Environmental Justice and New York Environmental Law

INTRODUCTION

Since the mid‑1980s, the State Environmental Quality Review Act (SEQRA) has been interpreted to cover a broad range of community impacts.   Since the mid‑1990s, consideration of environmental justice has become an important part of the federal permitting process. These two areas of analysis have begun to intersect, and environmental justice is beginning to play a role in decision‑making at the state level in New York.
This article describes the nature of this emerging intersection.  It begins by discussing the relevant federal authorities because, as will be seen, they have direct bearing on state permitting actions. It then treats the role that environmental justice is beginning to play in New York State environmental law, especially under SEQRA. It presents suggestions as to how an environmental justice analysis can be conducted, and concludes with thoughts concerning what would happen if disproportionate adverse impact were found.

FEDERAL LAW
The basic idea of environmental justice is that minority and low‑income communities should not be disproportionately exposed to environmental hazards, and that these communities and their individual members should have a meaningful say in the decisions that affect their environmental exposure.
The bedrock foundation of environmental justice law is the Equal Protection Clause of the U.S. Constitution. However, this clause has not been directly useful to environmental justice advocates, because the courts have held that a plaintiff seeking to make out an equal protection violation must establish that the defendant acted with discriminatory intent,¹ and no environmental justice plaintiff has ever been able to establish that.

Drawing upon the authority of the Equal Protection Clause, Title VI of the Civil Rights Act of 1964 provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance.”²  Most state agencies, including the New York State Department Environmental Conservation (DEC), and many municipalities receive federal financial assistance and are thus subject to Title VI. It does not matter that the assistance may go to programs unrelated to the particular activity in question.³

Title VI, too, has been interpreted to require proof of discriminatory intent before a private party may assert a claim of discrimination under it.⁴ However, Title YI authorizes federal agencies to promulgate their own implementing regulations. The Title VI regulations of the U.S. Environmental Protection Agency (EPA), like those of several other federal agencies, do not require a showing of discriminatory intent; disparate impact is sufficient.⁵
Until 2001, it was an open legal question whether there private right of action under EPA’s Title VI regulations, and hence whether any party other than EPA itself can go to court to seek relief from an alleged violation. The U.S. Court of Appeals for the Third Circuit ruled that there was such a private right of action in 1997, but the U.S. Supreme Court agreed to review that decision and then vacated it on mootness grounds when the subject project was withdrawn.⁶ The Second Circuit had suggested through not quite held, that there is not a private right of action.⁷ The U.S. Supreme Court decided in 2001 that there is no private right of action under agencies’ Title VI regulations.⁸  This leaves open the question of whether plaintiffs might be able to challenge violations of these regulations under Section 1983.⁹
To give greater shape to federal efforts in this area, in 1994 President Clinton issued Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations.”  It directed federal agencies to consider environmental justice in their decision-making.  It also directed agencies to consider impacts on low-income communities, in addition to the impacts on minority communities already covered under the Equal Protection Clause and Title VI.
In 1998, sparked in part by the Executive Order, EPA issued interim guidance on implementation of Title VI.¹⁰  This guidance was met with a fire storm of criticism from all sides – local governments that complained it would usurp their power; many parts of the regulated community, which worried that the guidance would make it more difficult to obtain permits, and would cast into doubt the durability of permits already obtained, and many environmental justice advocates, who were unhappy that the guidance did not go far enough.  EPA undertook an intensive review of the guidance and in 2000 issued two new proposed guidances – “Draft Title VI Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs” and “Draft Revised Guidance for Investigating Title VI Administrative Complaints.¹¹  The clock ran out on the Clinton administration before the revised guidances could be finally adopted, and the Bush administration has not publicly stated its attitude toward them.
Meanwhile, however, both EPA¹² and the U.S. Council on Environmental Quality¹³ issued guidance on how environmental factors should be analyzed under the National Environmental Policy Act (NEPA).  EPA and other federal agencies began requiring environmental justice analyses as part of many permit applications.

FEDERAL EXECUTIVE ORDER AND STATE PROGRAMS

There is a complex, little explored relationship between Executive Order 12898 and environmental regulation in New York.  The Executive Order applies directly only to federal not state, agencies.  However, several federal statutes are implemented to greater or lesser degrees by DEC.  In analyzing these programs it is useful to array them in a spectrum that ranges from exclusively federal to exclusively state programs, with gradations in between showing the varying levels of federal/state involvement.  There is very little case law or other authority concerning the applicability of the Executive Order to these programs, and thus what follows should be seen as informed speculation rather than as a definitive treatment.  But it is clear that greater the federal role, the more likely the Executive Order is to be relevant.

A.                 Purely Federal Programs
Several federal environmental statutes cannot be delegated to the states at all, including the Endangered Species Act; the Toxic Substances Control Act (TSCA) (which includes the principal program for regulating PCBs); the portions of the Clean Air Act dealing with motor vehicle emissions, fuels, and aircraft emissions; the Atomic Energy Act; and the Marine Protection, Research, and Sanctuaries Act (the “Ocean Dumping Act”).  Others can be delegated to the states, but have not been delegated to New York State, including the Clean Water Act Section 404 program, under which the Army Corps of Engineers regulates dredging and filing in navigable waters.¹⁴  The Executive Order directs the federal agencies (EPA or the Corps) to consider environmental justice in administering these programs.
Many projects will require a federal permit under one or more of these exclusively federal programs and will also require state permits.  For example, an incinerator or landfill for the disposal of hazardous waste and PCBs will require a federal TSCA permit and a state hazardous waste permit.  Likewise, many wetlands are regulated under both Section 404 and the New York State freshwater or tidal wetlands law.  When this occurs, the federal and state agencies will work together in the review process, may hold joint hearings, and often will decide that one or the other will take the lead role in the project review.  Where (as is more typically the case) the State takes the lead, the primary environmental review document will be an environmental assessment or an environmental impact statement (EIS) under SEQRA.  The federal agency could request that the SEQRA lead agency include in the EIS such facts as the federal agency would need to make its own environmental justice determination.

B.                 Federal Programs Implemented by the State
The second band on the federal-state spectrum is occupied by programs that are federal, and EPA remains the final decision-maker, but DEC has prime implementation responsibility.  For such programs, EPA will apply the Executive Order when making its decisions.
A major example is the Prevention of Significant Deterioration (PSD) program under the Clean Air Act.  Significant sources of air pollution in areas that comply with National Ambient Air Quality Standards (NAAQS) require PSD permits.¹⁵  The applicability of the Executive Order to a PSD permit arose in a case concerning the Shasta County, California Air Quality Management District (AQMD).  (In California, air pollution permits are issued by regional AQMDs rather than by a statewide agency.)  The Shasta County AQMD was authorized to make PSD permit decisions for new and modified stationary sources of air pollution pursuant to a delegation agreement with EPA Region IX (similar to an agreement now in effect between EPA Region II and DEC).  Because the AQMD acts as EPA’s delegate under the PSD program, permits are considered EPA-issued permits and appeals of the permit decisions are heard by EPAs Environmental Appeals Board (EAB).  (Project opponents may also petition the EPA Administrator to lodge objections with the delegated agency to the issuance of a permit.)  The AQMD issued a PSD permit to Knauf Fiber Glass, GmbH for construction of a new fiberglass manufacturing plant.  Several citizens and citizens’ groups, and Region IX itself, appealed the PSD permit to the EAB on numerous grounds.  In addressing the environmental justice issues raised in the appeal, the EAB found:

AQMD, of course, is not a federal agency, and thus the Executive Order does not apply to AQMD directly.  However, AQMD exercises delegated authority to administer and enforce the federal PSD program.  As such, AQMD ‘stands in the shoes’ of EPA for purposes of implementing the federal PSD program, and PSD permits issued by AQMD are considered federal permits. . . .  Clarification is needed regarding how the Executive Order should be implemented in the context of delegated PSD programs.¹⁶

According to AQMD, EPA Region IX had concluded that the project did not raise any environmental justice concerns, but the record on appeal did not reveal the basis for this conclusion.  Thus, the EAB remanded the case so that the AQMD could obtain Region IX’s environmental justice determination and provide it to EAB for review.

In the context of the numerous proposed electric power plants in the New York City area, EPA Region II has written to DEC stating that the PSD program:

is a Federally delegated program in the State of New York where environmental justice needs to be addressed.  As such, it is recommended that environmental justice be addressed in all of your PSD permit applications and made part of the administrative record for public review.  This is particularly important at a time where, it has come to our attention that there are a number of sources proposing to construct in the vicinity of each other.  Most of these sources have accepted permit limits which would minimize their air quality impacts so that cumulative impacts from other sources need not be addressed.  From an environmental viewpoint, this is acceptable since the goal of establishing permit limits is to reduce impacts on the environment.  However, although individual source permits are below modeled significant impact levels, we believe it is prudent to take precautions that examine the cumulative effects from the new sources in order to assess whether there are impacts on the potential environmental justice community.¹⁷

DEC has written back to EPA protesting this recommendation.  Commissioner Cahill wrote:

Executive Order 12898. . . is a federal directive that does not apply to the States.  While New York is committed to addressing environmental justice matters, and has undertaken an initiative to develop an environmental justice policy, the Executive Order does not authorize the Department, as a matter of law, to take any specific actions in connection with its permitting programs or even the PSD program specifically.  In addition, since no final federal guidance related to environmental justice analyses exists, the State does not have the necessary tools nor discretion to properly review the environmental justice analyses, particularly when it is acting pursuant to a Federal regulation which exempts permits from the requirement to prepare an environmental impact statement (40 CFR 124.9) and forecloses adjudicatory hearings (40 CFR 124.71) on the final permit decision.

WE believe EPA Region 2 staff is best suited to lead [sic] the necessary assistance to applicants performing the environmental justice analysis.  They are familiar with both the draft Interim Policy on Identifying Environmental Justice Areas and the requisite modeling analysis, upon which EPA Region 2 has based recent environmental justice analysis in Puerto Rico . . . .  Without any firm standards or criteria, what constitutes a proper analysis becomes somewhat of a moving target.  For example, during the course of discussions with applicants and our staff, EPA has suggested that the required air quality analysis for environmental justice purposes could extend beyond those currently required pursuant to 40 CFR 52.21 and EPA policy.  In particular, projects which otherwise would not have to perform a cumulative impact assessment, due to their impacts being below EPA defined levels of significance, would need to assess the pact of existing sources to determine if ambient standards are being violated.  This additional assessment will result in major resource constraints on DEC staff, not only in gathering the necessary data, but in the resolution of the potential modeled violations through either enforcement action or a required reassessment of the modeling exercise by the source(s) in question.”¹⁸

EPA has not yet issued it substantive response to this letter.

There are several other programs where DEC or other state or local agencies help implement federal environmental statutes.  This is a partial list:

— Hazardous waste sites:  Many contaminated sites are listed on both the federal and state Superfund lists, and DEC has the lead in investigation and cleanup activities for some of them.

— Pesticides:  DEC administers a pesticide registration program that is strongly influenced by the requirements of the Federal Insecticide, Fungicide and Rodenticide Act.

— Clean water standards:  Pursuant to the Clean Water Act, DEC proposes water quality-based limitations on pollution into particular waterways (known as Total Maximum Daily Loads, or TMDLs), which are subject to EPA approval.

— Drinking water:  The Safe Drinking Water Act (SDWA) provides that EPA establishes maximum contaminant levels, which the states have primary responsibility to enforce, subject to EPA oversight.  The SDWA also imposes obligations on public water systems, many of which are operated by local governments and all of which are regulated by DEC and the State Department of Health.

— Hazardous waste operations:  Portions of the Hazardous and Solid Waste Amendments Act of 1986 (HSWA), and changes to the Resource Conservation and Recovery Act (RCRA) program since 1993, have not been fully delegated to DEC, but rather are implemented by DEC under EPA supervision.

— Asbestos in schools:  Under the Asbestos Hazard Emergency Response Act, schools are required to remove or mitigate asbestos.

— Radioactive waste:  The Low-Level Radioactive Waste Amendments Act requires states to become self-sufficient (either on their own or by entering into compacts with other states) in the disposal of this kind of waste.  Efforts to site such a disposal facility in New York State were active in the early 1990s but have since been abandoned; they may have to be revived depending on events in South Carolina, which is now accepting much of New York’s LLRW.

With respect to all of the above programs, arguments might be made that EPA’s oversight activities are subject to the Executive Order, and that as a result EPA has the ability to pressure DEC and other pertinent state and local agencies to observe environmental justice principles.

C.                 Delegated Programs

Several programs have been completely delegated from EPA to DEC.  Most prominent of these are the State Pollutant Discharge Elimination System (SPDES) program of water pollution permits (the surface water pollution of which is a delegated version of the National Pollutant Discharge Elimination System program of the Clean Water Act); the New Source Review program under the Clean Air Act for facilities in areas that are not in attainment with air quality standards; and most of the hazardous waste permit program under the RCRA.  For these programs, once EPA has approved the State program, EPA only exercises a hands-off kind of oversight, and EPA and DEC both seem to agree that the Executive Order has no application.  Similarly, the U.S. Department of Commerce has essentially delegated the relevant provisions of the Coastal Zone Management Act to the New York State Department of State.

D.                Purely State Programs

New York has many environmental regulatory programs that are based on state law and have no direct relationship to federal law.  The Executive Order has no bearing on these programs.

E.                 Genera

To the extent that EPA chooses to apply the Executive Order to any of the above programs where it can, that will be EPA’s choice alone.  The Executive Order provides on its face that it creates no private right of action, and several courts have reaffirmed this provision.¹⁹

It should be noted that the above discussion concerns what actions EPA may examine under the Executive Order.  EPA’s scope of review under Title VI is much broader; the key under Title VI is whether an agency (such as DEC) is the recipient of any EPA money, rather than whether a particular program is subject to EPA oversight.  Thus EPA could exercise its Title VI authority even over purely state programs of DEC.  Whether and how it will actually do so will depend in large measure on whether the Bush Administration decides to adopt, modify or reject EPA’s Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits.

II.                STATE LAW

New York State has no statute, regulations, or executive order on environmental justice.  In October 1999 John Cahill, then the Commissioner of DEC (and now Senior Policy Advisor to Governor Pataki) appointed Monica Abreu Conley, a DEC senior attorney, as the state’s new environmental justice coordinator.  He also convened a task force to recommend environmental justice policies for the state.  The task force has not yet issued its report, though it has been quite active and has held numerous meetings.  Several other states (including Connecticut, New Hampshire, Oklahoma and Texas) have adopted laws on environmental justice, but not yet New York.²⁰

The first place in New York law to look in seeking authority to undertake an environmental justice analysis would be SEQRA.  The statute includes among the factors that fall within its ambit “existing patterns of population concentration, distribution, or growth, and existing community or neighborhood character.”²¹  DEC’s regulations under SEQRA repeatedly refer to social and neighborhood impacts.²²  In the leading case of Chinese Staff & Workers Association v. City of New York,²³ the Court of Appeals found that secondary displacement of low-income persons and small businesses as a result of a proposed project was an impact  that must be considered under SEQRA.  Subsequent decisions have elaborated on this requirement²⁴ and on, for example, the proper SEQRA treatment of the construction²⁵ and demolition²⁶ of low-income housing.

A recent decision by a DEC administrative law judge (ALJ) found more explicitly that environmental justice fits within the ambit of SEQRA.  That decision will not be discussed in more detail.

A                 American Marine Rail

In connection with the closure of the Fresh Kills landfill on Staten Island and New York City’s consequent efforts to export all of its solid waste, American Marine Rail, LLC applied to construct and operate a barge-to rail solid waste transfer station in the Oak Point section of the Bronx.  This facility would require several DEC permits.  After extensive proceedings the ALJ assigned to the case, Helene G. Goldberger, issued a lengthy decision in which she, among other rulings, found that DEC, as lead agency for the project, did not sufficiently study the project’s environmental impacts.

ALJ Goldberger’s decision included a lengthy discussion of environmental justice – the first found in any DEC administrative decision.  She noted that most of the participants in the issues conference for the permit agreed that the proposed site “is located in a community that is comprised largely of poor and minority residents,” and that “the lead agency is obligated to look at the impacts on the community in which the proposed facility is to be located.”  She went on to rule:

Without any specific state law or regulation on even federal case law or EPA opinion to guide, addressing the matter of environmental justice in this permit proceeding could be a daunting task.  But SEQRA already requires that agencies consider impacts to the environment including “land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance, existing patterns of population concentration, distribution, or growth, and existing community or neighborhood character.”  ECL §§ 8-0105(6), 8-0109.  This is a very broad mandate and would appear to encompass the concerns of environmental justice that arise with respect to this application.²⁷

Having concluded that as a matter of law, environmental justice was relevant to the application, ALJ Goldberger declared that “the first matter to determine is whether the project may cause significant environmental impacts so as to also potentially cause disparate effects on the community.”  She went on to say:

By doing a proper analysis under SEQRA, the lead agencies will determine what impacts are to be expected from the project, whom they will affect and what measures must be taken to ensure that these effects are mitigated to the maximum extent practicable.  These steps will ensure that environmental justice considerations are addressed.²⁸

The ALJ remanded the matter back to the DEC staff “for the purpose of a reexamination of its negative declaration,” and she stated, “I believe that an environmental impact statement is warranted in an application of this scale.”

The applicant and the New York City Department of Sanitation appealed some aspects of the ALJ’s ruling to Commissioner Cahill.  In an opinion issued on February 14, 2001, the Commissioner reversed one aspect of the ruling – its requirement that the project’s impacts on very small particulate matter (PM 2.5) should have been assessed.  The environmental justice aspect of the ALJ’s ruling was not discussed.

Subsequently, ALJ Goldberger applied her ruling in American Marine Rail to find that environmental justice issues were appropriate for review under Article X of the Public Service Law, the integrated process for considering major new electric power plants.  She reasoned that “the Article X process is meant to substitute for the SEQRA process,” so the same analysis would apply.²⁹

B.                Con Ed

Environmental justice was also addressed by a panel of hearing examiners for a state siting board in the context of Consolidated Edison’s application to install new generating units at its existing East River Generating Station between East 13^th and East 15^th Streets.³⁰  Project opponents argued that because the project required a PSD permit, it was subject to the Executive Order.  They further argued that the environmental justice analysis that the applicant had prepared (at the suggestion of EPA) was inadequate , in that it did not review the proper community of concern and did not adequately analyze various alternative proposals.

The hearing examiners refused to include environmental justice in the list of issues to be adjudicated at an evidentiary hearing on the project application.  They found that, under EPA regulations, states may not subject PSD permits to adjudicatory hearings.³¹ The project opponents were advised to follow the applicable federal procedures for challenging PSD permits.

A DEC regulation provides that, before issuing a PSD permit, DEC must determine that the benefits of the proposed facility “significantly outweigh the environmental and social costs.”³² The DEC hearing examiner in the Con Ed proceeding found that this regulation does not require an environmental justice analysis.

C.                 NYPA Litigation

Considerable controversy surrounded the decisions of the New York Power Authority (NYPA) to purchase and install eleven natural gas turbine units configured to generate 79.9 MW of electricity at each of several locations around New York City in an effort to avoid power shortages during the Summer of 2001.  This was just below the 80 MW threshold for Article X applications.  NYPA issued SEQRA negative declarations for the projects.  Two lawsuits ensued, leading to issuance of two trial-level decisions that addressed environmental justice.³³

Silvercup Studios, Inc. v. Power Authority of the State of New York concerned a proposed unit on Vernon Boulevard in Long Island City, Queens, six blocks from a film and television production studio whose owners were concerned that noise and other impacts of the project would harm their operations.  At DEC’s request, NYPA had prepared an environmental justice analysis.  As described by the court, the analysis showed that in the vicinity of the Vernon Boulevard site, “the population was largely White, although there were significant minority concentrations in this area, including Black, Asian and Hispanic groups.  Overall, the income level was in keeping with the borough-wide average, and the percent of persons living below the poverty level was just above the borough-wide percentage and was less than that for the City as a whole.”³⁴

The court found that NYPA’s issuance of a negative declaration violated SEQRA.  This was based on numerous potential impacts of the project, but not on environmental justice impacts, though one of the factors was that NYPA had not taken a hard look at the proposed facility’s impacts on the character of the existing neighborhood.³⁵

The other decision, UPROSE v. New York Power Authority, dealt with NYPA’s overall program – the Vernon Boulevard site and five other sites.  Issued one week after the ruling in the Silvercup case, it reached the opposite conclusion and found that NYPA had complied with SEQRA.  The court stated that “[a]t the heart of the petitioners’ objection to this project is their contention that these turbines constitute a substantial environmental hazard which is unfairly imposed upon poor communities of color already disproportionately overburdened with polluting facilities.³⁶

Rejecting plaintiff’s arguments that NYPA had not looked diligently enough for alternative sites, the court in UPROSE found that NYPA “took a hard look at a significant number of alternative locations over an extended period of time before settling on the six sites herein,” and that all six sites “appear to be as insulated from surrounding communities as could reasonably be expected in a major metropolitan area.”³⁷

In response to plaintiffs’ claims that the plants, individually and collectively, would create excessive air pollution, the court found that the new plants would use clean natural-gas burning turbines, and that “existing ambient air quality concentrations, even assuming unrealistically high levels of plant operation, would be virtually unaffected by operation of the proposed facilities.  The maximum predicted concentrations would all remain below applicable air quality standards.  This remains true even if the increased ascribed to all the plants are combined.”³⁸ A similar finding was made as to the turbines’ noise impacts.

Finally, the court found that “the petitioners and the public in general were afforded a meaningful (although somewhat abbreviated) opportunity to participate and comment on the pending project.”³⁹

III.             METHODS OF ANALYSIS

There is  very little precedent for analyzing environmental justice issues under SEQRA, but federal practice suggests that this analysis should proceed in three steps.

First, it must be determined whether the project might have adverse environmental impacts.  EPA ruled in 1998 in a proceeding called the Select Steel case 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.⁴⁰

Thus if the project’s environmental impacts are subject to health-based standards, and the project would comply with those standards, no adverse impacts would be deemed to occur.  However, if it is shown that the project may have significant adverse impacts that are not subject to health-based standards, or it would violate health-based standards, the analysis must go to the second step.

Some environmental justice advocates have complained about the Select Steel decision and have claimed, among other things, that federal health standards are inadequate to protect vulnerable populations.⁴¹  However, these complaints have had little traction at either the administrative or judicial levels, and several courts have adopted a similar analysis in refusing to entertain environmental justice objections to projects that had no demonstrated significant adverse impacts.⁴²

The second step in the analysis is to determine whether the adverse impacts would affect a minority community.  (Note that the Equal Protection Clause and Title VI concern minority communities; the Executive Order also concerns low-income communities.)  This requires a demographic analysis of the community and a comparison to other communities.  In December 2000 EPA Region II released a guidance document with procedures on how to conduct this analysis.⁴³ In very brief summary, the following steps are involved:

1.  Develop geographic boundaries for communities of concern (COCs).

2.  Compare COC demographics to those in a statistical reference area.

3.  Determine if demographic criteria are met (i.e., if the percentages of minority or low-income individuals exceed certain numerical thresholds).

4.  Develop a comprehensive environmental load profile for the COC, considering such factors as air emissions (as reported in the Toxic Release Inventory), the density of permitted facilities, the land uses in the area, and air quality conditions.

The third step (reached only if the first two have shown that the project would have an adverse effect on a minority community) is to determine whether the effect would be disproportionate.  EPA Region II’s policy also offers guidance on this step, calling for a comparison of the burdens on the COC with those on other communities.

The step of determining whether a proposed impact would have a disproportionate effect on minority communities (though not utilizing Region II’s methodology) was reached in one federal litigation in New York that is very instructive.  During the 1970s the City of New York became owner, through tax foreclosure, of many abandoned lots in minority areas.  Neighborhood groups began to clear these lots and turn them into community gardens, where neighborhood residents could stake out a few square feet and plant some vegetables or flowers.  These makeshift plots became green oases in some very rough neighborhoods.  In 1978 the City formalized this arrangement through its “Green Thumb” program, which licensed community gardeners and gave them topsoil and other supplies.  Approximately 750 such gardens were eventually created.  In 1998, the City decided to auction off more than 100 of the gardens to the highest bidder.  A public justification was that the land was needed for construction of low-income housing, but experience with other recent sales suggested that many of these lots would actually become parking lots, storage yards, and the like.

Opponents of the sale brought several lawsuits alleging violations of various state and local land use and environmental laws.⁴⁴  One of the suits, New York City Environmental Justice Alliance v. Guiliani, ⁴⁵ charged that the sale violated Title VI.  The U.S. District Court for the Southern District of New York refused to grant a preliminary injunction against the sale.  In affirming that refusal, 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 impacts 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:

[S]howing 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 Meadow 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.

IV.             ANALYTICAL ISSUES
Where environmental justice issues must be addressed in an EIS, several distinctive questions may arise.

Most important, and difficult, may be the question of cumulative impact analysis.  A frequent complaint of environmental justice advocates is that members of their communities are subjected to a wide variety of detrimental environmental exposures in the outside environment, in the workplace, and in their homes.  Moreover, when added up, these exposures can impair health, particularly of especially vulnerable members of the population, such as the very young, the very old, and those with a history of inadequate medical care and, perhaps, of unhealthy life-styles.  Asthma is the condition most often cited as arising from multiple exposures.  Complaints have also been raised that only a portion of all the various projects planned or contemplated in a given geographic area are assessed in a cumulative impact analysis.

New York’s requirements for cumulative impact analysis are unsettled.  In 1992 the Court of Appeals ruled that the courts will not required lead agencies to undertake cumulative impact analysis for future projects unless they arise from a common plan.⁴⁶  After that ruling, DEC appointed a task force to revisit the SEQRA regulations on cumulative impacts.  The task force issued a report in 1999, but no action has been taken on it.  There remains considerable uncertainty as to just what should be the geographic scope of a cumulative impact analysis; how far along in the approval pipeline must a proposed project be before it is included in the analysis; and the methods that should be used to conduct the analysis of the included projects.

The above-cited letter from EPA Region II to DEC commended as a model a cumulative analysis that had been conducted for a proposed project in Puerto Rico, and contained this advice in conducting an environmental justice analysis in the context of PSD review:

We recommend that the applicant perform such an analysis by modeling its impact (even if the maximum impacts are below significant impact levels) with the combined impact of any other existing or proposed significant source in the area so that a judgment could be made as to whether there is a disproportionately high and adverse burden on the nearby community.  At a minimum, the analysis should include isopleths of the concentrations which identifies the combined maximum impact overlaid on top of a demographic map which depicts the percent minority and income level.  It is also useful to include a wind rose of the meteorological data.

An environmental justice analysis in an EIS may also raise the question of whether, and if so how, to assess impacts on particularly vulnerable populations.  However, when health-based criteria have been established (such as the National Ambient Air Quality Standards), it is unlikely that a reviewing court will second-guess the standards and find them to be insufficiently protective.  Especially when public projects are involved, questions may also arise whether a broader range of alternatives should be assessed (both as to site and as to technology) than in standard EISs.

V.                 SUBSTANTIVE BITE

A final set of unanswered questions concerns what will happen if an EIS reveals that a project will indeed have a disproportionate adverse impact on a minority community.  In that event, would DEC or other agencies be authorized, or required, to deny the application – either under the authority of Title VI, or the delegation agreements with EPA, or SEQRA?  What, if anything, would justify such a disproportionate adverse impact – a compelling public need for the project?  A thorough and unsuccessful search for alternatives?  An impact that, though adverse, was minor?  What rights would then be possessed by whomever was disappointed by the agency decision (either the applicant or the community)?  What actions would EPA take if it disagreed with the decision of the state or local agency?

DEC, and a court reviewing a DEC decision, might well decide to import from Title VI jurisprudence the analysis of whether there is an acceptable justification for imposing a disproportionate impact on a minority community.  The federal courts have considered whether an action with such an impact by a recipient of federal funds is reasonably necessary to meet a goal that is legitimate, important, and integral to the recipient’s institutional mission, and also whether less discriminatory alternatives are available that causes less disparate impact than the challenged action, but that are practicable and comparably effective in meeting the needs addressed by that action.⁴⁷

Should a case occur that raises any of these questions, it would surely be watched with great interest.

This article has focused on environmental justice as an analytical and substantive tool to achieve more equitable decisions.  A separate, though related, objective of environmental justice is to ensure full public participation in environmentally important decisions.  Full analysis of that issue must await another day.

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Michael B. Gerrard, a partner in the New York Office of Arnold & Porter, is editor of Environmental Law in New York.  He is also author or editor of five books, including Environmental Impact Review in New York (with Ruzow and Weinberg) (Matthew Bender & Co.) and The Law of Environmental Justice:  Theories and Procedures to Address Disproportionate Risks (American Bar Association). 

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