[DJC]

[Protecting the Environment 97]

Environmental justice concerns come to Northwest

By DR. GREGORY A. POREMBA
Jones & Stokes Associates

The issue of environmental justice is becoming more important in the preparation of environmental assessments as federal and state agencies develop and require compliance with their guidelines, and as lawsuits continue to be filed and precedents are set.

Although environmental justice has not become a major legal issue in the Pacific Northwest yet, continued activities elsewhere in the United States foretell its coming here.

The issue of environmental justice was recognized at the federal level three years ago. On Feb. 11, 1994, low-income and minority populations were empowered in the environmental decision-making process when President Clinton signed Executive Order 12898, "Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations."

The Executive Order requires each federal agency to make achieving environmental justice part of its mission by "identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies and activities on minority populations and low-income populations."

The order does not usurp existing regulations, but it emphasizes serious incorporation of minority and low-income groups into the decision-making process, as is already required under the National Environmental Policy Act (NEPA). It is intended to heighten agency attention toward the alternatives, mitigation strategies and preferences of minority and low-income people.

Federal agencies are to "ensure that programs, policies and activities do not have the effect of excluding persons (including populations) from participation in, denying persons (including populations) the benefits of, or subjecting persons (including populations) to discrimination . . . because of their race, color or national origin."

Federal agencies have developed strategies and guidelines for complying with the Executive Order. At a minimum, these strategies are to promote enforcement of all health and environmental statutes, ensure greater public participation, improve research and data collection, and identify differential patterns of consumption of natural resources (subsistence harvesting of fish, wildlife, and plants) for minority and low-income populations. The order emphasizes that the human health, economic and social effects are to be evaluated under NEPA for federal actions.

As the federal lead under NEPA, the Environmental Protection Agency issued its Review Draft Guidance for Incorporating Environmental Justice Concerns in EPA's NEPA Compliance Analyses on July 12, 1996. Public comments on that draft were accepted through Sept. 30, 1996. This guidance has since been finalized.

A cloud of uncertainty will exist until definitions, methodologies, data and legal precedents are sorted out, as occurs for any new legislation or federal directive. With finalized agency guidelines, many of these issues are at least generally being addressed. Some agencies have provided specific guidelines.

In addition, legal precedents are already being established with landmark decisions. On May 29, a Circuit Court found in favor of the plaintiffs in a lawsuit (National Association for the Advancement of Colored People v. Engler) filed against the state in August 1995 claiming inadequate public involvement and assessment of health impacts on minority populations.

As described in the June 12, 1997, Clean Air Report, published by Inside Washington Publishers, construction of the Genessee Power Plant was proposed in Flint, Mich. The plant was to burn 100 percent construction and demolition wood in a residential neighborhood, and residents were concerned about lead emissions from the plant into a predominantly minority neighborhood. The local health department had already documented elevated lead blood levels in children living in the area. A federal Clean Air Act (CAA) Title V permit for new pollution sources was required for the plant.

The plaintiffs claimed racial discrimination, a violation of state and federal laws, because the state failed to account for the health effects on minority populations. They also claimed the CAA was violated because a petition generated by local citizen activists was not considered, and concerns of residents and health experts were neglected.

In its finding, the court directed the state to conduct thorough risk assessments before issuing new CAA permits and to revise its procedures for conducting public hearings and meetings.

The judge found the affected community to be poor and predominantly African-American, and required the state to evaluate population demographics (e.g., race, income, or age) whenever it was required to prepare risk assessments.

Although the lawsuit and decision were based upon Michigan state law prohibiting discrimination, they apply to other states with similar laws and at the federal level under Title VI of the Civil Rights Act of 1964 and the Executive Order. However, the court found the state could not be held responsible for other factors, such as residential segregation and housing, which lead to concentrated minority communities.

Another lawsuit, filed by a group of residents against the State of Pennsylvania in May 1996 in Federal District Court for the Eastern District of Pennsylvania, was reported in the New York Times of May 29 and Sept. 15, 1996. Because state environmental agencies get federal financial assistance from the Environmental Protection Agency, they must comply with Title VI and federal regulations forbidding discrimination and allowing citizens to sue for discrimination.

This lawsuit is unique because it is based upon the existence and effects of several facilities on a community, rather than just one facility.

In this case, the plaintiffs were individuals and a neighborhood group who opposed the permitting of a waste treatment facility, the fifth treatment/transfer facility in the city since 1987, in their predominantly African-American neighborhood in Chester, Penn.

During that same period, only two smaller facilities had been permitted in two predominantly Caucasian areas outside of Chester but within Delaware County.

Overall, Delaware County has eight commercial waste facilities in predominantly African-American neighborhoods and only three in predominantly caucasian neighborhoods. Chester treats all of the county's solid waste and 85 percent of its sewage, and this city has the state's highest infant mortality rate due to certain types of malignant tumors. Risks for kidney, liver and respiratory disease are high and lead levels in a large percentage of children exceed the recommended levels.

The outcome of this suit has, to date, been different than that for the Genessee Power Plant. Michael Churchill of the Public Interest Law Center in Philadelphia, representing the plaintiffs, said the lawsuit was dismissed by the court, the decision was appealed by the plaintiffs, and the appeal will be heard in court on Sept. 25.


Dr. Gregory Poremba has a Ph.D. in sociology, is a senior project manager at Jones & Stokes Associates in Bellevue, and has made presentations about environmental justice to state and federal agencies.

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