Supplemental Projects as Tools for Environmental Justice and Economic Development in Small Towns

Vol. 30 No. 4

By

John Rosenthall serves as environmental counsel to the National Conference of Black Mayors, located in Washington, D.C.  Charles Lee is associate director for policy and interagency liaison for the EPA. Office of Environmental Justice. He chairs the Federal Interagency Working Group on Environmental Justice. The views expressed in this article are solely those of the author. No official support or endorsement by the Environmental Protection Agency or any other agency of the federal government is intended or should be inferred.  Michael Daniel is an attorney in Dallas, Texas.

Supplemental environmental projects (SEPs) allow entities that violate environmental policies to provide funds to conduct environmental justice and environmental revitalization projects in small towns and rural areas. SEPs, with their voluntary commitments of funds by businesses and other entities, can support projects designed to promote public health and the environment, sometimes to a greater degree than fines and other punitive sanctions. The specific projects can be the product of negotiations between the government and the defendant or respondent in an environmental hazard case or may include other entities such as community groups or local elected officials. In any case, the final SEP should provide a public benefit to offset to some degree the impact of the environmental insult.

SEPs must meet several constitutional, legal, and policy requirements in order to receive governmental approval. These requirements sometimes present challenges to public and community participation in the SEP development process, however, as when legal actions entail confidential settlement negotiations. Community-based difficulties to SEP development may also exist when conflicting litigation schedules and other technical matters affect the process. However, federal agencies continue to seek means to facilitate SEP designs in the best interest of human health and the environment.

The Environmental Protection Agency (EPA) aggressively seeks to include SEPs in appropriate enforcement actions. The EPA's Final SEP Policy, 63 Fed. Reg. 24,776 (May 5, 1998), places certain conditions on SEPs, noting that each project must:

  • Exclude actions the defendant or respondent otherwise is required to perform;
  • Be a project the government is unlikely to conduct or compel another party to conduct;
  • Be funded above and beyond any penalty imposed in response to a violation;
  • Advance at least one objective of the environmental statutes forming the basis of the environmental action; and
  • Have an adequate nexus to the violation.

The EPA actively encourages community participation in SEP design negotiations. Such participation may aid in penalty mitigation for a defendant or respondent. Yet community participation in many federal procedures presents a host of challenges for both the government and the public. These are amplified in small towns, low-income jurisdictions, and environmental justice communities. Small jurisdictions often lack the capacity and resources to manage the challenges to the same degree as larger communities, or to participate effectively in federal decision-making processes. One such challenge is the need for local, trusted figures who understand the technical and complex environmental issues that may be presented in settlement discussions. Such figures can often be found in large towns but may not be present in smaller areas. An inability to understand the technical and complex issues may complicate settlement discussions and preclude participation by the lay public.

Capacity building programs can help small towns and environmental justice communities improve their ability to participate in federal programs and federal decision-making processes. Capacity building gives local community groups the necessary tools for meaningful participation in agency decision making. Small town mayors and community representatives who come into a planning situation with little or no information about the process or the subject matter under consideration may find it difficult to make a meaningful contribution or to accept the outcome. Because the EPA places a high priority on including SEPs with public participation in settlements it may be necessary for the agency to build capacity in various communities as needed.

Defendants and respondents, however, often are reluctant to include non-parties to litigation such as local governments and community groups in SEP negotiations. Some cite confidentiality as a reason; others state that including outsiders in the negotiation process is a disincentive to industries and other businesses to enter into SEP projects. These entities may be concerned that outsiders could learn trade secrets, alter the process, prove difficult in negotiations, or harbor unreasonable expectations or demands. Federal agencies' public participation experiences, however, have shown that including communities and others in the processes can produce outcomes that are faster and cheaper than the outcomes of processes without community participation. In addition, decisions made with community input can result in greater acceptance and support than those without such participation. Inclusion can also improve relations between defendants/respondents and the community that suffered the environmental harm.

Environmental justice is a process, not an outcome, and requires that entities affected by environmental decisions have meaningful involvement in any subsequent processes. SEPs, by their nature, have an impact on the public health and safety of the community in which they are implemented. It logically follows that local elected officials and the public should have active participation in SEP designs. Although current regulations require a nexus between an SEP and the environmental violation, local officials are constantly seeking means to advance economic development objectives. The challenge is to develop SEPs that meet the interests of all parties yet remain within the confines of the Constitution, federal statutes, and government policies.

One way to meet this challenge is to establish a Small Towns and Rural Area Environmental Revitalization Fund financed by SEP proceeds from all civil and criminal enforcement actions. A portion of the fine for each action including an SEP would go to the fund and be used exclusively for small town revitalization. Management would be supplied by a small committee made up of representatives from the EPA, the Department of Justice, the private sector, and the community. The committee might annually issue requests for proposals, contingent on the amount in the fund. Additionally-and consistent with approved guidelines and existing laws, regulations, and policies-a project selection panel could make recommendations for the awards and make all other project decisions. Competition for proceeds from the fund could be limited to small towns that have experienced an environmental impact. Fund guidelines could require that all projects seeking proceeds from the fund must include substantial community participation and support economic development activities. Such a fund could increase local municipal and community participation in designing SEPs and determining how the funds are spent.

Although such a plan would face substantial challenges, such as meeting the nexus test and applying money tothe area experiencing the environmental insult, it could become a reality, even if it necessitated legislative adjustments to existing policies. This or a similar plan would avoid confidentiality issues, produce increased community participation in the SEP process, and promote environmental justice.

 

Collaborative Models to Achieve Environmental Justice and Healthy Communities

By Charles Lee

The vision of environmental justice is the development of a holistic, community-based, participatory, and integrative model for achieving just, healthy, and sustainable communities-urban, rural, and tribal. During the past several years, the Office of Environmental Justice (OEJ) of the Environmental Protection Agency (EPA) has developed this vision into an emerging reality. To do so required the coordinated efforts of all federal agencies because environmental justice issues are implicated in environment, health, housing, education, transportation, and other departments.

The federal Interagency Working Group on Environmental Justice, chaired by the OEJ, responded by sponsoring a series of fifteen environmental justice demonstration projects starting in May 2000 and a second round of fifteen starting in March 2003. Following are short summaries of successful collaborations:

  • The ReGenesis Revitalization Project in Spartanburg, South Carolina, has leveraged some $3.7 million in federal resources and transformed the political atmosphere in the Arkwright/Forest Park neighborhoods from environmental insults to a broad vision for community revitalization.
  • Bethel New Life, Inc., a faith-based community development corporation, is spearheading, in partnership with Argonne National Laboratories and other entities, a transit-oriented, green commercial and residential development in the formerly blighted West Garfield Park neighborhood of Chicago. It is "turning environmental liabilities into community assets and opportunities."
  • The Environmental Health Coalition and a partnership of government, community, and business groups have worked with San Diego's Barrio Logan community and won commitments to address long-standing land use issues. In 2003 the Barrio Logan community celebrated the closure of Master Plating, a metal plating shop with more than 150 violations of environmental and health regulations, located mere feet from neighborhood homes.
  • On May 1, 2003, the Intertribal Council on Utility Policy dedicated a 750-kw wind energy turbine on the Rosebud Reservation in South Dakota, beginning an ambitious plan to tap the vast wind energy resources of the Northern Great Plains. The program is intended to be a vehicle for creating tribal-operated and -located sustainable economies. In this way, tribes can be restored as full partners in determining their destinies.
  • Anniston, Alabama, a city historically plagued by industrial contamination and military waste, is now home to the Anniston Vision 2020 Project, a children's health education, monitoring, prevention, and intervention project. In 2020 the project's first participants are expected to enter college.

As a result, the EPA's OEJ has initiated a grant program based upon a collaborative model, the Environmental Justice Collaborative Problem-Solving Grants. The program will make a total of $1.5 million available to fifteen community-based organizations to help achieve tangible working relationships and solutions to environmental justice problems. For more information, see www.epa.gov/compliance/environmentaljustice.


Using the Fourteenth Amendment to Improve Environmental Justice

By Michael Daniel

Equal protection of the law lies at the core of environmental justice, pulling together diverse themes of fairness in decision-making processes and substantive outcomes. Because contemporary laws and policies do not explicitly distinguish on the basis of race, ethnicity, or color, courts must now answer the question of whether differential outcomes have their source in an impermissible intent. The Miller v. City of Dallas case, 2002 U.S. Dist. LEXIS 2341 (N.D. Tex. 2002), demonstrates that cities with a legacy of racist land use practices may need to consider this history as they move forward with new land use plans.

Years before the terms "environmental justice" or "environmental racism" were coined, residents living in communities of color brought Fourteenth Amendment actions to secure municipal services equal to those in white neighborhoods. These cases include: Dowdell v. City of Apopka, 698 F.2d 1181, 1185 (11th Cir. 1983), which found discrimination in street paving, water distribution, and storm drainage services; United Farmworkers of Florida Housing Project, Inc. v. City of Delray Beach, 493 F.2d 799, 811 (5th Cir. 1974), which found violations of farmworkers' civil rights by city officials; and Johnson v. City of Arcadia, 450 F. Supp. 1363, 1379 (M.D. Fla. 1978), which found discrimination in access to paved streets, parks, and the water supply.

Current Fourteenth Amendment jurisprudence arises only after a history of evolving interpretation of the Equal Protection Clause. The Supreme Court's decision in Washington v. Davis, 426 U.S. 229 (1976), announced the rule that impermissible discrimination under the Fourteenth Amendment requires a showing of intent, not simply of disparate impact. The following year, in Village of Arlington Heights v. Metropolitan Housing Development Co., 429 U.S. 252 (1977), the Court established a set of factors to determine whether invidious discrimination underlies an otherwise legitimate exercise of government authority. These factors include the following: (1) the discriminatory effect of the action; (2) the historical background of the decision; (3) the specific sequence of events leading up to the challenged decision; (4) the departures from the normal procedural sequence; (5) the departures from the normal substantive standards; and (6) the legislative or administrative history of the decision.

To date, the Equal Protection Clause has proved ineffective in litigation over the siting of permitted facilities. Recently, however, residents of Cadillac Heights, a predominantly African American and Hispanic neighborhood in Dallas, Texas, survived summary judgment in their action alleging that the city maintains a pattern of inferior zoning, flood protection, and environmental quality in some neighborhoods. The residents further alleged that the city established this land use pattern based on race-conscious decision making. Miller v. City of Dallas, 2002 U.S. Dist. LEXIS 2341 (N.D. Tex. 2002). Using the Arlington Heights factors as its framework for decision, the court found the following facts compelling: zoning for the neighborhood is residential, but the area lies immediately adjacent to heavy industrial uses; the city considered overt racial segregation as a legitimate policy goal for land use decisions through the 1940s; and the city knew that Cadillac Heights would be an industrial area when it designated the area a "Negro development."

Following the court's decision, the plaintiffs settled the case for money damages. The remaining residents, who are considering filing a new action, gave the city until September 4, 2003, to come up with an acceptable plan for a fair buyout and relocation benefits. The residents will decide whether or not to sue after September 4, 2003.

A single federal district court decision denying summary judgment against civil rights plaintiffs is not the stuff of sweeping legal change. But the Cadillac Heights case is part of a line of cases that offers an evidentiary framework, through the Fourteenth Amendment, for addressing environmental justice issues arising in areas with histories of discrimination.

As published in Human Rights, Fall 2003, Vol. 30, No. 4, p.13-15.

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