Northwest will face environmental justice issues

By Dr. GREGORY A. POREMBA and SHAWN YOTTER
Jones & Stokes Associates

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."

Since then, legal precedents have been set in the eastern United States and are now occurring in the western United States. Most of the lawsuits filed to date regarding environmental justice (often termed "environmental racism") have been filed under Title VI of the Civil Rights Act, forbidding discrimination and allowing citizens to sue for discrimination, rather than under the executive order.

Environmental justice lawsuits and appeals continue to occur across the country, including opposition to a waste treatment facility in Pennsylvania, a uranium enrichment plant in Louisiana, a PVC facility in Louisiana and an air emissions trading program in California. In three of these four cases, the issue is not just one project but the cumulative effects of multiple pollution sources on low-income or minority communities.

Pennsylvania permit opposed

A group of residents filed a lawsuit against the State of Pennsylvania in May 1996 in Federal District Court for the Eastern District of Pennsylvania (New York Times, May 29, 1996). Because state environmental agencies get federal financial assistance from the Environmental Protection Agency (EPA), they must comply with Title VI and the executive order.

This lawsuit was unique because it was based upon the existence and effects of several facilities on a community (rather than just one facility), it was the first lawsuit in the nation to be filed against a state under the Civil Rights Act, and the decision on the appeal now means that intentional discrimination no longer has to be proven (which is often extremely difficult, if not impossible).

The individuals and neighborhood group (Chester Residents Concerned for Quality Living) opposed the permitting of a waste treatment facility, the fifth treatment/transfer facility in the city since 1987, in their predominantly African-American neighborhood. During that same period, only two smaller facilities had been permitted in two predominantly Caucasian areas outside of Chester but within Delaware County.

U.S. District Judge Stewart Dalzell dismissed the original lawsuit on the basis that no intentional discrimination occurred, only an indirect discriminatory effect. The court's decision was subsequently appealed by the plaintiffs, and the appeal was heard in court in September 1997.

On Dec. 30, the U.S. Court of Appeals for the Third Circuit ruled in favor of the opposition group's appeal, allowing them to continue their lawsuit against the Pennsylvania Department of Environmental Protection for discrimination under Title VI.

Uranium enrichment plant license denied

New focus on protecting children On April 21, 1997, President Clinton signed Executive Order 13045 designed to protect children from environmental health risks and safety risks. Although the Executive Order is much more general than the environmental justice order (EO 12898), it has the same ramifications and will soon be a major issue in environmental assessments and decision making. Because studies have shown that children may suffer disproportionately from environmental health risks and safety risks, the order requires each federal agency to: make it a high priority to identify and assess environmental health risks and safety risks that may disproportionately affect children ensure that its policies, programs, activities, and standards address disproportionate risks to children that result from environmental health risks or safety risks The order requires that the following information be developed as part of an agency's regulatory actions (and, it appears likely, for any other decision-making process): an evaluation of the environmental health or safety effects of the planned regulation on children an explanation of why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the agency The order establishes the Task Force on Environmental Health Risks and Safety Risks to Children to review children's health issues. This task force is composed of at least 16 members from the heads of various federal agencies, including the chair of the Council on Environmental Quality and the administrator of the Environmental Protection Agency. The order also requires the director of the Office of Management and Budget to convene an Interagency Forum on Child and Family Statistics. To address this issue, the Environmental Protection Agency has established the EPA Office of Children's Health Protection. Despite its generality, it is likely that this order will begin to receive increased attention by environmental advocates and health specialists, will require similar studies and evaluations in environmental assessments as are now being required for environmental justice, and will be playing a similar major role in environmental decision making. One federal agency is already requiring a new subsection in its EISs that specifically evaluates potential impacts to children.

Another precedent was set by the Nuclear Regulatory Commission's Atomic Safety and Licensing Board on May 1, 1997 in response to a lawsuit by a local citizen group. The three-judge panel rejected a license application by Louisiana Energy Services to build and operate a uranium enrichment plant between Forest Grove and Center Springs, because they determined that racial and economic discrimination played an unacceptable role in the plant's planning/siting process.

The plant would have eliminated a road connecting these two unincorporated but socially tied communities, causing residents to experience greatly increased travel times to work, school and other activities.

This is the first and only case to date where environmental justice concerns have resulted in the federal government's denial of a license for a major facility.

The cumulative effects of pollution generation and prevention on low-income and minority people are becoming a greater focal point for lawsuits and permitting decisions. In addition to the Pennsylvania lawsuit, two other cumulative effects cases are of note.

Cumulative effects are considered

In a cumulative air emissions offset case, EPA's Scientific Advisory Board is conducting an independent review of EPA's analytical methods for determining what constitutes a significant environmental impact. The review is in response to stakeholder questions about EPA's methods, and a year-long Title VI complaint filed by environmental justice advocates with EPA regarding approval of a permit for a Shintech polyvinyl chloride manufacturing facility in Convent, La.

Opponents claim that air emissions from the facility would disproportionately affect minority people. While the 120-day review occurs (a decision was originally to have been issued in June), EPA is encouraging parties in the dispute to reach an independent settlement.

Such discussions might include offsetting the air emissions of the proposed facility with secured reductions in emissions from other facilities that affect that community's air quality. The decision regarding this complaint is being made with particular care because of the precedent it would set for other facilities in the United States, according to an account in the July 9 edition of Clean Air Report.

Trading air emissions by buying old cars

In a related case in southern California, environmental justice advocates filed a petition to the EPA raising Title VI cumulative impact concerns about an air emissions trading program that would allow oil refineries and other facilities to increase emissions of toxic air pollutants.

This program would allow industrial facilities to accumulate emission credits by purchasing and junking old cars, effectively reducing air emissions from those cars, in exchange for the facilities' increased air emissions.

This would essentially have taken dispersed air emissions sources (cars) and concentrated them at facilities located near and already affecting low-income and minority people. The additional emissions would be relatively minor compared to existing background pollution levels, but they would still further burden the community, possibly disproportionately.

In response to this concern, EPA is developing draft guidance this fall to ensure that air emissions trading programs do not unfairly impact low-income and minority people. EPA is considering requiring states to audit their trading programs to determine, on a programmatic rather than a case-by-case basis, whether disproportionate impacts are occurring in some areas.

The trading program controversy would be made more complex if EPA considers whether other programs to reduce toxic air emissions in urban areas essentially offset these localized slight increases in emissions, according to Clean Air Report.

Thus, as lawsuits continue to be filed and precedent is set, environmental justice remains a major legal issue and one that will soon be felt in the Pacific Northwest.

Copyright © 1998 Seattle Daily Journal of Commerce.