A private lawyer representing a private client is seldom a crusader. When environmental justice is relevant to a particular matter-the client proposes to build a facility and engages the lawyer to help secure necessary governmental approvals, for example-the lawyer's primary duty must be to the client.
The client in such a case faces two primary types of questions: substantive, such as where and how to build the facility; and procedural, deciding what processes to follow and how much to involve the community in the planning. Typically, by the time the lawyer is brought in, the client already has made most of the substantive decisions. (Although many environmental justice controversies focus on the siting of facilities in low-income, minority communities already burdened with heavy industry, these decisions generally are made before the private lawyers are engaged.)
In contrast, environmental lawyers tend to become centrally involved in the process issues. The following questions are typical examples of the issues they consider:
- Should the project be adjusted in size, design, or location within the site to avoid certain permitting requirements? For example, wetlands permits sometimes can be avoided by moving the footprint; air pollution permits may be skirted by lowering emissions or changing physical processes.
- Should a particular level of government (e.g., federal or state) or a particular agency (e.g., environmental or public works) be encouraged to take the lead in reviewing the project?
- Should a full environmental impact statement be prepared where the option is relevant and available?
- Should special legislative or administrative exemptions be sought to get around particular permitting requirements?
Most of these questions have no easy answers. They typically involve gauging and balancing litigation risks, political risks, and economic trade-offs in situations fraught with uncertainty. Thus, the private lawyer's role may seem more confined than that of a public interest advocate, but often it is no less challenging. Take, for example, the issue of how best-or even whether-to engage the community during the approval process. Until the birth of modern environmental law during the 1970s, entities tended not to involve communities at all. Large projects could be and typically were rammed through with zero public participation or a single perfunctory hearing at most. Today's environmental laws provide many opportunities for impacted communities to be heard, and beyond the occasions mandated by law, an aroused neighborhood can create its own forums and outlets for opinion.
Some project applicants still try to get by with as little public involvement as possible, while others meet with the public early and often. No one method is best. For coldly rational applicants, there are two principal variables:
- The attitudes of the government agencies that must approve the project and the elected officials to whom they report. In theory, most agencies make permitting decisions purely on the merits; in practice, any strong view held by a cabinet secretary, governor, mayor, or the like has a major impact on whether the permitting road is smooth or rocky.
Where those in power announce that the project is desired and roadblocks should be cleared-as frequently occurs with large public works or utility projects and proposals with major job and tax benefits-the typical applicant has little incentive to engage in costly and time-consuming public participation beyond what the law requires, especially if it might bring opponents out of the woodwork. If a project is in favor at all relevant levels of government and the required processes are meticulously followed to avoid successful legal challenges, public opinion may not matter much-unless project opponents are so effective that the favorable opinion is in danger of evaporating.
On the other hand, if the government is ambivalent or hostile to a proposal, public sentiment can play a major role in the ultimate outcome, and intensive dealings with the community can help shape its views. A number of methods are available to applicants who want to involve the public: citizen advisory committees, frequent meetings with established groups, newsletters and Web sites, financial assistance to local charities, and the like.
- The entity's desire, outside the permitting process, to be a good neighbor and to cultivate a positive environmental image for the business. The actual motivation may be pure or not; the entity may frame itself as a green company, or it may need favorable public sentiment beyond the permitting phase. A lawyer handling the permitting should be certain to look beyond the immediate proceedings and thoroughly discuss with the client its broader interests. Brownfields development projects, for instance, depend heavily on the participation of local residents. Because they have the multiple objectives of cleaning up contaminated land, creating new businesses that will generate jobs and taxes, and revitalizing a neighborhood, community involvement usually is essential.
When deciding on possible public participation, a client seeking to build a project often will ask the lawyers to assess the litigation risk. As of August 2003, an applicant's risk from successful environmental justice litigation is very low. The main legal theories used to bring environmental justice claims have been unsuccessful, with courts holding that either (1) plaintiffs must prove discriminatory intent under the Equal Protection Clause of the Constitution, Title VI of the Civil Rights Act, agency regulations under Title VI, or 42 U.S.C. Section 1983 or (2) there is no private right of action under Executive Order No. 12,898. No plaintiff ever has succeeded, after the conclusion of all appeals, in proving discriminatory intent in an environmental justice case. Private parties may file environmental justice complaints with the EPA, but they rarely if ever succeed; one reason is that under the EPA's Select Steel decision, a complainant must establish that the project would cause actual harm to health or the environment, which is seldom possible for projects that would otherwise succeed in getting their permits. No state has adopted legislation that establishes a substantive (as opposed to a procedural) right to environmental justice.
On the other hand, plaintiffs have achieved considerable success using substantive environmental laws. Many community organizations, particularly those with sophisticated environmental counsel, have persuaded agencies to deny permits to controversial projects (especially those that are not aggressively promoted by the governmental chief executive) or have convinced courts to overturn permits. Even more frequently, opponents are able to drag out the approval process so that applicants give up and withdraw. Thus, despite their poor record in succeeding in court on environmental justice theories, project opponents often lose the battles but win the wars.
Controversy over environmental justice is a proven impetus for community organizing. Many projects that survive in court ultimately are cancelled because the proponents were fed up with the delays or missed their markets. For this reason, from the standpoint of applicant's counsel, effective public participation remains important for most projects where there may be significant controversy. Controversy can sometimes erode seemingly assured support at the top levels of government and lead to successful environmental (if not environmental justice) litigation.
Environmental justice controversy can occasionally threaten the continued operation of a project already in operation. A medical waste incinerator in New York's Bronx-Lebanon Hospital was shut down in the face of strong environmental justice arguments made by the community. Unfortunately, this is more the exception than the rule, given the strength of the grandfathering provisions of most environmental and land use laws. Counsel nonetheless must remain attentive to the risk that community advocacy may influence regulators to move more slowly to renew permits and more quickly to impose stiff penalties for violations for facilities that pose major environmental justice problems.
When facilities are alleged to have caused personal injury or property damage, environmental justice easily can become a factor in any ensuing toxic tort litigation. Even though environmental justice theories as such may have little bearing on either liability or damages, some plaintiffs' counsel have made effective use of allegations of environmental injustice in persuading juries to award large damages. This is another reason why public sentiment about a project is an important factor in the facility's long-term economic health.
A Private Sector Guide to Community Relations
Two recent decisions have restricted the rights of private citizens to bring Title VI complaints in court under Section 602, which promulgates disparate impact regulations, or under Section 1983, which makes anyone who deprives a party of constitutional rights liable to that party. Alexander v. Sandoval, 532 U.S. 275 (2001); South Camden Citizens in Action v. N.J. Dep't of Envtl. Protection, 274 F.3d 771 (2001).
In all projects potentially or actually involving possible challenges based on environmental justice issues, all interested project developers, overseers, and community representatives would do well to consider the fact pattern presented memorably by the federal district judge in South Camden, Judge Stephen M. Orlofsky. In finding that the community was disparately impacted even before the proposed project, he listed the following obvious facts:
- People of color made up over 90 percent of the targeted community-within a county that was approximately 75 percent white.
- Over 50 percent of community residents survived at or below the federal poverty level-while the average income for the rest of the county was more than double that.
- The community already housed a number of industrial sites: a sewage treatment plant, a trash incinerator, a cogeneration plant, a gypsum manufacturer, a flavor producer, an oil refinery, a UPS facility, two federal Superfund sites (one radioactive), and other polluted sites under governmental investigation.
- Self-reported health data reflected almost double the rates of asthma, problems coughing or catching breath, and tightness in the chest than in other parts of the county; in fact, both city and state officials previously had identified the community as an area of concern.
By developing an early dialogue with the public and staying sensitive to the cumulative impacts of infrastructure projects, agencies and developers can more easily comply with the letter and spirit of Title VI, avoid delays and needless litigation, and create opportunities for cooperation rather than cooption. The following checklist can help gather the relevant facts:
- Exchange information with local community groups before final plans are prepared.
- Focus on those facts found to be relevant under Title VI, as in South Camden.
- Enlist experts to investigate environmental, economic, health, and social impacts of the proposed project, and all issues raised by community groups.
- Avoid applying cookie-cutter analysis to different projects-not all are created equal. Appreciate the differences between and within affected communities.
- Do not assume that enhancements will automatically benefit underserved communities.
- Conversely, do not fail to stress the potential benefits of the project to the community
- Involve counsel experienced in working with diverse, underserved communities as early as possible in the long-term planning and any NEPA processes.
Michael B. Gerrard is a partner in the New York City office of Arnold & Porter. He is the general editor of The Law of Environmental Justice (ABA 1999) and the chair elect of the ABA's Section of Environment, Energy and Resources. As a former chair of the Environmental Law Section of the New York State Bar Association, he helped found the Minority Fellowships in Environmental Law, which have been emulated in many states.
Benjamin F. Wilson is a director at Beveridge & Diamond, P.C., a law firm in Washington, D.C. Dana P. Palmer was a summer associate at the firm.
As published in Human Rights, Fall 2003, Vol. 30, No. 4, p.18-20.