An Ounce of Preemption is Worth a Pound of Cure: State Preemption of Local Siting Authority as a Means for Achieving Environmental Equity
By Tessa Meyer Santiago
INTRODUCTION
Between 1920 and the late 1970s, the all-white city council in Houston (a city with no zoning laws), placed eight out of every ten solid waste sites in black neighborhoods, even though blacks comprised no more than twenty-five percent of the city's population at any one time. In 1983, the federal government officially acknowledged that three out of four hazardous waste offsite landfills in Environmental Protection Agency Region IV were situated in majority black communities. The dirtiest zip code in California belongs to a mostly black and Latino neighborhood.3 Over seventy-one percent of blacks and fifty percent of Latinos in the Los Angeles basin live in the areas with the most polluted air. In contrast, only thirty-four percent of the white population lives in these areas. It was not by chance that the Louisiana Energy Services chose Claiborne Parish, Louisiana, as the most appropriate site for the nation's first privately owned uranium enrichment plant. The plant would be located within a mile and a quarter of two mostly black communities where the per capita earning is only $5,800 a year and the black population is two and a half times greater than the Louisiana average.
A meeting to decide the expansion of a toxic waste dump situated just eight miles west of tiny Buttonwillow, California, where the population is fifty percent Latino, all of whom work on farms and in the oil fields, was attended mostly by white people in suits; only three Latinos were in attendance. Those in attendance wanted to double the size of the dump, making it the largest capacity dump in the United States, and increase the dump's intake from only petroleum waste to more than 450 types of highly toxic substances.
The aforementioned siting decisions are a few examples of environmental racism. It may be possible to explain some of these siting decisions with neutral criteria: cheap land values, the porosity of the soil, and the character of surrounding industry, yet, racism undoubtedly plays a role in many of the decisions, and de facto discrimination exists regardless of the explanation. Pinpointing the source and identifying the effects of racism is a daunting, almost legally impossible task.
Some environmental justice advocates believe that active racism on the part of decision-making administrators is the catalyst for siting locally undesirable land uses (LULUs), such as hazardous waste facilities, solid waste disposal systems, and contaminating industrial sites, in minority communities. For example, Robert Bullard believes that minority neighborhoods are deliberately chosen as “sacrifice zones” for the general populace. The more common view, however, is that unconscious racism pervades much of American decision-making. To identify and rectify this official apathy towards communities of color we must focus on outcomes. Consequently, environmental racism occurs when administrative decisions have a disproportionate impact on communities of color. The United Church of Christ study suggests that “environmental racism” includes both intentional and unintentional decisions that cause minority communities to bear a disproportionate burden of environmental hazards. Government action or inaction can cause this disproportionate burden.
I will define environmental racism even more expansively than the Church of Christ study. I have, in fact, eliminated the mention of race altogether in my definition. Proving racist intent, as Part II of this essay will show, is almost impossible under current environmental jurisprudence. It is hard to figure out precisely what contribution race makes to most siting decisions. Even the lowest evidentiary burden--proving a racially based, unjustifiable disparate impact--is a high litigation standard, requiring statistical analysis of similarly situated communities with different racial compositions. Furthermore, discrimination is not limited to a particular race. These siting decisions also tend to discriminate against lower socioeconomic groups in general. In fact, poverty is probably the most common characteristic shared by environmentally burdened communities, and yet the law provides no relief. For these reasons, I will define the scope of the environmental racism as follows: discrimination occurs any time a siting decision requires a community to bear a burden disproportionate to the short-term benefit the immediate community reaps.
True advocates of environmental justice should recognize that whenever any community is required to bear a disproportionate burden of a state's environmental hazards, discrimination against that community's defining characteristic--income level, race, ethnicity, and religion, for example--is most probably at work. Identifying and targeting disproportionate burdens also counteracts a facially neutral system of decision-making that is in fact loaded with political and economic inequalities.
In past attempts to remedy this perceived disproportionality, plaintiffs and their advocates have sued to prevent the siting of LULUs, formulated legal theories that promise more favorable outcomes for environmental plaintiffs, and suggested changes in the site selection procedures. Still, there seems to be no hope for an equitable result given the current bias towards proving racially discriminatory intent through statistical data, clear evidence of administrative bad faith, and a lack of racially neutral reasons sufficient to justify the decision.
Once a claim comes to trial, many factors weigh against a plaintiff's verdict in court. An administrative decision is bolstered by a presumption of good faith that is hard to overcome. Plaintiffs must prove discriminatory intent or even disparate impact through sophisticated and complex evidence. Sometimes, even obviously discriminatory decisions are justified because of other neutral factors that weighed heavily in the decision-making process. Recent cases and judicial approaches indicate that the decision will virtually always favor the defendants.
Focusing attention on judicial remedies to aid communities impacted by environmental racism seems to be like entering the fray when the army is in retreat. Significant momentum gathers when a deep-pocketed, heavily-vested interest begins negotiations with local decision-making bodies. By the time their politically inexperienced neighbors take notice and prepare to formulate an effective response, the cards are already stacked against them. The odds of a favorable decision do not increase upon the plaintiff's prayer for relief. Environmental justice jurisprudence is still in its infancy and current constitutional burdens of proof are too high for environmental plaintiffs to win on the merits. Prayers for relief or claims for damages are almost always denied.
To counteract the pro-defendant slant of the judicial system, I propose a remedy that leans the other way - a remedy based on the central premise of equal environmental protection for all neighborhoods. This remedy starts at the root of the discriminatory siting practices: the local land use board. At the heart of discriminatory siting practices is a longstanding refusal (deliberate, indifferent, or unconscious) by local land use boards to treat all neighborhoods with equal respect and decency. White neighborhoods are valued over neighborhoods of color. Industry, commercial uses, and LULUs are placed in areas of less perceived value, most often neighborhoods of color. To remove as much of the rotten root of environmental racism as possible, I propose a state regulatory scheme with the single mandate of ensuring that all communities within the state or region bear their fair share of environmental burdens. The goal is environmental equity.
Precedent exists for this type of legislative action. A similar federal land use plan was proposed in the early 1970s and almost passed both Houses of Congress. Federal preemption of local land use authority is common where the risk to public health is high. Some states already preempt local land use authority in order to carry out such high-risk federal regulations. This remedy merely limits local authority when the socioeconomic risks are high, such as those siting decisions that may disparately impact minority areas, thereby creating segregative effects and causing rapid neighborhood decline. Using existing zoning and land use law, this state board would ensure that the minimum protections afforded white neighborhoods are extended to all neighborhoods throughout the region or state.
The Introduction to this essay has provided examples and a working definition of environmental discrimination, and it has introduced the proposed remedy. Part I will show why the plaintiff seldom meets the burden of proof in environmental justice cases. To that end, I will discuss the judicial remedies of the Equal Protection Clause of the Fourteenth Amendment and Titles VI and VIII of the Civil Rights Act. I will also examine the inability of the National Environmental Protection Act (NEPA) and the Resource Conservation and Recovery Act (RCRA) to consider socioeconomic impacts during the permitting process. Part II examines two remedies suggested by environmental justice advocates Popovic and Dubin: (1) recognizing a right to a healthful environment and (2) granting a right to the protective zoning of minority neighborhoods. I believe these remedies fall short by providing just another cause of action with which a plaintiff can present her case. However, recognizing the right of all people to enjoy a similar standard of environmental protection and the significant role zoning law can play in ensuring that protection is a good place to start. Part III presents the state regulatory scheme, including a discussion of all relevant threshold standards, burdens of proof, siting procedures, and standards of review. I will also show that the proposed remedy is merely an extension of practices already in place in other areas of the law.
Between 1920 and the late 1970s, the all-white city council in Houston (a city with no zoning laws), placed eight out of every ten solid waste sites in black neighborhoods, even though blacks comprised no more than twenty-five percent of the city's population at any one time. In 1983, the federal government officially acknowledged that three out of four hazardous waste offsite landfills in Environmental Protection Agency Region IV were situated in majority black communities. The dirtiest zip code in California belongs to a mostly black and Latino neighborhood.3 Over seventy-one percent of blacks and fifty percent of Latinos in the Los Angeles basin live in the areas with the most polluted air. In contrast, only thirty-four percent of the white population lives in these areas. It was not by chance that the Louisiana Energy Services chose Claiborne Parish, Louisiana, as the most appropriate site for the nation's first privately owned uranium enrichment plant. The plant would be located within a mile and a quarter of two mostly black communities where the per capita earning is only $5,800 a year and the black population is two and a half times greater than the Louisiana average.
A meeting to decide the expansion of a toxic waste dump situated just eight miles west of tiny Buttonwillow, California, where the population is fifty percent Latino, all of whom work on farms and in the oil fields, was attended mostly by white people in suits; only three Latinos were in attendance. Those in attendance wanted to double the size of the dump, making it the largest capacity dump in the United States, and increase the dump's intake from only petroleum waste to more than 450 types of highly toxic substances.
The aforementioned siting decisions are a few examples of environmental racism. It may be possible to explain some of these siting decisions with neutral criteria: cheap land values, the porosity of the soil, and the character of surrounding industry, yet, racism undoubtedly plays a role in many of the decisions, and de facto discrimination exists regardless of the explanation. Pinpointing the source and identifying the effects of racism is a daunting, almost legally impossible task.
Some environmental justice advocates believe that active racism on the part of decision-making administrators is the catalyst for siting locally undesirable land uses (LULUs), such as hazardous waste facilities, solid waste disposal systems, and contaminating industrial sites, in minority communities. For example, Robert Bullard believes that minority neighborhoods are deliberately chosen as “sacrifice zones” for the general populace. The more common view, however, is that unconscious racism pervades much of American decision-making. To identify and rectify this official apathy towards communities of color we must focus on outcomes. Consequently, environmental racism occurs when administrative decisions have a disproportionate impact on communities of color. The United Church of Christ study suggests that “environmental racism” includes both intentional and unintentional decisions that cause minority communities to bear a disproportionate burden of environmental hazards. Government action or inaction can cause this disproportionate burden.
I will define environmental racism even more expansively than the Church of Christ study. I have, in fact, eliminated the mention of race altogether in my definition. Proving racist intent, as Part II of this essay will show, is almost impossible under current environmental jurisprudence. It is hard to figure out precisely what contribution race makes to most siting decisions. Even the lowest evidentiary burden--proving a racially based, unjustifiable disparate impact--is a high litigation standard, requiring statistical analysis of similarly situated communities with different racial compositions. Furthermore, discrimination is not limited to a particular race. These siting decisions also tend to discriminate against lower socioeconomic groups in general. In fact, poverty is probably the most common characteristic shared by environmentally burdened communities, and yet the law provides no relief. For these reasons, I will define the scope of the environmental racism as follows: discrimination occurs any time a siting decision requires a community to bear a burden disproportionate to the short-term benefit the immediate community reaps.
True advocates of environmental justice should recognize that whenever any community is required to bear a disproportionate burden of a state's environmental hazards, discrimination against that community's defining characteristic--income level, race, ethnicity, and religion, for example--is most probably at work. Identifying and targeting disproportionate burdens also counteracts a facially neutral system of decision-making that is in fact loaded with political and economic inequalities.
In past attempts to remedy this perceived disproportionality, plaintiffs and their advocates have sued to prevent the siting of LULUs, formulated legal theories that promise more favorable outcomes for environmental plaintiffs, and suggested changes in the site selection procedures. Still, there seems to be no hope for an equitable result given the current bias towards proving racially discriminatory intent through statistical data, clear evidence of administrative bad faith, and a lack of racially neutral reasons sufficient to justify the decision.
Once a claim comes to trial, many factors weigh against a plaintiff's verdict in court. An administrative decision is bolstered by a presumption of good faith that is hard to overcome. Plaintiffs must prove discriminatory intent or even disparate impact through sophisticated and complex evidence. Sometimes, even obviously discriminatory decisions are justified because of other neutral factors that weighed heavily in the decision-making process. Recent cases and judicial approaches indicate that the decision will virtually always favor the defendants.
Focusing attention on judicial remedies to aid communities impacted by environmental racism seems to be like entering the fray when the army is in retreat. Significant momentum gathers when a deep-pocketed, heavily-vested interest begins negotiations with local decision-making bodies. By the time their politically inexperienced neighbors take notice and prepare to formulate an effective response, the cards are already stacked against them. The odds of a favorable decision do not increase upon the plaintiff's prayer for relief. Environmental justice jurisprudence is still in its infancy and current constitutional burdens of proof are too high for environmental plaintiffs to win on the merits. Prayers for relief or claims for damages are almost always denied.
To counteract the pro-defendant slant of the judicial system, I propose a remedy that leans the other way - a remedy based on the central premise of equal environmental protection for all neighborhoods. This remedy starts at the root of the discriminatory siting practices: the local land use board. At the heart of discriminatory siting practices is a longstanding refusal (deliberate, indifferent, or unconscious) by local land use boards to treat all neighborhoods with equal respect and decency. White neighborhoods are valued over neighborhoods of color. Industry, commercial uses, and LULUs are placed in areas of less perceived value, most often neighborhoods of color. To remove as much of the rotten root of environmental racism as possible, I propose a state regulatory scheme with the single mandate of ensuring that all communities within the state or region bear their fair share of environmental burdens. The goal is environmental equity.
Precedent exists for this type of legislative action. A similar federal land use plan was proposed in the early 1970s and almost passed both Houses of Congress. Federal preemption of local land use authority is common where the risk to public health is high. Some states already preempt local land use authority in order to carry out such high-risk federal regulations. This remedy merely limits local authority when the socioeconomic risks are high, such as those siting decisions that may disparately impact minority areas, thereby creating segregative effects and causing rapid neighborhood decline. Using existing zoning and land use law, this state board would ensure that the minimum protections afforded white neighborhoods are extended to all neighborhoods throughout the region or state.
The Introduction to this essay has provided examples and a working definition of environmental discrimination, and it has introduced the proposed remedy. Part I will show why the plaintiff seldom meets the burden of proof in environmental justice cases. To that end, I will discuss the judicial remedies of the Equal Protection Clause of the Fourteenth Amendment and Titles VI and VIII of the Civil Rights Act. I will also examine the inability of the National Environmental Protection Act (NEPA) and the Resource Conservation and Recovery Act (RCRA) to consider socioeconomic impacts during the permitting process. Part II examines two remedies suggested by environmental justice advocates Popovic and Dubin: (1) recognizing a right to a healthful environment and (2) granting a right to the protective zoning of minority neighborhoods. I believe these remedies fall short by providing just another cause of action with which a plaintiff can present her case. However, recognizing the right of all people to enjoy a similar standard of environmental protection and the significant role zoning law can play in ensuring that protection is a good place to start. Part III presents the state regulatory scheme, including a discussion of all relevant threshold standards, burdens of proof, siting procedures, and standards of review. I will also show that the proposed remedy is merely an extension of practices already in place in other areas of the law.