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October 01, 2003

Urging 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.15.

Michael Daniel

Michael Daniel is an attorney in Dallas, Texas.