The Urban Lawyer

It's Not "Just" Zoning: Environmental Justice and Land Use

by Benjamin F. Wilson

Benjamin F. Wilson is managing principal of Beveridge & Diamond, P.C, in Washington, D.C. He has been lead counsel in many complex environmental litigation and regulatory matters for major consumer products corporations, retailers, oil and gas companies, municipalities, and developers. He serves as the court-appointed monitor for the Duke Energy coal ash spill remediation project and previously served as lead counsel at the largest chromium site in the United States. This article was drafted as part of a panel discussion on issues of disparity in land use at the 31st Annual Land Use Institute in February 2017.


 

ENVIRONMENTAL JUSTICE ISSUES RECEIVE NATIONAL ATTENTION on a regular basis. Today, many law schools have entire courses and even environmental law clinics dedicated to environmental justice, and academics, practitioners, and government agencies devote resources and attention to addressing the issue. Several law schools, including Vermont Law School, Pace University School of Law, and Lewis and Clark Law School, focus primarily, if not exclusively, on environmental law. Yet, inequitable distribution of environmental harms and benefits persists. Indeed, in recent years we have laid witness to some of the greatest environmental justice disasters of our time, such as the Flint, Michigan, drinking water crisis.

As the distinguished Professor Patricia Salkin has stated, “environmental justice goes to the core of traditional land use decisions, such as: choosing sites for locally unwanted land uses … the process for deciding where to site these unwanted land uses, including the location and time of public hearings … and sociological factors, including which groups hold the political power inherent in land use decisions.”1 We need lawyers who are trained to identify environmental justice issues and who are willing to address environmental justice issues in the context of interpreting existing environmental and land use laws and to work with community leaders and advocates. Equally pressing is the need for attorneys working for the government, corporate America, and developers, who see environmental justice challenges as an opportunity to open a dialogue with poor communities and communities of color, and to solve a number of problems on both sides of the conversation.

This article provides an overview of the fundamentals of environmental justice, including the history of the movement and tools available to community advocates and attorneys working to further environmental justice through land use decisions. Familiarity with the principles and history of environmental justice is essential to understanding how land use laws, regulations, and decisions can further or hinder environmental justice concerns; and how poor and minority communities can use these laws to their advantage with the assistance of counsel.

I. What Is Environmental Justice?

A. Environmental justice is the great Civil Rights issue of the 21st century that focuses on a wide range of disproportionate burdens imposed on, and lack of benefits provided to, communities of color and low-income communities.

B. Environmental justice has many different definitions, reflecting the wide variety of perspectives on the issue. However, EPA’s widely accepted definition describes environmental justice as the “fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”2 Fair treatment means “no group of people should bear a disproportionate share of the negative environmental consequences resulting from industrial, governmental, and commercial operations or policies.”3

II. History of Environmental Justice

A. 1982: The State of North Carolina establishes a landfill to dispose of 6,000 tons of polychlorinated biphenyl (PCB) contaminated soil in a rural town in Warren County, an impoverished, 75% African American county with no governmental representation — no mayor and no city council. Independent scientists predicted the landfill’s ultimate failure based on the surrounding environmental conditions, such as proximity to groundwater. Six weeks of nonviolent widespread protests by residents, national civil rights leaders, environmental activists, and political figures culminated in over 500 arrests. While the facility was ultimately sited as planned, the Warren County protests resonated with communities nationwide. Many credit the events surrounding the landfill as having sparked the environmental justice movement.

B. 1983: Following the protests surrounding the Warren County landfill, U.S. Representative and participant in the Warren County protests Walter Fauntroy advocated for the then U.S. General Accounting Office to review hazardous waste siting decisions in U.S. EPA Region 4, consisting of eight states in the southeast United States (Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee). On June 1, 1983, the Office published the report, Siting of Hazardous Waste Landfills and Their Correlation with Racial and Economic Status of Surrounding Communities, which found disproportionate siting of hazardous waste landfills in low-income, minority neighborhoods.4 Specifically, the report concluded that African Americans make up the majority of the population in three of the four communities surrounding the region’s four offsite hazardous waste landfills, and at least 26% of the population in these communities lived below the poverty level.

C. 1987: The Commission for Racial Justice of the United Church of Christ publishes its fifty-state study, authored by Charles Lee, of the extent to which people of color are exposed to hazardous wastes in their communities. The report, Toxic Wastes and Race in the United States: A National Report on the Racial and Socio-Economic Characteristics of Communities with Hazardous Waste Sites, concluded that race was the best predictor of siting of commercial hazardous waste facilities, followed by household income.5 The report recognized the unique vulnerabilities that communities of color often face:

Racial and ethnic communities have been and continue to be beset by poverty, unemployment and problems related to poor housing education and health. These communities cannot afford the luxury of being primarily concerned about the quality of their environment when confronted by a plethora of pressing problems related to their day-to-day survival. Within this context, racial and ethnic communities become particularly vulnerable to those who advocate the siting of a hazardous waste facility as an avenue for employment and economic development. Thus, proposals that economic incentives be offered to mitigate local opposition to the establishment of new hazardous waste facilities raise disturbing social policy questions.6

Following the publication of the report, Commission Executive Director Dr. Benjamin F. Chavis develops the term “environmental racism,” to reflect the fact that hazardous waste facilities were overwhelmingly sited in communities of color.

D. 1990: Sociologist and civil rights activist Dr. Robert Bullard publishes his book Dumping in Dixie, which describes the efforts of five African American communities to combat environmental hazards in their neighborhoods. The book confirmed earlier reports’ findings that communities of color are disproportionately burdened by environmental hazards. In the same year, EPA establishes the Environmental Equity Workgroup to address allegations that racial minority and low-income population bear a higher environmental risk burden than the general population.

E. 1991: First People of Color Environmental Leadership Summit convenes environmental advocates from around the country to discuss plans to further environmental justice causes. As a result of the Summit, the seventeen Principles of Environmental Justice are published, establishing an all-encompassing conception of environmental justice.7 The Principles reaffirm that, “as people of color, we speak for ourselves,” emphasizing the bottomup, grassroots nature of the environmental justice movement.

F. 1992: Based on the Environmental Equity Workgroup’s recommendations, EPA establishes the Office of Environmental Equity, later renamed the Office of Environmental Justice.

G. 1993: EPA establishes the National Environmental Justice Advisory Council, a federal advisory council established to provide advice and recommendations to the EPA Administrator regarding how to best integrate environmental justice considerations into EPA programs, policies, and activities.8

H. 1994: President Bill Clinton signs Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low- Income Populations.9 The Order directs federal agencies to include considerations of health and environmental conditions in minority, tribal, and low- income communities in the federal decision-making process, while establishing the Interagency Working Group on Environmental Justice to facilitate the agencies’ efforts. Specifically, the Order directs federal agencies to identify and address, as appropriate, disproportionately high and adverse human health or environmental efforts of their programs, policies, and activities on minority populations and low-income populations.

I. 2007: To mark the anniversary of the publication of Toxic Wastes and Race, the Justice & Witness Ministries publishes Toxic Waste and Race at Twenty, addressing the country’s progress and lack thereof in rectifying environmental inequities.10 The report, written by Doctors Robert Bullard, Paul Mohai, Robin Saha, and Beverly Wright, concludes that “racial and socioeconomic disparities persist in the distribution of the nation’s commercial hazardous waste facilities.”

J. 2011: Sixteen federal agencies sign the Memorandum of Understanding on Environmental Justice and Executive Order 12898, recommitting to addressing environmental justice through a more collaborative, comprehensive, and efficient progress.11 The MOU requires each federal agency to publish and update its environmental justice strategy and publish an annual progress reports on its implementation of the Executive Order. One month following the MOU, EPA issued Plan EJ 2014, the Agency’s strategic plan for integrating environmental justice into all Agency programs, policies, and activities.12

K. 2016: The U.S. Commission on Civil Rights published its report analyzing EPA’s compliance with Title VI of the 1964 Civil Rights Act and Executive Order 12898.13 The report concluded that EPA has largely failed in providing relief to communities of color impacted by pollution, and that the Agency does not take action when facing environmental justice concerns until forced to do so. Specifically, the Commission indicated that EPA’s Office of Civil Rights has never made a formal finding of discrimination required under Title VI, and that EPA’s Final Coal Ash Rule negatively impacts low-income and communities of color disproportionately. Two months after the release of the U.S. Commission on Civil Rights’ report, EPA released its EJ 2020 Action Agenda, the Agency’s strategic plan for ensuring that minority, low-income, and indigenous communities are not suffering disparate environmental and public health impacts (EJ 2020).14 EJ 2020 describes EPA’s intent to integrate EJ into all Agency actions. On December 4, 2016, the Standing Rock Sioux Tribe achieved a major victory when the U.S. Army Corps of Engineers announced that it would undertake an environmental impact statement to look for alternative routes for the Dakota Access Pipeline, which could have threatened the tribe’s water supplies and disturbed sacred cultural sites. Native American communities often face environmental justice pressures, some brought on by the federal government, others may be internal to the sovereign nations.

III. Environmental Justice Legal Authority

A. As Professor Richard Lazarus has stated, “environmental justice does not find much formal expression in environmental law.”15 There are no specific federal statutes or regulations dedicated to addressing environmental justice issues, including the distribution of environmental risks or benefits. Executive Order 12898 creates no right to judicial review for alleged noncompliance.16

B. Existing environmental statutes and the Civil Rights Act, however, can and are being used to further environmental justice considerations, as demonstrated by recent EPA and other federal agencies’ recommitments to incorporate environmental justice into all of their actions.

1. Title VI of the Civil Rights Act prohibits recipients of federal funding from discriminating based on race, color, or national origin in any program or activity. For example, “if a state agency receives funds from EPA to run a clean air program, that state recipient is legally prohibited from discriminating on the basis of race, color or national origin under Title VI when engaging in clean air enforcement activities.”17

2. As Professor Lazarus has encouraged, and EPA has in fact begun to do, environmental statutes can be interpreted and applied with principles of environmental justice in mind to ensure poor and minority communities are treated fairly.18 For instance, in 2000, EPA’s Office of General Counsel published a memorandum analyzing which existing environmental statutory and regulatory authorities could be used to further environmental justice concerns in permitting under the Resource Conservation and Recovery Act; the Clean Water Act; the Safe Drinking Water Act; the Marine Protection, Research and Sanctuaries Act; and the Clean Air Act.19 The memorandum recommended specific opportunities in permitting for the Agency to consider and further environmental justice concerns. In 2004, EPA’s Office of Enforcement and Compliance Assurance published the Toolkit for Assessing Potential Allegations of Environmental Justice.20 The toolkit provides guidance to EPA personnel addressing allegations of environmental injustice in agency actions, in addition to preventing environmental injustices in the first instance.

3. This past year, EPA issued EJ 2020, the Agency’s strategic plan for advancing environmental justice between 2016 and 2020. Under the plan, EPA will focus on integrating environmental justice into existing EPA programs in order to “advance environmental justice to a new level and make a more visible difference in the environmental and public health outcomes for all people in the nation.” In addition to increasing its collaboration with state and local governments, federal agencies, communities, and tribes and indigenous peoples, the Agency intends to integrate environmental justice considerations into the following four areas:

a) Rulemaking: EPA plans to “institutionalize” environmental justice by implementing guidance, training, monitoring, evaluation, and community involvement, including rigorous assessments of environmental justice analyses in rules.

b) Permitting: EPA will establish a framework and tools for considering environmental justice in EPA-issued permits, while developing tools to assist EPA’s regulatory partners, such as states with statutorily delegated authority to enforce certain environmental laws, to do the same.

c) Compliance and Enforcement: Under the plan, EPA will focus enforcement resources to address pollution and public health burdens caused by violations of environmental laws in overburdened communities.

d) Science: EPA will also develop tools that provide a “stronger scientific basis” for action to address environmental justice and cumulative impact issues, as well as tools for monitoring and controlling environmental contamination.

C. States continue to adopt innovative environmental justice laws, regulations, and initiatives.21 As reported in University of California — Hastings and the ABA’s joint 50-state survey led in part by Nicholas Targ, states today use a variety of approaches — from community participation and education mechanisms to land use planning techniques, such as buffer zones — to improve environmental conditions and prevent environmental degradation in atrisk communities.22 State initiatives will become increasingly important in the event that the new administration decides to rescind any existing environmental justice policies. Examples of state efforts include:

1. California promulgated its first environmental justice law in 1999 designating the state Office of Planning and Research to be the lead agency in coordinating environmental justice programs.23 The statute instructs the office to consult and coordinate with state agencies in addressing environmental justice issues.

2. Florida requires that the Department of Environmental Regulation notify each local government within three miles of a proposed hazardous waste facility within thirty days of the receipt of a complete application to construct the facility and also requires that notice be published in a local newspaper.24 Additionally, Florida’s Brownfield Redevelopment Act requires that local governments responsible for brownfield redevelopment utilize public advisory committees formed of local residents to facilitate and improve public communication and transparency.25

3. Maryland has established the Maryland Advisory Council on Environmental Justice in 1997 to identify environmental justice issues in the state and recommend approaches to addressing these issues to the governor and General Assembly.26

4. North Carolina’s solid waste permitting process requires that counties consider “socioeconomic and demographic data” in considering siting of waste facilities and requires that counties hold a public hearing prior to selecting or approving a site for a new solid waste landfill.27

IV. Furthering Environmental Justice Through Land Use Decisions and Planning

Land use decisions are inherently at the heart of every environmental justice quandary. As noted in the National Academy of Public Administration’s 2003 report on the relationship between environmental justice and land use planning and zoning, published at the direction of the Office of Environmental Justice,28 scholars have described zoning and land use as both “a root enabling cause of disproportionate burdens [and] environmental injustice,”29 and simultaneously, “the most fundamental and potentially powerful of the legal weapons deployed in the cause of racism.”30 This high-level overview provides a foundation for attorneys working to further environmental justice through land use decisions, whether working as a regulator, for a private developer, or as a community member and advocate.

Entity:
Topic:
  1. Patricia E. Salkin, Environmental Justice and Land Use Planning and Zoning, 32 REAL EST. L.J. 429 (2003).
  2. U.S. Envtl. Prot. Agency, Learn More about Environmental Justice, https://www.epa.gov/environmentaljustice/learn-about-environmental-justice.
  3. Id.
  4. U.S. GENERAL ACCOUNTING OFFICE, SITING OF HAZARDOUS WASTE LANDFILLS AND THEIR CORRELATION WITH RACIAL AND ECONOMIC STATUS OF SURROUNDING COMMUNITIES (GAO/RCED-83-168) ( June 1, 1983), available at http://www.gao.gov/assets/150/140159.pdf.
  5. Charles Lee & Vernice Miller-Travis, Commission for Racial Justice, United Church of Christ, Toxic Wastes and Race in the United States: A National Report on the Racial and Socio-Economic Characteristics of Communities with Hazardous Waste Sites (1987), available at https://www.nrc.gov/docs/ML1310/ML13109A339.pdf.

     

  6. Id. at xii.
  7. Principles of Environmental Justice (Oct. 27, 1991), available at http://www.ejnet.org/ej/principles.html.
  8. U.S. Envtl. Prot. Agency, National Environmental Justice Advisory Council, https://www.epa.gov/environmentaljustice/national-environmental-justice-advisorycouncil.
  9. Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 Fed. Reg. 7629 (Feb. 11, 1994), available at https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf.
  10. Robert D. Bullard, PhD, Paul Mohai, PhD, Robin Saha, PhD & Beverly Wright, PhD, United Church of Christ Justice & Witness Ministries, Toxic Wastes and Race at Twenty—1987–2007 (2007), available at https://www.nrdc.org/sites/default/files/toxic-wastes-and-race-at-twenty-1987-2007.pdf.
  11. Interagency Working Group on Environmental Justice, Memorandum of Understanding on Environmental Justice and Executive Order 12898 (Aug. 4, 2011), available at https://www.epa.gov/sites/production/files/2015-02/documents/ej-mou-2011-08.pdf. The signing agencies include the Department of the Interior, the Department of Agriculture, the Department of Labor, the Department of Housing and Urban Development, the Department of Health and Human Services, the Department of Energy, the Department of Transportation, the Environmental Protection Agency, the Department of Commerce, the Department of Defense, the Department of Education, the Department of Veterans Affairs, the Department of Homeland Security, the Council on Environmental Quality, the General Services Administration, and the Small Business Administration. Id.
  12. U.S. Envtl. Prot. Agency, Plan EJ 2014 (2011), available at ttps://nepis.epa.gov/Exe/ZyPDF.cgi/P100DFCQ.PDF?Dockey=P100DFCQ.PDF.
  13. U.S. COMMISSION ON CIVIL RIGHTS, ENVIRONMENTAL JUSTICE: EXAMINING THE ENVIRONMENTAL PROTECTION AGENCY’S COMPLIANCE AND ENFORCEMENT OF TITLE VI AND EXECUTIVE ORDER 12,898 (2016), available at http://www.usccr.gov/pubs/Statutory_Enforcement_Report2016.pdf.
  14. U.S. Envtl. Prot. Agency, EJ 2020 Action Agenda: EPA’s Environmental Justice Strategy, available at https://www.epa.gov/sites/production/files/2016-05/documents/052216_ej_2020_strategic_plan_final_0.pdf.
  15. Richard Lazarus, Environmental Racism! That’s What It Is, 2000 U.ILL. L. REV. 255, 258 (2000).
  16. Morongo Band of Mission Indians v. Fed. Aviation Admin., 161 F.3d 569, 575 (9th Cir. 1998).
  17. U.S. Envtl. Prot. Agency, Title VI and Environmental Justice, https://www.epa.gov/environmentaljustice/title-vi-and-environmental-justice.
  18. Richard Lazarus, Pursuing “Environmental Justice”: The Distributional Effects of Environmental Justice, 87 NW. U. L. REV. 787, 825–55 (1993).
  19. U.S. Envtl. Prot. Agency, EPA Statutory and Regulatory Authorities Under Which Environmental Justice Issues May Be Addressed in Permitting (Dec. 1, 2000), available at https://www.epa.gov/sites/production/files/2015-02/documents/ej_permitting_authorities_memo_120100.pdf.
  20. U.S. Envtl. Prot. Agency, Toolkit for Assessing Potential Allegations of Environmental Justice (Nov. 3, 2004), available at https://www.epa.gov/sites/production/files/2015-04/documents/toolkitej.pdf.
  21. Univ. of Cal. Hastings College of the Law, Environmental Justice for All: A Fifty State Survey of Legislation, Policies and Cases (2010), available at https://gov.uchastings.edu/public-law/docs/ejreport-fourthedition.pdf.
  22. Id.
  23. 1999 Cal. Legis. Serv. Ch. 690 (S.B. 115) (Oct. 10, 1999); CAL. GOV’T CODE § 65040.12 (2016).
  24. FLA. REV. STAT. § 403.723(3) (2016).
  25. FLA. REV. STAT. § 376.78(8) (2016).
  26. Maryland Advisory Council on Environmental Justice, Environmental Justice in the State of Maryland (1999), available at http://www.mde.state.md.us/assets/document/environmental_justice/ejreport99/intro.pdf.
  27. N.C. GEN. STAT. ANN. § 153A-136 (2016).
  28. NATIONAL ACADEMY OF PUBLIC ADMINISTRATION, ADDRESSING COMMUNITY CONCERNS: HOW ENVIRONMENTAL JUSTICE RELATES TO LAND USE PLANNING AND ZONING 37 (July 2003), available at https://www.epa.gov/sites/production/files/2015-02/documents/napa-landuse-zoning-63003.pdf.
  29. Juliana Maantay, Zoning Law, Health, and Environmental Justice: What’s the Connection?, J. LAW, MEDICINE & ETHICS, 6 (Dec. 22, 2002).
  30. Yale Rabin, Expulsive Zoning: The Inequitable Legacy of Euclid, in ZONING AND THE AMERICAN DREAM: PROMISES STILL TO KEEP 107 (Charles M. Haar & Jerold S. Kayden eds., 1989).