depot in lower Manhattan to make room for development of a Hudson River park, to open three new parking lots in upper Manhattan, and to bring more buses to two Harlem depots. According to the group, MTA should stop expanding facilities in Upper Manhattan, increase monitoring of air quality, and begin replacing diesel buses with natural gas buses. New York Times, Nov. 16, 2000, p. B3.
A December 2000 memorandum from EPA General Counsel Gary Guzy reviews EPA's statutory and regulatory authorities for addressing environmental justice issues in permitting. The memo analyzes authorities under the Resource Conservation and Recovery Act; the Clean Water Act; the Safe Drinking Water Act; the Marine Protection, Research, and Sanctuaries Act; and the Clean Air Act. The 2000 memo appears to be scaled back from a 1994 EPA interpretation, which covered a broader range of EPA's functions, including permitting, enforcement, and state authorizations. The 2000 memo only addresses permitting issues. The 1994 interpretation also found numerous examples of environmental justice authorities in virtually all of the environmental laws administered by EPA, including the Toxic Substances Control Act and the Comprehensive Environmental Response, Compensation, and Liability Act, which were not mentioned in the 2000 memo. Memorandum from Garry S. Guzy, EPA General Counsel, EPA Statutory and Regulatory Authorities Under Which Environmental Issues May Be Addressed in Permitting (Dec. 1, 2000). See also InsideEPA.com (Dec. 7, 2000).
Plaintiffs, a class of Medicaid recipients under the age of 21 who may be exposed to lead paint, brought suit under the federal Civil Rights Act to compel defendant, the New York Department of Social Services, to expand and improve its early screening program for lead-paint related diseases. The court rejected the Department's motion to dismiss the civil rights claim and held that plaintiffs spelled out with adequate specificity that their rights may have been violated. Plaintiffs are the intended beneficiaries of the Early and Periodic Screening, Diagnosis, and Treatment program, which is part of the Medicaid program. Federal Medicaid regulations require states administering these programs to inform eligible families about the services. The court found that the Department's duty to reach as many eligible children as possible was binding and was neither vague nor amorphous. The court also noted that an injunction to require the Department to improve its lead-related disease screening would not involve the courts in micro-management of state programs. According to one of the plaintiffs' attorneys, statewide screening rates are a little over 50 percent. The decision allowed the case to proceed to discovery. New York City Coalition to End Lead Poisoning v. Giuliani, 720 N.Y.S.2d 298 (Sup. Ct. N.Y. Co. 2000)
The U.S. Department of Transportation's Federal Highway Administration (FHWA) has developed a web site that includes environmental justice case studies. The case studies profile how various transportation agencies have integrated environmental justice considerations into their activities. FHWA placed 10 case studies on the site in November 2000, and also plans to release a case study booklet. The web site iswww.fhwa.dot.gov/environment/ejustice/case/index.htm.
The U.S. Supreme Court has decided to review a case that should resolve the lingering issue of whether there is a private right of action under regulations issued under Title VI of the Civil Rights Act. In a case that did not involve environmental justice, the 11th Circuit enjoined the State of Alabama's policy of administering its driver's license test only in English. In the course of that decision, the Eleventh Circuit ruled that there is an implied private right of action to enforce agency regulations issued under the Civil Rights Act. The court noted that this position is held by at least eight other federal Courts of Appeals, although only the Third Circuit has addressed this issue in detail. The U.S. Supreme Court has yet to squarely address this issue. In 1999, the Court left open the issue when it declared moot the Third Circuit decision that found a private right of action. The Court's review of the Eleventh Circuit case should resolve the issue.Sandoval v. Hagan, 197 F.3d 484 (11th Cir. 1999), cert. granted, 121 S.Ct. 28 (Sept. 26, 2000).
A federal district court has held that the Clean Air Act does not block citizens from bringing suit under the Americans With Disabilities Act (ADA) in an effort to address air quality concerns. A citizens' group filed a suit in 1998 alleging that the State of Washington's program for controlling emissions from farms that burn off wheat stubble was too lenient. The group alleged that particulate matter from wheat stubble burning impaired the ability of two children with respiratory ailments to use public facilities, such as schools and parks. The U.S. District Court for the Eastern District of Washington originally dismissed the case and found that the group should have filed the suit under the Clean Air Act. After the plaintiff requested a reconsideration of this ruling, the court asked the U.S. Department of Justice to submit a brief on whether the ADA applies to environmental cases. In its brief, the Department of Justice argued that the ADA and Clean Air Act could be harmonized, and that citizens could seek relief under the ADA as long as the remedy did not cause a fundamental change in a program. The court rejected plaintiff's motion for injunctive relief because a ban on field burning would be a major change to the state's air program. However, the court accepted the logic behind the Department of Justice's brief and allowed the case to proceed on the merits. Save Our Summers v. Washington Department of Ecology 132 F.Supp.2d 896 (E.D. Wash. (1999).
EPA has revised its rules for Technical Assistance Grants under the Superfund program to make grant money more readily available to local community groups affected by Superfund sites. Changes to the rule include: allowance for advance payments of up to $5,000 to new recipients; less burdensome application and reporting requirements; elimination of the 20 percent cap on administrative expenses; replacement of the three-year funding period with a funding period tailored to site-specific needs; and clarification of the qualifications for technical advisors with expertise in relocation, redevelopment, and health issues. 65 Fed. Reg. 58849 (Oct. 2, 2000).
An administrative law judge (ALJ) with the New York State Department of Environmental Conservation (DEC) has issued various rulings in a permit proceeding for a proposed solid waste transfer station in the Bronx section of New York City. A company applied to DEC to build and operate a barge-to-rail solid waste transfer station on a 5.6 acre site in the Bronx along the East River. The facility would accept mixed municipal solid waste from New York City, including waste from residential and commercial sources. DEC staff determined under the State Environmental Quality Review Act (SEQRA) that the project was unlisted action that would not have a significant impact on the environment and thus did not require an environmental impact statement (EIS). Community groups argued that addition of 5,200 tons of solid waste per day to an area that is already the site of a number of transfer facilities would have a disproportionate impact on the area's poor and minority residents, especially given that DEC elected to prepare an EIS for a Staten Island transfer station. A DEC ALJ found that DEC staff erred by failing to require an EIS based on the size of the project, the potential for cumulative impacts related to odor and air pollution, and the potential impacts on the coastal zone. The ALJ found that SEQRA's broad mandate to consider community and neighborhood character encompassed the concerns of environmental justice. The ALJ noted that she did not have the authority to require DEC staff to prepare an EIS, but remanded the negative declaration to DEC staff for a redetermination. The ALJ also noted that a DEC decision to grant a permit would potentially be subject to EPA's jurisdiction under Title VI of the Civil Rights Act, and that DEC would wish to avoid the loss of funding that could result from a negative finding by EPA under Title VI. In re American Marine Rail, LLC, DEC No.2-6007-00251/00001, 2000 Westlaw 1299571 (DEC ALJ, Aug. 25, 2000).
A federal district court has dismissed an environmental justice challenge to EPA's Superfund cleanup actions in West Dallas, Texas. After EPA commenced a removal action at RSR Corporation site in 1991, the West Dallas Coalition for Environmental Justice filed suit to prevent EPA from implementing its cleanup plan. While EPA's motion to dismiss was pending, the Dallas Housing Authority completed the demolition of 167 buildings and removal of contaminated soil from residential property. In 1995, EPA signed a Record of Decision for the site stating that no further cleanup action was necessary. The court previously dismissed plaintiff's CERCLA claims, but allowed plaintiff to proceed with claims that did not directly challenge an ongoing EPA removal action, including claims under the Administrative Procedure Act, civil rights statutes, and the Constitution. Plaintiff amended its complaint to allege that EPA failed to take effective action to clean up hazardous waste in the low-income, minority community and had performed better cleanups in more affluent neighborhoods. Plaintiffs alleged that EPA's actions contributed to the segregation by inhibiting the development of West Dallas. The court granted EPA's motion to dismiss. The court held that EPA did not waive its sovereign immunity because the complaint did not identify a specific site where EPA took inadequate cleanup action and therefore there was no final agency action subject to judicial review. The court found no express waiver of sovereign immunity under federal civil rights statutes. The court also held that plaintiff's equal protection claims failed on the merits because plaintiff failed to show a discriminatory purpose. Plaintiff did not identify a West Dallas site where EPA had neglected to act and identified only one non-minority site where EPA had initiated cleanup. West Dallas Coalition for Environmental Justice v. U.S., 29 Envtl. L. Rep. 20, 420 (N.D. Tex. 1999).
Plaintiff realtors sought to enjoin defendants General Services Administration (GSA) and the U.S. Patent and Trademark Office (PTO) [hereinafter "the government"] from awarding a contract for the development of a project to consolidate PTO facilities in Alexandria, Virginia. Plaintiffs argued that the government failed to comply with NEPA in its preparation of an EIS by not considering plaintiffs' alternative scenario for the consolidation project. Plaintiffs also argued that the government failed to examine adequately the environmental justice implications of the project. The U.S. District Court for the District of Columbia upheld the government's analysis of environmental justice implications, as well as its position with respect to plaintiffs' alternative scenario. With respect to environmental justice, the court found that the EIS included an adequate analysis of the proposed action's potential impacts on minority or low-income populations. The court noted that the government clearly set forth the methodology for its environmental justice analysis, properly identified the possible affected communities and minority businesses, and referenced sections of the EIS regarding potential adverse impacts on human health and historical and cultural resources. Even though the EIS identified a potential short-term negative impact on minority-owned businesses, the court noted that the government concluded any such impact would be mitigated through a phased-move from the existing site. In addition, the EPA was satisfied with the government's changes in the EIS. Regarding plaintiffs' alternative scenario for the project, the court found that the alternative was not reasonable or efficient. Accordingly, the court held that the government took a "hard look" at the possible environmental consequences of the proposed action and denied the injunction. Young v. General Services Administration, 99 F.Supp.2d 59 (D.D.C. 2000), aff'd 11 Fed. Appx.3 (D.C.Cir. 2000).
Plaintiff environmental groups sought to enjoin defendant City of New York from selling or bulldozing any of 1,100 City-owned parcels. The parcels in issue contained approximately 600 community gardens, which were leased to individuals and community groups for development as gardens pursuant to the City's "Green Thumb" program. The City alleged that it planned to sell the lots for the construction of affordable housing, facilities for medical and related services, and possibly retail stores. Plaintiffs alleged that the sale or changed use of the lots would have a disproportionately adverse impact on the City's African-American, Asian-American, and Hispanic residents in violation of regulations promulgated by the EPA to implement Title VI of the Civil Rights Act of 1964, 42 U.S.C. ''2000d et seq. The U.S. Court of Appeals for the Second Circuit denied plaintiffs' motion for a preliminary injunction. The court found that plaintiffs failed to establish a prima facie case of adverse disparate impact, and noted that plaintiffs were required to allege a causal connection between a facially neutral policy and a disproportionate and adverse impact on minorities. The court ruled that plaintiffs failed to submit adequate proof of causation to show a likelihood of success on the merits of their disparate impact claim. Specifically, most of plaintiffs' proof concerned the sale of lots that were removed from the auction block during the course of the litigation, or consisted of "broad conclusory statements," rather than evidence of causation. The Second Circuit found that the City withdrew the Green Thumb community garden parcels from auction and agreed to sell them to two non-profit organizations for preservation as open space. Although these lots were no longer for sale, the court concluded that plaintiffs continued to focus on these same 115 community garden parcels. The court found that the plaintiffs "unquestionably submitted evidence that community gardens are disproportionately located in minority neighborhoods," but that is not enough. The court ruled that plaintiffs failed to show, using an "appropriate measure," that specific actions of the City would cause a disparate impact on similarly situated people to the detriment of a protected group. The plaintiffs also failed to establish the existence of a less discriminatory alternative of achieving the City's legitimate goals. Accordingly, the court dismissed the proceeding. The court declined to reach the issue (which the court below had decided in the negative) of whether there is a private right of action under EPA's Title VI retulations. New York City Environmental Justice Alliance v. Giuliani, 214 F.3d 65 (2d Cir. 2000).
A federal district court rejected a challenge by a local group representing low income and minority residents to a Corps of Engineers lock replacement and expansion project in Louisiana. The project would expand the lock in the Inner Harbor Navigational Canal (IHNC), which was built in 1923 to connect barge traffic between the Mississippi River at New Orleans and the Gulf Intracoastal Waterway. Plaintiff, which represents approximately 1200 residents who live in neighborhoods that would be affected by the project, argued that the Corps and Department of Transportation failed to adequately consider the project's disparate impact on the minority community. The U.S. District Court for the Eastern District of Louisiana rejected plaintiff's claim that the Corps violated NEPA and Executive Order 12898, which requires federal agencies to address the impacts of their actions on minority and low income populations. The court held that Executive Order 12898 does not create a private right of action and the court could therefore not review the Corps' environmental impact statement (EIS) on that basis. The court held that the Corps adequately considered alternatives in the EIS. Plaintiff argued that the Corps' selection was racially biased because the IHNC site, which was 89 percent African American, was selected over another site that was 75 percent white. However, the court concluded that affidavits from residents who attested to their unsubstantiated beliefs that the process was biased were not sufficient to demonstrate that the Corps' selection process was arbitrary and capricious. The court rejected plaintiff's claims that the Department of Transportation violated section 4(f) of the Department of Transportation Act by failing to make a special effort to preserve historic sites impacted by the project. The court held that this claim was premature because there was no requirement that the Secretary of Transportation perform a 4(f) evaluation before the Corps applied for a bridge permit. ACORN v. U.S. Army Corps of Engineers, No. Civ. A. 00-108, 2000 WL 433332 (E.D. La. Apr. 20, 2000).
Third Circuit Holds That Philadelphia's Application for HUD Grant Complied With NEPA and the National Historic Preservation Act
A U.S. Court of Appeals rejected a challenge by local residents to a $10 million Urban Development Action Grant (UDAG) from the Department of Housing and Urban Development (HUD) to Philadelphia that would partially fund construction of a hotel and parking garage in the Penn's Landing section of the City. The City's original grant application in 1986 sought funding for a festival park, but the City amended its application in 1994 to seek funding for a 350-room hotel and parking garage. HUD eventually approved the City's application, even though it was virtually identical to a previous request that HUD asked the City to withdraw. Plaintiffs argued that the City did not give them a meaningful opportunity to comment on the project and that the City failed to conduct the necessary environmental and historic reviews. Plaintiffs sought to enjoin the UDAG grant until the City prepared an environmental impact statement (EIS). The Third Circuit held that plaintiffs had standing. The residents demonstrated that they would suffer injury-in-fact by alleging that the project would increase traffic, noise, and pollution in the area and would have a detrimental effect on the ambiance of their historic neighborhood. The court held that the City's decision under NEPA not to prepare an EIS was not arbitrary or capricious. The City complied with HUD regulations by holding public hearings before submitting its UDAG application. Although the City's initial application was submitted without proper public notification and hearings, the City withdrew that application, held hearings, and resubmitted the application. The court rejected plaintiffs' argument that the City's environmental assessment was inadequate because it failed to address cumulative impacts, including the impact of a planned entertainment complex at Penn's Landing. The entertainment complex had only been proposed in planning documents and was not sufficiently interdependent with the hotel project to require a cumulative impact analysis. The court held that the project was not "controversial" as defined in the NEPA regulations, and even if it was, the degree of controversy is only one of ten factors to be considered in determining whether to prepare an EIS. The court also held that the City met its delegated responsibilities under the National Historic Preservation Act, which made review by the Advisory Council for Historic Preservation unnecessary. Society Hill Towers Owners' Association v. Rendell, 210 F.3d 168 (3d Cir. 2000).
A federal advisory committee has submitted recommendations to EPA on how to address the environmental justice issues raised by the siting and operation of waste transfer stations. The committee, called the National Environmental Justice Advisory Council (NEJAC), was established to advise EPA's Administrator on environmental justice matters. In response to citizen concerns, NEJAC formed a Waste Transfer Station Working Group to investigate the impacts of these facilities in minority and low-income communities. Waste transfer stations collect municipal waste before it is transported to a disposal site. Some communities have expressed concern that these facilities have been clustered in minority areas. For more information about the report, entitled "A Regulatory Strategy for Siting and Operating Waste Transfer Stations," contact Mathy Stanislaus, Chairman of the Waste Transfer Station Working Group, at (718) 448-7916. EPA Press Release (Mar. 16, 2000).
California Agency Adequately Addressed Environmental Justice in Issuing Clean Air Act PSD Permit for Fiberglass Manufacturing Facility
EPA's Environmental Appeals Board rejected challenges by local citizens and a business competitor to a Clean Air Act prevention of significant deterioration (PSD) permit issued by the Shasta County, California, Air Quality Management District (SCAQMD) for a fiberglass manufacturing facility in Shasta Lake, California. In a previous decision, the Board remanded the PSD permit and ordered SCAQMD to obtain documentation of the environmental justice analysis conducted by EPA Region IX, include it in the administrative record, and make it available for public comment. In the instant case, the Board upheld the environmental justice analysis for the PSD permit. The analysis concluded that the proposed facility would not have disproportionately high or adverse impacts on a minority or low-income population. None of the petitions showed that the anticipated particulate matter emissions would lead to an adverse impact. The Board also rejected petitioners' argument that the public participation process was inadequate. The Board noted that the public's involvement during the permit process led to a particulate matter emission limit in the final permit that was less than half the level proposed by the facility operator. In re Knauf Fiber Glass, GMBH, PSD Appeal Nos. 99-8 to 99-72, 2000 WL 291422 (EPA Environmental Appeals Board Mar. 14, 2000).
On February 14, 2000, EPA reached a settlement with residents of a public housing project at the Pnemo Abex Superfund site in Portsmouth, Virginia who challenged EPA’s decision not to relocate them. Plaintiffs alleged that EPA’s selected remedy under CERCLA exacerbated long-standing housing discrimination by effectively requiring them to remain in their homes while the site is cleaned up. The site is adjacent to a lead foundry and was placed on the CERCLA National Priorities List in 1990. Under the settlement, all residents of the Washington Park housing project will be relocated to other public housing or to Section 8 housing in Portsmouth. According to plaintiffs’ attorney, the settlement is the first time that a Superfund site remedy has been altered to address alleged racial discrimination. The settlement will be subject to a fairness hearing in the U.S. District Court for the Eastern District of Virginia, and EPA will also publish notice of the decree for public comment.
In a decision on July 12, 1999, the court dismissed plaintiffs’ claims against EPA under Title VI of the Civil Rights Act of 1964, but allowed their discrimination claims under the Fifth Amendment to proceed. The court rejected plaintiffs’ argument that the APA provides a waiver of sovereign immunity for all final actions by federal agencies, but noted that the doctrine of sovereign immunity should not bar plaintiffs’ claims that rest solely on the Constitution. The court noted that CERCLA, in order to allow pubic comment on EPA’s record of decision, explicitly provides that EPA’s action is final when the consent decree or settlement agreement is entered. Therefore, the court determined that the statute of limitations is not triggered until the consent decree is finalized. Washington Park Lead Committee v. U.S. EPA, No. 2:98-421 (E.D. Va.) See Daily Env’t Rep. (BNA), Feb. 16, 2000, at A-10; Inside EPA, Sept. 3, 1999, at 3.
A community organization in Guayama, Puerto Rico, challenged a Clean Air Act Prevention of Significant Deterioration (PSD) permit issued by EPA for construction of a power plant. The First Circuit dismissed plaintiffs’ claim that EPA violated the President’s Executive Order on Environmental Justice (Order 12898, 59 Fed. Reg. 7629), since the Order did not create a private right of action. The court also rejected plaintiffs’ claims that EPA made various technical errors in approving the permit. EPA acted within its discretion in not requiring the power company to conduct a full impact analysis of sulfur dioxide emissions. EPA did not act arbitrarily or capriciously when it determined that the plant’s proposed controls would achieve Best Available Control Technology, even though the combination of controls was novel. The court rejected plaintiffs’ argument that EPA relied on outdated air quality data to evaluate current air quality conditions in Guayama. Sur Contra La Contaminacion v. EPA, 202 F.3d 443 (1st Cir. 2000).
EPA Environmental Justice Policy Could Hinder Job Creation for Minorities, According to Economic Consulting Firm
A report released by the Anderson Economic Group (AEG) in January 2000 concludes that EPA’s environmental justice policy could have an adverse economic impact on minorities. AEG found that residents of brownfield communities in Michigan are about twice as likely to be non-white than residents of the state as a whole. The report asserted that environmental justice policies, such as EPA’s proposed policy, that restrict economic development in brownfield communities would likely hurt jobs prospects for residents of these communities. The report analyzed 106 cities registered in Michigan with brownfield authorities. AEG also argued that economic pressures alone explain many of the industrial plant siting decisions and therefore the location of today’s brownfields. A copy of the AEG report, entitled "A Report on the Demographics of Michigan’s Urban Brownfields," is available from AEG’s web site atwww.aeg1.com/Environment/EJ/brown_study.htm.
Second Circuit Denies Group’s Motion to Intervene in Safe Drinking Water Act Enforcement Action Against New York City
Croton Watershed Clean Water Coalition, a group that sought to block the use of water filtration in the Croton watershed, moved to intervene in a Safe Drinking Water Act (SDWA) enforcement action brought by the federal government against New York City. The federal government alleged that the City’s failure to build a filtration plant for the Croton watershed violated the SDWA and EPA’s surface water treatment rule. New York State was permitted to intervene as a plaintiff. The Coalition alleged that its interests in the case included the financial interests of water ratepayers who may be forced to pay higher rates to finance the filtration project, and the health interests of water consumers who claim that filtration will adversely affect water safety. The Coalition also alleged that construction of a filtration plant would encourage development in suburban New York counties and harm minorities in New York City by discouraging development in the City, and that filtration would contaminate the water supply of the City’s largely minority residents. The Second Circuit affirmed the district court’s denial of the Coalition’s motion to intervene as a defendant. The court found that the Coalition’s interest in preventing filtration in the Croton watershed were only collaterally related to the subject matter of the enforcement action. U.S. v. City of New York, 198 F.3d 360 (2d Cir. Dec. 16, 1999).
Eleventh Circuit Overturns Alabama’s English-Only Policy for Driver’s License Tests, Rules That Title VI Created Private Cause of Action
Plaintiffs challenged the Alabama Department of Public Safety’s official policy of administering its driver’s license test only in English. The district court enjoined the Department from enforcing its English-only policy and ordered it to make reasonable accommodations for non-English speakers. The Eleventh Circuit affirmed. It held that the suit was not barred by the Eleventh Amendment. By voluntarily accepting federal funds, the Department waived any claim of sovereign immunity from individual suits under Title VI of the Civil Rights Act of 1964. The court also held that ' 602 of Title VI creates an implied private cause of action to obtain injunctive and declaratory relief under federal regulations that prohibit disparate impact discrimination against statutorily protected groups. The court concluded on the merits that the English-only policy constituted a disparate impact on the basis of national origin. Sandoval v. Hagan, 197 F.3d 484 (11th Cir. Nov. 30, 1999).
Court Reduces Punitive Damage Award in Louisiana Rail Explosion Case From $2.5 Billion to $850 Million
A Louisiana state judge has reduced a punitive damage award against CSX Corp. from $2.5 billion to $850 million in a class action suit resulting from a rail tank car fire. The 1997 verdict against CSX was part of an overall $3.367 billion award against nine defendants. Over 8,000 class members claimed mental anguish and other injuries from a vapor cloud and chemical fire in a New Orleans neighborhood after a rail car leaked butadiene in 1987. The area was evacuated as a fire in the railroad car burned for a day and a half. The neighborhood is a predominantly minority neighborhood northeast of the French Quarter. The judge determined that the $2.5 billion award "shocks the conscience of this court and is therefore manifestly unreasonable." However, he refused to set aside the award completely because the jury was not unreasonable in finding reckless disregard of public safety in the storing, handling, and transportation of hazardous substances. In re New Orleans Tank Car Leakage Fire Litigation, No. 97-CC-2547 (La. Sup. Ct. Nov. 5, 1999). See also Daily Env’t Rep. (BNA), Nov. 18, 1999, at A-12; National Law Journal, Nov. 29, 1999, at A11.
A settlement has been reached in a wrongful death suit accusing shopping mall owners of racism for not allowing certain city buses to drop passengers on mall property. The settlement, reached on November 17, 1999, awards $2.55 million to the family of a 17-year old girl who died while crossing a busy road outside the Walden Galleria mall in Cheektowaga, New York. She was hit by a dump truck as she crossed the road to go to her job at the mall. After it was revealed that the mall did not allow buses from predominantly black neighborhoods to drop passengers at the mall, the girl’s family brought a suit in New York state court against the mall owner Pyramid Companies, the Niagara Frontier Transportation Authority, and the dump truck operator. The victim’s son will receive the settlement money. See New York Law Journal, Nov. 18, 1999, at 8:6.
EPA has issued a report that summarizes case studies conducted in six cities to determine whether the Agency’s Title VI interim guidance was having a chilling effect on brownfields redevelopment. In February 1998, EPA issued its "Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits" to provide a framework for EPA’s Office of Civil Rights to process Title VI complaints. Local officials and developers complained that the interim guidance would discourage brownfields redevelopment, since brownfields tend to be concentrated in inner city neighborhoods. To test this hypothesis, EPA conducted case studies in Camden, NJ; Charlotte, NC; Chicago, IL; Detroit, MI; Lawrence, MA; and Miami, FL. The report found no evidence that EPA’s Title VI policy hindered brownfields redevelopment. In fact, the report concluded that public involvement, particularly when encouraged early in the brownfields process, aids brownfields projects and makes Title VI challenges unlikely. The report, published in June 1999, is available from EPA’s web site atwww.epa.gov/swerosps/ej/ejndx.htm.
The New York State Department of Environmental Conservation (DEC) has announced the creation of an environmental justice program to improve community participation in DEC’s permitting process. The program will formalize existing practices in DEC’s permitting process and develop new policies to ensure fair treatment of all individuals regardless of race, ethnic origin, or socioeconomic status. New initiatives may include enhanced community outreach, public hearings, use of alternative dispute resolution, and additional public information efforts. Monica Abreu Conley, a senior attorney in DEC’s Division of Environmental Enforcement, will serve as New York’s environmental justice coordinator. She will oversee DEC’s efforts to develop and implement a comprehensive environmental justice program, and work cooperatively with community organizations, environmental groups, municipalities, and industry. Two new positions will be created in DEC’s Division of Environmental Permits to address environmental justice issues. DEC Press Release (Oct. 4, 1999).
In September 1999, the California legislature passed a package of bills designed to limit pollution in neighborhoods shared by residents and industry. Environmental justice is becoming a higher priority in California as more Latino legislators are elected and try to improve the kinds of neighborhoods where they grew up. California Governor Gray Davis is expected to sign most of the bills. State Senator Hilda Solis has introduced a separate bill to require developers to consider environmental justice issues when they conduct environmental reviews of proposed projects. Los Angeles Times, Sept. 27, 1999.
Federal Court Rejects Challenge to Department of Transportation's ADA Regulations for Bus Accessibility
A federal district court dismissed a challenge by the American Bus Association to regulations issued by the Department of Transportation (DOT) under Title III of the Americans With Disabilities Act (ADA). ADA Title III prohibits discrimination on the basis of disability in the use of public transportation services provided by private entities. DOT issued a final rule in 1998 that required all "over-the-road buses" (OTRBs) purchased or leased by operators of fixed route service to be accessible. Large operators must ensure that 50 percent of their fleet is accessible by 2006 and that 100 percent of their fleet is accessible by 2012. The court held that DOT did not violate NEPA in promulgating the regulations. DOT's negative declaration provided adequate support for the agency's finding of no significant impact. The court held that DOT's environmental assessment complied with Executive Order 12898, which required DOT to evaluate potential impacts of regulations that might produce disproportionate impacts on low-income and minority passengers. While DOT's conclusory statements barely sufficed as a convincing reason why its regulation did not result in any significant environmental impact on low-income and minority passengers, DOT did not recognize any significant environmental impacts in the entirely of the environmental assessment. This led DOT to the logical conclusion that no significant environmental impacts that would disparately affect low-income and minority passengers would result from implementation of DOT's OTRB accessibility rule. American Bus Ass'n v. Slater, 1999 U.S. Dist. LEXIS 20936 (D.D.C. Sept. 10, 1999).
EPA Draft Guidance on Innovative Air Pollution Reduction Programs Urges Consideration of Environmental Justice Issues
EPA has released a draft guidance document for states that wish to use discretionary economic incentive programs to improve air quality. Economic incentive programs include a variety of measures designed to increase flexibility and efficiency, while maintaining accountability and enforceability of traditional air quality management programs. The guidance is a comprehensive update of EPA’s 1994 economic incentive program rule and also incorporates some components of EPA’s 1995 proposed model rule for open-market trading. The guidance outlines four main types of economic incentive programs that states may incorporate into their Clean Air Act state implementation plans: emission trading programs, financial mechanism programs, clean air investment funds, and public information programs. EPA considered comments from the National Environmental Justice Advisory Committee when developing the draft guidance. Environmental justice advocates were concerned that emissions trading programs could exacerbate pollution problems in minority communities by allowing companies to continue high emissions at urban facilities while reducing emissions at other facilities. The guidance provides that these programs must seek to protect all segments of the population equally from health and welfare impacts caused by emissions. It includes specific criteria for states on how to determine whether an incentive program is likely to cause environmental justice concerns. The guidance includes a section setting out principles for ensuring equity in the impact of projects on the public, with specific attention devoted to minority communities. EPA, Draft Guidance for Improving Air Quality Using Economic Incentive Programs (Sept. 3, 1999). The draft guidance is available from EPA’s web site atwww.epa.gov/ttn/oarpg.
EPA Proposes to Require New or Expanding Facilities That Discharge into Impaired Waters to Offset Discharges
EPA has proposed to revise its National Pollutant Discharge Elimination System (NPDES) regulations to require large new or significantly expanding dischargers on certain impaired waterbodies to obtain an offset of 1.5 times their proposed discharge. The proposal is designed to complement EPA’s total maximum daily load (TMDL) program by helping to achieve reasonable "further progress" toward attainment of water quality standards in impaired waterbodies for which no TMDL has been set. The offsets can be obtained from point and nonpoint sources of water pollution. In effect, dischargers would be required to show net progress toward improving water quality as a condition of being authorized to discharge to waterbodies that do not meet water quality standards. A significant expansion of an existing discharger would be defined as a 20 percent or greater increase in pollutant loadings above current permitted levels. EPA believes that the establishment of trading market will give dischargers more options to achieve any further permit limits required by TMDLs. 64 Fed. Reg. 46057 (Aug. 23, 1999). Additional information is available from EPA’s web page at www.epa.gov/owow/tmdl.
Plaintiffs Not Entitled to Preliminary Injunction in Environmental Justice Challenge to New York City’s Sale of Community Garden Parcels
Plaintiffs, local community and environmental groups, sought a preliminary injunction to prevent defendant New York City from selling or destroying 1,100 City-owned parcels comprising about 600 community gardens in predominantly minority and low-income neighborhoods. The U.S. District Court for the Southern District of New York denied plaintiff’s preliminary injunction motion. Although plaintiffs demonstrated that they may suffer irreparable injury in the absence of a preliminary injunction, they failed to show that they were likely to succeed on the merits. Plaintiffs alleged a direct violation of Title VI of the Civil Rights of 1964 and of EPA regulations issued under Title VI. The court found that plaintiffs’ Title VI claims would not be successful because they failed to allege intentional discrimination. The court also found it unlikely that a private right of action was available to enforce EPA’s Title VI regulations, which do not require a showing of intentional discrimination. In addition, the court determined that plaintiffs were unlikely to succeed with their claim under the New York State Environmental Quality Review Act (SEQRA). The court found that plaintiffs lacked standing under SEQRA because any leases or licenses that they held to the properties were revocable by the City. On August 13, 1999, the U.S. Court of Appeals for the Second Circuit affirmed the district court’s judgment in a brief memorandum, stating that a fuller decision would be forthcoming. New York City Environmental Justice Alliance v. Giuliani, No. 99 Civ. 3330 (AGS) (S.D.N.Y. June 4, 1999), aff’d mem., 184 F.3d 206 (2d Cir. Aug. 13, 1999).
EPA has proposed revisions to its Superfund Technical Assistance Grants (TAG) program to make the application process easier and simplify the management requirements. The TAG program provides funds for qualified citizens' groups affected by a Superfund site to hire independent technical advisors to help interpret and comment on site-related information. TAG funds are available to groups that may be affected by a release or threatened release at a facility listed on the Superfund National Priorities List. EPA is proposing to reduce the requirements for receiving a waiver for the 20 percent matching fund requirement and to allow longer funding periods based on site-specific needs. The proposal would allow for the hiring of advisors with expertise in relocation, redevelopment, and health issues. Copies of the rule are available from EPA’s web page at www.epa.gov/superfund/tools/tag/index.htm. 64 Fed. Reg. 46233 (Aug. 24, 1999).
There is no evidence that minorities have been discriminated against in EPA enforcement actions, according to a working paper abstracted in the Environmental Law and Policy Journal. The paper reviewed a 1992 study published in the National Law Journal (NLJ) that concluded that EPA discriminated against minorities in its civil enforcement actions by imposing substantially lower penalties on violators in minority areas compared to white areas. The National Law Journal articles’ data and conclusions have been cited frequently in environmental equity literature. The author of the working paper stated that his analysis "augments, reexamines, and analyzes in a more sophisticated manner the available data" and that his "empirical analyses demonstrate the invalidity of the NLJ’s methods and conclusions." Mark K. Atlas, "Rush to Judgment: An Empirical Analysis of Environmental Equity in U.S. Environmental Protection Agency Enforcement Actions" (July 1999) (available from the Social Science Research Network Electronic Paper Collection at http://papers.ssrn.com/paper.taf?abstract_id=172308).
The West Virginia Supreme Court of Appeals, the state’s highest court, has ruled that West Virginia law authorizes a cause of action for medical monitoring costs even if plaintiffs fail to allege present physical injury. Plaintiffs sued Westinghouse Electric Corporation and North American Phillips Corporation and alleged that they were exposed to toxic substances from a pile containing debris from the defendants’ manufacture of light bulbs. Plaintiffs brought claims for negligence, nuisance, trespass, negligent infliction of emotional distress, and intentional disregard for plaintiffs’ health. Plaintiffs sought compensation for medical monitoring costs among the relief they requested. The federal district court certified the following question to the West Virginia Supreme Court of Appeals: Can future medical monitoring costs be recovered for claims of intentional infliction of emotional distress absent any present physical injury? The West Virginia court reformulated the question to ask: Does West Virginia law permit a plaintiff who does not allege present physical injury to assert a claim for the recovery of future medical monitoring costs where such damages are the proximate result of defendant’s tortious conduct? The state court answered yes and set out the elements required to establish a medical monitoring claim. The court stated that medical monitoring claimants must prove: 1) significant exposure 2) to a proven hazardous substance 3) through the defendant’s tortious conduct, 4) which caused an increased risk over that of the non-exposed population for contracting the latent disease 5) for which periodic diagnostic testing, different from what would be required absent the exposure, is necessary, and 6) availability of medical monitoring procedures that make early detection of the disease possible. The court refused to require a plaintiff to prove that treatment now exists for the disease that is the subject of medical monitoring or to stipulate that medical monitoring costs can only be administered through a court-administered fund. Bower v. Westinghouse Electric Corp., No. 25338 (W.Va. July 19, 1999).
Plaintiffs, parents and their children who were allegedly exposed to lead-based paint, filed a class action suit against defendant Chicago Housing Authority and others. One family that was in the federal Section 8 subsidized housing program alleged under the federal Civil Rights Act (42 U.S.C. ' 1983) that defendants violated their rights under the Lead-Based Paint Poisoning Prevention Act and the United States Housing Act. Plaintiffs alleged that defendants failed to inform tenants of the hazards of lead-based paint, that the housing was pre-1978, how to avoid and treat lead poisoning, and failing to compel the landlords to remove the lead paint. The U.S. District Court for the Northern District of Illinois dismissed the ' 1983 claim without prejudice, since plaintiffs failed to allege that any of the defendants intentionally engaged in a pattern or practice to deprive plaintiffs of their rights to live in lead-free homes. The judge granted plaintiffs time to amend their complaint to correct the defect. Elliott v. Chicago Housing Authority, No. 98-C-6307 (N.D. Ill. July 14, 1999).
The Wisconsin Supreme Court has approved sanctions against a law firm that maintained a toxic tort case without investigating the critical issue of causation while awaiting the results of formal discovery. The suit was filed on behalf of three children born will birth defects and alleged that the defects were caused by the mothers’ exposure to chemicals at a turkey processing plant where they worked. The court determined that the commencement of the action was not frivolous. However, the court concluded that the firm must pay defense fees for maintaining the action without taking any steps to investigate the element of causation outside of discovery. The court noted that a plaintiff may not rely on formal discovery to establish the factual basis of its action when the factual basis could be established without discovery. The court found that the firm violated the Wisconsin statute that prohibits continuation of frivolous litigation. Jandrt v. Jerome Foods, Inc., No. 98-0885 (Wisc. July 7, 1999).
A federal district court in Louisiana has upheld revisions to a rule adopted by the state Supreme Court that impose restrictions on when law school clinics can represent the poor and community groups. Plaintiffs, which included the Tulane Environmental Law Clinic (TELC) and community groups allegedly in need of law clinic representation, brought a suit under 42 U.S.C. ' 1983 to challenge the revisions to the rule, known as Rule XX. Plaintiffs alleged that the stricter rules were adopted as the result of political pressure after successful efforts by TELC against a proposed chemical facility. Citizen groups, represented by TELC, successfully petitioned EPA to block construction of the plant under Clean Air Act Title V. Among other things, Rule XX provides that law school clinics can represent indigent community organizations only if at least 51 percent of the organization’s members are eligible for legal assistance. Individuals or families whose annual income does not exceed 200 percent of the federal poverty guidelines are eligible for legal assistance. TELC argued that it is difficult for TELC’s regular clients, activist and environmental groups in Louisiana, to prove that they are indigent under the revised rules. The court noted that non-lawyers have no constitutional or legal right to represent individuals in court or before administrative tribunals, and that the limitations in Rule XX were rationally related to legitimate state interests. Southern Christian Leadership Conference v. Supreme Court of the State of Louisiana, No. CIV A. 99-1205, 1999 WL 550209 (E.D. La. July 2, 1999).
EPA Adequately Addressed Environmental Justice in Issuing Clean Air Act PSD Permit for Puerto Rico Power Plant
EPA's Environmental Appeals Board rejected a challenge by a local group and individuals to a Clean Air Act prevention of significant deterioration (PSD) permit issued by EPA Region II for construction of a coal-fired power plant in Guayama, Puerto Rico. The facility would be the first coal-fired power plant in Puerto Rico. Petitioners raised a number of issues, including EPA's compliance with Executive Order 12898, which requires federal agencies to analyze the environmental justice impacts of their actions. Petitioners argued that the proposed plant location is a low-income community and that EPA should have taken additional safeguards to protect this community. The Board found that EPA conducted a thorough environmental justice analysis and incorporated environmental justice elements into its permit decision. For example, EPA incorporated conditions into the permit that require the plant operator to reconfirm elements of the air quality analysis after the permit is issued. In re AES Puerto Rico L.P., PSD Appeal Nos. 98-29, 98-30, 98-31, 1999 WL 345288 (EPA Environmental Appeals Board May 27, 1999).
Citizen Group Challenging Transfer of Navy Jets Not Entitled to Judicial Review of Environmental Justice Portion of EIS
A federal district court rejected a challenge by a citizen group to the Navy's environmental impact statement (EIS) under NEPA for the transfer of 156 Navy jets to a Naval Air Station in Virginia Beach. Among other things, plaintiff argued that the EIS contained a flawed environmental justice analysis because the Navy used different population figures in the environmental justice portion of the EIS than it did in the section on noise impacts. The court held that it lacked jurisdiction to review the environmental justice portion of the EIS. The court noted that NEPA does not require an environmental justice analysis. Further, Executive Order 12898, which requires federal agencies to analyze the environmental justice impacts of their actions, specifically states that any agency actions taken under the order are not subject to judicial review. Citizens Concerned About Jet Noise, Inc. v. Dalton, 48 F.Supp.2d 582 (E.D.Va. 1999).
Community Groups File Civil Rights Complaint Concerning Activities at Kelly Air Force Base in Texas
Community groups have filed a civil rights complaint that alleges discrimination against Latino residents that live near Kelly Air Force Base in San Antonio. The complaint, filed under Title VI of the Civil Rights Act of 1964 and the environmental justice executive order, alleges discrimination by the air force base, the Greater Kelly Development Corporation, the City of San Antonio, the Texas Natural Resource Conservation Commission (TNRCC), the Agency for Toxic Substances and Disease Registry and EPA Region VI. The groups allege discrimination due to: 1) the exclusion of members of the Restoration Advisory Board and the general public from meetings of the Base Closure Team; 2) plans for rapid industrial redevelopment of the base without adequately considering impacts on surrounding communities; 3) delays in the release of the Public Health Assessment for the base; 4) the decision not to list the base as a Superfund site; 5) failure to release public information; 6) decisions that indicate that only on-site contamination will be cleaned up; 7) failure of the City of San Antonio to inform persons buying federally subsidized affordable homes of the presence of soil and groundwater contamination; and 8) the failure of TNRCC to take any enforcement action against the base. Press Release from Southwest Public Workers Union and Committee for Environmental Justice Action (May 4, 1999).
Select Steel Corporation of America has decided to build its proposed steel mill, the target of an environmental justice complaint, at another location in Michigan. A community group filed an environmental justice complaint in August 1998 under Title VI of the Civil Rights Act of 1964 that alleged that an air permit granted to the steel mill would lead to an unfair pollution burden on minority residents. Although EPA dismissed the complaint, the community group asked EPA to reconsider its decision. Select Steel had threatened to move the steel mill, originally planned for Flint, Michigan, to Ohio if the environmental justice case was not quickly resolved. Select Steel will now build the plant in Delta Township, near Lansing, Michigan. This was EPA’s first review of a complaint under its environmental justice policy. See Daily Env’t Rep. (BNA), Apr. 7, 1999.
In an unpublished decision, the U.S. Court of Appeals for the Fourth Circuit has rejected a suit by local residents against the U.S. Department of Agriculture and Town of Pollocksville, North Carolina that challenged the Town’s siting of a wastewater treatment facility. Plaintiffs alleged violations of Title VI of the Civil Rights Act of 1964 and NEPA. After construction of wastewater treatment plant, North Carolina reclassified the Trent River as a nutrient sensitive waterway, which required additional treatment of the Town’s municipal waste. The Town decided to use land treatment, in which treated effluent is sprayed onto fields surrounding the plant. The Town ultimately selected a site that was part of an area known as the Goshen tract for the land application site. The Goshen tract was settled by feed slaves during the 1870s and has been owned largely by African-Americans ever since. The Fourth Circuit affirmed the district court’s decision and held that defendants did not violate Title VI. The Town provided substantial legitimate nondiscriminatory reasons for its site decision. The Town rejected other sites because they would have required a pipe to cross the river, had poor soil quality, or had more potential for public contact. The court held that the Department of Agriculture’s decision not to prepare an environmental impact statement under NEPA was not arbitrary and capricious. Although an amended environmental assessment (EA) did not directly reference the Goshen area when discussing environmental impacts, the original EA sufficiently discussed the Goshen tract. The EAs also adequately considered alternatives. Goshen Road Environmental Action Team v. U.S. Department of Agriculture, No. 98-2102 (4th Cir. Apr. 6, 1999).
Title VI Claims Against Federal Agencies Barred by Sovereign Immunity in Residents’ Challenge to Maryland Highway Bypass
The U.S. Court of Appeals for the Fourth Circuit has, with one exception, upheld a federal district court’s dismissal of plaintiffs’ challenge to the siting of a highway bypass adjacent to their neighborhood. Plaintiffs, African-American residents of Jersey Heights, Maryland, alleged that the bypass would have a disparate adverse impact on their community. The court first noted that plaintiffs filed their suit eight years after the Federal Highway Administration issued its Record of Decision (ROD) to approve the project. The court held that plaintiffs’ claims that challenged conduct leading up to the issuance of the ROD in 1989 were barred by the various statutes of limitations. These pre-ROD claims included alleged violations of the Federal-Aid Highway Act (FAHA), the National Environmental Policy Act (NEPA), 42 U.S.C. '' 1983 and 1985, and Title VI of the Civil Rights Act of 1964. Turning to plaintiffs’ challenges to defendants’ conduct after issuance of the ROD, the court held that plaintiffs’ challenge to the Maryland State Highway Administration’s (SHA’s) decision to shift a segment of the bypass closer to Jersey Heights was time barred, since they did not fall within the three-year statute of limitations for Title VI and sections 1983 and 1985. However, the court held that the district court improperly dismissed as time barred plaintiffs’ claim that SHA should have prepared a supplemental environmental impact statement in 1995. This challenge fell within the six-year statute of limitations applicable to NEPA and FAHA, and plaintiffs filed their suit within that time limit. The court held that plaintiffs claims against the federal defendants under ' 1985 and Title VI were barred by sovereign immunity. Title VI does not include an express cause of action against the federal government, and the court declined to imply one. Finally, the court held that plaintiffs failed to state a cause of action under the Fair Housing Act, since government agencies did not refuse to make housing available due to race by locating the highway at the edge of the African American community. Jersey Heights Neighborhood Association v. Glendening, 174 F.3d 180 (4th Cir. 1999).
EPA will investigate whether New York City’s siting of solid waste transfer stations in poor neighborhoods of the South Bronx discriminates against Hispanic and black residents. EPA’s investigation was prompted by a complaint filed in May 1998 by Rep. Jose Serrano (D-NY) and community groups. Serrano’s complaint stated that the City has over 60 waste transfer stations in the Bronx, including 35 waste transfer stations that handle 50 percent of the City’s non-putrescible commercial waste and 30 percent of its putrescible waste. A sludge pelletization plant in Hunts Point processes over 70 percent of the City’s sludge. The complaint alleged that the concentration of transfer stations causes air quality and traffic safety problems because of increased traffic of diesel trucks. EPA’s investigation will determine whether federal funding was spent in siting and operating the waste transfer stations, a necessary finding to trigger Title VI. The next question would be whether the siting was discriminatory. This was only the third time that EPA had formally accepted an environmental justice complaint, according to EPA. See Daily Env’t Rep. (BNA), Mar. 12, 1999.
Parties in a lawsuit over alleged contamination of a predominantly black subdivision near Houston have reached a tentative settlement, according to a statement from a special master appointed by the trial judge. The settlement will resolve plaintiffs’ claims that their Kennedy Heights subdivision was built on land formerly used to store crude oil residue. Plaintiffs alleged that the oil residue left after removal of storage tanks contaminated their drinking water with polycyclic aromatic hydrocarbons. Plaintiffs asserted that the subdivision was marketed to African-American buyers because the sludge pits could not be sufficiently cleaned up for sale to white buyers. According to the special master, Chevron U.S.A. agreed to establish a $8 million fund for distribution to plaintiffs. The special master found no indication of harmful contamination in the subdivision and that tests showed that the community’s drinking water was safe. However, Chevron agreed to the settlement to help residents whose property may have been devalued as a result of media attention. Under the settlement, properties located over a sludge pit "that might have contained petroleum 70 years ago" were awarded the highest settlement value. Adams v. Chevron U.S.A., Inc., No. H-96-1462 (S.D. Tex. tentative settlement Mar. 2, 1999). See also Daily Env’t Rep. (BNA), Mar. 11, 1999.
Court Rejects Indian Tribe’s Challenge to FAA’s Approval of Revised Flight Patterns at Los Angeles Airport
The U.S. Court of Appeals for the Ninth Circuit has dismissed a suit filed by the Morongo Band of Mission Indians that challenged the Federal Aviation Administration’s (FAA’s) approval of revised flight patterns at Los Angeles International Airport (LAX). The FAA prepared an environmental assessment (EA) under the National Environmental Policy Act (NEPA) to address the impacts of the new flight patterns, known as the LAX East Arrival Enhancement Project (AEP). The AEP split the planes that arrived from the east into two traffic streams to equalize the workloads of air traffic controllers, but created a new flight path over plaintiff’s Reservation. FAA issued a finding of no significant impact under NEPA in 1997. The court first noted that while the United States owes a general trust responsibility to Indian tribes, this duty is discharged by an agency’s compliance with the applicable statutes and regulations unless there is a specific duty placed on the government concerning Indians. The court dismissed plaintiff’s claims that the FAA violated the Department of Transportation’s Environmental Justice Order and Executive Order 12898, since those orders do not create any right to judicial review. The court held that the FAA satisfied its duty under NEPA to consider reasonable alternatives, including alternatives that would have bypassed the Reservation. The court held that the FAA’s evaluation of noise impacts in the EA was not arbitrary and capricious and that the FAA gave sufficient consideration to the cumulative impact of the AEP. The court held that the National Historic Preservation Act did not require the FAA to prepare an environmental impact statement or to obtain plaintiff’s approval before implementing the AEP. Finally, the court held that the FAA did not violate ' 4(f) of the Transportation Act, since the FAA reasonably concluded that the AEP would have only an insignificant impact on the existing use of land. Morongo Band of Mission Indians v. Federal Aviation Administration, 161 F.3d 569 (9th Cir. 1998).