Posted on January 19, 2021 by Jerry L. Anderson
We have known since the 1980s that people of color bear a disproportionate share of environmental harms. In 1994, President Clinton issued Executive Order 12,898, which required federal agencies to develop policies incorporating the principles of environmental justice into their mission. EPA, as well as many state environmental agencies, established an Office of Environmental Justice, to help communities of color gain a voice in environmental decisionmaking and integrate EJ policies into all facets of the agency’s work.
Despite these efforts (and many others), the U.S. Commission on Civil Rights concludedin 2016 that little progress had been made in reducing disparate environmental impacts based on race. The report shows that broad directives promising to reduce discrimination cannot overcome the structural barriers that frustrate or prevent effective progress. Today, I want to point to two possible levers of change.
1. Who is making the decision? The issue of equitable representation.
Decisions that cause environmental harm are often made either by local zoning boards or by state environmental agencies, in the form of citizen commissions. For example, the local Planning and Zoning Commission will decide where to site Locally Unwanted Land Uses (LULUs), such as landfills, waste incinerators or factories. State appointed bodies, such as the Environmental Protection Commission in my state, often decide questions of water or air pollution permitting and enforcement.
Who is making these decisions? Do they represent the population that will be impacted the most?
In a 2008 study, my research team at Drake Law found that 84% of large-city zoning board members where white, over 20 percentage points higher than their demographic percentage. In addition, board members skewed heavily toward white-collar professionals, particularly those with a vested interest in development.
State environmental boards also often suffer from a lack of diversity. Often, state statutes require that certain economic groups be represented (e.g., industry or agriculture), but do not mandate representation for those impacted by pollution.
Local officials should recruit zoning board participants from underrepresented populations, including those most affected by environmental harms. In addition, state statutes should be amended to ensure adequate representation from impacted low-income and minority communities.
2. Who can participate in the decision? The issue of fair process.
In order to oppose the siting of a highway or factory that will impact their neighborhood, minority and low-income groups face numerous barriers to mounting effective opposition. They typically suffer from a lack of resources, limited free time, and restricted access to political networks. Collective action problems weigh down their attempts to marshall resources to hire legal counsel or expert witnesses.
Adding to their difficulties, many states do not allow opponents of an environmental permit an adversarial hearing, thereby preventing them from effectively making a record at the administrative level. In contrast, permit applicants who are either denied a permit or whose permit contains limitations they object to are allowed an administrative hearing or “contested case.” See, e.g., Bernau v. Iowa Dept. of Transp., 580 N.W.2d 757, 767 (Iowa 1998)(opponents of highway bypass had no right to contested case proceeding). Opponents can only file written comments. If they want to challenge the permit, they need to file a case in state court. That avenue takes more resources, of course, and faces the deferential standard of review afforded to agency action, as well as significant limitations on the introduction of new evidence. The court will review based on the record made below, which the impacted citizens were not allowed to fully participate in.
Making participation by impacted communities easier and more effective will require statutory and regulatory changes to administrative hearing procedures. In the meantime, however, environmental attorneys should consider pro bono opportunities to help level the playing field.
These recommendations address only two structural issues lying behind the racial disparities in environmental harm. For further discussion of those barriers, check out this podcast series on Racism in Administrative Law.
To examine environmental justice in your community, I highly recommend EPA’s Environmental Justice Screener, which allows you to compare environmental harms against demographic data.