By Kary L. Moss (Click here to view the entire P&R issue)
This Special Issue of Poverty & Race, for which I am Guest Editor- the second half of which will appear in the next issue-focuses on the importance of racial and other demographic data in the Environmental Justice Movement. A common theme in the four case-studies presented here is the importance of information about the communities themselves, which should be used as a tool in the struggle to organize effective opposition against corporations whose bottom line is their shareholders, and not the communities in which they site pollution sources, or the environment.
A recent and important case culminated in a Consent Judgement, signed in January 1996 by Judge Valdamar Washington, of Genesee County (Michigan) Circuit Court, placing severe controls on a new incinerator designed to burn wood from demolished structures. The plant, built by the Genesee Power Company, had been sited in a predominantly African-American residential neighborhood in flint. The lawsuit (NAA CP-Flinz Chapter et al v. Engler a at., No. 95-38228-CZ [Circuit Court, Genesee County, filed 7/22/95]), filed last July by two community groups- United for Action and the NAACP-Hint Chapter-and several African-American women, challenged the State of Michigan’s decision to grant a construction permit to the power company and allow that facility to emit over two tons of lead per year upon a community already suffering from elevated levels of lead exposure.
The Maurice and Jane Sugar Law Center for Economic and Social Justice, a Detroit-based national civil rights organization representing the plaintiffs, charged the State of Michigan and the Michigan Department of Environmental Quality (MDEQ) with violating the equal protection clause of the Michigan Constitution and the state’s human rights law. Additionally, the lawsuit charged the MDEQ, Genesee Township and Genesee Power Company with violating the Michigan Environmental Protection Act, which recognizes claims for harm to the environment.
Background
The Environmental Justice Movement has become one of the most compelling and exciting grassroots movements in recent history. It has gathered strength and momentum from a variety of sources:
· several widely publicized national studies demonstrating that communities of color bear disproportionate burdens of environmental harm and that the benefits of environmental protection have been inequitably distributed in these communities,
· local successes engineered by grass-roots organizations, such as those efforts by the farmworkers, especially in the early pesticide campaigns of the 1960’s and 1970’s;
· President Clinton’s Executive Order 12898, ordering federal agencies to develop strategies to address the problem of environmental racism;
· a number of conferences organized over the last several years around the country, bringing together grassroots activists, academics and lawyers;
· the willingness of several foundations to provide financial support for work in this area by non-profit organizations.
On occasion, the efforts undertaken by an organized community have been enough to defeat a proposed new pollution source, generate changes in or stop an existing source. However, at times local communities have had to resort to legal action as well, especially once an application for a construction or operation permit begins to wind its way through the largely mystified bureaucratic processes of all state regulatory agencies, as well as the federal Environmental Protection Agency.
The legal fight is rarely easy and historically has suffered from several obstacles. Two in particular emanate from the limited nature of the law itself: First, lawyers seeking to argue that the imposition of a pollution source on a particular community constitutes race discrimination have tended to rely solely upon the Fourteenth Amendment of the federal Constitution. Lawsuits based upon this theory have been largely unsuccessful because a plaintiff must demonstrate that a government body has “intended” to discriminate, which is extremely difficult to prove.
A second obstacle results from the tendency of legal groups to raise only environmental, and not civil rights, claims in court. The problem with use of environmental laws is that they tend in effect to be written by those in the industry. Thus, the questions presented to courts tend to accept many dangerous assumptions. For example, use of these laws requires plaintiffs to prove that the risk of harm is “bad enough” or show that a particular facility exceeds relevant ambient air or water standards. Such questions presume that some harm is acceptable, that each site can be evaluated by a regulatory body without regard to cumulative impacts and that private corporations have no responsibility to protect and promote the public health so long as a state has determined that operations of a particular corporation fall within the requirements of various laws and regulations. The effect is to marginalize the affected communities and leave critical questions out of the debate.
A related obstacle is the necessity for large amounts of money to finance environmental litigation. Assuming that a low-income community can even find an environmental lawyer willing to donate her or his services pro bono, proving a case using traditional environmental laws is extremely expensive. Low-income communities are therefore poorly positioned to protect their interests. For example, if a community argues that various governmental or private actions violate permit limitations, dumping laws, and record-keeping and reporting requirements established under state and federal laws, they must then hire experts who can testify about the risk of harm, effectiveness of pollution controls, etc. Few communities, especially at the stage of the prepermit hearing process, can afford to gather such information.
As activists and lawyers have taken up the struggle for environmental justice, a new opportunity has presented itself to expand the discussion and empower communities themselves. Lawyers have begun looking to other civil rights laws to advance their claims. Both Title VI of the 1964 Civil Rights Act, which prohibits discrimination on the basis of race by recipients of federal funds, and the equal protection clauses in several (but not all) state constitutions provide a more favorable standard of proof in order to make a case using these laws, a plaintiff does not have to show “discriminatory animus,” but rather only that a particular decision, or pattern of decisions, has a “disparate impact” upon a protected group of people. In this context, race and poverty data, which are relatively easily accessible, provide a source of power to community organizations and lawyers.
In the Flint case, we argued that the state’s decision to grant a permit to Genesee Power to build the incinerator violated the disparate impact test of the Michigan Constitution’s civil rights clause. Since little legal authority existed regarding a similar factual situation as the one involving the demolition wood incinerator, we relied on several types of cases: those involving challenges to local zoning schemes that had the effect of excluding low- and moderate-income families; those involving challenges to municipal policies, such as limiting use of parks to residents, but which had a disparate impact on communities of color; and those finding that estate’s system of financing public education which caused wealth-based disparities in the quality of public education violated the state’s constitutional equal protection guarantees.
These cases, in general, require a plaintiff to demonstrate that people of color are disadvantaged at a “substantially higher” rate than whites; that the state’s permitting practice results in a racial pattern significantly different from that of the applicable pool, such as the statewide population of African-Americans; and that it burdens a “substantially disproportionate” number of blacks.
In support of this theory, we offered statistical proof of the disparate impact of MDEQ’s permitting practice. We used simple Census data to show that a substantial disparity exists in the racial composition of the population surrounding the demolition wood incinerator site, as compared to that existing in the county and state. Specifically, the population within a one-mile radius surrounding the incinerator is 55.8% African-American; by contrast, African-Americans comprise 19.6% of those living in Genesee County and 13.9% of Michigan’s population.
We also showed that there was a substantial disparity in the racial composition of the population surrounding each of the four municipal solid waste incinerator sites located throughout Michigan. The MDEQ had granted permits in areas that have substantially higher concentrations of African-Americans than the respective county-wide populations. For example, 43% of the population living within a one-mile radius of each of these incinerator sites is African-American, compared with the 13.9% statewide.
Another type of useful, and not very expensive, information was a risk assessment study, performed by Dr. Stuart Batterman of the University of Michigan’s School of Public Health (and co-author of one of the articles appearing in the second half of this symposium), demonstrating that African-Americans living in Flint constituted the population that would be most impacted by operation of this incinerator.
Other easily obtained health data we used included public reports, studies from scientific journals and privately-commissioned studies. General health information about the population itself brings real people with real problems into a courtroom or public decision-making body. In the Flint case, the population surrounding the incinerator suffered from more severe health problems than those living elsewhere in the county. A county health department study and a recent report commissioned by the governor also indicated that there already existed elevated levels of lead exposure in the area near the incinerator.
Health information specific to children was also important. For example, children under six are especially vulnerable to lead’s negative effects, because the blood-brain barrier of the neurological system is still developing. Children absorb more lead in proportion to their weight than do adults- 50% as compared to 10%-20% for adults. The governor’s report also indicated that 49.2% of children ages six months to five years living in the Flint metropolitan area already have elevated blood lead levels.
Similarly, health information specific to race/ethnicity and poverty is important, since it has been widely reported that race/ethnicity is the only variable that significantly predicts blood lead levels in all age-specific models. A much higher percentage of African-American (22.5%) than white (8.1%) children living in cities similar in size to Flint (i.e., central cities with a population less than one million) have blood lead levels exceeding 10 pg./dl. Additionally, the poverty rate for African-American children ages five and under living within one mile of the proposed incinerator was 77.2%. This is the population most at risk from lead poisoning: the Michigan Environmental Science Board Lead Panel concludes that lower socio-economic urban preschool children (less than six years old) living in older (pre-1980’s) homes are the most vulnerable to lead exposure.
Finally, other essential information included the cumulative risk of adding another polluting site. Flint has numerous unregulated junk yards that burn trash and tires, bulk storage gas tanks, an asphalt company and cement factory that contribute to noise and air pollution, and a fenced-off holding pond containing sludge and other liquid waste northwest of the industrial park that may have negative effects on the local ground water. The Flint River, considered the second most polluted river in Michigan, runs close to the area, so the water table is relatively high, and two streams run through the park near the river passing close to residential sites.
Presentation of this evidence at trial (before the defense had even put on its own case) alone prompted the state court judge to push the parties into settlement discussions. Thus, collection of data is one of the most critical tasks any community group or lawyer can undertake when trying to keep a new source of pollution out of a neighborhood.
Prospects for the Future
Unfortunately, data of this type often are inaccessible to communities at the critical early stages because many community organizations lack access to computers, public health professionals, risk assessment analysts, etc., and because these groups are not familiar with the types of data that can be useful and important. Thus, one key challenge facing those working in the Environmental Justice Movement is how to improve community access to information.
A second challenge is how to link the various environmental struggles occurring in communities throughout the country. Almost every instance of struggle involves common questions, the most fundamental of which is how to address the growing conflict between corporate self-interest and the good of the people. Debating this question provides an opportunity to develop powerful responses to the ascendancy of the Right and the new wave of deregulation of finance capital and manufacturing industries. Facing this question is one of the most important steps that can be taken in the environmental movement, and one which can make the environmental movement the leading edge for policies that place people over profits.
Kary L. Moss is Executive Director of the Maurice and Jane Sugar Law Center for Economic and Social Justice, a project of the National Lawyers Guild.
