Introduction

case study

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national Origins

During the early 1980s, the United States witnessed a new environmental campaign taking shape—one rooted in the civil rights and anti-toxics movements of previous decades. In September of 1982, the residents of Warren County, North Carolina marched in protest against the siting of a local polychlorinated biphenyl (PCB) landfill. Four years prior, over 30,000 gallons of waste oil contaminated with PCBs were illegally discharged onto roadsides across the state. After the Environmental Protection Agency (EPA) designated these sites for remedial cleanup, the state needed a place to dispose of the contaminated soil. In 1979, the North Carolina Department of Environmental and Natural Resources chose the rural, poor, and predominantly black Warren County for the landfill. The local NAACP filed suit in an attempt to block the landfill, but ultimately failed. The first trucks to arrive at the site met with sharp protest, resulting in hundreds of arrests.

Soon, communities across the United States followed suit. Residents from predominantly low-income, minority communities—from Chester, Pennsylvania and Camden, New Jersey, to Los Angeles, California and the small parishes along the Mississippi River between Baton Rouge and New Orleans—protested local government decisions to license the siting or expansion of landfills, hazardous waste facilities, and other environmentally-unfriendly land uses near their homes. Through grassroots organizing and civil rights activism, the quest for environmental justice had begun. 

DEFINING THE MOVEMENT

The environmental justice movement emerged in response to an alarming amount of evidence that low-income communities of color are not only burdened with a disproportionate share of environmental hazards, but also less likely to enjoy the environmental and human health benefits of parks, recreation, public sanitation, and other quality-of-life factors because of expense or disproportionate allocation of public resources. So the question arises: is the environmental justice movement concerned with ecological preservation (i.e., going "green") or the promotion of public health?

Traditional environmental organizations such as the Sierra Club, Natural Resources Defense Council, and National Wildlife Federation—while distinguished from each other by unique goals and practices—share a common history that extends from the “back-to-nature” principles of the 19th-century conservation movement. In response to rapid industrialization of the nation’s urban centers, conservationists such as John Muir and Gifford Pinchot sought to prevent what they considered the imminent loss of the nation’s natural resources. With a cynical eye toward the indiscriminately wasteful practices of American industry, these early conservationists viewed the city as an environmental nuisance rather than a potential solution to ecological degradation. In short, the conservation movement of the late-nineteenth century “had no place in its nature-focused ethos for direct confrontation with urban life and no consideration for the problems of the poor, much less the problems of the people of color.”

As the conservation movement gained force, urban living conditions during the late-19th century, which deteriorated rapidly from industrial pollution and the failure of public sanitary systems to accommodate an increasingly dense urban society, stimulated a growing public health movement in the United States. Unlike the conservation movement, the campaign for public health made a distinct connection between the environment (both natural and built) and the physical well being of humans. While distinctions between the two movements have, in recent decades, become blurred—especially in areas related to lead poisoning, municipal water treatment, and air quality—an anti-urban bias continues to pervade the underlying philosophy of the major environmental organizations today.

With its health and human-oriented approach, environmental justice emphasizes the interaction between the physical and natural world. In this sense, “environment” concerns not only the ecological preservation of natural resources, but also the protection of healthy living spaces—the daily settings where people live, work, play, worship, and go to school. Accordingly, EJ advocates seek to prevent environmental threats in housing, land use, industrial sitings, health care, and public sanitation services.

the federal response

In response to the events of Warren County and mounting concerns over environmental inequity, several studies were conducted to examine the siting of environmentally hazardous landfills and the demographics of the host communities. In 1983, following congressional approval, the U.S. Government Accountability Office (U.S. GAO) released Siting of Hazardous Waste Landfills and Their Correlation with Racial and Economic Status of Surrounding Communities. The study revealed that 3 of 4 off-site commercial hazardous waste landfills in the EPA’s Region 4 (composed of 8 southern states) were located in predominantly African-American communities, although African-Americans made up only 20% of the region’s population. Four years later, the United Church of Christ Commission for Racial Justice (CCCRJ) published Toxic Waste and Race in the United States. The investigation found that race was the most potent variable in predicting where waste facilities would be located—more powerful than poverty, land values, and home ownership. 

executive order 12898

In 1994, President Bill Clinton issued Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations. With a goal of achieving environmental protection for all communities, the Executive Order places special emphasis on the environmental and human health effects of federal action on of minority and low-income populations. In meeting these ends, the Order specified the creation of an Interagency Working Group on Environmental Justice, directed research and analysis of human health and environmental hazards, and underscored public participation and access to information in the environmental decision-making process. 

The Presidential Memorandum accompanying the Order highlights existing laws to “ensure that all communities and persons across th[e] Nation live in a safe and healthful environment.” Specifically, the memo focused on Title VI of the Civil Rights Act of 1964 and the National Environmental Policy Act (NEPA). Title VI prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance. NEPA requires federal agencies to consider the environmental impacts of their proposed actions and reasonable alternatives to those actions. Procedural provisions under NEPA further require periods for public commenting, which the lead federal agency proposing the action must consider in the planning process. 

environmental justice at the epa

In 1998, the EPA established its own definition of environmental justice, which embraces “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” Further, the “goal for all communities and persons across this Nation . . . will be achieved when everyone enjoys the same degree of protection from environmental and health hazards and equal access to the decision-making process to have a healthy environment in which to live, learn, and work.”

progress and impediments

The explicit recognition of environmental inequities by the federal executive provided the EJ movement with a strong sense of accomplishment. Yet despite these promising measures, other developments severely limited genuine environmental equality as a matter of law and policy. In 1992, Representative John Lewis and Senator Al Gore proposed the Environmental Justice Act. The bill (H.R. 2105, 103rd Cong.) was intended to “establish a program to assure nondiscriminatory compliance with all environmental, health and safety laws and to assure equal protection of the public health.” Despite the support of 44 co-sponsors, the bill died following a series of subcommittee hearings. The following year, the Act was redrafted and reintroduced (S. 1161, 103rd Cong.)  by Representative Lewis and Senator Max Baucus. Again, the bill died after committee referral.

Beyond the federal legislative arena, environmental justice claimants have encountered mixed results in the courts. The majority of successful claims originate in traditional common law nuisance theories or under environmental laws such as the National Environmental Protection Act. On the other hand, claims alleging equal protection violations under the Fourteenth Amendment have largely failed because of the high evidentiary burden of proving racial motivation or discriminatory intent. Despite recommendations set forth in the Clinton Memorandum, complaints alleging disparate impact discrimination on the basis of race in violation of Title VI of the Civil Rights Act of 1964 have likewise proven futile. In 2001, the U.S. Supreme Court held in Alexander v. Sandoval, 525 U.S. 275, that no private right of action existed to enforce disparate-impact regulations promulgated under Title VI.  

At the federal administrative level, the EPA has been particularly slow in developing a framework for investigating and acting upon claims of discrimination. In addition, a 1992 investigation by the National Law Journal revealed compelling evidence of racially inequitable enforcement of federal laws and cleanup efforts by the EPA.