Environmental Justice

Author(s): John E. Milner and John Turner

Source: Natural Resources & Environment, Vol. 13, No. 3 (Winter 1999), pp. 478-482, 501-
502
Published by: American Bar Association
Stable URL: http://www.jstor.org/stable/40923860
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 Environmental Justice
John E. Milner and John Turner

is no doubt that environmental justice is The studies that have been issued vary in detail and
an important issue for every industry and demographic accuracy. See, e.g., Cole, Empowerment
every minority community to consider. At the as the Key to Environmental Protection: The Need for
same time, the issue is very complex. Poten- Environmental Poverty Law, 19 Ecology L.Q. 619
tial "solutions" may increase, rather than diminish, the (1992); U.S. General Accounting Office, Siting of
adverse environmental, economic, and health impacts Hazardous Wastes Landfills and Their Correlation
upon the very citizens the measures seek to protect. Al- With Racial and Economic Status of Surrounding
though there have been numerous recent develop- Communities, GAO/RCED-83-168, B-211461 (June 1,
ments - for example, the controversial Shintech case in 1983). For the most part, those studies have not
Louisiana - those matters are not here discussed in de- demonstrated "disproportionate" siting of solid waste
tail. This article instead focuses on the U. S. Environ- management facilities. For example, on August 1, 1995,
mental Protection Agency (EPA), as well as state and the U.S. General Accounting Office, at the request of
judicial initiatives. Rep. John Lewis (D-Ga.), issued a comprehensive
"According to 'environmental justice' advocates, dis- report on 295 municipal solid waste landfills. It con-
crimination in the siting and permitting of industrial andcluded that fewer than half of the landfills studied had
a higher percentage of minorities living
waste facilities has forced minorities and the poor to bear within one
mile of the facility than the percentage
disproportionately the ill-effects of pollution compared to in the rest of
more affluent whites." Boerner & Lambert, Environmen- the county where the landfill is located.
In addition, at
tal Justice?, at 1 (Center for the Study of American more than half the landfills studied, people living with-
Business, Washington Univ., Apr. 1994). Beginning as a in one mile of the facility had higher incomes than the
grassroots movement, environmental justice has emerged county average. The report also summarized ten other
as an issue of national importance. studies dealing with hazardous wastes facilities. It
Many business concerns have had substantial diffi- noted that three of the ten studies found minorities
culty responding to calls for "environmental justice" more likely to live near hazardous waste sites than non-
because of the nonspecificity of the demands. As oneminorities. Four of the studies showed no relationship,
while three were inconclusive.
writer notes, "[c]alls for 'fair' siting may be deliberately
vague because the rhetorical force of the calls may be A Washington University study concluded that "the
compromised by attempts to specify their content. percentage of minorities living in neighborhoods with
hazardous waste facilities is no greater than in areas
Alternatively, advocates may view the call's principled
basis as 'self evident'." Been, What's Fairness Got to without such facilities. In the largest twenty-five metro-
Do With It? Environmental Justice and the Siting of politan areas studied, commercial hazardous waste
Locally Undesirable Land Uses, 78 Cornell L. Rev. facilities are slightly more likely to be in industrial
1001, 1027 n.134 (1993). See also Lazarus, Pursuing neighborhoods with a lower percentage of minorities
"Environmental Justice": The Distributional Effects of and a higher percentage of white-working class fami-
Environmental Protection, 87 Nw. L. Rev. 787 (1993); lies." See Boerner & Lambert, Environmental Justice?.
Schoenbrod, Environmental "Injustice" Is About Vicki Been's most recent study, a review of haz-
Politics, Not Racism, Wall St. J., Feb. 23, 1994, at A21; ardous waste treatment facility siting, concluded that no
Been, Locally Undesirable Land Uses in Minority relationship exists between facility siting and poor neigh-
Neighborhoods: Disproportionate Siting or Market borhoods. Instead, Been noted, "neighborhoods with
Dynamics?, 103 Yale LJ. 1383 (1994). The numerous high levels of poverty appear to repel, rather than
studies undertaken to address the issue show the diffi- attract, facilities. Indeed, it is working class or lower
culty of defining the problem and its terms. middle class neighborhoods that bear a disproportionate
share of facilities." The study also concluded, however,
Mr. Milner and Mr. Turner are lawyers with Brunini, that "it is Hispanics, rather than African Americans, who
Grantham, Grower & Hewes, PLLC in Jackson, Mississippl. are most at risk from the siting process." Been & Gupta,
Mindy McDonnell, a law student at Vanderbilt University Coming to the Nuisance or Going to the Barrios? A
and R. Richard drilli, Jr., a lawyer with Brunini, Longitudinal Analysis of Environmental Justice
Grantham, Grower & Hewes, PLLC, assisted in the prepara-
Claims, Ecology L.Q. (1997). See also Kevin,
tion of this article.

478 NR&E Winter 1999

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"Environmental Racism" and Locally Undesirable
Land Uses: A Critique of Environmental Justice
Theories and Remedies, 8 Vill. Envt'l LJ. 121, 122
(1997) (concluding that "some of the key arguments
supporting environmental justice remedies . . . are debat-
able. Disparate impacts may not be wide spread, and to
the extent that such impacts do exist, the disparities can
be attributed to factors other than racism.")
A significant contrary study is Toxic Wastes and
Race Revisited, a report issued in August 1994 by the
NAACP and the United Church of Christ Commission for
Racial Justice. The report is an update of their 1987
study, Toxic Wastes and Race in the
United States. The supplement con-
cluded that "(b)etween 1980 and the
1993, the concentration of people of
color living in ZIP codes with com-
mercial hazardous waste facilities Many
increased from 25 percent to almost
31 percent of the average population have
around the facilities."
A 1993 Georgia Department of
Natural Resources report looked at
including environmental
the fines issued for violations and
found no evidence of discriminatory justice considerationsvide
enforcement by the agency (the aver-
age hazardous waste fine in white in their decisionmaking.
areas was $33,844; in minority areas,
$45,626). A 1993 Texas Water
Commission study called for more
investigation but was essentially
inconclusive. However, the Texas
Center for Policy Studies prepared a highly critical report
based on demographics ZIP code areas. See also
Goldman, Not Just Prosperity-Achieving Sustainability
with Environmental Justice (1994) (Jobs and
Environment Campaign, Boston, Mass.)
A report issued in October 1994 by the University
of Chicago determined that more whites than blacks
reside near hazardous waste sites in Chicago. The study
concluded that "[historically, environmental siting was
unconnected with other patterns of racial segregation
and discrimination." A more recent University of
Chicago study (issued in February 1997), reached the
same conclusion. See also Anderton & Anderson,
Hazardous Waste Facilities: Environmental Equity
Lssues in Metropolitan Areas, 18 Evaluation Review
123 (Apr. 1994); Anderton & Anderson,
Environmental Equity: The Demographics of
Dumping, Demography (May 1994). See also Anderton,
Anderson & Oakes, Environmental Equity: Evaluating
TSDF Siting Over the Past Two Decades, Waste Age,
July 1994, at 83-100; see generally Been, Analyzing
Evidence of Environmental Justice, 11 J. Land Use &
Env't L. 1 (1995.) A study by the University of Central
Florida found injustice toward blacks but not toward
Hispanics. Vittes & Pollock, Poverty, Pollution, and
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Solid and Hazardous Waste Siting: How Strong Are the
Links? (1994). The study compared EPA Toxics Release
Inventory data with Census Bureau data. The conflict-
ing results of the studies demonstrate the difficulties
faced by federal agencies and the judicial system.
The Executive Order
On February 11, 1994, President Clinton issued
Executive Order 12,898 (entitled Federal Actions to
Address Environmental Justice in Minority Populations
and Low-Lncome Populations), committing each federal
agency to the pursuit of achieving
environmental justice goals. The
order requires all federal agencies to
develop strategies to prevent dispro-
portionate, adverse health or envi-
federal agenciesronmental effects on minority or
low-income populations through fed-
joined EPA by eral programs, policies, and activi-
ties. Under the order, EPA must con-
vene an interagency group to coordi-
nate federal strategies, assist in orga-
nizing research activities, and pro-
guidance for criteria identifying
"disproportionately high and
adverse" risks. The order does not
change the substantive requirements
for issuance of permits in federally
administered or delegated programs.
See In re Chemical Waste
Management of Indiana, Inc.,
1995 EPA App, LEXIS 25 (EAB June 29, 1995) (RCRA); In
re Envotechx 1996 EPA App. LEXIS 4 (UIC Appeal
Feb. 15, 1996).
The Office of Solid Waste and Emergency
Response (OSWER) Environmental Justice Task Force
issued a final report on April 28, 1994. The report set
forth a number of possible means for advancing the
two goals identified by the Task Force: "(1) Achieve
environmental protection for all, within OSWER pro-
grams, so that no segment of the population, regardless
of race, ethnicity, culture, or income, bears a dispro-
portionately high and adverse effect of environmental
pollution and that all people benefit from clean and
sustainable communities; (2) educate and empower
affected communities, community organizations, feder-
al agencies, tribal, state and local governments, academ-
ic institutions, businesses and industries to fully partici-
pate in environmental decision-making, form partner-
ships, and achieve environmental justice to help pro-
mote sustainable communities." See Inside EPA' s
Superf und Report, May 4, 1994, at 15-16; id, May 18,
1994, at 22 (describing EPA Region I initiatives and
grant program). Under Executive Order 12,898, many
federal agencies have joined EPA by including environ-
mental justice considerations in their decisionmaking.
1999 479
 EPA Initiatives be determinative of a disparate impact for purposes of
Title VI." A previous study, using a four-mile radius,
At EPA, environmental justice concerns have conducted
arisen by EPA Region VI actually ranked the pro-
posed site favorably when compared to other facilities
in a number of rulemakings and permitting controver-
sies both before and after the issuance of Executive within Louisiana.

Order 12,898. EPA has supported "expanding the exist- Additionally, EPA instituted investigations of other
ing relationship between states and the agency in the
environmental programs in Louisiana and Mississippi pur-
enforcement and compliance process to explore suant to Title VI of the Civil Rights Act of 1964, which
opportunities for enforcement targeting of pollution provides that "[n]o person in the United States shall on
sources associated with 'populations experiencing a the ground of race, color, or national origin, be excluded
disproportionate burden of exposures'." Inside EPA, from participation in, be denied the benefits of, or be
Oct. 14, 1994, at 2. The most recent significant exam-
subjected to discrimination under any program or activity
ple of EPA's involvement concerns receiving Federal financial assis-
the Shintech plant siting controver- tance." 42 U.S.C. § 2000d. See gener-
sy in Louisiana. ally Abernathy, Title VI and the
The Shintech controversy Constitution: A Regulatory Model
Though most
evolved after Louisiana granted for Defining "Discrimination",
three permits to the Japanese com- 70 Geo. LJ. 1 (1981). The investiga-
pany Shintech. The company environmental justice tions were also precipitated by con-
intended to operate in St. James troversies regarding the permitting of
Parish, a highly industrialized, pre- activity has taken place hazardous waste treatment facilities.

dominately African American com- On February 5, 1998, EPA

munity. The presence of multiple issued an Interim Guidance
at the agency level, the
plants and high levels of particular Document for Investigating Title VI
health problems had already earned Complaints Challenging Permits.
the area the nickname "Cancer
issue has been raised in
The interim guidance is intended to
Alley." Various citizens groups "accommodate the increasing num-
protested the grant, filing an admin- several lawsuits. ber of Title VI complaints that allege
istrative complaint with EPA. discrimination in the environmental
The citizens were successful in 1 permitting context." It sets forth a
blocking construction. After investi- disparate impact analysis substantial-
gating, the EPA concluded that ly different from that traditionally
required to establish a "disparate impact" Title VI viola-
Title V of the Clean Air Act provided grounds for block-
ing the permit. EPA Administrator Carol Browner also tion. EPA's Title VI regulations require a demonstration
stated that the EPA's Office of Civil Rights would con-
that a facially neutral practice has a disproportionate
tinue to investigate for Title VI violations. See impact on a group protected by Title VI. 40 C.F.R.
Chambers, The Supreme Court has Agreed to Take§Up § 7.120-7.130. Upon such a showing, the burden
an Issue that has Stymied Regulators and Judges: shifts to the agency that receives federal funding to
Waste Disposal Facilities Planned for Construction in
show a substantial legitimate justification for the prac-
tice.
Minority Areas, Nat'l L.J., June 22, 1998, at B6; Daily Even if this rebuttal burden is met, the com-
Environmental Report (BNA) (Sept. 11, 1997). plainant may still prevail if he shows that an alternative
On April 8, 1998, the Office of Civil Rights issuedpractice
a would result in a less discriminatory effect.
second draft of demographic information regarding the See, e.g., Guardians Ass'n v. Civil Service Comm'n of
Shintech project. EPA stated that relevant statistical New York City, 436 U.S. 582 (1983); Georgia State
information might include: (1) demographic character- Conference of Branches ofNAACP v. State of Georgia,
istics of populations using 1-, 2-, and 4-mile radii; 775 F.2d 1403 (11th Or. 1985). The analysis set forth
(2) characteristics of facility activities; (3) presenceinor
the interim guidance would bar a state agency from
absence of cumulative pollution loadings; and offering a legitimate justification for the permitting
decision until after the state agency has failed to rebut
(4) increased potential for accidental releases associat-
ed with a concentration of industrial activity. Most of the initial disparate impact finding and has failed to
propose an acceptable mitigation plan. The document
the statistical tests indicated that blacks are more likely
than non-blacks to live near facilities in the four geo-sets up an eight-step framework for EPA's processing of
graphic areas identified within Louisiana. But EPA Title VI complaints: (1) acceptance of the complaint;
emphasized that the Title VI regulations are "con- (2) investigation/disparate impact assessment;
cerned with unjustified adverse disparate impacts," (3) rebuttal/mitigation; (4) justification and mitigation;
and that "[w]hile certainly relevant to a disparate (5) preliminary finding of noncompliance; (6) formal
impact determination, statistical significance may notdetermination of noncompliance; and (7) informal reso-

480 NR&E Winter 1999

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lution. The review process could take 380 days or groups, including the U.S. Conference of Mayors, have
more to complete. called for the suspension of the interim guidance until a
Over one hundred state regulatory agencies, trade new procedure can be implemented. See Daily
groups, public interest groups and firms criticized the Environment Report (BNA), June 24, 1998.
Interim Guidance during a brief informal comment peri- Another of the major criticisms leveled at the interim
od. See 29 Env't Rep. (BNA) 232-237 (May 22, 1998). guidance concerned conflicts with state and local land
Some of the most commonly articulated concerns includ- . use policies, legislative initiatives, brownfield cleanup and
ed the following: (1) the interim guidance does not pro- redevelopment, and urban revitalization efforts. Though
vide definitions, standards or methodologies; (2) states there has been a significant decrease in legislative activity
and industries were not contacted during the develop- over the past two years, existing measures can be sum-
ment of the document; (3) the interim guidance goes marized and categorized as follows:
beyond and is not supported by •Anti-clustering Legislation.
Title VI or the executive order; and An Alabama law prohibiting more
(4) the document, if applied, would than one commercial hazardous
disrupt the management of environ- waste treatment or disposal facility
mental permit programs, by impos- The Supreme Court has per county is an example of anti-
ing "expensive and burdensome 'mit- clustering legislation. Another
igation' obligations on the state example is a 1993 Arkansas law that
agency where none exist under cur-
held that Title VI only forbids construction of a waste dis-
rent law." Comments of the Business posal site within twelve miles of an
Network for Environmental Justice addresses instances of existing site. Exemptions are made
(BNEJ), May 6, 1998, at 11. The BNEJ for recycling, composting, tire-pro-
stated that "[o]ne of the certain con- purposeful, intentional cessing, transfer stations, and on-site
sequences of the EPA's proposed waste treatment facilities; also
policy will be to provide groups so
discrimination. exempted are facilities that would
inclined with a means to delay per- bring increased employment oppor-
mit issuance and/or attempt to lever- , tunities. The bill was strongly sup-
age economic or other concessions ported by the state environmental
from state governments and propo- agency. Georgia and Michigan have
nents of a project." Id. at 8. More controversy erupted also passed forms of anti-clustering legislation.
recently when Rep. Thomas Bliley (R.-Va.) and the U.S. • The Impact Statement Approach. In some states,
Chamber of Commerce raised concerns about the New York for example, the state NEPA requires an exam-
breadth of the interim guidance and EPA's environmental ination of "existing patterns of population concentration,
justice policies. The congressman and the Chamber of distribution, or growth, and existing community or neigh-
Commerce pointed to studies conducted by EPA that borhood character." The unsuccessful federal Clinger-
offered conflicting assessments about the existence or Glenn bill is properly included in this category. Other
degree of environmental discrimination. These studies examples include vetoed California legislation. Louisiana's
were only recently publicized, leading to allegations thatexisting regulations (derived from a ruling of the state
the EPA intentionally hid the findings. See Env't Rep. supreme court) are similar though not specifically related
(BNA) (June 5, 1998), at 317. to racial or socio-economic status.
As a result of the adverse comments, EPA announced • Study Commission Approaches. This is, perhaps,
on March 12, 1998, the creation of a new advisory groupthe most common legislative response. Examples include
that would make recommendations to the Administrator Florida CS/HB 1369, which was enacted in 1994. The
within six to eight months on: (1) the existing processes Florida legislation created a 17-member Environmental
for assessing whether disparate impacts have occurred or Equity and Justice Commission, the purpose of which
have the potential to occur; (2) assuring Federal permit was to examine the possible disproportionate and cumu-
programs are in compliance with Title VI; and (3) areas lative concentration of environmental hazards in minority
in which technical assistance, education and training may and low-income communities. The Louisiana DEQ sub-
be needed to ensure effective implementation of Title VI mitted a report to the state legislature pursuant to Act
programs. It is unclear whether the group will recom- 767 of 1993. No revisions to state laws or regulations
mend revisions to the interim guidance. EPA has have occurred. The Virginia study group concluded that
announced that it will use the interim guidance to statistical data are not valid indicators of the existence or
process the approximately fifteen Title VI petitions cur- absence of equity in the siting process. North Carolina
rently pending, but will not finalize the interim guidance, and Tennessee also have had study commissions. A new
pending the receipt of recommendations from the study commission was recently named in Maryland, with
Advisory Committee. EPA's decision to continue using a report expected by 1999.
the interim guidance has been widely criticized. Several • Neighborhood Toxic Loading Identification

NR&E Winter 1999 481

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and Prevention. This approach is illustrated by com- Rights Act. This is the first lawsuit in which a state has
panion bills introduced, yet not enacted, during the been sued on the claim that a siting permit violated the
1994 session of the Tennessee legislature. 1964 legislation. The plaintiffs alleged that the process
(S.B. 2714/H.B. 2768). The Tennessee bills sought to used by the Pennsylvania DEP used to determine
identify environmentally overburdened neighborhoods whether to grant facility permits had the effect of dis-
based on an examination of toxic chemical releases. criminating against Chester residents by concentrating
Siting of new facilities, or the expansion of existing the "burden" of pollution and negative health effects
ones in "overburdened neighborhoods" would havewithin Chester, while other residents of the county
been severely limited. A report prepared by the were essentially free from pollution. The district court
Tennessee Department of Environment and had held that allegations of discriminatory effect, rather
Conservation, Health, and Agriculture pointed outthana discriminatory intent, were insufficient to state a
number of problems with the bills. The report empha-claim and concluded that a private cause of action does
not exist to enforce the "disparate impact" regulations
sized the inherent and potentially insurmountable diffi-
culties associated with how contaminants may be promulgated by EPA to implement Section 602. The
determined and evaluated. The authors concluded that Third Circuit reversed, holding that the plaintiffs did
"(t)he methods proposed by [the bills] focus on quanti-
state a cause of action and could proceed with their
fying the amounts of toxic chemicals residing within lawsuit. The United States Supreme Court ultimately
each county. The coordinating departments, however, vacated the judgment and remanded the case to the
recommend the focus be upon quantifying actual risk Third Circuit with instructions to dismiss. Seif v.
Chester Residents Concerned for Quality Living, 118
to the public, not arbitrary chemical inventories that
result in more data without developing a scientifically
S. Ct.

based mechanism for response." based on mootness, as the facility at

In addition to these four categories, other optionspermit and would, therefore, never
explored by state legislatures include "fair-share" Accordingly, although the Third C
approaches and siting restrictions. The siting restrictions
guidance on the issue of whether a
are often genetically worded but are usually aimed atuse a the discriminatory effect stand
specific proposed site or existing facility. Many statesSection
and 602, the Supreme Court's
the federal government have endorsed a movement aim- case leaves the issue unresolved.
ing to revitalize abandoned industrial sites called "brown- The Supreme Court has held that Title VI only
addresses instances of purposeful, intentional discrimi-
fields." Brownfields proponents fear that the implementa-
tion of the Interim Guidance will stifle the effort. Some nation. See Alexander v. Choate, 469 U.S. 287 (1985);
states, including Texas and New Jersey, consider brown- Guardians Ass'n v. Civil Service Comm'n of the City
fields a potential alternative to the Interim Guidance. See of New York, 463 U.S. 582 (1983). In a 1992 decision,
Daily Environment Report (BNA) May 14, 1998. the Supreme Court emphasized that "the reach of Title
VTs protection extends no further than the Fourteenth
Amendment." United States v. Fordice, 505 U.S. 717.
Litigation
See also Regents of the University of California v.
Though most environmental justice activity has Bakke, 438 U.S. 281 (1978). Courts applying the Equal
taken place at the agency level, the issue has been Protection Clause have consistently required that plain-
raised in several lawsuits. Primarily civil rights and tiffs demonstrate both discriminatory purpose and
equal protection causes of action, virtually none of effect. See, e.g., Personnel Admin, v. Feeney, 442 U.S.
these suits has been successful. See, e.g., Bean v. 256 (1979); Village of Arlington Heights v.
Southwestern Waste Management Corp±, 428 F. Supp. Metropolitan Housing Development Corp, 429 U.S.
673 (S.D. Tex. 1979), affd, 728 F.2d 1038 (5th Or. 252 (1977). Unlike the statute itself, the EPA regula-
1986); East Bibb Twiggs Neighborhood Ass'n v. tions do endorse a disparate impact analysis.
Macon-Bibb County Planning & Zoning Comm'n, In Seif, the Third Circuit concluded that the
706 F. Supp. 880 (M.D. Ga.), affd, 896 F.2d 1264 (11th Court's rulings in Alexander and Guardians did not
Cir. 1989); R.I.S.E., Inc. v. Kay, 768 F. Supp. 1144 (E.D. definitively determine whether a private right of action
Va. 1991), affd, 977 F.2d 573 (4th Cir. 1992). See gen- exists under the statute or the agency regulations. The
erally C. Dinkins, Impact of the Environmental Justice court instead applied the factors set forth in Cort v.
Movement on American Industry and Local Ash, 422 U.S. 66 (1975), to determine whether a pri-
Government, 47 Admin. L. Rev. 337, 346 (1995). vate cause of action should be implied under the
However, in Chester Residents Concerned with Section 602 regulations. The relevant factors include:
Quality Living v. Seif, 132 F.3d 925 (3d Cir. 1997), the (1) whether there is "any indication of legislative
Third Circuit held that a private cause of action exists intent, explicit or implicit, either to create such a reme-
to enforce the judicial regulations promulgated by EPA dy or deny one," and (2) whether it is "consistent with
to implement Section 602 of Title VI of the 1964 Civil (Continued on page 501)

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23 Envtl. I. 355 (1993). This concern is believed by
some to have sparked the development of the presump-
tive remedy approach.
Because CERCLA does not contain a municipal lia-
bility exemption, municipalities are currently seeking
federal legislation to address the issue. Until such legis-
contaminant leaching to groundwater, control surface
water runoff and erosion, and allow for the collection
and treatment of leachate, contaminated groundwater,
and landfill gas in order to contain the contaminant
plume and to prevent further migration from the
source area.

lation is enacted, however, municipalities will continue Had a presumptive remedy not been ava
to rely heavily on the effectiveness of the presumptive city would have been required to perform
remedy to save both time and money. more comprehensive RI, including additio
and analysis to further characterize the typ
present. In addition, a detailed FS would h
Case Study - Civitan Park
required. Finally, a streamlined or limited ri
Prior to its closing, what is now known as the ment was allowed under the presumptive
Civitan Park site was a MSWLF that accepted household, remedy, which was also a significant cost
restaurant, business, and demolition wastes, and industri- Currently, the site is being graded and pr
al wastes such as textile wastes, grinding sludges, and fur- work has begun for a premier soccer field
niture manufacturing wastes. The site is located in a resi- that does not contain waste. Leachate is st
dential area of Johnson City, Tenn., and is bordered by pumped off-site to the public wastewater tr
residential properties and a golf course. Topographically, plant. The contractor has also begun stock
as was the case with many landfills in Tennessee prior to for the cap, which will be placed under t
the promulgation of the environmental regulations, the estimated completion date of the project i
site was located in a series of sinkholes. of 1999. The city, state and nearby residents
Currently, leachate from the MSWLF is being looking forward to the end result - a new
removed from the site and pumped to the public improved Civitan Park, which should prov
wastewater treatment plant for treatment. Quarterly asset to the area.
sampling and analysis of groundwater monitoring wells Presumptive remedies for MSW landfills can pro-
and area springs is underway. Further, the Civitan Park vide a mechanism to resolve Superfund actions at old
site will be receiving a cap that complies with EPA and landfills. Under the presumptive remedy approach, a
Tennessee requirements. The city is planning to place community can get its arms around the extent of the
an equivalent cap, which is a geosynthetic clay liner problem and make plans within a known time frame to
(GCL), that will decrease the amount of precipitation correct the problem and even encourage redevelop-
infiltrating into the fill materials. Finally, after capping ment of the area. While the presumptive remedy may
activities are completed, several soccer fields, a tennisnot be available in every situation, local governments
court, basketball court, walking trail, and playground may wish to evaluate their old MSW landfills. After this
will be constructed on the site. evaluation they may be in a position to proceed to
The remedy will prevent direct contact with address the problem through voluntary programs that
landfill contents, minimize infiltration and resulting use the presumptive remedies. 9

Environmental Justice
(Continued from page 482)

the underlying purposes of the legislative scheme causeto of action would provide courts with few, if any,
imply such a remedy for the plaintiff." Id. at 78. guidelines for implementing EPA's Section 602 regula-
In making its decision, the Third Circuit examined
tions, as the regulations exclusively designate adminis-
trative
the legislative history of the Civil Rights Restoration Act review procedures. The Pennsylvania DEP also
of 1988, which amended Title VI. Judged against the Cortthat the Third Circuit decision would frustrate
argued
standard of whether there is "any indication of legislative
the strict pre-conditions and safeguards Congress pro-
vided
intent, explicit or implicit" to create such a remedy, the in enacting Section 602. The Washington Legal
court was able to find intent to create a remedy inFoundation,
the as amicus, argued that EPA's Title VI regu-
statements of the opponents of the Act, who character-
lations themselves were impermissibly promulgated,
because they endorse a disparate impact standard
ized the legislation as potentially precipitating numerous
private claims. In its certiorari petition, the Pennsylvania
while the statute addresses only instances of purpose-
ful discrimination.
DEP argued that the legislative history had been misused.
The Pennsylvania DEP contended that a private Even if a private cause of action under the Title VI

NR&E Winter 1999 501

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regulations is ultimately recognized, plaintiffs will con-
tinue to face significant difficulties in attempting to sat-
isfy their burdens of proof and persuasion. For exam-
ple, there is no accepted statistical methodology for
demonstrating a disparate impact in environmental jus-
tice cases. Using census data can yield different results
than using ZIP code data; political boundaries can also
provide dissimilar results (i.e., city versus county versus
state). Using different radii around the facilities can,
likewise, yield seemingly inconsistent conclusions. In
addition, proximity to a proposed or existing facility
does not, in itself, constitute an environmental or
human health "impact." Statistics do not demonstrate
the existence of a disproportionate adverse effect.
Bernstein, The Siting of Commercial Waste Facilities:
An Evolution of Community Land Use Decisions,
1 Kan. J.L. Pub. Pol'y 83, 85 (1991). Proof of a causal
relationship is necessary. Defendants have rebutted
prima facie Title VI showings by demonstrating non-
pretextual justifications for the challenged practice, or
by showing that suggested alternatives would not
achieve a legitimate less discriminatory purpose. See,
e.g., Elston v. Talledega County Board of Education,
997 F.2d 1394 (11th Or. 1993); Coalition of
Concerned Citizens Against 1-670 v. Damián,
608 F. Supp. 110 (S.D. Ohio 1984).
Although the numerous studies that have been con-
ducted on the issue have failed to yield consistent and
predictable results, environmental justice is an increas-
ingly prevalent issue. Accordingly, both state and feder-
al agencies, as well as various judiciaries, have attempt-
ed to alleviate the complexity in order to promote
nondiscriminatory siting practices. The Supreme
Court's disposition of the Seif case, however, is just
one example of how much has been left open for fur-
ther debate on the topic. 9

Overfiling
(Continued from page 486)
that EPA has not forced the states to abandon their envi- allow the states to experiment with different enforce-
ronmental audit and immunity laws. Mr. Herman also ment schemes and methods. Moreover, EPA-state rela-
declared that "EPA has not brought, and will not bring, tions would improve if EPA reserved its overfile author-
enforcement actions against companies merely because ity for instances when it is truly needed and resisted
they take advantage of state audit and immunity laws." the temptation to play "Monday-morning quarterback."
EPA may be better served to reserve judgment on EPA should recognize and accommodate the signifi-
the impact of state environmental audit and immunity cant variations in the strength of state programs as well
laws, awaiting their implementation and allowing suffi- as the diversity of environmental conditions that exist
cient time to evaluate their impact. It would, perhaps, among the states. EPA must permit the states to stretch
be better to give the states a window of three to five their wings and tailor delegated environmental pro-
years to experiment with various types of self-audit grams to fit local needs. As Justice Brandeis so elo-
laws. Then, after reliable information is available quently explained: "Denial of the right to experiment
regarding the relative effectiveness of the programs, may be fraught with serious consequences to the
both the states and EPA will be able to approach the nation. It is one of the happy incidents of the federal
table with some hard data to assist in designing an envi- system that a single courageous state may, if its citizens
ronmental audit and immunity policy acceptable to choose, serve as a laboratory; and try novel social and
both EPA and the states. economic experiments without risk to the rest of the
An EPA-state partnership will succeed only if country." New State Ice Co. v. Leibmann, 285 U.S. 262
both parties respect and trust each other. EPA should(1932) (Brandeis, J., dissenting). 9

Trends & Insights

(Continued from page 496)
Venetie that the Self-Determination Act came too late for
the tribes of Alaska. The land rights of Alaska Native
tribes had not been resolved when Alaska was admitted
to the Union. The new state had been granted the right
to select 103 million acres of federal land for state owner- termination era of federal Indian policy and the modern
ship, and, when the state selected lands used and occu-
pied by Native tribes, the tribes filed protests. The need
to resolve these conflicting claims led to the enactment
ANCSA of 1971. Concern that land claims of Alaska
Native tribes might get in the way of the construction of
a pipeline to move oil from the North Slope to the lower
forty-eight states also may have been a factor.
ANCSA was enacted during the cusp between the
era of self-determination, and while it clearly did not
endorse termination, neither did it anticipate the legisla-
tive developments of the self-determination era. ANCSA
might be described as a twentieth century version of the

502 NR&E Winter 1999

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