Volume 18, Number 2
March 2001

ENVIRONMENT, ENERGY, AND RESOURCES

Environmental Justice and Natural Areas Protection

By Michael B. Gerrard

There are 3,119,963 square miles in the continental United States. However, when the facility seeking a home is environmentally controversial, finding even one square mile can seem almost impossible.

This country is now in its third major era in making siting decisions. The first era—unconstrained siting—lasted until the late 1960s. Then began the second era—protecting natural areas. In the early 1990s, we embarked on a third era—environmental justice. The growing tensions between protecting natural areas and achieving environmental justice suggest that we should strive for a fourth era, in which these two important goals are reconciled and allowed to work together.

For most of American history, the decision of where to locate a facility was made based on engineering considerations. For example, if a manufacturing plant required large amounts of water for power or for waste disposal, it could be put alongside a river. Few procedures existed to identify the environmental impacts of proposed actions, and if any such impacts were found, there were few legal mandates to avoid or minimize them. By the 1960s, some of the consequences began to be felt, and a nascent environmental movement began to stir.

Statutes designed to protect natural areas and other special places were enacted in the1960s. The environmental statutes of the 1970s were aimed less at protecting natural areas and more at reducing technological threats to human health. The Comprehen-sive Environmental Response, Compensation and Liability Act of 1980 (CERCLA or Superfund) aimed to force the cleanup of land that was contaminated with hazardous substances. It also created a private right of action on behalf of those who investigated or cleaned up a wide variety of contaminated sites not on the priorities list. Liability was extended to many who had done nothing to create the contamination. This far-reaching liability scheme created a new class of property that was virtually undevelopable. If a parcel’s industrial history suggested it might be contaminated, many financial institutions would not go near it. This led to the brownfields problem: even slightly contaminated land became virtually undevelopable, deepening the blight on old urban neighborhoods (where much of this land was located) and driving many projects to untainted suburban or exurban "greenfields."

At the same time that these land development restrictions were being imposed, the demand for new facilities continued to grow. Most were private projects whose sites were selected behind closed corporate doors. However, some were public projects that, because of their size, unpopularity, or unprofitability, few private companies wanted to tackle on their own. A prime example was the siting of facilities for the disposal of solid or hazardous waste. For these kinds of projects, an iterative siting process evolved. At the first step, all areas in the relevant geographic area that were covered by one of the natural area protection laws were disqualified. Then cost factors, such as distances from raw materials and markets, were considered. Ultimately, the best site was selected, and the project entered the permitting process. Frequently this process led to sites in or near cities or towns, because while there are laws protecting natural areas, there is no Populated Areas Protection Act. Areas where people lived could make it all the way through the various steps in the siting process. The theory was that political forces would work to shield these areas, so that environmental constraints were not necessary. The reality was that some communities have far more political clout than others.

By the mid-1980s, added attention fell upon effects on urban neighborhoods. A seminal event was the publication in 1987 of Toxic Wastes and Race in the United States by the Commission on Racial Justice of the United Church of Christ. It presented statistics showing that toxic waste sites were disproportionately located in low-income and minority areas, and that these sites were more closely correlated with race than with income. This book became the manifesto for the nascent environmental justice movement, which focused on distribution and on process. Studies were performed concerning whether the proposed location of a facility had more or fewer people of color or of low incomes than the typical spot in that county, town, zip code, or census block. Processes were established to ensure community participation at every stage of the decision-making process. These new requirements had legal underpinnings in the Equal Protection Clause, Title VI of the Civil Rights Act, and an executive order on environmental justice issued by President Clinton in 1994. From these authorities the U.S. Environmental Protection Agency (EPA) has the power to review racial and economic disparities in proposed sitings, and to suggest or require that alternative sites be examined or selected. The focus on distribution moved to the background the question of whether the facility would really have an adverse physical effect, such as a tangible health impact. In 1998, however, the EPA issued a decision that a project that would not violate health standards is shielded from environmental justice attack at the legal level.

The growing clout of environmental justice has not undermined the old power of natural area protection. It is no easier now to site a facility in a wetland or a park than it was a decade ago. Rather, it has created a large new class of protected areas. The protection is not absolute (permits can be granted for filling wetlands), but it is considerable. A result has been to squeeze projects into areas that do not yet enjoy special protections, and that do not bear the taint of past industrial contamination. Most older cities do not have many such areas nearby. A prime target is farmland. An inevitable result is increased sprawl, as new developments are chased from the cities and into the automobile-dependent hinterlands.

Another result runs directly contrary to the goals of environmental justice itself. The remaining sites are so few and inconvenient, and the processes are so onerous, that many projects do not get built at all. Of course some projects should not be built; they create much pollution and few jobs, what they make is not essential, and their public costs far exceed their benefits. But others would have a positive effect on society. A prime example is affordable housing. The traditional environmental laws have been used to keep such housing out of the suburbs, and, ironically, environmental justice theories are sometimes being used to keep them from city neighborhoods as well. The squeeze play also inhibits the replacement of older, polluting facilities with new ones that use modern, cleaner technology. The Clean Air Act, the Clean Water Act, and most other environmental laws contain grandfather clauses that allow old plants to stay in operation.

The negative effects of this squeeze play point the way toward a fourth era in facility siting. This period would have four characteristics. First, the question of the need for the new facility should move closer to center stage in the siting and permitting processes. Facilities for which there is a compelling public need are now treated just about the same as those that serve far less weighty needs. It makes sense to be more flexible in granting environmental permits for more needed facilities. Second, for projects that can pose genuinely significant environmental risks, such as hazardous waste disposal facilities, more attention should be paid to whether waste minimization could reduce the need for the facility, or lead to fewer similar facilities nationwide. Third, when considering a new facility, a serious determinant is whether it would displace an old one and, if so, the net environmental impacts of the shift. Fourth, in environmental justice analysis, proximity to a low-income or minority community should not be the only factor. Proximity should not be irrebuttably presumed to mean that the project will have a negative impact. Attention must be paid to actual impacts.

Michael B. Gerrard is a partner in the New York office of Arnold & Porter and Education Officer of the ABA Section of Environment, Energy, and Resources

- This article is an abridged and edited version of one that originally appeared on page 44 of Natural Resources & Environment, Summer 2000 (15:1).

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