New York's Model for Economic Justice

Vol. 30 No. 4

By

Erin M. Crotty is the commissioner of the New York State Department of Environmental Conservation. Janette Wipper is currently an attorney with the National Association for the Advancement of Colored People (NAACP) in Baltimore, Maryland.

The New York State Department of Environmental Conservation's (DEC) mission is to protect, preserve, and improve New York's environment and natural resources in order to enhance the health, safety, and welfare of the people of the state and their overall economic and social well-being. Equality and equal protection are inherent to our mission. With the emergence of the environmental justice movement, the Department and other agencies across the nation are taking a closer look at equality and equal protection in environmental laws, policies, and programs as they relate to minority and low-income communities.

In 1998 a group of parties interested in environmental justice met with the DEC's executive staff about perceived disparities affecting residents from minority and low-income communities. The residents targeted the lack of meaningful public participation in the environmental permit review process, the lack of public access to certain information, and the failure of the permit review process to address disproportionate adverse environmental impacts on their communities. Additionally, they mentioned perceived inequities in the distribution of "green" benefits, such as grants and open space, and the need for consistent, effective enforcement in all communities against violators of the Environmental Conservation Law.

In response, the DEC created the Office of Environmental Justice in October 1999 to promote greater involvement by minorities and low-income populations in permit reviews and to address disproportionate adverse environmental impacts. Our environmental justice efforts focus on improving the environment in underserved communities; ensuring equity in the implementation of our laws, programs, and activities; and protecting residents from adverse health impacts. Our environmental justice program is based in the belief that no group of people should bear a disproportionate share of adverse environmental impacts.

As Albert Einstein once said, "The significant problems we face cannot be solved at the same level of thinking we were at when we created them." Therefore, in March 2003 the DEC completed CP-29, Environmental Justice and Permitting, a policy designed to enhance the permit review process and establish the framework for incorporating measures to achieve environmental justice in our various programs, policies, regulations, legislative proposals, and activities. The policy can best be explained by breaking it into three categories:

1. Enhancing public participation so that residents of New York can have information about and participate in the environmental decisions that affect their communities. Public information now is more freely available; a new Web site, www.dec.state.ny.us/apps/envapps, enables the public to view the status of environmental permit applications, without the need for a formal, written information request pursuant to the Freedom of Information Act. Individuals without Internet access can use their closest regional office, and residents of New York State can utilize a toll-free hotline devoted entirely to environmental justice issues, 866/229-0497. We also translate numerous brochures and informational pamphlets into Spanish and other languages as needed.
Additional components of the enhanced public participation include the following:

A technical assistance grant program to supply funding to community groups so they can hire consultants to review DEC or applicant permit information and to represent them in the process. We are pursuing legislative funding for this aspect of the program.

Educational opportunities aimed at staff, permit applicants, and the public. This summer, the DEC initiated a highly interactive two-day training that included tours led by community residents of neighborhoods that face environmental risks. We also created new material to give permit applicants greater awareness of the residents' concerns and have developed additional empowerment workshops.

2. Expanding our current environmental permit review process by screening for underserved communities, requiring added scrutiny for applicable permit applications in these communities, and utilizing the DEC's legal discretion to require full environmental assessment forms and to extend public comment periods.

3. Investigating new legal solutions relative to environmental justice, such as revising environmental regulations and establishing work groups to review disproportionate impacts and overall health issues. The disproportionate impact work group is chaired by DEC staff; the health work group is chaired by the state Department of Health. Each of these work groups is expected to provide a report with written recommendations later this year.

The public participation plan requirement is best discussed in the context of the permit review process. The policy sets forth applicability criteria, screening procedures to identify minority and low-income communities, public participation requirements, extended public comment periods for environmental impact statements, and added scrutiny in the environmental permit review process using the DEC's legal discretion. These build upon existing procedures and apply to all new major projects and major permit modifications authorized by the state pollution discharge elimination system, air pollution control, solid waste management, industrial waste management, and the siting of industrial hazardous waste facilities.

Once a proposed project is deemed applicable, the policy articulates several mandatory steps. First, a preliminary screen performed by DEC staff identifies minority and low-income communities that may be adversely affected by the proposed project. The permit applicant is then required to develop and implement a public participation plan to solicit meaningful public participation from all affected stakeholders. The policy requires that the applicant plan identify all stakeholders potentially affected by the proposed action, distribute and post written information about the project and the permit review process in an easy-to-read format, hold public informational meetings, and establish a document repository in or near the various minority or low-income communities to be easily available to those who may have no other access.

Additional procedural requirements triggered when an environmental impact statement is required include mandatory scoping whereby the DEC, the project sponsor, and the public identify potentially significant adverse impacts related to the proposed action. The policy also requires a public hearing and extends the minimum time frame for public comment.

Although the environmental justice movement has been around for more than twenty years, it continues to develop as new issues arise and tools for addressing environmental justice improve. DEC policy lends itself to revision as new information becomes available and as issues evolve. The policy also takes a proactive approach toward developing a better environmental permit review process that analyzes disproportionate environmental impacts on minority and low-income communities and identifies existing health data that can be used in the environmental permit review process. Other proactive initiatives include proposed revisions to the state's environmental regulations, increased use of alternative dispute resolution to resolve environmental justice issues, and supplemental enforcement inspection in minority and low-income communities where there is reason to believe violations exist.

The DEC's Office of Environmental Justice will continue to move toward our goal of environmental justice and equality and equal environmental protection for all. For additional information about the New York DEC Environmental Justice Program, please visit us on the Web at www.dec.state.ny.us.


Profile of an Environmental Justice Advocate: Janette Wipper

Environmental justice is a relatively new issue for the civil rights movement. But the history underlying many environmental injustices has followed the same path as other civil rights issues, calling upon the civil rights movement to extend beyond its traditional areas and embrace environmental justice as a priority.

Janette Wipper, who recently launched the first environmental justice legal program at the NAACP, is a strong advocate of making environmental justice a priority of the civil rights movement. She works collaboratively with the association's 2,000 regional, state, and local units, as well as with grassroots groups, to address environmental injustices across the country.

Wipper formerly served as an attorney with the Lawyers' Committee for Civil Rights Under Law, where she litigated environmental justice cases like Washington Park Lead Committee, Inc. v. U.S. EPA. In that case, Wipper represented the residents of the Washington Park housing project, built in the early 1960s as "Negro housing" on land formerly used as a disposal site for an adjacent, active foundry. The land eventually was designated a Superfund site due to lead contamination. Although the EPA relocated private landowners and rezoned the site and adjacent areas for industrial use, Washington Park residents-95 percent African American-were left on the contaminated site.

In 1998 Washington Park residents filed a class action lawsuit against the EPA and other government defendants, charging that the government perpetuated de jure segregation and its related effects by choosing a remedy that excluded the residents' relocation. Two years later, the Washington Park residents secured a landmark victory when the defendants agreed to relocate all 160 families from their lead-contaminated homes to safe, integrated housing. This was the first time an ongoing Superfund remedy was altered to address racial discrimination in its selection.

Wipper currently represents the plaintiff in Newtown Florist Club v. City of Gainesville. The city of Gainesville was destroyed by a tornado in 1936, and during the rebuilding, the segregated African American community of "Newtown" was established on top of a former landfill. One year after Brown v. Board of Education, Gainesville rezoned the area immediately surrounding Newtown as the only allowable site within city limits for heavy industrial development. Today, Newtown, which remains over 95 percent African American, is surrounded by more than a dozen heavy industrial plants and other toxic facilities; its residents suffer one of the highest incidences of lupus and cancer in the country. In 2003 the Newtown Florist Club filed a class action lawsuit against local government entities, citing the environmental effects of housing segregation and charging intentionally discriminatory land use and zoning policies in violation of federal civil rights laws.

Litigation is not the only successful strategy used by Wipper and other environmental justice advocates, however. Unprecedented community activism during the 1990s in Texas successfully forced abandonment of a low-level radioactive waste disposal facility in a low-income Latino community near the Mexican border. Protesters included a binational coalition of Texas city and county governments, the Mexican states of Coahuila and Chihuahua, the Mexican National Congress, and community residents. In addition, Wipper has worked with Acción Ecológica and indigenous South American communities to secure an international cleanup of oil contamination in the Amazon. As part of the Oilwatch global network, she works with international environmental justice activists to address adverse impacts of oil activity on local populations and tropical forests.

Wipper also has contributed articles on environmental racism to governmental and nongovernmental reports and programs and most recently attended the UN World Conference against Racism in Durban, South Africa, as an official non-governmental organization delegate.

As published in Human Rights, Fall 2003, Vol. 30, No. 4, p.11-12.

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