Remarks of Barbara R. Arnwine
prepared for National Environmental Justice Advisory Council December 12, 2000

To Barry Hill, Director of the EPA Office of Environmental Justice, Charles Lee, Designated Federal Official of NEJAC and Associate Director of the EPA Office of Environmental Justice, and Haywood Turrentine, Chairperson of NEJAC, members of NEJAC, and the audience, Good Morning. I want to thank the National Environmental Justice Advisory Council for inviting me here today to speak on the important topic of Environmental Justice - and the missed opportunities that we have had to advance the interests of environmental justice through our nation's laws.

NEJAC has been instrumental in furthering the environmental justice agenda through its advice, recommendations, and reports to EPA, which have addressed important issues such as the US-Mexico Border, Superfund Relocations, Tribal Environmental Programs, Brownfields, Waste Transfer Stations, and the Cumulative Impacts of Permitting. My sincere appreciation also goes out to the EPA Office of Environmental Justice for its commitment to bringing the perspective of a litigating organization such as the Lawyers' Committee for Civil Rights Under Law to this Council. It is an honor to be present with so many distinguished guests, members of the Administration, advocates and friends who are working on the critical issue of environmental justice - I appreciate this unique opportunity to be able to contribute to the dialogue on this issue.

We all come to this issue because we feel a profound commitment to equal justice for our clients and the communities that they represent. Environmental justice is an evolving area of the law - one that requires novel concepts and forward thinking. As such, it uses principles of civil rights combined with environmental laws to promote equal environmental protection for all communities throughout our nation.

Working with many of you, the Lawyers' Committee began its environmental justice project nearly a decade ago - our approach to this issue has been unique as we litigate and advocate using as our tools federal civil rights laws and the U.S. Constitution. Through The Lawyers' Committee's Environmental Justice Project, we use the rule of law to challenge environmentally discriminatory behaviors and decisions. And ultimately - to seek justice for people of color who are fighting to clean up contamination on the land where they live or who are fighting to stop environmentally harmful activities from occurring in their neighborhoods.

We are all here to reflect on the state of environmental justice today. I want to talk today about the challenges we have faced through litigation, and the successes and failures we have all experienced trying to advance this issue.

I want to take a minute to acknowledge the accomplishments of NEJAC and environmental justice community organizations throughout the nation. Through such strong leadership, several important victories have been secured, including the relocation of a Pensacola community from an area sandwiched between two Superfund sites. The Lawyers' Committee was honored to represent Margaret Williams and those 350 families in raising the community's potential legal claims before the EPA and, ultimately, in pressing EPA to respond in order to avoid litigation. However, our role was but one small piece of the massive, sustained and, ultimately, successful effort by the local and national environmental justice community in bringing about the relocation of those families. It must be noted that NEJAC played a vital role in calling attention to the plight of that community, calling for a national pilot program on relocation, and urging the development of an equitable and sound national policy on relocation. Other successes include urging EPA to include contaminated sites on the list of Superfund sites, and providing strong community participation in the environmental permitting process, which has led to stricter conditions being placed on the operation of regulated facilities.

It is the partnership of lawyers working with communities that has helped to secure change. While continuing their struggles for environmental justice, communities - at times - have sought assistance from environmental justice lawyers. When called upon, these lawyers have worked in partnership with communities in order to formulate the most effective strategies possible.

Often, this requires extremely innovative lawyering - using the most creative and sound legal theories to best advocate on behalf of these communities. For example - we have successfully used historical segregation patterns to argue that certain decisions which exasperate environmental inequities serve to perpetuate that segregation in violation of the Equal Protection Clause of the US Constitution, Title VI, and the Fair Housing Act. In addition, environmental laws and the Executive Order on Environmental Justice - have been used together to argue that environmental justice concerns must be addressed in both the siting and permitting processes for hazardous facilities.

Government agencies have spearheaded programs designed to reach out to communities and industry - such as DOT's outreach programs - to facilitate cooperative efforts in resolving pressing environmental justice concerns. Agencies have held stakeholder meetings to bring distinct interests together to discuss different environmental justice issues. They have also provided seed money and resources to communities to promote projects addressing environmental justice, and have conducted research and studies focused on the health impact of environmentally harmful exposure on communities of color.

Nevertheless, there remains a deep delta between what agencies could do and what has been done.

Efforts have also extended to advocate for environmental justice in the international community. As NEJAC recognized in its recommendations regarding Environmental Justice on the US-Mexico Border, environmental inequities cross borders and involve international issues. We had the great pleasure last week, in Santiago, Chile, of working with environmental colleagues from the U.S. and throughout the Western Hemisphere in advocating that the nations of the Americas work to include both principles and action plans to address environmental justice at the U.N. World Conference Against Racism, to be held next year in South Africa. We are pleased to report that the U.S. introduced language to that effect and that our U.S. environmental justice group effectively advocated for the strengthening and improvement of those terms. It is important to work with environmental justice advocates to apply international law to U.S. situations. Whether it is the export of domestic waste to the poorest communities abroad, or extreme contamination caused by multinational corporations operating in countries populated by people of color, environmental inequities are certainly not unique to the U.S.

As community, grassroots, civil rights, and environmental organizations advocating before courts that have not always been receptive to our efforts - an issue which I will address more in a moment - we must recognize that our strength lies in our commitment to the issue and our ability to pull our communities together. We now must turn to this combining of resources and capitalize on our strengths to build the success of the environmental justice movement for the Twenty First century.

While our communities can all agree that environmental and civil rights laws have been innovatively used to address environmental justice concerns, in some instances environmental justice agency decision-making, at the federal level, illustrates a reluctance to use environmental and civil rights laws as effectively as possible. Recently, federal agencies have been more willing to recognize environmental justice concerns, but have generally failed to use them as a basis to alter the course of decision-making.

It is in part because of this hesitancy that the environmental justice community has had to lead the way - seizing the opportunity to use existing laws to advocate for this fast developing area of law. Environmental Justice law is still at a very embryonic stage. And, unfortunately, we have met with limited success in the federal courts, which are often unreceptive to these newly stated legal theories, despite their basis in existing federal law.

This is not unfamiliar territory - as civil rights advocates saw themselves in a similar situation in the 1940's and 50's when they brought the cases that ultimately led to the historic Brown v. Board of Education decision. Lower courts had often rejected civil rights plaintiffs' novel legal theories based on the 14th Amendment yet, ultimately, the Supreme Court translated these legal theories into the body of law that outlawed legally sanctioned segregation. If we turn back to the environmental justice cases, we see that these cases are so novel that it is considered a victory for the courts to even recognize that a claim exists - whereas allowing plaintiffs to survive a motion to dismiss is considered a victory.

As environmental justice advocates, we need to think carefully about the impact of litigation that many of us have brought. We need to think together about ways we can be more strategic in fashioning legal theories that will use existing environmental, civil rights and constitutional law, and in choosing the cases in which to bring them.

In preparing this speech, we looked at 14 cases recently decided by the Federal courts involving environmental justice issues. All of which were decided within the past two years. Of those 14 cases, 12 were unsuccessful in either all or most of the plaintiff's claims, while only 2 were successful.

There were five (5) unsuccessful siting challenges based on arguments combining the Executive Order with NEPA, including ACORN v. U.S. Army Corps of Engineers, 2000 WL 694152 (2d Cir. 2000); Atlantic States Legal Foundation v. Browner, 2000 WL 1234659 (SDNY 2000); Citizens Concerned Against Jet Noise v. Dalton, 48 F.Supp.2d 582 (ED Va 1999); Morongo Band of Mission Indians v. FAA, 161 F.3d 569 (9th Cir. 1998); and Young v. General Services Administration, 2000 WL 745330 (DDC June 1, 2000).

There was one (1) unsuccessful permitting challenge based on the Executive Order and the Clean Air Act, Sur Contra La Contaminacion v. EPA, 202 F.3d 443 (1st Cir. 2000). There were three (3) unsuccessful siting challenges based on Title VI of the Civil Rights Act, including Goshen Road Environmental Action Team v. USDA, 176 F.3d 475 (4th Cir. 1999); New York City Environmental Justice Alliance v. Giuliani, 2000 WL 694152 (2d Cir 2000); and South Bronx Coalition for Clean Air v. Conroy, 20 F.Supp.2d 565 (SD NY 1998).

There were two challenges based on Housing Law. The first case, which was an unsuccessful siting challenge based on Title VIII of the Civil Rights Act, was Jersey Heights Neighborhood Association v. Glendening, 174 F.3d 180 (4th Cir. 1999). The second case, Elliot v. Chicago Housing Authority, 1999 WL 519200 (ND Ill July 14, 1999), was a successful challenge to residential lead contamination, based on the Lead Based Paint Poisoning Prevention Act and the US Housing Act.

There were two constitutional cases based on similar factual allegations that both challenged a Superfund clean-up plan as discriminatory. In the first case, Washington Park Lead Committee, et al v. EPA, et al. 29 ELR 20540 (ED Va 1998), plaintiffs survived two motions to dismiss, which led to a successful settlement agreement. But, the second case, West Dallas Coalition for Environmental Justice v. EPA, 2000 U.S. Dist. LEXIS 11854, (Aug. 16, 2000), was unsuccessful.

It is important to note that all of these cases were brought by environmental justice plaintiffs. In none of these cases was the federal government a Plaintiff. That clearly demonstrates the government's refusal to bring lawsuits on behalf of environmental justice communities. Although the government has brought cases on behalf of communities of color in other civil rights contexts, such as voting and fair housing, it has yet to do so for environmental justice communities. As a result of this reluctance, many communities have lost out on vast legal resources and governmental support, which should have been deployed on their behalf to redress civil rights violations against them.

Given this background, it is imperative that we begin to utilize existing laws in the most advantageous way. Environmental justice litigation has not always heeded that call - for example, take In re AES Puerto Rico an administrative decision by the Environmental Appeals Board which was affirmed by the 1st Circuit Court of Appeals. In that case - an environmental justice community organization challenged an air permit for a power plant as having a disparate impact on the community based on the Clean Air Act and the Executive Order on Environmental Justice - To its credit EPA recognized that an environmental justice analysis needed to be done as part of the permit process.

However, even though the EAB agreed that the plant would have a disparate impact on the low-income community of color, it held that the permit was valid simply because the impact was not adverse. Its finding of no adversity was based exclusively on compliance with existing air quality standards. Yet, these standards were designed only to address environmental health concerns of a general area, not disparate impact on this specific community.

Even though environmental justice advocates argued to both the court and the EPA that the Executive Order and the Clean Air Act were sufficiently broad and together offered the opportunity to address the environmental justice concerns of the community, this legal theory was rejected. This illustrates a failure on the part of EPA and the Courts to recognize the application of existing laws to circumstances not previously presented to them - even where laws are sufficiently broad. Instead of using the potential that these laws provided to directly address the problem, they were ultimately used to circumvent it. Despite this, there is in fact one bright light in this case, which created real progress for environmental justice - and it was the community - who as dedicated individuals working together were ultimately responsible for influencing EPA to set stricter standards for the final permit. This effort was so impressive that the Court was moved to recognize it.

There have been cases where we have been successful at getting courts to consider novel legal theories. Most recently, in Washington Park Lead Committee v. EPA and West Dallas Coalition for Environmental Justice v. U.S. environmental justice plaintiffs challenged an ongoing superfund cleanup plan based on the Equal Protection Clause. This was a precedent setting use of constitutional law - to potentially alter an ongoing superfund cleanup because it was allegedly racially discriminatory. The effect of allowing advocates to advance their innovative legal theories was that for the very first time - affected communities were able to challenge a discriminatory ongoing superfund cleanup and potentially alter its course without having to wait for it to be completed. This victory means that environmental justice lawsuits involving constitutional challenges to a superfund cleanup will not be prohibited by the "CERCLA Bar." A legal preclusion which had previously prevented such challenges to superfund cleanups until they were completed.

In both those cases, the litigants were able to overcome this initial challenge - but there were others which met with mixed results. Yet, the fundamental principle behind each of these cases linked historical segregation with current discriminatory environmental decision-making. And both cases sought to have EPA and others - held responsible for having a superfund cleanup which served to exacerbate environmental inequities and perpetuate historical segregation. In Washington Park, this legal theory helped plaintiffs Helen Person and other community members secure a victory - the court accepted the plaintiffs' argument, which ultimately led to a relocation settlement. This was a profound success for all the families of Washington Park.

But courts around the country interpret laws differently - and in West Dallas they were reticent to accept the legal theories put forth by residents there. That unfortunate loss cannot be blamed on the legal arguments made because they were no less compelling, but because these theories have not been widely used or tested and, as a result, judges are unfamiliar with them. Simply put - few precedents exist. And it is a great challenge to convince judges that they need to expand the frame of law to embrace non-traditional civil rights protections. However, we must continue to push for any expansion of the law - for they are important victories - and we must not stop the innovation and creativity that advocates have used in advancing the cause of environmental justice.

Environmental justice advocates innovations have allowed private individuals to enforce laws promoting environmental justice. In Elliot v. Chicago Housing Authority, the court held that environmental justice plaintiffs who lived in federally subsidized housing could enforce their rights to live free of lead contamination. Advocates had argued that the Congress had intended to provide a private right of action under this new law otherwise the statute would have been rendered meaningless and the victims of lead poisoning would have been provided no significant means of redress. This achievement recognizes an important implied private right of action under the Lead Based Paint Poisoning Prevention Act. Environmental justice advocates now find this type of issue before the Supreme Court on another implied right of private action case. In Alexander v. Sandoval, the Supreme Court will decide whether a private right of action exists for federal agencies implementing regulations of Title VI. Title VI, as I am sure you are aware, prohibits racial discrimination in federally funded programs or activities.

This case is critical because Title VI is one of the only means in existing law of prohibiting disparate impact on communities of color in the environmental context. Although it has not been successfully accepted by the federal courts thus far, it has the potential to be very significant. And indeed it is one of the only existing laws that could directly address the environmental justice concerns of communities of color. Environmental justice advocates have focused their attention to working closely with the civil rights community on this case - to lend another voice of support to what may prove to be a precedent setting decision.

As environmental justice advocates, we can all appreciate the importance and controversy surrounding Title VI, which was illustrated very recently in the EPA Title VI draft guidance. But regardless, we as a community realize its fundamental potential.

As we think back on these critical cases some clear themes emerge. In order for our work to be the most effective and the movement to progress, we need to recognize our dependency on one another and the need to be strategic and work together. We need to embrace our efforts thus far to advance creative and innovative legal theories and put more resources into that ongoing and productive effort. We all must recognize that we have many existing laws at our disposal that, when used together and in combination with our novel legal theories, will prove successful. Whether our legal theories are based on environmental, civil rights or constitutional laws, these theories should not be introduced in a vacuum and must be advanced thoughtfully and collectively - sharing ideas and inspiration between and among our organizations and communities. In addition, the federal and state governments must become an advocate for environmental justice, not always a defendant.

Today, the environmental justice community has several paths on which it can embark. We see our options growing as we begin to see some progress in our litigation efforts and in our efforts to advance unique theories of law which, though based on existing laws, seek to promote environmental justice. But we must as grassroots, civil rights, environmental and community organizations reconvene - to create a new vision of strategic coordination and cooperation for environmental justice in the Twenty First Century.

With a new Administration ahead of us, we must reflect upon our current position and scrutinize our future strategy. Under the Clinton Administration, progress was made - the Executive Order, NEJAC, and effective leadership. Such leadership is indeed what brought us here together today. However, under the new Administration, a platform from which to continue pursuing our common objective may no longer exist. As it now stands, the Executive Order may be in jeopardy. This further underscores the need to reconvene, reconnect and re-strategize as environmental justice advocates.

The civil rights community must prioritize environmental justice. The EJ Task Force of the Leadership Conference on Civil Rights must be re- established. We must continue advocating for a stronger Executive Order with legal force that, at the very least, creates a duty on the part of agencies to undertake an environmental justice analysis reviewable under the APA. We need to continue to lobby for legislation at the federal and state level on environmental justice. And at the grassroots level, it is imperative to continue to support communities with the resources that are essential for successful advocacy. This advocacy has proven instrumental in effectuating real change for environmental justice in communities of color.

As advocates - across the board - whether we are attorneys, community activists or policy makers, part of our continuing commitment to environmental justice is to educate and persuade the EPA and other federal agencies as well as members of Congress, the Administration, and state and local elected officials to advance and include a commitment to environmental justice in governmental programs, policies and decision-making. This must be an effort across the board as so many policies and decisions are made throughout our nation that impact environmental justice, whether in the context of environmental protection, fair housing, or transportation.

Finally - we are a diverse community bringing together many different types of resources - we must learn to marshal those resources in the manner that is the most effective. Community organizing, policy advocacy and strategic litigation should all be used in concert to develop law and policy that moves the nation to a living and functioning recognition of environmental justice. Lawyers can be helpful to communities as they pursue strategies other than litigation, and at earlier stages. Lawyers can help communities undertake their own advocacy with zoning and permitting boards. They can assist in investigating the circumstances involved in environmental decisions, and in navigating and using the regulatory process to a communities advantage. However, where community organizing and advocacy, and targeted policy advocacy efforts have not succeeded - litigation is a vital option to be deployed to ensure that environmental justice concerns can be effectively remedied.

I want to recognize Janette Wipper, staff attorney of the Lawyers' Committee's Environmental Justice Project and Thomas J. Henderson, Chief Counsel and Senior Deputy Director. I want to thank you all very much for your keen interest in this critically important legal and policy issue. Environmental justice must be an essential component of our environmental and anti-discrimination laws, and national environmental and civil rights policy. Nothing less is acceptable if we are to meet the challenge of achieving equal justice under law - a pursuit to which we are all committed.

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