Update on Environmental Justice Cases

The years 1997 and 1998 saw, for the first time, several plaintiffs' victories in cases concerning environmental justice (EJ).¹ Since then, however, defendants have won all the reported cases that have been fully litigated, though plaintiffs have done well in a number of settlements.
 
EJ is the idea that minority and low-income individuals, communities and populations should not be disproportionately exposed to environmental hazards, and that they should share fully in making the decisions that affect their environment. This column discusses the EJ decisions that have been issued since the beginning of 1999.²
 
Title VI
 
The most pressing open question in the law of environmental justice is whether there is a private right of action under the regulations of the U.S. Environmental Protection Agency (EPA) under Title VI of the Civil Rights Act of 1964. Title VI bars discrimination by entities that receive federal grants. The answer has great implications because a violation of Title VI itself³ can only be made out if there has been intentional discrimination.⁴ However, the implementing regulations of EPA⁵ and several other agencies require only disparate effect -- not intent. No plaintiff has ever been able to prove intentional discrimination in the EJ context, but disparate effect is not rare.
 
The question was squarely answered in the positive by the Third Circuit in 1997 in Chester Residents Concerned for Quality Living v. Seif.⁶ However, the U.S. Supreme Court granted certiorari in that case and then vacated the judgment in 1998 when Chester became moot upon the abandonment of the project that had sparked the litigation.⁷ Thus a cloud hangs over the precedential value of Chester.
 
Judge Allen G. Schwartz of the U.S. District Court for the Southern District of New York has twice expressed serious doubt, without going so far as to hold, that there is a private right of action under EPA's Title VI regulations.⁸ One of those decisions went up to the Second Circuit, which affirmed Judge Schwartz's judgment on other grounds and explicitly refused to reach the private right of action issue, stating that it remains an open question in the Second Circuit.⁹
 
In 1999 the Third and Eleventh Circuits held there is a private right of action under certain other federal agencies' Title VI regulations.¹⁰ It looks like the question as to the EPA regulations with remain unsettled until it reaches the Supreme Court again, and there does not now appear to be any case that is far along on that trip.
 
In 1999 the Fourth Circuit held that there is no private right of action under EPA's Title VI regulations against the federal government,¹¹ but that was not surprising because Title VI is more clearly aimed at grantee than grantor entities.
 
Title VI is currently a battleground at the administrative level as well as the judicial level. In February 1998 EPA released the "Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits." An immediate storm of criticism arose on all sides, but most loudly from state and local regulators and business groups that feared the policy would inhibit economic development and undermine the finality of permit decisions. Congress barred EPA from accepting new Title VI complaints, and EPA announced it would rethink the guidance.
 
On June 16, 2000, EPA released, for a 60-day comment period, drafts of two new documents. One, "Draft Title VI Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs," explains how to effectively deal with the types of concerns that often lead to complaints of discrimination. The other, "Draft Revised Guidance for Investigating Title VI Administrative Complaints," explains how EPA will investigate and resolve such complaints.¹²
 
Proof of Endangerment
 
The first Title VI complaint to be decided by EPA on the merits set the stage for another current EJ debate. Issued on October 30, 1998, the Select Steel decision, as it is known, found that there can be no disparate effect within the meaning of Title VI if the subject action does not have an "adverse" effect. In the realm of air pollution, Select Steel found no adverse effect if the proposed facility would not affect the area's compliance with the national ambient air quality standards, since those standards are presumptively sufficient to protect public health and allow for an adequate margin of safety.¹³ This decision severely limited the range of viable Title VI complaints, and EJ advocates greeted it with hostility.¹⁴
 
The idea underlying Select Steel has reverberated through several subsequent decisions. In American Bus Association v. Slater, transit operators unsuccessfully challenged the U.S. Department of Transportation's regulations under the Americans With Disabilities Act.¹⁵ One of the challenges was based on the agency's failure to prepare an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA). The court found that the agency put out a conclusory statement that "barely suffices as a convincing reason why its Final Rule does not result in any significant environmental impact on low-income and minority passengers," but that no significant environmental impacts of any kind had been clearly identified, and thus there was no EJ problem.
 
The air pollution permit for a power plant in Puerto Rico was challenged in Sur Contra La Contaminacion v. EPA.¹⁶ The First Circuit accepted EPA's analysis that the plant would not lead to violations of air quality standards, and it refused to entertain the plaintiff's EJ objections (though on jurisdictional grounds).
 
EPA's Environmental Appeals Board also found that there was no EJ problem where a project had no demonstrated adverse impact.¹⁷
 
Executive Order
 
On February 11, 1994, President Clinton issued Executive Order 12,898, "Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations." As indicated by the Order's title, it addresses not only racial and ethnic minorities (who are protected by Title VI) but also low-income groups.
 
Numerous litigants have attempted to invoke the Order in challenging federal actions. All four of the recent cases on this issue have rejected these attempts, in view of the Order's explicit language that it does not create any enforceable rights against the United States.¹⁸
 
NEPA Analysis
 
Three recent decisions have rejected the argument that the analysis of EJ effects in the context of NEPA was deficient.
 
Young v. General Services Administration concerned the relocation of the headquarters of the U.S. Patent and Trademark Office.¹⁹ The U.S. District Court for the District of Columbia found that the EIS included an adequate analysis of the proposed action's potential impacts on minority or low-income populations. The court noted that the government clearly set forth the methodology for its EJ analysis, properly identified the possible affected communities and minority businesses, and referenced sections of the EIS regarding potential adverse impacts on human health and historical and cultural resources. The EIS did identify a potential short-term negative impact on minority businesses, but the government concluded that any such impact would be mitigated through a phased-in move from the existing site.
 
ACORN v. U.S. Army Corps of Engineers dealt with the replacement and expansion of a lock connecting the Mississippi River and the Gulf Intracoastal Waterway. Plaintiff argued that the Corps' site selection was racially biased because the selected site was 89 percent African American, whereas another site was 75 percent white. However, the court found that the EIS had adequately demonstrated a rational basis for the decision, and that affidavits from residents who attested to their beliefs that the process was biased were unsubstantiated.²⁰
 
Finally, Society Hill Towers Owners' Association v. Rendell²¹ was a multi-pronged attack on a U.S. Department of Housing and Urban Development grant for construction of a hotel and parking garage in Philadelphia. The court upheld the city's decision not to prepare an EIS, in the face of considerable community opposition to the anticipated impact that the project (and other anticipated projects) would have on the neighborhood.
 
Methods of Analysis
 
One of the most interesting EJ decisions in the past two years is New York City Environmental Justice Alliance v. Giuliani,²² which concerned the planned auction of several hundred vacant lots, including many that were used as community gardens.²³ In affirming the district court's denial of a preliminary injunction against the auction, the Second Circuit acknowledged that the plaintiffs "unquestionably submitted evidence that community gardens are disproportionately located in minority neighborhoods." However, that was not nearly enough to make out the required showing of "a causal connection between a facially neutral policy and a disproportionate and adverse impact on minorities." The plaintiffs submitted affidavits and statistical evidence concerning the planned sale of 115 gardens, but shortly before the planned auction, the City agreed to sell all 115 to two not-for-profit organizations. Other gardens were scheduled to be sold later, so the plaintiffs amended their complaint to cover those, but they did not submit new statistical evidence, and the new declarations they did submit were deemed to be too conclusory, argumentative and off point.
 
The court instructed that the plaintiffs had to, but did not, show "that specific actions of the defendants would cause a disparate effect on similarly situated people to the detriment of a protected group." In particular, the court held:

"showing that most community gardens are in minority neighborhoods and that downsizing the community gardens program would therefore entail closing a substantial number of community gardens in minority neighborhoods is simply not enough to demonstrate an adequately measured disparate impact. If it were, then the law would effectively penalize those who take steps specifically designed to benefit minorities: once a program aimed at improving a minority community was begun, its curtailment, the impact of which would be confined to the minority community, would, without more, establish a prima facie case of disparate impact. This would provide a powerful disincentive to government initiatives designed to benefit minority communities."
 
The Second Circuit interpreted plaintiffs' central claim as "that white community districts tend to have access to more open space than minority ones, and that the sale of community gardens would perpetuate and exacerbate this disparity." However, plaintiffs' fatal mistake was to fail to include in their calculations the regional parks, such as Central Park, Prospect Park, Flushing Meadows Park and Van Cortlandt Park, which could have significantly altered the analysis because several of these parks are located adjacent to minority communities.

Moreover, the City showed a "substantial legitimate justification" for the sales (to build new housing), and the plaintiffs did not show a less discriminatory option to achieve the City's legitimate goals.
 
Other Cases
 
Several other recent decisions have addressed EJ issues, while focusing on other matters. In a federal enforcement action, the Second Circuit upheld the denial of an application to intervene filed by the Croton Watershed Clean Water Coalition, which sought to block the construction of a water filtration plant for New York City's Croton watershed. Among the Coalition's allegations was that construction of a filtration plant would encourage development in suburban areas and harm minorities in New York City by discouraging development in the City. The Coalition's interest in preventing filtration was found to be only collaterally related to the subject matter of the enforcement action.²⁴
 
In Jersey Heights Neighborhood Association v. Glendening, the Fourth Circuit held that the Fair Housing Act does not provide a remedy for residents of a low-income housing project who wished to stop construction of a nearby highway.²⁵
 
Finally, SCLC v. Supreme Court of Louisiana arose after the environmental law clinic at Tulane Law School gained prominence in asserting EJ claims against proposed industrial developments in Louisiana. The federal district court rebuffed efforts to strike down the state court's change in the student practice rules that restricted the clinic's ability to litigate in the EJ field. The federal court found there to be no cognizable interest protected by federal law, and that the state law claims were barred by the Eleventh Amendment.²⁶
 
Settlements
 
EJ claims figured prominently in at least two recent settlements. In Washington Park Lead Committee v. U.S. EPA, EPA agreed to relocate the residents of a public housing project located near a Superfund site in Portsmouth, Virginia. The plaintiffs alleged that EPA's selected cleanup remedy under the Comprehensive Environmental Response, Compensation and Liability Act exacerbated long-standing housing discrimination by effectively requiring residents to remain in their homes while the site was cleaned up. Plaintiffs had made a major point of the racial composition of the housing project.²⁷
 
A settlement of $2.55 million was reached in a wrongful death suit accusing the owners of a shopping mall near Buffalo, New York of racism for not allowing certain city buses to drop passengers on mall property. A 17-year-old girl was hit by a dump truck as she crossed the road to go to her job at the mall. Her family showed that the mall did not allow buses from predominantly black neighborhoods to drop passengers at the mall.²⁸
 
Conclusion
 
The successes of several EJ cases two and three years ago have led a number of litigants to raise EJ claims in cases where, the courts have ruled, they are not appropriate. The larger questions of the likely success of EJ theories will largely depend on how the courts ultimately decide on whether there is a private right of action under EPA's Title VI regulations, and on how EPA's final guidance on handling Title VI complaints are formulated and enforced.
 
Michael B. Gerrard is a partner in the New York office of Arnold & Porter and editor of The Law of Environmental Justice: Theories and Procedures to Address Disproportionate Risks (American Bar Association 1999).

1. See Michael B. Gerrard & Monica Jahan Bose, "The Emerging Arena of 'Justice'," NYLJ, July 25, 1997 at 3.
2. New developments in EJ law are regularly posted on a web site that is maintained by the American Bar Association's Section on Environment, Energy and Resources, and edited by the author of this column. www.abanet.org/environ/committees/envtab/ejupdates.html.
3. 42 USC §2000d.
4. Guardians Ass'n v. Civil Service Commission, 463 U.S. 582 (1983).
5. 40 CFR §7.35(b).
6. 132 F.3d 925 (3d Cir. 1997).
7. 524 U.S. 974 (1998).
8. New York City Environmental Justice Alliance v. Giuliani, 50 F.Supp.2d 250 (S.D.N.Y. 1999); South Bronx Coalition for Clean Air v. Conroy, 20 F.Supp.2d 565 (S.D.N.Y. 1998).
9. New York City Environmental Justice Alliance v. Giuliani, 2000 U.S. App. Lexis 11967, 2000 WL 694152 (2d Cir. May 31, 2000).
10. Sandoval v. Hagan, 197 F.3d 484 (11th Cir. 1999); Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999).
11. Jersey Heights Neighborhood Ass'n v. Glendening, 174 F.3d 180 (4th Cir. 1999).
12. Both documents are available at www.epa.gov/civilrights/t6docpub.htm.
13. Letter from Ann E. Goode, U.S. EPA, Office of Civil Rights, to Father Phil Schmitter, Sister Joanne Chiaverini, St. Francis Prayer Center, and Russell J. Harding, Michigan Department of Environmental Quality, re: EPA File No. 5R-98-R5 (October 30, 1998), available at www.epa.gov/reg5oopa/steelcvr.htm.
14. Luke W. Cole, "'Wrong on the Facts, Wrong on the Law': Civil Rights Advocates Excoriate EPA's Most Recent Title VI Misstep," 29 Environmental Law Reporter 10775 (1999).
15. 1999 U.S. Dist. Lexis 20936 (DDC 1999).
16. 202 F.3d 443 (1st Cir. 2000).
17. In re Knauf Fiber Glass, PSD Permit No. 97-PO-06, EPA Environmental Appeals Board, 2000 EPA App. Lexis 5 (March 14, 2000).
18. ACORN v. U.S. Army Corps of Engineers, 2000 U.S. Dist. Lexis 5408, 2000 WL 433332 (E.D. La. Apr. 20, 2000); Morongo Band of Mission Indians v. Federal Aviation Administration, 161 F.3d 569 (9th Cir. 1998); Sur Contra La Contaminacion, supra; Citizens Concerned About Jet Noise v. Dalton, 48 F.Supp.2d 582 (E.D.Va. 1999).
19. 2000 U.S. Dist. Lexis 7847, 2000 WL 745330 (DDC June 1, 2000).
20. 2000 U.S. Dist. Lexis 5408, 2000 WL 433332 (E.D. La. April 20, 2000).
21. 210 F.3d 168 (3d Cir. 2000).
22. 2000 U.S. App. Lexis 11967, 2000 WL 694152 (2d Cir. May 31, 2000).
23. An earlier stage in this controversy was described in Stephen L. Kass & Jean M. McCarroll, "Environmental Justice and Community Gardens," NYLJ, August 27, 1999 at 3.
24. U.S. v. City of New York, 198 F.3d 360 (2d Cir. 1999).
25. 174 F.3d 180 (4th Cir. 1999).
26. 61 F.Supp.2d 499 (E.D. La. 1999).
27. See "Parties to Public Housing Suit Agree to Settlement Regarding Building Demolition," Env't Rep. (BNA), February 18, 2000 at 289.
28. "Mall Racism Trial Ends in Settlement," NYLJ, November 18, 1999, at 8.